January 2021 Judiciary News

Leave no vacancy unfilled (until January 20).

Nominations, Hearings, Confirmations:

Post-election nominations:  Ed Whelan refutes the claim that there is a long tradition of not confirming nominees of an outgoing president.  The last time an outgoing president had a senate run by his party was 1980, when Jimmy Carter nominated Stephen Breyer to the 1st Circuit after the election.

Obstruction:  Carrie Severino reviews the tactics D senators used to try to obstruct President Trump's judicial nominees.  R senators should keep this in mind.

Durbin:  Senator Dick Durbin will become the Democrat on the Senate Judiciary committee after Senate Ds passed a rule allowing him to hold the position and remain D whip.  Some progressive groups preferred Sheldon Whitehouse get the job.

Biden:  This article on Biden's approach to judicial nominations says that many D appointed judges are planning to take senior status next year, but the Georgia runoffs may affect their timing.  Several R appointed judges confirm that they were approached about retiring under Trump.  John Jones (MD-PA), Michael Kanne (7th Circuit), and Leslie Southwick (5th Circuit) all said that they have no immediate plans to retire, but would not rule out retiring under a D president.

Biden:  Various interest groups are demanding more 'diversity' among Biden's judicial nominees.  Not ideological diversity, obviously.

Biden:  Harsh Voruganti of the Vetting Room identifies four judges as possible Biden Supreme Court nominees.  They are Ketanji Brown Jackson (D-DC), Leondra Kruger (California Supreme Court), Sri Srinivasan (DC Circuit), and Paul Watford (9th Circuit). 

Senate Judiciary Committee hearings:
TBD

Confirmations:
TBD

The Federal Judiciary:

Supreme Court:  The Supreme Court unanimously dismissed a lawsuit by the Texas Attorney General attempting to overturn the election results in four states.  Andrew McCarthy explains why the suit was frivolous.

Trump:  Conservative judges, including those appointed by President Trump, have rejected his post-election lawsuits.  This refutes the claims that they are partisans who rule for policies they personally prefer.

Alito:  Justice Alito recently gave a speech to the Federalist Society.  He criticized the court's lack of vigilance in protecting religious liberty and the Second Amendment.  He implicitly criticized Chief Justice Roberts on those issues.

Breyer:  Justice Stephen Breyer says he will retire "eventually".

Federal Circuit:  The Federal Circuit never got a Trump nominee.  This circuit is less partisan, as it deals with patent law and some suits against the government.  The article is mainly concerned with the race of potential nominees, not their qualifications.

2nd Circuit:  Senior Judge Ralph Winter died on December 8 at age 85.  Reagan appointed him to the 2nd Circuit in 1981.  He took senior status in 2000.

5th Circuit:  Senior Judge Thomas Morrow Reavley died on December 1 at age 99.  He was on the Texas Supreme Court (1968-1977), and Carter appointed him to the 5th Circuit in 1979.  He took senior status in 1990.  He married fellow 5th Circuit judge and Carter appointee Carolyn Dineen King in 2004.

5th Circuit:  Trump's three appointees to the 5th Circuit representing Texas, Don Willett, James Ho, and Andy Oldham, are among the most conservative judges on the appeals courts.

Senior Status declarations:

WD-AR: Paul K. Holmes III (Obama) 11/10

State Supreme Courts:

Alaska:  Alaska Supreme Court Chief Justice Joel Bolger will retire in June 2021.  His replacement will be appointed by Governor Mike Dunleavy.  In July 2020, he appointed Dario Borghesan, who is (apparently) the only conservative on the five-member court.

Georgia:  Governor Brian Kemp announced the appointment of Fulton County Superior Court Judge Shawn Ellen LaGrua to serve on the Supreme Court of Georgia on December 1.  She was previously Inspector General for the Georgia Secretary of State’s Office, DeKalb County Solicitor General, and a prosecutor in Atlanta.  She replaces Justice Keith Blackwell, who retired in November.

Illinois:  Judge Robert Carter of the 13th Judicial Circuit Court was selected by the Justices of the Illinois Supreme Court to fill the district 3 seat of Justice Thomas Kilbride, who lost a retention election.  Carter was elected as a D.  He is 74, and has pledged not to seek election in 2022.

New Mexico:  Governor Michelle Lujan Grisham appointed Julie Vargas to the Supreme Court, filling the seat of Justice Judith Nakamura, who retired.  Vargas was a judge of the New Mexico Court of Appeals since her election in 2016.

North Carolina:  Supreme Court Chief Justice Cheri Beasley conceded the election to Republican Justice Paul Newby.  Rs won all three races in 2020.  The court's breakdown is now 4 D, 3 R.

Ohio:  R Ohio Supreme Court Justices Sharon Kennedy and Pat DeWine are considering running for Chief Justice.  Chief Justice Maureen O’Connor is age-limited in 2022.  Kennedy's term ends in 2026, while DeWine's term ends in 2022. D justices Michael Donnelly and Jennifer Brunner are rumored to be interested in the seat.

Rhode Island:  Governor Gina Raimondo named Melissa Long and senator Erin Lynch Prata to the Rhode Island Supreme Court.  Long is a Superior Court Judge since 2017, and was previously deputy secretary of state.  Prata's nomination was controversial due to a state ethics law that requires a one year hiatus before a sitting legislator can take a state job.  However, the state Ethics Commission voted 5-2, against the advice of its lawyers, to allow Lynch Prata to apply without waiting a year.  Long will succeed Supreme Court Justice Francis Flaherty, who retired December 31, and Prata will succeed Justice Gilbert Indeglia, who retired in June.  The Rhode Island Supreme Court had all R appointees, despite not having an R governor since 2010.

Texas:  Governor Greg Abbott appointed Houston judge Jesse McClure to the Texas Court of Criminal Appeals, where he will be the only black judge.  McClure was appointed to his current job in 2019 but lost election in 2020.  He replaces Judge Michael Keasler, age 78, who is age-limited.

Wisconsin:  Justice Brian Hagedorn of the Wisconsin Supreme Court has ruled differently than his three R colleagues on several high-profile issues.  Depending who you ask, he is either following the law in contrast to his more partisan colleagues, or engaged in a Roberts-style effort to appear above the fray.

Numbers and Trivia:

Party Line Votes:  Only 17 of President Trump's 54 appeals court judges (31%) got any support from Ds on the Senate Judiciary Committee.  Perhaps President Biden's nominees will receive similar treatment from Rs on the Senate Judiciary Committee.

Chief Judges:  The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4, 6, 9), W (1, 2, 3, 5, 7, 8, 10, 11, Fed), and Obama (DC).  There are four chief judges that will change in 2021.  They are expected to be
6th Circuit (May 23) R. Guy Cole (Clinton) -> Jeffrey Sutton (W)
Federal Circuit (May 24) Sharon Proust (W) -> Kimberly Ann Moore (W)
9th Circuit (December 1) Sidney Thomas (Clinton) -> Mary Murguia (Obama)
3rd Circuit (December 4) Brooks Smith (W) -> Michael Chagares (W)
There could be more, and the dates could be sooner, if any chief judge steps down early.

History:

Senior status:  Harsh Voruganti of the Vetting Room reviews the history of taking senior status upon confirmation of a successor, an increasingly common practice. 

Resources:
Bench Memos (National Review)
The Vetting Room

How Appealing
Twitter: FedJudges Senate Cloakroom
Senate Judiciary Committee
ABA Judicial Ratings
Wikipedia: US Appeals Courts Trump Judges 
Senior Status Spreadsheet
Future Judicial Vacancies
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia--State Supreme Court Vacancies 2020 2021
The Supreme Courts
2020: March April May June July August September October Elections November December

Did Dominion Flip Votes in Antrim County?

