January 2022 Judiciary News

Happy new year of judiciary news.

2021 in Review:

Overall:  President Biden appointed 11 Circuit judges and 29 District judges in 2021.  This compares to President Trump's appointment of 12 Circuit judges and 6 District judges in 2021.  All of Biden's appointees come from states with two D senators (plus DC and PR).

Circuit judges:  Biden has filled 11 circuit court seats, and there are 19 more vacancies (5 with nominees).  There are 14 more D-appointed circuit court judges who are eligible for senior status but have not yet taken it.

The most votes for a circuit judge was 63 for Tiffany Cunningham, and the smallest margin was 1 for Jennifer Sung.  Biden's biggest impact is on the 2nd Circuit, where he has appointed three judges, and there are three more future vacancies to fill.

District judges:  Biden's larger number of district judges is due to a rule change that reduced the number of hours of debate on district judges from 30 to 2.

The most votes for a circuit judge was 81 for Zahid Quraishi (D-NJ), and the smallest margin was 4 for Deborah Boardman (D-MD).  Biden's biggest impact is on the D-NJ, where he has appointed four judges, and there are two more vacancies to fill.

Diversity:  President Biden's nominees are more racially diverse and have less traditional resumes.  However, they are more likely to have attended elite law schools.  Only one circuit appointee is a white male.

Nominations, Hearings, Confirmations:

9th Circuit:  The White House denied Senator Dan Sullivan (R-AK) the ability to meet with judicial nominees for the 9th Circuit, with a staffer saying "Well, we want to protect our judges."  He put holds on several judges until the White House agreed to the meetings.

SD-NY:  Dale Ho, a nominee for SD-NY who runs the ACLU's Voting Rights Project, had a rough hearing at the Senate Judiciary Committee.  When confronted about his extreme rhetoric, he claimed to not remember calling the Republican Party an “anti-democratic virus.”  He also called the US Senate "anti-democratic".

ND-IL:  Senators Durbin and Duckworth presented a list of seven attorneys and judges for nomination to serve ND-IL, which currently has one open seat.

D-NV:  "Do you think we should forgive criminal misbehavior in the name of social justice?"  Senator John Kennedy asked law professor and district court nominee Anne Traum that question nine times without receiving a clear answer.

Nominations:

TBD

The Federal Judiciary:

Supreme Court:  The court heard Dobbs v. Jackson Women’s Health Organization on December 1.  The arguments appeared to go well for opponents of abortion.  The Advisory Opinions podcast breaks down the arguments in detail.

Supreme Court:  The Supreme Court ruled that a lawsuit by abortionists against Texas over its effective 6-week abortion ban may proceed, but left the law in effect.  Ed Whelan has more detailed analysis.

Breyer:  Leftists continue to hope that justice Breyer will retire, while R senators hedge on whether a nominee would get a hearing if they control the senate.  This sentence is particularly amusing:

Among other factors, it's hard to press an 83-year-old justice to retire when Biden says he's planning to run for reelection when he will be in his early 80s himself.

Kavanaugh:  Justice Kavanaugh did not promise that he would not vote to overturn Roe v. Wade, contrary to the Washington Post.

Kavanaugh:  According to Mark Meadows, President Trump’s chief of staff, Trump wanted to choose Amy Coney Barrett for the Supreme Court seat that went to Brett Kavanaugh.  After the allegations against him, Ivanka Trump, Jared Kushner, and Leonard Leo supporting dropping his nomination, while Don McGahn continued to back him.

Court reform:  President Biden's court commission did not endorse court packing or term limits, pointing out various problems with these proposals.  It did speak favorably of continuing audio livestreams of oral arguments and adoption of an ethics code for Supreme Court justices.

Ethics:  Various proposals to strengthen ethics rules for the judiciary are being considered in Congress.  The article also surveys the long history of tension between Congress and the judiciary over judicial ethics rules.

3rd Circuit:  Judge D. Brooks Smith took senior status on December 4.  Smith was appointed to WD-PA by Reagan in 1988 and the 3rd Circuit by W in 2002.  He finished his term as chief of the 3rd Circuit on December 1.  For those who say this move is a betrayal of all those who worked to confirm him to lifetime judicial positions, the obvious rejoinder is

6th Circuit:  A 6th panel allowed Biden's vaccine mandate to go into effect, dissolving a stay issued by the 5th Circuit.  The ruling was written by Julia Smith Gibbons, a moderate appointed by W and joined by Jane Branstetter Stranch, an Obama appointee.  Joan Larsen, a Trump appointee, issued a dissent.  The case is likely to be appealed to the Supreme Court.

9th Circuit:  Trump appointees have frequently issued dissents from denial of a rehearing en banc.  This often signals to the Supreme Court that a case should be taken up, and many such cases have been overturned.

Vacancy Declarations:  There are now 107 current and future judicial vacancies.  New vacancies over the past month are listed below.

