Sunday, January 31, 2021

February 2021 Judiciary News

Leave every vacancy unfilled.

Nominations, Hearings, Confirmations:

Biden:  Law360 has a list of possible Biden appeals court nominees.  Many are district judges appointed by Obama, and several were previously rejected by senate Rs.

Biden:  Ed Whelan outlines three questions about Biden judicial nominees.  Will another Supreme Court vacancy arise?  Will many new vacancies open up on the federal appellate courts?  Will the Biden White House make nominations expeditiously?

Retirements:  Harsh Voruganti of the Vetting Room lists all appeals court judges who are currently eligible for senior status now or in the near future.

Renominations:  Harsh Voruganti lists all recent cases of a president renominating an unconfirmed nominee of a predecessor.  It is likely that some previous Trump and Obama nominees will be nominated by President Biden.

First nominations:  Harsh Voruganti discusses how quickly (or slowly) new presidents submit their first judicial nominees.

Court packing:  Ilya Somin argues that President Biden's commission on judicial reform is unlikely to support court packing.  Bob Bauer, the chairman of the commission, previously wrote an article opposing court packing.

Judiciary Committee:  The Senate Judiciary Committee has not yet organized itself for this session.  It currently has 12 Rs and 9 Ds.  It will presumably have equal numbers of Rs and Ds, but it is unknown whether any Rs will have to give up their seats.

Garland:  President Biden announced that judge Merrick Garland of the DC Circuit is his nominee for Attorney General.  Garland was nominated to the DC Circuit by Clinton in 1997, and Obama nominated him to the Supreme Court in 2016, but the R senate did not give him a hearing.  Garland was only nominated after the Georgia runoffs.  Some progressive groups want the senate to have hearings for Biden judicial nominees first, even though there are no Biden judicial nominees yet.

Senate Judiciary Committee hearings:

The Federal Judiciary:

Breyer:  Justice Stephen Breyer is getting pressure from the left to step down so that President Biden can appoint a black woman to the Supreme Court.

Trump judges:  Reuters gives an overview of the impact that Trump appointees are having on the judiciary.

Federalist Society:  The Federalist Society is debating what to do in the wake of the Capital riot.  David Lat argues that it should take steps to separate itself from partisan politics.

Many judges have announced that they are taking senior status, mostly liberals who were waiting for president Biden's inauguration.  Only two are circuit court judges so far.
ED-NY: Roslynn Mauskopf (W) 2/1 (uscourts director)
ED-MI: Victoria Roberts (Clinton) 2/24 (senior)
2nd Circuit: Robert Katzmann (Clinton) 2/21 (senior)
ND-CA: William Alsup (Clinton) 1/21 (senior)
D-ID: B. Lynn Winmill (Clinton) 8/16 (senior)
D-MD: Hollander (Obama) TBD (senior)
D-MD: Blake (Clinton) 4/2 (senior)
SD-TX: Gilmore (Clinton) 1/2/22 (retire)
ND-OH: Polster 1/31 (senior)
ND-CA: Hamilton (Clinton) 2/1 (senior)
ND-CA: White (W) 2/1 (senior)
D-OR: Mosman (W) 12/27 (senior)
SD-FL: Ursula Ungaro (HW) 5/1 (senior)
D-SD: D. Viken (Obama) 10/01 (senior)
SD-CA: A. Battaglia (Obama) 3/31 (senior)
ED-WA: R. Peterson (Obama) 10/1 (senior)
10th Circuit: Carlos Lucero (Clinton) 2/1 (senior)
ND-OH: James Gwin (Clinton) 2/1 (senior)
2nd Circuit: Denny Chin (Obama) 6/1 (senior)
ED-PA: Timothy Savage (W) 3/1 (senior)

State Supreme Courts:

Gerrymandering:  Billy Corriher observes that house Ds have a majority thanks to D gerrymanders imposed by courts in North Carolina, Pennsylvania, and Virginia.

Alaska:  The Alaska Judicial Council released the names of the seven applicants for a seat on the Alaska Supreme Court.  Three of them, Superior Court Judges Dani Crosby, Jennifer Stuart Henderson and Yvonne Lamoureux, were finalists for the previous vacancy.

New Hampshire:  Governor Chris Sununu appointed Attorney General Gordon MacDonald, age 60, to be the next Chief Justice of the New Hampshire Supreme Court.  The Hampshire Supreme Court has 2 D and 2 R appointees, with one seat vacant for over one year.  Former Justice Robert Lynn retired on August 23, 2019, as he was age-limited.  Governor Chris Sununu nominated MacDonald in 2019, but the state Executive Council, with a 3-2 D majority, blocked the nomination.  The council, which now has a 4-1 R majority, confirmed MacDonald on January 22.

Oklahoma:  Oklahoma Supreme Court Justice Tom Colbert will retire on February 1.  He was appointed by D governor Brad Henry in 2004.  Gov. Kevin Stitt will appoint a successor from applicants screened by the Judicial Nominating Commission.  This will be his third appointment.  The court has 5 D and 4 R judges, but only three conservatives.

South Carolina:  The legislature is considering adding two more justices to the five-member court.  Justices are appointed by the legislature after being screened by a panel.  The proposal would have to be approved by the voters.  The current chief justice, Donald Beatty, is a D appointed by the legislature in 2007.

Numbers and Trivia:

With the end of the Trump presidency, here are the final numbers of Trump-appointed judges.  He appointed 226 total article 3 judges.
3 Supreme Court justices
54 appeals court judges (net 53)
174 district court judges (net 170)
55 are women (24%)
37 are non-White (16%)

He also appointed the following judges to other courts.
3 Court of International Trade
10 Court of Federal Claims
7 Tax Court
6 Court of Appeals for Veterans Claims
2 Court of Appeals for the Armed Forces
1 Court of Military Commission Review

2021: January

Sunday, January 24, 2021

Is Peter Meijer Vulnerable in MI-3?

Of the ten house Republicans who voted to impeach President Trump, two are from Michigan--Fred Upton of the sixth district, and Peter Meijer of the third district.  Upton is likely to retire in 2022, and would be highly vulnerable if he didn't.  The third district is more complicated.


Understanding MI-3 requires understanding Dutch Reformed conservatives.  Around 100 years ago, many Dutch immigrants settled in West Michigan.  They were predominantly Reformed Christians (Calvinists), who emphasized hard work, frugality, and social conservatism.  They were natural Republicans.  The biggest denominations are the Mainline Reformed Church of America (RCA) and Christian Reformed Church (CRC).  The RCA has both liberal and conservative wings, with liberals more common on the east coast.

(President Trump once identified as an RCA member, attending a church led by Norman Vincent Peale, the author of  The Power of Positive Thinking, which borders on the prosperity gospel.  Trump later called himself a Presbyterian, the more common theological cousins of the Reformed church founded by Scottish Calvinists.)

