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Sara Reynolds

Sara Reynolds is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Trump has appointed second-most federal judges through November 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 220 Article III federal judges through November 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 260 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through November 1 of their fourth year in office is 200.

The median number of Supreme Court justices appointed is two. President Trump appointed the most with three. Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 55, while Clinton and Obama both appointed the least with 30 each. Trump’s 53 appointments make up 30% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 162. Carter appointed the most with 202, and Obama appointed the fewest with 128. Trump has appointed 162 district court judges so far. Those appointments make up 24% of the 677 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

Additional reading



Bold Justice: Amy Coney Barrett joins the court



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Ballotpedia's Bold Justice

Welcome to the November 2 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

Election Day is tomorrow! Ballotpedia’s Election Help Desk was designed to help you sort through the layers of complexities with this year’s elections. Click here to subscribe to the Election Help Desk Newsletter.

Otherwise, stay up to date on the latest news by following us on Twitter or subscribing to the Daily Brew.


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Arguments

The Supreme Court will hear five hours of arguments this week via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 41 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

November 2

  • In U.S. Fish and Wildlife Service v. Sierra Club, the Sierra Club challenged an Environmental Protection Agency rule and a biological opinion from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services). A biological opinion is a document stating the Services’ opinion on whether a federal agency action is likely to harm listed species or critical habitat. During that litigation, the Sierra Club submitted a Freedom of Information Act (FOIA) request for draft documents from a consultation between the three agencies that took place between 2011 and 2014. The Services released some documents but withheld others under FOIA Exemption 5. FOIA requires a federal agency to disclose records upon request. The law grants nine exemptions. Exemption 5 allows an agency to withhold “inter-agency or intra-agency memoranda or letters that are protected by legal privileges.”

    The Sierra Club sued Services in the U.S. District Court for the Northern District of California, which ruled Services had to disclose some documents but could withhold others. On appeal, the U.S. 9th Circuit Court of Appeals affirmed in part and reversed in part the district court’s decision. The government petitioned the U.S. Supreme Court for review.

    The issue: Whether FOIA Exemption 5 protects draft documents from compelled disclosure if the documents were (1) created during a formal interagency consultation process under Section 7 of the Endangered Species Act and (2) later modified in the consultation process.

  • In Salinas v. U.S. Railroad Retirement Board, Manfredo Salinas filed an application for disability annuity with the U.S. Railroad Retirement Board’s Disability Benefits Division in 2006. The application was denied. Salinas appealed to the Board to reconsider. The Board denied the request. In 2013, Salinas filed a new application for disability annuity. The Board granted the annuity. Salinas appealed the annuity’s start date and amount, and requested that his prior applications be reviewed. The Board denied the request. On appeal, the 5th Circuit dismissed Salinas’ petition, holding the court lacked jurisdiction to review the Board’s decision not to reopen Salinas’ earlier case. The issue: Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a final decision subject to judicial review.

November 3

  • Jones v. Mississippi concerns sentencing of juveniles—individuals under 18 years old—to life imprisonment without parole. When he was 15 years old, Brett Jones killed his grandfather. Jones was convicted and sentenced to life imprisonment without parole. Following the U.S. Supreme Court’s decision in Miller v. Alabama (2012), the Mississippi Supreme Court ordered the Lee County Circuit Court to hold a sentencing rehearing. The circuit court resentenced Jones to life in prison without parole. Jones appealed to the Mississippi Court of Appeals, which rejected his argument to reverse the sentence. The state supreme court then held oral arguments for the case before dismissing it. Four judges dissented, arguing Jones’ case should be remanded with instructions to sentence him to life in prison with the possibility of parole. Jones petitioned the U.S. Supreme Court for review. The issue: Whether the 8th Amendment requires a sentencing authority to find that a juvenile is “permanently incorrigible” before sentencing the juvenile to life without parole.

    A juvenile is considered incorrigible when he or she refuses to accept the authority and discipline of adults in a repeated, dangerous, and disruptive way.

  • Borden v. United States concerns the “use of force” clause in the Armed Career Criminal Act (ACCA). Charles Borden, Jr. pleaded guilty to possessing a firearm as a felon. The U.S. District Court for the Eastern District of Tennessee, relying on the 6th Circuit Court’s decision in United States v. Verwiebe (2017), sentenced Borden to nine years and seven months of imprisonment under the ACCA. In Verwiebe, the 6th Circuit ruled that “reckless aggravated assault is a crime of violence” under the ACCA’s use-of-force clause. Borden objected to his sentence, arguing the district court’s application of Verwiebe to his case violated due process protections. On appeal, the 6th Circuit affirmed the district court’s ruling. Borden petitioned the U.S. Supreme Court for review.

