The U.S. Senate confirmed one of President Joe Biden’s (D) federal judicial nominees to a lifetime Article III judgeship on Jan. 12:
Gabriel Sanchez, to the U.S. Court of Appeals for the Ninth Circuit, by a vote of 52-47
The Ninth Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the federal court system.
Sanchez was nominated to the Ninth Circuit on Sept. 20 to replace Judge Marsha Berzon, who is scheduled to assume senior status. Sanchez was rated Well Qualified by the American Bar Association.
To date, 41 of Biden’s appointees have been confirmed. For historical comparison since 1981, the following list shows the date by which the past six presidents had 41 Article III judicial nominees confirmed by the Senate:
Economy and Society is Ballotpedia’s weekly review of the developments in corporate activism; corporate political engagement; and the Environmental, Social, and Corporate Governance (ESG) trends and events that characterize the growing intersection between business and politics.
ESG Developments This Week
In Washington, D.C.
Predictions for the future of ESG
Late last month, as part of its end-of-the-year recap and start-of-the-year forecast, Roll Call provided a summary of the trends that it believes will drive ESG over the next several months. The paper singled out the Securities and Exchange Commission as the primary driver of ESG activity on the public/government side, and acknowledged that BlackRock—the world’s largest asset management firm, with almost $10 trillion in assets under management—will drive events in the private sector:
“Activist shareholders may have the upper hand in holding companies more accountable on environment, social and governance issues next year, thanks to a combination of pressure from BlackRock Inc. and other institutional investors and proxy voting rule changes at the Securities and Exchange Commission.
BlackRock, the world’s largest asset manager, said this week it expects companies in which it invests to give more concrete details on climate-related risks and expand board diversity starting in 2022. In an update of its proxy voting rules, BlackRock said it will ask CEOs to explain how business strategies are resilient under “likely decarbonization pathways” and a scenario in which global warming is limited to 1.5 degrees Celsius.
Meanwhile, the SEC issued guidance and rules that will likely bolster activist, ESG-focused investors’ chances to get companies more focused on public policy issues and make it easier for shareholders to shake up corporate boards, as investment firm Engine No. 1 did in replacing three directors at Exxon Mobil Corp. in May….
BlackRock, which has about $9.5 trillion in invested assets, also said this week it wants U.S. corporate boards to reflect the increasingly diverse society and workforce. It said company boards should aim to reach 30 percent diversity of membership and have at least two directors who identify as female and at least one who identifies as a member of an underrepresented group.
The firm, which has stakes in thousands of companies around the world, said it may vote against directors who fail to demonstrate a strong commitment to mitigating climate risk and embracing diversity. The asset manager added it would support shareholder proposals on these issues if corporate executives are resistant to change, giving smaller activist investors more clout in the next proxy season.”
As for the SEC:
“Shareholders will likely be more empowered to bring forward stronger proposals thanks to recent guidance from the SEC.
Companies seeking to avoid shareholder votes on ESG issues face a higher burden to have the SEC grant their requests after the agency’s staff in November issued a legal bulletin on no-action requests under a provision known as Rule 14a-8 authorized by the Securities Exchange Act of 1934.
The agency, led by Gary Gensler, a Democrat, said it will be more likely to require companies to hold shareholder votes on public policy issues such as the environment and worker arbitration than it was during the Trump administration as part of its repeal of three legal bulletins issued between 2017 and 2019.
The SEC last month also adopted a final rule that will require companies to provide universal proxy cards in contested director elections, rather than making investors either vote for the company’s entire slate of directors or the dissidents’ slate. Although companies have until Sept. 1 to comply, some may opt in sooner rather than later or face pressure from shareholders to give them more flexibility in voting on directors….
The SEC is also working on other proposals, such as more guidance on reporting on material ESG issues and potential enforcement actions through a task force formed at the beginning of the Biden administration.
Companies and ESG investors are also waiting for the SEC to come out with its potential rulemaking on climate risk disclosure for public companies. That topic has been the main target of lobbyists’ advocacy on ESG issues this year for companies that support and oppose ESG.
“While the SEC has required climate-related disclosures since 2010, this represents an effort to significantly strengthen their relevance and expand the scope of credit risk assessments,” Marina Petroleka, global head of ESG research at the Fitch Group’s sustainability research division, said in an analyst note this month.”
Retirement advisor groups and AARP question Labor Department’s pro-ESG proposal
Last week, two large retirement-centered organizations discussed their reactions to the Labor Department’s proposed new rule on the use of ESG investment strategies in ERISA-governed retirement plans. According to Roll Call, both plan administrators and retirees themselves are leery of the changes proposed by Labor and concerned about their potential impact on retirement investments:
“The biggest trade group for pension professionals urged the Labor Department to clarify a proposed rule to allow retirement plan advisers to consider environmental, social and governance factors when selecting investments, saying it may increase legal risks.
