Friday, December 31, 2021

January 2022 Judiciary News

Happy new year of judiciary news.

2021 in Review:

Overall:  President Biden appointed 11 Circuit judges and 29 District judges in 2021.  This compares to President Trump's appointment of 12 Circuit judges and 6 District judges in 2021.  All of Biden's appointees come from states with two D senators (plus DC and PR).

Circuit judges:  Biden has filled 11 circuit court seats, and there are 19 more vacancies (5 with nominees).  There are 14 more D-appointed circuit court judges who are eligible for senior status but have not yet taken it.

The most votes for a circuit judge was 63 for Tiffany Cunningham, and the smallest margin was 1 for Jennifer Sung.  Biden's biggest impact is on the 2nd Circuit, where he has appointed three judges, and there are three more future vacancies to fill.

District judges:  Biden's larger number of district judges is due to a rule change that reduced the number of hours of debate on district judges from 30 to 2.

The most votes for a circuit judge was 81 for Zahid Quraishi (D-NJ), and the smallest margin was 4 for Deborah Boardman (D-MD).  Biden's biggest impact is on the D-NJ, where he has appointed four judges, and there are two more vacancies to fill.

Diversity:  President Biden's nominees are more racially diverse and have less traditional resumes.  However, they are more likely to have attended elite law schools.  Only one circuit appointee is a white male.

Nominations, Hearings, Confirmations:

9th Circuit:  The White House denied Senator Dan Sullivan (R-AK) the ability to meet with judicial nominees for the 9th Circuit, with a staffer saying "Well, we want to protect our judges."  He put holds on several judges until the White House agreed to the meetings.

SD-NY:  Dale Ho, a nominee for SD-NY who runs the ACLU's Voting Rights Project, had a rough hearing at the Senate Judiciary Committee.  When confronted about his extreme rhetoric, he claimed to not remember calling the Republican Party an “anti-democratic virus.”  He also called the US Senate "anti-democratic".

ND-IL:  Senators Durbin and Duckworth presented a list of seven attorneys and judges for nomination to serve ND-IL, which currently has one open seat.

D-NV:  "Do you think we should forgive criminal misbehavior in the name of social justice?"  Senator John Kennedy asked law professor and district court nominee Anne Traum that question nine times without receiving a clear answer.

Nominations:
TBD

The Federal Judiciary:

Supreme Court:  The court heard Dobbs v. Jackson Women’s Health Organization on December 1.  The arguments appeared to go well for opponents of abortion.  The Advisory Opinions podcast breaks down the arguments in detail.

Supreme Court:  The Supreme Court ruled that a lawsuit by abortionists against Texas over its effective 6-week abortion ban may proceed, but left the law in effect.  Ed Whelan has more detailed analysis.

Breyer:  Leftists continue to hope that justice Breyer will retire, while R senators hedge on whether a nominee would get a hearing if they control the senate.  This sentence is particularly amusing:
Among other factors, it's hard to press an 83-year-old justice to retire when Biden says he's planning to run for reelection when he will be in his early 80s himself.
Kavanaugh:  Justice Kavanaugh did not promise that he would not vote to overturn Roe v. Wade, contrary to the Washington Post.

Kavanaugh:  According to Mark Meadows, President Trump’s chief of staff, Trump wanted to choose Amy Coney Barrett for the Supreme Court seat that went to Brett Kavanaugh.  After the allegations against him, Ivanka Trump, Jared Kushner, and Leonard Leo supporting dropping his nomination, while Don McGahn continued to back him.

Court reform:  President Biden's court commission did not endorse court packing or term limits, pointing out various problems with these proposals.  It did speak favorably of continuing audio livestreams of oral arguments and adoption of an ethics code for Supreme Court justices.

Ethics:  Various proposals to strengthen ethics rules for the judiciary are being considered in Congress.  The article also surveys the long history of tension between Congress and the judiciary over judicial ethics rules.

3rd Circuit:  Judge D. Brooks Smith took senior status on December 4.  Smith was appointed to WD-PA by Reagan in 1988 and the 3rd Circuit by W in 2002.  He finished his term as chief of the 3rd Circuit on December 1.  For those who say this move is a betrayal of all those who worked to confirm him to lifetime judicial positions, the obvious rejoinder is

6th Circuit:  A 6th panel allowed Biden's vaccine mandate to go into effect, dissolving a stay issued by the 5th Circuit.  The ruling was written by Julia Smith Gibbons, a moderate appointed by W and joined by Jane Branstetter Stranch, an Obama appointee.  Joan Larsen, a Trump appointee, issued a dissent.  The case is likely to be appealed to the Supreme Court.

9th Circuit:  Trump appointees have frequently issued dissents from denial of a rehearing en banc.  This often signals to the Supreme Court that a case should be taken up, and many such cases have been overturned.

Vacancy Declarations:  There are now 107 current and future judicial vacancies.  New vacancies over the past month are listed below.
7th Circuit: David Hamilton (Obama) TBD (senior)
3rd Circuit: D. Brooks Smith (W) 12/4/21 (senior)
D-DC: Colleen Kollar-Kotelly (Clinton) XX (senior)
7th Circuit: Diane Wood (Clinton) TBD (senior)
D-MD: Paul Grimm (Obama) 12/11/22 (senior)
4th Circuit: Diana Motz (Clinton) TBD (senior)
6th Circuit: Helene White (W) TBD (senior)
6th Circuit: R. Guy Cole (Clinton) TBD (senior)
3rd Circuit: Thomas Ambro (Clinton) TBD (senior)

State Supreme Courts:

Court size:  Leftist Billy Corriher points out that several states have expanded the size of their state supreme courts.  He claims that this means that R politicians who call court packing 'unprecedented' are wrong.  However, he ignores the fact that supreme court justices in all states except Rhode Island have limited terms and are subject to election, while federal judges are not.

