Thursday, September 30, 2021

October 2021 Judiciary News

Judicial activism is spooky.

Nominations, Hearings, Confirmations:

Harsh Voruganti of the Vetting Room assesses judicial vacancies and nominations in the NortheastAtlantic CoastMidwestSouth, and West.

Breyer:  Justice Breyer cautioned against remaking the court, warning "What goes around comes around."

Nominations:  On September 30, President Biden submitted his first judicial nominations in a state (Ohio) with an R senator.  Biden reportedly hasn't reached out to R senators in LA, FL, IN.  However, senators in WI, PA, OK, ID have had talks with the White House.

Judiciary Committee:  R senators on the Judiciary Committee grilled nominees Jennifer Sung (9th Circuit) and Beth Robinson (2nd Circuit) on their extreme views and questionable temperament.

DC Circuit:  Why hasn't there been a nomination for the pending vacancy on the DC Circuit?  The article has plenty of speculation, but few certain facts.

SD-CA:  This district is suffering from a shortage of judges, with 7 of 13 seats vacant. President Biden has not made any nominations yet, but US Magistrate Judge Linda Lopez and San Diego Superior Court Judge Jinsook Ohta are reportedly being considered.

ND-OH:  Bridget Brennan-acting U.S. Attorney, ND-OH
ND-OH:  Charles Fleming-public defender
ND-OH:  David Augustin Ruiz-Magistrate Judge
ND-GA:  Victoria Marie Calvert-public defender
ND-GA:  Sarah Elisabeth Geraghty-clerk for James Zagel (ND-IL), activist lawyer
D-NH:  Samantha Elliott-private practice
SD-NY:  Dale Ho-clerk for Barbara Jones (SD-NY), ACLU lawyer
SD-CA:  Linda Lopez-Magistrate Judge
SD-CA: Jinsook Ohta-clerk for Barry Moskowitz (SD-CA), Superior Court Judge, San Diego County
WD-WA:  John Chun-clerk for Eugene Wright (9th Circuit), Washington Court of Appeals judge

The Federal Judiciary:

Supreme Court:  By a 5-4 vote, the court declined to issue an injunction against a Texas law banning abortion after six weeks, but only allowing private parties to sue to enforce it.  Progressives threw a fit and declared it the end of Roe v. Wade.  The ruling also spurred condemnation of the "shadow docket", despite the fact that the abortionists were the ones asking for an emergency ruling.

Abortion:  Many Trump-appointed judges have made rulings hostile to abortion, and several, including Amul Thapar (6th Circuit), have called Roe v. Wade wrongly decided.

Conflicts:  A Wall Street Journal investigation found 131 judges who had ruled in cases when they had a financial interest.  The conflicts generally seem to be unintentional, as many judges did not realize what stocks were in their portfolios.

4th Circuit:  A job ad posted by the 4th Circuit says it "prides itself on being a collegial, collaborative, and progressive organization".

Oklahoma:  The US Judicial Conference is recommending that 3 judgeships be added to ED-OK, and 2 to ND-OK.  The districts currently have a total of 5 judgeships.  This is due to a surge of cases following the Supreme Court ruling in McGirt v. Oklahoma that many crimes in Oklahoma's Indian reservations need to be tried in federal court rather than state court.

ND-OH:  Over the years, Judge John R. Adams has been accused of several incidents of anti-social conduct, including "blocking in the car of an intern who accidentally parked in his space".  In 2016, the Judicial Council of the Sixth Circuit eventually ordered him to undergo a psychiatric evaluation.  The evaluation found no mental illness, and the complaint was dismissed.  Adams sued, but the suit was dismissed due to lack of harm to him.  He is appealing.

Vacancy Declarations:  There are now 116 current and future judicial vacancies.  New vacancies over the past month are listed below.
D-MN: Susan Nelson (Obama) 12/31/21 (senior)
ND-CA: Lucy Koh (Obama) TBD (elevation)

State Supreme Courts:

California:  California Supreme Court Justice Mariano-Florentino Cuéllar will resign on October 31 to become the new president of the Carnegie Endowment for International Peace.  He is 49 and was appointed by Jerry Brown in 2015.  Governor Gavin Newsom will get his second appointment to the court.

Maryland:  Governor Larry Hogan appointed Judge Joseph Getty as Chief Judge and Judge Steven B. Gould to represent Montgomery County on the Maryland Court of Appeals on September 2.  Chief Judge Mary Ellen Barbera was age-limited on September 10.  Governor Hogan has appointed five of seven judges on the court.

North Carolina:  Ballot initiatives on voter ID and tax limitation were passed by the legislature and the voters in 2018.  The NAACP is challenging them in the courts, arguing that the legislature could not legitimately pass them since they were elected from supposedly gerrymandered districts.  With the case being appeals to the NC Supreme Court, the NAACP is demanding that two R justices recuse themselves, and the 4 D justices on the court may force them to do so.  This could allow D justice Sam Ervin IV, who is up for reelection in 2022, to vote to uphold the laws while the other three strike them down.

Tennessee:  Tennessee Supreme Court Justice Cornelia Clark died of cancer at age 71.  She was appointed by Phil Bredesen (D).  Governor Bill Lee will get his first appointment to the court, which now has 3 R and 1 D appointees.  Tennessee's constitution requires that no more than two justices come any of the three Grand Divisions, so the new justice will come from the Middle or East of the state.

Numbers and Trivia:

Retirements (Clinton):  When did appeals court judges appointed by Bill Clinton retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  Clinton appointed 66 appeals court judges.  All his appointees have been eligible for retirement for at least one year.  Judges who announced future retirement are counted as retired.  Here are the numbers.

2 (3%) resigned early (Henry, Sotomayor)
12 (18%) retired when eligible (within 1st year)
30 (45%) retired later
(5%) died in office (Michael, Parker, Kelly)
19 (29%) still active

11 (17%) retired under R president
36 (55%) retired under D president
19 (29%) still active
17 (26%) retired in first year of D president

Here are the summary statistics for Carter, Reagan, HW Bush, and Clinton.

