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Looking again at where state and local courts are closed due to coronavirus

On April 8, the United States Federal Courts announced that federal judges nationwide have moved court operations virtually due to the coronavirus pandemic. This is the latest in a series of changes that courts at all levels have enacted in response to the pandemic.

As of April 8, a majority of states have suspended in-person proceedings and jury trials. With a number of these orders set to end in late March or early April, some courts are beginning to extend their original dates to ones further in the future or until further notice.

For example, following an original end date of April 10, the Idaho Supreme Court issued an order on March 24 extending the suspension of civil and criminal trials through April 30. Supreme Courts in New Jersey, Alaska, Arkansas, Colorado, Florida, Kentucky, Maine, Maryland, Massachusetts, Missouri, North Carolina, Oregon, Pennsylvania, Tennessee, Vermont, and Wyoming have all issued amended orders with dates in the future.

Some courts are leaving their timelines for resuming regular operation less concrete. Courts in South Carolina and Kansas ordered that in-person proceedings and jury trials be suspended until further notice, leaving the date for restarting normal court operations open.

A few states have completely closed courthouses. On April 6, Connecticut’s Judicial Branch announced that all courthouses would close on April 7, and beginning April 14, they will remain closed on Tuesdays and Thursdays until further notice. The Delaware Supreme Court ordered all court facilities closed to the public until April 15.



Justin Walker nominated to U.S. Court of Appeals for the D.C. Circuit

On April 3, President Donald Trump (R) announced that he would nominate Judge Justin Walker to the the U.S. Court of Appeals for the D.C. Circuit to succeed Judge Thomas Griffith. Griffith announced he would retire effective September 1. According to The Washington Post, Walker is the youngest nominee to the D.C. Circuit since 1983.

Walker has been a judge on the U.S. District Court for the Western District of Kentucky since October 2019. He was confirmed on a 50-41 vote. The American Bar Association (ABA) rated Walker not qualified by a substantial majority and qualified by a minority for the district court seat. The ABA rates federal judicial nominees and has done so since 1956. Under each administration except the George W. Bush and Trump administrations, the ABA was granted access to candidate information before the nomination.

Walker was born in 1982 in Louisville, Kentucky. He obtained a B.A., summa cum laude, in political science from Duke University in 2004. He earned a J.D., magna cum laude, from Harvard Law School in 2009. Before joining the Western District of Kentucky, he was an attorney in private practice and a law professor at the University of Louisville Brandeis School of Law. Walker was a law clerk to U.S. Supreme Court Justice Anthony Kennedy from 2011 to 2012 and a law clerk to then-Judge Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit from 2010 to 2011.

The U.S. Court of Appeals for the D.C. Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal courts. The court has 11 authorized judicial posts. Seven of the judges were appointed by Democratic presidents and four were nominated by Republican presidents. Currently, two of the judges were appointed by President Trump.

There is currently one open U.S. Court of Appeals vacancy, on the U.S. Court of Appeals for the 5th Circuit. President Trump said he would nominate Judge Cory Wilson to that seat. In addition to the upcoming vacancy following Griffith’s retirement, there is one other upcoming Court of Appeals vacancy. Judge Ed Carnes on the 11th Circuit is expected to assume senior status on June 30. Andrew Brasher has already been confirmed to succeed him.



Ballotpedia releases federal judicial vacancy count for March

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from March 3, 2020, to April 2, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS
  • Vacancies: There have been three new judicial vacancies since the February 2020 report. There are 75 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, 81 of 890 active federal judicial positions are vacant.
  • Nominations: There have been three new nominations since the February 2020 report.
  • Confirmations: There have not been any new confirmations since the February 2020 report.
New vacancies

There were 75 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.6, which is 0.3 percentage points higher than the vacancy percentage in February 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.
  • 72 (10.6%) 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.

Three judges left active status, creating Article III life-term judicial vacancies. As Article III judicial 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.

  1. Judge James Selna assumed senior status on the U.S. District Court for the Central District of California.
  2. Judge Harry Mattice assumed senior status on the U.S. District Court for the Eastern District of Tennessee.
  3. Judge Carlos Murguia resigned from the U.S. District Court for the District of Kansas.
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 April 2, 2020.

New nominations
President Trump has announced three new nominations since the February 2020 report.
  1. Hala Jarbou, to the U.S. District Court for the Western District of Michigan
  2. Cory Wilson, to the U.S. Court of Appeals for the 5th Circuit
  3. Kristi Haskins Johnson, to the U.S. District Court for the Southern District of Mississippi

Since taking office in January 2017, President Trump has nominated 252 individuals to Article III positions.

