October 2023 Judiciary News

Nominations, Hearings, Confirmations:

D-AK:  Senator Dan Sullivan (R) formed a new council to vet potential federal judges without involving Senator Lisa Murkowski (R).  One of three seats on D-AK has been vacant since 2021.

Nominations:
WD-NY: Colleen Holland-clerk for Colleen Wolford (WD-NY), Michael Telesca (WD-NY)
SD-TX: John A. Kazen-clerk for Robert Parker (ED-TX), Magistrate Judge (SD-TX)
D-HI: Micah W. J. Smith-clerk for Souter, Guido Calabresi (2nd Circuit), AUSA (D-HI)
D-NJ: Jamel Semper-AUSA (D-NJ)
D-OR: Mustafa Kasubhai-Magistrate Judge (D-OR)
ED-CA: Kirk Sherriff-AUSA (ED-CA)
D-HI: Shanlyn Park-state judge

The Federal Judiciary:

Recusal:  Carrie Severino points out that Justice Ginsberg regularly violated the ethical standards that the left uses to attack Justice Thomas.

2nd Circuit:  Judge Rosemary Pooler died in August at age 85.  President Clinton appointed her to ND-NY in 1994 and to the 2nd Circuit in 1998.  She took senior status in 2022.

6th Circuit:  Judge Julia Smith Gibbons will take senior status upon confirmation of a successor.  She was appointed to a state judgeship by Lamar Alexander (R).  She was appointed by Reagan to WD-TN in 1983 and by W to the 6th Circuit in 2002.  She choose to repay all the Republicans who gave her those positions by giving her seat to a Biden appointee.

Federal Circuit:  Judge Pauline Newman (age 96) was suspended for one year from her duties by the Federal Circuit.  Critics claim she is unable to fulfill her duties, and she has refused to submit to medical testing.  They rejected the tests that she did submit.  She claims that she is being mistreated due to her frequent dissents.

Vacancy Declarations:  There are now 95 current and future judicial vacancies.  New vacancies over the past month are listed below.

WD-VA: Michael Urbanski (Obama) 7/4/24 (senior)

D-AZ: James Soto (Obama) 7/1/24 (senior)

D-AZ: Douglas Rayes (Obama) 6/1/24 (senior)

SD-IN: Jane Magnus-Stinson (Obama) 7/1/24 (senior)
CD-CA: George Wu (W) 11/3/23 (senior)
D-VT: Geoffrey Crawford (Obama) 8/9/24 (senior)

Claims: Patricia Campbell Smith (Obama) 9/30/23 (retired)

State Supreme Courts:

Connecticut:  Governor Ned Lamont appointed Nora Dannehy to the Connecticut Supreme Court.  She was a US Attorney for D-CT and general counsel to Lamont.  His previous nominee, Sandra Slack Glover, withdrew her nomination after progressives attacked her for signing a letter supporting the nomination of Amy Coney Barrett.

Hawaii:  Hawaii's Judicial Selection Commission produced a list of six nominees for two vacant seats on the Hawaii Supreme Court.  Governor Josh Green (D) will fill the seats vacated by Justices Michael Wilson and Paula Nakayama.

Idaho:  Nine candidates have applied for the seat on the Idaho Supreme Court being vacated by John Stegner.  One of them is former Idaho AG Lawrence Wasden, who lost the R primary in 2022.  The Idaho Judicial Council will interview candidates on October 18.

Minnesota:  Governor Tim Walz (D) appointed Justice Natalie Hudson as chief justice.  Hudson was appointed to the court by Mark Dayton in 2015.  She replaces Lorie Gildea, who retires on October 1.  Walz also appointed Karl Procaccini to Hudson's seat.  He clerked for Michael Davis (D-MN) and Diana Murphy (8th Circuit) and was Walz' general counsel for four years.

Missouri:  Governor Mike Parson (R) appointed Missouri Court of Appeals judge Kelly Broniec to the Missouri Supreme Court.  She is 52 and was appointed by Parson in 2020.  The other finalists recommended by the Missouri Appellate Judicial Commission were Missouri Court of Appeals judges Michael Gardner and Ginger Gooch.  The seat was vacated by George Draper III on August 5 due to age limits.

