Nominations: Russell Wheeler analyzes the numbers of judicial nominations and confirmations by Biden and other recent presidents.
Nominations: Biden's judicial confirmations have slowed due to the illness of Senator Diane Feinstein (D-CA) and lack of blue slips from R senators.
Feinstein: Senator Diane Feinstein (D-CA) is facing calls to resign due to her age and ailments. She has offered to temporarily relinquish her seat on the Senate Judiciary Committee, which is unable to process controversial nominations in her absence. However, R senators refused to go along with the plan.
1st Circuit: Michael Delaney, the nominee for the NH seat on the 1st Circuit, is facing opposition from some leftist groups due to signing a brief defending a parental notification law on abortion. Several D senators on the Judiciary Committee have not endorsed Delaney. There is also opposition from both the right and left due to his advocacy as an attorney for publically disclosing the identity of a minor victim of sexual assault.
D-CO: Magistrate Judge Kato Crews was stumped by the question "Do you know what a Brady motion is?" The question from Senator John Kennedy (R-LA) came during Crews' confirmation hearing.
ND-MS: Senator Cindy Hyde-Smith refused to return a blue slip for nominee Scott Colom, citing his "opposition to legislation to protect female athletes" and support from George Soros.
Nominations:
TBA
The Federal Judiciary:
Thomas: A ProPublica
article attacked Justice Thomas for vacationing with his longtime friend Harlan Crow. However, Thomas did not break any existing ethics rule, and other justices have gone on similar trips. Several media reports contained errors or hyped minor misstatements to create the appearance of a scandal.
Gorsuch: Politico criticized Justice Gorsuch for selling his joint ownership in a piece of property, even though the buyer is a liberal, and Gorsuch
did nothing wrong.
Alito: The Wall Street Journal interviewed Justice Alito said regarding the leak of his draft opinion in Dobbs v. Jackson Women’s Health Organization. He said, "I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody". Alito stated that the leak risked the lives of the justices, and dismissed the theory that the leak came from someone on the right.
9th Circuit: Judge Edward Leavy died on March 12 at age 93. He was appointed to D-OR in 1984 and the 9th Circuit in 1987 by Reagan. He took senior status in 1997.
Federal Circuit: Federal Circuit Chief Judge Kimberly Moore "has filed a judicial complaint against Judge Pauline Newman under the Judicial Conduct and Disability Act"
claiming that Newman is unable to fulfill her duties due to slow issuance of opinions and concerns of colleagues. Newman is contesting the claim, and other colleagues object to the filing. Newman is 95 and was appointed by Reagan in 1984. Moore was appointed by W in 2006.
Vacancy Declarations: There are now 105 current and future judicial vacancies. New vacancies over the past month are listed below.
SD-TX: Lynn Hughes (Reagan) 2/12/23 (senior)
D-OR: Marco Hernandez (Obama) 8/21/24 (senior)
WD-NY: Frank P. Geraci Jr. (Obama) 4/1/23 (retired)
ND-IL: Thomas Durkin (Obama) 12/26/23 (senior)
D-NJ: John Vasquez (Obama) 9/8/23 (resigned)
WD-TX: Earl Yeakel (W) 5/1/23 (senior)
ND-TX: Barbara Lynn (Clinton) 5/15/23 (senior)
D-ME: Jon Levy (Obama) 5/6/24 (senior)
State Supreme Courts:
Connecticut: The US Senate confirmed Connecticut Supreme Court Justice Maria Araújo Kahn to the 2nd Circuit by a 51-42 vote. Governor Ned Lamont will make his second appointment to the Connecticut Supreme Court.
Delaware: Governor John Carney nominated Superior Court Judge Abigail LeGrow and lawyer N. Christopher Griffiths to the Delaware Supreme Court. They will replace Justice James Vaughn, Jr. (D), who is retiring, and Justice Tamika Montgomery-Reeves (D), who was confirmed to the 3rd Circuit. The Delaware Supreme Court cannot have more than 3 of 5 justices from the same party.
Florida: Justice Ricky Polston resigned from the Florida Supreme Court on March 31. Polston, age 67, is a conservative who was appointed by Charlie Crist in 2008. Governor Ron DeSantis will appoint a replacement from a list selected by the Judicial Nominating Commission. Initially, there were
only three applicants, so nominations were reopened and
15 candidates were selected for interviews.
New York: Governor Kathy Hochul nominated Justice Rowan Wilson to become Chief Judge of the New York Court of Appeals. Wilson, age 62, is a black liberal whose nomination follows the rejection of moderate Hector LaSalle in February. The
list of finalists included three current justices, Anthony Cannataro, Shirley Troutman, and Rowan Wilson, and had only two common nominees with the previous list. Hochul also nominated former NY solicitor general Caitlin Halligan, age 56, to replace Wilson. She was nominated to the DC Circuit by Obama in 2010-13, but filibustered by R senators.
Pennsylvania: The primary election to fill the seat of the late Justice Max Baer (D) is on May 16. Pennsylvania Superior Court judge Daniel McCaffery of Philadelphia was endorsed by the PA dems over judge Deborah Kunselman of Beaver County. Carolyn Carluccio, the president judge of Montgomery County Court, was
endorsed by the PA GOP over Pennsylvania Commonwealth Court judge Patricia McCullough. The general election is on November 8, 2023.
Wisconsin: On April 4, leftist Milwaukee County Circuit Court Judge Janet Protasiewicz won 56% to 44% for conservative former justice Dan Kelly. Kelly ran a lackluster campaign and was significantly outspent. Leftists will have a 4-3 majority on the Wisconsin Supreme Court for the first time since 2008.
History:
Ed Whelan has a new Substack, "
Confirmation Tales", where he tells his stories of working on judicial confirmation battles. The first few entries deal with his work for Senator Orrin Hatch (R-UT) and Bill Clinton's nomination of Ruth Bader Ginsberg.
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