TagJudicial appointments

President Biden has announced 10 nominations for Article III judgeships

President Joe Biden (D) has announced his intent to nominate 10 individuals to Article III courts for lifetime judgeships as of April 1. As of this writing, the official nominations have not yet been submitted to the U.S. Senate. 

For comparison with the previous administration, President Donald Trump (R) made his first Article III judicial nomination by February 1, 2017, when he nominated Neil Gorsuch to the Supreme Court of the United States (SCOTUS). Trump’s first successful appointment–where the nominee was confirmed–occurred by May 1 of his first year, when Gorsuch was confirmed to SCOTUS.

Since 1901, the earliest successful Article III appointment, meaning the nominee was confirmed, was made by President Richard Nixon (R). Nixon appointed a federal district judge by March 1 of his first year in office. Three presidents–Theodore Roosevelt (R), Calvin Coolidge (R), and Gerald Ford (R)–made the fewest with zero judicial appointments during their first year in office.

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.

As of this writing, there were 73 current vacancies in the federal judiciary of 870 total Article III judgeships. Including non-Article III judges from the U.S. Court of Federal Claims and the United States territorial courts, there were 77 vacancies out of 890 active federal judicial positions.

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New Jersey Governor announces nomination of state supreme court justice

New Jersey Governor Phil Murphy (D) announced on March 15 that he would nominate Rachel Wainer Apter to the New Jersey Supreme Court. She will replace Justice Jaynee LaVecchia, who is retiring on Aug. 31.

Wainer Apter has served as a director with the New Jersey Division on Civil Rights, a counsel to the New Jersey Attorney General, and an attorney with the American Civil Liberties Union. From 2011 to 2012, Wainer Apter was a law clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg and has also clerked for federal judges Robert Katzmann and Jed Rakoff.

State law requires supreme court nominees to pass the “advice and consent” of the state Senate one week after the governor issues a public notice of the nomination. 

This is Gov. Murphy’s second nominee to the seven-member supreme court. The court will switch from a 4-3 majority of justices appointed by Republican governors to a 4-3 majority of justices appointed by Democratic governors. According to state law, the New Jersey governor may appoint justices to have up to a one-seat partisan advantage on the court, but he or she may go no further than that.

Twenty-six state supreme courts have Republican majorities, 16 have Democratic majorities, and eight have split or indeterminate majorities.

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Biden made no federal judicial appointments through March 1, same as previous administrations

President Joe Biden (D) has not yet made any Article III federal judicial appointments through March 1 of his first year in office. This is equal to the number of Article III judicial appointments through this point in all presidencies since President Ronald Reagan (R). 

Both the average and median numbers of federal judges appointed by a president through March 1 of their first year in office are zero.

Since 1981, during a president’s first year in office: 

• The average number of Supreme Court justices appointed is one. Presidents Donald Trump (R), Barack Obama (D), Bill Clinton (D), and Reagan each appointed one Supreme Court justice.

• The average number of United States Court of Appeals judges appointed is six. Trump appointed the most with 12, and Clinton and Obama are tied for appointing the fewest with three.

• The average number of United States District Court judges appointed is 17. Reagan appointed the most, 32, and Trump appointed the fewest with six.

• Reagan had appointed the most Article III federal judges during his first year in office with 41, while Obama had appointed the fewest in that time with 13. 

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 Biden has not made any federal judicial appointments through February 1 of his first year in office

As of February 1, 2021, President Joe Biden (D) had not appointed any Article III federal judges. The average number of federal judges appointed by a president through February 1 of their first year in office is zero. 

Through the first year in office, President Ronald Reagan (R) made the most appointments with 41, and President Barack Obama (D) made the fewest with 13.

Through the fourth year in office, President Donald Trump (R) made the most appointments with 234. President Ronald Reagan (R) made the fewest in that time with 166.

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.

Upon assuming office, President Biden inherited 46 Article III lifetime federal judicial vacancies. As of February 1, there were 57 vacancies. 

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U.S. Senate returns 37 federal judicial nominations to president

On January 3, 2021, the United States Senate returned the nominations of 37 individuals to the president at the sine die adjournment of the 116th Congress. On the same day, President Donald Trump (R) resubmitted 17 judicial nominations to the Senate. 

