Saturday, July 31, 2021

August 2021 Judiciary News

Congratulations to President Trump on his reinstatement as President sometime this month!

Nominations, Hearings, Confirmations:

Breyer:  Justice Breyer stated in an interview that he has not decided when to retire.

Breyer:  Schadenfreude alert!  Leftists are furious at Justice Breyer's refusal to retire.

Biden nominees:  Ian Millhiser provides a leftist perspective on how Biden has changed judicial nominations compared to Obama.

Judiciary Committee:  Shockingly, D senators who complained about how Rs were running the judicial confirmation process are now doing the same things they complained about.

California:  More than six months into Biden's presidency, there are still no nominees for the many vacancies on California's district courts.  Senators Dianne Feinstein and Alex Padilla have sent names to the White House, and it isn't clear what the hold up could be.

SD-FL:  The Rubio Judicial Nominating Commission recommended David Leibowitz and Detra Shaw-Wilder for district judge.  Shaw-Wilder was also recommended by the congressional (Wasserman-Schultz/Hastings) JNC. Leibovitz is close to Rubio and has a history of supporting D campaigns.

ED-WI:  A bipartisan commission has recommended four candidates for a federal judgeship in ED-WI.  The judge sits in Green Bay.  Three of the four candidates are from Green Bay.  The fourth, Milwaukee judge William Pocan, brother of far-left Rep. Mark Pocan, is a particularly bad choice.

Nominations:
TBD

The Federal Judiciary:

Supreme Court:  A 538 analysis shows the Supreme Court has moved right, and by some measures, Brett Kavanaugh is now the median justice.

Supreme Court:  The court accepted Dobbs v. Jackson Women’s Health Organization, a case challenging a Mississippi 15-week abortion ban.  Mississippi is asking for Roe v. Wade to be overturned.  Upholding the law should imply overturning Roe, but the court may find an illogical way to avoid doing both.

Garland:  Jessica Garland, daughter of AG Merrick Garland, has been hired as a clerk for Supreme Court Justice Elena Kagan.  After criticism of the hire, it was announced that she will delay her clerkship until her father is not AG.  Otherwise, either she or Justice Kagan might have to recuse from cases involving the Justice Department.

5th Circuit:  A panel found that mandatory dues to the state bar association in Texas should not be required due to its lobbying for liberal legislation not germane to its mission.  The panel did find that many activities related to pro bono work and diversity are allowed, so the bar may be able to reinstate mandatory dues if it avoids ideological lobbying.

9th Circuit:  The Supreme Court reversed the 9th Circuit in 15 of 16 appeals it heard from that circuit last term.  Ed Whelan wonders if the circuit is changing, as it recently voted to hear an appeal of a liberal panel ruling en banc.

D-SD:  Senior Judge Charles Kornmann continues to push prosecution of several US marshals who removed several defendants from his courtroom in a dispute over their refusal to state whether they received the COVID vaccine.  The DOJ declined to prosecute the marshals, so Judge Kornmann appointed a private attorney to prosecute them.  All the other judges in D-SD recused themselves from the case.  At their request, the 8th Circuit appointed Judge Brian Buescher of Nebraska to oversee the trial.

Vacancy Declarations:  There are now 115 current and future judicial vacancies.  New vacancies over the past month are listed below.
SD-CA: William Hayes (W) 8/1 (senior)
1st Circuit: O. Rogeriee Thompson (Obama) 12/31 (senior)
ND-IL: Matthew Kennelly (Clinton) 10/7 (senior)
ED-MI: David Lawson (Clinton) 8/6 (senior)
Federal Circuit: Kathleen O’Malley (Obama) 3/11/22 (senior)

State Supreme Courts:

Alaska:   Governor Mike Dunleavy appointed Superior Court Judge Jennifer Stuart Henderson to the Alaska Supreme Court.  She was appointed to the Superior Court by left-leaning independent Gov. Bill Walker.  The appointment comes a week after he asked the Alaska Judicial Council for a new slate of candidates.  They had not responded to his request.

Arizona:  Governor Doug Ducey appointed Kathryn Hackett King to the open seat on the Arizona Supreme Court vacated by Andrew Gould.  She is a member of the Arizona Board of Regents and a former aide to Ducey.

Georgia:  Governor Brian Kemp appointed Verda Colvin to succeed Chief Justice Harold Melton.  She is a black woman who serves on the Georgia Court of Appeals since she was appointed by Kemp in March 2020.  She will be the only black judge on the court.  Another candidate for the Supreme Court seat, Solicitor General Andrew Pinson, was appointed to fill Colvin’s seat on the Appeals Court.  Pinson clerked for Justice Thomas on the US Supreme Court.

Michigan:  Michigan Supreme Court Justice Richard Bernstein returned to Michigan after spending six months in the United Arab Emirates and Israel.  Shortly after voting to uphold Governor Whitmer's illegal emergency powers, he violated pandemic guidelines to travel out of America.

Montana:  This article summarizes the recent conflict between the Montana legislature and judiciary from a leftist perspective.

New Mexico:  Governor Michelle Lujan Grisham appointed New Mexico Court of Appeals Judge Briana Zamora to the New Mexico Supreme Court.  She replaces Justice Barbara Vigil. This is Grisham's fourth appointment to the five-member court.

Oklahoma:  Governor Kevin Stitt appointed Oklahoma Court of Criminal Appeals Judges Dana Kuehn to the Oklahoma Supreme Court seat vacated by Tom Colbert.  She was appointed to her current position in 2017.  This is Stitt's third appointment to the court.  The court now has 5 R and 4 D appointees, but one of the R appointees is not a conservative.

Numbers and Trivia:

Chief Justices:  Of all 17 chief justices of the Supreme Court, only 4 were elevated from associate justice (Rehnquist, Stone, E. White, Rutledge).  Note that Hughes had previously been a justice, but resigned for another position.  Only 6 had any experience as a judge before joining the Supreme Court, (E. White, Taft, Vinson, Burger, Rehnquist, Roberts).

Retirements (Reagan):  When did appeals court judges appointed by Ronald Reagan retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  Reagan appointed 83 appeals court judges.  Here are the numbers.

4 (5%) resigned early (Bork, Scalia, Starr, Sneeden)
44 (53%) retired when eligible (within 1st year)
23 (28%) retired later
6 (7%) died in office
6 (7%) still active (Newman, Wilkinson, Easterbrook, E. Jones, Kanne, J. Smith)

38 (46%) retired under R president
39 (47%) retired under D president
6 (7%) still active
12 (14%) retired in first year of R president

The (shockingly large) percentage of Reagan appointees who retired immediately is much larger than that for Carter appointees (29%).  Many of them turned their seats over to Clinton appointees.

History:

Nominations:  Despite decades of dominating the courts, progressives have convinced themselves that they "lost the courts" because they are just too darn nice!  The Atlantic article somehow fails to mention their slandering of Clarence Thomas, filibustering of nominees under W, and eliminating the filibuster under Obama.  It also does not consider the possibility that progressives "lost the courts" because voters didn't like judges subverting democracy to impose leftist policy preferences.  Ed Whelan also debunks the article.

Blue Slips:  This history of the blue slip isn't new, but it has much good historical information.

Resources:
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