Since election night 2020, controversy has swirled around Antrim County in northwest Lower Peninsula.  The reported vote totals showed Joe Biden handily winning the county, and many people (including me) immediately realized that this could not be correct.  The county clerk retracted the results and ordered a retabulation, which produced a reasonable result.  (Trump's margin declined by 233 votes compared to 2016.)

This launched a conspiracy theory about Dominion Voting Systems, a manufacturer of voting machines and vote counting machines.  Antrim County Clerk Sheryl Guy (R) has explained the problem as follows:

Guy has said Biden appeared to be winning in early, unofficial county results because of a problem that developed when she attempted to update Election Source software on isolated tabulators. Because the update was not applied to all tabulators, results were transposed as they were pulled from the tabulators into the county's main voting software.

I don't understand exactly how this happened, but this sounds like the sort of thing that could happen if a program is not written to account for user errors.

There are all sorts of wild claims about Dominion, from who owns it to how its program in written.  I won't try to evaluate these claims.  Perhaps their software is badly designed or has vulnerabilities.  Even if this were the case, it would not mean that the count for this election were necessarily wrong.  Fortunately, it is not necessary to analyze the machines themselves to know whether they produced an accurate count.

It doesn't make much sense to claim that the initial vote count was the result of vote-flipping.  If the expected margin is off by 40% or so, this will certainly attract attention, and likely lead to a recount, which is what happened.  Vote-flipping could only change the margins by a single digit percentage and remain plausible.

Furthermore, the vote totals in Michigan do not support the claim that Dominion was flipping votes.  I analyzed Michigan' vote totals by county, comparing counties that use Dominion to those that don't.  I found that Trump actually improved from 2016 in counties that use Dominion machines and declined in counties that don't use Dominion machines.  The data provide no evidence to support the theory that Dominion machines flipped votes from Trump to Biden.

A report by Russell Ramsland of the "Allied Security Operations Group" claims that Dominion machines are "intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results."  The report was commissioned due to a (supposedly) unrelated lawsuit over a local marijuana ordinance.  Judge Kevin Elsenheimer, an R former state Republican rep, ordered the release of the report.

The report was disputed by several experts.  One is Christopher Krebs, the first director of the Cybersecurity and Infrastructure Security Agency.  Krebs was appointed by President Trump in 2018, and was fired after he disputed Trump's claims of fraud.  He said that ASOG "misinterpreted what it saw in the computer coding and used it to "spin" allegations that voting machines couldn't be trusted."

"I'm seeing these reports that are factually inaccurate continue to be promoted. That's what rumor control is all about. That's what I'm continuing to do today, based on my experience and understanding and how the systems work," Krebs said. "We have to stop this. It's undermining confidence in democracy."

I won't try to evaluate the report itself, since it is outside my area of expertise.  However, I can consider the credibility of the person who wrote the report.  Russell Ramsland has previously filed affidavits in lawsuits alleging fraud in the 2020 presidential election.  One affidavit claimed that various townships in Michigan had over 100% turnout.  The townships were actually in Minnesota, not Michigan, and turnout was not over 100%.  Another affidavit claims that turnout in detroit was 139%, when it was actually 51%.  It also claims false turnout rates for many other jurisdictions in Michigan.

All the controversy led the Michigan Bureau of Elections and Antrim County to conduct a hand recount in Antrim County.  It found a 12 vote gain for Trump, which is well within the range of error that you would expect when a few people don't mark the ovals clearly.  Thus the corrected vote count was accurate.  There was no vote-flipping in Antrim County.

This raises the question of why the Trump Campaign never asked for a recount in Antrim County.  Indeed, they never asked for a hand recount anywhere that uses Dominion machines.  They did ask for recounts in Milwaukee and Dane County in Wisconsin, which use a different vendor.  The Wisconsin recounts found no vote-flipping.  In Georgia, a hand recount was conducted automatically; it was not requested by the Trump campaign.  The recount found some human error; it did not find any vote-flipping.

So why didn't the Trump campaign request any hand recounts in jurisdictions that use Dominion vote counting machines?  The inescapable conclusion is that they don't believe that vote-flipping happened.  Is it possible that the Trump campaign would like people to believe that the election was stolen, and it doesn't want to produce evidence contrary to that belief?

Can a President Lose While His Party Gains House Seats?

Steve Deace recently claimed (1:32) that in the past 100 years before 2020, only one incumbent president lost reelection while his party gained house seats.  This claim is true, but highly misleading.  Only four incumbent presidents have lost since 1916--Hoover, Carter, HW Bush, and Trump.  (Ford, while technically an incumbent, was never elected.)  In 2 of those 4 elections (1992 and 2020), the president's party gained house seats.  The 1932 and 1980 elections were landslides, so it is not surprising that the president's party lost house seats then.  (In 1976, the Ds gained just 1 house seat, so this doesn't add much to the pattern.)

So the thing that almost never happens actually happened 2 out of 4 times!  Something that happens half the time is not surprising!  This is the sort of factoid that is cited as evidence of election fraud, but doesn't prove anything.  It sounds impressive due to the length of time (100 years!) but there are actually only 4 relevant elections, so the denominator of the fraction is small.

It should also be noted that whether a party gains or loses house seats depends greatly on the previous (midterm) election.  In 2018, Rs lost 42 house seats, so it is not surprising that Rs gained some in 2020.

Was There are Red Wave Downballot in 2020?

Some people are arguing that the 2020 election results were a "red wave" aside from the presidential election, and this indicates voter fraud in the presidential election.

Even if this were true, it would not prove voter fraud.  It could just be that some segment of normally R voters refused to vote for the president, but still voted R downballot.

But was 2020 a red wave?  In the senate, Rs lost two seats (AZ, CO) and picked up one (AL) for a net loss of one (pending the outcome of the Georgia runoffs).  The results of the senate races and the presidential race were the same in all but one state.  The one exception was Maine, where Susan Collins is a popular moderate incumbent who regularly outperforms the top of the ticket.

Comparing R senate candidates' margins to Trump doesn't reveal an obvious pattern.  Trump did better in some states, while R senate candidates did better in others.  Patrick Ruffini made a map illustrating the differences.

Senate GOP vs. Trump performance by county in ballots cast so far, by county. Orange = Trump outperform. Even as margins shift, this metric should hold up. pic.twitter.com/7c3FitXlrQ

— Patrick Ruffini (@PatrickRuffini) November 6, 2020

In particular:

Trump did better than R incumbents in: AZ, ID, IA, KY, MS, MT, OK, SC
R incumbents did better than Trump in: AK, AR, CO, GA, LA, ME, NE, NC, SD, TX, WV
Trump did better than R challengers in: AL, DE, KS, MA, NH, NJ, OR, RI, VA
R challengers did better than Trump in: IL, MI, MN, NM, TN, WY

In the US house of representatives, Rs picked up 14 seats (CA-21, CA-25, CA-39, CA-45, FL-26, FL-27, IA-1, IA-2, MN-7, NM-2, NY-11, OK-5, SC-1, UT-4), and lost 3 seats (GA-7, NC-2, NC-6), none incumbents, for a net gain of 11 seats (with NY-22 still undecided).  It appears that Biden won 224 seats and congressional Ds won 222 seats.  There were some Trump/D seats and some Biden/R seats.  Left Coast Libertarian at RRH Elections notes that:

Joe Biden got 80,048,633 votes. Congressional Democrats got 76,298,374.

Donald Trump got 73,902,347 votes and Republicans got 72,542,282.

So Democrats got 95% of Biden’s vote total and Republicans got 98% of Trump’s vote total. If we average them Democrats underperformed by about 1.1 million votes. That’s a really small number of votes. It shouldn’t be unexpected that one party would do slightly better.

So how is it possible that Rs picked up seats?  Rs picked up seats RELATIVE TO 2018.  In 2018, Rs lost 42 seats from 2016.  Thus Rs lost house seats since 2016, the last time Trump was on the ballot.  Note that all but two seats that Rs picked up in 2020 were seats that Rs lost in 2018.

