CategoryFederal

The U.S. Senate voted 53-46 on March 13 to confirm Office of Information and Regulatory Affairs (OIRA) Administrator Neomi Rao to replace Brett Kavanaugh on the United States Court of Appeals for the District of Columbia Circuit. All Republican senators voted in favor of Rao while all Democratic senators opposed her confirmation.

President Trump nominated Rao to the D.C. Circuit seat, which was vacated by Brett Kavanaugh following his confirmation to the United States Supreme Court, on November 13, 2018. Prior to joining the Trump administration as the administrator of OIRA in July 2017, Rao worked as an associate professor of law at George Mason University’s Antonin Scalia Law School, where she founded the Center for the Study of the Administrative State. She also served as counsel to the United States Senate Committee on the Judiciary under U.S. Senator Orrin Hatch (R), as a law clerk for Supreme Court Justice Clarence Thomas, and as a special assistant and associate counsel to former President George W. Bush (R).

The U.S. Department of Justice (DOJ) requested on March 11 that the U.S. Supreme Court weigh in on Judge Richard Seeborg’s constitutional claim challenging the addition of a citizenship question on the U.S. Census when it hears Department of Commerce v. New York in April 2019. Seeborg’s ruling was the second decision by a federal judge since January challenging the addition of the citizenship question, which asks, “Is this person a citizen of the United States?”

Seeborg issued a ruling in State of California v. Ross on March 6, 2019, holding that Commerce Secretary Wilbur Ross’ addition of a citizenship question on the 2020 census was, in his view, unconstitutional and a violation of the Administrative Procedure Act (APA). Seeborg ruled that the question was unconstitutional because it prevented the federal government from carrying out its duty under the U.S. Constitution’s Enumeration Clause to count every person living in the United States every 10 years, which could distort the proper apportionment of congressional representatives. He also held that the question violated the APA because he interpreted the administrative record in the case as being contrary to law.

Seeborg’s ruling follows Judge Jesse Furman’s decision in January 2019 holding that the citizenship question violated the APA by failing to follow proper procedure. Though plaintiffs in the case had also argued that Ross violated the equal protection component of the U.S. Constitution’s Due Process Clause, Furman held that the due process claims fell short because the administrative record in the case did not demonstrate discrimination as a motivating factor for Ross’ decision. The U.S. Supreme Court announced in February that it would hear Furman’s case—Department of Commerce v. New York—in April 2019.

Solicitor General Noel Francisco sent a letter to the U.S. Supreme Court on March 11, 2019, asking the court to also consider Seeborg’s constitutional claims when they hear Department of Commerce v. New York. “In light of that finding, only if the Court addresses respondents’ Enumeration Clause claim can its decision definitively resolve whether the Secretary may reinstate a question about citizenship to the 2020 decennial census,” said Francisco. He continued, “In the alternative, if the Court has any concerns about addressing respondents’ Enumeration Clause claim in this case, it should grant the government’s petition in the California case and consolidate that case with this one for oral argument.”

Two additional lawsuits claiming that the citizenship question discriminates against immigrant and minority communities are pending before Judge George Hazel of the United States District Court for the District of Maryland. Hazel heard closing arguments in February.

On March 12, the U.S. Senate confirmed Paul Matey to the U.S. Court of Appeals for the 3rd Circuit on a vote of 54-45. President Trump nominated Matey to the court on April 12, 2018. Sen. Joe Manchin (D-W.V. ) was the only Democratic senator to vote in favor of the confirmation.

Matey will join the court upon receiving his judicial commission and taking his judicial oath. Once he joins the court, Matey’s confirmation will result in a 7-6 Republican-appointed majority on the 3rd Circuit. Before Matey’s confirmation, the court had six judges appointed by Democratic presidents, six judges appointed by Republican presidents, and two vacant seats.

As of March 2019, no other circuit courts would change partisan balance based on an appointing president’s party, but Trump’s nominees could impact two courts by nearing the number of Republican-appointed judges to the number of Democratic-approved judges. The U.S. Court of Appeals for the 2nd Circuit, which has two current vacancies and two pending nominations, currently has a 7-4 Democratic-appointed majority. Should the Senate confirm the two nominees, the court’s balance would shift to a 7-6 Democratic-appointed majority. Similarly, the U.S. Court of Appeals for the 9th Circuit has five vacancies and five pending nominations. The court has a 16-8 Democratic-appointed majority.

Matey was the second circuit court judge confirmed without blue slip approval from home-state senators. Eric Miller was the first circuit court judge confirmed without support from both home-state senators. A blue slip is a piece of paper a home-state senator returns to the Senate Judiciary Committee chair to express support for a federal judicial nominee. Judiciary Committee Chairman Lindsey Graham (R-S.C.) decided not to require blue slip approval for federal judicial nominees to the U.S. circuit courts of appeals.

Home-state Sens. Cory Booker and Bob Menendez, both Democrats representing New Jersey, said the White House did not consult them before nominating Matey. Booker, who is a member of the Senate Judiciary Committee, said the confirmation without blue slip approval “goes right to the ability of any senator in this body to truly represent their state.” Menendez expressed concern for Matey’s record and his role in the administration of New Jersey Governor Chris Christie (R).

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said Democrats were responsible for changing the blue slip process, referring to changes Democratic senators introduced in 2013. “The day that you dealt yourself out as a minority to have a say about who gets on the court was the day that everything changed,” he said. He also stated that senators from one state should not be able to block circuit court nominees, since circuit courts serve multiple states.

Twenty-six candidates filed to run in the special election to fill North Carolina’s vacant 3rd Congressional District seat. The candidates include six Democrats, 17 Republicans, one Constitution Party candidate, and two Libertarians. The vacancy occurred when former Rep. Walter Jones (R) died on February 10. Jones had held the seat since 1995.

Primaries are scheduled for April 30, and primary runoffs are scheduled for July 9. The general election will be held September 10. However, if no primary runoffs are needed, the general election date will be moved up to July 9. The filing deadline was March 8.

Republicans currently hold eight of the state’s 13 U.S. House seats and both of its U.S. Senate seats. Democrats hold three U.S. House seats, and two seats are vacant. Entering the 2019 special election, the U.S. House has 235 Democrats and 198 Republicans. A majority in the chamber requires 218 seats.