The list of returned nominations included 22 nominees for the U.S. district courts, three nominees for the Court of Federal Claims, one for the Court of International Trade, one for the United States Tax Court, two for the District of Columbia Court of Appeals, one for the District Court of Guam, and seven for the Superior Court of the District of Columbia.

At the adjournment of the 116th Congress on January 3, seven of the nominees were awaiting a full Senate vote, one was awaiting a vote in the Senate Judiciary Committee, and 29 were awaiting a committee hearing.

Any renominations are referred to the Senate Judiciary Committee. The committee may choose not to hold additional hearings for nominees who already received a hearing in the previous Congress. As such, the renominations are expected to continue in the confirmation process where they left off at the end of the 116th Congress.

The U.S. Senate has confirmed 234 of President Trump’s Article III judicial nominees—174 district court judges, 54 appeals court judges, three Supreme Court justices, and three international trade judges—since January 2017.



Trump has appointed second-most federal judges through December 31 of a president’s fourth year

Donald Trump has appointed and the U.S. Senate has confirmed 234 Article III federal judges through December 31, 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 261 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through December 31 of their fourth year in office is 205.

The median number of Supreme Court justices appointed is two. President Donald Trump (R) has appointed three Supreme Court justices. 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 35. Carter appointed the most with 56, and Presidents Clinton and Obama appointed the fewest with 30 each. Trump’s 54 appointments make up 30.2% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 168. Carter appointed the most with 202, and President Reagan appointed the fewest with 129. Trump has appointed 174 district court judges so far. Those appointments make up 25.7% of the 678 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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SCOTUS issues ruling in case concerning Delaware’s method of judicial selection

On December 11, 2020, the Supreme Court of the United States issued a unanimous ruling in the case Carney v. Adams. The case originated from the U.S. Court of Appeals for the 3rd Circuit and concerned judicial selection in Delaware. The case was argued during the court’s October Term for 2020-2021 on October 5, 2020.

The case: As of December 2019, when Delaware Governor John Carney Jr. (D) filed a petition before the U.S. Supreme Court, Article IV, Section 3 of the Delaware Constitution required that no more than the bare majority of judges on a given Delaware court could be of the same political party. 

James Adams, a retired lawyer, sued Gov. Carney in federal district court. Adams argued Article IV, Section 3 violated the First Amendment. In response, Carney argued that Adams did not have the legal right, or standing, to file a lawsuit. A federal magistrate judge ruled the state constitution’s provision was unconstitutional. On appeal, the U.S. Court of Appeals for the 3rd Circuit affirmed in part and reversed in part the federal district court’s ruling. 

Gov. Carney, acting in his official capacity, filed a petition with the U.S. Supreme Court, arguing the 3rd Circuit’s decision conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit.

The issues: 

(1) Does the First Amendment invalidate the Delaware Constitution’s “bare majority” requirement? 

(2) Was the 3rd Circuit wrong to hold that part of the Delaware Constitution’s “bare majority” requirement is not severable from the rest of the requirement? 

(3) Does the respondent have standing?

The outcome: The court vacated the 3rd Circuit’s decision in an 8-0 ruling, holding that James Adams, the respondent, did not have standing to sue the governor of Delaware. Justice Stephen Breyer wrote the opinion and Justice Sonia Sotomayor filed a concurring opinion. Justice Amy Coney Barrett did not take part in the case’s consideration or decision.

As of December 14, 2020, the court had issued opinions in nine cases this term. Four cases were decided without argument.

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Georgia governor appoints LaGrua to state supreme court

Georgia Gov. Brian Kemp (R) appointed Shawn LaGrua to the Georgia Supreme Court on December 1, 2020. LaGrua succeeded Justice Keith Blackwell, who retired on November 18, 2020. LaGrua is Kemp’s second nominee to the nine-member supreme court.

Under Georgia law, state supreme court justices are selected through nonpartisan elections. Justices serve six-year terms. Vacancies on the court are filled through the assisted appointment method. The governor chooses an appointee from a list of candidates submitted by the judicial nominating commission. 