Some have noted that Rs won all tossup house races (according to the New York Times).  But this just indicates that the election raters did a bad job, likely due to relying on bad polls.  The conservative-leaning RRH Elections did much better, though still leaning too D.  My own ratings of Michigan elections were very good, as I did not rely much on polls.

Rs picked up two state house chambers, both in New Hampshire.  This was apparently due to the popularity of incumbent R governor Chris Sununu, who campaigned heavily for R state legislative candidates.  Rs flipped a modest number of state legislative seats, further picking up rural seats in states like KY and WV, and flipping back some seats that were lost in 2018.

Overall, the 2020 election results were slightly worse than in 2016, but significantly better than in 2018.  There was no inconsistency between the presidential election and downballot results in 2020.

Do Incumbent Presidents Who Increase Their Votes Always Win?

One claim going around is that for the past 150 years, no incumbent president has increased his raw vote total and lost (and this suggests voter fraud).

In the past 150 years, there were 38 presidential elections.  In 19 of those elections, there was no president running for reelection (an incumbent who was not elected cannot run for reelection).  Since the claim is only about incumbent presidents, we have to discard those.

That leaves 19 elections with an incumbent running for reelection.  Incumbent presidents won 12 times.  Since the claim is about incumbents who lost reelection, we have to discard these also.

In the past 150 years, only seven incumbent presidents have lost reelection in the general election.  (This does not count Gerald Ford, who was not elected initially.)  Presidents Taft, Hoover, Carter, and George HW Bush all lost in landslides.  The claim is only really relevant to incumbent presidents who lost narrowly, which includes Grover Cleveland, Benjamin Harrison and Trump.  A trend that only holds for three elections isn't much of a trend.

There is one more problem.  THE CLAIM IS FALSE.  Grover Cleveland got 4,914,482 votes in 1884, when he won, and 5,534,488 votes in 1888, when he lost.  Sadly, it seems that people don't bother to check claims like this before passing them on.

Polling: What Went Wrong?

People who want to know the future have many tools.  There are crystal balls, fortune cookies, horoscopes, and just a bit more credible, public opinion polls.  The 2020 election featured a spectacular failure of the polling industry.

RealClearPolitics catalogues all major (non-candidate) polls.  They also average the results of all recent polls, which effectively increases the sample size and reduces the margin of error.  Their national polling average was Biden +7.2, while the popular vote was Biden +4.5, an error of 2.7%.  The results in many state polls were even worse.  In Ohio, the error favored Biden by 7.2%.  In Iowa, it was 6.2%.  In Wisconsin, it was 6%.  Overall, Trump outperformed the polls in 33 states.  Curiously, Biden did overperform the polls in a few states, including Minnesota.

A review of how polling works is in order.  It is neither possible nor practical to ask everyone in a population their opinion.  Thus a pollster seeks a sample of the population and tries to infer the views of the whole population based on the sample.  For this to work, the sample should be randomly selected, that is, every possible sample should be equally likely to be picked.  A randomly selected sample is unlikely to match the population exactly, but there are well-understood mathematical laws that describe how far from correct the results are likely to be.  This kind of error is known as sampling error--error caused by a sample not matching a population.  The margin of error is the margin on either side of the estimate that we can be 95% confident contains the true value.

In practice, however, the sample a pollster obtains is not random.  Nobody can be forced to participate in a poll, and if even one person declines, the sample is not random.  It used to be the case that most people answered the phone and talked to pollsters.  But over time, response rates declined due to telemarketers, robocalls, answering machines, caller ID, and cell phones.  Now response rates typically range between 1% and 5% of people called.  The sample a pollster obtains is usually wildly unrepresentative of the population.

How do pollsters deal with this?  They ask respondents various demographic information (race, sex, political party, education).  Then they weight the results so they match the presumed demographic breakdown of the electorate.  But they don't actually know this breakdown.  Pollsters make an educated guess based on demographics of past elections (which can be estimated, but not known exactly) and their beliefs about what the electorate will look like.

Essentially this makes the poll itself an educated guess.  Educated guesses are often close to accurate, and they are more accurate than the sort of wishful thinking that predominates among political ideologues.  But educated guesses can be wrong, sometimes wildly so.

This cycle, it appears that many Trump supporters didn't answer their phones, or refused to participate in polls.  This skewed the samples, even with the adjustments that pollsters made.  But why did Trump supporters refuse to talk to pollsters?  Some may simply hate the media.  Others may be concerned about admitting their views, even in a supposedly anonymous poll.

This phenomenon is known as social desirability bias.  One previous example of this is the Bradley effect, in which voters were supposedly more likely to say they would vote for a black candidate than to actually do so.  This effect remains controversial, however.

Researchers try to account for social desirability bias in various ways.  One way is to ask people what their friends or neighbors think about the election.  This is the methodology used by Trafalgar, a pollster who found much better results for President Trump than other pollsters.  The problem of social desirability bias applies to issue polls, as well.

Polls can be useful when appropriate precautions are taken, but other indicators of public sentiment should not be ignored.

Does High Voter Turnout Prove Voter Fraud?

UPDATED 6/29 with final numbers.

One argument that there was mass voter fraud in the 2020 election is that the overall number of votes is too high.  The argument often includes the fact that Joe Biden got 82 million votes in 2020, while Barack Obama got 69 million votes in 2008.  How can this be explained?

1. Population growth.  The US population is not constant.  In 2008, there were 304 million people; in 2020 there are 331 million, according to the census bureau.  That's 27 million more people.  The popular vote went from 131 million to 160 million over the same time period.  That's an increase of 29 million votes.  Turnout was slightly higher than 2008, but not much.  Population growth almost entirely explains the change.

2. Vote by mail.  Due to COVID, many states loosened their rules and promoted voting by mail.  Some Secretaries of State (including SOS Benson) mailed absentee ballot applications to everyone.  Their goal was to increase turnout (and help Ds), and it worked.

3. Likeability.  Who do voters dislike more, Hillary Clinton or Joe Biden?  Most likely, Hillary.  Some D-leaning voters refused to vote for Hillary but decided Biden was good enough.

4.  Trump.  The election was a referendum on Trump.  Many people strongly support the president, and many strongly oppose him.  Biden was a vessel for the latter group.  Even aside from COVID, there was no reason for anyone to go to his rallies.

By the way, there is nothing unusual about this historically.  In 2000, Al Gore got 51 million votes (48.4%).  Four years later, John Kerry got 59 million votes (48.3%).  Kerry didn't have that many enthusiastic supporters, but the left hated George W. Bush.  Ralph Nader got 2.7% in 2000, but only 0.4% in 2004.  Many third party voters saw the election as a referendum on the incumbent.  It appears the same happened this year.

Presumably, proponents of the high turnout theory believe that millions of illegal votes were added for Biden.  Absentee ballot fraud seems to be the most common theory for how this could happen.  Breaking down the turnout increase by state casts further doubt on this theory.

Turnout was up in every state from 2016 to 2020.  The turnout percentage hit a 40-year high in 44 states.  Biden 2020 had a higher raw vote total over Hillary 2016 in every state.  Trump's margin declined in 43 states, and increased in only seven (AR, CA, FL, HI, IL, NV, UT).  (In IL and NV the increase was less than 0.1%)  If the turnout increase was due to fraud, the fraud occurred all across the county, including in states that were not at all competitive.

I calculated the percentage increases in turnout by state.  The largest percentage increase was in Hawaii, up 34% from 2016.  Hawaii is a deep blue state with no competitive statewide races.  The second largest increase (32%) was in Utah, a deep red state with no competitive statewide races, and only one competitive congressional race.  The top ten percentage increases are 

HI 34%
UT 32%
AZ 30%
TX 26%
ID 26%
NV 25%
CA 23%
WA 23%
TN 22%
GA 22%

Only three of these states (AZ, NV, GA) were swing states (four if you count Texas).  The state with the smallest increase was North Dakota.