The CRC is more conservative than the RCA.  It is headquartered in Grand Rapids, and Calvin College, its flagship educational institution, is located there.  The CRC has some liberal influences itself, often emanating from Calvin.  Senator Scott Brown, rep. Bill Huizinga, and former rep. Vern Ehlers are prominent members.  Several smaller Reformed denominations have split from the CRC, viewing it as too liberal.  The CRC (and the splinter denominations) have long supported Christian schools over public schools, and in recent decades, many Reformed Christians have embraced homeschooling.

The Reformed churches have tended to be skeptical about military engagements, and MI-3 has one of the more anti-war bases of R congressional districts.  The other counties in the district have more conventional Republicans, and Calhoun County (added in 2012) has a more working class demographic.

Today, I would divide the R base in MI-3 into four groups, along with typical representatives.

  • Country-club moderates (Brian Ellis) centered in East Grand Rapids and upscale areas around Grand Rapids.
  • Establishment conservatives (the DeVos family)
  • Conservative/libertarian Trump sceptics (Justin Amash, Steven Johnson)
  • Trump conservatives (Tom Norton).  The latter two groups were both active in the Tea Party movement, but separated over Trump.
I won't try to estimate the sizes of the four groups, except to say that establishment conservatives are definitely the largest.


The Kent County area was represented by Gerald Ford from 1948 until he became vice-president in 1973.  Ford was succeeded by democrat Richard Vander Veen (1974-1976), whose election was a major upset in the wake of the Watergate scandal.  He was succeeded by R prosecutor Harold Sawyer (1976-1984) and former Calvin College political science professor and state legislator Paul Henry (1984-1993).

Vern Ehlers represented the 3rd from 1993 to 2010.  Ehlers was previously a physics professor at Calvin College, and a state legislator.  Ehlers was fairly moderate, though strongly pro-life.  He won easily with the support of the moderates and establishment conservatives.

The DeVos family has had a major impact in the Michigan Republican Party, and particularly in MI-3.  In 1959, Rich DeVos co-founded Amway, a company that sells home products using multi-level marketing.  He became a billionaire and Republican mega-donor.  In the early 1980s, his son Dick DeVos worked with young state senators John Engler and Dick Posthumus to displace the allies of liberal governor Bill Milliken from control of the state GOP, resulting in a relatively conservative party.  The DeVos family continued to be prolific donors.  Betsy DeVos (wife of Dick) was MIGOP chair 1996-2000 and 2003-2005, and US Secretary of Education 2017-2021.

Justin Amash was elected to the Michigan state house in 2008.  With the rise of the Tea Party movement, local activists were unhappy with Ehlers, and the libertarian Amash challenged him in the 2010 primary.  Ehlers decided to retire.  Amash defeated several other candidates in the primary with the support of the DeVos family and Club for Growth.  While he was one of the most anti-establishment members of congress, he maintained the support of the DeVos family.

In 2014, Amash was challenged by Brian Ellis, a moderate.  Ellis had the support of the Chamber of Commerce and former rep Pete Hoekstra.  Amash won 57-43, with the help of the DeVos family and Club for Growth.

Amash became increasingly critical of President Trump, and in May 2019, the DeVos family announced that it would no longer support him.  He left the GOP in July, and later became a Libertarian.

Peter Meijer was elected in 2020.  He is a 33-year-old Army veteran and heir of the Meijer retail chain.  He ran a rather bland campaign, with the exception that he opposed military interventionism.  He had the backing of the DeVos family.  He won the primary with 50%, with state rep Lynn Afendoulis (establishment) getting 26%, and Tom Norton (super-Trumpy) getting 16%.  Meijer won a relatively narrow 53-47 victory over Hillary Scholten in the general.


Will Meijer face more than one challenger?  Tom Norton, a Trump die hard who was a Tea Party activist has already announced a primary challenge to Meijer.  Norton has a poor electoral track record, finishing fifth in primaries for state house in 2010 and 2014.  He also has a history of controversial statements.  Shortly after announcing his primary challenge of Amash, Norton "passed out press releases calling on the House to expel Amash for allegedly failing to represent constituents in a district that backed Trump."

Amash has said it’s his duty to uphold the U.S. Constitution. But the congressman's “first duty” is to represent constituents, and “he’s failing at that miserably,” Norton said.

Norton would struggle to gain much support beyond Trump conservatives, and Meijer would most likely beat him.  Defeating Meijer would require a more mainstream challenger who could attract at least part of the establishment along with Trump supporters.  But will such a challenger emerge?

Does Trump endorse a primary opponent?  It seems likely that he would, though a lot can happen in two years.  If there is more than one challenger, will the other(s) drop out?  Meijer would be more likely to win the primary if opposition to him is split.

Does the DeVos family continue to back Meijer?  Betsy DeVos recently resigned as Secretary of Education, harshly criticizing President Trump's role in inspiring the Capitol riot.  It seems likely that they will continue to back Meijer, but if not, his position would weaken.

How will redistricting change MI-3?  Michigan's congressional districts will be redrawn by an independent commission.  There will presumably be a district containing the bulk of Kent County where Meijer will run.  What else is attached will matter, though.  The current district contains several Trump-friendly rural counties.  If they are removed in favor of more of Kent County or part of Ottawa County, Meijer's chances will improve.

Peter Meijer is in for a tough fight.  The answers to the questions above will determine whether he survives.

Saturday, January 23, 2021

6th District Committee Criticizes Upton Impeachment Vote

Republican leaders of the 6th District Committee and all six county GOP chairs in the district issued a statement criticizing Upton’s vote for impeachment of President Trump. While worded tactfully, this is still a big deal. As far as I know, none of them were anti-Upton before now, and most were slavishly loyal. In addition, the Allegan GOP voted to censure Upton.

About a third of the R base in MI-6 has never liked Upton, and he has periodically faced primary challengers.

  • 1990: defeated state senator Ed Fredericks 63-37
  • 2002: defeated state senator Dale Shugars 66-32
  • 2010: defeated state rep Jack Hoogendyk 57-43
  • 2012: defeated Jack Hoogendyk 67-33
  • 2014: defeated Jim Bussler 71-29
  • 2020: defeated Elena Oelke 62-38

Oelke's strong performance was a surprise, since she had little fundraising or institutional support.  I don’t think Upton would get a majority in the 2022 primary. I’m almost certain that he will retire in 2022.

Saturday, January 09, 2021

Voter Fraud Conspiracy Nonsense Debunking Roundup

There have been many claims of voter fraud or other misconduct in the 2020 election.  Most of these claims simply do not stand up to scrutiny, and most of the people passing on these claims seem not to be checking their accuracy.  A catalogue of unverified allegations appears at  I have been trying to check these allegations, and here is what I have found about some common claims.  Please click the links for more detailed explanations.


Did Vote Counting Machines Flip Votes from Trump to Biden?

There are all sorts of wild claims about Dominion Voting Systems, from who owns it to how its program in written.  It is not necessary to analyze the machines themselves to know whether they produced an accurate count.  The states that Trump contested use paper ballots, which can be recounted if there is any question about the machine vote count.  The Trump campaign asked for recounts in Milwaukee and Dane County in Wisconsin, which use a different vendor.  The Wisconsin recounts found no vote-flipping.  In Georgia, a hand recount was conducted automatically; it was not requested by the Trump campaign.  The recount found some human error; it did not find any vote-flipping.  In Michigan, Trump improved from 2016 in counties that use Dominion machines, and declined in counties that use other vendors.