Montana:  The Office of Disciplinary Counsel, a body subordinate to the Montana Supreme Court (MSC), has filed a complaint against AG Austin Knudsen (R) for criticizing the MSC.  Specifically, he supposedly "undermined public confidence in the fairness and impartiality of our system of justice by attempting to evade the authority of the Montana Supreme Court and assaulting the integrity of the judiciary" when he criticized them for secretly lobbying against a bill to reform the judiciary.  MSC Chief Justice Mike McGrath and Justice Dirk Sandefur will not seek reelection in 2024.

North Carolina:  North Carolina Supreme Court justice Michael Morgan (D) stepped down in early September.  He announced a campaign for governor in 2024.  Governor Roy Cooper appointed Court of Appeals judge Allison Riggs to replace Morgan.  She worked for the far-left Southern Coalition for Social Justice before being appointed by Cooper in January.  The seat is up for election in 2024.

Oregon:  Governor Tina Kotek appointed Aruna Masih to the Oregon Supreme Court.  She is a labor and civil rights attorney with no judicial experience.  Masih was born in India.  She replaces Adrienne Nelson, who was appointed to D-OR in February.

Wisconsin:  The installation of a new 4-3 leftist majority on the Wisconsin Supreme Court has set off a fight both within and outside the court.  The four leftist judges fired the court administrator (possibly illegally) and hired a leftist judge as a replacement (possibly illegally).

Assembly Speaker Robin Vos (R) has floated the idea of impeaching newly-elected justice Janet Protasiewicz.  She is refusing to recuse from a case intended to overturn the state's legislative maps despite having declared them 'rigged' on the campaign trail.  If impeached, she would be suspended from hearing cases until the trial concludes.

History:

On Ed Whelan's Substack, "Confirmation Tales", recent posts deal with Bill Clinton's nomination of federal judges.

Peter Edelman Leaks the News of His Impending D.C. Circuit Nomination

Bill Clinton Abandons Peter Edelman Twice

From Ginsburg and Breyer to the Present
Orrin Hatch Becomes Judiciary Committee Chairman
Labor Day Trivia Questions Answers
Judicial Retirements and Judicial Vacancies
Senate Republicans Learn to Use Their Majority Muscle

Bill Clinton Pressures Own Judicial Appointee To Reverse ‘Stupid’ Ruling For Drug Dealer
Bob Dole Puts Judges At Center Of 1996 Presidential Campaign

Resources:

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

Twitter: FedJudges Senate Cloakroom

Podcasts: Advisory Opinions Law Talk
Senate Judiciary Committee 
ABA Judicial Ratings 2023-2024
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 2023 Elections 2023
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

2022: January February March April May June July August September October Elections December
2023: January February March May June July August

What Does '2000 Mules' Actually Prove?

One of the later-appearing arguments that the 2020 election was stolen appears in the documentary 2000 Mules, hosted by Dinesh D'Souza.  The documentary reports on the claims of the group True the Vote about ballot harvesting in swing states.

True the Vote acquired anonymous cell phone location data from millions of users.  They correlated this with locations of ballot drop boxes, and claimed to find evidence of thousands of 'mules', that is, people who visited multiple drop boxes to deposit ballots.

Ballot harvesting is the practice of collecting ballots from multiple voters to (presumably) deposit them in the mail or a ballot drop box.  This practice is generally legal for immediate family members, but most states make it illegal for strangers or large quantities of ballots.  The reason for this is that ballot harvesting created a risk of voter fraud, as ballots from unsympathetic voters could be discarded.  This occurred in the 2018 congressional election in North Carolina's 9th district, where Mark Harris (R) employed a campaign consultant who was found to have harvested ballots and manipulated them.

Media articles often describe 2000 Mules as 'widely debunked', citing two 'fact check' articles by Reuters and AP written shortly after its release.  There is also a fact check by Mlive focused on Michigan.  The claim that it is 'widely debunked' is an overstatement.  While the articles raise legitimate questions about the film, they cannot debunk it, since they don't have the information to do so.

