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Ballotpedia releases federal judicial vacancy count for April

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from April 3, 2020, to May 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.
HIGHLIGHTS
• Vacancies: There have been two new judicial vacancies since the March 2020 report. There are 77 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, 83 of 890 active federal judicial positions are vacant.
• Nominations: There have been three new nominations since the March 2020 report.
• Confirmations: There have not been any new confirmations since the March 2020 report.
New vacancies
There were 77 vacancies (8.9%) out of 870 active Article III judicial positions.
• 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.
• 74 (11.0%) 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.
Two 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 Karon Bowdre assumed senior status on the U.S. District Court for the Northern District of Alabama.
2. Judge Liam O’Grady assumed senior status on the U.S. District Court for the Eastern District of Virginia.
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 May 1, 2020.
New nominations
President Trump has announced three new nominations since the March 2020 report.
1. Justin Walker, to the U.S. Court of Appeals for the D.C. Circuit
2. Aileen Cannon, to the U.S. District Court for the Southern District of Florida
3. Dirk Paloutzian, to the U.S. District Court for the Eastern District of California
Since taking office in January 2017, President Trump has nominated 255 individuals to Article III positions.
New confirmations
Since April 2, 2020, the U.S. Senate has not confirmed any of President Trump’s nominees to Article III seats. As of May 1, 2020, the Senate has confirmed 194 of President Trump’s judicial nominees—139 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.


SCOTUS issues opinions in cases concerning immigration, trademark use, and the Clean Water Act (CWA)

On April 23, the Supreme Court of the United States (SCOTUS) issued rulings in three cases argued during its October Term 2019-2020.

1. Barton v. Barr, a case that concerned immigration law, originated from the U.S. Court of Appeals for the 11th Circuit and was argued on November 4, 2019.

  • The issue: “Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] … inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(l).”
  • The outcome: The court affirmed the decision of the 11th Circuit in a 5-4 ruling, holding that for purposes of cancellation-of-removal eligibility, a §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal

2. County of Maui, Hawaii v. Hawaii Wildlife Fund, a case that concerned the Clean Water Act (CWA), originated from the 9th Circuit and was argued on November 6, 2019.

  • The issue: “Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”
  • The outcome: The court vacated and remanded the 9th Circuit’s decision in a 6-3 ruling. The court held “a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.” In the majority opinion, Justice Stephen Breyer wrote that the 9th Circuit’s holding was too broad, while the petitioner’s argument was too narrow.

3. Romag Fasteners v. Fossil, a case that concerned trademark law, originated in the Federal Circuit and was argued on January 14, 2020.

  • The issue: “Whether, under section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of section 43(a), id. § 1125(a).”
  • The outcome: The court vacated and remanded the decision of the Federal Circuit in a 9-0 ruling, holding that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a pre-condition to a profits award.

As of April 23, 2020, the court had issued decisions in 26 cases this term. Between 2007 and 2018, SCOTUS released opinions in 924 cases, averaging between 70 and 90 cases per year.

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SCOTUS issues opinions in three cases

The U.S. Supreme Court issued decisions in three cases on April 20 during its October 2019 term.

1. Ramos v. Louisiana originated from the Louisiana 4th Circuit Court of Appeal and was argued on October 7, 2019. It concerned the right to a unanimous verdict in a jury trial.

  • The issue: “Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?”
  • The outcome: The court reversed the Louisiana 4th Circuit Court of Appeal’s decision in a 6-3 ruling, holding “if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.” In its ruling, the U.S. Supreme Court overruled a 1972 SCOTUS case, Apodaca v. Oregon.

2. Atlantic Richfield Co. v. Christian originated from the Montana Supreme Court and was argued on December 3, 2019. It concerned the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980.

  • The issues:
    • “Whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA-ordered remedies is a “challenge” to EPA’s cleanup jurisdictionally barred by § 113 of CERCLA.
    • Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval under CERCLA § 122(e)(6) before engaging in remedial action, even if EPA has never ordered the landowner to pay for a cleanup.
    • Whether CERCLA preempts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.”
  • The outcome: The court affirmed in part and vacated in part the Montana Supreme Court’s decision and remanded the case. In a 7-2 ruling, the court held the Montana Supreme Court was wrong to rule that “the landowners were not potentially responsible parties under the Act and thus did not need EPA approval to take remedial action.”

3. Thryv, Inc. v. Click-To-Call Technologies, LP originated in the Federal Circuit and was argued before the court on December 9, 2019. It concerned judicial review of agency decisions.

  • The issue: “Whether 35 U.S.C. § 314(d) permits appeal of the [Patent Trial and Appeal Board]’s decision to institute an inter partes review upon finding that § 315(b)’s time bar did not apply.”
  • The outcome: The court vacated and remanded the Federal Circuit’s decision in a 7-2 ruling. The court held that the Leahy-Smith America Invents Act (AIA) prevents courts from reviewing certain agency processes related to patents. It held that courts may not review the interpretation of a law governing time limits for certain patent reviews made by the U.S. Patent and Trade Office.


Federal judge orders transfer of some inmates from federal prison

On April 22, U.S. District Court Judge James Gwin for the Northern District of Ohio ordered the transfer or release of certain vulnerable inmate populations from Elkton prison, a federal prison in Ohio, due to the coronavirus pandemic.

Inmates who are older with underlying health conditions are considered for transfer out of the prison through, but not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. Those who are deemed ineligible, but are still vulnerable, will be transferred to another Bureau of Prisons facility where measures, such as testing and social distancing, can be taken.

Ballotpedia is tracking how state and local governments are responding to the coronavirus pandemic within the prison system.

Other recent updates include:
Massachusetts – According to a new report ordered by the Massachusetts Supreme Judicial Court, 637 inmates have been released from state prisons and county jails since April 5, following the courts April 3 order.



Federal court dismisses challenge to Trump regulatory budget executive order

On April 2, a federal judge ruled that a group of states lacked standing to challenge Executive Order 13771, which established a regulatory budget including a requirement that agencies eliminate two old regulations for each new regulation issued.

Judge Randolph D. Moss, an Obama appointee serving on the United States District Court for the District of Columbia, dismissed the lawsuit brought by California, Oregon, and Minnesota. He argued that the states failed to show that the order “has caused, or is likely to cause, a material delay or the repeal of any of the specific rules at issue.” Without tying the executive order to a delay in rules that caused harm to the states, Moss held that the lawsuit could not continue.

The states had argued that the executive order violated separation of powers principles, the Take Care Clause of the U.S. Constitution, and the Administrative Procedure Act (APA). They claimed that the executive order affected four different agency rules in a way that would cause the states harm. Judge Moss said, “with respect to each of the four regulatory inactions or actions at issue, Plaintiffs cannot show that any material delay in action or any agency action was caused by the Executive Order.”

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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.

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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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