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District court finds Affordable Care Act preventative healthcare provision unconstitutional

The United States District Court for the Northern District of Texas on March 30, 2023, issued a ruling in Braidwood Management v. Becerra striking down a provision of the Affordable Care Act (ACA) that requires private health insurance plans to cover preventative healthcare services without patient cost-sharing. 

Braidwood Management sued the U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra arguing that the ACA’s preventative services coverage mandates are unconstitutional because they violate the appointments clause of the U.S. Constitution by giving the U.S. Preventative Services Task Force (USPSTF) authority to make rules regarding coverage. The company further argued that the ACA’s requirements violate the Religious Freedom and Restoration Act (RFRA) by requiring the company to cover preventative services and medications that prevent HIV and other sexually transmitted diseases. 

Judge Reed O’Connor on September 7, 2022, issued the first ruling in Braidwood Management v. Becerra and held that ACA’s requirement that the company covers preventative services and medications that prevent sexually transmitted diseases violates the RFRA. Judge O’Connor later issued a March 2023 order vacating any federal agency action that has occurred since ACA’s passage to implement USPSTF-recommended preventative services published after March 23, 2010.

HHS appealed the case to the United States Court of Appeals for the Fifth Circuit on March 31, 2023. Becerra argued in a statement, “Efforts to strip away access to preventive health care are harmful and unacceptable.”

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Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 25 total announced upcoming vacancies for Article III judgeships as of April 5, 2023. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. These are lifetime appointments made by the president and confirmed by the U.S. Senate.

These positions are not yet vacant but will be at some point in the future with every judge having announced his or her intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.

The president and Senate do not need to wait for a position to become vacant before they can start the confirmation process for a successor. For example, S. Kato Crews was nominated to replace Judge Raymond P. Moore after he assumes senior status on June 20, 2023. There are currently two nominees pending for upcoming vacancies.

Six vacancy effective dates have not been determined because the judge has not announced the date he or she will leave the bench. The next upcoming scheduled vacancy will take place on April 14, 2023, when United States District Court for the Eastern District of Missouri Judge Audrey Fleissig assumes senior status.

In addition to these 25 upcoming vacancies, there are 74 current Article III vacancies in the federal judiciary out of the 870 total Article III judgeships. Including non-Article III judges from the United States Court of Federal Claims and the United States territorial courts, there are 76 vacancies out of 890 active federal judicial positions.

As of April 5, 2023, President Biden has nominated 158 individuals to federal judgeships on Article III courts, and 119 of those nominees have been confirmed. Of the 28 nominees going through the confirmation process, 14 are awaiting a vote in the U.S. Senate, eight are awaiting a committee vote, and six are awaiting a committee hearing.



President Biden appointed 109 federal judges through March 1 

President Joe Biden (D) has appointed and the Senate has confirmed 109 Article III federal judges through March 1, 2023, his third year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Ronald Reagan (R). The Senate had confirmed 86 of President Donald Trump’s (R) appointees at this point in his term.

Presidents have made an average of 93.7 judicial appointments through March 1 of their third year in office. By March 1 of his third year, President Bill Clinton (D) had the most appointees confirmed with 128. President Barack Obama (D) had the fewest confirmations with 69.

The median number of Supreme Court justices appointed is one at this point in a presidency. Presidents Reagan, George H.W. Bush (R), and Biden made one appointment. Presidents Clinton, Obama, and Trump, made two. President George W. Bush (R) did not appoint any Supreme Court justices by this point in his presidency. The median number of United States Court of Appeals appointees is 19. President Trump had the most appointees with 31. Presidents Obama and George W. Bush appointed the fewest with 17. The median number of United States District Court appointees is 70. President Clinton had the most appointees with 107. President H.W. Bush appointed the fewest with 48.

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 those 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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Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 23 total announced upcoming vacancies for Article III judgeships. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. These are lifetime appointments made by the president and confirmed by the U.S. Senate.

These positions are not yet vacant but will be at some point in the future with every judge having announced his or her intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.

The president and Senate do not need to wait for a position to become vacant before they can start the confirmation process for a successor. For example, Kato Crews was nominated to replace Judge Raymond P. Moore after he assumes senior status on June 20. There are currently four nominees pending for upcoming vacancies.

