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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.

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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.

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Senate confirms sixth Trump nominee to the 11th Circuit Court of Appeals

The U.S. Senate has confirmed Andrew Brasher to the U.S. Court of Appeals for the 11th Circuit on a 52-43 vote. Overall, the Senate has confirmed 188 of President Trump’s Article III judicial nominees—two Supreme Court justices, 51 appellate court judges, 133 district court judges, and two U.S. Court of International Trade judges—since January 2017. Brasher is the first Article III judge the Senate has confirmed in 2020.

Brasher is a judge on the U.S. District Court for the Middle District of Alabama. President Trump nominated Brasher to that court in 2018 and he was confirmed in 2019. From 2014 to 2019, Brasher was the solicitor general of Alabama. He received his B.A., summa cum laude, from Samford University in 2002 and his J.D., cum laude, from Harvard Law School in 2006. Brasher was a member of the Harvard Law Review from 2004 to 2006.

Sen. Doug Jones (D-Ala.) voted against Brasher’s confirmation to the U.S. Court of Appeals for the 11th Circuit. Sen. Richard Shelby (R-Ala.) voted in favor of the confirmation. Jones and Shelby are the U.S. senators from Brasher’s home state.

When Brasher receives commission, he will succeed Judge Ed Carnes, who will assume senior status upon Brasher’s swearing-in. At that time, the court will have no vacancies, seven Republican-appointed judges, and five Democrat-appointed judges.

The 11th Circuit was the third appellate court to change from a majority of Democrat-appointed judges to Republican-appointed judges since President Trump took office. The change took place when Judges Robert Luck and Barbara Lagoa received commission. The 2nd and 3rd Circuits also changed from majority Democrat-appointed to majority Republican-appointed judges during the Trump administration.

There are 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system.

Additional reading:
United States Court of Appeal  for the 11th Circuit
United States Court of Appeals
Federal judicial appointments by president 
Federal judges nominated by Donald Trump



Ballotpedia releases federal judicial vacancy count for January

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from January 3, 2020, to February 3, 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 December 2019 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 has been one new nomination since the December 2019 report.
  • Confirmations: There have not been any new confirmations since the December 2019 report.
New vacancies 

There were 75 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.6, which is .3 percentage points higher than the vacancy percentage in December 2019.

  • The nine-member U.S. Supreme Court does not have any vacancies.
  • One (0.6%) of the 179 U.S. Appeals Court positions are 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.

  • Judge Christopher Boyko assumed senior status on the United States District Court for the Northern District of Ohio.
  • Judge Dora Irizarry assumed senior status on the United States District Court for the Eastern District of New York.
  • Judge Lawrence O’Neill assumed senior status on the United States District Court for the Eastern District of California.
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 February 3, 2020.

New nominations

President Donald Trump (R) has announced one new nomination since the December 2019 report.

  • Drew Tipton, to the U.S. District Court for the Southern District of Texas.

Since taking office in January 2017, President Trump has nominated 239 individuals to Article III positions.

New confirmations

Since January 3, 2020, the United States Senate did not confirm any of President Trump’s nominees to Article III seats. As of February 3, 2020, the Senate has confirmed 187 of President Trump’s judicial nominees—133 district court judges, 50 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

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No Article III federal judges confirmed in January; Trump has appointed second-most through third year of a presidency

Donald Trump appointed and the Senate confirmed 187 Article III federal judges through February 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 Theodore Roosevelt. Only Jimmy Carter (197) had more.

The average number of federal judges appointed by a president at the end of their third year in office is 99.

The median number of Supreme Court justices appointed is two. William Taft’s (R) five appointments were the most among this set. Presidents Franklin Roosevelt (D), Jimmy Carter (D), and George W. Bush (R) did not appoint any justices through at the end of their third years in office. Trump has appointed 2 justices so far.

