CategoryFederal

Ballotpedia releases federal judicial vacancy count for February

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from February 4, 2020, to March 2, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS
Vacancies: There has been one new judicial vacancy since the January 2020 report. There are 72 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, 78 of 890 active federal judicial positions are vacant.
Nominations: There have been 10 new nominations since the January 2020 report.
Confirmations: There have been six new confirmations since the January 2020 report.

New vacancies
There were 72 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.3, which is 0.3 percentage points lower than the vacancy percentage in January 2020.
• The nine-member U.S. Supreme Court does not have any vacancies.
• One (0.6%) of the 179 U.S. Appeals Court positions is vacant.
• 69 (10.2%) 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.

One judge left active status, creating an Article III life-term judicial vacancy. As an Article III judicial position, this vacancy must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
• Judge Andrew Brasher left his seat on the U.S. District Court for the Middle District of Alabama after he was elevated to the U.S Court of Appeals for the 11th Circuit.

U.S. Court of Appeals vacancies
The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) to the date indicated on the chart.

The following maps show the number of vacancies on the United States Court of Appeals at the inauguration of President Donald Trump (R) and as of March 2, 2020.

New nominations
President Trump has announced 10 new nominations since the January 2020 report.
• David Dugan, to the U.S. District Court for the Southern District of Illinois
• Iain D. Johnston, to the U.S. District Court for the Northern District of Illinois
• Franklin U. Valderrama, to the U.S. District Court for the Northern District of Illinois
• Christy Wiegand, to the U.S. District Court for the Western District of Pennsylvania
• Saritha Komatireddy, to the U.S. District Court for the Eastern District of New York
• Jennifer Rearden, to the U.S. District Court for the Southern District of New York
• J. Philip Calabrese, to the U.S. District Court for the Northern District of Ohio
• James Knepp II, to the U.S. District Court for the Northern District of Ohio
• Brett H. Ludwig, to the U.S. District Court for the Eastern District of Wisconsin
• Michael J. Newman, to the U.S. District Court for the Southern District of Ohio

Since taking office in January 2017, President Trump has nominated 249 individuals to Article III positions.

New confirmations
Since February 4, 2020, the U.S. Senate has confirmed six of President Trump’s nominees to Article III seats. As of March 2, 2020, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
• Andrew Brasher, confirmed to the U.S. Court of Appeals for the 11th Circuit
• Matthew Schelp, confirmed to the U.S. District Court for the Eastern District of Missouri
• Joshua Kindred, confirmed to the U.S. District Court for the District of Alaska
• John Kness, confirmed to the U.S. District Court for the Northern District of Illinois
• Philip Halpern, confirmed to the U.S. District Court for the Southern District of New York
• Silvia Carreno-Coll, confirmed to the U.S. District Court for the District of Puerto Rico

Click here to learn more.

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Justice Thomas signals reconsideration of judicial deference doctrine

Justice Clarence Thomas wrote on February 24 that he would reconsider his 2005 Brand X opinion. He made his remarks while dissenting from the U.S. Supreme Court’s decision not to hear Baldwin v. U.S., which challenged Brand X. Thomas argued that Brand X appears to be “inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”

Brand X involved an application of the Chevron deference doctrine. Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Brand X built on Chevron’s foundation by requiring courts to defer to agency interpretations of statutes even when courts previously held contrary views.

Justice Thomas argued that both deference precedents undermined the requirements of the United States Constitution. He wrote, “Regrettably, Brand X has taken this Court to the precipice of administrative absolutism. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations. Brand X may well follow from Chevron, but in so doing, it poignantly lays bare the flaws of our entire executive-deference jurisprudence. Even if the Court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X.”

Click here learn more about Chevron deference, or click here to learn more about the Administrative Procedure Act.

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Link to Justice Thomas’ dissent: https://www.supremecourt.gov/orders/courtorders/022420zor_mjo1.pdf



U.S. Supreme Court allows DHS to enforce public charge rule in Illinois

The U.S. Supreme Court on February 21 voted 5-4 to allow the U.S. Department of Homeland Security (DHS) to enforce in Illinois a rule that allows the federal government to deny immigrants a visa or a green card if they rely on government assistance. The court let DHS enforce the same rule elsewhere in the U.S. following a January 27 order.

DHS issued the final rule detailing how federal agencies determine the inadmissibility of immigrants likely to become public charges (e.g. dependent on government assistance) in August 2019. Five federal judges later issued injunctions blocking the rule from taking effect. Appellate courts lifted three of the injunctions in December 2019, but a nationwide injunction from the U.S. District Court for the Southern District of New York and a statewide injunction from the U.S. District Court for the Northern District of Illinois remained in effect until the January 27 and February 21 orders from the U.S. Supreme Court.