Montana:  The Montana legislature is asking the US Supreme Court to rule that it can subpoena Montana's judiciary.  The legislature previously issued subpoenas to determine the extend of judicial lobbying against legislation affecting the judiciary.  The Montana Supreme Court quashed the subpoenas, rufusing to recuse themselves from their own case.

New Jersey:  New Jersey Supreme Court Justice Jaynee LaVecchia will not extend her scheduled retirement past December 31.  Governor Phil Murphy nominated Rachel Wainer Apter to replace her on March 15, but state senator Holly Schepisi (R) is holding up the nomination, and it is unlikely to be confirmed before the legislative session ends on January 11.

North Carolina:  The North Carolina Supreme Court decided that judges may either recuse themselves from cases or ask the full court whether they should be recused.  Plaintiffs seeking to strike down ballot initiatives on voter ID and tax limitation were seeking to force two R justices to recuse from the case.  This ruling was not specifically about that case, but it appears that they will not be forcibly recused.

North Carolina:  Justice Robin Hudson (D) will retire in 2022.  This was expected, as she would only be able to serve 13 months before reaching the age limit of 72.  Justice Sam Ervin IV (D) will seek reelection, and Court of Appeals Judge Lucy Inman (D) will seek Hudson's seat.  Judges Richard Dietz and April Wood (R) are running for the seats.

Tennessee:  The Tennessee Council for Judicial Appointments nominated Court of Appeals Judges Kristi Davis and William Neal McBrayer, and Associate Solicitor General Sarah Campbell for the Tennessee Supreme Court seat open due to the death of Justice Cornelia Clark.  Governor Bill Lee will appoint one of them to the court.

Numbers and Trivia:

Chief Judges:  The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4), W (1, 2, 3, 5, 6, 7, 8, 10, 11, Fed), and Obama (9, DC).  There are two chief judges that will change in 2021. They are expected to be

1st Circuit (June 16) Jeffrey Howard (W) -> David Barron (Obama)
10th Circuit (October 1) Timothy Tymkovich (W) -> Jerome Holmes (W)

There could be more, and the dates could be sooner, if any chief judge steps down early.

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past year.
1 (0) December 2020
20 (3) January
19 (3) February
8 (3) March
7 (1) April
8 (5) May
4 (0) June
5 (2) July
4 (2) August
2 (0) September
5 (3) October
7 (1) November
9 (7) December 2021

99 (30) Total

Resources:
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Thursday, December 30, 2021

Michigan Redistricting: Congressional Map Approved

Michigan's Independent Redistricting Commission has passed a new congressional district map.


The map above is from the page at RRH Elections linked below, which also has individual district maps.


Interactive versions of the map are available at Dave's Redistricting and 538.

Michigan Congressional Map-Dave's Redistricting
Michigan Congressional Map-538

Here are brief district descriptions.  The partisan statistics come from Dave's Redistricting; they are averages of several statewide races.

1. 59R, 39D Upper Peninsula, northern Lower Peninsula.
2. 63R, 35D West Michigan coast, central MI
3. 45R, 53D Grand Rapids and suburbs, north Ottawa, Muskegon
4. 51R, 47D Allegan, Van Buren, most of Kalamazoo, Battle Creek, S Ottawa, N Berrien
5. 61R, 37D South-central Michigan, including the entire lower tier
6. 36R, 63D Washtenaw, plus south and west Wayne
7. 49R, 50D Central MI (Ingham, Livingston, Eaton, Clinton, Schiawassee)
8. 48R, 50D Genesee, Saginaw, Bay, Midland
9. 64R, 35D The Thumb, N Oakland, N Macomb
10. 50R, 49D S Macomb, Rochester Hills
11. 39R, 59D Central Oakland
12. 25R, 74D W Detroit, Southfield, Livonia, Dearborn, Westland
13. 25R, 74D E Detroit, Downriver, Romulus

The overall takeaway is that the map is skewed to favor Ds, though not as badly as it could have been.  Consider the districts in detail.

1. (Safe R) This district doesn't change much, it just adds a few counties for popluation.  It becomes about 1% more R.  Rep. Jack Bergman previously pledged to retire this year (after three terms), but hasn't said yet whether he will keep his pledge.  If he does, a troll (below the bridge) candidate may finally win the seat.

2. (Safe R) This combines northern parts of old 2 represented by Bill Huizenga and a lot of rural territory from old 4 represented by John Moolenaar.  It is even safer, moving about 2% more R.  Moolenaar will run here, though he lives in Midland (in new 8).

3. (Tossup) This district drops heavily R rural Kent, Barry, Ionia, and Calhoun.  It adds Kentwood (D), Wyoming (lean R), N Ottawa (R), and the city of Muskegon (D), moving about 6% left.  This is a pro-D gerrymander in the name of "partisan fairness".  Incumbent Peter Meijer faces several pro-Trump challengers due to his vote for impeachment.  Meijer can still win this district, but if he loses the primary, the district will likely go D.

4. (Safe R) This has the majority of old 6, represented by longtime moderate R Fred Upton, but also includes the south Ottawa base of Bill Huizenga.  It drops the southern tier (R) and adds S Ottawa (R) and Battle Creek area (lean D).  The partisanship hasn't changed.  Huizenga is running here, while Upton has yet to announce his plans.  A wildcard here is state rep. Steve Carra, who was endorsed by Trump due to Upton's vote for impeachment.  He has been drawn into new district 5, where Tim Walberg will run.  If Carra continues to run against Upton, he could split the anti-Upton vote and allow Upton to win, or Upton and Huizenga could split the establishment vote and allow Carra to win.

5. (Safe R) This is mostly old 7, dropping Eaton and Washtenaw, and adds heavily R areas of rural Calhoun, St. Joseph, Cass, and S Berrien.  It moves about 4.5% right.  Tim Walberg will be safe here.

6. (Safe D) This succeeds old 12, adding W Washtenaw and dropping Dearborn and part of Downriver.  It moves 2% more R.  Fortunately, the commission did not extend this district into R territory south or west of it.  The city of Dearborn has been represented by a member of the Dingell family since 1964, but Debbie Dingell will move here, since she represents the bulk of this territory.