The median number of United States Court of Appeals appointees is 19. Trump appointed the most with 50, and Presidents Woodrow Wilson (D) and Warren Harding (R) appointed the fewest with six. Trump’s 50 appointments make up 28 percent of the total 179 judgeships across the courts of appeal.The median number of United States District Court appointees is 67. Bill Clinton (D) appointed the most with 151, and President Theodore Roosevelt (R) appointed the fewest with 14. Trump has appointed 133 district court judges so far. Those appointments make up 20 percent 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.

Click here to learn more about federal judicial appointments by president.
Click here to learn more about judges appointed by Pres. Donald Trump.


Justice Neil Gorsuch argues against nationwide injunctions

U.S. Supreme Court Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion to a recent case arguing that lower courts often abuse their judicial powers when they issue nationwide injunctions. Gorsuch ended his opinion saying he hoped that the U.S. Supreme Court would resolve questions about the rise of nationwide injunctions.

The U.S. Supreme Court’s January 27 order granted the stay of an injunction that had blocked the U.S. Department of Homeland Security (DHS) from enforcing a new rule. The rule allows the federal government to deny immigrants a visa or a green card if they rely on government services.

In his opinion concurring in the decision, Justice Gorsuch argued that “universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.” He also claimed that when a court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.”

Gorsuch further argued that a judicial system that produces frequent nationwide injunctions might prevent any new federal policy from going into effect. He wrote, “If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice.”

Learn more about Neil Gorsuch or the U.S. Supreme Court.

Additional reading:

Article III, United States Constitution

Click here to read the U.S. Supreme Court order.


Washington Supreme Court Justice Wiggins to retire, governor to select replacement

Justice Charles Wiggins
Photo credit: Charles Wiggins

Washington Supreme Court Justice Charles K. Wiggins is retiring at the end of March 2020. In a prepared statement, Wiggins said he wished to spend more time with his wife, Nancy, and his family.

Wiggins was elected to the state supreme court in 2010 and re-elected in 2016. He was previously a Division 2 judge of the Washington Court of Appeals and served as a pro tem judge in the Jefferson County and King County superior courts and as a pro tem district court judge in Kitsap County. He also worked in private practice. Wiggins earned his undergraduate degree from Princeton University, where he graduated magna cum laude. He served in the Army Military Intelligence Corps for four years after graduating from Princeton. During that time, he obtained his master’s degree in business administration from the University of Hawaii. He then obtained his J.D. from Duke Law School in 1976.

In the event of a midterm vacancy, selection of state supreme court justices in Washington occurs through gubernatorial appointment. Wiggins’ replacement will be Governor Jay Inslee’s (D) third nominee to the nine-member court. Newly appointed justices serve until the next general election, at which point they may run to serve for the remainder of the predecessor’s term. Wiggins’ seat will appear on the ballot in a nonpartisan election on November 3, 2020. Candidates will run to finish the last two years of his term, set to expire on January 8, 2023.

The nine justices of the supreme court compete in contested elections without reference to party affiliation and must run for re-election when their terms expire. Supreme court justices serve for six years.

The Washington State Supreme Court is the state’s court of last resort. It currently includes the following justices:

• Charles Johnson – Elected in 1990
• Barbara Madsen – Elected in 1992
• Susan Owens – Elected in 2000
• Charlie Wiggins – Elected in 2010
• Sheryl Gordon McCloud – Elected in 2012
• Steven Gonzalez – Appointed by Gov. Christine Gregoire (D)
• Debra Stephens – Appointed by Gov. Gregoire
• Raquel Montoya-Lewis – Appointed by Gov. Jay Inslee (D)
• Mary Yu – Appointed by Gov. Inslee

In 2020, there have been six supreme court vacancies in five of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Three vacancies are in states where a Democratic governor appoints the replacement. The other three are in states where a Republican governor appoints the replacement.

