Tagtransitions

Transition Tracker: Biden picks Merrick Garland to lead Justice Department

Prior to taking office on January 20, 2021, President-elect Joe Biden (D) and his team must prepare for the transition between presidential administrations, including selecting senior White House staff and appointees to top government positions.

In 2016, there were 1,714 government positions subject to presidential appointment: 1,242 positions required Senate confirmation and 472 did not. The new administration is also responsible for filling thousands of other positions across the federal government, including in operations and policy. Every weekday, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Congress Counts Electoral Votes, Declares Biden Winner

Congress convened a joint session on Wednesday to count electoral votes by state and confirm the result of the presidential election.

As president of the Senate, Vice President Mike Pence (R) presided over the proceedings. To object to a state’s count, one member each from the House and Senate had to submit a written objection after the body read the vote count from a particular state or D.C. After time for debate—a maximum of two hours—both chambers voted by a simple majority to concur or reject the objection.

Thousands of supporters of President Donald Trump (R) went to the Capitol Building as Congress was in its joint session. Around 2:15 p.m. ET, both chambers recessed as the group breached the Capitol and the building went into lockdown. The group trespassed through several security barriers, leading to altercations with police and other security officials. Hundreds reached the interior of the Capitol and vandalized the building. Pence and House Speaker Nancy Pelosi (D-Calif.) were evacuated. Other members of Congress evacuated or sheltered in place. Four people died, including one woman shot and killed by Capitol Police.

After the Capitol was secured, Congress reconvened after 8 p.m. ET to continue with the count. Members submitted objections for six states. Two objections were formally presented by a Senate and House member:

  • Arizona: The Senate voted against sustaining the objection to Arizona’s electoral votes by a vote of 6-93. The House voted against sustaining this objection by a vote of 121-303.
  • Pennsylvania: The Senate voted against sustaining the objection to Pennsylvania’s electoral votes by a vote of 7-92. The House voted against sustaining the objection by a vote of 138-282.

Four states were counted following incomplete objections presented by a U.S. House member without a U.S. senator:

  • Georgia
  • Michigan
  • Nevada
  • Wisconsin

At 3:40 a.m. ET, Pence declared Biden the winner of the presidential election with 306 electoral votes and concluded the joint session.

Since the 1887 passage of the Electoral Count Act, there have been two instances of congressional objections. In 1969, an objection was raised against the North Carolina electoral votes, which was rejected 58-33 in the Senate and 228-170 in the House. In 2005, an objection was raised to the Ohio vote. It was rejected 74-1 in the Senate and 267-31 in the House.

Appointments and Nominations

Merrick Garland, U.S. attorney general

Biden announced on Thursday that he had selected Merrick Garland, a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit, as his nominee for U.S. attorney general. Garland previously worked at the Department of Justice, where he led prosecutions related to the Oklahoma City bombings and the Unabomber case. He was a deputy assistant attorney general for the Criminal Division and a principal associate deputy attorney general. 

Garland was previously nominated by President Barack Obama (D) to the Supreme Court.

Biden announced three other Department of Justice nominations:

  • Lisa Monaco, deputy attorney general
  • Vanita Gupta, associate attorney general
  • Kristen Clarke, assistant attorney general for civil rights

News

  • Operation Warp Speed leader Moncef Slaoui will continue to work in the Biden administration as a consultant. He said on Wednesday, “I will continue to support as needed, I think we are getting close to the point where my value add is more limited and therefore I’ll expect my activity to decrease gradually after January 21.” 
  • Biden is expected to name the National Security Agency’s director of cybersecurity, Anne Neuberger, to a newly created position on the National Security Council focused on cybersecurity. 

What We’re Reading



Ballotpedia’s Weekly Transition Tracker: December 12-December 18, 2020

Prior to taking office on January 20, 2021, President-elect Joe Biden (D) and his team must prepare for the transition between presidential administrations, including selecting senior White House staff and appointees to top government positions.