7. (Tossup) This is a highly competitive district containing Lansing and surrounding counties.  It contains the core of old 8 (Ingham and Livingston), which was drawn to lean R but was won by Elissa Slotkin (D) in 2018.  It adds lean R areas from old 4 and 7, while losing R (but D-trending) areas in Oakland.  Slotkin, who lives in Oakland, will move here.  The R candidate is likely to be state senator Tom Barrett, whose district was carved up.

8. (Lean D) This succeeds old 5, adding the rest of Saginaw County and the city of Midland.  While the district moves about 1% right, this is basically the best configuration for Dan Kildee (D) short of adding Lansing to the district.  This is another example of gerrymandering by the commission.

9. (Safe R) This succeeds old 10, losing a bit of central Macomb and adding some of north Oakland.  The partisanship hasn't changed.  Lisa McClain won't have a problem here.

10. (Tossup) This moves 7% right compared to old 9.  It adds lean R areas of central Macomb and Rochester Hills, while losing D areas of Oakland.  Andy Levin (D) represents much of this district but will run in new 11.  Several Oakland County Rs are considering running here, including former US Senate nominee John James, 2020 MI-11 nominee Erik Esshaki, and former Rep. (14-18) Mike Bishop.  It remains to be seen whether any prominent Macomb Rs will run, and who the Ds will nominate.

11. (Safe D) This has much of old 11, along with parts of old 9 and 14.  It moved 8.5% left of old 11.  It contains the homes of Haley Stevens and Andy Levin, who will compete against each other in the D primary.

12. (Safe D) The commission decided to reduce MI from two black-majority districts to none, with both new 12 and 13 now about 46% black.  This is likely to be challenged in court.  New 12 combines parts of old 13 and 14, but it contains the Southfield base of Brenda Lawrence, who will likely run here.

13. (Safe D) New 13 combines parts of old 13 and 14, but it contains the south Detroit base of Rashida Tlaib, who will run here.  She is being challenged in the D primary by state rep. Shri Thanedar, a wealthy businessman who represents a district in north Detroit.

Overall, districts 3 and 8 are clearly gerrymandered to favor Ds, and district 2, 5, and 9 are drawn to pack Rs.  However, the line between districts 5 and 6 is good, and districts 7 and 10 are reasonably competitive districts.  Old district 2 is effectively the one eliminated, since it doesn't have a clear successor in the new map.  The lack of any black-majority districts is likely to be challenged in court.

Coverage of last decade's redistricting:
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Tuesday, November 30, 2021

December 2021 Judiciary News

Merry judiciary news.

Nominations, Hearings, Confirmations:

Confirmations:  Most R senators are voting against most Biden judicial nominees, but Lindsay Graham has voted for most of them.

6th Circuit:  President Biden nominated Andre Mathis to a Tennessee seat on the 6th Circuit.  Mathis has a very weak resume, with no clerkship and no judicial experience.  This is the first Biden nominee who does not have the support of his home state senators.

SD-NY:  Carrie Severino explains the extreme record of Dale Ho, who runs the ACLU's Voting Rights Project.

ED-VA:  Senators Warner and Kaine recommended US Magistrate Judge Elizabeth Hanes and assistant U.S. attorney Melissa O’Boyle for the vacancy created when Judge John A. Gibney Jr. assumed senior status.

Nominations:
TBD

The Federal Judiciary:

Supreme Court:  The court will hear Dobbs v. Jackson Women’s Health Organization on December 1.  Conservative legal commentators are advocating for the court to overturn Roe v. Wade, including pieces by Ed Whelan, Carrie Severino (1, 2, 3), and many other authors.

Court reform:  President Biden's court commission will delay its final report to December 15.  Its draft report has criticized court packing, but is more open to term limits.

DC Circuit:  Justice Laurence Silberman (DC Circuit) objected to the participation of Emmet Sullivan (D-DC) on a judicial nomination commission for the District of Columbia’s municipal courts.  The judicial ethics code forbids judges from serving on such a commission, while the statute creating the DC courts requires the commission include "an active or retired Federal judge serving in the district".

4th Circuit:  Judge Robert B. King has rescinded his declaration of senior status, which he submitted in August.  The seat is associated with West Virginia.  According to David Lat, King preferred former Senator Carte Goodwin, who was King's law clerk.  The White House preferred J. Jeaneen Legato, who has close ties to Joe Manchin, but weak credentials.  The last time a circuit judge rescinded his declaration of senior status was in 2018, when Michael Kanne (7th Circuit) did so in a dispute over who would be nominated to succeed him.

6th Circuit:  The 6th Circuit was randomly selected to hear challenges to Biden's vaccine mandate.  The court has 10 conservatives and 6 liberals.  It may consider the case en banc.  The 5th Circuit has previously stayed the mandate in its boundaries.

D-SD:  Judge Brian Buescher (D-NB) dismissed contempt of court charges against three US marshals.  The charges were demanded by Judge Charles Kornmann (D-SD) after the marshals removed several defendants from his courtroom in a dispute over their refusal to state whether they received the COVID vaccine. 

Vacancy Declarations:  There are now 113 current and future judicial vacancies.  New vacancies over the past month are listed below.
ED-PA: Cynthia Rufe (W) 12/31/21 (senior)
D-AK: Timothy Burgess (W) 12/31/21 (senior)
ED-NY: William Kunz (Obama) 12/31/21 (senior)
D-DE: Leonard Stark (Obama) TBD (elevated)
2nd Circuit: Susan Carney (Obama) TBD (senior)
ND-NY: David Hurd (Clinton) TBD (senior)
SD-NY: Allison Nathan (Clinton) TBD (elevated)

State Supreme Courts:

Indiana:  Justice Steven David will retire in fall 2022.  He is 64, and was appointed in 2010 by Mitch Daniels.  Governor Eric Holcomb will get his second appointment to the court.