    The issue: Does the “use of force” clause in the ACCA apply to crimes committed with a reckless intent?

    The ACCA’s “use of force” clause states:

    “The term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year … that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another.”

November 4

  • In Fulton v. City of Philadelphia, Pennsylvania, Philadelphia’s Department of Human Services began an investigation into two of its foster care provider agents for potential violations of the city’s anti-discrimination laws. The investigation was based on an allegation that the agencies refused to work with same-sex couples seeking to become foster parents. One of the agencies was a religious nonprofit organization, Catholic Social Services (CSS). CSS confirmed that it would not certify same-sex couples as foster parents. The city stopped referring foster children to the agency. CSS sued the city in U.S. district court, citing violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act.

    The district court denied the request. CSS appealed to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The circuit court denied the request. Then, CSS filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. The Court denied the request. On appeal, the 3rd Circuit affirmed the district court’s ruling.

    The issue: “Whether a Catholic social services agency that receives taxpayer funding can legally discriminate against same-sex couples to be foster parents.”

Upcoming SCOTUS dates

 Here are the upcoming dates of interest in October:

  • November 2: 
    • SCOTUS will release orders. 
    • SCOTUS will hear arguments in two cases.
  • November 3: SCOTUS will hear arguments in two cases.
  • November 4: SCOTUS will hear arguments in one case.
  • November 6: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

The Roberts Court started in September 2005 and is ongoing. Excluding Chief Justice Roberts, how many justices have served on the U.S. Supreme Court during the Roberts Court?

  1. 22
  2. 14
  3. 11
  4. 9

Choose an answer to find out!


Federal Court action

Confirmations

The Senate has confirmed two new nominees since our October 12 issue.

Since January 2017, the Senate has confirmed 220 of President Trump’s judicial nominees—162 district court judges, 53 appeals court judges, two Court of International Trade judges, and three Supreme Court justices.

Amy Coney Barrett confirmation

On October 26, the U.S. Senate voted 52-48 to confirm Amy Coney Barrett to a seat on the U.S. Supreme Court. The vote was mostly along party lines, with Sen. Susan Collins of Maine as the only Republican to vote with Democrats against Barrett’s confirmation.

President Trump nominated Barrett on September 29 to succeed Associate Justice Ruth Bader Ginsburg, who died on September 18 at the age of 87.

Barrett earned her bachelor’s degree, magna cum laude, in English literature from Rhodes College in 1994 and her J.D., summa cum laude, from Notre Dame Law School in 1997. She was awarded the law school’s Hoynes Prize, which is the law school’s highest honor. Barrett was executive editor of the Notre Dame Law Review.

Barrett was a judge on the U.S. Court of Appeals for the 7th Circuit from 2017 to 2020. From 2002 to 2017, she was a professor of law at Notre Dame Law School. She previously worked in private practice and as a law clerk to U.S. Supreme Court Justice Antonin Scalia (1998-1999) and to Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit (1997-1998).

Barrett has explained her judicial philosophy as originalist—interpreting the U.S. Constitution according to what the words meant to the individuals who wrote it—and textualist—interpreting a law based on the words on the page, not what Congress may have intended to do when the law was passed.

Nominations

President Trump has announced two new Article III nominees since our October 12 edition.

The president has announced 273 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

 

Vacancies

The federal judiciary currently has 66 vacancies. As of publication, there were 41 pending nominations.

According to the Administrative Office of U.S. Courts, an additional two judges have announced their intention to leave active judicial status during Trump’s first term.

For more information on judicial vacancies during Trump’s first term, click here.

Committee action

The Senate Judiciary Committee has reported five new nominees out of committee since our October 12 edition.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals President Trump has nominated.


Court news

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Samuel Alito.

Alito has been an associate justice since January 31, 2006. President George W. Bush (R) nominated Alito on November 10, 2005, to succeed Sandra Day O’Connor. The U.S. Senate voted to confirm Alito 58-42 on January 31, 2006.

Before joining the U.S. Supreme Court, Alito was a judge on the U.S. Court of Appeals for the 3rd Circuit. Before that, he was a U.S. attorney for the District of New Jersey, a deputy assistant attorney general in the U.S. Department of Justice, and an assistant to the U.S. solicitor general. Click here to learn more about Alito’s professional career.

Alito was born in Trenton, New Jersey, in 1950. He earned an A.B. from Princeton University in 1972 and a J.D. from Yale Law School in 1975, where he was an editor of the Yale Law Journal. After law school, Alito was a law clerk to Judge Leonard Garth on the U.S. Court of Appeals for the 3rd Circuit.