In 2016, there were 1,714 government positions subject to presidential appointment: 1,242 positions required Senate confirmation and 472 did not. The new administration is also responsible for filling thousands of other positions across the federal government, including in operations and policy. Every weekday, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Appointments and Nominations (Cabinet)

Debra Haaland, Secretary of the Interior

Debra Haaland (D-N.M.) was elected to Congress in 2018. In the 116th Congress, Haaland served on the natural resources and armed services committees. An enrolled member of the Pueblo of Laguna, Haaland would be the first person of Native American descent to serve in this position according to The Washington Post

Haaland’s district, New Mexico’s 1st, is rated Solid Democratic. Vacancies in the U.S. House are filled by special election.

Pete Buttigieg, secretary of transportation

Pete Buttigieg is a former mayor of South Bend, Ind., and 2020 Democratic presidential candidate. He served in the United States Navy Reserve as an intelligence officer, where he earned the rank of lieutenant. He graduated from Harvard University and Oxford University as a Rhodes scholar.

Jennifer Granholm, Secretary of Energy

Jennifer Granholm was governor of Michigan from 2003 to 2011 and attorney general of Michigan from 1999 to 2003. Since leaving office, Granholm has worked as an adjunct professor of law and public policy at the University of California-Berkeley, a senior advisor to The Pew Charitable Trusts’ Clean Energy Program, and a contributor on political talk shows.

Michael Regan, Administrator of the Environmental Protection Agency

Michael Regan is the secretary of environmental quality in North Carolina. Gov. Roy Cooper (D) appointed him to the position in January 2017. Regan worked for the Environmental Protection Agency (EPA) under the Clinton and Bush administrations from 1998 to 2008. He would be the first Black man to serve in this position according to The New York Times.

Appointments and Nominations (Non-Cabinet)

Biden’s office announced three other key administration appointments:

  • Brenda Mallory as Chair of the Council on Environmental Quality. Mallory is the Director of Regulatory Policy at the Southern Environmental Law Center.
  • Gina McCarthy as National Climate Advisor. McCarthy would lead the White House Office of Domestic Climate Policy and work as the counterpart to John Kerry, the presidential envoy for climate. She was EPA Administrator from 2013 to 2017.
  • Ali Zaidi as Deputy National Climate Advisor. Zaidi worked in the Obama administration on the Climate Action Plan and helped negotiate the Paris Climate Agreement.

Potential Nominees

  • Axios reported that Biden is considering selecting a Republican for secretary of Commerce, and mentioned former Hewlett Packard CEO Meg Whitman as one possibility.

Other News

  • Biden won 306 electoral votes when Electoral College members met in each state and Washington, D.C., on Monday. President Donald Trump (R) received 232 votes. There were no faithless electors. Congress will count the electoral votes in a joint session on January 6, 2021, and declare a winner—subject to objections to an individual state’s electoral votes raised by the combination of one member each of the House and Senate.
  • The Senate Finance Committee sent questionnaires to Janet Yellen (nominee for treasury secretary) and Xavier Becerra (nominee for health and human services secretary) on Dec. 15. The questionnaires are the beginning of their nomination processes.
  • The Inauguration Committee announced that Biden and Harris will be sworn in on the steps of the Capitol in January. Only members of the 117th Congress and one guest each will be allowed to attend the event in person.
  • Rep. Cedric Richmond (D-La.), Biden’s incoming director of the Office of Public Engagement, tested positive for COVID-19. Biden representative Kate Bedingfield said Richmond was not in close contact with Biden, and would quarantine for two weeks and be tested twice before returning to work.
  • CNN reported Biden will receive a COVID-19 vaccine publicly the week of Dec. 21. On Dec. 16, Biden told reporters, “I don’t want to get ahead of the line, but I want to make sure we demonstrate to the American people that it is safe to take. When I do it, I’ll do it publicly, so you can all witness my getting it done.”

Transition in Context: How the Electoral College Works

Members of the Electoral College in all 50 states and Washington, D.C., met to cast each state’s electoral votes for president and vice president on Dec. 14. But how did the process work? Here’s a quick explainer:

The Electoral College is the process by which the states and District of Columbia elect the president of the United States. The number of each state’s electors is equal to the size of its congressional delegation. The number of electoral votes allocated to each state can change every 10 years or so when the number of U.S. House members are reapportioned after the census.