Were Ds conducting massive voter fraud operations in safe red states?  It seems unlikely.  Note that this does not mean that there was no absentee vote fraud, only that a turnout increase, by itself, does not prove it.

December 2020 Judiciary News

Leave no vacancy unfilled.

Nominations, Hearings, Confirmations:

Lame Duck:  Senator Feinstein has called on Republicans to stop processing judicial nominations during the lame duck session.  They declined.

Biden:  Dana Remus will be Biden’s White House counsel.  She was a clerk for Justice Alito, and supported the nominations of fellow clerks Michael Park and Andy Oldham.  A fellow clerk says that Remus “never held herself out as especially ideological”.

Biden:  President-elect Biden's team is supposedly vetting potential judicial nominees.  It isn't clear for which positions, since there are very few vacancies at present.  They are supposedly looking for candidates with "demographic diversity, but also different backgrounds", so finding candidates who fit their criteria could slow the process.

Biden:  How will senate Rs treat Biden's judicial nominees?  It is expected that there will be some resistance, but it isn't clear how much.

Feingold:  The leftist American Constitution Society, run by former Senator Russ Feingold, is sending a list of prospective judicial nominees to Biden.  It remains to be seen whether their list will be put in the shredder by Biden or McConnell.

Feinstein:  Senator Dianne Feinstein will step down as top Democrat on the Senate Judiciary committee.  She faced criticism from the left of her handling of the Kavanaugh and Barrett nominations.  It isn't clear whether she stepped down voluntarily or was forced out.

Durbin:  Senator Dick Durbin will seek to become the Democrat on the Senate Judiciary committee.  He seems likely to get the job.  Some progressive groups are unhappy, and would prefer Sheldon Whitehouse get the job.

New Nominations:
TBD

Senate Judiciary Committee hearings:
December 3 (business): Thomas Kirsch (7th Circuit) and four district court nominees are likely to be held over.

Confirmations:
TBD

The Federal Judiciary:

7th Circuit:  Judge Joel Flaum took senior status on November 30 at age 84.  He was appointed to ND-IL by Ford in 1974 and to the 7th Circuit by Reagan in 1983.  He has a moderate record.  He was the longest-serving active appeals court judge.  That honor will now go to Pauline Newman of the Federal Circuit.

9th Circuit:  Many liberal judges have been waiting for the end of Trump's presidency to take senior status.  A 9th Circuit judge says “I anticipate quite a few people doing things to enter senior status,” but “they might want to wait for a Democratic Senate, although I don’t know whether that ever will happen.”  Another judge suggests that they should make taking senior status contingent on confirmation of a successor.

D-MD:  Judge Richard Bennett of the U.S. District Court for the District of Maryland is taking senior status upon confirmation of his successor. He was appointed by George W. Bush in 2003.

State Supreme Courts:

Retention Elections: 

Alaska:  Liberal Susan Carney won 63%.

Florida: Conservative Carlos Muniz won 66%.

Illinois:  Justice Thomas Kilbride got only 56%, failing to win meet the 60% threshold.  The other justices will choose a replacement for the next two years.

Multi-candidate elections:

Illinois:  David Overstreet (R) won 63% against Judy Cates (D) for an open R-held seat.

Kentucky:  Conservative Circuit Judge Robert Conley defeated D state rep Chris Harris 55% to 45%.

Louisiana:  Judge Jay McCallum (R) won the district 4 seat with 57% over an (apparently) less conservative R.  In district 7, Judge Piper Griffin and 4th Circuit Court of Appeal Judge Terri Love (both D) head to a runoff on December 5.

Michigan:  Chief Justice Bridget Mary McCormack (D) was easily reelected with 32%.  Liberal D attorney Elizabeth Welch won the second seat with 20%.  R prosecutor Mary Kelly was third with 17%.  The court now is 4D, 3R.

Mississippi:  Conservative Justice Kenny Griffis won 51% over liberal Judge Latrice Westbrooks.  Justice Josiah Coleman was also reelected with 63%.

Montana:  R-leaning Justice Laurie McKinnon defeated trial lawyer Mike Black 57-43.

Nevada:  R-supported Eighth Judicial District Court judge Douglas Herndon beat D state rep Ozzie Fumo 47-36 (with the rest going to none of the above).

North Carolina:  Court of Appeals judge Phil Berger Jr. (R) defeated Lucy N. Inman (D) with 51%, and former state senator Tamara Barringer (R) defeated Justice Mark A. Davis (D) with 51%.  Justice Paul Martin Newby (R) leads Chief Justice Cheri Beasley (D) by 433 votes as a recount continues.

Ohio:  Liberal D former SOS Jennifer Brunner won 55% against Justice Judi French (R).  Justice Sharon Kennedy (R) won 55% against Judge John O’Donnell (D).  The Ohio Supreme Court will be 4R, 3D.

Texas:  All R incumbents were reelected with 53% to 55% of the vote.

New Hampshire: Republican Governor Chris Sununu was reelected, and Rs won a majority on the state Executive Council, which will allow the NH Supreme Court vacancy from 2019 to finally be filled.

Colorado:  Governor Jared Polis appointed Maria Berkenkotter to the Colorado Supreme Court.  She replaces retiring Chief Justice Nathan Coats, the last Republican-appointed justice on the court.  Justice Brian Boatright will be the new chief justice.

Kansas:  Governor Laura Kelly appointed Judge Melissa Standridge to the Kansas Supreme Court, filling the vacancy left by former Justice Carol Beier.  Standridge served on the Kansas Court of Appeals since 2008.  She also served as chambers counsel to U.S. District Magistrate Judge David Waxse and in private practice.  This is Kelly’s third appointment.

Massachusetts:  Governor Charlie Baker appointed Kimberly Budd as chief justice of the court, replacing Chief Justice Ralph Gants, who died at age 65.  She has been a justice since 2016.  Baker nominated Boston Municipal Court Judge Serge Georges Jr. to replace Budd.  He was nominated to the lower court by Deval Patrick.  Baker also nominated Appeals Court Associate Justice Dalila Argaez Wendlandt to fill the seat of Justice Barbara Lenk, who is age-limited in December.  She clerked for Judge John Walker Jr. (2nd Circuit), and was appointed to the appeals court by Baker in 2017.

Numbers and Trivia:

Circuit Judges:  The new circuit justice assignments for Supreme Court justices have been announced.  They hear emergency appeals from lower courts in these circuits.

1 Breyer

2 Sotomayor

3, 5 Alito

4, DC Roberts

6, 8 Kavanaugh

7 Barrett

9 Kagan

10 Gorsuch

11 Thomas

My prediction from October was only off on the 8th Circuit.

History:

Kennedy:  Ilya Shapiro reviews the history of Anthony Kennedy's confirmation and his jurisprudence on the court.

Resources:
Bench Memos (National Review)
The Vetting Room
Twitter: FedJudges Senate Cloakroom
Senate Judiciary Committee
ABA Judicial Ratings
Wikipedia: Trump Judges US Appeals Courts
Senior Status Spreadsheet
Future Judicial Vacancies
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia--State Supreme Court Vacancies Elections
The Supreme Courts
2020: March April May June July August September October Elections November

Judicial Nomination Strategies

Assuming that we end up with President Biden and an R majority senate, what strategy should R senators pursue with regard to Biden's judicial nominees?  There are several possibilities.

1. Maximum Resistance.  Don't confirm any Biden nominees.

2. One-for-One.  Confirm one conservative and one liberal for a pair of vacancies.

3. Status Quo.  Confirm liberals to replace liberals and conservatives to replace conservatives.

4. Tit-for-Tat.  Treat Biden nominees the way that D senators treated Trump nominees.  D senators who acted reasonably (IL, MI, CT) get their choices, those who didn't, don't.

