Sunday, May 31, 2020

June 2020 Judiciary News

As the nation begins to reopen, there is plenty of news in the American judicial system.

Nominations, Hearings, Confirmations:

DC Circuit:  The leftist group Demand Justice has tried to claim a conspiracy between Senator McConnell and retiring judge Thomas Griffith. McConnell has reportedly been encouraging conservative judges who are eligible to take senior status. District judge Justin Walker, a McConnell protege, has been nominated to Griffith’s seat. But there is no evidence that Griffith got anything. Further, Griffith has been planning to retire for a year due to his need to care for his sick wife.

DC Circuit:  Demand Justice filed a complaint with new DC Circuit chief judge Sri Srinivasan, who accepted it despite Demand Justice’s failure to set forth its complaint under penalty of perjury. He asked Chief Justice John Roberts to transfer the complaint to another circuit for evaluation. Roberts denied the request, and it was then dismissed by judge Henderson.  Srinivasan's behavior may be influenced by a desire for a Supreme Court appointment.

DC Circuit:  Justin Walker got a rare WQm/Qmin/NQmin rating from the ABA.  The ABA gave Walker an NQ for lack of trial experience when rating him for the district court.  Now that he is a district court judge that is less of an issue.  Also, his background as a law professor is a better fit for the appeals court.  This deprives the left of a talking point opposing his nomination.

5th Circuit:  The Judiciary Committee held a hearing on Cory Wilson's nomination for the 5th Circuit (MS).  He received a WQ from the ABA, an upgrade from the Q he received for his district court nomination.  D Senators attacked him for his opposition to Obamacare and support for voter ID laws. He held up well and should pass the committee by a party line vote.

Guardian:  The Guardian, a far-left British paper, is running a series of articles attacking Trump's judicial nominees.

New Nominations:
D-NM:  Fred Federici--Assistant US Attorney
D-NM:  Brenda Saiz--private practice

Senate Judiciary Committee hearings:
June 4 (business):  Justin Walker is likely to be voted out of committee.

The Senate is expected to confirm John Leonard Badalamenti (MD-FL) and Drew Tipton (SD-TX) the week of June 1.

The Federal Judiciary:

Judicial retirements:  The GOP may, or may not, be pressuring conservative judges eligible for senior status to retire.  Aside from media reports making this claim, the only evidence seems to be a spreadsheet created by the Article III project, a group fighting for confirmation of conservative judges.  Most judges did not comment; one who did said
"I hope to die on the bench," said one federal judge on the list who requested anonymity to say there'd been no outreach from McConnell or anyone else about their job plans.
Federalist Society:  The Judicial Conference of the United States Committee on Codes of Conduct wants to bar judges from being members of the Federalist Society, while claiming that the ABA is fine.  In March, 210 federal judges wrote a letter protesting the Draft Advisory Opinion.  They point out that the ABA engages in advocacy and lobbying, while the Federalist Society does not.  They also ask whether members of the ABA recused themselves when drafting the opinion.

Federalist Society:  The primary authors of the letter were Greg Katsas (DC Circuit), Andy Oldham (5th), William Pryor (11th), and Amul Thapar (6th).  The 210 judges are primarily Republican appointees, but include some appointees of democrats as well.  The appeals court judges in this category are José Cabranes (2nd), Julie Carnes (11th), Frank Hull (11th), Cheryl Krause (3rd), Stanley Marcus (11th), and Richard Tallman (9th).  All but Krause are generally considered right of center.  The only Trump appeals court judges to not sign the letter are Ralph Erickson (8th), Jonathan Kobes (8th), Eric Miller (9th), Marvin Quattlebaum (4th), and Amy St. Eve (7th).

Federalist Society:  The letter was leaked shortly before Justin Walker's committee hearing, and a New York Times article framed the issue around his nomination in a very biased way.  Senator Sheldon Whitehouse, who is known for promoting conspiracy theories about the Federalist Society, asked Walker about the letter at his nomination hearing.

9th Circuit:  Environmentalists are upset with the Trump appointees to the 9th circuit.  (For bonus points, see how many errors you can spot in this article.)

State Supreme Courts:

Alaska:  The Alaska Judicial Council selected four finalists for the Supreme Court vacancy caused by the retirement of Craig Stowers, effective June 1.  They are "Superior Court Judges Dani Crosby, Jennifer Stuart Henderson and Yvonne Lamoureux, as well as chief assistant attorney general Dario Borghesan".  Borghesan seems to be the only candidate with conservative bonafides, as he worked for AGs Dan Sullivan and Kevin Clarkson.  The other three were all appointed to the Superior Court  by left-leaning independent Gov. Bill Walker.  Alaska, along with Kansas, Oklahoma, and Missouri, is a red state with a liberal Supreme Court due to its "merit-based" judicial selection.

