CategoryFederal

Bold Justice: 15 federal judges confirmed in May

By Sara Reynolds
In Federal
June 3, 2019 at 1:21 PM

Welcome to the June 3 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Looking for some good beach reading during summer vacation? We’ve got you covered! Follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information.

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court has finished hearing oral arguments for cases in its October 2018 term. Click here to read more about SCOTUS’ current term.

Opinions

SCOTUS has ruled on six cases since our May 20 issue. The court has issued rulings in 39 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since May 20:

 May 20

 

 

  • Merck Sharp & Dohme Corp. v. Albrecht was argued before the court on Jan. 7, 2019.

    Hundreds of lawsuits were consolidated against the drug manufacturer Merck Sharp & Dohme, claiming the osteoporosis drug Fosamax caused thigh bone fractures and the FDA-approved label failed to warn about this side effect. A district court dismissed the case, ruling federal law preempted the claims. The court cited Wyeth v. Levine as precedent, which stated that “state-law failure-to-warn claims are preempted when there is ‘clear evidence’ that the FDA would not have approved the warning that a plaintiff claims was necessary.”

    The U.S. Court of Appeals for the 3rd Circuit reversed the lower court’s ruling, writing plaintiffs had “produced sufficient evidence for a reasonable jury to conclude that the FDA would have approved a properly-worded warning about the risk of thigh fractures—or at the very least, to conclude that the odds of FDA rejection were less than highly probable.”

    The outcome: In a unanimous opinion, the court vacated and remanded the 3rd Circuit’s ruling. The court held that judges, rather than juries, should decide if FDA action preempts state cases alleging failure to warn about drug side effects. According to SCOTUSblog, the “court unanimously agreed on who should decide (a judge) and what Wyeth’s ‘clear evidence’ standard means (an ‘irreconcilable conflict,’ rather than a standard of proof).”

    Justice Breyer delivered the court’s opinion.
  • Herrera v. Wyoming was argued before the court on Jan. 8, 2019.

    Clayvin Herrera, a member of the Crow Tribe of Indians, was hunting elk on the Crow Reservation. He and other tribal members shot three elk after following the animals out of the Crow Reservation and into the Big Horn National Forest. He was charged with two misdemeanors for hunting without a license and during closed season. Herrera sought to have the charges dismissed, arguing the 1868 Crow Treaty gave him the right to hunt where and when he did and that the treaty preempted state law.

    The outcome: In a 5-4 decision, the court vacated and remanded the ruling of the Wyoming 4th Judicial District Court, holding the “Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood.”

    Justice Sonia Sotomayor delivered the opinion of the court, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Neil Gorsuch. Justice Samuel Alito filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh.

    Sotomayor wrote, “The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not ‘unoccupied.’ We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve.”
  • Mission Product Holdings v. Tempnology LLC was argued before the court on Feb. 20, 2019. Tempnology, LLC, made and owned the intellectual property to certain products designed to keep a person cool while exercising. Tempnology and Mission Product Holdings (Mission) entered an agreement stating Mission had distribution rights to some of Tempnology’s products, a nonexclusive license to Tempnology’s intellectual property, and a license to use Tempnology’s trademark and logo.

    Tempnology filed for Chapter 11 bankruptcy and tried to reject its agreement with Mission. The bankruptcy court found Mission could only claim damages for breach of contract and Tempnology was not required to continue to perform the license agreement. The 1st Circuit Court of Appeals affirmed the bankruptcy court’s decision.

    The outcome: In an 8-1 opinion, the court reversed and remanded the U.S. Court of Appeals for the 1st Circuit’s ruling. The court held that a debtor-licenser’s rejection of a contract neither party has finished performing does not prevent the licensee from using the trademark. 

    Justice Kagan delivered the majority opinion. Justice Sotomayor filed a concurring opinion. Justice Gorsuch dissented.

May 28

  • Nieves v. Bartlett was argued before the court on Nov. 26, 2018.Alaska state troopers Luis Nieves and Bryce Weight arrested Russell Bartlett who subsequently sued Nieves and Weight for false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment—a decision on the basis of statements and evidence without a trial—to Nieves and Weight on all counts. The U.S. Court of Appeals for the 9th Circuit agreed with the district court that Nieves and Weight had probable cause to arrest Bartlett for harassment, disorderly conduct, resisting arrest, or assault. The 9th Circuit affirmed the district court’s ruling on the false arrest, excessive force, and malicious prosecution charges, but reversed the ruling on the retaliatory arrest charge.