Alito was drafted to serve in the Vietnam War on December 1, 1969. He deferred his service while enrolled in college. At Princeton, he joined the Army Reserve Officers’ Training Corps (ROTC) and was commissioned as a second lieutenant after his graduation. He deferred his service a second time as he entered Yale Law School. After graduation from law school, he served three months of active service from September to December of 1975. Alito served in the Army Reserve from 1972 until 1980, when he was honorably discharged with the rank of captain.

In the 2019-2020 term, Alito wrote the following opinions:


Looking ahead

We’ll be back November 9 with a new edition of Bold Justice

Contributions

Sara Reynolds compiled and edited this newsletter, with contributions from Kate Carsella and Jace Lington.

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U.S. Senate confirms Newman to federal district court judgeship

The U.S. Senate confirmed Michael Newman to the U.S. District Court for the Southern District of Ohio by a 67-30 vote on October 22, 2020. The U.S. District Court for the Southern District of Ohio is one of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

After Newman receives his federal judicial commission and takes his judicial oath, the eight-member court will have five Republican-appointed judges and three Democrat-appointed judges. Newman will join three other judges appointed by President Trump.

The U.S. Senate has confirmed 219 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 162 district court judges, and two U.S. Court of International Trade judges—since January 2017.

Newman was a federal magistrate judge for the Southern District of Ohio from 2011 to 2020. Before that, he worked in private practice and as a law clerk to the Southern District of Ohio’s Magistrate Judge Jack Sherman and to U.S. Court of Appeals for the 6th Circuit Judge Nathaniel Jones. Newman earned his bachelor of fine arts degree from New York University in 1982, and his J.D., cum laude, from American University’s Washington College of Law in 1989.

Additional reading:



U.S. Supreme Court grants expedited review of case on census count

On October 16, the U.S. Supreme Court accepted Trump v. New York for expedited review and scheduled oral argument for November 30, 2020. The case came on a writ of certiorari to the U.S. District Court for the Southern District of New York. It concerns congressional apportionment following the 2020 U.S. Census. The U.S. government is asking the Supreme Court to consider if the president can order the U.S. secretary of commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.

On July 21, 2020, President Donald Trump (R) issued a memorandum to U.S. Secretary of Commerce Wilbur Ross. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments sued the government in U.S. district court, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment. The government argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The U.S. District Court for the Southern District of New York ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The government appealed to the U.S. Supreme Court.

The government presented the following two questions to the court:

  1. Does the coalition of state and local governments have the legal right—or standing—to challenge the memorandum?
  2. Does the president have the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base?

The census aims to provide a complete count of the U.S. population along with demographic data. The 2020 census is being conducted by the U.S. Census Bureau, a division of the U.S. Department of Commerce. Statistical information on the population collected through the census every 10 years is used for congressional apportionment and the distribution of federal funds.

Additional reading:



Results of Mississippi special general runoff elections

Special general runoff elections were held for Mississippi State Senate Districts 15 and 39 and Mississippi House of Representatives Districts 37 and 66 on Oct. 13, 2020. In Mississippi, special elections for state legislative offices are nonpartisan. The special general election for the four districts was held on Sept. 22, 2020. The filing deadline passed on Aug. 3, 2020.

In Senate District 15, Bart Williams won the special election with 53.6% of the vote and defeated Joyce Meek Yates. The special election was called after Gary Jackson (R) resigned on June 30, 2020. Jackson served from 2004 to 2020.

In Senate District 39, Jason Barrett won with 56.1% of the vote and defeated Bill Sones. The special election was called after Sally Doty (R) left office to become the executive director of the Mississippi Public Utilities Staff. She resigned on July 15, 2020. Doty served from 2012 to 2020.

In House District 37, Lynn Wright won with 63.8% of the vote and defeated David Chism. The special election was called after Gary Chism (R) resigned on June 30, 2020. Gary Chism served from 2000 to 2020.

In House District 66, De’Keither Stamps won with 61.5% of the votes and defeated Bob Lee Jr. The special election was called after Jarvis Dortch (D) resigned on July 2, 2020. Dortch served from 2016 to 2020.

As of October 2020, 59 state legislative special elections have been scheduled or held in 27 states. Between 2011 and 2019, an average of 77 special elections took place each year.

Mississippi has held 36 state legislative special elections between 2010 and 2019.