There were 538 electors in total. To win the Electoral College, a candidate needed to receive a majority—at least 270—electoral votes.

Presidential candidates in each state select a slate of electors that are pledged to support him or her should they win the state. These electors are typically selected by the state party through conventions or a committee vote. When a candidate wins the popular vote in a state, their slate of electors represents that state in the Electoral College. The only exceptions to this are in Maine and Nebraska, which assign two at-large electors to the statewide winner and one elector to the winner of the popular vote in each congressional district.

Each state’s electors meet separately in their respective states and cast paper ballots for president and vice president. The electors then sign and seal six certificates of the vote, as specified by federal law.

These certificates have been posted to the website of the National Archives as they have been received. The certificates must be delivered by Dec. 23 to the president of the U.S. Senate, the state secretary of state (two copies), the archivist of the United States (two copies), and the judge of the U.S. district court in the district where they met. Congress will count the electoral votes in a joint session on Jan. 6 and declare a winner—subject to any objections to an individual state’s electoral votes.

Want to know who the electors are in your state this election cycle? We’re tracking them here.

Transition in Context: Timing of Announcements

Transition in Context: Outcome of 2017 special elections caused by nominations to Trump’s Cabinet

Five special elections were held in 2017 to fill vacancies created by Republican members of Congress who joined the Trump administration. One of the five resulted in a partisan flip to Democratic control. There are expected to be three special elections as a result of members of Congress joining the Biden administration.

  • U.S. Senate in Alabama: Incumbent Jeff Sessions (R) vacated the seat to serve as U.S. attorney general. Democrat Doug Jones won the special election.

Transition in Context: Current SCOTUS Composition

Filling vacancies on the Supreme Court of the United States is one duty of the President of the United States. Who currently serves on the court, who were they nominated by, and how old are they? Find out below.

  • Chief Justice John Roberts, 65, nominated by George W. Bush (R) 
  • Justice Clarence Thomas, 72, nominated by George H.W. Bush (R) 
  • Justice Stephen Breyer, 82, nominated by Bill Clinton (D)
  • Justice Samuel Alito, 70, nominated by George W. Bush (R)
  • Justice Sonia Sotomayor, 66, nominated by Barack Obama (D)
  • Justice Elena Kagan, 60, nominated by Barack Obama (D)
  • Justice Neil Gorsuch, 53, nominated by Donald Trump (R)
  • Justice Brett Kavanaugh, 55, nominated by Donald Trump (R)
  • Justice Amy Coney Barrett, 48, nominated by Donald Trump (R) 

President Donald Trump (R) appointed three justices to the Supreme Court. The four preceding presidents (Barack Obama, George W. Bush, Bill Clinton, and George H.W. Bush) appointed two justices each.

Trump’s three and H.W. Bush’s two appointments came during one-term presidencies. Obama, W. Bush, and Clinton made their two appointments to the court over two presidential terms.

Transition in Context: In Their Words…

Here’s how Democratic and Republican leaders, advisers, and stakeholders have reacted to the nomination of Pete Buttigieg for Secretary of Transportation.

  • “As a former city leader here in Indiana, Pete understands how critical infrastructure is to growth and opportunity. It will be good to have a Hoosier serving in this capacity.” – U.S. Sen. Todd Young (R-Ind.), member of the U.S. Senate Commerce Committee
  • “I would push back [against the notion that Buttigieg is not qualified] by saying he’s extraordinarily talented. He’s got a lot of what we call out here Midwest common sense, he’s a hard worker. And I think he’ll serve, not you know as a Democrat or Republican obviously but as somebody trying to lead all of America, every community, rural, urban, wherever to be stronger.” – Former U.S. Sen. Joe Donnelly (D-Ind.)
  • “He may not have the experience right now. His experience on the national level with transportation is going to be limited coming in.” – Eric Horvath, South Bend public works director
  • “Former-Mayor Buttigieg’s forward-looking approach supported by data-driven decision making will serve him well as the next Secretary of Transportation. On behalf of AAR and the nation’s rail industry, we look forward to working with Mr. Buttigieg to modernize the nation’s surface transportation.” – Ian Jefferies, president of the Association of American Railroads
  • “Pete Buttigieg is committed to transformational infrastructure investment that creates good jobs and he is ready to lead the fight for transportation workers. The TWU is looking forward to working with Secretary-designate Buttigieg to invest in public transit, raise safety standards for aircraft maintenance, prioritize Amtrak, and ensure that workers benefit from new technologies like autonomous vehicles as our economy grows.” – John Samuelsen, president of the Transport Workers Union