    The outcome: In a 6-3 decision, the court reversed and remanded the 9th Circuit’s ruling, holding because “there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.” 

    Chief Justice Roberts delivered the opinion of the court. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justices Ginsburg and Gorsuch filed separate opinions concurring in part and dissenting in part. Justice Sotomayor dissented.

 

  • Home Depot U.S.A. Inc. v. Jackson was argued before the court on Jan. 15, 2019.

    In 2016, Citibank filed a debt collection action against George Jackson in a Mecklenburg County, North Carolina district court. Citibank alleged Jackson failed to pay for a water treatment system he purchased using a Citibank-issued credit card. Jackson filed a counterclaim and third-party class action claims against Home Depot and Carolina Water Systems, Inc. (CWS) for engaging in unfair and deceptive trade practices. Citibank then dismissed its claims against Jackson. Home Depot filed a notice of removal under the Class Action Fairness Act of 2005 (CAFA) and moved to realign the parties with Jackson as plaintiff and Home Depot, CWS, and Citibank as defendants. Jackson then amended his third-party complaint to remove Citibank. The Mecklenburg County district court denied Home Depot’s motion to realign and granted Jackson’s motion to remand.

    The outcome: In a 5-4 opinion, the court affirmed the judgment of the U.S. Court of Appeals for the 4th Circuit, holding “Home Depot could not remove the class-action claim filed against it” because provisions in 28 U.S. Code §1441(a) and in the CAFA do not permit “removal by a third-party counterclaim defendant.”

    Justice Thomas delivered the opinion of the court. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.

 

  • Smith v. Berryhill was argued before the court on March 18, 2019.

    The Social Security Administration’s Appeals Council denied a renewal of Ricky Lee Smith’s application for supplemental security income (SSI) resulting from disability, finding that Smith did not file his claim on time. Smith alleged that he suffered due process violations, but the U.S. district court and the 6th Circuit Court disagreed.

    The outcome: In a unanimous opinion, the court reversed and remanded the 6th Circuit’s ruling, holding that the SSA Appeals Council’s dismissal of a claim for untimeliness permits judicial review in a U.S. federal court under 42 United States Code §405(g).

    Justice Sotomayor delivered the opinion of the court.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in June:

  • June 3: SCOTUS will release orders.
    • When SCOTUS releases orders, they grant or deny review on the merits of a case. They can also issue other orders, such as granting or denying a request to participate in oral argument, according to SCOTUSblog.
  • June 6: SCOTUS will conference. A conference is a private meeting of the justices where justices decide which cases to accept or reject and discuss and vote on cases heard since the previous conference.
  • June 10: SCOTUS will release orders.
  • June 13: SCOTUS will conference.

SCOTUS trivia

When a court makes a decision on the basis of statements and evidence presented without a trial, what is the court granting?

  1. A writ of certiorari
  2. A temporary restraining order
  3. Summary judgment
  4. A subpoena

Choose an answer to find out!

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. Ballotpedia publishes the Federal Vacancy Count on the last Wednesday of the month. The July 1 issue of Bold Justice will include the next Federal Vacancy Count.

This month’s edition includes nominations, confirmations, and vacancies from April 25 to May 29, 2019.

Highlights

  • Vacancies: There have been four new judicial vacancies since the April 2019 report. As of May 29, 126 of 870 active Article III judicial positions on courts covered in this report were vacant—a vacancy percentage of 14.5 percent.

    Including the United States Court of Federal Claims and the United States territorial courts, 137 of 890 active federal judicial positions are vacant.

  • Nominations: There have been eight new nominations since the April 2019 report.

  • Confirmations: There have been 15 new confirmations since the April 2019 report.

Vacancy count for May 29, 2019

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.

New vacancies

The following judges left active status, creating Article III vacancies. As Article III judicial positions, they must be filled by a nomination from the president. Nominations are subject to Senate confirmation.

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

New nominations

President Trump announced eight new nominations since the April 2019 report.

