September 2020 Judiciary News

Judiciary news continues to roll in.

Nominations, Hearings, Confirmations:

Trump list:  As we wait for President Trump's updated Supreme Court list, John Malcolm and Zack Smith of the Heritage Foundation and Ilya Shapiro of the Cato Institute have made recommendations for who he should add.

Future appointments:  Harsh Voruganti of the Vetting Room lists thirteen federal judges Donald Trump and Joe Biden might elevate to the Court of Appeals.  The contrast is stark.

Court packing:  The democrat party included a plank in its party platform calling for
“structural court reforms” to counter what they call Trump's “unqualified, partisan judges.”  The Biden campaign signed off on the plank.  The platform does not specify what these 'reforms' would be, but it seems likely to include court packing, adding new seats that would be filled with leftists.

Legislative filibuster:  Court packing would depend on eliminating the legislative filibuster.  Support for this has been building on the left and among senate Ds.  Joe Biden has signaled openness, but has not formally endorsed the idea.  A few senate Ds say they are opposed, though it remains to be seen whether this opposition is real.

Roe v. Wade:  Senator Josh Hawley has argued that future Supreme Court nominees should be on the record saying that Roe v. Wade was wrongly decided.  Ed Whelan argues that this is a flawed test, as some liberals have acknowledged that Roe was wrongly decided and some conservative judges had not said this.  He suggests a different approach for pro-life senators.

New Nominations:
Court of Federal Claims: Zachary Somers--staffer for Senate Judiciary Committee

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, and Justin Walker.

9th Circuit:  Judge Jerome Farris passed away on July 23.  He was appointed by President Carter in 1979 and took senior status in 1995 on his 65th birthday.  He was the first black judge on the 9th Circuit.

DC Circuit:  Judge Stephen F. Williams passed away on August 7 due to the coronavirus.  He was appointed by President Reagan in 1986 and took senior status in 2001.  He was one of eight Reagan appointees to the DC Circuit.

D-ID:  Judge David Nye issued an injunction against an Idaho law declaring that women's sports not allow men.  Nye is a Trump appointee who was previously nominated by President Obama, but not confirmed.

D-ME:  Has Trump-appointed Judge Lance Walker betrayed conservatives?  This article tries to argue this, but most of the examples cited are not ideologically clear-cut.

State Supreme Courts:

States:  Harsh Voruganti argues that D governors appoint judges who are older and less involved in legal activism than R governors.

Florida:  The Florida Supreme Court ruled that Governor DeSantis' appointment of Renatha Francis to the court was not allowed by the law, since she did not have ten years of legal experience by the deadline to make the appointment.  The ruling was 5-0, with recently-appointed Justice John Couriel recused.  The suit was filed by state rep Geraldine Thompson, a black D who wanted one of the more liberal black applicants screened out by the Judicial Nominating Commission to be appointed.  However, the court ruled that what she wanted was illegal, and she did not request a proper remedy of appointing one of the other (non-black) candidates approved by the commission.  Thus Judge Francis can join the court in September.

South:  Billy Corriher summarizes state supreme court elections in Louisiana, Kentucky, Mississippi, Texas, and North Carolina.

Numbers and Trivia:

2nd Circuit: As of September 1, Debra Ann Livingston will be the Chief Judge of the 2nd Circuit, taking over from Robert Katzmann. Katzmann was appointed by Clinton and is a D feeder judge.  Livingston was appointed by W in 2007. 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).

9th Circuit:  This article analyzes the limited en banc panels of the 9th Circuit, particularly which judges are most and least likely to be selected for them.  John Doe has calculated (correctly) that there is a 24.9% chance that a limited en banc panel will have a majority of R appointed judges (ignoring senior judges).

Hispanic Judges:  Wikipedia has a list of Hispanic judges, but does not separate out federal judges.  These are Hispanic judges that Trump has appointed:
11th Circuit: Barbara Lagoa
SD-TX:  Fernando Rodriguez Jr.
SD-FL:  Roy Altman
SD-TX:  David Morales
SD-FL:  Rodolfo Ruiz
D-PR:  Raúl Arias-Marxuach
ND-GA:  Steven Grimberg
D-PR:  Silvia Carreño-Coll

There are a few more who have been nominated (corrections welcome):
CD-CA:  Fernando Aenlle-Rocha
ND-IL:  Franklin Valderrama
SD-FL:  Aileen Cannon
ED-NY:  Hector Gonzalez

History:

Supreme Court:  Dan McLaughlin shows that historical precedent supports a President and Senate of the same party filling a Supreme Court vacancy at any time, including a lame duck session.

Maryanne Trump Barry:  The President's sister, Maryanne Trump Barry, is a retired judge of the 3rd Circuit and D-NJ.  She was considered a moderate who was nominated by presidents of both parties, and is not close to her brother.