5. Back to Normal.  Confirm most Biden nominees, rejecting a few who are too extreme.

Strategy 1 offers the biggest upside and the biggest downside, depending which party gets control of both the presidency and the senate first.  Strategy 2 would likely result in a net gain for conservatives, since more liberals are likely to retire under Biden than conservatives.  Strategies 2-5 at least offer the advantage of filling seats that could go to more leftist nominees if Ds take the senate.

Strategies 2 and 3 could turn into strategy 1 if Biden doesn't go along.  But they at least allow R senators to say they offered a compromise.  Obama did agree to a one-for-one deal in Georgia in 2014 when Ds still controlled the senate, so Biden might agree to something similar.

Personally, I'm leaning toward strategy 2 for appeals court nominees.

2020 Michigan Local Election Results

There were many local election results of interest in Michigan.  Rs picked up some seats in areas where President Trump did well, but there were also missed opportunities due to local GOPs not contesting seats.

Allegan:  Rs won all six countywide offices and won 7/7 county commission seats, all uncontested.

Bay:  What a failure by the Bay County GOP.  Rs won all state elections in Bay County, but the Bay GOP did not contest six of eight countywide offices.  Popular D county executive (and former congressman) Jim Barcia was reelected.  R Michael Rivard did defeat incumbent D drain commissioner (and former state rep) Joe Rivet.  Rs contested only two of seven county commission seats, and won one of them.

Berrien:  Rs won all seven countywide races.  Rs won 10/12 county commission seats.  The district 5 (St. Joseph) seat resulted in a tie, which was won by the R drawing lots.

Calhoun:  Rs won all five countywide offices and 5/7 county commission seats.

Eaton:  Rs won 3 of 5 countywide offices, prosecutor, clerk, and drain commissioner.  Former state senator Rick Jones lost for sheriff by 2.6%, and an R lost for treasurer by 4.5%.  Rs won 9/15 county commission elections, picking up three seats.  An R won district 10 by 7 votes.

Genesee:  Ds won all six countywide offices.  Rs won 2/9 county commission seats, holding district 6 (Fenton) and picking up district 7 (North), but losing district 9 (East) by 2%.  Rs also came within 5% in district 5 (Grand Blanc) and 2% in district 8 (West).  Thus Rs were close to winning a majority on the Genesee County Commission.

Grand Traverse:  Rs won all six countywide offices.  Rs won 5/7 county commission seats.

Jackson:  Rs won all six countywide offices and 7/9 county commission seats.

Kalamazoo:  Rs won only the unpaid surveyor office of the six countywide offices.  R Treasurer Mary Balkema narrowly lost to underqualified D Thomas Whitener.  Rs won 4/11 county commission seats, picking up districts 6 and 9.  In district 6 (Cooper, Richland, Ross), former commissioner (2002-16) Jeff Heppler won 56% over a D appointed by the D-majority board when an R resigned. District 9 (Texas), vacated by Christine Morse to run for state rep, was won by the man she beat in 2018, former state senator (1994-2002) and commissioner (2014-18) Dale Shugars with 50.2%.  Rs got about 48% in districts 5 and 11.

Kent:  Rs won all five countywide offices, though the drain commissioner race had only a 3% margin.  State senator Peter MacGregor was elected treasurer by a 4.4% margin; there will be a special election to fill his seat.  Rs won 11/19 county commission seats.

Lenawee:  Rs won all eight countywide offices and 8/9 county commission seats.

Ingham:  Ds won all six countywide offices and Rs won 3/14 county commision seats.

Leelanau:  Rs won all seven countywide offices in a county that President Trump lost.  Rs won 4/7 county commission seats.  District 1 was won by only 2 votes.

Livingston:  Rs won all six countywide offices and 9/9 county commission seats.

Macomb:  Rs won 4 of 5 countywide offices, only losing the sheriff race.  State senator Pete Lucido won 52% for prosecutor.  There will need to be a special election to fill his seat.  Former state rep. Tony Forlini beat incumbent clerk Fred Miller 51-49.  Incumbents Larry Rocca and Candace Miller were reelected as treasurer and public works commissioner.  Rs won 7/13 county commission seats, beating incumbents in districts 5 (Sterling Heights) and 10 (St. Clair Shores, Harrison Township).  Rs also came close in districts 9 and 12.  Rs will control redistricting.

Marquette:  Ds won all seven countywide offices, and 6/6 county commission seats.

Monroe:  Rs won 3 of 6 countywide races, prosecutor, clerk, and sheriff.  The R barely lost for sheriff.  Rs did not contest the drain commissioner or surveyor.  Rs won 7/9 county commission seats.  Former R state senator Randy Richardville beat former D state rep Bill LaVoy in district 5.

Muskegon:  John James won this historically D county.  Rs contested four of six countywide offices, but won none.  The drain commissioner race was lost by only 1.4%.  Rs won 5/9 county commission seats, picking up district 9 (Whitehall), and losing district 3 (Muskegon Township) by only 3.5%.

Oakland:  Rs won only one countywide office.  Mike Bouchard got 54% for sheriff.  Mike Kowall got 44% for county executive.  Joe Kent got 46% for Treasurer.  Rs won 10/21 county commission seats.  Klint Kesto lost district 5 (West Bloomfield) by 606 votes (1.7%).  Adam Kochenderfer won after a "technical glitch" initially reported that he had lost.  Rs have lost control of redistricting (which is controlled by the commission), which is bad news for Oakland County Rs.

Ottawa:  Rs won all five countywide offices and 10/11 county commission seats.

Saginaw:  Donald Trump won Saginaw County in 2016, but the Saginaw GOP only contested one countywide race, and lost it.  Rs won 5/11 county commission seats, picking up district 7 (southeast), but losing district 3 (Saginaw Township).

St. Clair:  Rs won 6/7 county commission seats.

Van Buren:  Rs won all 7 countywide offices uncontested.  Rs won 6/7 county commission seats.

Wayne:  Rs won only county commission district 9 (Livonia/Northville).  District 15 (Downriver) was lost by 11%, so this district may be worth targeting in the future.

Washtenaw:  Ds won all countywide races and 9/9 county commission districts.  District 3 was a close 3.2% loss.

Did Steven Crowder find Massive Voter Fraud in Detroit?

Conservative commentator Steven Crowder claims to have found "173K Anonymous Votes" in the Detroit election returns.

Crowder is a good guy, but he doesn't know what he's talking about.  The "precincts" with no registered voters are for absentee votes (that's what AV means).  Some jurisdictions put their absentees in separate "precincts", which often combine several real precincts together.  (Kalamazoo County used to do this.)  Note that Detroit has 503 real precincts, but only 134 AV precincts.  It's  a dumb system, but that's how Detroit does it.

Does anyone think local Republicans or the Trump campaign wouldn't have complained about fake precincts with thousands of votes if there was something here?  They didn't, because they know how Detroit reports election results.

Recall that Detroit had 1000 FEWER votes for Joe Biden than for Hillary Clinton in 2016, which is hard to square with massive voter fraud there.

Has Dr. Shiva Proven Michigan Voter Fraud?

A recent youtube video by Dr. Shiva Ayyadurai claims that precinct-level data in Michigan reveals voter fraud.  Dr. Shiva has a Ph.D. in biological engineering from MIT.  He has twice run for senate in Massachusetts as an independent, once after losing the Republican primary.  He also has some "interesting" views on other topics, as detailed on his Wikipedia page.

   

My favorite part of the video is when Dr. Shiva says that Michigan has "around 86 counties".  Why not just say 83, the actual number?

Dr. Shiva analyzed data from the four largest counties in Michigan (Wayne, Oakland, Macomb, and Kent).  He made scatterplots of the precinct data for each county, comparing the straight ticket percentage for Republicans to the difference between Trump percentage and R straight ticket percentage.

On the Oakland County plot, he drew a horizontal line segment, followed by a downward sloping line.  While this seems to fit the Oakland data, it doesn't fit the Kent or Macomb data any better than just a regression line.  The plotted lines slope downward.  He claimed that this is proof of votes being taken away from Trump.

