Thursday, June 01, 2023

June 2023 Judiciary News

Nominations, Hearings, Confirmations:

Blue Slip:  The Congressional Black Caucus is pushing Senator Dick Durbin (D-IL) to eliminate the blue slip for district court judges.  They called it a "Jim Crow practice", despite defending the practice when Trump was president.  Many D Senators seem reluctant, as they realize it could be used against them under an R president.

Feinstein:  Senator Diane Feinstein (D-CA) finally returned to the Senate long enough to cast votes in the Senate Judiciary Committee.  Three controversial nominees, Charnelle Bjelkengren, Kato Crews, and Marian Gaston were passed out of committee.

1st Circuit:  Michael Delaney, the nominee for the NH seat on the 1st Circuit, withdrew his nomination.  He faced opposition from some leftist groups due to signing a brief defending a parental notification law on abortion and opposition from both the right and left due to his advocacy as an attorney for publicly disclosing the identity of a minor victim of sexual assault.

9th Circuit:  Judge Ana de Alba (ED-CA) was unable to explain the Dormant Commerce Clause under questioning by Senator John Kennedy (R-LA).

11th Circuit:  The Senate confirmed Nancy Abudu to the 11th Circuit by a 49-47 vote.  Notably, Joe Manchin (D-WV) voted no, his first vote against a Biden judicial nominee.  This may explain the 16-month gap between Abudu's nomination and confirmation.

ND-MS:  Nominee Scott Colom wrote a letter to Senator Cindy Hyde-Smith, disputing the reasons she has refused to return a blue slip.  These include "opposition to legislation to protect female athletes" and support from George Soros.

D-KS:  Jabari Wamble withdrew his nomination to D-KS.  He was previously nominated to the 10th Circuit in August 2022, but never received an ABA rating, and the nomination expired in January.  He was then nominated to D-KS, but he was expected to receive a 'not qualified' rating from the ABA.  Wamble is the son-in-law of Rep. Emanuel Cleaver (D-MO).

Nominations:
TBA

The Federal Judiciary:

Ethics:  The D majority on the Senate Judiciary Committee held two hearings to attack the Supreme Court over ethics issues.  However, R senators refuted their attacks.

Ethics:  Senator Sheldon Whitehouse (D-RI) introduced a bill to force recusal of Supreme Court justices who supposedly have conflicts.  This would result in numerous complaints trying to recuse justices the complainants don't like.

Thomas:  Ann Coulter argues that praise from left-controlled establishment institutions is more valuable than the free vacations that Justice Thomas took with Harlan Crow.

Sotomayor:  Justice Sotomayor received over 3 million dollars from publisher Penguin Random House and did not recuse herself from voting on whether to hear a case involving it.

Fortas:  Ilya Shapiro explains that the corruption that led to Abe Fortas' resignation in 1969 is not comparable to anything alleged against current justices.

Fix the Court:  The leftist group Fix the Court accidentally revealed its donors, showing that almost all of its funding comes from three leftist foundations.

Federal Circuit:  The complaint against Judge Pauline Newman claims that Newman is paranoid and unable to remember basic facts.  The Federal Circuit panel hearing the claim denied a transfer to another circuit, despite what would seem to be an obvious conflict of interest.

Vacancy Declarations:  There are now 95 current and future judicial vacancies.  New vacancies over the past month are listed below.
D-HI: Leslie Kobayshi (Obama) 10/9/24 (senior)
ED-MI: Paul Borman (Clinton) 8/1/23 (senior)

State Supreme Courts:

Connecticut:  Governor Ned Lamont nominated Sandra Slack Glover to the Connecticut Supreme Court.  She is an attorney for D-CT who clerked for Richard Posner (7th Circuit) and Justice Sandra Day O’Connor of the U.S. Supreme Court.  After being attacked by the left for signing a letter supporting the nomination of Amy Coney Barrett, who she clerked with at the Supreme Court, Glover withdrew her nomination.

Florida:  Governor Ron DeSantis appointed Meredith Sasso to the Florida Supreme Court.  She was Chief Deputy General Counsel to Governor Rick Scott, who appointed her to the Fifth District Court of Appeal in 2019.  She was transferred to the recently created Sixth District Court of Appeal, where she was chief judge. Sasso, age 40, is Cuban.  She fills the seat of retired Justice Ricky Polston.  She was one of the original three applicants for the seat, and one of six finalists after applications were reopened.

