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 April 1 to April 5, the number of pages in the Federal Register increased by 1,748 pages, bringing the year-to-date total to 13,794 pages. This week’s Federal Register featured a total of 604 documents, including 452 notices, 12 presidential documents, 57 proposed rules, and 83 final rules.
One proposed rules, three final rules, and one notice 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 1,394 pages. As of April 5, the 2019 total trailed the 2018 total by 1,224 pages.
The Trump administration has added an average of 985 pages to the Federal Register each week in 2019 as of April 5. 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.
Biestek v. Berryhill asked whether agency experts must provide data supporting their testimony during benefits hearings. On April 1st, the U.S. Supreme Court ruled, “not categorically.” The court held that reviewing courts could uphold agency decisions even when experts withhold requested data.
Justice Elena Kagan, writing for a 6-3 majority, argued that a blanket rule against experts refusing to reveal data used to support their conclusions would be too broad. She held that reviewing courts should adopt a case-by-case approach. Justice Neil Gorsuch, in a dissent joined by Justice Ruth Bader Ginsburg, argued that agency experts should provide support for their allegations when asked.
When the Social Security Administration (SSA) decides whether to award disability benefits to applicants, it follows an informal adjudication process laid out in the Social Security Act of 1935. SSA administrative law judges (ALJs) conduct hearings to determine whether the agency should accept or reject disability claims. If someone challenges an SSA benefits decision in court, judges will uphold the agency’s factual determinations if a reasonable person would accept that the supporting evidence was adequate.
Courts reviewing factual determinations made by the SSA have to make sure the agency based its decisions on substantial evidence. Court precedent defines substantial evidence as that which a reasonable mind would accept as supporting a conclusion.
In this case, Michael Biestek went before an SSA ALJ for a hearing to see if there was any work he could perform with his disabilities. A vocational expert working for the SSA testified that there were hundreds of thousands of jobs available for someone like Biestek. The ALJ did not require the expert to share the surveys she used to make her assessment when Biestek’s lawyer asked to see them. Based on the expert testimony, the ALJ rejected part of Biestek’s disability application. Biestek challenged the partial denial of benefits, saying that the expert’s refusal to share her data meant that her testimony fell short of the substantial evidence standard.
Justice Kagan held that expert testimony alone is usually enough to qualify as substantial evidence. She did not support rejecting expert testimony in all cases where the agency expert refuses to divulge the underlying data. Justice Sonia Sotomayor wrote a dissenting opinion, arguing that the SSA had the burden of proof to show that Biestek had work opportunities. Justice Gorsuch wrote a separate dissenting opinion, arguing that “The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decisionmaking [….] Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice.”
Governor Kristi Noem (R) appointed Patricia DeVaney to the South Dakota Supreme Court on April 4, 2019. Noem selected DeVaney to succeed Justice Steven Zinter, who died on October 30, 2018. DeVaney was Noem’s first appointment to the five-member court.
Under South Dakota law, state supreme court justices are appointed by the governor from a list provided by the South Dakota Judicial Qualifications Commission. The South Dakota Judicial Qualifications Commission is composed of seven members—two circuit court judges elected by judicial conference, three attorneys appointed by a majority of the state bar, and two citizens appointed by the governor. The attorneys must not all be from the same political party. Likewise, the governor cannot appoint individuals to the commission from the same political party.
Newly appointed justices serve for at least three years, after which they must run in a yes-no retention election during a regularly scheduled general election. Subsequent terms last eight years.
DeVaney graduated summa cum laude from the University of South Dakota in 1990. She earned her J.D. from the University of Virginia. DeVaney worked as an assistant attorney general in the Attorney General’s Office from 1993 to 2012. Gov. Dennis Daugaard (R) appointed DeVaney to the Sixth Judicial Circuit of South Dakota in 2012.
Earlier this week Republican leaders in the Senate used a procedural tactic known as the nuclear option to change the process for confirming judicial nominees. This is the third time the procedural tactic has been used since 2013.
Republicans cheered the change while Democrats have been critical of the tactic. But aside from the partisan mudslinging, what are the facts about this change? What will the new rules mean, and what is the data behind how we got here? What exactly happened with the nuclear option and how are Senate leaders reacting? How will this affect President Trump’s ability to fill vacancies in the federal judiciary?
Ballotpedia has answers to these questions and more below.