07% 05% 12% 03% resigned early
29% 53% 50% 18% retired when eligible (within 1st year)
55% 28% 24% 45% retired later
09% 07% 02% 05% died in office
00% 07% 12% 29% still active

43% 46% 50% 17% retired under R president
57% 47% 38% 55% retired under D president
00% 07% 12% 29% still active
09% 14% 12% 26% retired in first year of same party president

Appointees of Reagan and HW were far more likely to retire when eligible.  Appointees of Carter and particularly Clinton have been far more partisan in the timing of their retirements.


Tuesday, August 31, 2021

September 2021 Judiciary News

Remember 9/11.

Nominations, Hearings, Confirmations:

Harsh Voruganti of the Vetting Room assesses judicial vacancies and nominations in the Northeast, Atlantic Coast, Midwest, and South.

Breyer:  President Biden is resisting pressuring Justice Breyer to retire, to the consternation of progressive activists.

Breyer:  In a recent interview, Breyer said "I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years," quoting Antonin Scalia. 

Graham:  Tucker Carlson slammed Lindsay Graham for failing to vote against a single Biden judicial nominee so far.

2nd Circuit:  Myrna Pérez of the leftist Brennan Center for Justice has been nominated to the 2nd Circuit.  Carrie Severino documents her radical positions, and shows that liberal senators critical of dark money are ignoring her dark money support.

D-ID:  There has been no nomination for the vacancy in the seat of Judge B. Lynn Winmill announced in January.  Senator Crapo has had conversations with the White House.  The article doesn't seem to realize that the blue slip is still in effect for district judges.

WD-VA:  Senators Kaine and Warner have recommended two candidates for a federal judgeship in WD-VA vacated by James Parker Jones on August 30.  They are Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott.


The Federal Judiciary:

Supreme Court:  The Supreme Court ended the CDC eviction moratorium by a 6-3 vote.  Justice Kavanaugh had previously written that it should expire without declaring it illegal, and the Biden administration responded by extending it.

District judges:  Senator Todd Young is sponsoring a bill to add 77 district judges, consistent with the report of the US Judicial Conference.  It would add 39 new seats in 2025 and 38 new seats in 2029.  Meanwhile, Rep. Hank Johnson is sponsoring a bill to add 203 judges immediately.

Redistricting:  Ds are worried that courts won't protect them from unfavorable redistricting maps due to a Supreme Court ruling that political gerrymandering is not illegal.  Another issue is the limited time between map-drawing and filing deadlines due to the delayed census data.

4th Circuit:  Leftist judge James Wynn is upset about conservative judges issuing dissenting opinions from denial of en banc.  These dissents often signal cases the Supreme Court should overturn.

ED-MI:  Seven pro-Trump attorneys, including Sidney Powell and Lin Wood, face sanctions for promoting false claims of election fraud in their legal filings.  The judge imposing sanctions is Linda Parker, an Obama appointee.

Vacancy Declarations:  There are now 115 current and future judicial vacancies.  New vacancies over the past month are listed below.
3rd Circuit: Theodore McKee (Clinton) TBD (senior)
SD-IN: Richard Young (Clinton) TBD (senior)
D-NM: Martha Vázquez (Clinton) XX/22 (senior)
4th Circuit: Robert King (Clinton) TBD (senior)

State Supreme Courts:

Maryland:  Chief Judge Mary Ellen Barbera will be forced to retire on September 10.  She was appointed by Martin O'Malley in 2013.  Governor Larry Hogan will get his fifth appointment to the court.  The Maryland Appellate Courts Judicial Nominating Commission nominated Court of Special Appeals Judges Steven Gould and Terrence Zic, Montgomery County Circuit Court Judge Sharon Burrell, and attorney J. Bradford McCullough.

Ohio:  Ohio Supreme Court Justice Pat DeWine (R) will run for reelection, not for Chief Justice.  Justices Sharon Kennedy (R) and Jennifer Brunner (D) are running to replace Chief Justice Maureen O'Connor (R) who is age-limited.

Oregon:  Justice Lynn Nakamoto is retiring from the Oregon Supreme Court.  She was appointed to the court by Governor Kate Brown in 2016.  Brown will appoint her replacement.

Numbers and Trivia:

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past few months.
1 (0) December 2020
20 (3) January 2021
19 (3) February
8 (3) March
7 (1) April
8 (5) May
4 (0) June
5 (2) July
4 (2) August

Clerks:  David Lat has an analysis of Supreme Court clerk hiring for 2017-2021.  Yale Law School and the DC Circuit produce the most Supreme Court clerks.  Top R feeder judges were Sutton, Pryor, and Kavanaugh.  Top D feeder judges were Katzmann, Srinivasan, and Garland, so Sri looks to be the premiere D feeder going forward.  In October Term 2021, only one D appointed judge had more than one clerk hired for this term.

Retirements (George HW Bush):  When did appeals court judges appointed by George HW Bush retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  Bush appointed 42 appeals court judges.  Here are the numbers.

5 (12%) resigned early (Thomas, Souter, Alito, Luttig, Lewis)
21 (50%) retired when eligible (within 1st year)
10 (24%) retired later
(2%) died in office
5 (12%) still active (Lourie, Henderson, Niemeyer, Loken, Rovner)

21 (50%) retired under R president
16 (38%) retired under D president
5 (12%) still active
5 (12%) retired in first year of R president

The percentage who retired when eligible is similar to that under Reagan (53%) but much higher than that under Carter (29%).  Too many HW appointees gave their seats to Obama appointees.


Wednesday, August 18, 2021

Is a Part-time Legislature a Good Idea?

One common goal of conservative activists in Michigan is a part-time legislature.  This dates back to before the Tea Party era, and it reappears periodically, as in Brian Calley's ill-fated ballot proposal in 2017.  But is this really something that conservatives should want?

To be sure, a part-time legislature is not some pipe dream.  Forty states have some form of a part-time legislature, though how part-time they are varies from state to state.  For example, in Minnesota the part-time legislators are paid $46500, which is a decent salary for a full-time job.