Idaho:  Idaho Supreme Court Justice John R. Stegner will retire on October 31.  He was appointed to the court by Butch Otter in 2018.  Governor Brad Little will get his second appointment to the court.

New Jersey:  Governor Phil Murphy nominated Michael Noriega, an ACLU lawyer specializing in immigration.  He would replace Barry Albin, who was age-limited in 2022.  The seat is currently held by Jack Sabatino, a temporary appointee.  The previous vacancy on the court lasted for 10 months due to an extended dispute with the state senate.

North Carolina:  North Carolina Supreme Court Justice Michael Morgan (D) will not seek reelection in 2024.  He was first elected in 2016.  He would only have been able to serve three years, as he would have been age-limited in 2027.  Appeals Court Judge Jefferson Griffin (R) is running for the seat.

Pennsylvania:  The primary election for Pennsylvania Supreme Court was held on May 16.   Pennsylvania Superior Court judge Daniel McCaffery (D) of Philadelphia defeated Deborah Kunselman 60-40.  Carolyn Carluccio (R), the president judge of Montgomery County Court, defeated Patricia McCullough 54-46.  The general election is on November 8, 2023.

Resources:
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Sunday, April 30, 2023

May 2023 Judiciary News

Nominations, Hearings, Confirmations:

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.

5th Circuit:  Judge Kyle Duncan of the 5th Circuit was shouted down by protesters at Stanford University and condemned in a speech by the DEI dean.  The college later apologized and released a letter.  The DEI dean was put on leave, and sniped back.  No punishment will be imposed on the students.

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.

Resources:
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Friday, April 07, 2023

The Downtown Arena Returns

The proposal to build an arena/convention center in downtown Kalamazoo has returned after a decade of dormancy.

Plans revealed for new arena in downtown Kalamazoo
Residents excited, concerned over $300M event center planned for Kalamazoo
10 things to know about the new $300M arena planned for downtown Kalamazoo
‘A dream that hasn’t come true’: Why prior plans to build a downtown Kalamazoo arena flopped
County finalizes land sale for $300M arena in downtown Kalamazoo

The idea originated decades ago as one of a series of plans to revitalize downtown Kalamazoo.  In the 1990s, downtown was legitimately struggling, with several major retailers and employers leaving the area.  Converting the Kalamazoo Mall to a one-way street and uncovering Arcadia Creek were implemented to mixed results.  The revitalization of downtown wasn't due to these government projects, however, but to conversion of old buildings to apartments, allowing more people to live downtown.

The good news is that this proposal will not be funded by tax dollars.  Previous versions of the proposal would have imposed a tax on local hotels.  This was never implemented due to bipartisan opposition to corporate welfare.

Questions remain about some aspects of the proposal.  WMU's hockey and basketball games and Kalamazoo Wings hockey would move to the arena, despite attendance figures that don't require a larger venue.  WMU will likely need buses to bus students to the arena to avoid dropoff in student attendance for their games.

Another question is whether there is sufficient parking for events that actually do fill the arena to capacity.  (The proposal does include a parking ramp.)

The most notable aspect of the new proposal is that it includes giveaways to minority activists.  It gives $6 million to the Northside Association, and includes set-asides for minority businesses.  The proposal originally referenced BIPOC (Black, Indigenous and Persons of Color), but this was replaced with "underserved and historically underrepresented" people.  With the Supreme Court likely to strike down affirmative action soon, racial giveaways could cause problems for this proposal.

This blog has plenty of coverage of previous versions of this proposal.
Forum of Discontent
Arena of Conflict
Dome of Deceit
Mackinac Center on the Arena
Kitchens' Tossed Salad
Who Supports the Arena?
Gazette Supports the Arena
No Arena, for Now
Rejecting the Arena
Bad Ideas Never Go Away

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Thursday, March 02, 2023

March 2023 Judiciary News

Nominations, Hearings, Confirmations:

1st Circuit:  Michael Delaney, the nominee for the NH seat on the 1st Circuit, was grilled by R senators due to his advocacy as an attorney for publically disclosing the identity of a minor victim of sexual assault.

D-KS:  President Biden nominated Jabari Wamble to D-KS.  He was previously nominated to the 10th Circuit in August 2022, but never received an ABA rating, and the nomination expired in January.  No explanation has been given for the downgrade.