Additional reading:



Bold Justice: U.S. Supreme Court to hear four hours of oral argument

Welcome to the October 12 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. SCOTUS began its new term last week. Keep up with the latest court news by following us on Twitter or subscribing to the Daily Brew.

Arguments

The Supreme Court will hear four hours of arguments this week via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 35 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

  • October 13
    • United States v. Briggs is consolidated with United States v. Collins. In United States v. Briggs, a general court-martial convicted Michael Briggs of rape in 2014 for an act that occurred in 2005. Briggs appealed the conviction to the U.S. Air Force Court of Criminal Appeals, asserting the statute of limitations had expired. The Air Force Court of Criminal Appeals rejected Briggs’ statute of limitations assertion and affirmed the court-martial’s decision.

      Briggs appealed to the U.S Court of Appeals for the Armed Forces, which affirmed in part the Air Force Court of Appeals’ ruling. Briggs also appealed to the U.S. Supreme Court, which vacated the U.S. Court of Appeals for the Armed Forces’ decision and remanded the case. On remand, the Court of Appeals for the Armed Forces reversed its earlier judgment, dismissed the charge against Briggs, and vacated the sentence. The U.S. government appealed to the U.S. Supreme Court.

      The issue: Whether the Court of Appeals for the Armed Forces was wrong to conclude, against its own precedent, that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if the rape was discovered and charged within five years.

    • In City of Chicago, Illinois v. Fulton, the City of Chicago towed and impounded Robbin Fulton’s vehicle in 2017. Fulton filed a petition for Chapter 13 bankruptcy and a repayment plan in federal bankruptcy court. Fulton requested that the City return her vehicle. The City declined to do so. Then, Fulton moved for sanctions against the City of Chicago, arguing it was required to return her vehicle. The City asserted that it would retain possession of the vehicle and cited an exemption from the Bankruptcy Code’s automatic stay.

      The bankruptcy court ruled that the City was required to return the vehicle. The City moved to stay the order, but the court denied the request. The City returned the vehicle and appealed to the 7th Circuit. The court affirmed the bankruptcy court’s ruling.

      The issue: Whether an entity that is retaining possession of property in which a bankruptcy estate has an interest is obligated under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return the property immediately upon the filing of a bankruptcy petition.

  • October 14
    • In Torres v. Madrid, New Mexico State Police Officers Richard Williamson and Janice Madrid attempted to serve an arrest warrant on Kayenta Jackson at an Albuquerque apartment complex in 2014. Roxanne Torres was in the complex parking lot. When the officers approached her vehicle, Torres entered her vehicle, thinking the officers were carjackers, and drove the car forward. The officers shot her twice.

      Torres drove from the scene and was treated at a hospital for her injuries. She was arrested and pleaded no contest to three crimes related to the event. In 2016, Torres sued the officers in U.S. District Court claiming excessive force. The district court interpreted the complaint as asserting excessive force claims under the Fourth Amendment. The court ruled that the officers were entitled to qualified immunity and that since the officers had not seized Torres at the time of the shooting, they had not violated the Fourth Amendment. The U.S. Court of Appeals for the 10th Circuit affirmed the district court’s ruling. Torres filed an appeal with the Supreme Court.

      The issue: “Is an unsuccessful attempt to detain a suspect by use of physical force a ‘seizure’ within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or must physical force be successful in detaining a suspect to constitute a ‘seizure,’ as the Tenth Circuit and the D.C. Court of Appeals hold?”

    • In Pereida v. Barr, Clemente Avelino Pereida, a citizen and native of Mexico, was convicted of attempted criminal impersonation in Nebraska. The U.S. Department of Homeland Security charged Pereida with removal from the country (also known as removability). Pereida filed an application for relief from removal. An immigration judge found that his conviction was a crime involving moral turpitude, barring relief from removal. On appeal, the Board of Immigration Appeals held Pereida had not proven his conviction was not a crime involving moral turpitude and as a result, he was statutorily ineligible for cancellation of removal. The U.S. Court of Appeals for the 8th Circuit denied Pereida’s petition for review. Pereida appealed to the Supreme Court.

      The issue: Does a criminal conviction of a non-U.S. citizen prohibit that individual from applying for relief from deportation when the record of conviction is “merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.”

Upcoming SCOTUS dates

Here are the upcoming dates of interest in October:

  • October 13:
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in two cases.
  • October 14: SCOTUS will hear arguments in two cases.
  • October 16: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 19: SCOTUS will release orders.
  • October 30: SCOTUS will conference.

When was the first color photograph of the SCOTUS justices taken?

  1. 1932
  2. 1948
  3. 1965
  4. 1980

Choose an answer to find out!