DHS requested that the U.S. Supreme Court stay the statewide injunction issued by Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois. In his October 2019 order, Judge Feinerman held that the DHS rule would impose financial consequences on Cook County. He also held that the county would likely succeed in defending the argument that DHS exceeded its legal authority and acted arbitrarily and capriciously when it made the public charge rule.

The U.S. Supreme Court granted the request for a stay. Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ruled in favor of the stay while Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. Sotomayor filed a dissenting opinion with the order, arguing, “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

The decision allows the rule to take effect nationwide pending a final decision in _Wolf v. Cook County, Ill._ The U.S. Court of Appeals for the Seventh Circuit heard oral argument in the case on February 26.

Click here to learn more about rulemaking, or click here to learn about the related U.S. Supreme Court order.

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Source documents:



Rep. Ralph Abraham not seeking re-election; 2,598 major party candidates filed for 2020 Congress elections

Rep. Ralph Abraham (R-La.) announced last week he would not seek re-election this year. He was the 28th Republican member of the U.S. House to announce he would not seek re-election in 2020. Nine Democratic representatives have announced they will not run for re-election.

Four senators (three Republicans and one Democrat) are not running for re-election. In 2018, 55 total members of Congress—18 Democrats and 37 Republicans—did not seek re-election.

As of March 2, 2,598 major party candidates have filed to run for the Senate and House of Representatives in 2020.

So far, 370 candidates are filed with the Federal Election Commission (FEC) to run for U.S. Senate. Of those, 316—164 Democrats and 152 Republicans—are from one of the two major political parties. In 2018, 527 candidates filed with the FEC to run for U.S. Senate, including 137 Democrats and 240 Republicans.

For U.S. House, 2,517 candidates are filed with the FEC to run in 2020. Of those, 2,282—1,083 Democrats and 1,199 Republicans—are from one of the two major political parties. In 2018, 3,244 candidates filed with the FEC, including 1,566 Democrats and 1,155 Republicans.

On November 3, 2020, 35 Senate seats and all 435 House seats are up for election. Of those Senate seats, 33 are regularly scheduled elections, while the other two are special elections in Arizona and Georgia. Twelve are Democratic-held seats and 23 are Republican-held seats. In the House, Democrats currently hold a majority with 232 seats.

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Sanders tops 11,000 pageviews in a week

 

Each week, we report the number of pageviews received by 2020 presidential campaigns on Ballotpedia. These numbers reflect the time investments of our community of thousands of readers who visit a Ballotpedia because they think the candidate is worth knowing more about, whether they believe the candidate has a strong chance of winning or is an unknown who warrants a closer look.

Last week, Bernie Sanders led all Democratic campaigns in pageviews. His campaign page was viewed 11,201 times, equaling 32.9% of pageviews for all Democratic campaigns this week. He was followed by Joe Biden with 22.0% of pageviews and Michael Bloomberg with 22.0%. The only other Democratic candidate to receive more than 10,000 pageviews in a week was Marianne Williamson (12,172) during the week of the first primary debate.

Four Democratic candidates received more pageviews this week relative to last week. Joe Biden led all candidates with 68.3% more pageviews this week. Michael Bloomberg (1.2%) and Amy Klobuchar (3.4%) saw a decrease in their pageviews this week relative to last week.

The top three Democratic presidential candidates in lifetime pageviews are Biden with 173,616, Sanders with 165,148, and Elizabeth Warren with 153,225. Last week, Pete Buttigieg (184,297 pageviews) and Tom Steyer (57,800 pageviews) ended their campaigns.

Donald Trump received the most pageviews of the three Republican candidates for the first time. Trump received 7,975 pageviews, while Roque de la Fuente received 6,549 and Bill Weld received 5,333.

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Trump remains leader in appeals court appointees and second in total judicial appointments since Carter

Donald Trump has appointed and the Senate confirmed 193 Article III federal judges through March 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in a presidency of all presidents dating back to Jimmy Carter. Only Carter (207) had more.

The average number of federal judges appointed by a president at the end of their third year in office is 165.

The median number of Supreme Court appointees is two. Four presidents (H.W. Bush, Clinton, Obama, and Trump) made two appointments. Presidents Jimmy Carter (D) George W. Bush (R) did not appoint any justices through this point in their presidencies.

The median number United States Court of Appeals appointees is 30. Trump appointed the most with 51, and Ronald Reagan (R) appointed the fewest with 24.

The median number of United States District Court appointees is 138. President Carter (D) appointed the most with 157, and President Reagan (R) appointed the fewest with 97.