New confirmations
Since March 3, 2020, the U.S. Senate has not confirmed any of President Trump’s nominees to Article III seats. As of April 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.


Trump has appointed second-most federal judges through April 1 of a president’s fourth year

Donald Trump has appointed and the Senate confirmed 193 Article III federal judges through April 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 207 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through April 1 of their fourth year in office is 168.

The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 30. Trump appointed the most with 51, while Reagan appointed the least with 25. Trump’s 51 appointments make up 28% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 138. Carter appointed the most with 157, and Reagan appointed the fewest with 103. Trump has appointed 138 district court judges so far. Those appointments make up 20% of the 677 judgeships across the district courts.

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.

Additional reading:


President Trump announces nominee for only open U.S. Circuit Court of Appeals vacancy

On March 30, President Donald Trump (R) announced his intent to nominate Judge Cory Wilson to a seat on the U.S. Court of Appeals for the 5th Circuit. Wilson was previously nominated to a seat on the U.S. District Court for the Southern District of Mississippi. He had a hearing before the Senate Judiciary Committee on January 8 but has not been voted out of committee as of the new appointment.

Currently, Judge E. Grady Jolly’s former seat on the 5th Circuit is the only vacancy on a U.S. Circuit Court of Appeal. Jolly assumed senior status on October 3, 2017. The last time this occurred was in July 1984, when Judge John Butzner’s seat on the 4th Circuit Court of Appeals was the only vacancy.

Wilson is a judge on the Mississippi Court of Appeals. He joined the court in 2019 after being appointed by Governor Phil Bryant (R). Before joining the state court of appeals, Wilson was a Republican representative of District 73 in the Mississippi House of Representatives.

Wilson graduated summa cum laude with a bachelor’s of business administration (B.B.A.) from the University of Mississippi in 1992. He received his J.D. from Yale Law School in 1995. During his legal studies, Wilson served on the Yale Law Journal.

The U.S. Court of Appeals for the 5th Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal courts. The 5th Circuit has jurisdiction over the U.S. District Courts in Louisiana, Mississippi, and Texas.

The court has 17 authorized posts. Eleven of the 16 current judges were appointed by Republican presidents. Five judges were appointed by Democratic presidents. President Trump nominated five of the 16 current judges.

There are two upcoming Court of Appeals vacancies. Andrew Brasher was already confirmed to succeed Judge Ed Carnes on the 11th Circuit. Carnes is expected to assume senior status on June 30. Judge Thomas Griffith announced he would retire from the District of Columbia Circuit on September 1. There is no nominee pending for Griffith’s seat.

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Fifth Circuit upholds limits on presidential removal power over CFPB head

A panel of judges on the U.S. Court of Appeals for the Fifth Circuit decided 2-1 to uphold the structure of the Consumer Financial Protection Bureau (CFPB). The court’s March 3 opinion said that the legal restrictions on the president’s authority to remove the head of the agency were “valid and constitutional.”

Judge Stephen Higginson, an Obama appointee, delivered the opinion of the court, saying that “neither the text of the Constitution nor the Supreme Court’s previous decisions” support the argument that the CFPB has an unconstitutional structure.

Judge Patrick Higginbotham, a Reagan appointee, wrote a concurring opinion joined by Higginson, arguing that the president may still exert authority over the CFPB through the Financial Stability Oversight Council, which can veto CFPB rules. He said that the U.S. Supreme Court has approved presidential removal power restrictions similar to those protecting the head of the CFPB.

Judge Jerry Edwin Smith, a Reagan appointee, filed a dissenting opinion, arguing that recent Fifth Circuit precedent suggested that the structure of the CFPB was unconstitutional.

The appointment and removal power refers to the authority of an executive to appoint and remove officials in the various branches. The Appointments Clause of the United States Constitution vests the president with the authority to appoint officers of the United States, including federal judges, ambassadors, and Cabinet-level department heads. The president has the authority to remove his appointees from office, but the heads of independent federal agencies can only be removed for cause.

The Fifth Circuit published its decision on the same day the U.S. Supreme Court heard oral argument in another case challenging the structure of the CFPB,  Seila Law v. Consumer Financial Protection Bureau. A U.S. Supreme Court decision that the U.S. Constitution forbids protecting the director of the CFPB from presidential removal might give the president more control of other leaders of independent administrative agencies. Also, CFPB decisions made under a director with removal protections might become invalid following the ruling.