  • Peter Phipps, to the U.S. Court of Appeals for the 3rd Circuit.
  • Douglas Cole, to the U.S. District Court for the Southern District of Ohio.
  • Charles Eskridge, to the U.S. District Court for the Southern District of Texas.
  • Kea Riggs, to the U.S. District Court for the District of New Mexico.
  • William Shaw Stickman, to the U.S. District Court for the Western District of Pennsylvania.
  • Jennifer Philpott Wilson, to the U.S. District Court for the Middle District of Pennsylvania.
  • David Barlow, to the U.S. District Court for the District of Utah.
  • Kevin Sweazea, to the U.S. District Court for the District of New Mexico.

The president has announced 188 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.

New confirmations

Between April 25 and May 29, 2019, the Senate confirmed 15 of the president’s nominees to Article III courts. Since January 2017, the Senate has confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court 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 President Trump has nominated.



DNC raises bar for candidates to qualify for the third and fourth presidential primary debates

By Emily Aubert
In Federal
June 1, 2019 at 1:06 AM

The Democratic National Committee announced on May 29 that it was doubling the fundraising and polling qualification thresholds for the third and fourth set of Democratic primary debates scheduled in September and October.
 
Candidates must register at least 2 percent support in four major polls released after June 28 or receive contributions from 130,000 unique donors across 20 states or more to qualify.
 
Five of the 24 candidates have already reached the fundraising threshold for the third debate—Pete Buttigieg, Kamala Harris, Beto O’Rourke, Bernie Sanders, and Elizabeth Warren.
 
While it will be a month before any qualifying polls are released, recent polls indicate eight candidates are likely to meet the mark later this summer. The following candidates have hit 2 percent support or more in at least four major polls: Joe Biden, Cory Booker, Buttigieg, Harris, Amy Klobuchar, O’Rourke, Sanders, and Warren.
 
The third presidential Democratic debate will take place on September 12-13, 2019. ABC News and Univision will host the event.


House GOP women endorse Joan Perry in NC-3 runoff

By Joel Williams
In Federal
June 1, 2019 at 1:01 AM

All 13 Republican women in the U.S. House endorsed Joan Perry over Greg Murphy in the July 9 Republican runoff for North Carolina’s 3rd Congressional District, according to Roll Call on May 29, 2019. The two advanced from a field of 17 candidates in the April 30 Republican primary, with Murphy receiving 22.5 percent of the vote and Perry 15.4 percent.
 
Earlier in May, Murphy received the endorsement of Rep. Mark Meadows and the House Freedom Caucus. Debbie Lesko (R-Ariz.), the only female member of the House Freedom Caucus, individually endorsed Perry.
 
The two candidates have split endorsements from women’s groups. Women for Trump PAC endorsed Murphy, while Winning for Women Action Fund endorsed Perry in the primary and again in the runoff.
 
The winner of the Republican runoff will face Allen Thomas (D) and Tim Harris (L) in a September 10 special election. The election will fill the vacancy left by Walter Jones (R), who died on February 10, 2019. It is one of three special elections to the U.S. House occurring in 2019.


Ballotpedia’s Federal Vacancy Count shows 15 federal judges confirmed in past month

By Sara Reynolds
In Federal
June 1, 2019 at 12:51 AM
According to Ballotpedia’s monthly federal judicial vacancy count, the U.S. Senate has confirmed 15 of President Donald Trump’s (R) nominees to Article III federal judicial seats since April 25, 2019. Article III judges are those judges who serve on courts authorized by Article III of the Constitution, which created and enumerated the powers of the judiciary. The Senate confirmed 11 nominees to U.S. District Courts and four nominees to U.S. Circuit Courts. The Senate has confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court judges, and two Supreme Court justices—since January 2017.
 
 
President Trump also announced six new federal judicial nominations since April 25. The president has announced 186 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018.
 
Since Ballotpedia’s April 2019 judicial vacancy count, four judges vacated their active statuses, creating life-term judicial vacancies. As Article III 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.
 
There are 126 vacancies out of 870 Article III judicial positions. Including the U.S. Court of Federal Claims and the United States territorial courts, 137 of 890 active federal judicial positions are vacant. A vacancy occurs when a judge passes away, resigns, retires, or takes senior status. Senior status is a classification for federal judges at all levels who are semi-retired. Senior judges continue to serve on federal courts while hearing a reduced number of cases.
 