What happened?
On Wednesday, the Senate voted 51-48 to reduce post-cloture debate on federal district court nominees from 30 hours to two hours (circuit court judges and Supreme Court justices still have 30 hour limits). The Senate made the same change for executive branch nominees below the Cabinet level.
The two hour period begins after the Senate votes to invoke cloture—the process in which senators agree to end debate and bring a nomination or legislative act to a final vote. Cloture is often invoked to end procedural delay commonly known as a filibuster. It takes 51 votes to invoke cloture on a presidential nominee and 60 votes to invoke cloture on legislation.
What is the difference between a federal district court and a circuit court?
Federal district courts are the first level of the federal court system. Most federal criminal and civil cases originate in district courts. There are 94 district courts nationwide, with each state having between one and four associated district courts. There are 677 federal judge positions in the district court system.
Circuit courts are the intermediate appellate level of the federal court system, falling in between district courts and the Supreme Court. There are 13 circuit courts, including 11 numbered circuits which each handle appeals originating in a particular group of states. A 12th court handles appeals originating in the District of Columbia. The Court of Appeals for the Federal Circuit handles appeals which deal with specific subject areas. There are 179 federal judge positions in the circuit court system.
What does the nuclear option actually mean?
To enact this change, Senate Republicans used a parliamentary tactic known as the nuclear option: a procedure that allows the majority party to change a Senate precedent with a simple majority vote. Without the nuclear option, changing the Senate’s standing rules requires a two-thirds vote. On Tuesday, Republicans tried to pass the change in the form of a standing resolution, but they did not receive the required 60 votes. The term nuclear option was first coined in 2003 by Sen. Trent Lott (R-Miss.).
To deploy the nuclear option, Senate Majority Leader Mitch McConnell (R-Ky.) raised a point of order during the consideration of Roy Altman to serve on the U.S. District Court for the Southern District of Florida. His point of order stated that debate should be limited to two hours after cloture is invoked on a judicial nominee. After the presiding officer of the Senate ruled against McConnell’s point of order, 51 Senate Republicans–all except Susan Collins (R-Me.) and Mike Lee (R-Ut.)–voted to overrule the chair’s decision.
This was the third time the Senate has used the nuclear option to change Senate precedent for presidential nominations since 2013. Here are the other two:
2013: Senate Majority Leader Harry Reid (D-Nev.) changed the threshold for invoking cloture for all presidential nominees except Supreme Court justices from 60 votes to 51 votes.
2017: McConnell reduced the cloture threshold for Supreme Court nominees from 60 votes to 51 votes when the Senate was considering Neil Gorsuch’s nomination.
Who was the first judge to be confirmed under the new precedent?
Altman was the first judge to be confirmed under the new precedent. Altman is the first Trump judicial nominee to the U.S. District Court for the Southern District of Florida and brings its composition to seven Republican-appointed judges and seven Democratic-appointed judges. There are four other vacancies on the bench. Two Trump nominees who, like Altman, were nominated on May 7, 2018—Rodolfo Ruiz and Rodney Smith—are awaiting confirmation.
How many judges are awaiting confirmation?
Seventy-five of President Trump’s judicial nominees have yet to be confirmed. This figure includes 49 nominees who have been approved by the Judiciary Committee and are awaiting only a vote before the full Senate as well as 26 nominees who have yet to appear before the committee.
Of the 75 judicial nominees awaiting confirmation, 56 are nominees to district courts. Thirty-nine of those district court nominees are only awaiting a vote before the full Senate. Thirty-one of the 39 district court nominees were nominated more than six months ago. Seventeen were nominated in April 2018 or earlier.
Over the course of the Trump administration, the highest number of concurrent judicial vacancies occurred in August 2018, when there were 158 vacant judicial seats. The lowest number of concurrent vacancies was in February 2017, when 117 federal judgeships were vacant.
How many district court judges have been nominated to the federal judiciary?
Judge Altman is the 54th Trump nominee to have been confirmed to a District Court by the U.S. Senate. The District Courts with the most Trump appointees are the U.S. District Courts for the Western Districts of Pennsylvania and of Texas, which each have three Trump appointees.
Between 1933 and 2017, the average rate of successful District Court nominations was 27.4 per year. This has increased in recent years, with Bill Clinton (D) averaging 38.1 per year, George W. Bush (R) averaging 32.6 per year, and Barack Obama (D) averaging 33.5 per year. President Trump’s 54 appointments put him at an approximate rate of 24 per year.