Confirmations

The Senate has not confirmed any new nominees since our October 5 issue.

Since January 2017, the Senate has confirmed 218 of President Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Nominations

President Trump has not announced any new Article III nominees since our October 5 edition.

The president has announced 271 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

Vacancies

The federal judiciary currently has 64 vacancies. As of publication, there were 40 pending nominations.

According to the Administrative Office of U.S. Courts, an additional four judges have announced their intention to leave active judicial status during Trump’s first term.

For more information on judicial vacancies during Trump’s first term, click here.

Committee action

The Senate Judiciary Committee has not reported any new nominees out of committee since our October 5 edition.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals President Trump has nominated.

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Stephen Breyer.

Breyer has been an associate justice since August 3, 1994. President Bill Clinton (D) nominated Breyer on May 17, 1994 to succeed Harry Blackmun. The U.S. Senate confirmed Breyer by an 87-9 vote on July 29, 1994.

Before joining the U.S. Supreme Court, Breyer was a judge on the U.S. Court of Appeals for the 1st Circuit. Before that, he was a member of the U.S. Sentencing Commission, chief counsel of the U.S.  Senate Judiciary Committee, and a professor at Harvard University’s Kennedy School of Government. Click here to learn more about Breyer’s professional career.

Breyer was born in San Francisco, California, in 1938. He earned a B.A. in philosophy from Stanford University in 1959, a B.A. from Magdalen College at the University of Oxford as a Marshall Scholar in 1961, and an LL.B. from Harvard Law School in 1964. Breyer was the article editor at the Harvard Law Review. After law school, Breyer was a law clerk to U.S. Supreme Court Associate Justice Arthur Goldberg.

In the 2019-2020 term, Breyer wrote the following opinions:

We’ll be back November 2 with a new edition of Bold Justice.



California governor appoints Jenkins as first nominee to state supreme court

California Gov. Gavin Newsom (D) appointed Martin Jenkins to the California Supreme Court on October 5, 2020. Pending confirmation by the state Commission on Judicial Appointments, Jenkins will succeed Justice Ming Chin, who retired on August 31, 2020. Jenkins is Newsom’s first nominee to the seven-member supreme court.

Under California law, state supreme court justices are recommended by the Commission on Judicial Nominee Evaluation to the governor. The governor then selects the new justice, who must be confirmed by the state Commission on Judicial Appointments.

Jenkins was an associate judge on the California First District Court of Appeal, Division Three, from 2008 to 2019. He was appointed by Gov. Arnold Schwarzenegger (R). He stepped down in 2019 after Gov. Newsom appointed Jenkins as judicial appointments secretary.

From 1997 to 2008, Jenkins was a judge on the U.S. District Court for the Northern District of California. President Bill Clinton (D) nominated Jenkins on July 24, 1997, to a seat vacated by Eugene Lynch. The U.S. Senate confirmed Jenkins on November 9, 1997, and he received commission on November 12. Jenkins served on the Northern District of California until his resignation on April 3, 2008.

Jenkins earned his A.A. from the City College of San Francisco in 1973, his B.A. from Santa Clara University (formerly the University of Santa Clara) in 1976, and his J.D. from the University of San Francisco School of Law in 1980.

A press release from Gov. Newsom’s office said Jenkins “would be the first openly gay California Supreme Court justice and only the third African American man ever to serve on the state’s highest court. It has been 29 years since an African American man has served on the California Supreme Court.”

The California Supreme Court is the state’s court of last resort. As of October 2020, four judges on the court were appointed by Democratic governors and two judges were appointed by Republican governors.

In 2020, there have been 21 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 20 vacancies were caused by retirements.

Additional reading:



Ballotpedia releases federal judicial vacancy count for September

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from September 2, 2020, to October 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been two new judicial vacancies since the previous report. There are 59 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 64 of 890 active federal judicial positions are vacant.

Nominations: There have been four new nominations since the previous report.

Confirmations: There have been 15 new confirmations since the previous report.

New vacancies

There were 59 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 6.3, which is 1.5 percentage points lower than the vacancy percentage in August 2020.

• One (11.1%) of the nine U.S. Supreme Court seats is vacant.

• None of the 179 U.S. Appeals Court positions are vacant.

• 56 (8.3%) of the 677 U.S. District Court positions are vacant.

• Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.

A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. Article III judges, who serve on courts authorized by Article III of the Constitution, are appointed for life terms.

Two judges left active status, creating Article III life-term judicial vacancies. As Article III judicial positions, these vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

1. Associate Justice Ruth Bader Ginsburg died on September 18, 2020, vacating her seat on the Supreme Court of the United States.