There are a couple commonly cited benefits to a part-time legislature.  One is saving money on legislators' salaries.  This is a small proportion of a state budget.  In Michigan, the state budget is 61.6 billion, and the entire budget for the state legislature is 175 million, or 0.3%.  The base salary for legislators is about $72000, so the total salary for legislators is about 10.6 million.  Even if we assume a total cost of $100000 per legislator including fringe benefits, the total cost is still only about 15 million, or 0.02% of the state budget.  Clearly the savings from cutting legislators' salaries are minimal.

Another benefit cited is to limit the time the legislature is in session, and hence to limit the number of bills passed.  There is some evidence on behalf of this belief.

There are also some downsides to a part-time legislature.

One problem is that a part-time legislature limits who can be a legislator.  When legislator salaries are low, most people who need to support a family will find it impractical to run for office.  Those who can run for office will be mainly wealthy people, retirees, and young activists.

Some professions would be much more convenient for potential candidates.  Anyone with a fixed schedule (office workers, factory workers, teachers, etc.) could not hold theri job while being a legislator.  However, people more flexible employment (salesmen, real estate agents, farmers, many business owners, political activists) could.  Is this fair?  Does it lead to better political outcomes for the public?

Another problem is the potential for conflict of interest.  Legislators who are financially dependent on a particular business would be very likely to vote for its interests.  (While legislators might be required to abstain on a bill that directly involved their own employer, this would not extend to an entire industry.  Farmers are not expected to recuse themselves on all bills involving agriculture.)

It is all too likely that legislators who are employed by someone else will face some pressure to vote the way the employer would prefer.  It wouldn't have to be anything as direct as actually ordering an employee to vote a certain way.  An employer could drop a few hints, and the legislator would know that the wrong vote might risk his job.

Case in point, an Alabama state representative was fired from his job as a sheriff's deputy after sponsoring a constitutional carry bill.

The sheriff in Mobile County, Alabama has fired a captain in the Sheriff’s Department over his support for Constitutional Carry. Capt. Shane Stringer is also a state representative, and was the primary sponsor of the permitless carry bill introduced in the legislature earlier this year. That apparently angered Sheriff Sam Cochran enough that he terminated Stringer over the legislation.

Cochran notified Stringer on Wednesday that he was being fired as a captain within the department because he sponsored “constitutional carry” gun rights legislation as a member of the Alabama House of Representatives. Cochran also told a Washington County media outlet that the bill to allow Alabamians to carry their handguns concealed without paying an Alabama sheriff for a pistol permit for the privilege was the reason for the personnel decision.

How many times have state legislators changed their positions because they weren't brave enough to stand up to pressure?

Another issue is how the proposal would affect the legislature's ability to check the powers of the other branches.  After all, the governor and executive branch officials would still be full-time.  If the legislature has a problem with the governor's actions, how can it pass legislation, hold hearings, initiate impeachment, etc. if it is not in session?  A governor could wait to veto popular legislation until the legislature is out of session, and depending how the law is written, it might not be able to return to vote on an override.

In Michigan, executive branch appointments are automatically confirmed unless the legislature rejects them within 60 days.  Citizens' initiatives can be approved by the legislature (and bypass the governor) when it is in session.  Otherwise, they must go on the ballot in the next election.  A well-crafted plan for a part-time legislature might avoid some of these problems, but if the legislature is regularly called back to vote on veto overrides, appointments, initiatives, etc., is it really part-time?

Most politicians don't deserve what they are paid.  But paying politicians isn't about what they deserve, it is about ensuring their independence in a system of checks and balances designed to protect our rights.  A part-time legislature would weaken their role in that system.

Friday, August 06, 2021

Governor Whitmer's Crazy Fundraising Scheme

Governor Gretchen Whitmer is ignoring fundraising limits for her campaign for reelection.  Her most recent campaign finance report shows that she raised at least $250,000 from some donors, despite a law limiting gubernatorial candidates to $7150 per individual donor.

Whitmer's fundraising strategy an 'illegal scheme,' conservative group says

To justify this, Whitmer is using an opinion by former Secretary of State (1970-1994) Richard Austin, who claimed that an incumbent subject to a recall could raise unlimited funds to counter it.  But the law doesn't say this.

There are several groups promoting a recall of the Governor, but they have essentially no money or organization.  Most of their petitions haven't made it past the Board of Canvassers, and one that did has since expired.  Even if there were an active recall petition, it would be very difficult for organizers to collect the necessary signatures.  There will not be any recall election.  Nonetheless, Whitmer is claiming that she can raise unlimited money to fight a nonexistant recall and then transfer it all to her reelection campaign when no recall election occurs.

Austin's opinion is crazy.  If it were to hold, any incumbent could have a political ally file a recall petition against him, and benefit from unlimited fundraising against a recall that would never happen.

It might make sense to allow an incumbent subject to recall to raise money separately to fight the recall.  But if so, the same fundraising limits should still apply, and no money from a recall campaign fund should transfer to a reelection campaign fund.

This is just the latest abuse of power by Whitmer.  Most famously, she abused her emergency powers during the pandemic.  The Michigan Supreme Court ruled 4-3 that the 1945 emergency powers law was unconstitutional (it was intended to be used for short-term emergencies like riots).  It also ruled unanimously that her use of the 1976 emergency powers act was illegal.  (Orders using it must expire after a month, which Whitmer tried to evade by just reissuing the same order.)  She then implemented many of the same policies using the Michigan health department.  She also abused power in other ways, including attempting to unilaterally close Enbridge Line 5.

The legislature should immediately pass a law repudiating Austin's opinion and dare Whitmer to veto it.  Her actions should also be challenged in the courts.

Wednesday, August 04, 2021

August 2021 Primary Election Results

Detroit Mayor:  Duggan 73 Adams 10  They move on to a runoff that Duggan will win easily.
Detroit Clerk:  Winfrey 72 McCampbell 14  The incompetent Winfrey is likely to win another term.
Detroit Proposal P:  No 68  Deeply flawed charter revision rejected.

Dearborn Mayor:  Hammoud 42 Woronchak 18  State rep Hammoud is likely to win in November, leaving his seat open.