What We’re Reading



Ballotpedia’s Weekly Transition Tracker: November 28-December 4, 2020

Former Vice President Joe Biden (D) is the projected winner of the 2020 presidential election. The Electoral College will meet on December 14, 2020, to vote for the next president of the United States.

In 2016, there were 1,714 government positions subject to presidential appointment: 1,242 positions required Senate confirmation and 472 did not. Every week, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Appointments and Nominations

Biden announced his appointees for top economic roles on Monday, including the secretary of the Treasury and the Cabinet-rank positions of director of the Office of Management and Budget and chair of the Council of Economic Advisers.

Janet Yellen, secretary of the Treasury

Janet Yellen was the 15th chair of the Federal Reserve, under the Obama administration, and a former chairwoman of the Council of Economic Advisers in the Clinton administration. Outside of public service, Yellen was a faculty member at the University of California at Berkeley for four decades. She has been confirmed by the Senate four times. If confirmed, she will be the first woman to hold this position.

Neera Tanden, director of the Office of Management and Budget

Neera Tanden is the president and CEO of the Center for American Progress. She has worked in both the Clinton and Obama administrations, including as a senior adviser for health reform at the U.S. Department of Health and Human Services. If confirmed, she will be the first woman to hold this position.

Cecilia Rouse, chairwoman of the Council of Economic Advisers

Cecilia Rouse is the dean of the Princeton School of Public and International Affairs. She previously served on the Council of Economic Advisers during the Obama administration and the National Economic Council during the Clinton administration.

The Biden Transition also announced appointees for the following three roles:

  • Wally Adeyemo, deputy secretary of the Treasury
  • Jared Bernstein, member of the Council of Economic Advisers
  • Heather Boushey, member of the Council of Economic Advisers

Biden also announced his appointees for seven top White House communications roles on Sunday.

Kate Bedingfield, White House communications director

Kate Bedingfield was a deputy campaign manager and communications director for the Biden presidential campaign. During the Obama administration, Bedingfield worked as a communications director for Biden, associate communications director, deputy director of media affairs, and director of response. Outside of government service, Bedingfield has been the chief spokeswoman and vice president of corporate communications at the Motion Picture Association of America.

Jen Psaki, White House press secretary

Jen Psaki served as White House communications director during the Obama administration. She also held other key communications roles, including State Department spokesperson, deputy White House communications director, and deputy White House press secretary. Psaki worked on presidential campaigns for John Kerry and Barack Obama. Psaki is currently leading the confirmations team for the Biden Transition.

The other five appointments include the following Biden campaign and Obama administration veterans:

  • Elizabeth Alexander, communications director for the first lady
  • Ashley Etienne, communications director for the vice president
  • Karine Jean-Pierre, principal deputy press secretary
  • Symone Sanders, senior advisor and chief spokesperson for the vice president
  • Pili Tobar, deputy White House communications director

Brian Deese, director of the National Economic Council

Biden announced on Thursday that he was appointing Brian Deese to director of the National Economic Council. Deese was a deputy director of the council during the Obama administration. He also was a senior advisor to Obama and deputy director and acting director of the Office of Management and Budget.