Florida:  Governor Ron DeSantis finally made two appointments to the Florida Supreme Court, after passing his second, self-imposed deadline of May 1.  One is John Couriel, a Miami lawyer went to Harvard, clerked for a district judge, and served as an AUSA. He is Hispanic (Cuban). He was a finalist last time, but was not chosen.

The other appointee is Renatha Francis, who went to Florida Coastal University Law School, and served as a trial judge in Miami and Palm Beach. She is a black woman (born in Jamaica). Many black leaders had demanded a black appointee. She has to wait until September to meet the eligibility requirements.  The appointments were cheered by conservatives and jeered by liberals.

Georgia:  The Georgia Supreme Court has ruled 6-2 that Governor Brian Kemp can appoint the successor to Justice Keith Blackwell, who will leave the Georgia Supreme Court in November. He was scheduled to face a retention election in November, but state law allows the Governor to appoint a replacement who will not face retention until later. Former U.S. Rep. John Barrow (D) and former state Rep. Beth Beskin (R) wanted to run for the seat. They filed suit claiming that cancelling the election is illegal since Blackwell is still on the court. After a local court denied the request, they appealed to the Supreme Court.  They demanded that all eight Supreme Court justices recuse themselves; five did.  Barrow and Raskin were previously candidates for the seat of retiring judge Robert Benham, but that election was also cancelled when Benham resigned early.  Barrow is now pursuing a similar case in federal court.

Georgia:  Former state Rep. Beth Beskin (R) (14-18) is challenging incumbent Georgia Supreme Court Justice Charlie Bethel in the June 9 primary.  Beskin has twice tried to run for open seats on the court, only to have the elections cancelled when the incumbents resigned early and they were filled by appointment.  Bethel was a state senator (10-16) before appointment to the Georgia Court of Appeals.

Minnesota: Governor Tim Walz appointed Nobles County District Judge Gordon Moore to the Minnesota Supreme Court.  He replaces retiring Justice David Lillehaug.  Moore previously worked for Attorney General Skip Humphrey (D) and was appointed to his current position by Mark Dayton (D).  Notably, Moore lives in rural southwest Minnesota.  The Minnesota Supreme Court has five D appointees and two R appointees.

West Virginia:  The (officially nonpartisan) election of three seats will occur on June 9.  Incumbent Tim Armstead (R), a former state House Speaker, faces two challengers.  Incumbent Margaret Workman (D), who managed to get the state judges to issue an injunction against her impeachment trial (!) is retiring.  There are four candidates for her seat.  Appointed incumbent John Hutchison (D) is seeking election against two challengers.  Good luck figuring out who is conservative from media profiles of the races (1 2 3).

Lockdowns:  Many states have been grappling with the issue of lockdowns imposed by executive order.  Some courts have upheld the orders, while others have been struck down.  In one example of the latter, the Wisconsin Supreme Court struck down Governor Tony Evers' stay-at-home order.  The ruling was 4-3, with conservative Brian Hagedorn joining the two liberals in the minority.

Numbers and Trivia:

Trump:  The Brookings Institution compares Trump to previous presidents with regard to the number and percentage of judicial appointments.

D-ND:  The last time a North Dakota district judge was appointed by a D president was in 1941.

ED-NY:  Diane Gujarati was nominated to the Eastern District of New York on May 15, 2018 (over two years ago) and has not yet received a vote.  She was previously nominated on September 13, 2016 by President Obama to the same position.

As of June 3, William Pryor will be the Chief Judge of the 11th Circuit, taking over from Edward Carnes.  The Presidents who appointed chief judges of the 13 appeals courts are Clinton (2, 4, 6, 7, 9), W (1, 3, 5, 8, 10, 11, Fed), and Obama (DC).