Nominations:
TBA

The Federal Judiciary:

Ethics:  Various leftist groups are attacking the Supreme Court for not having a code of ethics.  Ed Whelan explains the problems with this idea.

Biden judges:  Carrie Severino argues that Trump's judicial appointees are better qualified that Biden's based on their clerkships and law school honors.

ND-TX:  Senator Ron Wyden (D-OR) attacked judge Matthew Kacsmaryk (ND-TX) along with the Fifth Circuit, and the Supreme Court due to the possibility that Kacsmaryk might issue an injunction against FDA approval of the abortion drug mifepristone.

Vacancy Declarations:  There are now 110 current and future judicial vacancies.  New vacancies over the past month are listed below.
D-MN: John Tunheim (Clinton) TBD (senior)
D-HI: Michael Seabright (W) 1/30/24 (senior)
3rd Circuit: Joseph Greenaway (Obama) 6/15/23 (retired)

State Supreme Courts:

Hawaii:  Justices Michael Wilson and Paula Nakayama will leave the court soon, as they are age-limited in April and October, respectively.  Wilson was appointed by Neil Abercrombie in 2014, and Nakayama was appointed by John D. Waiheʻe III in 1993.  There are 13 applicants for the two positions.

Maine:  Maine Supreme Court Justice Thomas Humphrey retired last year.  Governor Janet Mills appointed York County judge Wayne Douglas to the court.  He is 71, and was appointed to the district court in 2002 by Angus King.

New York:  Governor Kathy Hochul's nomination of Hector LaSalle to be Chief Judge on the New York Court of Appeals was rejected by the New York State Senate by a 39-20 vote.  Hochul will make a new nomination.

Oregon:  The US Senate confirmed Oregon Supreme Court Justice Adrienne Nelson to D-OR by a 52-46 vote.  Governor Tina Kotek will appoint her replacement.

South Carolina:  The South Carolina legislature elected Judge Gary Hill to the South Carolina Supreme Court.  Hill clerked for Billy Wilkins, a Reagan appointee to the 4th Circuit, and has been a judge since 2000.  He replaces Justice Kaye Gorenflo Hearn, author of a controversial 3-2 decision protecting abortion.  His election spurred some criticism that the court would be the only state supreme court without a woman.  The other two (female) nominees dropped out of contention, seemingly due to a lack of support in the legislature.

Tennessee:  Governor Bill Lee (R) appointed Dwight Tarwater to the Tennessee Supreme Court.  Tarwater was general counsel to then Governor Bill Haslem (R).  He will replace Justice Sharon Lee (D), who retires in August 2023.  The position had to go to a resident of East Tennessee.

Wisconsin:  On February 21, Leftist Milwaukee County Circuit Court Judge Janet Protasiewicz won 46% to 24% for conservative former justice Dan Kelly.  Conservative judge Jennifer Dorow trailed with 22%, and liberal judge Everett Mitchell was last with 8%.  Protasiewicz and Kelly advance to the general election on April 4.

Resources:
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Wednesday, February 01, 2023

February 2023 Judiciary News

Nominations, Hearings, Confirmations:

Biden judges:  Carrie Severino surveys the impact of President Biden's appointees on the federal judiciary.

Nominations:  In this article lamenting that southern R senators aren't giving President Biden judges in their states, it is mentioned that Biden and Senator Ben Cardin (D-Maryland) are at odds over a successor to retired Judge Diana Motz of the 4th Circuit.

ED-WA:  Nominee Charnelle Bjelkengren was unable to identify article II and V of the US Constitution under questioning by Senator John Kennedy (R-LA).

Senate Judiciary Committee:  All returning senators kept their seats on the committee.  Rs lost one seat, that of Ben Sasse, while Ds replaced retired senator Pat Leahy with Peter Welch.

Nominations:
TBA

The Federal Judiciary:

Supreme Court:  The investigation into the leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization concluded without identifying the leaker.

Thomas:  Mark Paoletta debunks another smear of Justice Thomas by Mark Joseph Stern.