Note that the three counties Dr. Shiva accuses of fraud use three different voting vendors.  His video isn't focused on Dominion Voting Systems--his theory would implicate all three vendors.

Matt Parker, a math popularizer, responded to Dr. Shiva.

He points out a serious mathematical error.  Dr. Shiva subtracts two percentages that don't come from the same population!  This results in nonsensical data.  As Parker points out, this subtraction isn't really necessary to make the point Dr. Shiva wants to make.  You can just find a correlation between R   straight party percentage and Trump percentage.  I did this for Kalamazoo County.

The correlation is quite strong, as we would expect.  Dr. Shiva is asserting that the proportions of Republican straight ticket voters and Trump voters among non-straight ticket voters should be about the same.  That is, the slope of the regression line should be (approximately) 1.  However, we find that the slope is actually less than 1.  Dr. Shiva claims that this is evidence of voter fraud--that an algorithm in the vote counting machine has flipped votes from Trump to Biden (while presumably not flipping straight ticket votes).  But is this assumption correct?

Parker points out that this assumption can be checked by plotting straight ticket D votes against Biden votes.  If Trump votes were flipped to Biden, those votes should show up in this plot, right?  But the slope of the regression line for this plot is also less than 1.

This disproves the vote-flipping theory.  But what is causing the slopes of both these plots to be less than 1?  Parker didn't try to answer this, but there is a reasonable explanation.  When a precinct leans heavily to one party, there will be more people who defect to the minority party than the reverse because there are more people in the majority party to defect.

Consider an example.  Say a precinct has 100 voters, 80 typically vote R and 20 typically vote D.  Say half of the voters of each party vote straight ticket, 40 R and 10 D.  Then the R percentage of straight ticket votes is 40/(40+10) = 80%.  Now say 10% of each party's non-straight ticket voters defect to the other party's candidate.  That would be 8 R and 2 D voters.  Then the non-straight ticket voters break down 40-8+2 = 34 R and 10-2+8 = 16 D.  The R percentage of non-straight ticket voters is 34/50 = 68% R, less than the 80% R straight ticket voters.

Feel free to construct your own example.  As long as the proportion defecting from each party is the same, you will find the same effect.  Thus there is a reasonable explanation for the fact that non-straight ticket votes are less partisan than straight ticket votes.  Dr. Shiva is mistaken.

How Trump Lost Michigan

Four years ago, I wrote a long analysis of How Trump won Michigan.  The key points of that analysis are

• Trump did much better than other republicans in rural and downscale (working class/union) areas like Downriver, Macomb, suburban Genesee, and the northeastern Lower Peninsula.
• Trump did poorly in upscale (highly educated) suburbs in Oakland, Kent, and Kalamazoo counties.
• Turnout in Detroit was relatively poor, providing democrats with a relatively small absolute margin there.

Trump's margin of victory in Michigan in 2016 was 10,704 votes.  At the moment, the unofficial totals show Joe Biden with 2,804,039 votes and Trump with 2,649,852 votes.  Biden's margin over Trump is 154,187 votes.  This analysis will consider county vote totals to determine where this shift occurred, and whether there is any reason to be suspicious of the official totals.

County Margin Changes

Trump's performance by county is illustrated in the map below.

Data at the SOS website is broken down by county.  Subtracting 2016 and 2020 margins, we find the biggest (approximate) changes in margin in the following counties.

-54200 Oakland

-32500 Wayne

-30900 Kent

-23000 Washtenaw

-11300 Ingham

-10700 Kalamazoo

  -9400 Macomb

  -7300 Ottawa

  -4600 Grand Traverse

The totals are broadly consistent with the results of the last two elections.  Counties with many white leftists, particularly those featuring large universities (Washtenaw, Ingham, Kalamazoo) saw large increases in D turnout.  Upscale suburbs continued to trend away from Trump.  This is particularly the case in Dutch Reformed Christian areas (Kent, Ottawa), which voted for Ted Cruz in the 2016 primary.

Trump also improved his margin in many smaller counties.  The largest gains were about 3300 each in Monroe and St. Clair, and 3100 in Montcalm.

Local Voter Fraud?

Of course, this is taking the unofficial vote totals for granted.  Since election day, there have been many claims of fraud, and allegations that the election was stolen.  Specific allegations include that late-arriving absentee ballots were back-dated so that they could be counted, and that some poll workers encouraged voters to support Biden.  These allegations are plausible (though unproven) and deserve further investigation.

We should be careful to distinguish between voter fraud that happens a few votes at a time, and mass voter fraud (adding, deleting, or changing thousands of votes at a time).  Only the latter could have swung the election by a large enough margin to give the state to Biden.

Allegations of fraud have centered around the city of Detroit and the counting of absentee ballots at the TCF Center (formerly Cobo Center).  This is understandable, given Detroit's long history of incompetence (or worse) at running elections.  To get a handle on what happened in Detroit, consider the raw totals and percentages for GOP and D candidates for the past six elections.

Year – GOP (percent) and Dem (percent):

2000 – 15688 (5.22%), 282111 (93.88%)

2004 – 19343 (5.93%), 305258 (93.65%)

2008 –   8888 (2.65%), 325534 (96.99%)

2012 –   6018 (2.09%), 281743 (97.63%)

2016 –   7682 (3.11%), 234871 (94.95%)

2020 – 12654 (5.08%), 233908 (94.00%) 

Note that Trump got 5000 MORE votes than he got four years ago, consistent with a modest improvement with black voters nationwide.  Biden got 1000 FEWER votes than Hillary did in 2016.  The data provide no evidence to support mass voter fraud in Detroit.

How then did Biden gain 32000 votes in Wayne County versus 2016?  Trump lost ground in the upscale suburbs of western Wayne County.  For example, Trump's margin declined in the following jurisdictions.

-7500 Canton Township

-5200 Livonia

-2000 Northville Township

-1800 Plymouth Township

Similar patterns occurred elsewhere in the state.  In Kent County, Trump lost 13000 votes in Grand Rapids, and lost the suburbs of Kentwood, East Grand Rapids, Wyoming, and Grand Rapids Township.

Trump's biggest relative declines from his 2016 percentages were in West Michigan, Oakland, and Washtenaw.  Trump's biggest relative increases from his 2016 percentages were in the northern lower peninsula and Wayne County.

Dominion Voting Systems

If fraud in one or two jurisdictions cannot explain the swing to Biden, could fraud have been widely distributed across the state?  Such theories revolve around Dominion Voting Systems, a manufacturer of voting machines and vote counting machines.

On election night, something went wrong with the vote totals in Antrim County in northwest Lower Peninsula.  The reported totals showed Joe Biden handily winning the county, and many people (including me) immediately realized that this could not be correct.  The county clerk retracted the results and ordered a recount, which produced a reasonable result.  (Trump's margin declined by 233 votes compared to 2016.)

It still isn't clear what happened in Antrim County.  The clerk blamed a software error.  The Secretary of State blamed human error (i.e., the clerk).  If Dominion software produced a false result in Antrim, could it have done so elsewhere?

In theory, vote counting software could be programmed to flip a small fraction of votes from one candidate to another, so that the fraud would be difficult to detect.  Some commentators have claimed that Dominion did this.  This cannot be what happened in Antrim, as the results there were absurd, and quickly corrected.  Did Dominion flip votes in other counties?  Dominion machines are used in 65 Michigan counties, and the others are split between two other vendors.  The state of Michigan helpfully maps the vendors by county on a website.  I broke down the presidential vote totals by counties that use Dominion machines and those that don't.