2. Judge Pamela Reeves died on September 10, 2020, vacating her seat on the U.S. District Court for the Eastern District of Tennessee.

*New nominations*

President Trump has announced four new nominations since the August 2020 report.

Amy Coney Barrett, to the Supreme Court of the United States.

Charles Atchley, to the U.S. District Court for the Eastern District of Tennessee.

Katherine Crytzer, to the U.S. District Court for the Eastern District of Tennessee.

Joseph Dawson, to the U.S. District Court for the District of South Carolina.

Since taking office in January 2017, President Trump has nominated 271 individuals to Article III positions.

New confirmations

Since September 2, 2020, the U.S. Senate has confirmed 15 of President Trump’s nominees to Article III seats. As of October 1, 2020, the Senate has confirmed 218 of President Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

Roderick Young, confirmed to the U.S. District Court for the Eastern District of Virginia.

John Hinderaker, confirmed to the U.S. District Court for the District of Arizona.

Iain Johnston, confirmed to the U.S. District Court for the Northern District of Illinois.

Franklin Valderrama, confirmed to the U.S. District Court for the Northern District of Illinois.

David Dugan, confirmed to the U.S. District Court for the Southern District of Illinois.

Stephen P. McGlynn, confirmed to the U.S. District Court for the Southern District of Illinois.

Todd Robinson, confirmed to the U.S. District Court for the Southern District of California.

Stanley Blumenfeld, confirmed to the U.S. District Court for the Central District of California.

John Holcomb, confirmed to the U.S. District Court for the Central District of California.

Mark Scarsi, confirmed to the U.S. District Court for the Central District of California.

Diane Gujarati, confirmed to the U.S. District Court for the Eastern District of New York.

Thomas Cullen, confirmed to the U.S. District Court for the Western District of Virginia.

Hala Jarbou, confirmed to the U.S. District Court for the Western District of Michigan.

Christy Wiegand, confirmed to the U.S. District Court for the Western District of Pennsylvania.

Brett Ludwig, confirmed to the U.S. District Court for the Eastern District of Wisconsin.

Additional reading:



Bold Justice: U.S. Supreme Court begins October 2020 term

 

Welcome to the October 5 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. SCOTUS begins its new term today! Keep up with the latest court news by following us on Twitter or subscribing to the Daily Brew.

Arguments

The Supreme Court will hear six hours of arguments this week. Click here to read more about SCOTUS’ current term.

In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

  • October 5
    • In Carney v. Adams, James Adams, a retired Delaware lawyer, sued Delaware Gov. John Carney (D) over Article IV, Section 3 of the Delaware Constitution. Article IV, Section 3 says that no more than the bare majority of judges on a given Delaware court can be of the same political party.

      Adams argued the provision violated the First Amendment. Carney argued Adams did not have the legal right, or standing, to file a lawsuit. A federal magistrate judge ruled the provision was unconstitutional.

      On appeal, the U.S. Court of Appeals for the 3rd Circuit affirmed in part and reversed in part the U.S. district court’s ruling. Carney appealed to the U.S. Supreme Court, arguing the 3rd Circuit’s decision conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit.

      The issue: Does Article IV, Section 3 of the Delaware Constitution violate the First Amendment?

    • Texas v. New Mexico concerns an interstate water dispute between Texas and New Mexico. It is part of the court’s original jurisdiction, meaning SCOTUS is the first and only court to hear the case.

      Texas and New Mexico entered a compact about use of the Pecos River. The U.S. Supreme Court appointed a river master to issue an annual report summarizing New Mexico’s compliance with its compact obligations. In 2014, the Pecos River flooded. New Mexico released the flood water downstream, even though Texas’ reservoir could not hold the extra water.

      Texas alleges the water was wasted. In mid-2018, New Mexico asked the river master to reduce its delivery obligations because of the 2014-2015 flood water. The river master retroactively changed the 2015 report, against Texas’ objections.

      Texas challenged the river master’s retroactive modifications and his 2018 annual report. While that challenge was pending, the river master filed a 2019 annual report, which Texas also petitioned the U.S. Supreme Court to review.

      The issue: Whether the river master was wrong to retroactively change the 2015 annual report and to charge Texas for evaporative losses without authority under the Compact.

  • October 6
    • In Rutledge v. Pharmaceutical Care Management Association, the Pharmaceutical Care Management Association filed a lawsuit challenging a 2015 Arkansas law. The law included mandates for pharmacy reimbursement for drug costs, new requirements for pharmacy benefits managers’ updates to maximum allowable cost lists, and administrative appeal procedures.