Did Dominion Flip Votes in Antrim County?

There was an error in the initially reported result in Antrim County, MI, which the clerk has attributed to a problem with updating the software.  The magnitude of this error makes it unlikely that fraud could explain it.  A hand recount verified that the corrected machine count was accurate.

What about Hammer and Scorecard?

That story is a hoax.


Anomalies in the reported election results could provide evidence of fraud, or at least suggest areas that merit further investigation.  However, many such claims don't stand up to scrutiny.

Does High Voter Turnout Prove Voter Fraud?

Voter turnout was high, but not unreasonably so.  Reasons for high turnout include population growth, more absentee/mail voting, and intense support and opposition to Trump.  Turnout was up in every state, and many safe states had big turnout increases.

Turnout in Detroit was over 100%!

President Trump claimed that Detroit had "far more votes than people".  Russell Ramsland claimed that turnout in Detroit was 139%.  The turnout was actually 51%.  Similar claims about other jurisdictions are also false.

Did Trump lose due to surges of turnout in Detroit, Philadelphia, and other big cities?

Biden got 1000 FEWER votes than Hillary did in 2016 and Trump got 5000 MORE votes than he got four years ago in Detroit.  Biden's margin in Philadelphia also declined compared to Hillary in 2016.  Biden won by improving his margins in upscale suburbs in Michigan and Pennsylvania.  Biden did improve in other cities like Atlanta and Milwaukee, but the improvements were not only in swing states, as some claimed.

Do US Senate election results prove tens of thousands of Biden-only ballots?

It is perfectly normal for some voters to only vote in the most high-profile race.  This has often happened in the past, and it happened more in Michigan in the past than in 2020.

How could Trump lose when he improved with minorities?

There is solid statistical evidence that Trump had a small improvement with blacks and a significant improvement with Hispanics.  Trump lost because he lost ground with white voters, particularly college-educated voters.  With all the discussion of minority voters, it is easy to forget that the majority has more votes than the minority.

Did Battleground States Stop Counting Votes Before the Results Swung to Biden?

North Carolina (which Trump won) stopped counting because it ran out of votes to count.  Some localities did break for the night.  Michigan, Wisconsin, and Philadelphia did not stop counting.

Why were the late election results bad for Trump?

In many states, including Michigan, Pennsylvania, Georgia, and Wisconsin, Trump led early, but Biden gained until winning the election later.  There is a clear reason for this.  These states all counted election day votes first and absentee votes later.  Rs disproportionately voted on election day due to concerns about the security of mailed votes, while Ds disproportionately voted absentee due to concerns about COVID.  Thus it is no surprise that Trump won election day votes while Biden won absentee votes.  Note that Ohio counted absentee votes first, and Trump trailed early but won late.


Charles Cicchetti found the chance of Biden winning Pennsylvania, Michigan, Georgia, Wisconsin after Trump's early lead is less than one in a quadrillion!

For this calculation to be correct, votes would have to be counted in random order, so that a vote counted late was no more likely to be for Biden than a vote counted early.  However, this is false, since in these four states, absentee votes were counted after election day votes.  Biden did better in absentee votes than in election day votes.  Matt Parker and Robert VerBruggen have longer explanations.

Does Benford's Law prove that Biden's vote totals were fraudulent?

Benford's Law is a tool that can provide evidence of fraud in some data sets.  Some precinct data seems to violate this law.  To be applicable, the data set must follow a "power law", and must vary over several orders of magnitude.  Neither assumption is likely to hold for election data, so Benford's Law does not apply.  Matt Parker has a longer explanation.  Also, it is unlikely that Benford's law would catch most types of voter fraud, unless someone were making up vote totals from scratch.

Has Dr. Shiva Proven Michigan Voter Fraud?

Dr. Shiva made a serious mathematical error in his analysis and his conclusion is based on a false assumption.  The effect he found for Trump votes applies similarly to Biden votes.

"Mathematician" Bobby Piton was kicked off of Twitter after presenting evidence of fraud in Arizona!

It isn't clear whether Piton was ever kicked off Twitter, but he is there now.  Piton is not a mathematician, he is a financial adviser.  He describes his approach on his website:

Bobby has read well in excess of a million pages over his career and has extensively studied physics, quantum mechanics, mathematics, economics, trading, portfolio construction, model development, asset valuation, and alpha generation to develop and refine his methodology.

Piton's presentation in Arizona is on Youtube and the associated write-up is on his website.  Good luck following his argument.  He does compare (19:30) the turnout for the 1998 (governor) election to the 2020 presidential election.  Midterm elections almost always have lower turnout than presidential elections, so this is not a relevant comparison.


Many election observers have signed affidavits concerning their experiences on election night.  It is often noted that these are sworn under penalty of perjury, and therefore they are proof of fraud.  Realistically, it is unlikely that anyone would be charged with perjury, which would require proving beyond a reasonable doubt that they are lying.  That is not to say that most of them are lying.  Some are clearly just misunderstandings, many don't actually allege fraud, and many are impossible to check.  Some specific claims are addressed below.  Recall that Trump improved in Detroit and Philadelphia relative to 2016, which is hard to square with massive fraud in those cities.

Detroit's election workers input a false birthdate of 1/1/1900 for absentee ballots!

Yes, they did.  Detroit's election software required a birthdate to input the ballots, which election workers would not have.  The city clerk instructed workers to input that date as a placeholder so that the real birthdates could be filled in later.  Note that it would not make sense for anyone committing fraud to claim that a voter was 119 years old!

Election workers ran the same stack of ballots through the machine multiple times!

Each precinct has a list of everyone who voted, called a poll book.  If many ballots are run through a machine repeatedly, this will create a mismatch between the number of votes and the number of recorded voters in the poll book.  While many of Detroit's precincts did have mismatches, they were generally small, not hundreds or thousands of votes.

Almost half or 48% of the 134 counting boards were individually off by plus or minus four votes or fewer each, according to results certified by the county's bipartisan board of canvassers. Another 39 boards, or 29% of them, were in balance, while 31 boards, or 23% of the total, were off by five or more votes.

The total "difference in absentee ballots tabulated and names in poll books in Detroit was 150".

In Georgia, were there problems with secret vote counting, illegal voters, signature matching, etc?

Gabriel Sterling, a Republican who is Georgia's voting system implementation manager, debunked these claims in a press conference.


While these do not directly prove voter fraud, they are supposed to show that something strange happened.  In many cases, there are perfectly reasonable explanations.

Was There are Red Wave Downballot in 2020?

The election results for president and congress were quite consistent.  Rs picked up house seats relative to 2018, not relative to 2016.

Do Incumbent Presidents Who Increase Their Votes Always Win?

There are few elections where incumbent presidents lose, so there are few relevant elections to consider.  Also, this anomaly has happened before.

Can a President Lose While His Party Gains House Seats?