The American Retirement Association, which represents more than 27,000 actuaries and plan administrators, as well as insurance professionals, financial advisers and others, said it’s concerned there could be added legal risks for advisers evaluating investment plans if they fail to consider the economic effects of climate change and other ESG factors.
“While nothing in the proposal gives fiduciaries license to pursue ESG objectives unmoored from or indifferent to an investment’s underlying economic merits, the ARA is concerned that the phrase ‘may often require,’ included in the required considerations, taken together with the Proposal’s preamble, strongly implies that fiduciaries not only have the option to consider ESG investments but should be considering climate change and other ESG factors,” the group said in a letter sent last month.
Although ARA said it agrees with the proposed rule’s intent to ensure plan advisers can direct investments into ESG options more freely, the organization is concerned that advisers would have a new burden to show why ESG factors were not considered in selecting investments due to the safe harbor regulation. That creates a slippery slope for advisers overseeing larger plans, who view avoiding the risk of litigation as a top priority in demonstrating prudence when selecting plans, it said.
“We cannot emphasize enough how sensitive these stakeholders are to possible litigation risk,” ARA said. “This means that any language, reasonably read, implying, or even suggesting a particular course or fiduciary approach will be perceived as a directive and will be reacted to as such.””
“AARP, an advocacy group for people over the age of 50, asked the department to prevent plan fiduciaries from sacrificing ERISA-mandated considerations such as investment return or risk management so they can invest in ESG options. The organization, which has 38 million members, said the department should emphasize that the proposal does not establish a fiduciary standard that is less stringent than the statutory standard.
“As the Department recognizes throughout its proposal, the duty of loyalty is one of ERISA’s fundamental bedrock principles to protect participants and beneficiaries. The use of ESG factors in the selection of investments should be consistent with the duty of loyalty,” David Certner, AARP’s legislative counsel and legislative policy director, said in a Dec. 13 letter.
“Indeed, these factors should be evaluated as a matter of course if they impact a fiduciary’s analysis of the economic and financial merits of a particular investment, competing investment choices, or investment policy, just like a myriad of other factors that may be material to investment value and risk and return,” he said.”
In the spotlight
Stanford paper describes the “Seven Myths of ESG”
Researchers at Stanford’s Rock Center for Corporate Governance recently released a paper detailing what they describe as the Seven Myths of ESG. According to Cydney Posner, who covers securities law for Cooley, LLP (a corporate law firm), “the authors set about debunking some of the most common and persistent myths about what ESG is, how it should be implemented and its impact on corporate outcomes, “many of which,” they contend, “are not supported by empirical evidence.” Among the myths identified are the following:
“Myth #1: We Agree on the Purpose of ESG”
“Myth #2: ESG Is Value-Increasing”
“Myth #3: We Can Tell Whether a Claimed ESG Activity Is Actually ESG”
“Myth #4: A Company’s ESG Agenda Is Well-Defined and Board-Driven”
United States v. Washington concerns state workers’ compensation laws and intergovernmental immunity. The question presented to the court in Washington is: “Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. 3172(a), which permits the application of state workers’ compensation laws to federal facilities ‘in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.’” Washington originated from the U.S. Court of Appeals for the 9th Circuit.
Kemp v. United States concerns the Federal Rule of Civil Procedure governing court procedures in civil cases. The court will consider the following question: “Whether Rule 60(b)(1) authorizes relief based on a district court’s error of law.” Kemp came from the U.S. Court of Appeals for the 11th Circuit.
Siegel v. Fitzgerald concerns the constitutionality of a law imposing different fees on Chapter 11 debtors based on the district in which the bankruptcy is filed. The question presented in Siegel asks: “Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Bankruptcy Clause by increasing quarterly fees solely in U.S. Trustee districts.” Siegel came from the U.S. Court of Appeals for the 4th Circuit.
The court had agreed to hear 59 cases during its 2021-2022 term as of Jan. 10. Four cases were dismissed, and one case was removed from the argument calendar. Eleven cases had not yet been scheduled for argument.
The Supreme Court of the United States (SCOTUS) began its latest sitting of the 2021-2022 term on Jan. 10. The court is hearing arguments in person and providing audio livestreams of arguments.
Justice Sonia Sotomayor is participating remotely from her office as a precaution related to the COVID-19 pandemic.
This week, SCOTUS will hear arguments in four cases. Click the links below to learn more about these cases:
Next week, SCOTUS will hear arguments in four cases.
To date, the court has agreed to hear 59 cases this term. Four cases were dismissed, and one case was removed from the argument calendar. Eleven cases have not yet been scheduled for argument.