7th Circuit: David Hamilton (Obama) TBD (senior)

3rd Circuit: D. Brooks Smith (W) 12/4/21 (senior)

D-DC: Colleen Kollar-Kotelly (Clinton) XX (senior)

7th Circuit: Diane Wood (Clinton) TBD (senior)

D-MD: Paul Grimm (Obama) 12/11/22 (senior)

4th Circuit: Diana Motz (Clinton) TBD (senior)

6th Circuit: Helene White (W) TBD (senior)

6th Circuit: R. Guy Cole (Clinton) TBD (senior)
3rd Circuit: Thomas Ambro (Clinton) TBD (senior)

State Supreme Courts:

Court size:  Leftist Billy Corriher points out that several states have expanded the size of their state supreme courts.  He claims that this means that R politicians who call court packing 'unprecedented' are wrong.  However, he ignores the fact that supreme court justices in all states except Rhode Island have limited terms and are subject to election, while federal judges are not.

Montana:  The Montana legislature is asking the US Supreme Court to rule that it can subpoena Montana's judiciary.  The legislature previously issued subpoenas to determine the extend of judicial lobbying against legislation affecting the judiciary.  The Montana Supreme Court quashed the subpoenas, rufusing to recuse themselves from their own case.

New Jersey:  New Jersey Supreme Court Justice Jaynee LaVecchia will not extend her scheduled retirement past December 31.  Governor Phil Murphy nominated Rachel Wainer Apter to replace her on March 15, but state senator Holly Schepisi (R) is holding up the nomination, and it is unlikely to be confirmed before the legislative session ends on January 11.

North Carolina:  The North Carolina Supreme Court decided that judges may either recuse themselves from cases or ask the full court whether they should be recused.  Plaintiffs seeking to strike down ballot initiatives on voter ID and tax limitation were seeking to force two R justices to recuse from the case.  This ruling was not specifically about that case, but it appears that they will not be forcibly recused.

North Carolina:  Justice Robin Hudson (D) will retire in 2022.  This was expected, as she would only be able to serve 13 months before reaching the age limit of 72.  Justice Sam Ervin IV (D) will seek reelection, and Court of Appeals Judge Lucy Inman (D) will seek Hudson's seat.  Judges Richard Dietz and April Wood (R) are running for the seats.

Tennessee:  The Tennessee Council for Judicial Appointments nominated Court of Appeals Judges Kristi Davis and William Neal McBrayer, and Associate Solicitor General Sarah Campbell for the Tennessee Supreme Court seat open due to the death of Justice Cornelia Clark.  Governor Bill Lee will appoint one of them to the court.

Numbers and Trivia:

Chief Judges:  The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4), W (1, 2, 3, 5, 6, 7, 8, 10, 11, Fed), and Obama (9, DC).  There are two chief judges that will change in 2021. They are expected to be

1st Circuit (June 16) Jeffrey Howard (W) -> David Barron (Obama)

10th Circuit (October 1) Timothy Tymkovich (W) -> Jerome Holmes (W)

There could be more, and the dates could be sooner, if any chief judge steps down early.

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past year.

1 (0) December 2020

20 (3) January

19 (3) February

8 (3) March

7 (1) April

8 (5) May

4 (0) June

5 (2) July

4 (2) August

2 (0) September

5 (3) October

7 (1) November

9 (7) December 2021

99 (30) Total

Resources:

Blogs: Bench Memos (NR) The Vetting Room How Appealing

Twitter: FedJudges Senate Cloakroom

Pocasts: Adivsory Opinions Law Talk
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 Elections 2022
The Supreme Courts
2020: March April May June July August September October Elections November December

2021: January February March April May June July August September October November December

Michigan Redistricting: Congressional Map Approved

Michigan's Independent Redistricting Commission has passed a new congressional district map.

The map above is from the page at RRH Elections linked below, which also has individual district maps.

Michigan 2020s Congressional District Maps

Interactive versions of the map are available at Dave's Redistricting and 538.

Michigan Congressional Map-Dave's Redistricting
Michigan Congressional Map-538

Here are brief district descriptions.  The partisan statistics come from Dave's Redistricting; they are averages of several statewide races.

1. 59R, 39D Upper Peninsula, northern Lower Peninsula.

2. 63R, 35D West Michigan coast, central MI

3. 45R, 53D Grand Rapids and suburbs, north Ottawa, Muskegon

4. 51R, 47D Allegan, Van Buren, most of Kalamazoo, Battle Creek, S Ottawa, N Berrien

5. 61R, 37D South-central Michigan, including the entire lower tier

6. 36R, 63D Washtenaw, plus south and west Wayne

7. 49R, 50D Central MI (Ingham, Livingston, Eaton, Clinton, Schiawassee)

8. 48R, 50D Genesee, Saginaw, Bay, Midland

9. 64R, 35D The Thumb, N Oakland, N Macomb

10. 50R, 49D S Macomb, Rochester Hills

11. 39R, 59D Central Oakland

12. 25R, 74D W Detroit, Southfield, Livonia, Dearborn, Westland

13. 25R, 74D E Detroit, Downriver, Romulus

The overall takeaway is that the map is skewed to favor Ds, though not as badly as it could have been.  Consider the districts in detail.