Trump has appointed nine black judges to district courts. Here is the list, along with my best understanding of their views.
SD-AL: Terry Moorer – nonpartisan
ED-VA: Rossie Alston – conservative
SD-FL: Rodney Smith – nonpartisan
WD-TX: Jason Pulliam – conservative
ED-PA: John Younge – liberal
ND-TX: Ada Brown – nonpartisan
ED-MI: Stephanie Davis – liberal
ED-NC: Richard Myers – conservative
WD-OK: Bernard Jones – nonpartisan

There is one more who has been nominated.
ED-VA: Roderick C. Young – nonpartisan

Bench Memos (National Review)
The Vetting Room
FedJudges (Twitter)
Senate Cloakroom (Twitter)
Senate Judiciary Committee
ABA Judicial Ratings
Wikipedia-Trump Judges
Wikipedia-US Appeals Courts
Senior Status Spreadsheet
Future Judicial Vacancies
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia-State Supreme Court Vacancies
The Supreme Courts
2020: March April May

Wednesday, May 27, 2020

Influence peddling, Hypocrisy, and Lies

Governor Whitmer's husband recently tried to cut the line to get his boat out of storage by using his wife's position.  The line existed due to the Governor's lockdown orders.  This was exposed by a Facebook post by the owner of the storage company.

Whitmer’s spokespeople initially tried to avoid commenting on this story, saying
“Our practice is not to discuss the governor’s or her family’s personal calendar/schedules. And we’re not going to make it a practice of addressing every rumor that is spread online,” Brown said. 
“There’s been a lot of wild misinformation spreading online attacking the governor and her family, and the threats of violence against her personally are downright dangerous,” she added.
Of course, it isn’t a rumor when the person making the allegation knows whether it is true or not. The governor’s staff also claimed it was false.
“But the lawmaker said he eventually deleted it after the governor’s office reached out to the staff of Senate Majority Leader Mike Shirkey, R-Clarklake, asking for the post to be removed and contending the comments were false.”
Now, the Governor has admitted the story is true, but claimed it is a joke.
“My husband made a failed attempt at humor last week when checking in with a small business that helps with our boat and dock up north,” Whitmer said at a press conference Tuesday. “Knowing it wouldn’t make a difference, he jokingly asked if being married to me might move him up in the queue. Obviously with the motorized boating prohibition in our early days of COVID-19, he thought it might get a laugh. It didn’t.”
But which part was a joke? He was the governor’s husband, and was asking for special treatment.

Wednesday, May 13, 2020

2020 Michigan State House Races

Last updated August 2, 2020.

Cross-posted at The Western RightRight Michigan, and RRH Elections.

All 110 seats in the Michigan House of Representatives will be up for election in November. Republicans won a 63-47 majorities in 2014 and 2016, and a reduced 58-42 margin in 2018. There are 25 open seats, 12 held by Republicans and 13 held by democrats. There are 22 open due to term-limits, 1 just due to seeking another office, 1 due to death, and 1 pure retirement.

Democrats are hoping to take control of the state house. They may benefit from anti-Trump enthusiasm.

In 2014 and 2016, there were many contests between moderate and conservative factions in the house GOP, won by the conservatives narrowly in 2014 and more decisively in 2016.  These battles died down in 2018, and conservative Jason Wentworth is the presumptive next house GOP leader.  There are still likely to be some ideological battles.

Republican Michigander has a profile of the Michigan state house focusing more on district demographics.

The following lists district number, current incumbent, geographic description, 2012, 2014, 2016, and 2018 state house results, 2012 Romney %, 2016 Trump % (if known), and political rating.  Candidates who filed a reporting waiver, indicating that they will not raise more than $1000 (and hence are not serious) are typically omitted.  The complete candidate list and recent fundraising numbers are available here:

2020 Michigan Primary Candidate List
July 2020 Michigan State House Fundraising

Friday, May 01, 2020

May 2020 Judiciary News

Even with the nation on lockdown, there is still news in the American judicial system.

Nominations, Hearings, Confirmations:

Overall:  There's plenty of schadenfreude to be found in the summary of Trump's appointments by retired judge Shira Scheindlin (SD-NY) for the Guardian.

McConnell:  Senate Majority Leader Mitch McConnell is apparently encouraging conservative judges who are eligible to take senior status.  Left-wing activist group Demand Justice is demanding an investigation into the retirement of DC Circuit Justice Thomas Griffith.

DC Circuit:  President Trump nominated Judge Justin Walker (WD-KY) to the DC Circuit Court of Appeals, commonly considered the second most powerful court in the nation.  Walker is a protege of Senate Majority Leader Mitch McConnell.  If you like your schadenfreude extra strong, check out Slate's take on the nomination.