Vacancy Declarations:  There are now 115 current and future judicial vacancies.  New vacancies over the past month are listed below.
D-DE: Richard G. Andrews (Obama) 12/1/23 (senior)
9th Circuit: Paul Watford (Obama) 5/31/23 (resigned)
D-SD: Karen Schreier (Clinton) TBD (senior)
ND-CA: William Orrick (Obama) 5/17/23 (senior)

State Supreme Courts:

Abortion:  The battle over abortion continues in state courts.  The South Carolina Supreme Court issued a 3-2 ruling declaring a right to abortion, while the Idaho Supreme Court ruled 3-2 against such a right.  All the judges on both courts were appointed by Republicans.

Alaska:  Governor Mike Dunleavy appointed Sitka Superior Court Judge Jude Pate to the Alaska Supreme Court.  He replaces Chief Justice Daniel Winfree, who is age-limited in February.

Michigan:  Newly appointed justice Kyra Harris Bolden (D) hired a clerk who served 14 years in prison for robbing a convenience store and shooting at police officers.  Fellow justice Richard Bernstein (D) blasted the hire, while former Chief Justice Bridget McCormack (D), who Bolden replaced, defended the hire.  The clerk resigned shortly thereafter, and Bernstein later apologized.

New York:  Governor Kathy Hochul's nomination of Hector LaSalle to be Chief Judge on the New York Court of Appeals was rejected by the New York State Senate Judiciary Committee.  Hochul is still supporting the nomination, and has threatened legal action if the full senate does not vote on it.  Progressives senators view LaSalle as insufficiently progressive.

North Dakota:  Justice Gerald VandeWalle retired on January 31 at age 89.  He was appointed in 1978 by Governor Arthur Link (D) and served 44 years on the court.  Governor Doug Burgum appointed Douglas Bahr to fill the vacancy.  He was an assistant attorney general (1991-2001), North Dakota Solicitor General (2000-2016), and has been a district judge since 2018.

South Carolina:  The choice to replace age-limited Justice Kaye Gorenflo Hearn has become contentious due to Hearn's authorship of a 3-2 protecting abortion in South Carolina.  Some legislators questioned whether the three nominees were sufficiently conservative, while others advocated appointing one of them since Hearn will remain until another justice is selected.  Then two of the three nominees dropped out of contention, leaving only Judge Gary Hill remaining.  Hill clerked for Billy Wilkins, a Reagan appointee to the 4th Circuit, and has been a judge since 2000.

Tennessee:  The Governor’s Council for Judicial Appointments narrowed the list of choices for Tennessee Supreme Court to Kristi M. Davis, Tom Greenholtz and Dwight Tarwater.  Davis and Greenholtz are both appeals court judges, while Tarwater was general counsel to then Governor Bill Haslem (R).  Governor Bill Lee (R) will choose a replacement for Justice Sharon Lee (D), who retires in August 2023.  The position must go to a resident of East Tennessee.

Wisconsin:  The election for Wisconsin Supreme Court is getting heated amongst conservatives.  Former justice Dan Kelly and Waukesha County Circuit Court judge Jennifer Dorow are competing for the votes of conservatives, and they and their supporters are trading attacks on ideology and electability.  The nonpartisan primary is on February 21, and the top two candidates advance to the general election on May 4.  Dane County Circuit Court Judge Everett Mitchell and Milwaukee County Circuit Court Judge Janet Protasiewicz are competing for the support of liberals.

History:

Posner:  Corbin Barthold surveys the career of former 7th Circuit judge Richard Posner, including his "pragmatist" philosophy.

Resources:
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Monday, January 02, 2023

January 2023 Judiciary News

2022 in Review: 

Breyer retired, and was replaced by Ketanji Brown Jackson. 

Circuit judges:  Biden has filled 17 circuit court seats in 2022, for a total of 28 overall.  Only 4 of the 28 replaced R appointees (all moderate to liberal).  There are 9 more nominees who were not confirmed and will presumably be renominated this year.  There are 5 more vacancies without nominees.  There are 15 more D-appointed circuit court judges who are eligible for senior status but have not yet taken it.  

Three nominees are in red states (TN, IN, LA) and one in a purple state (PA).  Two (IN, LA) had support from home state R senators, and two (TN, PA) did not.  Only 2 of 28 circuit appointees is a white male.  This compares to President Trump’s appointment of 30 Circuit judges in his first two years. 