What are the longest/oldest vacancies right now?
Judge Malcolm Howard’s seat on the U.S. District Court for the Eastern District of North Carolina has been vacant the longest. Howard retired from full-time service, assuming senior status, on December 31, 2005—a 13-year vacancy. There is no pending nominee for this seat.
The second-longest vacancy is on the U.S. District Court for the Southern District of Texas. Judge Janis Jack vacated the seat on June 1, 2011, when she assumed senior status. President Trump nominated David Morales to fill this seat on April 12, 2018. Morales is currently awaiting a vote in the U.S. Senate.
Which of President Trump’s nominations have been waiting the longest?
Of the 49 Trump nominees who have passed through the Senate Judiciary Committee and are awaiting a vote before the full Senate, four were nominated in 2017, 27 were nominated in the first six months of 2018, 12 were nominated in the latter six months of 2018, and six were nominated in 2019.
The four nominees who began the process in 2017 are Matthew Kacsmaryk (U.S. District Court for the Northern District of Texas), Ryan Holte (U.S. Court of Federal Claims), Howard Nielson (U.S. District Court for the District of Utah), and Daniel Domenico (U.S. District Court of the District of Colorado).
With the nuclear option in place, how fast will nominees be confirmed?
So how did the 30-hour post-cloture debate play out in practice? According to a CRS report last updated in 2017, “The time used in debate is counted against the 30 hours, but so too is the time consumed by quorum calls, roll call votes, parliamentary inquiries, and all other proceedings that occur while the matter under cloture is pending before the Senate.”
The report also noted that, under some circumstances, “the Senate may agree by unanimous consent that the 30 hours be considered to run continuously, even when the Senate is not actively considering the measure or even does not remain in session.”
Before the precedent changed, Adam Jentleson, a former Harry Reid staffer, wrote in a Washington Post op-ed that Senate Democrats could drag out judicial confirmations to four days using the cloture process. George Washington University political scientist Sarah Binder found that the median time spent in post-cloture debate was 22 hours for judicial nominations from 2017 to 2018.
University of Georgia political scientist Tony Madonna expects the four-day confirmation period mentioned by Jentleson to decrease under the new precedent (although this could be affected by whether there is an even split in debate time between Democrats and Republicans). Madonna said it is unclear how much this change will affect the federal judiciary’s vacancy rate because some of the delay comes during the executive branch’s vetting process and before the nominations reach the Senate.
What are people saying about it?
Senate Majority Leader Mitch McConnell (R-Ky.) said Senate Democrats were taking advantage of the 30-hour period to delay President Donald Trump’s nominees. In an April 1 op-ed, McConnell wrote, “The all-encompassing, systematic nature of this obstruction is not part of the Senate’s important tradition of minority rights. It is a new departure from that tradition. And this break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected.”
Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the change. He said, “Two hours for a lifetime appointment is unacceptable. Two hours for a lifetime appointment with huge influence on people’s lives is unacceptable. It’s ridiculous.”
Sen. Joe Manchin (D-W.V) said, “This rule today, this change, and the two that came before it in 2013 and 2017, were not meant to make this place more efficient. They were meant to take power from each and every senator.”
Sen. Steve Daines (R-Mt.) said, “What we’re debating here are rules that were never part of the Constitution. The Senate gets to define the rules, and the Senate can change its rules. It is a good healthy debate, and I don’t think you’re going to see a legislative filibuster change in this Congress.”
So, to summarize, here are five things you need to know:
Senate Republicans used the nuclear option to shorten the amount of time that can be spent debating judicial nominees after cloture has been invoked from 30 hours to two hours. The change covers district court nominees and does not apply to circuit court or Supreme Court nominees. Federal district courts are the first level of the federal court system, while the circuit courts and the Supreme Court generally handle appeals from district courts.
This was the third time the Senate has changed Senate precedent using the nuclear option since 2013. In the other two instances, the Senate worked to reduce the cloture threshold for all presidential nominees, including Supreme Court nominees, from 60 votes to 51 votes.
Judge Roy Altman was the first judge confirmed under the new post-cloture debate rules. He will serve as a District Court judge in Florida.