In 2020, the totals in counties that use Dominion machines are

Trump 1410197, Biden 1459230 (49.1% Trump two-party)

In 2016, the totals in the same counties were

Trump 1237598, Clinton 1335566 (48.1% Trump two-party)

In 2020, the totals in counties that don't use Dominion machines are

Trump 1209676, Biden 1212807 (49.9% Trump two-party)

In 2016, the totals in the same counties were

Trump 1069867, Clinton 1056032 (50.3% Trump two-party)

Thus Trump actually improved from 2016 in counties that use Dominion machines and declined in counties that don't use Dominion machines.  The data provide no evidence to support the theory that Dominion machines flipped votes from Trump to Biden.  Indeed, some of the counties where Trump declined the most (Oakland, Macomb, Ottawa, Kalamazoo, Grand Traverse, Livingston) don't use Dominion machines.

Of course, a conspiracy theorist could double down and claim that all three vendor's machines were compromised, not just Dominion.  There is a simple way to test this theory.  Remember that Michigan doesn't have voting machines, it has vote counting machines.  There are paper ballots that can be recounted when desired, as was done in Antrim County.  As far as I know, the Trump campaign has not requested a recount in Michigan.

Comparison to US Senate Results

Another argument casting doubt on the validity of the election results concerns the results in the US Senate race.  The unofficial vote totals give Gary Peters 2,734,559 votes, and John James 2,642,221 votes, a margin of 92,338.  The distribution of votes across the state is similar to the Presidential race, but the relative differences are noteworthy.

Some observers have noticed the vote totals for Trump and James were quite close (only 7631 apart), while the vote totals for Biden and Peters were about 70000 apart.  Indeed, there were about 58000 more votes case in the presidential race than the senate race.  This has lead some to claim that 70000 ballots were cast only for Biden, and that this is proof of voter fraud.

There are several problems with this theory.

1. There is no proof that dropoff is due to votes only for Biden.  Voters could have skipped the senate race but voted in other races downballot.

2. There is nothing unusual about dropoff.  In 2012 (the last year before 2020 with both presidential and senate elections), there were 78043 more votes for president than for senate.  In 2008, there was a dropoff of 153156 between these races.  There is typically more dropoff further downballot, as some uninformed voters choose not to vote in races when they are unfamiliar with the candidates.

3. Someone committing mass fraud would presumably want Ds to win downballot, and they could just as easily vote straight ticket D to do this.

4. There was essentially no dropoff in Detroit (note that 77% of votes in Detroit were straight ticket D).

5. Trump and James did better in different regions of the state.  The map below uses Orange for Trump performing better than James, and blue for James performing better.

Trump performed better in downscale areas, while James performed better in traditional GOP areas in West Michigan.  Note that James won Kent, Muskegon, and Leelanau Counties, which Trump lost.  James got 11000 more votes than Trump in Kent County and 8700 more in Oakland, while Trump got 12000 more votes than James in Macomb County.  James did essentially the same as Trump in Detroit, gaining only 80 more votes there.

Conclusion

There is nothing in the data to indicate mass voter fraud in Michigan of the size that would have to exist to change the result of the Presidential election.  More than 150,000 fraudulent votes should be noticeable in the raw election results, but they are not there.  If there is any doubt about the reliability of the vote counting machines, a manual recount would resolve it.

Absentee Ballot Backdating Fraud in Detroit

From investigative reporter John Solomon, formerly of the The Washington Post, The Washington Times, and The Hill:

Detroit city worker blows whistle, claims ballots were ordered backdated, FBI probing

The FBI is investigating allegations of election fraud in Detroit after a city worker stepped forward and claimed election workers were asked to backdate ballots that had come in after the election deadline had passed, multiple officials said.

A senior law enforcement official in Washington confirmed that an investigation was opened after the whistleblower's concerns were forwarded from the Michigan Republican Party. "The FBI is investigating," the official said.

GOP officials in Michigan said the whistleblower was identified and assisted by Phill Kline, the head of the Thomas More Society's Amistad Project, which has been litigating voting disputes and irregularities across the country for months.

I doubt this would change enough votes to change the outcome of the election, but regardless this needs to be investigated, and any fraud prosecuted.

Michigan 2020 Election Results

President:  50.6-47.9 Biden over Trump.  The raw margin was about 146,000.  Close, but not quite enough.

Senate: 49.8-48.3 for Peters over John James.  The raw margin was about 84,000.  That's probably too large a margin to be due to voter fraud, but any credible allegations of fraud should be investigated.

Proposal 1 (natural resources): 84% yes.

Proposal 2 (privacy): 89% yes.  A rare moment of bipartisan agreement.

Supreme Court:  32% McCormick, 20% Welch for the two winning Ds.  17% Kelly, 14% Swartzle for the two Rs.  Ds take a 4-3 majority on the court.  This will have bad consequences.

State Board of Education:  Ds took both slots, with a 45K vote margin between the second and third candidates.
University of Michigan:  D Mark Bernstein was reelected.  R Sarah Hubbard snagged the second slot with a 12K vote margin over the other D.
Michigan State:  R Pat O'Keefe took the top slot, and D Rema Vassar took second.  D incumbent Brian Mosallam took third, and R Tonya Schuitmaker was fourth.
Wayne State:  R former SOS Terri Land was first, and D Sherley Stancato was second.

Congress:

1. 61-37 for Bergman.  If Bergman keeps his term limits pledge, this seat will be open in 2022.
2. 59-38 for Huizinga.
3. 53-47 for Meijer.  Kent has trended in the wrong direction.  Hopefully Meijer locks it down.
4. 65-32 for Moolenaar.
5. 42-54 for Kildee.  Closer due to Trump's appeal to blue collar workers.
6. 56-40 Upton.  A better result against the far-left Hoadley.  If Upton is thinking about retirement, 2022 would be a good year to do so.
7. 59-41 Walberg. This is Walberg's best margin yet in what was once a swing district.
8. 47.3-50.9 for Slotkin.  A stronger candidate could have won.  This district will likely change significantly in redistricting.
9. 38-58 for Andy Levin.
10. 66-34 for McClain.
11. 47.8-50.2 for Stevens.  Esshaki did well under the circumstances.  This district probably gets chopped up in redistricting.
12. 31-66 for Debbie Dingell.
13. 19-78 for Tlaib.
14. 19-79 for Lawrence.

State house.  Republicans lost two seats and picked up two, for no net change.  The majority is now 58-52.  Conservative Jason Wentworth will be the new speaker.

3-9. Rs got 2-7% in the all-Detroit districts.
13. 42-58 for Tullio Liberati.  This district might be worth contesting in the future.
19. 49.8-50.2 for Pohutski (258 votes).  The same margin as in 2018.  Rs should contest this again.
20. 45-55 for Koleszar.  This upscale suburban district was lost in 2018.
23. 47.5-52.5 for Camilleri.  This district must be contested in 2022, when it will be open.
25. 47-53 for Shannon.  This could have been won with a better candidate.
31. 44-56 for Sowerby.  This could be worth more effort in the future.
38. 48.4-51.6 for Breen.  LOSS in an open suburban seat that was close in 2018.
39. 52-47 for Berman against a far-left candidate.  This was heavily targeted by Ds.
40. 42-58 for Manoogian.  This upscale suburban district swung hard in 2018 after long being safe R.
41. 45-55 for Kuppa.  Lost in 2018, but may be worth contesting again.
43. 60-40 for Schroeder.  Some pundits absurdly thought this would be close.
44. 60-40 for Maddock.
45. 52.3-47.7 for Tisdel.  Close win in a district heavily targeted by Ds.
48. 50.5-49.5 for David Martin.  PICKUP in a blue collar suburban Flint district against far-left incumbent Sheryl Kennedy.
50. 46-54 for Sneller.  Close due to Trump performing well in suburban Flint.
59. 64-36 for Carra.  Possibly the most conservative new member.
60. 25-75 for Rogers.  She previously lost the 61st in 2006 and 2008.
61. 46-54 for Morse.  LOSS in an open suburban seat that was close in 2018.
62. 48.7-51.3 for Haadsma.  Another close loss for Dave Morgan.
63. 61-36 for Matt Hall.
66. 59-41 for Beth Griffin.  The D here got some hype, but it wasn't close.
67. 46-54 for Hope.  This district is sometimes close, but never close enough.
71. 47.3-51.2 for Witwer.  This district was lost in 2018.
72. 55-45 for Steven Johnson.
73. 57-42 for Posthumus.  MIRS had a poll that showed a 1 point race.
79. 57-43 for Wendzel.  The D candidate got a lot of hype here.
91. 60-40 for VanWoerkem.  Big win in a former swing district.
96. 57-43 for Timothy Beson.  PICKUP in a blue collar Bay County against an incumbent who renounced his pro-life position.
98. 59-41 for Annette Glenn.  Much bigger margin than in 2018, when utilities spent heavily.
99. 61-37 for Hauck.
104. 51-47 for John Roth.  Better candidate than the scandal-plagued incumbent.
109. 42-57 for Cambensy.  This district may be worth targeting when open.
110. 58-41 for Markkanen.  This was a surprise pickup in 2018.