      Pharmaceutical Care Management Association sued on behalf of its pharmacy benefits manager members, claiming the Employee Retirement Income Security Act of 1974 (ERISA) and Medicare Part D preempted the state law. The association also argued the law was unconstitutional.

      The U.S. District Court for the Eastern District of Arkansas ruled that ERISA preempted the law, but Medicare Part D did not. The district court also ruled the law was constitutional. On appeal, the 8th Circuit affirmed in part and reversed in part the district court’s decision, and remanded the case for entry of judgment in favor of the Pharmaceutical Care Management Association.

      The issue: Whether the 8th Circuit incorrectly held that the ERISA preempted a 2015 Arkansas law, which is similar to laws in a majority of states, violating the Supreme Court’s precedent that ERISA does not preempt rate regulation.

    • In FNU Tanzin v. Tanvir, Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari, were born outside of the United States and later moved to the U.S., where they became U.S. citizens or lawful permanent residents. The three men, who practice Islam, sued FBI agents in their official and individual capacities in the U.S. District Court for the Southern District of New York. Tanvir, Algibah, and Shinwari claimed the FBI agents retaliated against them after the three men, citing their religious beliefs, declined to act as informants. Plaintiffs alleged the agents violated the Administrative Procedure Act, the Religious Freedom Restoration Act (RFRA), as well as their First and Fifth Amendment rights.

      The U.S. District Court dismissed the claims against the agents in their individual capacity. The three men appealed to the 2nd Circuit Court of Appeals, which reversed the lower court’s ruling. FBI Special Agent FNU (First Name Unknown) Tanzin appealed to the U.S. Supreme Court after the 2nd Circuit denied his motion for a rehearing en banc.

      The issue: Whether the RFRA provision 42 U.S.C. 2000bb-1(c) authorizes monetary damages against federal employees sued in their individual capacities.

      42 U.S.C. 2000bb-1(c) says a person whose religious exercise has been violated “may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”

  • October 7
    • In Google LLC v. Oracle America Inc., Oracle sued Google for copyright and patent infringement after Google used portions of Oracle-owned Java programming software for Android mobile devices. The case was brought to the U.S. District Court for the Northern District of California twice and appealed to the U.S. Court of Appeals for the Federal Circuit twice.

      In the first trial and appeal, a jury found that Google infringed on Oracle’s copyrights, but was deadlocked on whether Google’s copying was a fair use. After the verdict, the district court dismissed Oracle’s claim, holding the programming was not copyrightable as a matter of law. The appeals court reversed the district court’s ruling.

      In the second trial and appeal, the district court ruled in favor of Google. The appeals court reversed the district court’s ruling and remanded the case.

      The issues:

      (1) Does copyright protection extend to a software interface?

      (2) Does Google’s use of a software interface to create a new computer program constitute fair use?

    • Ford Motor Company v. Montana Eighth Judicial District Court was consolidated with Ford Motor Company v. Bandemer.

      In Ford Motor Company v. Montana Eighth Judicial District Court, Montana resident Markkaya Jean Gullett died after one of the tires of her 1996 Ford Explorer experienced a tread/belt separation. The vehicle lost stability and rolled into a ditch. A personal representative sued Ford for liability and negligence.

      In Ford Motor Company v. Bandemer, Minnesota resident Adam Bandemer sustained a severe brain injury as a passenger in a 1994 Ford Crown Victoria. The driver of the vehicle rear-ended a county snowplow and the car ended up in a ditch. Bandemer alleged that the passenger-side airbag did not deploy during the accident and sued Ford for product liability, negligence, and breach of warranty claims.

      In both cases, Ford Motor Company moved to dismiss the claims in state district court, citing a lack of personal jurisdiction. Ford’s motions were denied. On appeal in both cases, the state courts of appeal affirmed the lower court rulings. Ford appealed the cases to the respective state supreme courts, which affirmed the rulings of the courts of appeal.

      The issue (from SCOTUSblog): “Whether the ‘arise out of or relate to’ requirement of the 14th Amendment’s due process clause is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.”

Death of Justice Ruth Bader Ginsburg

Associate Justice Ruth Bader Ginsburg died on September 18, 2020. Ginsburg joined the court on August 5, 1993. President Bill Clinton (D) nominated her to the court, and the U.S. Senate confirmed the nomination by a 96-3 vote on August 3, 1993.

Before joining the U.S. Supreme Court, Ginsburg was a judge on the U.S. Court of Appeals for the D.C. Circuit. Before that, she worked in a variety of roles, including as a fellow for the Center for Advanced Study in the Behavioral Sciences, in Stanford, California; general counsel for the American Civil Liberties Union; a consultant for the U.S. Commission on Civil Rights, and a professor at the Rutgers School of Law.