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Additional reading:
State supreme court vacancies, 2020
Washington State Supreme Court
Charlie Wiggins
Judicial selection in Washington



Univ. of Washington employee sues SEIU over membership opt-out provisions

On Jan. 20, an employee of the University of Washington filed a class-action lawsuit in U.S. District Court, alleging that her union, Service Employees International Union (SEIU) 925, had unconstitutionally barred her and other employees from opting out of union membership.

Who are the parties to the suit? The lead plaintiff is Charlene Wagner, a fiscal specialist for the state university system. She is represented by the Freedom Foundation, a nonprofit think tank and litigation firm whose self-described mission is “to advance individual liberty, free enterprise, and limited, accountable government.” The Freedom Foundation is currently involved in approximately 60 lawsuits concerning public-sector union practices in the aftermath of Janus v. AFSCME. The main defendant is Service Employees International Union (SEIU) 925, which represents about 17,000 education workers in Washington, making it one of the largest public-sector unions in the state. The University of Washington is also named as a defendant.

What is at issue? In October 2018, Wagner sought to opt-out of union membership and cancel her dues deduction authorization. SEIU 925 informed her that the membership agreement she had signed limited opt-outs to an annual two-week period (in this case, from April 29, 2019, to May 14, 2019).

Wagner and her attorneys argue that “dues are being seized under an unconstitutional [state] law that gives the union sole discretion over who the university – a state actor – is and isn’t authorized to deduct dues from.” They also allege that “a union cannot impose an irrevocability provision, containing a narrow opt-out window, on union nonmembers without a knowing First Amendment waiver.”

What are the reactions? In a press release, Freedom Foundation Senior Litigation Counsel James Abernathy said, “The whole point of Janus is to protect the First Amendment rights of public employees to not support a labor union. State laws that try to limit those rights are unconstitutional regardless of whether they were passed before or after Janus. … We shouldn’t have to keep relitigating the same issues, but SEIU 925 apparently believes it can disregard laws it doesn’t like.”

As of Jan. 24, neither SEIU 925 nor the University of Washington have commented publicly on the suit.

What comes next? The suit was filed in the U.S. District Court for the Western District of Washington. It has been assigned to Judge Barbara Rothstein. Rothstein was first appointed to the federal bench by President Jimmy Carter (D). The case name and number are Wagner v. University of Washington (2:20-cv-00091).

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Additional reading:
Janus v. AFSCME
Public sector union policy in the United States, 2018-present



10th Circuit hears oral argument in case challenging ATF bump stock ban

The United States Court of Appeals for the 10th Circuit on January 22 heard oral argument in Aposhian v. Barr, a case claiming that the U.S. Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) violated Article I of the U.S. Constitution when they issued a 2018 rule redefining bump stocks as “machineguns.” By issuing a rule that rewrote federal statute, the plaintiffs argued, the department created a new criminal prohibition beyond the scope of its delegated authority.

DOJ and ATF issued the rule in response to a February 2018 presidential memorandum—an official document that allows the president to manage the federal government—signed by President Donald Trump (R). The memorandum directed the U.S. attorney general to propose a rule banning all devices that turn legal weapons into machineguns.

The New Civil Liberties Alliance (NCLA), a pro bono law firm with a focus on the administrative state, argued that the department lacked the authority to issue the rule because Congress had not delegated power to the attorney general to interpret the scope of the criminal prohibition on machinegun possession. NCLA further contended that the law defining machineguns is unambiguous and, therefore, not open to a new agency interpretation. Since Article I of the U.S. Constitution grants all legislative powers to Congress, argued NCLA, Congress itself must act to change the definition of machineguns to include bump stocks.

Delegate, in this context, means to entrust or hand over authority to another branch of government. Congress sometimes delegates questions requiring subject-matter expertise to agency administrators in order to implement the law. While some scholars support delegation, others argue that legislative authority is vested in Congress alone and cannot be delegated to other branches—a principle known as the nondelegation doctrine.