The most votes for a circuit judge was 67 for Roopali Desai (one of the more radical nominees), and the smallest margin was 1 for Andre Mathis, along with Jennifer Sung in 2021.  Biden’s biggest impact is on the 9th Circuit, where he has appointed six judges. 

District Judges:  Biden appointed 39 district judges, for a total of 68 overall.  This compares to President Trump’s appointment of 53 District judges in his first two years.  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.   

Two district judges were confirmed by voice vote, Stephen Locher (SD-IA) and Jennifer Rearden (SD-NY).  Aside from them, the most votes was 64 for Jeffery P. Hopkins (SD-OH).  Four judges were confirmed by 2-vote margins (John Chun, Anne Traum, Charlotte Sweeney, Kay Behm).  One (IA) appointee is in a red state, and 8 (4 OH, 4 PA) are in purple states. 

Review:  Harsh Voruganti of the Vetting Room gives his year in review. 

Nominations, Hearings, Confirmations: 

Nominations:  Brookings looks at how Biden's appointments so far compare to those of previous presidents, and the prospects of future appointments over the next two years. 

Nominations:  President Biden has continued to fill vacancies, though Republican opposition to his nominees has increased. 

Vacancies:  Harsh Voruganti of the Vetting Room surveys the existing judicial vacancies and prospects to fill them, now that Ds have held the Senate. 

Nominees:  Several Biden nominees, including Nancy Abudu and Dale Ho, remain in limbo. 

Schumer:  Senator Chuck Schumer hopes to ‘achieve balance’ on every appeals court.  It isn't clear how he plains to do that on the 8th Circuit, which has 10 R-appointed judges, one D-appointed judge, and no vacancies. 

Nominations: 
D-NJ: Michael E. Farbiarz--clerk for José Cabranes (2nd Circuit), Michael Mukasey (SD-NY), Port Authority of NY/NJ, AUSA (SD-NY) 
D-NJ: Robert Kirsch--clerk for William Zloch (SD-FL), judge, New Jersey Superior Court, AUSA (D-NJ) 
SD-IN: Matthew P. Brookman--Magistrate Judge (SD-IN), AUSA (SD-IN) 
SD-CA: Marian Gaston--judge, Superior Court of California 
CD-CA: Wesley Hsu--clerk for Mariana Pfaelzer (CD-CA), judge, Los Angeles County Superior Court, AUSA (CD-CA) 
CD-CA: Mónica Ramírez Almadani--clerk for Warren J. Ferguson (9th Circuit), AUSA (CD-CA) 

The Federal Judiciary: 

Alito:  Rep. Jim Jordan (R-OH) destroyed the credibility of Reverend Robert Schenck, who claimed that Justice Alito leaked the result of a Supreme Court decision in 2014. 

Originalism:  Ed Whelan debunks Ruth Marcus’s attack on originalism. 

11th Circuit:  Chief Judge William Pryor granted an interview to progressive legal writer Mark Joseph Stern.  Pryor had joked about Stern after Stern's hyperbolic attacks on conservatives.  Pryor defends the role of the Federalist Society within the legal community in a very civil interview. 

Vacancy Declarations:  There are now 113 current and future judicial vacancies.  New vacancies over the past month are listed below. 
ND-IL: Gary Feinerman (Obama) 12/31/22 (resigned) 
ED-LA: Carl Barbier (Clinton) 1/1/23 (senior) 
MD-FL: Charlene Edwards-Honeywell (Obama) 12/4/23 (senior) 
D-MD: George Hazel (Obama) 2/24/23 (senior) 
D-MT: Dana Christensen (Obama) TBD (senior) 
D-DC: Amy Berman Jackson (Obama) 5/1/23 (senior) 

State Supreme Courts: 

Elections:  Carrie Severino highlights the significance of Republican victories in judicial elections in North Carolina and Ohio. 

Alaska:  The Alaska Judicial Council advanced four nominees for the seat to be vacated by Chief Justice Daniel Winfree in February 2023.  The council once again rejected Judge Paul Roetman, a conservative judge who is highly respected.  The appointment will be made by governor Mike Dunleavy. 

Florida:  Governor Ron DeSantis appointed three new judges to the 6th District Court of Appeal and four new judges to the 5th District Court of Appeal.  The 6th District Court of Appeal was created by a new bill to cover the Tampa Bay area.  The appointments were delayed by a lawsuit challenging the eligibility of some of the nominees due to their living outside the districts.  The Florida Supreme Court ruled they were eligible if they lived in the districts at the time of appointment. 