ABA:  Harsh Voruganti of the Vetting Room reviews the history of the ABA having a special role rating judicial candidates and argues (from the left) that this practice should end.

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

Lessons from the 2020 Primary Elections

What can we learn from the 2020 primary elections? This article explains what the winning candidates had in common. I wrote similar articles in 2014, 2016, and 2018.

They don't call it the establishment for nothing Establishment candidates won most state house races. They have the inside track on fundraising, endorsements, and organization.  None of the winners are outright moderates.  Most could be considered establishment conservatives.  Solid conservative winners include Chase Turner, Steve Carra, Ken Borton, and John Damoose.

Experience counts Elected experience is valuable for winning candidates. Ken Borton is a county commissioner, and establishment conservative winners like Robert Bezotte, TC Clements, and Dave Morgan are also elected officials.

Incumbency Matters All incumbent Republicans won renomination. Beating an incumbent in a primary is very hard. In recent years, the only conservative challengers who beat a Republican incumbent are Tim Walberg in 2006, Lee Chatfield in 2014, and Matt Hall in 2018. Certainly many incumbents deserve primary challenges, but conservatives have limited resources. Winning an open seat is much easier than beating an incumbent. Politicians can still be held to account when they run for other offices.  There are still some benefits to primary challenges, though, as they may encourage the incumbent to vote better for awhile and may help the challenger to win an open seat later.

If at first you don't succeed  Chase Turner almost beat an incumbent in the 2018 primary.  This time, he easily won the primary, advancing to a competitive general election.  Candidates who lost this time should look for opportunities to run again in the future.

Don't split the vote Conservatives did much better this year than in past years. HD-58 may have been lost to a less conservative candidate due to vote splitting.  Conservatives may have benefited from splits in the establishment in HD-59.

Money doesn't buy elections  Self-funding candidates have a bad electoral track record.  Sreenivas Cherukuri self-funded and lost badly in HD-38.  Shri Thanedar did win the D nomination in HD-3 with major self-funding after losing a race for governor in 2018.

Money is essential Money does not guarantee victory, but it is essential to get your message out. This is particularly true in local elections, which are often decided by name recognition. Look at how much winning conservative candidates raised.
Turner 31K
Carra 24K
Borton 50K
Damoose 70K

The candidate who raised the most money won in 6 of 12 contested primaries in open Republican seats (fewer than in past cycles), and the remaining winners still had good fundraising.  My rule of thumb is that the minimum amount needed to be a credible candidate is $30,000. Only two winners raised less than 30K this cycle, one in a race where no candidate did.  The minimum raised by a winner was 24K.

2020 Michigan Primary Election Results

2020 Michigan Primary Election Results

Congress:
3. Meijer 50 Afendoulis 26 Norton 16
5. Kelly 79
6. (R) Upton 62 Oelke 38
    (D) Hoadley 52 Richardson 48
8. Junge 35 Detmer 29 Lyke 25
10. McClain 42 Hernandez 36 Slocum 22
11. Esshaki 31 Greco 23 Bentivolio 22 Acosta 13 Williams 11
13. (D) Tlaib 66 Jones 34

State House:
2. (D) Tate 69 Harrell 31
3. (D) Thanedar 35 McKinney 20
9. (D) Whitsett 45 Ogburn 30
19. Ptashnik 52 Crider 43
20. Lacny 59 Rouch 41
25. Smith 37 Wiley 32 Early 31
32. Hornberger 64 Mikula 36
38. Turner 62 Cherukuri 23
41. Sosnoski 51 Agnello 49
47. Bezotte 54 Reckling 41
56. Clements 72 Blaine 28
58. Fink 39 Welden 26 Wiseley 18 Stockford 17
59. Carra 37 Coleman 23 Walton 18 Balog 16
60. (D) Rogers 51.5 Moore 48.5
61. Haltom 66 Graham 34
62. Morgan 72 Gregoire 20
70. Outman 57 Ross 22
71. Johnsen 51.3 Barnes 48.7
73. Posthumus 46 Inhulsen 29 Regan 25
79. Wendzel 82 Blackwell 18
81. Eisen 72 Mahaney 28
83. Beeler 36 Alexander 28 Keller 20 O'Mara 14
100. VanSingel 68 Sebolt 32
101. O'Malley 87 Cater 13
104. Roth 58 Cerone 42
105. Borton 55 Cutler 36
107. Damoose 57 Twardy 12 Fisher 11

Oakland:
D turnout was about 200000, R turnout was about 120000.
Executive. (D) Coulter 54 Meisner 46
Prosecutor. (D) McDonald 66 Cooper 34

Macomb:
D turnout was about 89000, R turnout was about 95000.
Prosecutor. (D) Chrzanowski 35 Switalski 32
Prosecutor. (R) Lucido 68 Goodman 32
If Lucido wins, his senate seat will be open.
Clerk. (R) Forlini 45 Williams 23

2020 Michigan Primary Recommendations

Every seat in the Michigan state house is up for election in 2020, and many seats are open due to term limits.  The house has been run by its more conservative wing for the past four years.  Continuing this trend will depend on conservatives winning primaries in August.  Here are my recommendations for who to support in Republican primaries.  Michigan Right to Life is abbreviated RTL.  Fundraising totals are available from Open Secrets.  Some races are hard evaluate, so additional information from readers is welcome.