Click here to read the Fifth Circuit decision and here to learn more about Seila Law v. Consumer Financial Protection Bureau.

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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



U.S. Senate confirms nominee to District Court of Puerto Rico

Photo credit: Andrew Shiva / Wikipedia

The U.S. Senate has confirmed Silvia Carreño-Coll to the U.S. District Court for the District of Puerto Rico on a 96-0 vote. Overall, 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.

Carreño-Coll was a federal magistrate judge for the District of Puerto Rico from 2011 to 2020. Before that, she was associate regional counsel in the Environmental Protection Agency’s Caribbean Environmental Protection Division (1995-2011), an assistant U.S. attorney in the District of Puerto Rico (1989-1995), and an attorney in the Puerto Rico Department of Justice (1986-1989). Carreño-Coll earned her B.A., cum laude, from Emerson College in 1983 and her J.D., cum laude, from the University of Puerto Rico School of Law in 1986.

Carreño-Coll succeeded Judge Jay Garia-Gregory, who assumed senior status on September 30, 2018. After Carreño-Coll received commission, the U.S. District Court for the District of Puerto Rico had five Republican-appointed judges, two Democrat-appointed judges, and no vacancies.

The U.S. District Court for the District of Puerto Rico is one of 94 U.S. District Courts. They are the general trial courts of the United States federal court system.

Click here to learn more about Silvia Carreno-Coll

Additional reading:
United States District Court for the District of Puerto Rico
United States District Court
Federal judicial appointments by president
Federal judges nominated by Donald Trump



Senate confirms four district court nominees; Trump appointments reach 192

The U.S. Senate confirmed four nominees to U.S. District Court judgeships. The Senate has confirmed 192 of President Trump’s Article III judicial nominees—two Supreme Court justices, 51 appellate court judges, 137 district court judges, and two U.S. Court of International Trade judges—since January 2017.

The confirmed nominees are:

  • Philip Halpern, confirmed to the U.S. District Court for the Southern District of New York. Halpern was confirmed on a 77-19 vote. Sen. Kirsten Gillibrand (D-N.Y.), one of Halpern’s home-state senators, voted against his confirmation. After Halpern receives his judicial commission and takes his judicial oath, the court will have three vacancies, 19 Democrat-appointed judges, and six Republican-appointed judges.
  • John Kness, confirmed to the U.S. District Court for the Northern District of Illinois. Kness was confirmed on an 81-12 vote. After he receives his judicial commission and takes his judicial oath, the court will have two vacancies, 13 Democrat-appointed judges, and seven Republican-appointed judges.
  • Matthew Schelp, confirmed to the U.S. District Court for the Eastern District of Missouri. Schelp was confirmed on a vote of 72-23. After he receives his judicial commission and takes his judicial oath, the court will have no vacancies, five Democrat-appointed judges, and four Republican-appointed judges.
  • Joshua Kindred, confirmed to the U.S. District Court for the District of Alaska. Kindred was confirmed on a 54-41 vote where Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona joined 52 Republicans to confirm the nominee. After he receives his judicial commission and takes his judicial oath, the court will have no vacancies, one Democrat-appointed judge, and two Republican-appointed judges.

There are 94 U.S. District Courts. They are the general trial courts of the United States federal court system.

Click here to learn more.

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President Trump announces intent to nominate two Article III judgeships in New York

On February 12, 2020, President Donald Trump (R) announced his intent to nominate Jennifer Rearden to the U.S. District Court for the Southern District of New York and Saritha Komatireddy to the U.S. District Court for the Eastern District of New York.

Following nomination by the president, a federal judicial nominee completes a questionnaire that is reviewed by the Senate Judiciary Committee. The committee then holds a hearing to question the nominee regarding their judicial philosophy and their previous rulings. The committee also sends the nominee’s home state senators a blue slip, permitting them to express their approval or disapproval of the nominee.

After the hearing, the committee votes to approve or return the nominee. If approved, the nominee is reported to the full Senate for a vote. If returned, the president may renominate the person. If the Senate confirms the nomination, the individual receives commission to serve as a federal judge for a life term. If the individual is not confirmed, they do not become a judge.

The U.S. District Courts for the Eastern and Southern Districts of New York are two of 94 U.S. District Courts. They are the general trial courts of the United States federal court system.

The president has announced 245 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018.

Click here to learn more.

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