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4th Circuit:  Judge Robert B. King has rescinded his declaration of senior status, which he submitted in August.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  The last time a circuit judge rescinded his declaration of senior status was in 2018, when Michael Kanne (7th Circuit) did so in a dispute over who would be nominated to succeed him.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:

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 2022
The Supreme Courts
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