To learn more about delegation or the NCLA, see here:
Nondelegation doctrine
New Civil Liberties Alliance

Additional reading:
U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives
United States Court of Appeals for the Tenth Circuit
Federal Register 
Final rule
Kisor v. Wilkie 



U.S. Supreme Court accepts three new cases for October 2019-2020 term

On January 17, the U.S. Supreme Court agreed to hear three new cases during its October 2019-2020 term: Ford Motor Company v. Montana Eighth Judicial District Court (consolidated with Ford Motor Company v. Bandemer), Chiafalo v. Washington (consolidated with Colorado Department of State v. Baca), and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (consolidated with Trump v. Pennsylvania). As of January 21, the court had agreed to hear 73 cases this term.

In the consolidated case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania / Trump v. Pennsylvania, the Trump administration issued regulations allowing for exceptions to the federal mandate to include contraceptive coverage in health insurance plans, following several years of litigation including two U.S. Supreme Court decisions regarding regulatory accommodations for religious and moral objections to mandatory contraceptive coverage in Obamacare.

The U.S Court of Appeals for the Third Circuit upheld a nationwide injunction that kept the rules from going into effect. It held that the states challenging the rules were likely to succeed in proving that the Trump administration violated the Administrative Procedure Act (APA), that Obamacare did not allow the regulations, and that the Religious Freedom Restoration Act (RFRA) did not require them.

The Little Sisters of the Poor Saints Peter and Paul Home appealed to the U.S. Supreme Court, arguing that the 3rd Circuit was wrong to deny the organization standing to appeal its decision against the contraceptive mandate exemption rules, that the 3rd Circuit’s decision creates a regulatory environment that violates the RFRA, and that the agencies did not violate the APA when they crafted exemptions to Obamacare’s contraception mandate.

The issues in the case are:
1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court.
2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.

In the consolidated case of Ford Motor Company v. Montana Eighth Judicial District Court / Ford Motor Company v. Bandemer, Ford vehicles were driven in car accidents. In Ford Motor Company v. Bandemer, a passenger sustained a severe brain injury and filed a claim against Ford for vehicle defects while alleging that the passenger-side airbag failed to deploy. In Ford Motor Company v. Montana Eighth Judicial District Court, a Ford vehicle’s tire experienced a tread/belt separation, the car lost stability and rolled into a ditch, and the driver died in the crash. A personal representative filed claims against Ford for liability and negligence.

Ford moved to dismiss both cases in their respective state district courts, citing a lack of personal jurisdiction. In both cases, Ford’s motions were denied. On appeal in both cases, the state courts of appeal affirmed the rulings of the district courts. Ford appealed the cases to the state supreme courts, which affirmed the rulings of the courts of appeal. On September 18, 2019, Ford petitioned the U.S. Supreme Court for review of both cases.

The issue in the case is: Whether the “arise out of or relate to” requirement of the Fourteenth Amendment’s due process clause permits a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.

In the consolidated case of Chiafalo v. Washington / Colorado Department of State v. Baca, state-appointed presidential electors voted contrary to their respective state’s laws requiring that they cast their electoral college ballots for the winner of the popular vote. The electors were then penalized by their respective states.

The electors appealed the penalties, challenging their constitutionality. In Colorado Department of State v. Baca, the federal circuit court affirmed in part and reversed in part the findings of the district court and remanded the case. In Chiafalo v. Washington, the state supreme court affirmed the ruling of the trial court.

In October 2019, the Colorado State Department and the appellants in Chiafalo v. Washington filed petitions for review with the U.S. Supreme Court.

The issues in the case are:
1. Whether enforcement of state laws threatening penalization for presidential electors who cast electoral college ballots contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot,
2. Whether a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment,
3. And whether Article II or the Twelfth Amendment forbids a state from requiring presidential electors to follow the state’s popular vote when casting electoral college ballots.

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Additional reading:
Chiafalo v. Washington
Ford Motor Company v. Montana Eighth Judicial District Court
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania 



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