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