Eight vacancy effective dates have not been determined because the judge has not announced the date he or she will leave the bench. The next upcoming scheduled vacancy will take place on April 14, when United States District Court for the Eastern District of Missouri Judge Audrey Fleissig assumes senior status.

In addition to these 23 upcoming vacancies, there are 79 Article III vacancies in the federal judiciary out of the 870 total Article III judgeships. Including non-Article III judges from the United States Court of Federal Claims and the United States territorial courts, there are 81 vacancies out of 890 active federal judicial positions.

President Joe Biden (D) has nominated 154 individuals to federal judgeships on Article III courts. One hundred and nine of those nominees have been confirmed. Of the 31 nominees going through the confirmation process, 22 are awaiting a vote in the U.S. Senate, six are awaiting a committee vote, and three are awaiting a committee hearing.

Editor’s note: a previous version of this story erroneously reported that 106 of Biden’s nominees have been confirmed.



Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 37 total announced upcoming vacancies for Article III judgeships. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. These are lifetime appointments made by the president and confirmed by the U.S. Senate.

These positions are not yet vacant but will be at some point in the future with every judge having announced his or her intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.

The president and Senate do not need to wait for a position to become vacant before they can start the confirmation process for a successor. For example, Julie Rikelman was nominated to succeed Judge Sandra Lynch on the U.S. Court of Appeals for the 1st Circuit after she assumes senior status upon Rikelman’s confirmation. There are currently 15 nominees pending for upcoming vacancies.

Twenty-four vacancy effective dates have not been determined because the judge has not announced the date he or she will leave the bench. The next upcoming scheduled vacancy will take place on Sept. 30, 2022, when U.S. District Court for the Middle District of Pennsylvania Judge Robert Mariani assumes senior status.

In addition to these 37 upcoming vacancies, there are 80 current Article III vacancies in the federal judiciary out of the 870 total Article III judgeships. Including non-Article III judges from the United States Court of Federal Claims and the United States territorial courts, there are 82 vacancies out of 890 active federal judicial positions.

President Joe Biden (D) has nominated 141 individuals to federal judgeships on Article III courts. Seventy-six of those nominees have been confirmed. Of the 65 nominees going through the confirmation process, 22 are awaiting a vote in the U.S. Senate, five are awaiting a committee vote, and 38 are awaiting a committee hearing.



Monthly tracker: Article III federal judicial nominations by president by days in office since 2001

Through August 1, 2022, there were 890 authorized federal judicial posts and 77 vacancies. Seventy-five of those were for Article III judgeships. This report is limited to Article III courts, where appointees are confirmed to lifetime terms.

  • In the past month, five judges have been confirmed
  • In the past month, 25 judges have been nominated*.

*Note: This figure includes nomination announcements in addition to nominations officially received in the Senate.

By August 1, 559 days in office, President Joe Biden (D) had nominated 130 judges to Article III judgeships. For historical comparison**: 

  • President Donald Trump (R) had nominated 158 individuals, 86 of which were ultimately confirmed to their positions.
  • President Barack Obama (D) had nominated 90 individuals, 65 of which were confirmed.
  • President George W. Bush (R) had nominated 163 individuals, 100 of which were confirmed.

**Note: The total nominations 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 overall status of the federal judiciary during their respective administrations and is intended solely to track nominations by president by day.

Additional reading:

Judicial vacancies in federal courts

Federal judges nominated by Joe Biden

The Federal Judicial Vacancy Count 8/1/2022



Federal judge blocks Biden administration guidance on transgender students

A federal judge from the United States District Court for the Eastern District of Tennessee on July 15, 2022, struck down a Department of Education order that aims to protect transgender students and workers from discrimination. 

The Biden administration released the challenged guidance in response to recent legislation passed by states that aim to bar transgender students from participating on school sports teams and using bathrooms and locker rooms that align with their gender identity. The guidance states transgender students are protected under Title IX, which prohibits discrimination based on sex at federally funded schools. It also claims that transgender workers are protected under Title VII, which bars employers from discriminating based on race, color, religion, sex, and/or national origin. The department in June issued a proposed rule seeking to codify parts of the guidance. 

Tennesse and 19 other Republican-led states brought a lawsuit against the federal government last August, asserting the Department of Education overreached its executive authority by issuing the order. The states claim in part that the department’s guidance infringes on state power in violation of the Tenth Amendment.