Potential Nominees

  • The Washington Post reported that Biden has chosen Dr. Vivek Murthy for U.S. surgeon general. Murthy previously held the same position in the Obama administration.
  • Biden said on Thursday that he asked Dr. Anthony Fauci to remain in his administration as chief medical adviser and director of the National Institute of Allergy and Infectious Diseases. Fauci confirmed on Friday that he had accepted the offer.
  • Rhode Island Gov. Gina Raimondo, who was reportedly on the shortlist for secretary of health and human services, said on Thursday that she was not going to join Biden’s administration in that role. “My focus is right here in Rhode Island, as I have said. I’m working 24/7 to keep Rhode Islanders safe and keep our economy moving, and I have nothing else to add on that topic,” she said.
  • The New York Times reported that Tom Donilon, a former national security advisor during the Obama administration, declined to serve as CIA director because he did not want to return to government. Others in consideration for that post include Michael Morell, Sue Gordon, Vincent Stewart, Rep. Elissa Slotkin (D-Mich.), and Darrell Block. Biden is also considering former Deputy Director of the CIA David S. Cohen to lead the agency, The New York Times reported. 
  • Bloomberg reported that New Mexico Gov. Michelle Lujan Grisham declined an offer to join the Biden administration as secretary of the interior, preferring instead the post of secretary of health and human services. “The Biden team read that — paired with the lack of Latina candidates for other cabinet-level posts — as an effort to force their hand and soured on her candidacy, the person said,” Bloomberg continued.
  • Biden is considering Mustafa Santiago Ali, Cecilia Martinez, and Brenda Mallory to head the White House Council on Environmental Quality.
  • Biden does not plan to remove FBI Director Christopher Wray—appointed by Trump in 2017—if he is still in the post when Biden’s administration begins. 
  • Joining Sen. Heidi Heitkamp and Rep. Marcia Fudge as candidates for agriculture secretary are USDA veteran Kathleen Merrigan, former United Farm Workers union leader Arturo Rodriguez, and former Agriculture Secretary Tom Vilsack, Politico reported.
  • Postmaster General Louis DeJoy (R) is expected to remain in office when the Biden administration takes power because a president may not remove the postmaster general. Only the Postal Service’s governing board—which is currently composed of six Trump-appointed Republicans—may do so.

Other News

  • Biden announced on Monday that Delaware State University President Tony Allen is leading the Presidential Inaugural Committee. Due to the coronavirus pandemic, the event is unlikely to have a large gathering on the National Mall or a parade through D.C.
  • Members of the Congressional Black Caucus are calling on Biden to select a Black secretary of defense. Politico reported, “While [Michèle] Flournoy is still the frontrunner, the Biden team, which has promised to be the most diverse U.S. administration in history, is concerned about the optics of the top four Cabinet officials — State, Defense, Treasury and Justice — being white, said one transition official.”
  • Biden is expected to name an appointee to lead a new climate office or policy council similar to the Domestic Policy Council. This would be the second high-level climate position in Biden’s administration following the announcement of climate envoy designate John Kerry.
  • Politico reported that, in anticipation of Republican challenges in the Senate to their appointees, the Biden Transition is focusing on appointments for mid- and lower-level officials at agencies that do not require Senate confirmation. 

Transition in Context: What is ascertainment?

Under the Presidential Transition Act, the administrator of the General Services Administration (GSA) is responsible for ascertaining—or identifying—the apparent winner of the presidential election. Doing so allows the president-elect to begin to receive funding, office space, and support services in the transition between administrations.

The GSA administrator has typically made this ascertainment shortly after the presidential election with the exception of the 2000 presidential election. In that year, the GSA administrator did not ascertain the election until December 13, after the Supreme Court decided the Florida recount case, Bush v. Gore.

The GSA ascertained the results of the election on November 23, 2020, identifying Biden as the apparent winner. GSA Administrator Emily Murphy said in a letter, “Please know that I came to my decision independently, based on the law and available facts. I was never directly or indirectly pressured by any Executive Branch official—including those who work at the White House or GSA—with regard to the substance or timing of my decision.”

According to the Center for Presidential Transition, recent incoming administrations have had 77 days to prepare for the transfer of power. The Biden Transition will have 57.

Transition in Context: Timing of Announcements

Transition in Context: What is The Plum Book?

The United States Government Policy and Supporting Positions, also known as The Plum Book, is released every four years after the presidential election to provide a list of more than 9,000 key federal civil service positions.This 200-page document is published by the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform.

The positions featured are noncompetitive, meaning they can be filled by appointment. Most presidential appointments—1,242 in 2016—require Senate confirmation (PAS). These PAS positions include not only agency heads like the secretary of state or the secretary of the Treasury, but also other roles like the architect of the Capitol, the chairman of the Council on Environmental Quality, and the director of the Office of National Drug Control Policy.