This is another claim which applies to only a few elections.  It has also happened before.

How could Trump lose when he won most bellwether counties?

A bellwether county is a county which always, or almost almost always voted for the winner in recent elections.  They are not crystal balls, they are statistical anomalies--counties that happen to swing the same way as the nation when party coalitions change.  These counties are mostly rural, and Trump did well in them in both 2016 and 2020.  Biden won by improving in large suburban counties, not rural areas.


The Trump campaign and supporters have filed around 60 lawsuits challenging the election results.  They have lost all of them, with one minor exception.

Did any judges rule on evidence of voter fraud, or were all the suits dismissed for lack of standing?

The suits not filed by the Trump campaign were generally dismissed for lack of standing.  This is something that the plaintiffs should have considered before filing, as not just anyone can challenge the results of an election.  However, some judges did rule on the merits of the claims.  Note that some of the more wild claims of fraud were not actually made in court, where lawyers can be disbarred for lying.

In Wisconsin, a Trump-appointed judge allowed the Trump campaign to present evidence.  However, they declined to present any evidence ("stipulated [the] set of facts") and only contested election law issues.  A Republican judge in Pennsylvania dismissed a Trump campaign lawsuit, saying "this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence."  The Nevada Supreme Court (which is ideologically mixed), similarly upheld the dismissal of a Trump campaign lawsuit on the merits.  In Michigan, the Trump campaign dropped its lawsuit before its claims could be heard.

Were election laws changed before the election?

Some legislatures and judges changed laws before the election.  The reason cited was generally the COVID pandemic.  It is likely that some judges were hoping to help Ds with their rulings.  This help could mean either encouraging more Ds to legally vote, or making it easier for fraud to be committed.  Some of these decisions were challenged before the election, and some were overturned, but others were not challenged before the election.

After the election, the Trump campaign filed challenges to many of these decisions.  Their complaints in Pennsylvania and Wisconsin seemed to have some merit.  The problem with this is that there is no way to know whether these decisions changed the outcome of the election.  So if the judges' decisions were illegitimate, what is the remedy?  The Trump campaign was asking for hundreds of thousands of votes to be thrown out, or even the entire election.  But this would disenfranchise millions of legitimate voters, including those who voted in good faith based on the rules presented at the time.  This would be a bigger injustice than the original decisions.  Many rulings have cited the doctrine of "laches" to toss out Trump campaign lawsuits.  Essentially, this means they waited too long to file.  The issues could have been resolved before the election with far less disruption, so waiting until after the election to file is too late.

Can state legislatures appoint the electors themselves?

The Constitution gives states the power to decide how presidential electors are chosen. Since the early 1800s, all states have passed laws to choose presidential electors by popular election.  A state legislature could theoretically repeal this law and choose the electors itself for a future election, but none have tried to do so since this would be very unpopular.  A legislature cannot unilaterally appoint its own slate of electors in defiance of the laws that are already on the books.  It is very dubious whether it could repeal the law for an election that has already taken place.  In any case, no legislature attempted to appoint its own electors.

Why was the Texas lawsuit thrown out by the Supreme Court?

In the Texas lawsuit, a group of states was attempting to get the Supreme Court to change their election laws.  This is a violation of federalism, as states can make and interpret their own laws unless there is a violation of federal law involved.  The case was basically a political stunt, and all nine justices viewed it as such.


The COVID pandemic led to a surge of absentee/mail voting.  Absentee voting can be more vulnerable to fraud, since the person who votes is not actually seen casting the vote.  However, we have a list of the people who voted, or at least the name they gave, so if there were many ineligible or fake voters, it should be possible to identify them.

Were there many dead people, minors, felons, illegals among the voters?

This has been claimed by Matt Braynard of the "Voter Integrity Project".  It isn't entirely clear what methodology he used to conclude this, but it seems likely that he compared lists of voters to lists of people who are prohibited from voting and looked for matching names.  The problem with this is that there are many people with the same name, so this will lead to many false matches.  This seems to be the case in Georgia, where a D state representative was able to discredit many of the names cited by Braynard.  The voter lists should certainly be investigated by authorities, but claims of hundreds of thousands of illegal votes should not be endorsed without proof.  A Georgia audit of 15000 signatures found only two with problems.

Did Steven Crowder find Massive Voter Fraud in Detroit?

Crowder simply misunderstood the way that Detroit reports absentee ballots.


There are a few arguments for voter fraud that seem plausible to me.  That does not mean that they are definitely true, but at least I don't see any obvious flaw in them.

Were there differences in the absentee ballot voting rates on the borders of counties?

John Lott argues that there are differences in the absentee ballot voting rates in precincts on opposite sides of county lines, where one of the counties is an urban center controlled by Ds.  He says that differences do not exist for in-person voting, and there was no such difference in 2016.  This analysis could be vulnerable to cherry-picking, so it would be good to see it checked with a larger data set.

Did more than 1700 Georgians vote twice in 2020 elections?

It appears so.  These voters apparently voted both in person and by absentee ballot.  It is important to recognize, however, that the number 1700 combines multiple elections.  For the November election, the total claimed is "at least 400".

Thursday, December 31, 2020

January 2021 Judiciary News

Leave no vacancy unfilled (until January 20).

Nominations, Hearings, Confirmations:

Post-election nominations:  Ed Whelan refutes the claim that there is a long tradition of not confirming nominees of an outgoing president.  The last time an outgoing president had a senate run by his party was 1980, when Jimmy Carter nominated Stephen Breyer to the 1st Circuit after the election.

Obstruction:  Carrie Severino reviews the tactics D senators used to try to obstruct President Trump's judicial nominees.  R senators should keep this in mind.

Durbin:  Senator Dick Durbin will become the Democrat on the Senate Judiciary committee after Senate Ds passed a rule allowing him to hold the position and remain D whip.  Some progressive groups preferred Sheldon Whitehouse get the job.

Biden:  This article on Biden's approach to judicial nominations says that many D appointed judges are planning to take senior status next year, but the Georgia runoffs may affect their timing.  Several R appointed judges confirm that they were approached about retiring under Trump.  John Jones (MD-PA), Michael Kanne (7th Circuit), and Leslie Southwick (5th Circuit) all said that they have no immediate plans to retire, but would not rule out retiring under a D president.

Biden:  Various interest groups are demanding more 'diversity' among Biden's judicial nominees.  Not ideological diversity, obviously.

Biden:  Harsh Voruganti of the Vetting Room identifies four judges as possible Biden Supreme Court nominees.  They are Ketanji Brown Jackson (D-DC), Leondra Kruger (California Supreme Court), Sri Srinivasan (DC Circuit), and Paul Watford (9th Circuit). 

Senate Judiciary Committee hearings:


The Federal Judiciary:

Supreme Court:  The Supreme Court unanimously dismissed a lawsuit by the Texas Attorney General attempting to overturn the election results in four states.  Andrew McCarthy explains why the suit was frivolous.

Trump:  Conservative judges, including those appointed by President Trump, have rejected his post-election lawsuits.  This refutes the claims that they are partisans who rule for policies they personally prefer.

