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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.

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Alaska ends coronavirus state of emergency for second time

Alaska Gov. Mike Dunleavy (R) lifted the state’s coronavirus emergency order on April 30. Dunleavy’s emergency powers originally expired Feb. 14, causing his emergency declaration to end. But the emergency order’s expiration prevented the state from accessing an additional $8 million of federal food assistance benefits for April.

In response, the legislature passed House Bill 76, and Dunleavy signed the legislation on April 30. The bill retroactively extended the disaster emergency from Feb. 14 through the end of 2021. The retroactive extension allowed the state to access the federal food assistance benefits. 

The bill also allowed Department of Health and Social Services Director Adam Crump to issue a limited disaster emergency order April 30 to secure future federal assistance. After Gov. Dunleavy signed the legislation and Crump signed the limited order, the governor re-ended the state’s emergency order, effective April 30.

HB 76 passed the state Senate April 28. The state House approved the legislation April 29. The new law also enacts legal immunity for businesses against claims related to COVID-19.



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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U.S. Senate approves resolution to reverse Trump-era methane rule and restore standards set by Obama administration

The U.S. Senate passed a resolution under the Congressional Review Act (CRA) on April 28 to block a rule made by the Environmental Protection Agency (EPA) in Sept. 2020. 

The final vote was 52-42, with three Republicans, Susan Collins (Maine), Lindsay Graham (S.C.), and Rob Portman (Ohio), voting in favor of the resolution. 49 Democrats voted in favor of the resolution. The following 6 senators did not vote: Maria Cantwell (D-Wash.), Kevin Cramer (R-N.D.), Rand Paul (R-Ky.), Mike Rounds (R-S.D.), Richard Shelby (R-Ala.), and Pat Toomey (R-Pa.). 

The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Both houses of Congress have to pass a resolution disapproving the EPA rule and President Biden would then have to sign that resolution into law to block the rule. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the more than 90,767 rules published in the Federal Register during that time.

The EPA rule went into effect on Sept. 14, 2020. According to the _Congressional Record_, Congress has 60 days from Feb. 3, 2021, to use the CRA to block regulatory activity taken near the end of the Trump administration. Rules published by the Trump administration after Aug. 21, 2020 fall within the CRA lookback window.

U.S. Representative Diana DeGette (D-Colo.) introduced a companion resolution in the U.S. House of Representatives on March 26, 2021. 

To learn more about the Congressional Review Act (CRA), see here: https://ballotpedia.org/Congressional_Review_Act

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Link to the U.S. Senate Resolution:

https://www.congress.gov/bill/117th-congress/senate-joint-resolution/14?q=%7B%22search%22%3A%5B%22heinrich+S.j.%22%5D%7D&s=1&r=1



Federal Register weekly update: New significant proposed rule from the U.S. Department of Housing and Urban Development

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From April 26 through April 30, the Federal Register grew by 1,320 pages for a year-to-date total of 23,236 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

Last week’s Federal Register featured the following 530 documents:

• 437 notices

• five presidential documents

• 28 proposed rules

• 60 final rules

One proposed rule concerning the U.S. Department of Housing and Urban Development’s (HUD) administration of the Housing Trust Fund program was deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 14 significant proposed rules and eight significant final rules as of April 30.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register 

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Click here to find yearly information about additions to the Federal Register from 1936 to 2018: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2018



OIRA reviewed 22 significant rules in April

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 22 significant regulatory actions issued by federal agencies in April 2021. The agency approved no rules without changes and approved the intent of 20 rules while recommending changes to their content. Two rules were subject to a statutory or judicial deadline.

OIRA reviewed 45 significant regulatory actions in April 2020, 44 significant regulatory actions in April 2019, 32 significant regulatory actions in April 2018, and seven significant regulatory actions in April 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 47 significant regulatory actions each April.

OIRA has reviewed a total of 198 significant rules in 2021. The agency reviewed a total of 676 significant rules in 2020, 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of May 3, 2021, OIRA’s website listed 46 regulatory actions under review.

OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: 

https://ballotpedia.org/Completed_OIRA_review_of_federal_administrative_agency_rules

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Illinois’ U.S. Rep. Cheri Bustos announces she’s not running for re-election in 2022

U.S. Representative Cheri Bustos (D-IL) announced on April 30 that she would not run for re-election in 2022. 

Bustos was first elected to the U.S. House to represent Illinois’ 17th Congressional District in 2012. She most recently won re-election in 2020, defeating Esther Joy King (R), 52% to 48%.

As of April 30, eight members of the U.S. House—three Democrats and five Republicans—have announced they will not seek re-election in 2022. Five members of the U.S. Senate—all Republicans—have announced they will not run for re-election.

Thirty-six members of the U.S. House did not run for re-election in 2020—26 Republicans, nine Democrats, and one Libertarian. In 2018, 52 members of the U.S. House did not run for re-election, including 34 Republicans and 18 Democrats.

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Aaron von Ehlinger resigns from Idaho House of Representatives

Idaho state Representative Aaron von Ehlinger resigned on April 29 after the Idaho House Ethics and Policy Committee found his “conduct unbecoming” of a representative and voted unanimously to recommend his immediate suspension and expulsion from the House. 

Von Ehlinger said in his resignation letter, “I maintain my innocence of any wrongdoing of which I have been accused in this matter, let alone any violation of any law, rule, or policy of the state of Idaho or of this body.”

Representative Wendy Horman (R) said, “His behavior has poisoned the reputation of all of us and tarnished and discredited other elected officials who serve.”

Von Ehlinger was appointed to the Idaho House of Representatives to represent District 6A by Gov. Brad Little (R) on June 3, 2020.

If there is a vacancy in the Idaho State Legislature, the governor is responsible for appointing a replacement. The political party committee that last held the vacant seat has 15 days after the vacancy to submit a list of three recommended candidates to the governor, who selects from among those three.

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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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