Before her appointment to the state supreme court, LaGrua was a judge for the Atlanta Judicial Circuit of Georgia’s 5th Superior Court District. She joined the court in 2010. Before that, she was the inspector general for the Georgia Secretary of State’s Office.

LaGrua earned a B.A. in political science from the University of Georgia in 1984, and received her J.D. from Georgia State University College of Law in 1987.

The Georgia Supreme Court is the state’s court of last resort. As of December 10, 2020, eight judges on the court were appointed by a Republican governor, no judges were appointed by a Democratic governor, and one judge was elected.

In 2020, there have been 23 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, another occurred when a justice was not retained, and 21 vacancies were caused by retirements.

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Colorado governor appoints Maria Berkenkotter to state supreme court

Photo of Colorado State Supreme Court building

Colorado Gov. Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter will succeed Chief Justice Nathan Coats, who is retiring in January 2021 when he reaches the mandatory retirement age of 72. Berkenkotter is Polis’s first nominee to the seven-member supreme court.

Under Colorado law, state supreme court justices are selected through the assisted appointment method. The governor chooses an appointee from a list of candidates submitted by the judicial nominating commission. Initial terms on the supreme court last at least two years, after which justices stand in retention elections. Subsequent terms last 10 years.

Berkenkotter was a judge for the Twentieth Judicial District Court in Colorado from 2006 to 2017. She was appointed by former Governor Bill Owens (R) and became chief judge in 2013. 

Prior to joining the Twentieth Judicial District Court, Berkenkotter ran the Antitrust, Consumer Protection, and Tobacco Litigation Units of the Attorney General’s office. Previously, she practiced law at Holmes & Starr, P.C. in Denver.

Berkenkotter earned a J.D. from the University of Denver Law School in 1987. 

The Colorado Supreme Court is the state’s court of last resort. As of November 2020, six judges on the court were appointed by a Democratic governor, and one judge was appointed by a Republican governor.

In 2020, there have been 22 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 21 vacancies were caused by retirements.

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New York Court of Appeals Justice Eugene Fahey announces retirement

On November 10, 2020, State of New York Court of Appeals Justice Eugene Fahey announced his retirement from the court, scheduled for December 31, 2021, when he reaches the court’s mandatory retirement age of 70 years old.

Justice Fahey joined the State of New York Court of Appeals in 2015. He was appointed to the court by Gov. Andrew Cuomo (D).

Before serving on the state supreme court, Fahey served on the New York Supreme Court, Appellate Division from December 22, 2006, until 2015. He served on the court’s Criminal Division in 2005. Fahey was elected to the State Supreme Court in 1996, where he also presided over cases in Erie County and the 8th Judicial District. He served on the court until 2005. Fahey was elected to the Buffalo City Court in 1994 and served until 1996. He served as a law clerk to Judge Edgar C. NeMoyer in the New York Court of Claims before entering private practice in 1985, where he served as house counsel for Kemper Insurance Company until 1993. Fahey served on the Buffalo Common Council from 1978 to 1983 and again from 1988 to 1994.

Fahey earned a bachelor’s degree in political science from the State University of New York at Buffalo, cum laude, in 1974. He earned a J.D. in 1984 and a master’s degree in European history in 1998.

The seven justices of the New York Court of Appeals serve 14-year terms. They are appointed by the governor from a list of candidates provided by a judicial nominating commission, pending confirmation from the New York Senate.

The current chief justice of the court is Janet DiFiore, who was appointed by Gov. Cuomo in 2015. 

The remaining four active justices of the court are:

• Jenny Rivera – Appointed by Gov. Cuomo in 2013

• Michael Garcia – Appointed by Gov. Cuomo in 2016

• Rowan Wilson – Appointed by Gov. Cuomo in 2017

• Paul Feinman – Appointed by Gov. Cuomo in 2017

Associate Justice Leslie Stein is also scheduled to retire from the court in 2021, on June 4. At the time of the announcement, no reason was given for Stein’s retirement.

As of November 16, 2020, there are four supreme court vacancies scheduled to occur in 2021 in three of the 29 states where replacement justices are appointed instead of elected. The vacancies were triggered by retirements.

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