Alito:  Justice Alito recently gave a speech to the Federalist Society.  He criticized the court's lack of vigilance in protecting religious liberty and the Second Amendment.  He implicitly criticized Chief Justice Roberts on those issues.

Breyer:  Justice Stephen Breyer says he will retire "eventually".

Federal Circuit:  The Federal Circuit never got a Trump nominee.  This circuit is less partisan, as it deals with patent law and some suits against the government.  The article is mainly concerned with the race of potential nominees, not their qualifications.

2nd Circuit:  Senior Judge Ralph Winter died on December 8 at age 85.  Reagan appointed him to the 2nd Circuit in 1981.  He took senior status in 2000.

5th Circuit:  Senior Judge Thomas Morrow Reavley died on December 1 at age 99.  He was on the Texas Supreme Court (1968-1977), and Carter appointed him to the 5th Circuit in 1979.  He took senior status in 1990.  He married fellow 5th Circuit judge and Carter appointee Carolyn Dineen King in 2004.

5th Circuit:  Trump's three appointees to the 5th Circuit representing Texas, Don Willett, James Ho, and Andy Oldham, are among the most conservative judges on the appeals courts.

Senior Status declarations:
WD-AR: Paul K. Holmes III (Obama) 11/10

State Supreme Courts:

Alaska:  Alaska Supreme Court Chief Justice Joel Bolger will retire in June 2021.  His replacement will be appointed by Governor Mike Dunleavy.  In July 2020, he appointed Dario Borghesan, who is (apparently) the only conservative on the five-member court.

Georgia:  Governor Brian Kemp announced the appointment of Fulton County Superior Court Judge Shawn Ellen LaGrua to serve on the Supreme Court of Georgia on December 1.  She was previously Inspector General for the Georgia Secretary of State’s Office, DeKalb County Solicitor General, and a prosecutor in Atlanta.  She replaces Justice Keith Blackwell, who retired in November.

Illinois:  Judge Robert Carter of the 13th Judicial Circuit Court was selected by the Justices of the Illinois Supreme Court to fill the district 3 seat of Justice Thomas Kilbride, who lost a retention election.  Carter was elected as a D.  He is 74, and has pledged not to seek election in 2022.

New Mexico:  Governor Michelle Lujan Grisham appointed Julie Vargas to the Supreme Court, filling the seat of Justice Judith Nakamura, who retired.  Vargas was a judge of the New Mexico Court of Appeals since her election in 2016.

North Carolina:  Supreme Court Chief Justice Cheri Beasley conceded the election to Republican Justice Paul Newby.  Rs won all three races in 2020.  The court's breakdown is now 4 D, 3 R.

Ohio:  R Ohio Supreme Court Justices Sharon Kennedy and Pat DeWine are considering running for Chief Justice.  Chief Justice Maureen O’Connor is age-limited in 2022.  Kennedy's term ends in 2026, while DeWine's term ends in 2022. D justices Michael Donnelly and Jennifer Brunner are rumored to be interested in the seat.

Rhode Island:  Governor Gina Raimondo named Melissa Long and senator Erin Lynch Prata to the Rhode Island Supreme Court.  Long is a Superior Court Judge since 2017, and was previously deputy secretary of state.  Prata's nomination was controversial due to a state ethics law that requires a one year hiatus before a sitting legislator can take a state job.  However, the state Ethics Commission voted 5-2, against the advice of its lawyers, to allow Lynch Prata to apply without waiting a year.  Long will succeed Supreme Court Justice Francis Flaherty, who retired December 31, and Prata will succeed Justice Gilbert Indeglia, who retired in June.  The Rhode Island Supreme Court had all R appointees, despite not having an R governor since 2010.

Texas:  Governor Greg Abbott appointed Houston judge Jesse McClure to the Texas Court of Criminal Appeals, where he will be the only black judge.  McClure was appointed to his current job in 2019 but lost election in 2020.  He replaces Judge Michael Keasler, age 78, who is age-limited.

Wisconsin:  Justice Brian Hagedorn of the Wisconsin Supreme Court has ruled differently than his three R colleagues on several high-profile issues.  Depending who you ask, he is either following the law in contrast to his more partisan colleagues, or engaged in a Roberts-style effort to appear above the fray.

Numbers and Trivia:

Party Line Votes:  Only 17 of President Trump's 54 appeals court judges (31%) got any support from Ds on the Senate Judiciary Committee.  Perhaps President Biden's nominees will receive similar treatment from Rs on the Senate Judiciary Committee.

Chief Judges:  The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4, 6, 9), W (1, 2, 3, 5, 7, 8, 10, 11, Fed), and Obama (DC).  There are four chief judges that will change in 2021.  They are expected to be
6th Circuit (May 23) R. Guy Cole (Clinton) -> Jeffrey Sutton (W)
Federal Circuit (May 24) Sharon Proust (W) -> Kimberly Ann Moore (W)
9th Circuit (August 14) Sidney Thomas (Clinton) -> Mary Murguia (Obama)
3rd Circuit (December 4) Brooks Smith (W) -> Michael Chagares (W)
There could be more, and the dates could be sooner, if any chief judge steps down early.


Senior status:  Harsh Voruganti of the Vetting Room reviews the history of taking senior status upon confirmation of a successor, an increasingly common practice. 

Bench Memos (National Review)
The Vetting Room

Wednesday, December 23, 2020

Did Dominion Flip Votes in Antrim County?

Since election night 2020, controversy has swirled around Antrim County in northwest Lower Peninsula.  The reported vote totals showed Joe Biden handily winning the county, and many people (including me) immediately realized that this could not be correct.  The county clerk retracted the results and ordered a retabulation, which produced a reasonable result.  (Trump's margin declined by 233 votes compared to 2016.)

This launched a conspiracy theory about Dominion Voting Systems, a manufacturer of voting machines and vote counting machines.  Antrim County Clerk Sheryl Guy (R) has explained the problem as follows:
Guy has said Biden appeared to be winning in early, unofficial county results because of a problem that developed when she attempted to update Election Source software on isolated tabulators. Because the update was not applied to all tabulators, results were transposed as they were pulled from the tabulators into the county's main voting software.
I don't understand exactly how this happened, but this sounds like the sort of thing that could happen if a program is not written to account for user errors.

There are all sorts of wild claims about Dominion, from who owns it to how its program in written.  I won't try to evaluate these claims.  Perhaps their software is badly designed or has vulnerabilities.  Even if this were the case, it would not mean that the count for this election were necessarily wrong.  Fortunately, it is not necessary to analyze the machines themselves to know whether they produced an accurate count.

It doesn't make much sense to claim that the initial vote count was the result of vote-flipping.  If the expected margin is off by 40% or so, this will certainly attract attention, and likely lead to a recount, which is what happened.  Vote-flipping could only change the margins by a single digit percentage and remain plausible.