The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity, accounting for both regulatory and deregulatory actions.
From Jan. 3 through Jan. 7, the Federal Register grew by 1,060 pages for a year-to-date total of 1,060 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 347 documents:
283 notices
Eight presidential documents
17 proposed rules
39 final rules
Four proposed rules, including the Patient Protection and Affordable Care Act with payment parameters and proposed user fee rates for 2023 from the Health and Human Services Department, and six final rules, including regulations for secure gun storage for any place that sells firearms and an amendment to the definition for antique firearm from the Alcohol, Tobacco, Firearms, and Explosives Bureau were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued four significant proposed rules, six significant final rules, and zero significant notices as of January 7.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity, accounting for both regulatory and deregulatory actions.
From Dec. 27 through Dec. 31, the Federal Register grew by 1,428 pages for a year-to-date total of 74,532 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 427 documents:
328 notices
Five presidential documents
42 proposed rules
52 final rules
Four proposed rules, including requirements for capital planning and stress capital buffer determination from the Federal Housing Finance Agency, and 15 final rules, including reissuance of Nationwide Permits to authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 from the Engineers Corps were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 126 significant proposed rules, 169 significant final rules, and four significant notices as of December 31.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity, accounting for both regulatory and deregulatory actions.
From Dec. 20 through Dec. 24, the Federal Register grew by 1,312 pages for a year-to-date total of 73,104 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 461 documents:
370 notices
Two presidential documents
26 proposed rules
63 final rules
Five proposed rules, including a policy to allow indemnification of employees of the National Endowment for the Humanities (NEH) from the National Endowment for the Humanities, and six final rules, including an extension to the expiration date of certification plans for pesticide applicators from the Environmental Protection Agency were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 122 significant proposed rules, 154 significant final rules, and four significant notices as of December 24.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
In December 2021, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 36 significant regulatory actions issued by federal agencies. OIRA approved one of these rules with no changes and approved the intent of 31 rules while recommending changes to their content. Three rules were withdrawn from the review process by the issuing agencies. One rule was subject to a statutory or judicial deadline.
OIRA reviewed 90 significant regulatory actions in December 2020, 58 significant regulatory actions in December 2019, 31 significant regulatory actions in December 2018, and 30 significant regulatory actions in December 2017.
OIRA has reviewed a total of 502 significant rules in 2021. The agency reviewed a total of 676 significant rules in 2020, 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.
As of Jan. 3, 2022, OIRA’s website listed 72 regulatory actions under review.
OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.
Happy New Year! Our weekly summary of federal news highlights booster coronavirus vaccinations for 12- to 15-year-olds and Rep. Devin Nunes’ (R) resignation. Read all about it in this week’s edition of the Federal Tap.
Congress is in session
Both the House and Senate are in session next week. Click here to see the full calendar for the first session of the 117th Congress.
Forty-three members of Congress—six members of the U.S. Senate and 37 members of the U.S. House—have announced they will not seek re-election. Twenty-eight members—six senators and 22 representatives—have announced their retirement. Five retiring Senate members are Republicans and one is a Democrat, and of the retiring House members, 17 are Democrats and five are Republicans.
SCOTUS is in session
The Supreme Court will hear oral arguments in four cases next week. To learn about the 2021-2022 term, click here.
Where was the president last week?
On Monday, Biden traveled from his private residence in Wilmington, Delaware to Washington D.C. Tuesday through Thursday, Biden remained in Washington D.C.
On Friday, Biden traveled to Colorado, where survey damage caused by recent wildfires and delivered remarks.
For historical comparison, on Jan. 9, 2021, there were 49 federal judicial vacancies and five upcoming vacancies in the federal judiciary reported by the U.S. Courts.
U.S. Rep. Devin Nunes (R) resigns
Rep. Devin Nunes (R) resigned from the House of Representatives on Dec. 31 to become CEO of former President Donald Trump’s (R) media company, Trump Media & Technology Group.
Nunes began serving in the U.S. House in 2003, representing California’s 21st Congressional District until 2013. He won election in 2012 to represent the 22nd Congressional District and held that seat until 2021. He most recently won re-election in 2020, defeating Democrat Phil Arballo, 54% to 46%.
This week, Democratic Reps. Brenda Lawrence and Bobby Rush also announced they won’t seek re-election in 2022.
U.S. House vacancies are filled by special election. Seven special elections have been called during the 117th Congress as of Jan. 3. There is one special election scheduled in 2022 to complete a term in the House. Six special elections occurred in 2021: two in Louisiana, two in Ohio, one in New Mexico, and one in Texas.