Additional reading:


Former U.S. Sen. Thad Cochran (R-Miss.) passes away

By Rob Oldham
In Federal
May 30, 2019 at 12:46 PM

Thad Cochran, a Republican senator from Mississippi from 1979 to 2018, passed away on May 30, 2019. He was 81 years old.
 
Cochran resigned from the Senate on April 1, 2018, citing health concerns. He was replaced by interim Sen. Cindy Hyde-Smith (R), who later won a November 2018 special election to serve the rest of Cochran’s term through 2020. At the time of his resignation, Cochran was the 10th longest-serving senator in U.S. history.
 
Before his election to the Senate in 1978, Cochran had served in the U.S. House since 1973. Prior to his time in public office, he worked as an attorney in Mississippi and served in the U.S. Navy.


Who is on the bubble to qualify for the first Democratic presidential primary debate?

By Emily Aubert
In Federal
May 28, 2019 at 6:31 PM
The first set of Democratic presidential primary debates is a month away and 20 presidential candidates have met the polling or fundraising criteria to qualify. If any additional candidates qualify, the Democratic National Committee will use a series of tiebreakers to determine who keeps their spot on the stage and who is removed. The debates will take place on June 26 and June 27 in Miami, Florida.
 
First priority will go to candidates who have reached both the polling and fundraising thresholds. Next up will be candidates with the highest polling average. The final tiebreaker will be candidates with the highest number of contributors.
 
Thirteen candidates have met both the polling and fundraising requirements, likely locking in their spots on the stage:
 
• Joe Biden
• Cory Booker
• Pete Buttigieg
• Julián Castro
• Tulsi Gabbard
• Kamala Harris
• Jay Inslee
• Amy Klobuchar
• Beto O’Rourke
• Bernie Sanders
• Elizabeth Warren
• Marianne Williamson
• Andrew Yang
 
Seven candidates have met the polling requirements only:
 
• Bill de Blasio
• Steve Bullock
• John Delaney
• Kirsten Gillibrand
• John Hickenlooper
• Tim Ryan
• Eric Swalwell
 
The four candidates who have not yet qualified by any method—Michael Bennet, Mike Gravel, Wayne Messam, and Seth Moulton—will have until June 12 to do so.
 
There has been some debate over whether de Blasio’s performance in a Reuters poll released earlier this month gave him the third and final poll he needed to qualify.
 
FiveThirtyEight elections analyst Geoffrey Skelley, who counts the poll as qualifying, said the Democratic National Committee (DNC) will be “’using the top-line number listed in the original public release from the approved sponsoring organization/institution’ for what it’s counting and the first column in the [Reuters] poll has de Blasio at 1%. The Reuters story also lists those figures.”


Federal Register weekly update; 2019 page total trails 2018 total by 34 pages

By Caitlin Styrsky
In Federal
May 28, 2019 at 3:41 PM
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.
 
During the week of May 20 to May 24, the number of pages in the Federal Register increased by 1,670 pages, bringing the year-to-date total to 24,362 pages. This week’s Federal Register featured a total of 637 documents, including 503 notices, 11 presidential documents, 46 proposed rules, and 77 final rules.
 
One proposed rules and one final rule were deemed significant under E.O. 12866—meaning that they may 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.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,048 pages. As of May 24, the 2019 total trailed the 2018 total by 34 pages.
 
The Trump administration has added an average of 1,160 pages to the Federal Register each week in 2019 as of May 24. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
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.
 
 
Click below to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


May 2019 Democrat and Republican party committee fundraising update

By David Luchs
In Federal
May 28, 2019 at 3:26 PM
The Democrat and Republican Party Senate and House committees, as well as the Democratic National Committee, reported raising less money from April 20 through May 20 than they did in the month period before. The Republican National Committee (RNC) was the only of the major party campaign committees to raise more in May than in April: $15.9 million, up from the $15.5 million.
 
The Democratic National Committee (DNC) raised $6.6 million—down from the $8.2 million it raised in April.
 