Furthermore, the vote totals in Michigan do not support the claim that Dominion was flipping votes.  I analyzed Michigan' vote totals by county, comparing counties that use Dominion to those that don't.  I found that Trump actually improved from 2016 in counties that use Dominion machines and declined in counties that don't use Dominion machines.  The data provide no evidence to support the theory that Dominion machines flipped votes from Trump to Biden.

A report by Russell Ramsland of the "Allied Security Operations Group" claims that Dominion machines are "intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results."  The report was commissioned due to a (supposedly) unrelated lawsuit over a local marijuana ordinance.  Judge Kevin Elsenheimer, an R former state Republican rep, ordered the release of the report.

The report was disputed by several experts.  One is Christopher Krebs, the first director of the Cybersecurity and Infrastructure Security Agency.  Krebs was appointed by President Trump in 2018, and was fired after he disputed Trump's claims of fraud.  He said that ASOG "misinterpreted what it saw in the computer coding and used it to "spin" allegations that voting machines couldn't be trusted."
"I'm seeing these reports that are factually inaccurate continue to be promoted. That's what rumor control is all about. That's what I'm continuing to do today, based on my experience and understanding and how the systems work," Krebs said. "We have to stop this. It's undermining confidence in democracy."
I won't try to evaluate the report itself, since it is outside my area of expertise.  However, I can consider the credibility of the person who wrote the report.  Russell Ramsland has previously filed affidavits in lawsuits alleging fraud in the 2020 presidential election.  One affidavit claimed that various townships in Michigan had over 100% turnout.  The townships were actually in Minnesota, not Michigan, and turnout was not over 100%.  Another affidavit claims that turnout in detroit was 139%, when it was actually 51%.  It also claims false turnout rates for many other jurisdictions in Michigan.

All the controversy led the Michigan Bureau of Elections and Antrim County to conduct a hand recount in Antrim County.  It found a 12 vote gain for Trump, which is well within the range of error that you would expect when a few people don't mark the ovals clearly.  Thus the corrected vote count was accurate.  There was no vote-flipping in Antrim County.

This raises the question of why the Trump Campaign never asked for a recount in Antrim County.  Indeed, they never asked for a hand recount anywhere that uses Dominion machines.  They did ask for recounts in Milwaukee and Dane County in Wisconsin, which use a different vendor.  The Wisconsin recounts found no vote-flipping.  In Georgia, a hand recount was conducted automatically; it was not requested by the Trump campaign.  The recount found some human error; it did not find any vote-flipping.

So why didn't the Trump campaign request any hand recounts in jurisdictions that use Dominion vote counting machines?  The inescapable conclusion is that they don't believe that vote-flipping happened.  Is it possible that the Trump campaign would like people to believe that the election was stolen, and it doesn't want to produce evidence contrary to that belief?

Wednesday, December 16, 2020

Can a President Lose While His Party Gains House Seats?

Steve Deace recently claimed (1:32) that in the past 100 years before 2020, only one incumbent president lost reelection while his party gained house seats.  This claim is true, but highly misleading.  Only four incumbent presidents have lost since 1916--Hoover, Carter, HW Bush, and Trump.  (Ford, while technically an incumbent, was never elected.)  In 2 of those 4 elections (1992 and 2020), the president's party gained house seats.  The 1932 and 1980 elections were landslides, so it is not surprising that the president's party lost house seats then.  (In 1976, the Ds gained just 1 house seat, so this doesn't add much to the pattern.)

So the thing that almost never happens actually happened 2 out of 4 times!  Something that happens half the time is not surprising!  This is the sort of factoid that is cited as evidence of election fraud, but doesn't prove anything.  It sounds impressive due to the length of time (100 years!) but there are actually only 4 relevant elections, so the denominator of the fraction is small.

It should also be noted that whether a party gains or loses house seats depends greatly on the previous (midterm) election.  In 2018, Rs lost 42 house seats, so it is not surprising that Rs gained some in 2020.

Sunday, December 13, 2020

Was There are Red Wave Downballot in 2020?

Some people are arguing that the 2020 election results were a "red wave" aside from the presidential election, and this indicates voter fraud in the presidential election.

Even if this were true, it would not prove voter fraud.  It could just be that some segment of normally R voters refused to vote for the president, but still voted R downballot.

But was 2020 a red wave?  In the senate, Rs lost two seats (AZ, CO) and picked up one (AL) for a net loss of one (pending the outcome of the Georgia runoffs).  The results of the senate races and the presidential race were the same in all but one state.  The one exception was Maine, where Susan Collins is a popular moderate incumbent who regularly outperforms the top of the ticket.

Comparing R senate candidates' margins to Trump doesn't reveal an obvious pattern.  Trump did better in some states, while R senate candidates did better in others.  Patrick Ruffini made a map illustrating the differences.

In particular:

Trump did better than R incumbents in: AZ, ID, IA, KY, MS, MT, OK, SC
R incumbents did better than Trump in: AK, AR, CO, GA, LA, ME, NE, NC, SD, TX, WV
Trump did better than R challengers in: AL, DE, KS, MA, NH, NJ, OR, RI, VA
R challengers did better than Trump in: IL, MI, MN, NM, TN, WY

In the US house of representatives, Rs picked up 14 seats (CA-21, CA-25, CA-39, CA-45, FL-26, FL-27, IA-1, IA-2, MN-7, NM-2, NY-11, OK-5, SC-1, UT-4), and lost 3 seats (GA-7, NC-2, NC-6), none incumbents, for a net gain of 11 seats (with NY-22 still undecided).  It appears that Biden won 224 seats and congressional Ds won 222 seats.  There were some Trump/D seats and some Biden/R seats.  Left Coast Libertarian at RRH Elections notes that:

Joe Biden got 80,048,633 votes. Congressional Democrats got 76,298,374.

Donald Trump got 73,902,347 votes and Republicans got 72,542,282.

So Democrats got 95% of Biden’s vote total and Republicans got 98% of Trump’s vote total. If we average them Democrats underperformed by about 1.1 million votes. That’s a really small number of votes. It shouldn’t be unexpected that one party would do slightly better.

So how is it possible that Rs picked up seats?  Rs picked up seats RELATIVE TO 2018.  In 2018, Rs lost 42 seats from 2016.  Thus Rs lost house seats since 2016, the last time Trump was on the ballot.  Note that all but two seats that Rs picked up in 2020 were seats that Rs lost in 2018.

Some have noted that Rs won all tossup house races (according to the New York Times).  But this just indicates that the election raters did a bad job, likely due to relying on bad polls.  The conservative-leaning RRH Elections did much better, though still leaning too D.  My own ratings of Michigan elections were very good, as I did not rely much on polls.

Rs picked up two state house chambers, both in New Hampshire.  This was apparently due to the popularity of incumbent R governor Chris Sununu, who campaigned heavily for R state legislative candidates.  Rs flipped a modest number of state legislative seats, further picking up rural seats in states like KY and WV, and flipping back some seats that were lost in 2018.

Overall, the 2020 election results were slightly worse than in 2016, but significantly better than in 2018.  There was no inconsistency between the presidential election and downballot results in 2020.

Thursday, December 10, 2020

Do Incumbent Presidents Who Increase Their Votes Always Win?