Gov. Gavin Newsom (D) will set the date of the special election to fill Nunes’ seat. The winner of the special election will serve out the remainder of Nunes’ term, which was set to expire on Jan. 3, 2023.
As of Jan. 7, the partisan breakdown of the U.S. House is 221 Democrats and 212 Republicans, with two vacancies.
Booster coronavirus vaccinations authorized for 12- to 15-year-olds
On Jan. 3, the Food and Drug Administration (FDA) granted authorization to Pfizer’s booster vaccine for individuals aged 12 to 15. The Centers for Disease Control (CDC) subsequently updated its booster recommendation on Jan. 5 to include that age group. Pfizer announced it was seeking the authorization on Dec. 17, 2021. The CDC said it recommended individuals in the expanded age range receive a booster five months after their initial vaccination.
In the CDC’s press release announcing the recommendation, CDC Director Dr. Rochelle Walensky said: “This booster dose will provide optimized protection against COVID-19 and the Omicron variant. I encourage all parents to keep their children up to date with CDC’s COVID-19 vaccine recommendations.”
The CDC and FDA authorized the Pfizer booster for individuals ages 16 and 17 on Dec. 9, and for adults 18 and older on Nov. 19. At least 15 states approved the booster vaccine for all adults in the days leading up to the federal government’s authorization, beginning with California on Nov. 9.
Redistricting update: New York commission submits two sets of redistricting proposals to legislature, Kentucky delays candidate filing
The New York Independent Redistricting Commission voted 5-5 on two sets of congressional and legislative map proposals on Jan. 3 and submitted both sets of proposed district boundaries to the state legislature. The Democrats on the commission had proposed one set of maps and the Republicans on the commission proposed the other. New York law requires that the commission submit a redistricting plan to the legislature “on or before January 1, 2022, or as soon as practicable thereafter, but no later than January 15, 2022.”
New York voters approved a constitutional amendment in 2014 revising the state’s redistricting procedures and establishing a 10-member commission to approve congressional and legislative district boundaries. The majority and minority leaders of each chamber of the legislature appoint two members each and those eight commissioners appoint two additional members that are not enrolled in either of the top two major political parties in the state.
If the New York legislature does not approve the initial redistricting plan or the governor vetoes it, the commission has 15 days to submit a second plan for consideration. This second plan must be submitted to the legislature no later than Feb. 28.
Kentucky enacted legislation on Jan. 6 extending the deadline for congressional, legislative, judicial, and local candidates to file to run for election this year from Jan. 7 to Jan. 25. The state House passed the legislation on Jan. 5, and Gov. Steve Beshear (D) signed it after the state Senate passed it on Jan. 6.
The delay in the filing deadline was necessary as the state has not yet approved new district boundaries after the 2020 census. Joe Sonka of the Louisville Courier-Journalwrote that “Both chambers are scheduled to remain in session Saturday [Jan. 8] to give final passage to several redistricting bills crafted by the Republican supermajority, including ones making new maps for the state House and Senate, Kentucky’s U.S. House districts and the Kentucky Supreme Court.” After the 2020 census, Kentucky was apportioned six seats in the U.S. House of Representatives, the same number as it received after the 2010 census.
Through Jan. 1, 2022, there were 890 authorized federal judicial posts and 76 vacancies. Seventy-four of those were for Article III judgeships. This report is limited to Article III courts, where appointees are confirmed to lifetime judgeships.
In the past month, 12 judges have been confirmed
In the past month, 11 judges have been nominated*.
*Note: This figure includes nomination announcements in addition to nominations officially received in the Senate.
By Jan. 1, 347 days in office, President Joe Biden (D) had nominated 73 judges to Article III judgeships. For historical comparison**:
President Donald Trump (R) had nominated 65 individuals, 44 of whom were ultimately confirmed to their positions.
President Barack Obama (D) had nominated 36 individuals, 34 of whom were confirmed.
President George W. Bush (R) had nominated 106 individuals, 52 of whom were confirmed.
**Note: These figures include unsuccessful nominations.
The following data visualizations track the number of Article III judicial nominations by president by days in office during the Biden, Trump, Obama, and W. Bush administrations (2001-present).
The first tracker is limited to successful nominations, where the nominee was ultimately confirmed to their respective court:
The second tracker counts all Article III nominations, including unsuccessful nominations (for example, the nomination was withdrawn or the U.S. Senate did not vote on the nomination), renominations of individuals to the same court, and recess appointments. A recess appointment is when the president appoints a federal official while the Senate is in recess.
The data contained in these charts is compiled by Ballotpedia staff from publicly available information provided by the Federal Judicial Center. The comparison by days shown between the presidents is not reflective of the larger states of the federal judiciary during their respective administrations and is intended solely to track nominations by president by day.