Taylor Mayor:  Garza 36 Woolley 22 Jones 22  Mayor Sollars, who is under indictment, lost a write-in campaign.  If state rep Garza wins, it will open his seat in November.

Pontiac Mayor:  Greimel 53  Former state rep Greimel represented Pontiac in the legislature, but only recently moved into the city.

Flint:  Pro-Trump councilman Maurice Davis lost his seat.

State senate:
8.  Wozniak 36 Hornberger 29 Mekoski 21
28.  Huizinga 33.8 Green 33.2 Brann 32.9
The winners are both establishment-friendly candidates.  They are both state reps who will leave their seats open when they win in November.  The election conspiracy candidates (Mekoski and Green) have a constituency, but don't represent a majority of the GOP.

Sunday, August 01, 2021

Political Rules Are Made to be Broken

In a recent article, Bill Ballenger excoriates Governor Gretchen Whitmer's record, but concludes that she will be reelected.

Whitmer may be Michigan’s worst governor ever, but she’s still likely to be re-elected

Aside from the question of whether Rs will field a quality candidate, Ballenger's argument rests on a historical pattern.

And no incumbent governor in Michigan history, of either major party, has EVER been defeated when seeking election to a second four-year term. Yes, after Sigler, Democrat John Swainson lost to Romney in 1962, but those were in the days of two-year terms. Yes, Democrat Jim Blanchard lost in 1990 to Engler, but Blanchard had already WON a second four-year term. A 1990 win would have given him a THIRD term. Bill Milliken and Engler won all three times they ran for four-year terms. In fact, their first re-elections were by bigger margins than their initial wins. Ditto Granholm. Snyder also won re-election in 2014, before he was term-limited.

This is one of those rules that holds until it doesn't.  Plenty of similar rules have failed in the past.  America never elected a black president until it did.  America never elected a president without previous government service until it did (Trump).

Incumbents certainly have an advantage seeking reelection.  They have already won a plurality of votes once.  They can spend their term fundraising and gaining publicity, while a challenger has much less time to do so.  But incumbents can lose, due to unpopular decisions or changes in the political landscape.  The fact that Jim Blanchard lost in 1990 proves it can happen.

In fact, there is another 'rule' that conflicts with the one Ballenger mentions.  Since 1975, Michigan has always elected a governor of the opposite party from the president, with the exception of the close election of 1990.  Thus since 1975, Michigan always elects a governor of the opposite party when there is an incumbent running for reelection the first time.  This 'rule' would predict that Whitmer will lose next year.

Of course, 'rules' don't decide elections, voters do.  Conservatives must work to defeat Whitmer next year.

Saturday, July 31, 2021

August 2021 Judiciary News

Congratulations to President Trump on his reinstatement as President sometime this month!

Nominations, Hearings, Confirmations:

Breyer:  Justice Breyer stated in an interview that he has not decided when to retire.

Breyer:  Schadenfreude alert!  Leftists are furious at Justice Breyer's refusal to retire.

Biden nominees:  Ian Millhiser provides a leftist perspective on how Biden has changed judicial nominations compared to Obama.

Judiciary Committee:  Shockingly, D senators who complained about how Rs were running the judicial confirmation process are now doing the same things they complained about.

California:  More than six months into Biden's presidency, there are still no nominees for the many vacancies on California's district courts.  Senators Dianne Feinstein and Alex Padilla have sent names to the White House, and it isn't clear what the hold up could be.

SD-FL:  The Rubio Judicial Nominating Commission recommended David Leibowitz and Detra Shaw-Wilder for district judge.  Shaw-Wilder was also recommended by the congressional (Wasserman-Schultz/Hastings) JNC. Leibovitz is close to Rubio and has a history of supporting D campaigns.

ED-WI:  A bipartisan commission has recommended four candidates for a federal judgeship in ED-WI.  The judge sits in Green Bay.  Three of the four candidates are from Green Bay.  The fourth, Milwaukee judge William Pocan, brother of far-left Rep. Mark Pocan, is a particularly bad choice.


The Federal Judiciary:

Supreme Court:  A 538 analysis shows the Supreme Court has moved right, and by some measures, Brett Kavanaugh is now the median justice.

Supreme Court:  The court accepted Dobbs v. Jackson Women’s Health Organization, a case challenging a Mississippi 15-week abortion ban.  Mississippi is asking for Roe v. Wade to be overturned.  Upholding the law should imply overturning Roe, but the court may find an illogical way to avoid doing both.

Garland:  Jessica Garland, daughter of AG Merrick Garland, has been hired as a clerk for Supreme Court Justice Elena Kagan.  After criticism of the hire, it was announced that she will delay her clerkship until her father is not AG.  Otherwise, either she or Justice Kagan might have to recuse from cases involving the Justice Department.

5th Circuit:  A panel found that mandatory dues to the state bar association in Texas should not be required due to its lobbying for liberal legislation not germane to its mission.  The panel did find that many activities related to pro bono work and diversity are allowed, so the bar may be able to reinstate mandatory dues if it avoids ideological lobbying.

9th Circuit:  The Supreme Court reversed the 9th Circuit in 15 of 16 appeals it heard from that circuit last term.  Ed Whelan wonders if the circuit is changing, as it recently voted to hear an appeal of a liberal panel ruling en banc.

D-SD:  Senior Judge Charles Kornmann continues to push prosecution of several US marshals who removed several defendants from his courtroom in a dispute over their refusal to state whether they received the COVID vaccine.  The DOJ declined to prosecute the marshals, so Judge Kornmann appointed a private attorney to prosecute them.  All the other judges in D-SD recused themselves from the case.  At their request, the 8th Circuit appointed Judge Brian Buescher of Nebraska to oversee the trial.

Vacancy Declarations:  There are now 115 current and future judicial vacancies.  New vacancies over the past month are listed below.
SD-CA: William Hayes (W) 8/1 (senior)
1st Circuit: O. Rogeriee Thompson (Obama) 12/31 (senior)
ND-IL: Matthew Kennelly (Clinton) 10/7 (senior)
ED-MI: David Lawson (Clinton) 8/6 (senior)
Federal Circuit: Kathleen O’Malley (Obama) 3/11/22 (senior)

State Supreme Courts:

Alaska:   Governor Mike Dunleavy appointed Superior Court Judge Jennifer Stuart Henderson to the Alaska Supreme Court.  She was appointed to the Superior Court by left-leaning independent Gov. Bill Walker.  The appointment comes a week after he asked the Alaska Judicial Council for a new slate of candidates.  They had not responded to his request.