New York:  Governor Kathy Hochul nominated Judge Shirley Troutman to fill a vacancy on the New York Court of Appeals. Troutman currently serves on the Appellate Division of State Supreme Court, and previously held lower judicial positions.  She is a liberal black woman from the Buffalo area. The state senate must confirm the nomination.

Pennsylvania:  Commonwealth Court Judge Kevin Brobson (R) defeated Superior Court Judge Maria McLaughlin (D) 51-49.  Brobson replaces a retiring R judge, so the court will still have a 5 D 2 R breakdown.  Rs also won the election for the Superior Court.

Tennessee:  Eleven lawyers, including four judges, have applied for the Tennessee Supreme Court seat open due to the death of Justice Cornelia Clark.  The Council for Judicial Appointments will screen the applicants on December 8 and 9, and Governor Bill Lee will appoint one to the court.  Tennessee's constitution requires that no more than two justices come any of the three Grand Divisions, so the new justice will come from the Middle or East of the state.

Vermont:  Justice Beth Robinson was confirmed 51-45 to the 2nd Circuit on November 1.  Her successor will be appointed by Governor Phil Scott from candidates approved by the Judicial Nominating Board.

Virginia:  Justice William C. Mims will not seek reappointment when his term expires on March 31.  Mims is a somewhat moderate R who is 64.  Republican victories in the Virginia legislature in November mean that they should be able to appoint a conservative to replace him.

Numbers and Trivia:

3rd Circuit:  As of December 4, Michael Chagares will be the Chief Judge of the 3rd Circuit, taking over from Brooks Smith.  Smith was appointed to WD-PA by Reagan in 1988 and the 3rd Circuit by W in 2002.  Chagares was appointed by W in 2006.

9th Circuit:  As of December 1, Mary Murguia will be the Chief Judge of the 9th Circuit, taking over from Sidney Thomas, who was appointed by Clinton.  Murguia was appointed to D-AZ by Clinton in 2000 and the 9th Circuit by Obama in 2011.  She is the sister of Carlos Murguia (D-KS), who resigned due to sexual harassment and misconduct.

Chief Judges:  The Presidents who appointed chief judges of the 13 appeals courts will be Clinton (4), W (1, 2, 3, 5, 6, 7, 8, 10, 11, Fed), and Obama (9, DC).

Resources:
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Monday, November 01, 2021

Redistricting Commission Sham Revealed

On the MIRS Monday podcast, democrat operative Mark Grebner, who was one of the plotters behind the Michigan Independent Redistricting Commission, revealed that it was actually fraudulently designed to allow more gerrymandering.

This isn't a surprise to those who closely studied the proposal.  But it should be news to the millions of voters who assumed that the proposal was intended to produce reasonable district maps.  The proposal has a ranked list of priorities that the commission is supposed to follow.  At the top of the list are nearly equal populations, following the Voting Rights Act, and being contiguous, which were already law prior to the proposal.  After that, the commission is instructed to draw districts based on 'communities of interest'.

What are they?  Since there is no objective definition, a community of interest can be anything the commissioners want it to be.  Moreover, this concept has been used to ignore traditional redistricting criteria like compactness that minimizing county and city splits.

The key quote came 22 minutes into the podcast:

MIRS Monday, Oct. 25, 2021

'Communities of interest' is a will-o'-the-wisp.  It's a reef of smoke. It can be whatever is necessary.  And the crucial thing is who decides what's a community of interest that gets preserved.  Answer: the commission does.  Right?  And who gets to review that?  Frankly, nobody does.  OK?  So it's up to them.  Now, was this originally intended?  Yes.  Yes.  That's all I'm gonna say.  Just, yes.  That was built in, it was understood from the beginning.

Provisions further down the list like county integrity and compactness were never intended to be followed.  The commission was set up to gerrymander in the name of 'communities of interest'.  Will the commissioners allow themselves to be manipulated?

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Sunday, October 31, 2021

November 2021 Judiciary News

Happy Reformation Day.

Nominations, Hearings, Confirmations:

9th Circuit:  Judge Lucy Koh had a rough hearing in her nomination for the 9th Circuit.  She was grilled on a ruling allowing California to ban religious services in the name of fighting COVID, despite allowing comparable secular activities.

9th Circuit:  The Senate Judiciary Committee deadlocked 10-10 on the nomination of Jennifer Sung to the 9th Circuit, who made nasty comments against Brett Kavanaugh.  Notably, this is the first time Lindsay Graham has voted against a Biden judicial nominee.

Leahy:  Senator Patrick Leahy complained that R senators did not show "courtesy" toward nominee Beth Robinson (2nd Circuit) even though he obstructed many R nominees when he was Judiciary Committee Chairman.

Nominations:
TBD

The Federal Judiciary:

Kavanaugh:  Justice Kavanaugh tested positive for COVID on September 30, just before the start of the court's new term.  He was back on the bench on October 12.

Alito:  Justice Alito responded to an attack by leftist scribe Adam Serwer in a recent speech.  Ed Whelan dismantles Serwer's hysterical response.

Ginsberg:  Katie Couric hid comments by Ruth Bader Ginsberg in 2016 critical of kneeling during the national anthem.  RBG said they show 'contempt for a government that made a decent life possible'.  Couric claims she was protecting the justice, though it seems she was really protecting the leftist narrative.

Thomas:  Thomas Jipping celebrates Clarence Thomas' 30 years on the court.

Sotomayor:  Back in 2020, Justice Sotomayor praised radical San Francisco DA Chesa Boudin, calling him “a great beacon to many”.

9th Circuit:  The 9th Circuit will consider en banc a case from six years ago.  The panel led by Carter appointee Dorothy Nelson somehow claimed that second degree murder is not a crime of violence.

Court reform:  A draft report from President Biden's court commission criticized court packing, saying "The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court's legitimacy."  The draft was more open to term limits, though there are obstacles to that idea also.