Additional questions have been raised by conservative commentators Ben Shapiro and Erick Erickson, who found the documentary unpersuasive.  The right-leaning site The Dispatch also did its own fact check.

One criticism deals with the use of cell phone location data.  Several experts say that this data is not as precise as True the Vote claims.  If so, their list of 'mules' likely includes many innocent people who just happened to walk near several drop boxes while out and about.

Another problem is exactly what 2000 Mules claims and does not claim.  They claim there are 2000 mules, but never identify any of them.  They claim to know which organizations they work for, but never identify them either.  The fact that they don't suggests a lack of confidence in their claims.  Of course, if they are wrong, they would likely be sued by the individuals and groups they identify.

The movie shows some people taking selfies while depositing ballots in drop boxes.  They claim this is how the mules provide proof of their work.  However, they never show video of the same person depositing ballots in more than one location, which is what they claim the cell phone data shows.

Subsequent questioning has revealed more reasons to doubt the thesis of 2000 Mules.  It is important to remember that while ballot harvesting is illegal in most states, that does not mean that the ballots are themselves illegal.  Under questioning by the Wisconsin legislature, Catherine Engelbrecht admitted that they were not claiming that any of the ballots they claim were harvested were illegal.  If a legitimate voter gives a ballot to a harvester, the harvesting may be illegal, but the ballot is not.

Creating hundreds of thousands of illegal votes would be very difficult.  To be counted, a vote must correspond to a registered voter, so a fraudster cannot just make up names for their fraudulent ballots.  If they try to use the names of real registered voters, there is a high risk that multiple ballots will be received using the same name, which would trigger an immediate investigation.  This did not happen in the 2020 election.

Despite (or because of) the questions about their validity, the claims of 2000 Mules and True the Vote have made should be investigated and proved true or false once and for all.  In fact, the Georgia Secretary of State is trying to do that.  He has requested the evidence True the Vote says it has.  They are refusing to turn it over, so he has filed suit to force them to do so.

This development makes it appear very doubtful that the claims of 2000 Mules are true.

Rallies Don't Decide Elections

One of the most common arguments that the 2020 election was stolen concerns Trump's rallies.  In particular, it is commonly asked how Trump could have lost when he had huge rallies and Biden didn't.

To answer this question, we should first note that it is true that Trump had many rallies of up to 20000 people, while Biden had almost no rallies at all.  However, it is important to remember that elections are decided by voting, not rally attendance.  The overall electorate of 150,000,000 people is far larger than the number of people who go to political rallies.

The size of rally crowds is an imperfect proxy for voter enthusiasm.  But enthusiastic votes and reluctant votes both count the same.  A candidate can have very enthusiastic supporters without having a large enough base overall.  For example, in 2008 and 2012 Ron Paul had large rallies, but he ended up with 11% of the popular vote in the 2012 primary.

Also, comparing rally sizes is unfair given that Biden never tried to hold any large rallies.  Aside from the fact that Biden wasn't inspiring, a major reason for this was the fear of COVID, which by mid-2020 was more pronounced on the left than on the right.

The focus on rallies seems to reflect flaws in the strategy of the Trump campaign.  While rallies have some value, they tend to primarily fire up people who were already going to vote for Trump.  Meanwhile, the Biden campaign was focused on getting people to vote using early voting and mail-in ballots.  Trump's campaign actually discouraged people from using these measures due to overblown (though not entirely baseless) election security concerns.

But why did so many voters turn out for Biden?  Because they weren't for Biden, they were against Trump.  To return to rallies, while there were essentially no pro-Biden rallies, there were many anti-Trump rallies.  Early in 2017, the Women's March drew 3-5 million people nationwide.  Then the March for Science drew hundreds of thousands nationwide.  Both these rallies were explicitly against Trump and his administration.  In May 2020 and following, the Black Lives Matter movement had thousands of protests attended by millions of people nationwide.  While BLM was not explicitly about Trump, it certainly was not friendly to him.

Thus we find that anti-Trump protests dwarfed pro-Trump rallies.  Even by the metric of rally sizes, the result of the 2020 election should be no surprise.