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Ballotpedia releases federal judicial vacancy count for April 2021

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from April 1 to May 1, 2021. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been six new judicial vacancies since the March 2021 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, 79 of 890 active federal judicial positions are vacant.

Nominations: There were three new nominations since the March 2021 report.

Confirmations: There have been no new confirmations since the March 2021 report.

New vacancies

There were 75 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.6.

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

• Seven (3.9%) of the 179 U.S. Appeals Court positions are vacant.

• 66 (9.8%) of the 673 U.S. District Court positions are vacant.*

• Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.

*District court count does not include the territorial courts.

Six judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, 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 Catherine Blake assumed senior status on the U.S. District Court for the District of Maryland.

• Judge Emmet Sullivan assumed senior status on the U.S. District Court for the District of Columbia.

• Judge Amy Totenberg assumed senior status on the U.S. District Court for the Northern District of Georgia.

• Judge Timothy Stanceu assumed senior status on the U.S. Court of International Trade.

• Judge Colleen McMahon assumed senior status on the U.S. District Court for the Southern District of New York.

• Judge George Daniels assumed senior status on the U.S. District Court for the Southern District of New York.

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 Joe Biden (D) to the date indicated on the chart.

File:US Court of Appeals vacancies chart 050121.png

The following maps show the number of vacancies on the United States Court of Appeals at the inauguration of President Joe Biden (D) and as of May 1, 2021.

File:UUbHy-court-of-appeals-vacancies-biden-inauguration-.png
File:T7YhD-court-of-appeals-vacancies-may-1-2021-.png

New nominations

President Joe Biden (D) has announced three new nominations since the March 2021 report.

New confirmations

As of May 1, 2021, there have been no federal judicial confirmations during the Biden administration.

Additional Reading:



U.S. Supreme Court holds rare May sitting on May 4

The Supreme Court of the United States (SCOTUS) held its May argument sitting on May 4, hearing one case in a one-hour session. In keeping with each sitting of this term, the court heard arguments remotely and provided live audio to the public.

Terry v. United States concerns sentencing reductions for crack cocaine offenses. In 2008, Tarahrick Terry was convicted of and pled guilty to possessing cocaine base, also referred to as crack cocaine, with the intent to distribute. In 2010, Congress passed the Fair Sentencing Act, modifying the weight limits for drug offenses. In 2018, Congress enacted the First Step Act, which defined covered offenses, including crack cocaine offenses, and set out rules for making relevant sentencing reductions. Terry petitioned the U.S. district court to reduce his sentence. The district court ruled that his offenses were not covered and were not eligible for reduction. On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the district court’s judgment. Terry petitioned the Supreme Court to review the lower court’s findings.

The case was originally scheduled for argument on April 20, 2021, but the session was postponed due to a change in legal counsel.

During the 2019-2020 term, the Supreme Court heard 10 hours of oral argument in 13 cases during its May argument session. Those cases had been postponed from the March and April sittings earlier in the term due to public health recommendations in response to COVID-19. According to SCOTUSblog, the last time the Supreme Court held a full May sitting was during the 1968 October Term.

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President Biden nominates three additional individuals to Article III judgeships

President Joe Biden (D) nominated three individuals to Article III judgeships on April 29. With the addition of these three, Biden has nominated a total of 13 individuals to Article III judgeships since the start of his term. At the time of this writing, none of Biden’s Article III nominees have been confirmed by the U.S. Senate.

David Estudillo is a nominee to the United States District Court for the Western District of Washington. Estudillo is currently the presiding judge on the Grant County Superior Court in Washington state. He was appointed to the court in 2015 by Washington Gov. Jay Inslee (D) and subsequently won election to the seat in 2016 and 2020. Prior to becoming a judge, he was an attorney in private practice. Estudillo earned his bachelor’s degree from the University of Washington in 1996 and his J.D. from the University of Washington School of Law in 1999.

Tana Lin is also a nominee to the United States District Court for the Western District of Washington. Lin is currently of counsel at the law firm of Keller Rohrback LLP, where she has practiced law in various capacities since 2004. She earned her bachelor’s degree, with distinction, from Cornell University in 1988 and her J.D. from the New York University School of Law in 1991.