Arizona:  Governor Doug Ducey appointed Kathryn Hackett King to the open seat on the Arizona Supreme Court vacated by Andrew Gould.  She is a member of the Arizona Board of Regents and a former aide to Ducey.

Georgia:  Governor Brian Kemp appointed Verda Colvin to succeed Chief Justice Harold Melton.  She is a black woman who serves on the Georgia Court of Appeals since she was appointed by Kemp in March 2020.  She will be the only black judge on the court.  Another candidate for the Supreme Court seat, Solicitor General Andrew Pinson, was appointed to fill Colvin’s seat on the Appeals Court.  Pinson clerked for Justice Thomas on the US Supreme Court.

Michigan:  Michigan Supreme Court Justice Richard Bernstein returned to Michigan after spending six months in the United Arab Emirates and Israel.  Shortly after voting to uphold Governor Whitmer's illegal emergency powers, he violated pandemic guidelines to travel out of America.

Montana:  This article summarizes the recent conflict between the Montana legislature and judiciary from a leftist perspective.

New Mexico:  Governor Michelle Lujan Grisham appointed New Mexico Court of Appeals Judge Briana Zamora to the New Mexico Supreme Court.  She replaces Justice Barbara Vigil. This is Grisham's fourth appointment to the five-member court.

Oklahoma:  Governor Kevin Stitt appointed Oklahoma Court of Criminal Appeals Judges Dana Kuehn to the Oklahoma Supreme Court seat vacated by Tom Colbert.  She was appointed to her current position in 2017.  This is Stitt's third appointment to the court.  The court now has 5 R and 4 D appointees, but one of the R appointees is not a conservative.

Numbers and Trivia:

Chief Justices:  Of all 17 chief justices of the Supreme Court, only 4 were elevated from associate justice (Rehnquist, Stone, E. White, Rutledge).  Note that Hughes had previously been a justice, but resigned for another position.  Only 6 had any experience as a judge before joining the Supreme Court, (E. White, Taft, Vinson, Burger, Rehnquist, Roberts).

Retirements (Reagan):  When did appeals court judges appointed by Ronald Reagan retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  Reagan appointed 83 appeals court judges.  Here are the numbers.

4 (5%) resigned early (Bork, Scalia, Starr, Sneeden)
44 (53%) retired when eligible (within 1st year)
23 (28%) retired later
(7%) died in office
6 (7%) still active (Newman, Wilkinson, Easterbrook, E. Jones, Kanne, J. Smith)

38 (46%) retired under R president
39 (47%) retired under D president
6 (7%) still active
12 (14%) retired in first year of R president

The (shockingly large) percentage of Reagan appointees who retired immediately is much larger than that for Carter appointees (29%).  Many of them turned their seats over to Clinton appointees.


Nominations:  Despite decades of dominating the courts, progressives have convinced themselves that they "lost the courts" because they are just too darn nice!  The Atlantic article somehow fails to mention their slandering of Clarence Thomas, filibustering of nominees under W, and eliminating the filibuster under Obama.  It also does not consider the possibility that progressives "lost the courts" because voters didn't like judges subverting democracy to impose leftist policy preferences.  Ed Whelan also debunks the article.

Blue Slips:  This history of the blue slip isn't new, but it has much good historical information.


Sunday, July 25, 2021

Pam Hornberger for State Senate

On Tuesday, August 3, there are special election primaries for two vacant seats in the Michigan state senate.  One of them is district 8 is northern Macomb county, which is open due to Pete Lucido's election as Macomb County Prosecutor.

There are two main R candidates for the seat, state reps Pam Hornberger and Doug Wozniak.  Hornberger is the clear choice for conservatives.

In 2020, Hornberger has the 6th highest conservative rating by MIRS, while Wozniak was tied for 30th.  In 2019, Hornberger has the 2nd highest conservative rating by MIRS, while Wozniak was tied for 34th.

Wozniak voted for business subsidies 100% of the time, while Hornberger voted for less than 1% of business subsidies. Wozniak voted to allow higher taxes on motels, while Hornberger voted against.

Hornberger is pro-life, pro-gun, and has been a leader among conservatives in the legislature.  She deserves the support of conservatives.

2021 Michigan State Senate Special Election Fundraising

On Tuesday, August 8, there will be a special election primary to fill two vacant Michigan state senate seats.  Here are the fundraising numbers for the leading R candidates.  These numbers come from the SOS campaign finance reports.

8. Hornberger 78K, Wozniak 92K (44K self), Mekoski 38K
28. Huizenga 171K, Brann 94K (80K self), Green 48K (41K self)

The DeVos family is supporting Hornberger and Huizenga.

Wednesday, July 14, 2021

Endless Election Conspiracy Theories

One of the first things you learn when studying politics is that there are lots of people who disagree with you.  Sadly, it seems increasingly common for the base of whichever party loses the presidency to latch onto some conspiracy theory to deny that they actually lost.

This blog has extensively debunked the misinformation about the 2020 election promoted by President Trump and some of his supporters.  But this phenomenon didn't start there.

In 2016, democrats spread rumors that President Trump was colluding with Vladimir Putin to steal the election.  This was started at the top with the phony Steele Dossier that led to the Mueller investigation.  However, it took on a life of its own, with a significant number of dems believing that the Russians actually changed the vote totals, which was never even alledged.

During the Obama years, there was the birther conspiracy theory.  The claim that Obama's pregnant mother took a flight to a third world country to give birth in the country of the guy who dumped her never made much sense.  But some people who couldn't handle the fact that Obama was fairly popular latched onto this claim as a technicality to deny that he had actually won.