One claim going around is that for the past 150 years, no incumbent president has increased his raw vote total and lost (and this suggests voter fraud).

In the past 150 years, there were 38 presidential elections.  In 19 of those elections, there was no president running for reelection (an incumbent who was not elected cannot run for reelection).  Since the claim is only about incumbent presidents, we have to discard those.

That leaves 19 elections with an incumbent running for reelection.  Incumbent presidents won 12 times.  Since the claim is about incumbents who lost reelection, we have to discard these also.

In the past 150 years, only seven incumbent presidents have lost reelection in the general election.  (This does not count Gerald Ford, who was not elected initially.)  Presidents Taft, Hoover, Carter, and George HW Bush all lost in landslides.  The claim is only really relevant to incumbent presidents who lost narrowly, which includes Grover Cleveland, Benjamin Harrison and Trump.  A trend that only holds for three elections isn't much of a trend.

There is one more problem.  THE CLAIM IS FALSE.  Grover Cleveland got 4,914,482 votes in 1884, when he won, and 5,534,488 votes in 1888, when he lost.  Sadly, it seems that people don't bother to check claims like this before passing them on.

Tuesday, December 08, 2020

Polling: What Went Wrong?

People who want to know the future have many tools.  There are crystal balls, fortune cookies, horoscopes, and just a bit more credible, public opinion polls.  The 2020 election featured a spectacular failure of the polling industry.

RealClearPolitics catalogues all major (non-candidate) polls.  They also average the results of all recent polls, which effectively increases the sample size and reduces the margin of error.  Their national polling average was Biden +7.2, while the popular vote was Biden +4.5, an error of 2.7%.  The results in many state polls were even worse.  In Ohio, the error favored Biden by 7.2%.  In Iowa, it was 6.2%.  In Wisconsin, it was 6%.  Overall, Trump outperformed the polls in 33 states.  Curiously, Biden did overperform the polls in a few states, including Minnesota.

A review of how polling works is in order.  It is neither possible nor practical to ask everyone in a population their opinion.  Thus a pollster seeks a sample of the population and tries to infer the views of the whole population based on the sample.  For this to work, the sample should be randomly selected, that is, every possible sample should be equally likely to be picked.  A randomly selected sample is unlikely to match the population exactly, but there are well-understood mathematical laws that describe how far from correct the results are likely to be.  This kind of error is known as sampling error--error caused by a sample not matching a population.  The margin of error is the margin on either side of the estimate that we can be 95% confident contains the true value.

In practice, however, the sample a pollster obtains is not random.  Nobody can be forced to participate in a poll, and if even one person declines, the sample is not random.  It used to be the case that most people answered the phone and talked to pollsters.  But over time, response rates declined due to telemarketers, robocalls, answering machines, caller ID, and cell phones.  Now response rates typically range between 1% and 5% of people called.  The sample a pollster obtains is usually wildly unrepresentative of the population.

How do pollsters deal with this?  They ask respondents various demographic information (race, sex, political party, education).  Then they weight the results so they match the presumed demographic breakdown of the electorate.  But they don't actually know this breakdown.  Pollsters make an educated guess based on demographics of past elections (which can be estimated, but not known exactly) and their beliefs about what the electorate will look like.

Essentially this makes the poll itself an educated guess.  Educated guesses are often close to accurate, and they are more accurate than the sort of wishful thinking that predominates among political ideologues.  But educated guesses can be wrong, sometimes wildly so.

This cycle, it appears that many Trump supporters didn't answer their phones, or refused to participate in polls.  This skewed the samples, even with the adjustments that pollsters made.  But why did Trump supporters refuse to talk to pollsters?  Some may simply hate the media.  Others may be concerned about admitting their views, even in a supposedly anonymous poll.

This phenomenon is known as social desirability bias.  One previous example of this is the Bradley effect, in which voters were supposedly more likely to say they would vote for a black candidate than to actually do so.  This effect remains controversial, however.

Researchers try to account for social desirability bias in various ways.  One way is to ask people what their friends or neighbors think about the election.  This is the methodology used by Trafalgar, a pollster who found much better results for President Trump than other pollsters.  The problem of social desirability bias applies to issue polls, as well.

Polls can be useful when appropriate precautions are taken, but other indicators of public sentiment should not be ignored.

Thursday, December 03, 2020

Does High Voter Turnout Prove Voter Fraud?

One argument that there was mass voter fraud in the 2020 election is that the overall number of votes is too high.  The argument often includes the fact that Joe Biden got 80 million votes in 2020, while Barack Obama got 69 million votes in 2008.  How can this be explained?

1. Population growth.  The US population is not constant.  In 2008, there were 304 million people; in 2020 there are 331 million, according to the census bureau.  That's 27 million more people.  The popular vote went from 131 million to 159 million over the same time period.  That's an increase of 28 million votes.  Turnout was slightly higher than 2008, but not much.  Population growth almost entirely explains the change.

2. Vote by mail.  Due to COVID, many states loosened their rules and promoted voting by mail.  Some Secretaries of State (including SOS Benson) mailed absentee ballot applications to everyone.  Their goal was to increase turnout (and help Ds), and it worked.

3. Likeability.  Who do voters dislike more, Hillary Clinton or Joe Biden?  Most likely, Hillary.  Some D-leaning voters refused to vote for Hillary but decided Biden was good enough.

4.  Trump.  The election was a referendum on Trump.  Many people strongly support the president, and many strongly oppose him.  Biden was a vessel for the latter group.  Even aside from COVID, there was no reason for anyone to go to his rallies.

By the way, there is nothing unusual about this historically.  In 2000, Al Gore got 51 million votes (48.4%).  Four years later, John Kerry got 59 million votes (48.3%).  Kerry didn't have that many enthusiastic supporters, but the left hated George W. Bush.  Ralph Nader got 2.7% in 2000, but only 0.4% in 2004.  Many third party voters saw the election as a referendum on the incumbent.  It appears the same happened this year.

Presumably, proponents of the high turnout theory believe that millions of illegal votes were added for Biden.  Absentee ballot fraud seems to be the most common theory for how this could happen.  Breaking down the turnout increase by state casts further doubt on this theory.

Turnout was up in every state from 2016 to 2020.  The turnout percentage hit a 40-year high in 44 states.  Biden 2020 had a higher raw vote total over Hillary 2016 in every state that has completed its vote count.  Trump's margin declined in at least 35 states, and increased in only five (AR, FL, HI, NV, UT), with 10 left to finalize their results.  If the turnout increase was due to fraud, the fraud occurred all across the county, including in states that were not at all competitive.

I calculated the percentage increases in turnout by state (CA, IL, MS, NJ, NY not included due to lack of finalized vote totals).  The largest percentage increase was in Hawaii, up 34% from 2016.  Hawaii is a deep blue state with no competitive statewide races.  The second largest increase (32%) was in Utah, a deep red state with no competitive statewide races, and only one competitive congressional race.  The top ten percentage increases are 

HI 34%
UT 32%
AZ 30%
TX 26%
ID 26%
NV 25%
WA 23%
GA 21%
TN 21%
MT 21%

Only three of these states (AZ, NV, GA) were swing states (four if you count Texas).  The state with the smallest increase was Louisiana, which was dealing with the aftermath of a hurricane.