1. (Safe R) This district doesn't change much, it just adds a few counties for popluation.  It becomes about 1% more R.  Rep. Jack Bergman previously pledged to retire this year (after three terms), but hasn't said yet whether he will keep his pledge.  If he does, a troll (below the bridge) candidate may finally win the seat.

2. (Safe R) This combines northern parts of old 2 represented by Bill Huizenga and a lot of rural territory from old 4 represented by John Moolenaar.  It is even safer, moving about 2% more R.  Moolenaar will run here, though he lives in Midland (in new 8).

3. (Tossup) This district drops heavily R rural Kent, Barry, Ionia, and Calhoun.  It adds Kentwood (D), Wyoming (lean R), N Ottawa (R), and the city of Muskegon (D), moving about 6% left.  This is a pro-D gerrymander in the name of "partisan fairness".  Incumbent Peter Meijer faces several pro-Trump challengers due to his vote for impeachment.  Meijer can still win this district, but if he loses the primary, the district will likely go D.

4. (Safe R) This has the majority of old 6, represented by longtime moderate R Fred Upton, but also includes the south Ottawa base of Bill Huizenga.  It drops the southern tier (R) and adds S Ottawa (R) and Battle Creek area (lean D).  The partisanship hasn't changed.  Huizenga is running here, while Upton has yet to announce his plans.  A wildcard here is state rep. Steve Carra, who was endorsed by Trump due to Upton's vote for impeachment.  He has been drawn into new district 5, where Tim Walberg will run.  If Carra continues to run against Upton, he could split the anti-Upton vote and allow Upton to win, or Upton and Huizenga could split the establishment vote and allow Carra to win.

5. (Safe R) This is mostly old 7, dropping Eaton and Washtenaw, and adds heavily R areas of rural Calhoun, St. Joseph, Cass, and S Berrien.  It moves about 4.5% right.  Tim Walberg will be safe here.

6. (Safe D) This succeeds old 12, adding W Washtenaw and dropping Dearborn and part of Downriver.  It moves 2% more R.  Fortunately, the commission did not extend this district into R territory south or west of it.  The city of Dearborn has been represented by a member of the Dingell family since 1964, but Debbie Dingell will move here, since she represents the bulk of this territory.

7. (Tossup) This is a highly competitive district containing Lansing and surrounding counties.  It contains the core of old 8 (Ingham and Livingston), which was drawn to lean R but was won by Elissa Slotkin (D) in 2018.  It adds lean R areas from old 4 and 7, while losing R (but D-trending) areas in Oakland.  Slotkin, who lives in Oakland, will move here.  The R candidate is likely to be state senator Tom Barrett, whose district was carved up.

8. (Lean D) This succeeds old 5, adding the rest of Saginaw County and the city of Midland.  While the district moves about 1% right, this is basically the best configuration for Dan Kildee (D) short of adding Lansing to the district.  This is another example of gerrymandering by the commission.

9. (Safe R) This succeeds old 10, losing a bit of central Macomb and adding some of north Oakland.  The partisanship hasn't changed.  Lisa McClain won't have a problem here.

10. (Tossup) This moves 7% right compared to old 9.  It adds lean R areas of central Macomb and Rochester Hills, while losing D areas of Oakland.  Andy Levin (D) represents much of this district but will run in new 11.  Several Oakland County Rs are considering running here, including former US Senate nominee John James, 2020 MI-11 nominee Erik Esshaki, and former Rep. (14-18) Mike Bishop.  It remains to be seen whether any prominent Macomb Rs will run, and who the Ds will nominate.

11. (Safe D) This has much of old 11, along with parts of old 9 and 14.  It moved 8.5% left of old 11.  It contains the homes of Haley Stevens and Andy Levin, who will compete against each other in the D primary.

12. (Safe D) The commission decided to reduce MI from two black-majority districts to none, with both new 12 and 13 now about 46% black.  This is likely to be challenged in court.  New 12 combines parts of old 13 and 14, but it contains the Southfield base of Brenda Lawrence, who will likely run here.

13. (Safe D) New 13 combines parts of old 13 and 14, but it contains the south Detroit base of Rashida Tlaib, who will run here.  She is being challenged in the D primary by state rep. Shri Thanedar, a wealthy businessman who represents a district in north Detroit.

Overall, districts 3 and 8 are clearly gerrymandered to favor Ds, and district 2, 5, and 9 are drawn to pack Rs.  However, the line between districts 5 and 6 is good, and districts 7 and 10 are reasonably competitive districts.  Old district 2 is effectively the one eliminated, since it doesn't have a clear successor in the new map.  The lack of any black-majority districts is likely to be challenged in court.

Coverage of last decade's redistricting:

2011-2012 Michigan Redistricting