The left had its own theories to deny the legitimacy of George W. Bush's victories.  In 2000, the (admittedly close) election in Florida led the left to claim he was "selected not elected".  Contrary to the left's mythology, there was a full (machine) recount, Al Gore was the first to file a lawsuit, and he never asked for a statewide recount.  The Supreme Court finally put a stop to the absurdity (by a 7-2, not 5-4 vote) of different counties using different standards to recount the ballots.

In 2004, some on the left focused on the Diebold voting machines used by the state of Ohio.  They claimed that the machines had been rigged to deliver the election to Bush.  Republicans apparently forgot to rig the 2006 and 2008 elections, which they lost badly.

I don't recall any conspiracy theories about Bill Clinton's election.  Discontent with the election on the right focused on the candidacy of Ross Perot costing George HW Bush the election.  While this may be true, the fact that Bush lost so many votes still signified serious discontent with his policies.

The left's rage over the 1988 election focused on the Willie Horton ad supposedly stoking racial divisions.  Bush's ad never mentioned Horton's race or showed his picture.  In any case, Michael Dukakis' record on crime was a perfectly legitimate issue to raise.

In 1980, some on the left promoted the "October Surpise" theory that Ronald Reagan had made a deal with Iran to prevent the release of hostages until after the election.  There was never any evidence of this.

Conspiracy theories have moved beyond presidential elections.  In 2018, losing dem candidate for governor of Georgia Stacy Abrams refused to concede the election.  She promoted false claims that voters were suppressed from voting.  She was widely embraced by the left, which largely endorsed her claims.

Dems have recently taken to promoting the idea that any effort to secure elections or limit the timeframe for voting is "voter suppression" that is akin to Jim Crow laws.  They never point to even a single person who was legally eligible to vote but unable to do so.

They claim that voter ID is racist, despite massive popular support for it, including a majority of dems.  Ironically, they claim that blacks are less capable of performing the basic task of obtaining an ID, a far more racist claim.

Dems are promoting HR1, the "For the People Act". Any bill with a title that saccarine is likely a scam.  In addition to banning voter ID, the bill also removes all bans on ballot harvesting, a practice which actually was used to commit fraud in the 2018 North Carolina 9th congressional district election.  The bill contains many other terrible provisions designed to benefit dems.

If candidates refusing to concede elections they lost becomes the norm, America will be worse off.

Thursday, July 01, 2021

July 2021 Judiciary News

Breyer untired!

Nominations, Hearings, Confirmations:

Biden nominees:  President Biden got his first judicial confirmations in June.  The first of five district judges confirmed was Julien Neals (D-NJ).  The first of two appeals court judges confirmed was Ketanji Brown Jackson (DC Circuit), a possible Supreme Court candidate.

Public Defenders:  With President Biden nominating more public defenders to the judiciary, GOP senators are raising concerns over whether they have the necessary experience or are too sypathetic to criminals.

4th Circuit:  Toby Heytens--clerk for Ginsberg, Virginia Solicitor General 
9th Circuit:  Jennifer Sung--clerk for Betty Binns Fletcher (9th Circuit), labor lawyer
ED-MI:  Shalina Kumar--Oakland County Sixth Circuit Court
WD-MI:   Jane Beckering--MI court of appeals judge
ED-VA:  Patricia Tolliver Giles--clerk for Gerald Lee (ED-VA), AUSA
ED-VA:  Michael Nachmanoff--clerk for Leonie Brinkema (ED-VA), Magistrate Judge
Claims:  Armando Bonilla--clerk for Garrett Brown (D-NJ), former prosecutor
Claims:  Carolyn Lerner--clerk for Julian Abele Cook (ED-MI), Chief Mediator, DC Circuit

The Federal Judiciary:

Supreme Court:  The court issued rulings in several high-profile cases.  It upheld Obamacare on a 7-2 vote denying the plaintiffs had standing.  It upheld the religious liberty of a Catholic adoption agency in Philadelphia, though on very narrow grounds.  It protected the right of farms to not be invaded by union activists.  It upheld Arizona's election laws on a 6-3 vote.

Supreme Court:  The court has reversed the 9th Circuit many times this term, sometimes unanimously.

Supreme Court:  The court has employees who clip articles and tweets about the court.  Ed Whelan wonders why.

Trump judges:  Trump-appointed judges have blocked many of President Biden's attempts to impose his policies by executive order.

Court reform:  President Biden’s Supreme Court commission held its first meeting, which was either mostly about court packing, or mostly avoided the issue, depending which news article you believe.  Many ideas from limiting judicial review to term limits were discussed.  The commission is only tasked with studying issues, not making recommendations.

Term limits:  Ramesh Ponnuru argues that Supreme Court term limits would not help progressives.

2nd Circuit:  Senior Judge Robert Katzmann died of cancer on June 9 at age 68.  He was appointed by Clinton in 1999 and took senior status in 2021.  He was a feeder judge who sent many clerks to the Supreme Court.

SD-CA:  Judge Roger Benitez has attracted the scorn of anti-gun activists and CNN (but I repeat myself) for his rulings in favor of gun rights.  He has seemingly managed to hear every challenge to California's strict gun laws.  Benitez is a senior judge and Cuban refugee appointed by W in 2004.

D-SD:  Senior Judge Charles Kornmann threw a fit when several US marshalls refused to disclose whether they had received the COVID vaccine.  He claimed they kidnapped three defendants after he ordered the marshalls to leave the courtroom.  He is attempting to charge them with obstruction of justice, saying of the marshalls that "As it stands now, they could well be the most dangerous people in the courtroom".

Vacancy Declarations:  There are now 109 current and future judicial vacancies.  All appeals courts except the 3rd and 8th have vacancies.  New vacancies over the past month are listed below.
D-WY: Nancy Freudenthal (Obama) 6/1/22 (senior)
ED-VA: John Gibney (Obama) 11/1 (senior)
D-PR: Francisco Besosa (W) 1/1/22 (senior)
ND-OK: John Dowdell (Obama) 6/21 (senior/certified disability)

State Supreme Courts:

Districts:  Several states are considering changing state supreme court districts.  Illinois Governor J. B. Pritzker signed a map that would make two seats friendlier to Ds.  Montana put an amendment on the ballot to create judicial districts.  In Louisiana, the bill to add two seats to the Louisiana Supreme Court and redraw the districts failed to get the necessary 2/3 vote in the state house.

