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:
TBD

Confirmations:
TBD

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 (December 1) 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.

History:

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

Resources:
Bench Memos (National Review)
The Vetting Room

How Appealing
Twitter: FedJudges Senate Cloakroom
Senate Judiciary Committee
ABA Judicial Ratings
Wikipedia: US Appeals Courts Trump Judges 
Senior Status Spreadsheet
Future Judicial Vacancies
BostonPatriot diaries: History Trump DC-5 6-11 9th
Ballotpedia--State Supreme Court Vacancies 2020 2021
The Supreme Courts
2020: March April May June July August September October Elections November December

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?

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.

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.

Senate GOP vs. Trump performance by county in ballots cast so far, by county. Orange = Trump outperform. Even as margins shift, this metric should hold up. pic.twitter.com/7c3FitXlrQ

— Patrick Ruffini (@PatrickRuffini) November 6, 2020

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.

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.

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.

Does High Voter Turnout Prove Voter Fraud?

UPDATED 6/29 with final numbers.

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 82 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 160 million over the same time period.  That's an increase of 29 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.  Trump's margin declined in 43 states, and increased in only seven (AR, CA, FL, HI, IL, NV, UT).  (In IL and NV the increase was less than 0.1%)  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.  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%
CA 23%
WA 23%
TN 22%
GA 22%

Only three of these states (AZ, NV, GA) were swing states (four if you count Texas).  The state with the smallest increase was North Dakota.

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.