Christine O’Hearn is a nominee to the United States District Court for the District of New Jersey. O’Hearn is currently a partner with the law firm of Brown & Connery LLP, which she joined in 1993. She earned her bachelor’s degree from the University of Delaware in 1990 and her J.D. from the James E. Beasley School of Law at Temple University in 1993.

Biden’s other 10 Article III nominees include:

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit

• Tiffany Cunningham, to the United States Court of Appeals for the Federal Circuit

• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit

• Regina Rodriguez, to the United States District Court for the District of Colorado

• Florence Pan, to the United States District Court for the District of Columbia

• Deborah Boardman, to the United States District Court for the District of Maryland

• Lydia Kay Griggsby, to the United States District Court for the District of Maryland

• Julien Xavier Neals, to the United States District Court for the District of New Jersey

• Zahid Quraishi, to the United States District Court for the District of New Jersey

• Margaret Strickland, to the United States District Court for the District of New Mexico

As of April 1, there were 69 Article III vacancies in the federal judiciary of 870 total Article III judgeships. These judges serve on courts authorized by Article III of the Constitution, which created and enumerated the powers of the judiciary. They are appointed for life terms. A vacancy occurs when a judge resigns, retires, takes senior status, or passes away.

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SCOTUS concludes April sitting

The Supreme Court of the United States (SCOTUS) concluded its April sitting for its 2020-2021 term on April 28. This sitting ran from April 19 through April 28, during which time the court heard 12 hours of oral argument. The cases argued before SCOTUS during its April sitting included:

• April 19: Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation) and Sanchez v. Mayorkas

• April 20: Greer v. United States and United States v. Gary

• April 21: City of San Antonio, Texas v. Hotels.com, L.P. and Minerva Surgical Inc. v. Hologic Inc.

• April 26: Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra) and Guam v. United States

• April 27: HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association and United States v. Palomar-Santiago

• April 28: Mahanoy Area School District v. B.L. and PennEast Pipeline Co. v. New Jersey

The court is currently slated to hear one hour of oral argument during its May sitting scheduled for May 4. The case was originally scheduled to be heard in April. SCOTUS began hearing cases for the 2020-2021 term on Oct. 5. Its yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

As of April 22, the court had agreed to hear 62 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Five cases were removed from the argument calendar. The court had also issued opinions in 30 cases this term. Six cases were decided without argument.

Additional Reading:



Unanimous U.S. Supreme Court: People may raise Appointments Clause challenges in federal court they did not mention during agency proceedings

On April 22, 2021, the U.S. Supreme Court issued a unanimous opinion in Carr v. Saul, ruling that people who were denied Social Security disability benefits by the Social Security Administration (SSA) do not lose the chance to challenge the appointment of SSA administrative law judges (ALJs) in court even if they do not first present Appointments Clause challenges during agency proceedings. 

The court held unanimously that issue exhaustion requirements, which say that people must bring up all legal objections in front of an agency before they can use those objections in federal court, do not apply to these Appointments Clause challenges.

Justice Sonia Sotomayor delivered the opinion of the court, which gave the following three reasons people should be allowed to make Appointments Clause challenges even if they did not raise the issue during SSA proceedings:

*The SSA process at issue was not adversarial enough to require issue exhaustion in the absence of an explicit statutory or regulatory requirement

*Agency adjudicators usually lack the technical expertise to address structural constitutional challenges

*Court precedent says exhaustion requirements do not apply to challenges agency officials lack the power to resolve

Justice Clarence Thomas wrote a concurring opinion, joined by Justices Neil Gorsuch and Amy Coney Barrett, agreeing with the outcome of the case but saying he would have ended his analysis with the first point, that nonadversarial agency processes do not require issue exhaustion.

Justice Stephen Breyer wrote a concurring opinion agreeing with the outcome but arguing that the nonadversarial nature of an agency proceeding “is generally irrelevant to whether the ordinary rule requiring issue exhaustion ought to apply.”

