The Western Right: March 2021 Judiciary News

Happy one year anniversary of judiciary news!

Nominations, Hearings, Confirmations:

Judiciary Committee: The Senate Judiciary Committee now has 11 members of each party. Ds have added Senators Jon Ossoff (GA) and Alex Padilla (CA) to the Senate Judiciary Committee. Neither are lawyers. Ossoff is a somewhat odd choice, as he comes from a competitive state. R senators Mike Crapo (ID) and Joni Ernst (IA) have been removed from the committee, and Tom Cotton (AR) has been added. Cotton has a JD from Harvard and clerked for Jerry Smith (5th Circuit).

Garland: The Senate Judiciary Committee held a hearing for Attorney General nominee Merrick Garland, a DC Circuit judge. It was a somewhat rocky hearing. Garland confused equity and equality, said he hasn't thought about whether illegal border crossing should be a crime, dodged questions about the Durham probe and transgender athletes competing in girls' sports, defended DOJ nominee Kristen Clarke, who called Blacks superior, referenced a Capital 'bombing', and suggested Antifa attacks on federal courthouse may not be domestic terrorism because they happened at night. None of this will stop the media from referring to him as a moderate.

ABA: The Biden administration will not wait for a rating from the American Bar Association (ABA) before making judicial nominations. We can't wait for all the D senators who condemned the Trump administration for the same policy to object.

Diversity: Colorado's D senators are promoting Regina Rodriguez for a district court vacancy. She is a half Mexican, half Japanese woman, who might seem to embody the diversity the left wants on the courts. But Brian Fallon of Demand Justice is opposing the nomination because she worked for a corporate law firm.

Biden nominees: Harsh Voruganti of the Vetting Room offers his predictions for possible Biden nominees for judicial vacancies.

Supreme Court: Maneuvering to fill a potential Supreme Court vacancy is already underway. House Majority Whip James Clyburn, whose endorsement was key to President Biden's nomination, is pushing Judge Michelle Childs (D-SC) for the seat. Childs, age 54, was appointed by Obama in 2010. Biden has pledged to appoint a black woman, but there is some resentment in the black caucus towards potential nominees from the Ivy League such as Judge Ketanji Brown Jackson (D-DC) and Justice Leondra Kruger (CA-SC).

Nominations:

TBD

Senate Judiciary Committee hearings:

March 1 (business): Merrick Garland (attorney general) was approved 15-7.

March 9 (nominations): Lisa Monaco and Vanita Gupta (DOJ positions) will be considered.

The Federal Judiciary:

Commission: The Biden panel on reforming the judiciary is unlikely to recommend packing the Supreme Court. More likely proposals include nonpartisan ideas like judicial term limits and ethics reforms.

Judicial expansion: Various liberal groups are pushing for an expansion in the number of federal judges. Somehow, they didn't demand this during the previous four years. While there is a legitimate need for more judges in some districts, neither party wants to allow a president of the other party to make more appointments.

En Banc: Partisan splits on en banc panels have become much more common in the past few years. The article tries to blame Trump, though a partisan split requires both sides to be partisan.

2nd Circuit: Retired judge Chris Droney revealed in an interview that "I had some role in the appointment of my successor", William Nardini. This helps to explain the otherwise underwhelming appointment of Nardini, a clerk for Sandra Day O'Connor.

3rd Circuit: Senior Judge Morton Greenberg died on January 28 at age 87. Reagan appointed him to the 3rd Circuit in 1987. He took senior status in 2000.

11th Circuit: Senior Judge Peter Fay died on January 31 at age 92. Nixon appointed him to SD-FL in 1970 and Ford appointed him to the 5th Circuit in 1976. He was assigned to the 11th Circuit when it was created in 1981. He took senior status in 1994.

SD-TX: The 5th Circuit reversed Judge Lynn Hughes' improper dismissal of a female professor’s sex discrimination claims and removed him from the case. Hughes has a history of controversial comments, including saying to a female prosecutor that "we didn’t let girls do it in the old days.” Hughes, who is 79, was appointed by Reagan in 1985.

Vacancy Declarations: There are now 91 current and future judicial vacancies. The 9 appeals court vacancies are on the 1st (1), 2nd (2), 4th (1), 7th (1), 9th (1), 10th (2), and DC (1). New vacancies over the past month are listed below.

WD-LA: Elizabeth Foote (Obama) 1/21/22 (senior)

WD-MI: Janet Neff (W) 3/1 (senior)

D-CT: Janet Hall (Clinton) 1/21 (senior)

SD-OH: Solomon Oliver (Clinton) 2/15 (senior)

D-DC: Emmet Sullivan (Clinton) 4/3 (senior)

10th Circuit: Mary Briscoe (Clinton) 3/15 (senior)

WD-VA: James Parker Jones (Clinton) 8/30 (senior)

ND-GA: Thomas Thrash Jr. (Clinton) 5/8 (senior)

DC Circuit: David Tatel (Clinton) TBD (senior)

ED-PA: Darnell Jones II (W) 3/15 (senior)

D-KS: Julie Robinson (W) 1/14/22 (senior)

D-CT: Vanessa Bryant, (W) 2/1 (senior)

9th circuit: Susan Graber (Clinton) TBD (senior)

D-PR: Carmen Cerezo (Carter) 2/28 (retired)

D-NH: Paul Barbadoro (HW) 3/1 (senior)

CD-CA: Virginia Phillips (Clinton) 2/14/22 (retired)

ND-GA: Amy Totenberg (Obama) 4/4 (senior)

4th Circuit: Barbara Keenan (Obama) 8/31 (senior)

WD-TX: Philip R. Martinez (W) 2/26 (death)

State Supreme Courts:

Judicial Selection: Many states are considering changes to how judges are selected. In particular, R legislators in Indiana, Missouri, Montana, Oklahoma, and South Carolina are trying to reduce or eliminate the role of judicial nominating commissions that are influenced by liberal bar associations.

Georgia: Chief Justice Harold Melton will retire on July 1. He is the only black justice on the all-R nine-member court. He was appointed by Sonny Perdue in 2005, and is only 54 now. His successor will be the third appointee of Governor Brian Kemp.

Idaho: Justice Roger Burdick will retire on June 30. He is 73, and was appointed by Dirk Kempthorne in 2003. His successor will be the first appointee of Governor Brad Little.

Missouri: Missouri Supreme Court Judge Laura Denvir Stith will retire on March 8. She had to retire no later than 2023 due to the age limit of 70. She was appointed in 2001 by D governor Bob Holden. The Missouri Supreme Court has 4 D and 3 R appointees, but the Rs may not always be conservative. Missouri has a "merit selection" system that sometimes makes it difficult to appoint conservative judges.

Montana: Now that Montana has an R trifecta, the legislature is considering how to reform judicial selection. Governor Gianforte is supporting a bill to make appointments directly without a nominating commission. Meanwhile, the state house passed a bill to elect judges by district. Electing judges on a partisan basis is also being considered. Montana is in the sad group of red states with liberal supreme courts, along with Alaska, Kansas, Missouri, and Oklahoma.

Numbers and Trivia:

District Judges: Senate Ds seem to have decided not to eliminate the blue slip for district judges. The numbers below show that there are more district judgeships assigned to blue states than to red states, so in the long run, there may be more downside to Ds to eliminate the blue slip.

261 Red (Two R senators)

78 Purple (One R, one D senator)

317 Blue (Two D senators)

26 None (DC and territories)

History:

Sotomayor: Thanks to RightInMA for compiling a list of times the media referred to Sonya Sotomayor as a "moderate".

Resources:
Bench Memos (National Review)
The Vetting Room