Georgia:  The Judicial Nominating Commission sent Governor Kemp a list of six nominees to succeed Chief Justice Harold Melton.  At least three of the six are black.  Melton is currently the only black judge on the court.

Idaho:  Governor Brad Little appointed Idaho deputy attorney general Colleen Zahn to the vacant seat on the Idaho Supreme Court.

Montana:  The Montana Supreme Court upheld a law eliminating the judicial nominating commission by a 6-1 vote.  The battle over the law led to hard feelings by justices upset that the legislature was insufficiently deferential to their authority.

New Mexico:  New Mexico Supreme Court justice Barbara Vigil will retire June 30.  Governor Michelle Lujan Grisham will get her fourth appointment to the five-member court.

New York:  The state senate confirmed Governor Andrew Cuomo's nominations to fill vacancies on the New York Court of Appeals.  They are Nassau County DA Madeline Singas (D) and Justice Anthony Cannataro, who manages the NYC Civil Courts.

Ohio:  Ohio Supreme Court Justice Jennifer Brunner (D) is running for chief justice.  She was elected in 2020, and was previously Ohio SOS.  R Justices Pat DeWine and Sharon Kennedy are also considering running.

Ohio:  The Ohio house passsed a bill to list the party of Ohio Supreme Court and appeals courts candidates on the general election ballot.  Governor DeWine plans to sign the bill.

Oklahoma:  The Oklahoma Judicial Nominating Commission announced three finalists for the Oklahoma Supreme Court seat vacated by Tom Colbert.  They are Oklahoma Court of Criminal Appeals Judges Dana Kuehn and Stacie Hixon and Tulsa County District Judge Rebecca Nightingale.  Governor Kevin Stitt will get his third appointment to the court.

Numbers and Trivia:

Minorities:  Ed Whelan points out that minorities are overrepresented in the judiciary relative to the number who have law degrees, and in some cases even relative to the overall population.

Feeder judges:  A feeder judge is a judge whose clerks frequently go on to clerk for the Supreme Court.  The most common D feeder judges over the past decade (Garland and Katzmann) have recently left the judiciary.  Two others (Tatel and Fletcher) have are taking senior status this year.  It isn't clear who will succeed them, though Sri Srinivasan (DC Circuit) is likely to be one.

Retirements (Carter):  When did appeals court judges appointed by Jimmy Carter retire?  By retire, I mean leave active status, that is resign, retire, take senior status, or die in office.  All 56 Carter appointees have left active status.  Here are the numbers.

4 (7%) resigned early
16 (29%) retired when eligible (within 1st year)
31 (55%) retired later
(9%) died in office

24 (43%) retired under R president
32 (57%) retired under D president
5 (9%) retired in first year of D president

Carter only had 12 appointees in his first two years, but he had 44 in his last two years after a court expansion bill was passed.  The appointees in the last two years seem more liberal than those in the first two years.


Thursday, June 24, 2021

Michigan State Senate Debunks Election Conspiracies

The Michigan state senate oversight committee issued a report on the 2020 election in Michigan.

Report on the November 2020 Election in Michigan

The report debunks many common claims of voter fraud and conspiracy theories concerning the 2020 election.  It also identifies some problems with the way the election was administered and suggests some improvements to the election system.  Some highlights of the report include:

  • "This Committee found no evidence of widespread or systematic fraud in Michigan’s prosecution of the 2020 election."
  • Most claims of dead people voting were false. "There were two claims of deceased individuals casting votes that were found to be true; one was a clerical error while the other was a timing issue."
  • The false claim by the Voter Integrity Project of "289,866 illegal votes" cast was an extrapolation from a small sample of people who confused absentee ballots with absentee ballot applications.
  • Vote counting in Detroit was a mess, and many involved were confused (including Republican observers), but there is no indication of mass voter fraud.
  • In Antrim County, the initially reported unofficial results were wrong, but the initial tabulator tapes reported correct results.  A hand recount verified that this count was correct.
  • "If the losing party had been so confident of any of these cyber attack theories or software-based vote switching, simply asking for several hand recounts or re-tabulations in the various precincts would have demonstrated a genuine hack had happened and that there was necessity for additional recounts and investigations."
  • An audit was conducted of selected precincts and races in each county in Michigan.

Tuesday, June 01, 2021

June 2021 Judiciary News

Don't tire, Breyer!

Nominations, Hearings, Confirmations:

Diversity:  President Biden's first 20 judicial nominees embody the left's idea of diversity.  All of them are on the left, and none of them is a white male.

D-CO:  Colorado's senators have recommended three candidates, Kenzo Kawanabe, Charlotte Sweeney and Nina Wang, for a future vacancy on the district court.

SD-FL:  The applicants for the two vacancies on SD-FL were be interviewed by the congressional judicial nominating commission, which later announced its finalists.  The congressional JNC was established by Rep. Wasserman-Schultz and is not authorized by Senators Scott or Rubio.

Judiciary Committee:  Shockingly, Senate Ds seem not to be running the Judiciary Committee by the standards they demanded it run by when Rs ran the committee.


Senate Judiciary Committee hearings:

The Federal Judiciary:

Breyer:  Ds are worried they might not be able to fill a vacancy on the Supreme Court.

Supreme Court:  Carrie Severino surveys the left's attempts to intimidate the Supreme Court through threats of court packing.

Supreme Court:  The Supreme Court will hear an appeal on Mississippi's law that bans abortion after 15 weeks (with the usual exceptions).  The case could be a vehicle to overturn Roe v. Wade, though more likely it will just be rolled back somewhat.

Court reform:  President Biden’s Supreme Court commission held its first meeting on May 19.  It has six months from that date to study changes to the judiciary.

4th Circuit:  Virginia's D senators have recommended U.S. District Court judges Arenda Allen and M. Hannah Lauck and Virginia Solicitor General Toby Heytens for the open seat on the 4th Circuit.