The U.S. Supreme Court sent the case back to the circuit court for further proceedings.

To learn more about the case or agency adjudication, see here:

Additional Reading:

Link to the opinion:

https://www.supremecourt.gov/opinions/20pdf/19-1442_971e.pdf



SCOTUS issues rulings in three cases argued this term

On April 22, the U.S. Supreme Court (SCOTUS) issued opinions in three cases argued during the 2020-2021 term.

Jones v. Mississippi originated from the Mississippi Court of Appeals and was argued before SCOTUS on November 3, 2020. The case concerned sentencing juveniles to life imprisonment without parole.

In a 6-3 vote, the court ruled that the Eighth Amendment to the U.S. Constitution does not require a juvenile to be found as permanently incorrigible before imposing a life sentence without parole. The term incorrigibility refers to when a juvenile does not accept an adult’s authority. The court upheld the Mississippi Court of Appeals’ judgment. Justice Brett Kavanaugh delivered the court’s majority opinion. Justice Sonia Sotomayor dissented and was joined by Justices Stephen Breyer and Elena Kagan.

Carr v. Saul (consolidated with Davis v. Saul) concerns claimants seeking disability benefits under the Social Security Act and whether they must raise any constitutional Appointments Clause challenges relating to the administrative law judges hearing their claims during administrative proceedings before seeking judicial review. The case was argued before SCOTUS on March 3, 2021. 

The U.S. Supreme Court issued a unanimous opinion reversing the 10th Circuit ruling and remanding the case for further proceedings. The court held that Social Security disability claimants are not required to make Appointments Clause challenges at the agency level. Justice Sonia Sotomayor authored the court’s majority opinion. Justice Clarence Thomas filed an opinion concurring in part and concurring in the judgment, in which Justices Neil Gorsuch and Amy Coney Barrett joined. Justice Stephen Breyer filed an opinion concurring in part and concurring in the judgment.

AMG Capital Management, LLC v. Federal Trade Commission was argued before the court on January 13, 2021, and concerned the Federal Trade Commission Act (“The Act”) and whether it authorizes the Federal Trade Commission (FTC) to demand monetary restitution. 

SCOTUS issued a unanimous opinion reversing the 9th Circuit’s judgment and remanding the case for further proceedings. The court concluded that Section 13b of The Act does not authorize the FTC to seek equitable monetary relief like restitution or disgorgement, nor does it authorize a court to award such relief. Justice Stephen Breyer delivered the majority opinion of the court.

As of this writing, the court has issued 30 opinions this term. Six cases were decided without argument.

Additional Reading:



Reviewing SCOTUS’ 2020-2021 term so far

The U.S. Supreme Court’s 2020-2021 oral argument calendar is nearing its end, with 12 hours of oral arguments remaining to be heard during its April sitting and one hour of oral argument scheduled for its May sitting. 

From October through March, the court heard a total of 45 hours of oral arguments in 56 cases. Consolidated cases were allotted one hour total for oral arguments. The court’s argument schedule through March included:

  • October sitting
    • Time period: Oct. 5 through Oct. 14
    • Oral arguments heard: 10 hours in 12 cases
  • November sitting
    • Time period: Nov. 2 through Nov. 10
    • Oral arguments heard: 8 hours in 9 cases
  • December sitting
    • Time period: Nov. 30 through Dec. 9
    • Oral arguments heard: 10 hours in 12 cases
  • January sitting:
    • Time period: Jan. 11 through Jan. 19
    • Oral arguments heard: 5 hours in 6 cases
  • February sitting:
    • Time period: Feb. 22 through March 3
    • Oral arguments heard: 6 hours in 10 cases
  • March sitting:
    • Time period: March 22 through March 31
    • Oral arguments heard: 6 hours in 7 cases

During that time, all oral arguments were made remotely via teleconference with live audio streams provided during the argument sessions. The court instituted this practice in accordance with public health guidance in response to COVID-19, and it has announced the practice will continue through its April sitting. 

As of the end of March, the court had issued opinions in 25 cases this term. Five of those cases were decided without argument. The court generally announces the majority of its decisions in mid-June.