Congress:

3.  Tom Norton is the most conservative candidate here, but he seems unable to raise a significant amount of money.  He didn't come close either time he ran for state representative.  Lynn Afendoulis is thoroughly establishment friendly.  Peter Meijer is a veteran and heir of the retail chain who seems to be somewhat more conservative than Afendoulis.  Joe Farrington has an eccentric platform.
5. Former state rep. Tim Kelly had a conservative record in office and is a credible candidate.
8. It will take a good candidate with good fundraising to beat incumbent democrat Elissa Slotkin.  Television anchor and Trump USCIS official Paul Junge has a decent resume and has raised by far the most money.  None of the other candidates have raised much money.  Mike Detmer is endorsed by Pat Colbeck.
10. State rep. Shane Hernandez is the clear choice here.  He was a Tea Party leader who has compiled one of the most conservative voting records in the state legislature, according to the American Conservative Union, MIRS, and RightMichigan.  He has been endorsed by conservative organizations including Gun Owners of America, Club for Growth, Americans for Prosperity, Michigan Trump Republicans, and Tea Party Express.  He has also been endorsed by many conservative legislators, including Jack Brandenberg, Leon Drolet, Pam Hornberger, and Tom Leonard, plus many more establishment-friendly colleagues.  Neither of his opponents have a conservative track record.
11. The field of candidates to take on incumbent democrat Haley Stevens is quite weak.  Nurse/lawyer Eric Esshaki and businesswoman Carmelita Greco have raised the most money.  Whitney Williams is endorsed by former state rep. Jeff Noble.  Former Congressman Kerry Bentivolio had a conservative voting record, but was ineffective in Congress and is a weak candidate.

State House:

19. Penny Crider was district director for senator Pat Colbeck.  Martha Ptashnik has support from establishment groups.
20. Marine veteran John Lacny has the RTL endorsement.
21. Businesswoman Laurel Hess has the RTL endorsement.
25. Jazmine Early and Adam Wiley both seem to be fairly conservative.
38. Activist Chase Turner almost won a primary against an incumbent in 2018.  He is endorsed by RTL and Pat Colbeck.
41. Firefighter Evan Agnello has the RTL endorsement.
47. Livingston GOP chair Meghan Reckling worked for conservative Senator Lana Theis, who endorsed her. Wes Nakagiri and Tom Leonard have also endorsed her.
48. County commissioner David Martin is a credible candidate who has the RTL endorsement.
56. Bedford Township trustee TC Clements seems to be the only credible candidate, as his opponent is 19.  He has the RTL endorsement.
58. Prosecutor and realtor Daren Wiseley has a solidly conservative platform.
59. Steve Carra is a legislative staffer for solid conservative state representative Steve Johnson.  He has a true commitment to conservative values.
61. Trump campaign aide Bronwyn Haltom has establishment support and a big fundraising lead.  IT specialist Tom Graham has the NRA endorsement and a somewhat eclectic platform.
62. Pennfield Township Supervisor Dave Morgan, a former democrat, is running again after narrowly losing in 2018.  The other candidates might be fine in a safe district, but Morgan seems the best choice to flip this D-held seat.
70. Postmaster and pastor Martin Ross has the RTL endorsement.  Pat Outman, son of state rep and senator Rick Outman, is endorsed by conservative incumbent Jim Lower.
71. Former Eaton County commissioner Christine Barnes is running again.  Businesswoman Gina Johnsen has much better fundraising and is fairly conservative.
73. Businessman Robert Regan, who finished second in 2014 and 2018, is the most conservative and has some grassroots support.
79. Pauline Wendzel is an incumbent with a reasonably conservative record.
83. Teacher Tim Keller is a conservative former Tea Party leader.  He has been endorsed by the 10th district GOP and conservative leaders including Pat Colbeck, Tom McMillin and Wes Nakagiri.
100. Incumbent Scott VanSingel has a rather disappointing voting record.  Oceana County Commissioner Andrew Sebolt is solidly conservative.
101. Incumbent Jack O'Malley faces a primary from Carolyn Cater, who seems to be somewhat more conservative.
104. AFP organizer Heather Cerone seems to be more conservative than Grand Traverse County Republican Party chairman John Roth.
105. Otsego County Commissioner Ken Borton is the most conservative candidate.  Tony Cutler is a teacher who finished second in the 2014 primary.  Jimmy Schmidt is a former democrat.
107. Documentary producer John Damoose is the most conservative candidate in a large field.  He has the sole RTL endorsement.