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.

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President Trump endorses former White House physician Ronny Jackson in TX-13 Republican primary

President Donald Trump endorsed former White House physician Ronny Jackson ahead of the March 3 Republican primary for Texas’ 13th Congressional District.

On Friday evening, Trump tweeted, “I hope we can get Admiral @RonnyJackson4TX of Texas, who served our Country so well, into the runoff election in #TX13! Ronny is strong on Crime and Borders, GREAT for our Military and Vets, and will protect your #2A. Get out and vote for Ronny on Tuesday, March 3rd!”

Fifteen candidates are running in the primary on Tuesday. Incumbent Mac Thornberry (R), who was first elected in 1994, announced in September 2019 that he would not seek re-election.

Media coverage and endorsements have focused on six candidates: Chris Ekstrom, Lee Harvey, Elaine Hays, Jackson, Vance Snider II, and Josh Winegarner. Also running in the primary are Catherine Carr, Jamie Culley, Jason Foglesong, Richard Herman, Diane Knowlton, Matt McArthur, Mark Neese, Asusena Resendiz, and Monique Worthy.

If no candidate receives a majority of the vote in the primary election, a runoff between the top two vote-getters will be held on May 26, 2020. The winner of the primary will run in the district’s general election on November 3, 2020.

Jackson was Trump’s 144th endorsement since taking office in 2017.

Click here to learn more.

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Biden wins South Carolina Democratic primary

Former Vice President Joe Biden won the South Carolina Democratic presidential primary on Saturday night. With 50 percent of precincts reporting, Biden received 50% of the vote. Sen. Bernie Sanders was second with 19%. Former investor Tom Steyer was the only other candidate to pass the double-digit mark and was third at 12%.

Fifty-four pledged delegates were at stake in South Carolina. Biden is projected to win at least 25 of those delegates. Sanders is expected to win at least six.

Biden and Sanders will top the delegate scoreboard as the candidates head into Super Tuesday on March 3, when 14 states and one territory hold presidential nominating events. Among them are the country’s two most populous states—California and Texas.

One-third of all Democratic pledged delegates—1,344—are up for grabs on Super Tuesday.

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D.C. Circuit rules against HHS approval of Arkansas Medicaid work requirements

The United States Court of Appeals for the District of Columbia Circuit ruled against an attempt to allow Arkansas to institute work requirements for Medicaid recipients.

On February 14, 2020, a three-judge panel of the D.C. Circuit ruled in Gresham v. Azar that Secretary of the U.S. Department of Health and Human Services (HHS), Alex Azar, failed the arbitrary-or-capricious test when he approved a request from Arkansas to require its Medicaid beneficiaries to work at least 80 hours per month.

The court held that Azar was wrong not to consider whether the Arkansas work requirements would prevent some people from receiving health care coverage. The court held that Congress intended Medicaid to provide health care coverage and that HHS must uphold that purpose when approving state coverage plans.

The Trump administration announced in January 2018 that it would allow states to implement work requirements for Medicaid recipients by obtaining waivers from HHS. Arkansas, Kentucky, and New Hampshire received waivers, but Judge James Boasberg of the United States District Court for the District of Columbia blocked them from going into effect. The D.C. Circuit decision in _Gresham_ followed an appeal of Boasberg’s ruling filed by Arkansas.

The judges on the D.C. Circuit panel were Cornelia Pillard, an Obama appointee, Edwards, a Carter appointee, and David Sentelle, a Reagan appointee. Judge Sentelle filed the opinion for the court.

To learn more about the APA or the arbitrary-or-capricious test, see here:
Administrative Procedure Act
Arbitrary-or-capricious test

Additional reading:
Alex Azar 
Medicaid
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company 
James Boasberg
United States District Court for the District of Columbia 

Link to the D.C. Circuit opinion: https://ij.org/wp-content/uploads/2020/02/19-5094.pdf



Federal Register weekly update; 500 new final rules in first two months of 2020

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.

From February 24 to February 28, the Federal Register grew by 1,938 pages for a year-to-date total of 12,206 pages. Over the same period in 2019 and 2018, the Federal Register reached 7,260 pages and 9,134 pages, respectively. As of February 28, the 2020 total led the 2019 total by 4,946 pages and the 2018 total by 3,072 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 641 documents:
• 494 notices
• four presidential documents
• 57 proposed rules
• 86 final rules
Three final rules and two proposed rules were deemed significant under E.O. 12866—meaning that they could 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 Trump administration in 2020 has issued seven significant proposed rules and 16 significant final rules as of February 21.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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 here to find more information about weekly additions to the Federal Register in 2018 and 2017

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016:



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