9th Circuit:  Ed Whelan observes that conservatives on the 9th Circuit have had some success in getting en banc review of bad panel decisions.

11th Circuit:  Retired judge Joseph W. Hatchett died on April 30.  He joined the Florida Supreme Court  in 1975. He was appointed to the Fifth Circuit by Carter in 1979. He transferred to the Eleventh Circuit in 1981.  He was Chief Judge from 1996 until his retirement in 1999.

Vacancy Declarations:  There are now 112 current and future judicial vacancies.  The 18 appeals court vacancies are on the 1st (1), 2nd (3), 4th (1), 5th (1), 6th (1), 7th (1), 9th (4), 10th (2), 11th (1), DC (2), and Federal (1).  New vacancies over the past month are listed below.
9th Circuit: Richard Paez (Clinton) TBD (senior)
ED-VA: Anthony Trenga (W) 6/1 (senior)
5th Circuit: James Dennis (Clinton) TBD (senior)
MD-PA: John E. Jones III (W) XX (retired)
D-PR: Gustavo Gelpí (W) TBD (nominated to 1st Circuit)
9th Circuit: William Fletcher (Clinton) TBD (senior)
11th Circuit: Beverly Martin (Obama) 9/30 (retired)
6th Circuit: Bernice Donald (Obama) XX (senior)

State Supreme Courts:

Alaska:   The Alaska Judicial Council has selected three finalists for a seat on the Alaska Supreme Court being vacated by Joel Bolger.  They are Superior Court Judges Dani Crosby, Jennifer Stuart Henderson and Yvonne Lamoureux, who were all appointed to the Superior Court by left-leaning independent Gov. Bill Walker.   All three of them were finalists for the previous vacancy in 2020.  Another candidate, who was supporeted by Governor Dunleavy's appointees on the council, was eliminated after Bolger voted not to nominate him.

Arizona:  The Arizona Commission on Appellate Court Appointments nominated seven candidates for the open seat on the Arizona Supreme Court vacated by Andrew Gould.  Four candidates are Rs, two are independents, and one is a libertarian. Governor Doug Ducey will appoint one of them.

Illinois:  The D-controlled legislature has proposed new maps for the Illinois Supreme Court.  The map has not been updated since the 1960s, but a more proximate cause for the proposal is the defeat of a D judge in a 2020 retention election.  That seat will be open in 2022, along with a seat held by an R who was appointed to fill a vacancy.  The proposed new map makes both seats more friendly to Ds.

Maine:  Governor Janet Mills nominated Superior Court Justice Valerie Stanfill, age 63, to become chief justice of the Maine Supreme Court.  The seat has been vacant for over a year, since Chief Justice Leigh Saufley stepped down.

Missouri:  Governor Mike Parson appointed Missouri Eastern District Court of Appeals judge Robin Ransom to fill he Missouri Supreme Court seat vacated by Laura Denvir Stith.  Ransom will be the court's first black female justice.  The other candidates nominated by the Appellate Judicial Commission were Missouri Southern District Court of Appeals judge Donald E. Burrell Jr. and 21st Judicial Circuit judge William M. Corrigan Jr.

New York:  Governor Andrew Cuomo has made nominations to fill vacancies on the New York Court of Appeals.  They are Nassau County DA Madeline Singas (D) and Justice Anthony Cannataro, who manages the NYC Civil Courts.  The state senate has until June 10 to consider the nominations, which it might not due to Cuomo's scandals and possible impeachment trial.

Pennsylvania:  Commonwealth Court Judge Kevin Brobson won the R primary for an open Supreme Court seat with 53%.  Commonwealth Court Judge Patricia McCullough had 32%.  Brobson will face Superior Court Judge Maria McLaughlin (D) in the November 2 general election.

Numbers and Trivia:

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past few months.
1 (0) December
20 (3) January
19 (3) February
8 (3) March
7 (1) April
8 (5) May

2020 Election:  The Juris Lab has some data on lawsuits related to the 2020 election.


Tuesday, May 11, 2021

2021 Kalamazoo Election Preview

This article was last updated August 19, 2021.

This is a preview of the November 2 elections in Kalamazoo County.

Kalamazoo City Commission

The mayor and three seats on the Kalamazoo City Commission are up for election. The seven commissioners are Mayor David Anderson (on since 2005, mayor since 2019), Patrese Griffin (2019), Erin Knott (2015), Jack Urban (2013), Eric Cunningham (2017), Jeanne Hess (2019), and Chris Praedel (2019).

In 2014, Kalamazoo voters passed a charter amendment changing the charter by electing the mayor separately and implementing staggered four-year terms for the other seats (similar to the system Portage uses).  In 2019, Griffin, Hess, and Praedel got four-year terms.  The other three seats were up in 2017.

Mayor Anderson, a center-left democrat, will run for reelection.  He defeated David Benac, a Bernie Sanders fan, in 2019.  Commissioner/Vice Mayor Patrese Griffin is running for mayor, and has resigned to do so.  However, due to a campaign finance error, she cannot appear on the ballot and will run as a write-in.  Benjamin Stanley is also running for mayor.

Cunningham, Knott, and Urban will not run again.

Former commissioner Don Cooney (1997-2019) is seeking to return to the commission.  Other candidates include community organizer Marshall Kilgore, Alphonso Harris, Qianna Decker, Steven Chandler, Stephanie Hoffman, Jason Morris, activist Esteven Juarez (who ran for mayor in 2019), and James Mitchell.

Portage City Council

The mayor and three seats on the Portage City Council are up for election.  Patricia Randall was elected mayor in 2017 after serving on the council since 2009.  She was unopposed in 2019 and it is unknown whether she will be opposed this time.

The other councilmembers are Terry Urban (1997), Claudette Reid (2005), Jim Pearson (2011), Lori Knapp (2017), Chris Burns (2017), and Vic Ledbetter (2020).

The three seats up for 4-year terms are held Urban, Reid, and Knapp. It is unknown whether they will run for reelection, or whether other candidates will run.

Vic Ledbetter filled a seat vacated by the resignation of Richard Ford.  There will be an election for a 2-year term for that seat.