TagJudicial appointments

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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Ballotpedia releases federal judicial vacancy count for October

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from October 2, 2020, to November 1, 2020. Ballotpedia publishes a federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been two new judicial vacancies since the previous report. There are 59 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, 66 of 890 active federal judicial positions are vacant.

Nominations: There have been two new nominations since the previous report.

Confirmations: There have been two new confirmations since the previous report.

New vacancies

There were 59 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 6.8, the same as the previous report.

• The nine-member U.S. Supreme Court does not have any vacancies.

• Two (1.1%) of the 179 U.S. Appeals Court positions are vacant.

• 55 (8.1%) 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. A presidential nomination is required to fill an Article III vacancy. Article III nominations by the president are subject to confirmation on the advice and consent of the U.S. Senate.

1. Judge Amy Coney Barrett left the U.S. Court of Appeals for the 7th Circuit after she was elevated to the Supreme Court of the United States.

2. Judge Juan Torruella died on October 26, 2020, leaving an open seat on the U.S. Court of Appeals for the 1st Circuit.

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), as of November 2, 2020.

New nominations

President Trump has announced two new nominations since the previous report:

1. Thomas Kirsch, to the U.S. Court of Appeals for the 7th Circuit.

2. Joseph Barloon, to the U.S. Court of International Trade.

Since taking office in January 2017, President Trump has nominated 273 individuals to Article III positions.

New confirmations

Since October 2, 2020, the U.S. Senate has confirmed two of President Trump’s nominees to Article III seats:

• Amy Coney Barrett, confirmed to the Supreme Court of the United States.

• Michael Newman, confirmed to the U.S. District Court for the Southern District of Ohio.

As of November 1, 2020, the Senate has confirmed 220 of President Trump’s judicial nominees—162 district court judges, 53 appeals court judges, two Court of International Trade judges, and three Supreme Court justices—since January 2017.

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

Donald Trump has appointed and the Senate has confirmed 220 Article III federal judges through November 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 260 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through November 1 of their fourth year in office is 200.

The median number of Supreme Court justices appointed is two. President Trump appointed the most with three. 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 55, while Clinton and Obama both appointed the least with 30 each. Trump’s 53 appointments make up 30% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 162. Carter appointed the most with 202, and Obama appointed the fewest with 128. Trump has appointed 162 district court judges so far. Those appointments make up 24% 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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Hawaii governor appoints Eddins to state supreme court

Image of the Hawaii Supreme Court building in Honolulu.

Hawaii Gov. David Ige (D) appointed Todd Eddins to the Hawaii Supreme Court on October 23, 2020. Pending confirmation from the Hawaii State Senate, Eddins will succeed Justice Richard W. Pollack, who retired on June 30, 2020, after reaching the mandatory retirement age of 70 years. Eddins is Ige’s first nominee to the five-member supreme court.

Under Hawaii 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. The nominee requires confirmation from the Hawaii State Senate.

Eddins became a judge of the O’ahu First Circuit of Hawaii in 2017 after being appointed by Gov. Ige on February 9. The Hawaii State Senate confirmed Eddins on March 3, 2017.

Before his appointment to the O’ahu First Circuit, Eddins worked as a trial lawyer for the Office of the Public Defender. He also served as a clerk for Justice Yoshimi Hayashi of the Hawaii Supreme Court.

Eddins earned an undergraduate degree from the College of William and Mary and a J.D. from the University of Hawaii, where he was the executive editor of the University of Hawaii Law Review.

The Hawaii Supreme Court is the state’s court of last resort. As of October 2020, three judges on the court were appointed by a Democratic governor, and one judge on the court 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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Trump has appointed second-most federal judges through October 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 218 Article III federal judges through October 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 260 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through October 1 of their fourth year in office is 197.

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 35. Carter appointed the most with 55, while Reagan appointed the least with 28. Trump’s 53 appointments make up 29% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 161. Carter appointed the most with 202, and Reagan appointed the fewest with 121. Trump has appointed 161 district court judges so far. Those appointments make up 24% 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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