Court reform:  The Advisory Opinions podcast breaks down the draft of the Supreme Court commission.  Notably, it notes that court expansion is often a sign of the breakdown of democracy, as in Venezuela and Turkey.

Conflicts:  Legislation has been introduced in Congress to tighten financial-disclosure requirements after a Wall Street Journal investigation found 131 judges who had ruled in cases when they had a financial interest.

Vacancy Declarations:  There are now 108 current and future judicial vacancies.  New vacancies over the past month are listed below.
ED-VA: Raymond Alvin Jackson (Clinton) 11/23/21 (senior)
4th Circuit: Henry Floyd (Obama) TBD (senior)
2nd Circuit: José Cabranes (Clinton) TBD (senior)
2nd Circuit: Rosemary Pooler (Clinton) TBD (senior)
ND-MS: Michael Mills (W) 11/1/21 (senior)

State Supreme Courts:

California:  Why did California Supreme Court Justice Mariano-Florentino Cuéllar resign on October 31?  It could be because he is married to Judge Lucy Koh (ND-CA), who has been nominated for the 9th Circuit.  She would have to recuse from any appeal of a case he had ruled on, which is especially important given the 9th Circuit's frequent use of limited en banc panels.

North Carolina:  The North Carolina Supreme Court is still considering whether to force two R justices to recuse themselves so that it can more easily strike down ballot initiatives on voter ID and tax limitation that were passed by the legislature and the voters in 2018.  The R controlled state legislature is considering impeachment of some D justices in response.  During an impeachment trial, the justices would be suspended from hearing cases.  Even though there would not be the votes to convict, there is no limit to how long an impeachment trial can last.

Pennsylvania:  The one state supreme court election this November is in Pennsylvania.  Commonwealth Court Judge Kevin Brobson (R) faces Superior Court Judge Maria McLaughlin (D).  The two candidates are trading attacks.  McLaughlin currently has a fundraising advantage, but outside spending favors Brobson.  There are also elections for the Superior Court and Commonwealth Court.

Texas:  Governor Greg Abbott appointed Evan Young to the Texas Supreme Court. He graduated from Yale Law in 2004, and clerked for Wilkinson (4th Circuit) and Scalia. This is Abbott’s fifth appointment to the court. Eva Guzman vacated the seat to run for Attorney General in 2022. The seat will be up for election in 2022, and Justice David Schenck, of the 5th Court of Appeals is running.

Utah:  Utah Supreme Court Justice Constandinos Himonas will retire on March 1, 2022.  He is 57, and was appointed to the court by Gary Herbert in 2015.  Governor Spencer Cox will get his first appointment to the court.

Numbers and Trivia:

Thanks to user JOEYFALCONI for computing the number of NO votes cast against confirmed circuit court nominees:

Obama-538 total no votes. Avg=9.8 per confirmed nom
Trump-1966 total no votes. Avg=36.4 per confirmed nom
Biden-206 total no votes. Avg=41.2 per confirmed nom

Resources:
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Thursday, September 30, 2021

October 2021 Judiciary News

Judicial activism is spooky.

Nominations, Hearings, Confirmations:

Harsh Voruganti of the Vetting Room assesses judicial vacancies and nominations in the Northeast, Atlantic Coast, Midwest, South, and West.

Breyer:  Justice Breyer cautioned against remaking the court, warning "What goes around comes around."

Nominations:  On September 30, President Biden submitted his first judicial nominations in a state (Ohio) with an R senator.  Biden reportedly hasn't reached out to R senators in LA, FL, IN.  However, senators in WI, PA, OK, ID have had talks with the White House.

Judiciary Committee:  R senators on the Judiciary Committee grilled nominees Jennifer Sung (9th Circuit) and Beth Robinson (2nd Circuit) on their extreme views and questionable temperament.

DC Circuit:  Why hasn't there been a nomination for the pending vacancy on the DC Circuit?  The article has plenty of speculation, but few certain facts.

SD-CA:  This district is suffering from a shortage of judges, with 7 of 13 seats vacant. President Biden has not made any nominations yet, but US Magistrate Judge Linda Lopez and San Diego Superior Court Judge Jinsook Ohta are reportedly being considered.

Nominations:
ND-OH:  Bridget Brennan-acting U.S. Attorney, ND-OH
ND-OH:  Charles Fleming-public defender
ND-OH:  David Augustin Ruiz-Magistrate Judge
ND-GA:  Victoria Marie Calvert-public defender
ND-GA:  Sarah Elisabeth Geraghty-clerk for James Zagel (ND-IL), activist lawyer
D-NH:  Samantha Elliott-private practice
SD-NY:  Dale Ho-clerk for Barbara Jones (SD-NY), ACLU lawyer
SD-CA:  Linda Lopez-Magistrate Judge
SD-CA: Jinsook Ohta-clerk for Barry Moskowitz (SD-CA), Superior Court Judge, San Diego County
WD-WA:  John Chun-clerk for Eugene Wright (9th Circuit), Washington Court of Appeals judge

The Federal Judiciary:

Supreme Court:  By a 5-4 vote, the court declined to issue an injunction against a Texas law banning abortion after six weeks, but only allowing private parties to sue to enforce it.  Progressives threw a fit and declared it the end of Roe v. Wade.  The ruling also spurred condemnation of the "shadow docket", despite the fact that the abortionists were the ones asking for an emergency ruling.

Abortion:  Many Trump-appointed judges have made rulings hostile to abortion, and several, including Amul Thapar (6th Circuit), have called Roe v. Wade wrongly decided.

Conflicts:  A Wall Street Journal investigation found 131 judges who had ruled in cases when they had a financial interest.  The conflicts generally seem to be unintentional, as many judges did not realize what stocks were in their portfolios.

4th Circuit:  A job ad posted by the 4th Circuit says it "prides itself on being a collegial, collaborative, and progressive organization".

Oklahoma:  The US Judicial Conference is recommending that 3 judgeships be added to ED-OK, and 2 to ND-OK.  The districts currently have a total of 5 judgeships.  This is due to a surge of cases following the Supreme Court ruling in McGirt v. Oklahoma that many crimes in Oklahoma's Indian reservations need to be tried in federal court rather than state court.