New York:  Governor Kathy Hochul nominated Hector LaSalle to be Chief Judge on the New York Court of Appeals.  He is the presiding judge in the state Supreme Court’s Second Department in Brooklyn, and a former prosecutor.  The position was vacated by Janet DiFiore, one of a group of four 'conservative' (non-leftist) judges (along with Cannatarro, Garcia, and Singas) on the court.  Progressives are mad about the nomination, so LaSalle may join that group.  The nomination must still be approved by the New York state senate, where some progressive senators have vowed to oppose it. 

Ohio:  Governor Mike DeWine appointed Hamilton County Prosecutor Joe Deters (R) to the Ohio Supreme Court.  He was elected in 2004 after being Ohio Treasurer 1998-2004.  He is 65.  The seat is open after Justice Sharon Kennedy was elected chief justice, replacing Maureen O’Connor. 

Oregon:  Governor Kate Brown appointed Multnomah County Circuit Judge Stephen Bushong and Oregon Court of Appeals Judge Bronson James to the Oregon Supreme Court.  They replace Chief Justice Martha Walters and Justice Thomas Balmer, who both retired on December 31.  The retirements seemed to be timed to occur before the election. 

Pennsylvania:  The race to fill the seat of the late Justice Max Baer (D) is well underway. Pennsylvania Superior Court judges Deborah Kunselman of Beaver County and Daniel McCaffery of Philadelphia are seeking the D nomination.  Carolyn Carluccio, the president judge of Montgomery County Court, is seeking the R nomination.  The general election is on November 8, 2023.  Outgoing Governor Tom Wolf has not made a nomination to fill the seat. 

South Carolina:  Justice Kaye Gorenflo Hearn was age-limited at the end of 2022.  She was appointed to the court in 2010.  Three judges have applied for the seat.  Her replacement will be appointed by the South Carolina legislature.  South Carolina and Virginia are the only two states where the legislature appoints supreme court justices. 

Tennessee:  Five lawyers from East Tennessee have applied for a vacancy on the Tennessee Supreme Court due to the retirement of Justice Sharon Lee (D) in August 2023.  They will be interviewed on January 4.  Governor Bill Lee (R) will get his second appointment to the court. 

Wisconsin:  There will be an election for the Wisconsin Supreme Court seat held by Justice Patience Roggensack (R), who is retiring at age 82.  The nonpartisan primary is on February 21, and the top two candidates advance to the general election on May 4.  Former justice Dan Kelly and Waukesha County Circuit Court judge Jennifer Dorow are competing for the votes of conservatives.  Kelly was appointed to the court in 2016, but lost election 45-55 in 2020.  Dorow presided over the high-profile trial of Darrell Brooks, who murdered six people with a car.  Dane County Circuit Court Judge Everett Mitchell and Milwaukee County Circuit Court Judge Janet Protasiewicz are competing for the support of liberals. 

Numbers and Trivia: 

Chief Judges: The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4), W (2, 3, 5, 6, 7, 8, 10, 11, Fed), and Obama (1, 9, DC). There is one chief judge that will change in 2023. This is expected to be 4th Circuit (July 8) Roger Gregory (Clinton) -> Albert Diaz (Obama) 

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past year. 
13 (4) January 2022 
4 (0) February 
3 (2) March 
6 (0) April 
5 (0) May 
5 (2) June 
3 (0) July 
5 (0) August 
3 (0) September 
6 (0) October/November 
6 (0) December 2022 

59 (8) Total (2022) 
99 (30) Total (2021) 

Resources: 
BostonPatriot diaries: History Trump DC-5 6-11 9th 
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Thursday, December 01, 2022

December 2022 Judiciary News

November is over.

Nominations, Hearings, Confirmations:

Vacancies:  Harsh Voruganti of the Vetting Room surveys the existing judicial vacancies and prospects to fill them, now that Ds have held the Senate.

Circuit courts:  President Biden has appointed 25 Biden nominees to circuit courts so far.  However, most replace previous D appointees, with only four replacing R appointees.  Those four were all moderate to liberal.

1st Circuit:  Carrie Severino exposes the radical views of pro-abortion activist Julie Rikelman, nominated to the 1st Circuit.