D-AZ:  Arizona Judge Scott Rash, nominated to the federal district court, has been attacked by several women for allegedly making inappropriate comments and being biased against women.  Curiously, this attack came after Rash received a WQ from the ABA and was approved by the Judiciary Committee on a 16-6 vote.  It is unclear if Arizona's senators (both women) have rethought their support for his nomination.

ED-VA:  Virginia's D senators have recommended two possible nominees for a vacant district court seat.  They are U.S. Magistrate Judges Roderick Young and Douglas Miller.  President Trump has not yet made a selection.

SD-FL:  President Trump apparently plans to nominate former prosecutor David Leibowitz for a district court seat.  He now works for the car dealership owned by his uncle, a major R donor.

New Nominations: (UPDATED)
SD-FL:  Aileen Cannon–AUSA, clerked for Steven Colloton (8th circuit)
ED-CA:  Dirk Paloutzian–private practice
ED-VA: Roderick Young–magistrate judge, former AUSA
Armed Services appeals court: Liam Hardy–deputy AG, clerk for Ryan, Sentelle, Thomas
D-KS: Toby Crouse–Kansas solicitor general, clerk for Mary Beck Briscoe (10th Circuit)

Senate Judiciary Committee hearings:
May 6 (nominations):  Justin Walker (DC Circuit) will be considered.
May 14 (business): Six district court nominees may be voted on.

Judicial emergencies:  Judicial emergencies continue to delay justice in California and Washington.  California has a long-delayed slate of nominees to fill most of its vacancies, while Washington has no nominees due to D senators Murray and Cantwell.

Recess appointments:  President Trump raised the possibility of adjourning Congress to fill executive and judicial vacancies by recess appointment.  This does not appear to be legal without the consent of Congress.  There does not appear to be much value in filling judgeships this way now, with only nine months left in Trump's term.  However, if Rs hold the Senate in 2020 (whether or not Trump is reelected), Trump could potentially fill longstanding district court vacancies in states like Massachusetts, New Jersey, and Washington where D senators have refused to sign blue slips for any nominee.

The Federal Judiciary:

Schumer:  Senate minority leader Chuck Schumer unleashed a vitriolic attack on justices Gorsuch and Kavanaugh, saying
"You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
He later backpedalled somewhat as his comments were seen as an attempt to intimidate the justices.

ED-WI:  Clinton-appointed Judge Lynn Adelman launched a vitriolic attack on President Trump, Chief Justice John Roberts, and the R-appointed majority on the Supreme Court.  Adelman's rant repeats left-wing talking points on a variety of issues.  Before appointment to the bench, Adelman was a D state senator and three-time congressional candidate.

5th Circuit:  A panel with Judges Jennifer Elrod and Kyle Duncan in the majority has allowed Texas' suspension of abortions to stay in effect.  They are Bush and Trump appointees, respectively.  Notably, they overruled Bush-appointed district judge Lee Yeakel, who has a pro-abortion history.

WD-OK:  Trump-appointed judge Charles Goodwin overturned Oklahoma's suspension of abortions during the coronavirus crisis.  Lifesite is unhappy with him, citing several other Trump judges with non-conservative beliefs.  But while several of them were compromises with D senators, Oklahoma has two R senators.

CD-CA:  Judge James Selna quietly took senior status on March 3.  Notably, he did so without any delay, and managed to not generate a single news article about this status.

9th Circuit:  Senior Judge Raymond Fisher passed away in March.  Notably, Fisher was the first of 14 Clinton appointees to leave the 9th Circuit completely.  Nine are still active, and another four are senior.

State Supreme Courts:

Florida:  Governor Ron DeSantis blew past the March 23 deadline to fill two vacancies on the Florida Supreme Court, citing his emergency declaration on the coronavirus and his desire to read the writings of the candidates.  The legality of this may be questionable, but there doesn't appear to be a remedy other than to wait for an appointment.

The judicial nominating commission submitted nine finalists to Governor Ron DeSantis on January 23.  One of the appointees must be John Couriel, Norma Lindsey, or Eloit Pedrosa, who live in the 3rd Appellate District (Miami).

Georgia:  Georgia Governor Brain Kemp appointed Georgia Court of Appeals Judge Carla Wong McMillian to the Georgia Supreme Court.  She replaces Justice Robert Benham, who was the last democrat on the court.  She is a Federalist Society member and the first Asian on the court.  She had a 'social distancing' swearing in.