ND-OH:  Over the years, Judge John R. Adams has been accused of several incidents of anti-social conduct, including "blocking in the car of an intern who accidentally parked in his space".  In 2016, the Judicial Council of the Sixth Circuit eventually ordered him to undergo a psychiatric evaluation.  The evaluation found no mental illness, and the complaint was dismissed.  Adams sued, but the suit was dismissed due to lack of harm to him.  He is appealing.

Vacancy Declarations:  There are now 116 current and future judicial vacancies.  New vacancies over the past month are listed below.
D-MN: Susan Nelson (Obama) 12/31/21 (senior)
ND-CA: Lucy Koh (Obama) TBD (elevation)

State Supreme Courts:

California:  California Supreme Court Justice Mariano-Florentino Cuéllar will resign on October 31 to become the new president of the Carnegie Endowment for International Peace.  He is 49 and was appointed by Jerry Brown in 2015.  Governor Gavin Newsom will get his second appointment to the court.

Maryland:  Governor Larry Hogan appointed Judge Joseph Getty as Chief Judge and Judge Steven B. Gould to represent Montgomery County on the Maryland Court of Appeals on September 2.  Chief Judge Mary Ellen Barbera was age-limited on September 10.  Governor Hogan has appointed five of seven judges on the court.

North Carolina:  Ballot initiatives on voter ID and tax limitation were passed by the legislature and the voters in 2018.  The NAACP is challenging them in the courts, arguing that the legislature could not legitimately pass them since they were elected from supposedly gerrymandered districts.  With the case being appeals to the NC Supreme Court, the NAACP is demanding that two R justices recuse themselves, and the 4 D justices on the court may force them to do so.  This could allow D justice Sam Ervin IV, who is up for reelection in 2022, to vote to uphold the laws while the other three strike them down.

Tennessee:  Tennessee Supreme Court Justice Cornelia Clark died of cancer at age 71.  She was appointed by Phil Bredesen (D).  Governor Bill Lee will get his first appointment to the court, which now has 3 R and 1 D appointees.  Tennessee's constitution requires that no more than two justices come any of the three Grand Divisions, so the new justice will come from the Middle or East of the state.

Numbers and Trivia:

Retirements (Clinton):  When did appeals court judges appointed by Bill Clinton retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  Clinton appointed 66 appeals court judges.  All his appointees have been eligible for retirement for at least one year.  Judges who announced future retirement are counted as retired.  Here are the numbers.

2 (3%) resigned early (Henry, Sotomayor)
12 (18%) retired when eligible (within 1st year)
30 (45%) retired later
3 (5%) died in office (Michael, Parker, Kelly)
19 (29%) still active

11 (17%) retired under R president
36 (55%) retired under D president
19 (29%) still active
17 (26%) retired in first year of D president

Here are the summary statistics for Carter, Reagan, HW Bush, and Clinton.

JC  RWR HW WJC
07% 05% 12% 03% resigned early
29% 53% 50% 18% retired when eligible (within 1st year)
55% 28% 24% 45% retired later
09% 07% 02% 05% died in office
00% 07% 12% 29% still active

43% 46% 50% 17% retired under R president
57% 47% 38% 55% retired under D president
00% 07% 12% 29% still active
09% 14% 12% 26% retired in first year of same party president

Appointees of Reagan and HW were far more likely to retire when eligible.  Appointees of Carter and particularly Clinton have been far more partisan in the timing of their retirements.

Resources:
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Tuesday, August 31, 2021

September 2021 Judiciary News

Remember 9/11.

Nominations, Hearings, Confirmations:

Harsh Voruganti of the Vetting Room assesses judicial vacancies and nominations in the Northeast, Atlantic Coast, Midwest, and South.

Breyer:  President Biden is resisting pressuring Justice Breyer to retire, to the consternation of progressive activists.

Breyer:  In a recent interview, Breyer said "I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years," quoting Antonin Scalia. 

Graham:  Tucker Carlson slammed Lindsay Graham for failing to vote against a single Biden judicial nominee so far.

2nd Circuit:  Myrna Pérez of the leftist Brennan Center for Justice has been nominated to the 2nd Circuit.  Carrie Severino documents her radical positions, and shows that liberal senators critical of dark money are ignoring her dark money support.

D-ID:  There has been no nomination for the vacancy in the seat of Judge B. Lynn Winmill announced in January.  Senator Crapo has had conversations with the White House.  The article doesn't seem to realize that the blue slip is still in effect for district judges.

WD-VA:  Senators Kaine and Warner have recommended two candidates for a federal judgeship in WD-VA vacated by James Parker Jones on August 30.  They are Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott.

Nominations:
TBD

The Federal Judiciary:

Supreme Court:  The Supreme Court ended the CDC eviction moratorium by a 6-3 vote.  Justice Kavanaugh had previously written that it should expire without declaring it illegal, and the Biden administration responded by extending it.

District judges:  Senator Todd Young is sponsoring a bill to add 77 district judges, consistent with the report of the US Judicial Conference.  It would add 39 new seats in 2025 and 38 new seats in 2029.  Meanwhile, Rep. Hank Johnson is sponsoring a bill to add 203 judges immediately.

Redistricting:  Ds are worried that courts won't protect them from unfavorable redistricting maps due to a Supreme Court ruling that political gerrymandering is not illegal.  Another issue is the limited time between map-drawing and filing deadlines due to the delayed census data.

4th Circuit:  Leftist judge James Wynn is upset about conservative judges issuing dissenting opinions from denial of en banc.  These dissents often signal cases the Supreme Court should overturn.

ED-MI:  Seven pro-Trump attorneys, including Sidney Powell and Lin Wood, face sanctions for promoting false claims of election fraud in their legal filings.  The judge imposing sanctions is Linda Parker, an Obama appointee.