In 2016, another 472 positions were presidential appointments that did not require Senate confirmation (PA). Examples of these PA-only positions include White House chief of staff, director of the National Institute of Justice, and the chairman of the Commission on Civil Rights.

The Plum Book also includes information about thousands of other political appointments, including Senior Executive Service general positions and Senior Foreign Service positions. 

The tradition of the Plum Book has existed for more than six decades.

Transition in Context: Where does the Cabinet come from?

The formation of the Cabinet is rooted in Article II, Section 2, of the Constitution, which states that the president “may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.”

The Cabinet includes the vice president and the leaders of 15 executive departments: Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs.

Several other positions have become Cabinet-rank over the years, although not all administrations include the same set of offices.

The Trump administration, for example, currently identifies the following Cabinet-rank positions:

  • White House chief of staff
  • Administrator of the Environmental Protection Agency
  • Director of the Office of Management and Budget
  • U.S. trade representative
  • Director of the CIA
  • Director of national intelligence
  • Administrator of the Small Business Administration

The Obama administration included all of the above positions in its Cabinet, except for director of the CIA and director of national intelligence. It also identified the chair of the Council of Economic Advisors and the U.S. ambassador to the United Nations as Cabinet-rank.

Transition in Context: In Their Words…

Here’s how Democratic and Republican leaders and advisers have reacted to the nomination of Neera Tanden for director of the Office of Management and Budget.

  • “[Tanden] grew up on welfare and lived in public housing. She experienced firsthand the importance of our social programs. Her extraordinary career has been devoted to improving opportunities for working families. She is an excellent choice to lead OMB.” – Valerie Jarrett (D), former director of the Office of Public Engagement and Intergovernmental Affairs
  • “She’s been pretty partisan in some of her previous positions. And in many cases, with respect to Republican senators who would have to vote on her potential nomination.” – Sen. John Thune (R-S.D.) 
  • “I just think she’s gonna be radioactive.” – Sen. John Cornyn (R-Texas)
  • “Honestly, the hypocrisy is astounding. If Republicans are concerned about criticism on Twitter, their complaints are better directed at President Trump, who has made a hobby out of denigrating Republicans on Twitter.” – Sen. Chuck Schumer (D-N.Y.)
  • “I don’t know anyone personally in Bernie world who is happy about this choice. We’re talking about a woman who’s notorious for assaulting Bernie Sanders’ campaign manager.” – Briahna Joy Gray (D), Bernie Sanders’ former national press secretary

What We’re Reading



Rhode Island Supreme Court justice set to retire in December

Rhode Island Supreme Court Justice Francis Flaherty is retiring on December 31, 2020. Flaherty announced plans to pursue other interests following his retirement.

Flaherty earned a bachelor’s degree from Providence College in 1968. He earned a J.D., cum laude, from Suffolk University Law School in 1975.

Flaherty’s career experience includes working as an attorney in private practice in Warwick, Rhode Island, serving as an assistant city solicitor, and serving with the Warwick City Council from 1978 to 1985. Flaherty was elected Mayor of Warwick and served from 1984 to 1991. He also served as a member of the Rhode Island Board of Governors for Higher Education from 1988 to 2003. He was appointed to the Rhode Island Supreme Court by Gov. Donald Carcieri (R) in 2003.

The five justices of the Rhode Island Supreme Court are appointed by the governor with help from a nominating commission. Supreme court nominees must be approved by both the state House and the state Senate.

The current chief justice of the court is Paul Suttell, who was appointed by Gov. Carcieri in 2003. Gov. Carcieri named Suttell as the chief justice of the court in 2009.

The remaining two active justices of the court are:
• Maureen McKenna Goldberg – Appointed by Gov. Lincoln Almond (R) in 1997
• William Robinson – Appointed by Gov. Donald Carcieri (R) in 2004

Rhode Island Supreme Court Justice Gilbert Indeglia retired from the court on June 30, 2020. Indeglia’s seat is currently vacant.

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. Thirteen vacancies are in states where a Democratic governor appoints the replacement. Eight are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.

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