Were Ds conducting massive voter fraud operations in safe red states?  It seems unlikely.  Note that this does not mean that there was no absentee vote fraud, only that a turnout increase, by itself, does not prove it.

Monday, November 30, 2020

December 2020 Judiciary News

Leave no vacancy unfilled.

Nominations, Hearings, Confirmations:

Lame Duck:  Senator Feinstein has called on Republicans to stop processing judicial nominations during the lame duck session.  They declined.

Biden:  Dana Remus will be Biden’s White House counsel.  She was a clerk for Justice Alito, and supported the nominations of fellow clerks Michael Park and Andy Oldham.  A fellow clerk says that Remus “never held herself out as especially ideological”.

Biden:  President-elect Biden's team is supposedly vetting potential judicial nominees.  It isn't clear for which positions, since there are very few vacancies at present.  They are supposedly looking for candidates with "demographic diversity, but also different backgrounds", so finding candidates who fit their criteria could slow the process.

Biden:  How will senate Rs treat Biden's judicial nominees?  It is expected that there will be some resistance, but it isn't clear how much.

Feingold:  The leftist American Constitution Society, run by former Senator Russ Feingold, is sending a list of prospective judicial nominees to Biden.  It remains to be seen whether their list will be put in the shredder by Biden or McConnell.

Feinstein:  Senator Dianne Feinstein will step down as top Democrat on the Senate Judiciary committee.  She faced criticism from the left of her handling of the Kavanaugh and Barrett nominations.  It isn't clear whether she stepped down voluntarily or was forced out.

Durbin:  Senator Dick Durbin will seek to become the Democrat on the Senate Judiciary committee.  He seems likely to get the job.  Some progressive groups are unhappy, and would prefer Sheldon Whitehouse get the job.

New Nominations:

Senate Judiciary Committee hearings:
December 3 (business): Thomas Kirsch (7th Circuit) and four district court nominees are likely to be held over.


The Federal Judiciary:

7th Circuit:  Judge Joel Flaum took senior status on November 30 at age 84.  He was appointed to ND-IL by Ford in 1974 and to the 7th Circuit by Reagan in 1983.  He has a moderate record.  He was the longest-serving active appeals court judge.  That honor will now go to Pauline Newman of the Federal Circuit.

9th Circuit:  Many liberal judges have been waiting for the end of Trump's presidency to take senior status.  A 9th Circuit judge says “I anticipate quite a few people doing things to enter senior status,” but “they might want to wait for a Democratic Senate, although I don’t know whether that ever will happen.”  Another judge suggests that they should make taking senior status contingent on confirmation of a successor.

D-MD:  Judge Richard Bennett of the U.S. District Court for the District of Maryland is taking senior status upon confirmation of his successor. He was appointed by George W. Bush in 2003.

State Supreme Courts:

Retention Elections: 
Alaska:  Liberal Susan Carney won 63%.
Florida: Conservative Carlos Muniz won 66%.
Illinois:  Justice Thomas Kilbride got only 56%, failing to win meet the 60% threshold.  The other justices will choose a replacement for the next two years.

Multi-candidate elections:
Illinois:  David Overstreet (R) won 63% against Judy Cates (D) for an open R-held seat.
Kentucky:  Conservative Circuit Judge Robert Conley defeated D state rep Chris Harris 55% to 45%.
Louisiana:  Judge Jay McCallum (R) won the district 4 seat with 57% over an (apparently) less conservative R.  In district 7, Judge Piper Griffin and 4th Circuit Court of Appeal Judge Terri Love (both D) head to a runoff on December 5.
Michigan:  Chief Justice Bridget Mary McCormack (D) was easily reelected with 32%.  Liberal D attorney Elizabeth Welch won the second seat with 20%.  R prosecutor Mary Kelly was third with 17%.  The court now is 4D, 3R.
Mississippi:  Conservative Justice Kenny Griffis won 51% over liberal Judge Latrice Westbrooks.  Justice Josiah Coleman was also reelected with 63%.
Montana:  R-leaning Justice Laurie McKinnon defeated trial lawyer Mike Black 57-43.
Nevada:  R-supported Eighth Judicial District Court judge Douglas Herndon beat D state rep Ozzie Fumo 47-36 (with the rest going to none of the above).
North Carolina:  Court of Appeals judge Phil Berger Jr. (R) defeated Lucy N. Inman (D) with 51%, and former state senator Tamara Barringer (R) defeated Justice Mark A. Davis (D) with 51%.  Justice Paul Martin Newby (R) leads Chief Justice Cheri Beasley (D) by 433 votes as a recount continues.
Ohio:  Liberal D former SOS Jennifer Brunner won 55% against Justice Judi French (R).  Justice Sharon Kennedy (R) won 55% against Judge John O’Donnell (D).  The Ohio Supreme Court will be 4R, 3D.
Texas:  All R incumbents were reelected with 53% to 55% of the vote.

New Hampshire: Republican Governor Chris Sununu was reelected, and Rs won a majority on the state Executive Council, which will allow the NH Supreme Court vacancy from 2019 to finally be filled.

Colorado:  Governor Jared Polis appointed Maria Berkenkotter to the Colorado Supreme Court.  She replaces retiring Chief Justice Nathan Coats, the last Republican-appointed justice on the court.  Justice Brian Boatright will be the new chief justice.

Kansas:  Governor Laura Kelly appointed Judge Melissa Standridge to the Kansas Supreme Court, filling the vacancy left by former Justice Carol Beier.  Standridge served on the Kansas Court of Appeals since 2008.  She also served as chambers counsel to U.S. District Magistrate Judge David Waxse and in private practice.  This is Kelly’s third appointment.

Massachusetts:  Governor Charlie Baker appointed Kimberly Budd as chief justice of the court, replacing Chief Justice Ralph Gants, who died at age 65.  She has been a justice since 2016.  Baker nominated Boston Municipal Court Judge Serge Georges Jr. to replace Budd.  He was nominated to the lower court by Deval Patrick.  Baker also nominated Appeals Court Associate Justice Dalila Argaez Wendlandt to fill the seat of Justice Barbara Lenk, who is age-limited in December.  She clerked for Judge John Walker Jr. (2nd Circuit), and was appointed to the appeals court by Baker in 2017.

Numbers and Trivia:

Circuit Judges:  The new circuit justice assignments for Supreme Court justices have been announced.  They hear emergency appeals from lower courts in these circuits.
1 Breyer
2 Sotomayor
3, 5 Alito
4, DC Roberts
6, 8 Kavanaugh
7 Barrett
9 Kagan
10 Gorsuch
11 Thomas
My prediction from October was only off on the 8th Circuit.


Kennedy:  Ilya Shapiro reviews the history of Anthony Kennedy's confirmation and his jurisprudence on the court.

Bench Memos (National Review)
The Vetting Room
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