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.

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