Additional Reading:



SCOTUS back in session, to hear arguments next week

The Supreme Court of the United States (SCOTUS) is scheduled to begin its April argument sitting the week of April 19. The court will hear arguments via teleconference and will provide audio live streams to the public. The court has not heard arguments in person during the 2020 term. 

SCOTUS will hear arguments in seven cases for a total of six hours of oral argument: 

Yellen v. Confederated Tribes of the Chehalis Reservation (consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation) originated from the U.S. Court of Appeals for the District of Columbia Circuit. The consolidated cases concern Alaska Native corporations and whether they qualify for Coronavirus Aid, Relief, and Economic Security (CARES) Act payments.

Sanchez v. Mayorkasconcerns grants of Temporary Protected Status (TPS) to non-citizens. The case emanated from the U.S. Court of Appeals for the 3rd Circuit.

Greer v. United States concerns Title 18 of the United States Code, prohibiting a convicted felon from possessing a firearm and ammunition, and the Supreme Court’s decision in Rehaif v. United States. Greer originated from the U.S. Court of Appeals for the 11th Circuit.

United States v. Gary concerns plain-error review of a court’s decision and the Supreme Court’s decision in Rehaif v. United States. This case originated from the U.S. Court of Appeals for the 4th Circuit.

City of San Antonio, Texas v. Hotels.com, L.P. originated from the U.S. Court of Appeals for the 5th Circuit and concerns Rule 39 of the Federal Rules for Appellate Procedure and a class-action lawsuit between a class of 173 Texas municipalities and several online travel companies. 

Minerva Surgical Inc. v. Hologic Inc. concerns patent infringement claims and the doctrine of assignor estoppel. The doctrine of assignor estoppel prevents a party that assigns a patent to a new party from later challenging the validity of that patent in U.S. district court. Minerva originated from the U.S. Court of Appeals for the Federal Circuit.

SCOTUS will next hear six hours of oral argument in seven cases from April 26 through April 28. To date, the court has scheduled one case, Terry v. United States, to be argued during the May sitting on May 4. The May sitting is expected to be the final argument session of the term.

Additional Reading:



Ballotpedia releases federal judicial vacancy count for March 2021

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from March 1 to April 1. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been five new judicial vacancies since the February 2021 report. There are 69 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, 73 of 890 active federal judicial positions are vacant.

Nominations: There were 10 new nominations since the February 2021 report.

Confirmations: There have been no new confirmations since the February 2021 report.

New vacancies

There were 69 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 7.9.

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

• Seven (3.9%) of the 179 U.S. Appeals Court positions are vacant.

• 61 (9.1%) of the 673 U.S. District Court positions are vacant.*

• One (11.1%) of the nine U.S. Court of International Trade positions is vacant.

*District court count does not include territorial courts.

Five judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, 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 Peter Hall assumed senior status on the U.S. Court of Appeals for the 2nd Circuit.*

• Judge Merrick Garland retired from the U.S. Court of Appeals for the D.C. Circuit.

• Judge Mary Briscoe assumed senior status on the U.S. Court of Appeals for the 10th Circuit.

• Judge Darnell Jones assumed senior status on the U.S. District Court for the Eastern District of Pennsylvania.

• Judge Anthony J. Battaglia assumed senior status on the U.S. District Court for the Southern District of California.

*Judge Hall’s service ended upon his death seven days after assuming senior status.

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 Joe Biden (D) to the date indicated on the chart.

File:US Court of Appeals vacancies 040121.png

The following maps show the number of vacancies on the United States Court of Appeals at the inauguration of President Joe Biden (D) and as of April 1.

File:UUbHy-court-of-appeals-vacancies-biden-inauguration-.png
File:T7YhD-court-of-appeals-vacancies-april-1-2021-.png

New nominations

President Joe Biden (D) has announced 10 new nominations since the February 2021 report.

New confirmations

As of April 1, there have been no federal judicial confirmations during the Biden administration.

Additional Reading:



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.

Additional Reading: