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:

Bench Memos (National Review)
The Vetting Room

How Appealing
Twitter: FedJudges Senate Cloakroom
Senate Judiciary Committee
ABA Judicial Ratings 2021-2022
Wikipedia: US Appeals Courts Trump Judges Biden Judges
Senior Status Spreadsheet
Future Judicial Vacancies
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia--State Supreme Court Vacancies 2021
The Supreme Courts
2020: March April May June July August September October Elections November December

2021: January February March April May June July August

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.

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.

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.

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.