The National Republican Campaign Committee (NRCC) raised $5.5 million in May, compared to $13.0 million raised in April. It spent $4.3 million, down from $11.5 million in April. Its Democratic counterpart, the Democratic Congressional Campaign Committee (DCCC), raised $7.8 million in May, compared to $13.5 million raised in April. The DCCC spent $10.1 million in May, including on paying off all $6 million of the debt it reported in April.
 
The National Republican Senatorial Committee (NRSC) raised $4.5 million in May, compared to $7.5 million in April. It spent $5.3 million, including on paying off $1.5 million of the $9 million in debt it reported in April. Its Democratic counterpart, the Democratic Senatorial Campaign Committee (DSCC), raised $4.4 million in May compared to $5.9 million in April.
 
So far this year, the DCCC, DSCC, and DNC have raised a combined $85.9 million and spent a combined $72.2 million. The NRCC, NRSC, and RNC have raised a combined $116.4 million and spent a combined $97.8 million.
 


Senate confirms Daniel Collins without support from home-state senators

By Sara Reynolds
In Federal
May 24, 2019 at 3:05 PM
On May 21, 2019, the U.S. Senate confirmed Daniel Collins to the United States Court of Appeals for the 9th Circuit on a 53-46 vote. President Donald Trump (R) nominated Collins to the seat on November 13, 2018.
 
Collins was a partner in the Los Angeles office of Munger, Tolles & Olson LLP from 2003 to 2019. He also previously worked as an associate deputy attorney general in the U.S. Department of Justice and as an assistant U.S. attorney for the Central District of California. Collins was a law clerk to Justice Antonin Scalia of the Supreme Court of the United States and to 9th Circuit Judge Dorothy Nelson.
 
Collins obtained an A.B. summa cum laude from Harvard College in 1985. In 1988, he earned a J.D. with distinction from Stanford University, where he was a member of the Order of the Coif. During his legal studies, Collins also served as a note editor on the Stanford Law Review.
 
Collins was confirmed along party lines. Home-state Senators Dianne Feinstein (D) and Kamala Harris (D) of California voted against his nomination. Feinstein and Harris said the White House nominated Collins without consulting them. In a statement after his confirmation, Feinstein said, “I am concerned that Mr. Collins has not demonstrated and does not embody the characteristics that we expect of all federal judges. I also believe that Mr. Collins’s record on women’s reproductive rights, executive power, civil liberties, and criminal justice matters puts him far outside the judicial mainstream.”
 
In 2018, then-White House Counsel Don McGahn wrote in a letter to then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) that the White House tried to negotiate with the California senators. He said he reached out to Feinstein on multiple occasions and stated that Harris had “refused to engage with the White House at any level, whatsoever on the issue.” McGahn said the president was “exercising his prerogative to nominate his own well-qualified nominees.”
 
The United States Court of Appeals for the 9th Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system.
 
The 9th Circuit currently has two confirmed nominees—Collins and Kenneth Kiyul Lee. Once they receive their judicial commissions and take their judicial oaths, the 9th Circuit will have two vacancies, 11 judges appointed by Republican presidents, and 16 judges appointed by Democratic presidents.
 
The Senate has now confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court judges, and two Supreme Court justices—since January 2017. At the end of the 115th Congress in January 2019, the Senate had confirmed 85 of the president’s judicial nominees.
 
Additional reading:


Keller defeats Friedenberg in Pennsylvania’s 12th Congressional District

By Joel Williams
In Federal
May 21, 2019 at 11:10 PM

State Rep. Fred Keller (R) defeated college professor Marc Friedenberg (D) in a special election to fill the vacant seat representing Pennsylvania’s 12th Congressional District in the U.S. House. As of 10:55 p.m. E.T., Keller had received 71 percent of the vote while Friedenberg had received 29 percent with 66 percent of precincts reporting.

The vacancy occurred following the resignation of former Rep. Tom Marino (R) on January 23, 2019. He beat Friedenberg by 32 points in November 2018. Donald Trump (R) won the district by 36 points in the 2016 presidential election.

This was the first special election during the 116th Congress. So far in 2019, there have been four special elections called during the 116th Congress. Three of those are for seats in the U.S. House, and one is for a seat in the U.S. Senate. From the 113th Congress to the 115th Congress, a total of 40 special elections were held.