Georgia:  Justice Keith Blackwell will leave the Georgia Supreme Court in November. He was scheduled to face a retention election in November, but state law allows the Governor to appoint a replacement who will not face retention until later. Former U.S. Rep. John Barrow (D) and former state Rep. Beth Beskin (R) wanted to run for the seat. They have filed suit claiming that cancelling the election is illegal since Blackwell is still on the court. A local court denied the request. They appealed to the Supreme Court, and demanded that all eight Supreme Court justices recuse themselves. Five have done so.  Barrow and Raskin were previously candidates for the seat of retiring judge Robert Benham, but that election was also cancelled when Benham resigned early.

Iowa:  Governor Kim Reynolds appointed Matthew McDermott to the Iowa Supreme Court on April 3.  McDermott is a lawyer with extensive experience who was counsel to the Republican Party of Iowa and has worked for many Republican candidates.  Fifteen people had applied to the Iowa judicial nominating commission to fill the seat of liberal Justice David Wiggins, who retired in March.  Reynolds has now made four appointments to the court.  In a little over a year, three seats have flipped from left to right due to two deaths and Wiggins' retirement.  The last liberal on the court, David Appel, must leave the court no later then 2022.

Kansas:   Kansas Gov. Laura Kelly appointed lawyer Keynen “KJ” Wall to the Kansas Supreme Court.  He replaces liberal Chief Justice Lawton Nuss.  The notoriously liberal court recently upheld a limit on the size of religious gatherings.

Washington: Slate reports on Washington state's newest Supreme Court Justice:
While the federal bench grows more homogeneous by the day, Democratic governors are diversifying their state judiciaries to an unprecedented degree. On Monday, Washington Gov. Jay Inslee, a Democrat, elevated Grace Helen Whitener to the state Supreme Court. Whitener is a disabled black lesbian who immigrated from Trinidad. She joins Inslee’s two other appointees: Raquel Montoya-Lewis, a Jewish Native American who previously served on tribal courts, and Mary Yu, an Asian-American Latina lesbian who officiated the first same-sex marriages in the state.
Wisconsin:  Conservative Justice Daniel Kelly was defeated by liberal Dane County Circuit Judge Jill Karofsky 45-55 in the April 7 runoff.  The runoff coincided with the presidential primary, so  Karofsky benefitted from increased D turnout.  The Wisconsin Supreme Court will now have 4 conservatives and 3 liberals.  Barring any unexpected vacancies, the next election will be in 2023, when liberals will have a chance to win the seat of conservative Justice Patience Roggensack, who would seem likely to retire then at age 82.

Numbers and Trivia:

Many of Trump's appeals court justices are former Supreme Court clerks.  A few of his district court appointees are as well.  They are
MD-FL--William Jung--Rehnquist
D. Utah--Howard Nielsen--Kennedy
D. DC--Carl Nichols--Thomas
ND-IL--Martha Pacold--Thomas
SD-TX--Charles Eskridge--White
ED-NY--Rachel P. Kovner--Scalia
WD-KY--Justin Walker--Kennedy
SD-NY--Lewis Liman--Stevens
Walker is a nominee for the DC Circuit.  Nielsen, Nichols, Pacold, Kovner are possible candidates for future circuit court vacancies.  Jung and Eskridge are likely too old, and Liman is a liberal nominated as part of a deal.

Roberts clerks:  Speaking of Supreme Court clerks, is it odd that Chief Justice John Roberts has so few famous law clerks?  Wikipedia has only Senator Josh Hawley and one law professor with their own pages.  For comparison, Samuel Alito, who joined the court about the same time, has 11 clerks with Wikipedia pages, including three appeals court judges, two solicitor generals, and Senator Mike Lee.

Georgia:  The Georgia Supreme Court is quite young. The ages of the nine justices are 53, 55, 44, 57, 41, 38, 44, 59, 46, with mean 49 and median 46. The oldest judge joined the court in 2018.

David Lat:  Lat, age 44, formerly of the Above the Law blog, has recovered from a serious case of coronavirus that left him on a ventilator for six days.


Wisconsin:  This article is a good overview of the recent history of the Wisconsin Supreme Court, which has had increasingly partisan and nasty races for more than a decade.  (The left-leaning tone of the article says a lot about where NeverTrumper Charlie Sykes is ideologically these days.)

Bench Memos (National Review)
The Vetting Room
FedJudges (Twitter)
Senate Cloakroom (Twitter)
Senate Judiciary Committee
ABA Judicial Ratings
Wikipedia-Trump Judges
Wikipedia-US Appeals Courts
Senior Status Spreadsheet
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia-State Supreme Court Vacancies
The Supreme Courts