Nominations:
TBA

The Federal Judiciary:

Affirmative action:  The cases challenging affirmative action policies at University of North Carolina and Harvard were argued on October 31.  Justice Jackson and Justice Sotomayor made poor arguments and asked foolish questions.  Harvard's arguments were unpersuasive.

Supreme Court:  The Hill asks who is the leader of the conservatives on the Supreme Court, but doesn't explain why they would need a leader.

Disclosure:  Carrie Severino exposes the bias in a report from Fix the Court that implies that conservative justices are inappropriately influenced by their spouses' work.

Yale:  Last month, 5th Circuit judge James Ho announced that he will no longer hire clerks from Yale due to harassment of conservative speakers and students.  An additional 12 judges have anonymously joined the boycott, along with Judge Elizabeth Branch (11th Circuit).  However, Judge Jerry Smith (5th Circuit) opposes the boycott.

DC Circuit:  Judge Laurence Silberman died on October 2 at age 86.  He served in the Nixon/Ford administration, and was appointed to the court by Reagan in 1985.  He went senior in 2000, and served in that capacity until his death.  Justice Amy Coney Barrett was one of his many clerks who later became judges.

ND-IL:  Judge Robert Dow has been appointed "Counselor to the Chief Justice" John Roberts, and will serve as his chief of staff.  Dow was appointed by W in 2007.  This creates an open seat on ND-IL, though Dow can return to the bench later.

Law professors:  Mark Joseph Stern claims that liberal law professors are having a hard time adapting “intellectually, pedagogically, and emotionally” to a constitutionalist Supreme Court.  Ed Whelan shows the absurdity of this, as leftist law professors were eager to overturn precedents when they thought the left would control the court.

Vacancy Declarations:  There are now 119 current and future judicial vacancies.  New vacancies over the past month are listed below.
ND-IL: Robert Dow (W) 12/5 (counselor to John Roberts)
ND-IL: Charles Norgle (Reagan) 10/4 (senior)
WD-TX: Frank Montalvo (W) 12/1 (senior)
MD-FL: Brian Davis (Obama) 12/30/23 (senior)
D-NJ: Kevin McNulty (Obama) 10/31/23 (senior)
ED-MO: John Andrew Ross (Obama) 6/9/23 (senior)

State Supreme Courts:

Florida:  Governor Ron DeSantis signed a bill to create a 6th District Court of Appeal in Florida, covering the Tampa Bay area.  The boundaries of the 1st, 2nd, and 5th districts are modified to accommodate this, and some judges have been reassigned to new circuits.  The bill creates three new judgeships in the 6th district and four new judgeships in the 5th district for DeSantis to fill.

Michigan:  Governor Whitmer appointed state rep (18-22) Kyra Harris Bolden (D) to the Michigan Supreme Court.  Bolden is a black woman who is only 34 and has little to distinguish her career.  She succeeds Chief Justice Bridget McCormack (D), who retired on November 22.  Bolden will face a special election in 2024.  The court currently has 4 D and 3 R nominees.

Nevada:  Governor Steve Sisolak appointed attorney Patricia Lee to the Nevada Supreme Court.  She is part black and part Asian.  She replaces Justice Abbi Silver, who retired.

New York:  Seven candidates to fill the position of Chief Judge on the New York Court of Appeals have been announced.  The position was vacated by Janet DiFiore, one of a group of four 'conservative' (non-leftist) judges (along with Cannatarro, Garcia, and Singas) on the court.  Judge Anthony Cannataro, currently the acting chief judge, is one of the candidates.  If he is selected by Governor Kathy Hochul, she will have to make another appointment to fill his seat.

Oregon:  Chief Justice Martha Walters and Justice Thomas Balmer will both retire on December 31.  Walters was appointed in 2006 by Ted Kulongoski, and Balmer was appointed in 2001 by John Kitzhaber.  Governor Kate Brown will appoint both replacements before she leaves office in January.  The retirements seemed to be timed to avoid the possibility that they could be replaced by a Republican (the election was won by another D).

Tennessee:  Justice Sharon Lee is retiring from Tennessee Supreme court in August 2023. She is the last D on the court, and was appointed in 2009 by Phil Bredesen.  Governor Bill Lee (R) will get his second appointment to the court.  The replacement must be from East Tennessee.

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