Ginsburg was born in Brooklyn, New York, on March 15, 1933. She earned her bachelor’s degree from Cornell University in 1954. Ginsburg then enrolled at Harvard Law School, later transferring to Columbia Law School. She earned her LL.B. degree from Columbia in 1959.

On September 29, 2020, President Trump nominated Amy Coney Barrett to succeed Ginsburg. Barrett is a judge on the U.S. Court of Appeals for the 7th Circuit.

  • Click here to learn more about Justice Ginsburg.
  • Click here to learn more about Judge Barrett.
  • Click here to learn more about the nomination process.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in October:

  • October 5: SCOTUS began its 2020-2021 term, hearing arguments in two cases.
  • October 6: SCOTUS will hear arguments in two cases.
  • October 7: SCOTUS will hear arguments in two cases.
  • October 9: SCOTUS will conference. A conference is a private meeting of the justices.
Since 1962, what is the average amount of time a Supreme Court seat has been vacant (defined as the length of time between a justice’s departure date and the swearing-in of their successor)?

  1. 422 days
  2. 391 days
  3. 88 days
  4. 77 days

Choose an answer to find out!

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from September 2 to October 1.

Highlights

  • Vacancies: There have been two new judicial vacancies since the previous report. There are 59 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the U.S. Court of Federal Claims and the United States territorial courts, 64 of 890 active federal judicial positions are vacant.
  • Nominations: There have been four new nominations since the previous report.
  • Confirmations: There have been 15 new confirmations since the previous report.

Vacancy count for October 1, 2020

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.

*Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Two judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, a presidential nomination is required to fill vacancies. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of October 1.

New nominations

President Trump has announced four new nominations since the previous report.

  • Amy Coney Barrett, to the U.S. Supreme Court.
  • Charles Atchley, to the United States District Court for the Eastern District of Tennessee.
  • Katherine Crytzer, to the United States District Court for the Eastern District of Tennessee.
  • Joseph Dawson, to the United States District Court for the District of South Carolina.

The president has announced 271 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between September 2 and October 1, the Senate confirmed 15 of the president’s nominees to Article III courts.

Between January 2017 and October 1, 2020, the Senate confirmed 218  of President Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals the president has nominated.

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Clarence Thomas.

Thomas has been an associate justice since October 18, 1991. President George H.W. Bush (R) nominated Thomas on July 1, 1991, to succeed Thurgood Marshall. The U.S. Senate confirmed Thomas by a 52-48 vote on October 15, 1991.

Before joining the U.S. Supreme Court, Thomas was a judge on the U.S. Court of Appeals for the D.C. Circuit. Before that, he was the chairman of the U.S. Equal Employment Opportunity Commission, an assistant secretary of education in the U.S. Department of Education’s Office of Civil Rights, and a legislative assistant for Sen. John Danforth (R-Mo.).

Thomas was born in Savannah, Georgia, in 1948. Raised Roman Catholic, Thomas considered entering the priesthood at the age of 16 and attended St. John Vianney’s Minor Seminary. He then continued his studies at Conception Abbey Seminary in Missouri, but left to attend the College of the Holy Cross in Worcester, Massachusetts. He graduated in 1971 with a B.A., cum laude, in English literature. Thomas earned his J.D. from Yale Law School in 1974.

In the 2019-2020 term, Thomas wrote the following opinions:

We’ll be back October 12 with a new edition of Bold Justice.



U.S. Senate confirms Hinderaker to federal district court judgeship

The U.S. Senate confirmed John Hinderaker to the U.S. District Court for the District of Arizona by a 70-27 vote. The U.S. District Court for the District of Arizona is one of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

After Hinderaker receives his federal judicial commission and takes his judicial oath, the 13-member court will have six Republican-appointed judges and seven Democrat-appointed judges. Hinderaker will join four other judges appointed by President Trump.

The U.S. Senate has confirmed 217 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 160 district court judges, and two U.S. Court of International Trade judges—since January 2017.

Hinderaker was a judge of the Pima County Superior Court in Arizona from 2018 to 2020. Before that, he was an attorney in private practice. He earned his B.A., with honors, in business economics from the University of California, Santa Barbara, in 1991 and his J.D., magna cum laude, from the University of Arizona College of Law in 1996. During his legal studies, he was a member of the Arizona Law Review.

Additional reading
United States District Court for the District of Arizona
Federal judges nominated by Donald Trump