In 2022, Rs should target districts 19, 23, 25, 38, 50, 62, and 71.  Of course, there will be a new district map, so some district boundaries or numbers will change.

My ratings turned out to be pretty accurate.  Every race I had at likely or safe for a party was won by that party.  The only lean races I missed were house 48 and 96.  My state house tossups had margins of 0.4, 3.2, 5, 8, and 4.  My lean R races had margins from 4 to 24.  My lean D races had margins of 10, 6, -1, 1, and -14.  The closest margin in a race I had at safe was 5 (house 23).  My lean ratings for Congress had margins of 6, 16, 3.6.

November 2020 Judiciary News

ACB > RBG

Supreme Court:

Barrett:  Justice Amy Coney Barrett was confirmed on October 26 by a 52-48 vote.  All Rs except Susan Collins voted yes; all members of the D caucus voted no.  Barrett was sworn in by Justice Thomas the same evening.

Barrett:  Carrie Severino summarizes Day 1, Day 2, and Day 3 of the Judiciary Committee hearings on Judge Barrett.

ABA:  The left-leaning American Bar Association gave Judge Barrett a rating of Well Qualified by a substantial majority, with a minority voting for a rating of qualified.

Barrett:  Both Joe Biden and Kamala Harris declined to criticize Judge Barrett during their debates.

Barrett:  Harsh Voruganti of the Vetting Room has analyzed the split opinions involving Judge Barrett, both when she was in the majority and minority.

Barrett:  Politico writes that Barrett quickly became a consensus candidate due to strong support from Mitch McConnell, Leonard Leo, and Josh Hawley.  Also notable is the Leo helped to keep Neomi Rao off Trump's Supreme Court list.

Barrett:  Leftists have demanded that Justice Barrett recuse herself from a variety of cases, especially potential election litigation.  Carrie Severino and Ed Whelan disagree, pointing out previous cases in which liberal judges did not recuse themselves.

Supreme Court:  Senator Ted Cruz has written a book on the Supreme Court: One Vote Away: How a Single Supreme Court Seat Can Change History.  He revealed that he raised concerns with President Trump about Neil Gorsuch and Brett Kavanaugh.  He instead recommended Senator Mike Lee be appointed.

Supreme Court:  Joshua Wilson asks why there aren’t any evangelicals on the Supreme Court, while there are 6 Catholics.  He mentions that evangelicals are less likely to become lawyers, and less likely to attend top law schools.  One answer the article doesn’t give is that evangelicals are more interested in results than identity politics.

Nominations, Hearings, Confirmations:

Feinstein:  Some leftist groups want Senator Diane Feinstein removed as ranking D on the Senate Judiciary Committee.  Some senators are unhappy with her performance in the ACB hearings, but there doesn't seem to be much support for removing her.

Texas:  Texas Attorney General Ken Paxton was accused of corruption by seven aides, including First Assistant AG Jeff Mateer, who resigned in protest.  Mateer is notable due to his nomination to ED-TX in 2017.  He was not confirmed due to some controversial comments he made that came to light.

New Nominations:
TBD

Senate Judiciary Committee hearings:
TBD

Confirmations:
TBD

The Federal Judiciary:

Judicial winning:  Carrie Severino of the Judicial Crisis Network is writing a series highlighting Trump's conservative judicial appointees.  The series so far includes Kyle Duncan, Amul Thapar, Ken Lee, Lisa Branch, Amy Coney Barrett, Greg Katsas, Justin Walker, Kevin Newsom, Dan Bress, Eric Murphy, Daniel Collins, Patrick Bumatay, Paul Matey, and Jay Richardson.

Misconduct:  Judges accused of misconduct often retire to avoid accountability.  Case in point is Judge Truman A. Morrison III of the DC Superior Court.

1st Circuit:  Judge Juan Torruella died on October 26 at age 87.  He was the first appeals court judge from Puerto Rico.  He was appointed to D-PR by Ford in 1974 and to the 1st Circuit by Reagan in 1984.  He was generally liberal, issuing rulings supporting abortion and gay rights, and obstructing the death penalty.

SD-CA:  Chief Judge Larry Burns will take senior status on January 22, 2021, two days after the winner of the next presidential election is inaugurated.  He was appointed by W in 2003.  In 2012, he wrote a column endorsing an assault weapons ban, so he isn't that conservative.

State Supreme Courts:

Elections:  Check out my preview of state supreme court elections in 2020.

California:  Governor Gavin Newsom appointed Martin Jenkins to the California Supreme Court.  He was appointed to ND-CA by Clinton in 1997, and resigned in 2008.  Governor Schwarzenegger then appointed him to the California Court of Appeals.  He is 66.  The court now has 5 D and 2 R appointees.

Texas:  Governor Greg Abbott appointed Rebeca Huddle to the Texas Supreme Court.  Huddle, 47, is a native of El Paso who was a justice on a Houston-based appeals court.  She replaces Justice Paul Green, who retired in August.

Numbers and Trivia:

Obstruction:  Keith Whittington examines obstruction of circuit court nominees.  Both parties have engaged in this practice and President Obama was not obstructed significantly more than previous presidents.

Supreme Court:  Ilya Shapiro shows that liberal justices of the Supreme Court are more likely to vote as a block than conservative justices.

Roberts Court:  Dan McLaughlin rebuts the claim by Senator Sheldon Whitehouse that the Roberts Court decided 80 cases by a 5-4 margin, and all 80 cases were decided in favor of corporate interests.

Longevity:  Three judges originally appointed by Nixon, Gerald Bard Tjoflat, John Clifford Wallace, and Peter T. Fay, just passed 50 years of service.  They are tied for 26th on the list of longevity of service of federal judges.

Longevity:  ProPublica examines the longevity of current federal judges.  Trump appointees are somewhat younger than those of other presidents.

Courting Change:  Reuters examines the federal appeals courts, including appointing president, circuits, age, race, and sex.

Claims:  President Trump appointed Eleni Roumel as Chief Judge of the Court of Federal Claims on October 19.  Trump appointed her to the court in February 2020.  She was Deputy Counsel to VP Mike Pence 2018-2020.  She replaces Margaret Sweeney, whose term on the court of claims expired on October 24.  Sweeney was appointed to the court by W in 2005 and was named chief by Trump in 2018.

History:

Lincoln:  Kamala Harris misrepresented how President Lincoln handled a Supreme Court vacancy in an election year.  He didn't make a nomination before the election not because "the people should decide" but because the Senate was out of session.  (Also, there was a civil war.)  The seat was filled in the lame duck session after the election.

Resources:
Bench Memos (National Review)
The Vetting Room
Twitter: FedJudges Senate Cloakroom
Senate Judiciary Committee
ABA Judicial Ratings
Wikipedia: Trump Judges US Appeals Courts
Senior Status Spreadsheet
Future Judicial Vacancies
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia--State Supreme Court Vacancies Elections
The Supreme Courts
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