Vacancy Declarations:  There are now 115 current and future judicial vacancies.  New vacancies over the past month are listed below.
3rd Circuit: Theodore McKee (Clinton) TBD (senior)
SD-IN: Richard Young (Clinton) TBD (senior)
D-NM: Martha Vázquez (Clinton) XX/22 (senior)
4th Circuit: Robert King (Clinton) TBD (senior)

State Supreme Courts:

Maryland:  Chief Judge Mary Ellen Barbera will be forced to retire on September 10.  She was appointed by Martin O'Malley in 2013.  Governor Larry Hogan will get his fifth appointment to the court.  The Maryland Appellate Courts Judicial Nominating Commission nominated Court of Special Appeals Judges Steven Gould and Terrence Zic, Montgomery County Circuit Court Judge Sharon Burrell, and attorney J. Bradford McCullough.

Ohio:  Ohio Supreme Court Justice Pat DeWine (R) will run for reelection, not for Chief Justice.  Justices Sharon Kennedy (R) and Jennifer Brunner (D) are running to replace Chief Justice Maureen O'Connor (R) who is age-limited.

Oregon:  Justice Lynn Nakamoto is retiring from the Oregon Supreme Court.  She was appointed to the court by Governor Kate Brown in 2016.  Brown will appoint her replacement.

Numbers and Trivia:

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past few months.
1 (0) December 2020
20 (3) January 2021
19 (3) February
8 (3) March
7 (1) April
8 (5) May
4 (0) June
5 (2) July
4 (2) August

Clerks:  David Lat has an analysis of Supreme Court clerk hiring for 2017-2021.  Yale Law School and the DC Circuit produce the most Supreme Court clerks.  Top R feeder judges were Sutton, Pryor, and Kavanaugh.  Top D feeder judges were Katzmann, Srinivasan, and Garland, so Sri looks to be the premiere D feeder going forward.  In October Term 2021, only one D appointed judge had more than one clerk hired for this term.

Retirements (George HW Bush):  When did appeals court judges appointed by George HW Bush retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  Bush appointed 42 appeals court judges.  Here are the numbers.

5 (12%) resigned early (Thomas, Souter, Alito, Luttig, Lewis)
21 (50%) retired when eligible (within 1st year)
10 (24%) retired later
1 (2%) died in office
5 (12%) still active (Lourie, Henderson, Niemeyer, Loken, Rovner)

21 (50%) retired under R president
16 (38%) retired under D president
5 (12%) still active
5 (12%) retired in first year of R president

The percentage who retired when eligible is similar to that under Reagan (53%) but much higher than that under Carter (29%).  Too many HW appointees gave their seats to Obama appointees.

Resources:
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Wednesday, August 18, 2021

Is a Part-time Legislature a Good Idea?

One common goal of conservative activists in Michigan is a part-time legislature.  This dates back to before the Tea Party era, and it reappears periodically, as in Brian Calley's ill-fated ballot proposal in 2017.  But is this really something that conservatives should want?

To be sure, a part-time legislature is not some pipe dream.  Forty states have some form of a part-time legislature, though how part-time they are varies from state to state.  For example, in Minnesota the part-time legislators are paid $46500, which is a decent salary for a full-time job.

There are a couple commonly cited benefits to a part-time legislature.  One is saving money on legislators' salaries.  This is a small proportion of a state budget.  In Michigan, the state budget is 61.6 billion, and the entire budget for the state legislature is 175 million, or 0.3%.  The base salary for legislators is about $72000, so the total salary for legislators is about 10.6 million.  Even if we assume a total cost of $100000 per legislator including fringe benefits, the total cost is still only about 15 million, or 0.02% of the state budget.  Clearly the savings from cutting legislators' salaries are minimal.

Another benefit cited is to limit the time the legislature is in session, and hence to limit the number of bills passed.  There is some evidence on behalf of this belief.

There are also some downsides to a part-time legislature.

One problem is that a part-time legislature limits who can be a legislator.  When legislator salaries are low, most people who need to support a family will find it impractical to run for office.  Those who can run for office will be mainly wealthy people, retirees, and young activists.

Some professions would be much more convenient for potential candidates.  Anyone with a fixed schedule (office workers, factory workers, teachers, etc.) could not hold theri job while being a legislator.  However, people more flexible employment (salesmen, real estate agents, farmers, many business owners, political activists) could.  Is this fair?  Does it lead to better political outcomes for the public?

Another problem is the potential for conflict of interest.  Legislators who are financially dependent on a particular business would be very likely to vote for its interests.  (While legislators might be required to abstain on a bill that directly involved their own employer, this would not extend to an entire industry.  Farmers are not expected to recuse themselves on all bills involving agriculture.)

It is all too likely that legislators who are employed by someone else will face some pressure to vote the way the employer would prefer.  It wouldn't have to be anything as direct as actually ordering an employee to vote a certain way.  An employer could drop a few hints, and the legislator would know that the wrong vote might risk his job.

Case in point, an Alabama state representative was fired from his job as a sheriff's deputy after sponsoring a constitutional carry bill.

The sheriff in Mobile County, Alabama has fired a captain in the Sheriff’s Department over his support for Constitutional Carry. Capt. Shane Stringer is also a state representative, and was the primary sponsor of the permitless carry bill introduced in the legislature earlier this year. That apparently angered Sheriff Sam Cochran enough that he terminated Stringer over the legislation.

Cochran notified Stringer on Wednesday that he was being fired as a captain within the department because he sponsored “constitutional carry” gun rights legislation as a member of the Alabama House of Representatives. Cochran also told a Washington County media outlet that the bill to allow Alabamians to carry their handguns concealed without paying an Alabama sheriff for a pistol permit for the privilege was the reason for the personnel decision.

How many times have state legislators changed their positions because they weren't brave enough to stand up to pressure?