The Senate has confirmed 54 of Trump’s district court nominees so far. Fifty-six more await confirmation, including 39 who only need a vote in the full Senate. Thirty-one of the 39 were nominated more than six months ago.
Political scientist Tony Madonna told Ballotpedia that the maximum period between invoking cloture on a judicial nominee and confirming that nominee will likely be reduced under the new precedent. He said the likely effects of the debate changes on the federal judiciary vacancy rate are unclear because much of the delay comes during the executive branch’s vetting process.
This analysis was authored by David Luchs, Rob Oldham, and Sara Reynolds.
The Yavapai County Board of Supervisors chose former Arizona Sen. Steve Pierce (R) on April 3 to replace Rep. David Stringer (R) in the Arizona House of Representatives. Stringer resigned on March 27 amid an ethics investigation.
Prior to being chosen for Stringer’s seat, Pierce served in the Arizona State Senate from 2009 to 2017. He also previously served as the chairman for the Yavapai County Republican Party.
The Arizona House of Representatives currently has a 31-29 Republican majority, which was unchanged with Pierce’s appointment. Republicans also hold trifecta status in Arizona, meaning the party holds the governor’s office as well as a majority in both chambers of the state legislature.
If there is a vacancy in the Arizona State Legislature, the board of county supervisors must select a replacement. The political party committee is involved in the appointment process only if the legislative district has 30 or more elected precinct committeemen.
The city of Lincoln, Nebraska, is holding primaries for mayor, four city council districts, and one of five elected seats on the airport authority on April 9. A general election is scheduled for May 7. The filing deadline for this election was March 7.
The open mayoral primary includes five candidates—Leirion Gaylor Baird, Krystal Gabel, Jeff Kirkpatrick, Cyndi Lamm, and Rene Solc. Mayor Chris Beutler is not seeking re-election in 2019 due to term limits.
One of the four city council incumbents whose terms are on the ballot in 2019 is running for re-election. District 3 incumbent Jane Raybould faces Colten Zamrzla. The District 1 race includes two candidates, and the District 2 and 4 races each have three candidates. In the airport authority race, incumbent Nick Cusick faces Aurang Zeb.
Lincoln is the second-largest city in Nebraska and the 71st-largest city in the U.S. by population.
Voters in New Mexico haven’t decided a citizen-initiated ballot measure since 1964, and voters haven’t repealed a law at the ballot since 1930. Some House Republicans, including Minority Leader James Townsend and Minority Whip Rod Montoya, are seeking to place a veto referendum before New Mexicans in 2020.
The veto referendum targets the repeal of Senate Bill 8 (SB 8), which was signed into law on March 8, 2019. SB 8 was designed to require background checks for firearm sales, including sales between unlicensed persons. Under SB 8, sales between unlicensed persons need to go through a person with a license to perform a background check, and the person could charge up to $35.00 to perform the background check.
Townsend and Montoya informed Secretary of State Maggie Toulouse Oliver (D) of their intent to file a referendum petition to repeal SB 8 on March 7, 2019. On March 21, Oliver denied the petition, saying there were legal deficiencies. She said that courts have ruled that laws “providing for the preservation of the public peace, health or safety” were exempt from veto referendums, per Section 1 of Article IV of the New Mexico Constitution. Oliver stated, “The legislature enacted the background check law with the purpose of increasing public peace, health, and safety and thus the law is not subject to referendum.”
On April 1, Rep. Townsend sent a letter to Secretary of State Oliver, which said, “Neither the secretary of state nor the attorney general has the authority to unilaterally determine if a given piece of legislation meets the public peace, health and safety standard described by the New Mexico Constitution.” He added, “New Mexicans are constitutionally permitted to decide by referendum their choice on this consequential legislation.” Rep. Townsend also refiled the referendum petition.
In New Mexico, signatures for veto referendums are due 90 days after the adjournment of the legislative session in which the targeted law was approved. The New Mexico State Legislature adjourned on March 16, meaning the signature deadline is June 14, 2019. Proponents of veto referendums need to collect 70,165 signatures to put targeted bills before voters. An additional 105,248 signatures are needed to suspend a law until the election.
On April 2, Colorado Springs, Colorado, Mayor John Suthers faced three challengers in the nonpartisan general election. With 72.5 percent of the vote, Suthers won the election outright. Juliette Parker, the candidate finishing in second place, received 11.9 percent of the vote.
