Wednesday, March 02, 2022

March 2022 Judiciary News

Stand with Ukraine.

Nominations, Hearings, Confirmations:

Jackson:  President Biden will nominate Ketanji Brown Jackson (DC Circuit) to the Supreme Court.  She is 51, and was born in Washington, DC.  She got a JD at Harvard and clerked for 
 Patti Saris (D-MA), Bruce Selya (1st Circuit), and Stephen Breyer (Supreme Court).  She was appointed to D-DC by Obama in 2013 and the DC Circuit by Biden in June 2021.

Jackson:  Jackson has a history of judicial overreach, and has been reversed several times by the liberal DC Circuit.

Jackson:  Jackson represented terrorists held in Guantanamo Bay as a federal public defender.  According to the Washington Free Beacon, she made a number of unsubstantiated allegations about conditions there.  She continued to advocate for detainees after leaving for private practice.

Nomination:  Ed Whelan shows how Biden's pledge to appoint a black woman has poisoned the debate around the Supreme Court vacancy.

Diversity:  Ed Whelan notes that 45% of Biden's circuit court nominees are black women, while about 3% of lawyers are black women.

Diversity:  Senate Majority Leader Chuck Schumer voted against 95% of Trump's minority appeals court nominees.  An analysis by the Article III Project also shows Dick Durbin voted against 81%, and Sheldon Whitehouse voted against 71%.

Schumer:  Senate majority leader Chuck Schumer claimed that “Until 1981, this powerful body, the Supreme Court, was all white men”.  Actually, Justice Thurgood Marshall, a black man, was appointed to the court in 1967.

ED-NY:  Biden nominee Nina Morrison, a lawyer with the Innocence Project, has been an adviser for the transition committees of several progressive prosecutors.  She claimed that she only advised  on "conviction integrity" and reviewing old cases, not the refusal to prosecute crimes.

ED-WI:  Senator Ron Johnson is refusing to return a blue slip for judge William Pocan, who was nominated to ED-WI.  Pocan, the brother of leftist congressman Mark Pocan, was one of four candidates recommended by a bipartisan commission.  He is the only one who is not from Green Bay, where the judgeship is based.

SD-IA:  Senators Grassley and Ernst recommended magistrate judge Stephen Locher to fill the seat of retiring Judge John Jarvey.  Locher clerked for John Gibson (8th Circuit), a Reagan appointee.

CD-CA:  Biden nominee Kenly Kiya Kato (some initials!) refused to answer whether racial discrimination is wrong, saying she didn't deal with "issues of morality".  She did concede that racial discrimination is illegal.

Nominations:
TBD

The Federal Judiciary:

1st Circuit:  Chief Judge Jeffrey Howard will take senior status on March 31, earlier than the June 16 date if he had completed his term.  The new chief judge will be David Barron, an Obama appointee.  Howard was appointed US attorney for D-NH by HW, and was appointed AG by Governor Steve Merrill (R).  He was appointed to the 1st Circuit by W in 2001.  He could have retired in 2020, but instead he showed his gratitude to all the Republicans who advanced his career by handing his seat to a D appointee.

5th Circuit:  Georgetown Law professor Ilya Shapiro tweeted "Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn't fit into the latest intersectionality hierarchy so we'll get lesser black woman."  After protests ensued, Judge James Ho gave a speech at Georgetown defending Shapiro.

5th Circuit:  A three-judge panel of all conservatives voted 2-1 to issue a preliminary injunction against a vaccine mandate by United Airlines.  Judge Jerry Smith issued a very harsh dissent, accusing judges Jennifer Elrod and Andy Oldham of distorting the law to reach their preferred result.

Vacancy Declarations:  There are now 118 current and future judicial vacancies.  New vacancies over the past month are listed below.
WD-LA: Michael Juneau (Trump) 2/1 (senior-disability?)
D-NB: John Gerrard (Obama) 2/6/23 (senior)
ED-NY: Kiyo Matsumoto (W) 7/23 (senior)
D-CO: William Martinez (Obama) 2/10/23 (senior)

State Supreme Courts:

California:  Governor Gavin Newsom nominated Justice Patricia Guerrero to the California Supreme Court.  She is 50, and would be the first Latina to sit on the court.  She was appointed to the Fourth District Court of Appeal by Jerry Brown in 2017.  The seat was vacated by Justice Mariano-Florentino Cuéllar, who resigned to head a think tank on October 31 after his wife was confirmed to the 9th Circuit.

Georgia:  Chief Justice David E. Nahmias will resign from the Georgia Supreme Court on July 17.  He clerked for Scalia, and was appointed to the court in 2009 by Sonny Perdue.  Governor Brian Kemp quickly appointed Court of Appeals judge Andrew Pinson to fill the vacancy.  Pinson clerked for Clarence Thomas, served as Solicitor General, and was appointed to the Court of Appeals by Kemp in 2021.

Indiana:  The Indiana Judicial Nominating Commission interviewed nineteen candidates to fill the vacancy caused by the upcoming retirement of Justice Steven David.  They named ten finalists, who advance to a second round of interviews in April.

Maryland:  Governor Larry Hogan nominated Harford County Circuit Judge Angela Eaves to replace Judge Robert McDonald, who left the court on February 23.  She is both black and Hispanic.  He also nominated Court of Special Appeals Judge Matthew Fader to succeed Judge Joseph Getty, who will be age-limited on April 14.  Hogan will have appointed 6 of 7 judges on the court.

Texas:  Appointed incumbent Evan Young won the R nomination for a full term on the Texas Supreme Court.  He defeated 5th District Court of Appeals judge David Schenck 55% to 45%.  Young will face Julia Maldonado (D) in November.

Utah:  Utah Supreme Court Justice Thomas Lee will retire on July 31.  The 57-year-old brother of Senator Mike Lee clerked for Clarence Thomas and is on Trump's Supreme Court list.  He was appointed by Gary Herbert in 2010.  Governor Spencer Cox will appointment will appoint his replacement, along with the successor to Constandinos Himonas, who retired on March 1.

Vermont:  Governor Phil Scott appointed Superior Court Judge Nancy Waples to the Vermont Supreme Court.  She is the daughter of Chinese immigrants, and previously was an assistant US attorney in D-VT.  She replaces Justice Beth Robinson, who was confirmed to the 2nd Circuit in November.

Virginia:  Justice Donald W. Lemons retired from the Virginia Supreme Court on February 1.  He is 72, and would have reached the age limit in 2023.  His replacement will be appointed by the Virginia legislature, along with the replacement for Justice William C. Mims, whose term ends on March 31.

West Virginia:  Justice Evan Jenkins resigned to return to private law practice.  He was elected in 2018, and was previously an R congressman 2014-2018.  His replacement will be appointed by Governor Jim Justice.

History:

Bush 43 Nominees:  Politico interviewed former Senator Dan Coats, the "sherpa" for failed Supreme Court nominee Harriet Miers and Justice Samuel Alito.  He explains some of what went wrong with Miers' nomination.

Biden:  In 2005, Senator Biden threatened to filibuster Janice Rogers Brown if she were nominated to the Supreme Court.  She could have been the first black woman on the Supreme Court if nominated.

Obama:  Why didn't president Obama nominate a black person to the Supreme Court?  Obama seemed less interested in pandering to a specific demographic group that he is a member of.

Resources:
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