Judge Charles Atchley, a Trump appointee, ruled the department overreached its authority in order to penalize states for their recent legislation. In a preliminary injunction, Judge Atchley wrote, “[T]he harm alleged by plaintiff States is already occurring – their sovereign power to enforce their own legal code is hampered by the issuance of defendants’ guidance and they face substantial pressure to change their state laws as a result.”

In response to the ruling, Joni Madison, the Human Rights Campaign’s interim president, said, “Nothing in this decision can stop schools from treating students consistent with their gender identity. And nothing in this decision eliminates schools’ obligations under Title IX or students’ or parents’ abilities to bring lawsuits in federal court.” 

Additional reading:

United States District Court for the Eastern District of Tennessee

Charles Atchley



Monthly tracker: Article III federal judicial nominations by president by days in office since 2001

Through July 1, 2022, there were 890 authorized federal judicial posts and 77 vacancies. Seventy-five of those were for Article III judgeships. This report is limited to Article III courts, where appointees are confirmed to lifetime terms.

  1. In the past month, three judges have been confirmed
  2. In the past month, nine judges have been nominated*.

*Note: This figure includes nomination announcements in addition to nominations officially received in the Senate.

By July 1, 528 days in office, President Joe Biden (D) had nominated 105 judges to Article III judgeships. For historical comparison**: 

  1. President Donald Trump (R) had nominated 153 individuals, 85 of whom were ultimately confirmed to their positions.
  2. President Barack Obama (D) had nominated 80 individuals, 64 of whom were confirmed.
  3. President George W. Bush (R) had nominated 147 individuals, 89 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 overall status of the federal judiciary during their respective administrations and is intended solely to track nominations by president by day.

Additional reading:

Federal judges nominated by Joe Biden

Judicial vacancies in federal courts

Current federal judicial vacancies



Ninth Circuit greenlights Arizona challenge to federal tax mandate (2022)

A three-judge panel of the United States Court of Appeals for the Ninth Circuit on May 19, 2022, ruled 3-0 that Arizona Attorney General Mark Brnovich (R) has standing to challenge the constitutionality of the federal tax mandate under the American Rescue Plan Act.. 

Brnovich filed a lawsuit against the U.S. Department of the Treasury in March 2021 arguing the tax mandate is unconstitutional because it penalizes a state if they use federal COVID-19 relief funding to subsidize a tax cut. Outlined in the American Rescue Plan Act, states are not permitted to use COVID-19 relief funds to offset reduction in net tax revenues. States can use the funds to respond to the public health emergency, to assist households, small businesses, and nonprofits, and to aid affected industries such as tourism, travel, and hospitality. 

The United States District Court for the District found that Arizona lacked standing to bring the lawsuit and dismissed the case for lack of subject matter jurisdiction. Brnovich appealed to the Ninth Circuit, which remanded the case back to the district court, finding that Arizona “had standing to challenge ARPA both because there was a realistic danger of ARPA’s enforcement, and because there was a justiciable challenge to the sovereignty of the State, which alleges infringement on its authority to set tax policy and its interest in being free from coercion impacting its tax policy.”

Attorney General Brnovich argued that the tax mandate threatens state sovereignty. “The federal government does not get to tell states how to set their tax rates. Yet, the Biden administration is attempting to intimidate and punish states with the loss of COVID-19 relief funding if they don’t submit to these unconstitutional demands,” said Brnovich. 

The U.S. Department of the Treasury had yet to comment on the ruling as of June 8, 2022.

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Ballotpedia releases federal judicial vacancy count for April 2022

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies in Article III courts during the month of April through May 1, 2022. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Four judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, 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.

U.S. Court of Appeals vacancies

The following chart tracks the number of vacancies on the United States Court of Appeals at the inauguration of Pres. Joe Biden (D) and at the date indicated on the chart.

The following maps show the number of vacancies on the United States Court of Appeals at Biden’s inauguration and as of May 1, 2022.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of May 1, 2022.

New nominations

Biden announced 10 new nominations since the previous report. Since taking office in Jan. 2021, Biden has nominated 93 individuals to Article III positions.

New confirmations

The U.S. Senate confirmed two nominees since the previous report.

As of May 1, 2022, the Senate had confirmed 60 of Biden’s judicial nominees—44 district court judges, 15 appeals court judges, and one Supreme Court justice. To review a complete list of Biden’s confirmed nominees, click here.

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