Colorado Springs also held a nonpartisan general election for three of nine at-large city council seats. Both incumbents running for re-election won another term. The highest vote recipient was former Colorado Secretary of State Wayne W. Williams. This will be his first term on the council. He received 18.6 percent of the vote, while incumbent Bill Murray received 12.4 percent of the vote, and incumbent Tom Strand received 12.2 percent of the vote. They faced eight other candidates in the at-large race.
Colorado Springs is the second-largest city in Colorado and the 40th-largest city in the U.S. by population.
On April 2, the Arkansas legislature passed a constitutional amendment that would impose term limits of twelve consecutive years for state legislators with the opportunity to return after a four-year break. The 12-year limit would apply to anyone elected in 2021 or after.
The amendment’s House sponsor, Sen. Jim Dotson (R-93), said, “The purpose of term limits is to limit power and advantages of incumbency. So if you have an incumbent who is running against someone who is not an incumbent, they obviously have a built-in advantage. After this resolution — if it is adopted and approved by the voters — is passed, after 12 years someone loses that advantage of incumbency.”
Rep. Vivian Flowers (D-17) asked House sponsor Rep. Dotson, “Those members who are currently serving would get to operate under the current law and serve 16 years — up to 16 years — while everyone else in the state would have to be limited to 12 years, thereby giving us in this chamber right now a definitive advantage over everybody else in the state?”
As of 2019, Arkansas legislators can serve up to 16 years throughout their lifetimes in the House or Senate. Those who were first elected to the legislature before 2021 would keep the state’s current lifetime term limit of 16 years.
The current term limits for state legislators were established by the passage of Issue 3 in 2014, which doubled the amount of time a lawmaker can stay in the Arkansas Senate and more than doubled the amount of time a lawmaker can stay in the House. Issue 3 in 2014 was referred to the ballot by the state legislature. Previously, representatives could serve up to three two-year terms, while senators could serve up to two four-year terms, as set by the 1992 citizen initiative, Issue 4.
Also targeting the 2020 ballot is a citizen-initiated constitutional amendment filed by the Arkansas Term Limits Ballot Question Committee (BQC) on March 14, 2019. The measure is identical to the group’s 2018 initiative, Issue 3, which was initially certified for the ballot but later blocked by the state Supreme Court based on arguments about the validity of signatures on the initiative petition. To qualify for the 2020 ballot, the group must submit 89,151 valid signatures by July 3, 2020. This initiative would impose term limits of six years for members of the Arkansas House of Representatives and eight years for members of the Arkansas Senate. Specifically, the measure would allow representatives to be elected to no more than three two-year terms and senators to be elected to no more than two four-year terms. Under the measure, no member of the state general assembly could serve more than 10 years in total.
The Arkansas State Legislature may refer up to three constitutional amendments to the ballot each general election. So far, two amendments have been certified for the 2020 ballot, including the term limits measure. Also appearing on the 2020 general election ballot is an amendment to continue and make permanent a 0.5 percent sales tax with revenue directed to state and local transportation, including highways, roads, and bridges.
On April 3, Bev Clarno (R) took the official oath of office to become Oregon’s secretary of state. Gov. Kate Brown (D) appointed Clarno as the secretary of state on March 29, 2019. Clarno was appointed to replace Dennis Richardson (R), who died while in office on February 26, 2019.
In a statement on February 27, 2019, Gov. Kate Brown (D) said she would appoint a successor from the Republican Party–as the Oregon Constitution requires–who would commit not to run for election in 2020. Clarno will serve for the remainder of Richardson’s term, which expires in 2021. Clarno indicated that she would not run for election in 2020.
Clarno is a former Republican member of the Oregon House of Representatives (1989-1997) and the Oregon State Senate (2001-2003). She served as speaker of the House from 1995 to 1997 and as Senate Republican leader in the 2003 legislative session. Clarno was a hog farmer, cattle rancher, and real estate broker and appraiser before her election to the Oregon House of Representatives
The Secretary of State of Oregon is an elected constitutional officer within the executive branch of the Oregon state government and is first in line of succession to the governor.
The secretary of state is a state-level position in 47 of the 50 states. The position does not exist in Alaska, Hawaii, and Utah. There are currently 25 Republican secretaries of state, 21 Democratic secretaries of state, and one independent.