Another issue is how the proposal would affect the legislature's ability to check the powers of the other branches.  After all, the governor and executive branch officials would still be full-time.  If the legislature has a problem with the governor's actions, how can it pass legislation, hold hearings, initiate impeachment, etc. if it is not in session?  A governor could wait to veto popular legislation until the legislature is out of session, and depending how the law is written, it might not be able to return to vote on an override.

In Michigan, executive branch appointments are automatically confirmed unless the legislature rejects them within 60 days.  Citizens' initiatives can be approved by the legislature (and bypass the governor) when it is in session.  Otherwise, they must go on the ballot in the next election.  A well-crafted plan for a part-time legislature might avoid some of these problems, but if the legislature is regularly called back to vote on veto overrides, appointments, initiatives, etc., is it really part-time?

Most politicians don't deserve what they are paid.  But paying politicians isn't about what they deserve, it is about ensuring their independence in a system of checks and balances designed to protect our rights.  A part-time legislature would weaken their role in that system.

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Friday, August 06, 2021

Governor Whitmer's Crazy Fundraising Scheme

Governor Gretchen Whitmer is ignoring fundraising limits for her campaign for reelection.  Her most recent campaign finance report shows that she raised at least $250,000 from some donors, despite a law limiting gubernatorial candidates to $7150 per individual donor.

Whitmer's fundraising strategy an 'illegal scheme,' conservative group says

To justify this, Whitmer is using an opinion by former Secretary of State (1970-1994) Richard Austin, who claimed that an incumbent subject to a recall could raise unlimited funds to counter it.  But the law doesn't say this.

There are several groups promoting a recall of the Governor, but they have essentially no money or organization.  Most of their petitions haven't made it past the Board of Canvassers, and one that did has since expired.  Even if there were an active recall petition, it would be very difficult for organizers to collect the necessary signatures.  There will not be any recall election.  Nonetheless, Whitmer is claiming that she can raise unlimited money to fight a nonexistant recall and then transfer it all to her reelection campaign when no recall election occurs.

Austin's opinion is crazy.  If it were to hold, any incumbent could have a political ally file a recall petition against him, and benefit from unlimited fundraising against a recall that would never happen.

It might make sense to allow an incumbent subject to recall to raise money separately to fight the recall.  But if so, the same fundraising limits should still apply, and no money from a recall campaign fund should transfer to a reelection campaign fund.

This is just the latest abuse of power by Whitmer.  Most famously, she abused her emergency powers during the pandemic.  The Michigan Supreme Court ruled 4-3 that the 1945 emergency powers law was unconstitutional (it was intended to be used for short-term emergencies like riots).  It also ruled unanimously that her use of the 1976 emergency powers act was illegal.  (Orders using it must expire after a month, which Whitmer tried to evade by just reissuing the same order.)  She then implemented many of the same policies using the Michigan health department.  She also abused power in other ways, including attempting to unilaterally close Enbridge Line 5.

The legislature should immediately pass a law repudiating Austin's opinion and dare Whitmer to veto it.  Her actions should also be challenged in the courts.

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Wednesday, August 04, 2021

August 2021 Primary Election Results

Detroit Mayor:  Duggan 73 Adams 10  They move on to a runoff that Duggan will win easily.
Detroit Clerk:  Winfrey 72 McCampbell 14  The incompetent Winfrey is likely to win another term.
Detroit Proposal P:  No 68  Deeply flawed charter revision rejected.

Dearborn Mayor:  Hammoud 42 Woronchak 18  State rep Hammoud is likely to win in November, leaving his seat open.

Taylor Mayor:  Garza 36 Woolley 22 Jones 22  Mayor Sollars, who is under indictment, lost a write-in campaign.  If state rep Garza wins, it will open his seat in November.

Pontiac Mayor:  Greimel 53  Former state rep Greimel represented Pontiac in the legislature, but only recently moved into the city.

Flint:  Pro-Trump councilman Maurice Davis lost his seat.

State senate:
8.  Wozniak 36 Hornberger 29 Mekoski 21
28.  Huizinga 33.8 Green 33.2 Brann 32.9
The winners are both establishment-friendly candidates.  They are both state reps who will leave their seats open when they win in November.  The election conspiracy candidates (Mekoski and Green) have a constituency, but don't represent a majority of the GOP.

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Sunday, August 01, 2021

Political Rules Are Made to be Broken

In a recent article, Bill Ballenger excoriates Governor Gretchen Whitmer's record, but concludes that she will be reelected.

Whitmer may be Michigan’s worst governor ever, but she’s still likely to be re-elected

Aside from the question of whether Rs will field a quality candidate, Ballenger's argument rests on a historical pattern.

And no incumbent governor in Michigan history, of either major party, has EVER been defeated when seeking election to a second four-year term. Yes, after Sigler, Democrat John Swainson lost to Romney in 1962, but those were in the days of two-year terms. Yes, Democrat Jim Blanchard lost in 1990 to Engler, but Blanchard had already WON a second four-year term. A 1990 win would have given him a THIRD term. Bill Milliken and Engler won all three times they ran for four-year terms. In fact, their first re-elections were by bigger margins than their initial wins. Ditto Granholm. Snyder also won re-election in 2014, before he was term-limited.

This is one of those rules that holds until it doesn't.  Plenty of similar rules have failed in the past.  America never elected a black president until it did.  America never elected a president without previous government service until it did (Trump).

Incumbents certainly have an advantage seeking reelection.  They have already won a plurality of votes once.  They can spend their term fundraising and gaining publicity, while a challenger has much less time to do so.  But incumbents can lose, due to unpopular decisions or changes in the political landscape.  The fact that Jim Blanchard lost in 1990 proves it can happen.

In fact, there is another 'rule' that conflicts with the one Ballenger mentions.  Since 1975, Michigan has always elected a governor of the opposite party from the president, with the exception of the close election of 1990.  Thus since 1975, Michigan always elects a governor of the opposite party when there is an incumbent running for reelection the first time.  This 'rule' would predict that Whitmer will lose next year.

Of course, 'rules' don't decide elections, voters do.  Conservatives must work to defeat Whitmer next year.

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