Saturday, May 01, 2021

May 2021 Judiciary News

Mayday! Mayday!

Nominations, Hearings, Confirmations:

Diversity:  In President Biden's initial slate of judicial nominees, "nine of the eleven nominees are female, five are African American, three are Asian American—I’m including one who is Arab American (as well as Muslim)—and one is Latina".  Naturally, Latino groups are attacking the administration for not caring about them.

Diversity:  "A Biden Judge Would Be the First-Ever Muslim on the Federal Bench. Some Muslims Are Furious" due to his work for ICE and the US military during the Iraq War.

WD-WA: David Estudillo--Grant County Superior Court judge
WD-WA: Tana Lin--trial lawyer
D-NJ: Christine O’Hearn--trial lawyer

Senate Judiciary Committee hearings:

The Federal Judiciary:

Court packing:  Several progressive Ds in Congress introduced legislation to pack the Supreme Court, adding four seats.  There is essentially no nonpartisan argument for the change, as explained by Thomas Jipping.

Commission:  President Biden has appointed a commission on the Supreme Court.  Josh Blackman notes that about 2/3 of the members are on the left, and 1/3 are on the center or right.  The commission is tasked with surveying arguments on the issue but not to make recommendations, which suggests that Biden is not planning to pack the Supreme Court.

Breyer:  Justice Breyer came out against packing the Supreme Court in a speech at Harvard Law School.  He argued that it would undermine the legitimacy of the Supreme Court.  Get ready for progressives to declare Breyer a white supremacist.

Breyer:  Justice Breyer hired a full slate of four clerks for next year, leading observers such as David Lat to believe that it is likely he will not retire.  Retiring justices often, but not always, hire fewer than four clerks when they are planning to retire.

Chief Judges:  Jacob Finkel claims Trump appointees to circuit courts were picked so that several Trump appointees will become chief judge in the future.  Of course, it could just be that somewhat older candidates had the inside track on the first appointments.  He also speculates without evidence that Trump-appointed chief judges will manipulate 3-judge panels to help their preferred policy outcomes.

Vacancy Declarations:  There are now 106 current and future judicial vacancies.  The 13 appeals court vacancies are on the 1st (1), 2nd (3), 4th (1), 7th (1), 9th (2), 10th (2), DC (2), and Federal (1).  New vacancies over the past month are listed below.
SD-NY: Colleen McMahon (Clinton) 4/10 (senior)
9th Circuit: Marsha Berzon (Clinton) TBD (senior)
D-UT: David Nuffer (Obama) 4/2/22 (senior)
ED-PA: Petrese Tucker (Clinton) 6/1 (senior)
D-DC: Ketanji Brown Jackson (Obama) TBD (elevated)
Claims: Lydia Griggsby (Obama) TBD (elevated)
ED-CA: John Mendez (W) 4/17/22 (senior)

State Supreme Courts:

Idaho:  The Idaho Judicial Council selected 3 applicants for seat on the Idaho Supreme Court being vacated by Justice Roger Burdick.  They are Idaho Court of Appeals judge Jessica Lorello, 
magistrate judge Diane Walker, and Idaho deputy attorney general Colleen Zahn.

Louisiana:  The Louisiana state senate passed a bill to increase the Louisiana Supreme Court from seven to nine seats, and to force redrawing of the Supreme Court districts each decade to reflect population shifts.  The bill passed by a bipartisan 36-2 vote.

Michigan:  Justice Richard Bernstein (D) has been working from Dubai for the past three months.  He is up for re-election next year.  State rep. Beau LaFave (R) commented, "Having enough privilege to leave Michigan, where you voted to let the Governor become a dictator, move to a proper dictatorship, continue ruling on cases, and keep getting paid, is the real Bernstein Advantage."

Missouri:  There are 25 applicants for the Missouri Supreme Court seat vacated by Laura Denvir Stith.  The Appellate Judicial Commission will begin interviewing candidates on May 19.

Montana:  Montana's new law eliminating the judicial nominating commission is being challenged in court.  Chief Justice Mike McGrath recused himself.  There was an organized effort to get lower court judges to take positions on the bill, including the judge who would have replaced McGrath.  The legislature issued a subpoena for the communications of the organizer of the effort.  The Supreme Court tried to quash the subpoena, but the attorney general refused to respect the ruling.

Ohio:  The state senate passed a bill to list the partisan affiliations of Supreme Court candidates in the general election.  Currently candidates run in partisan primaries but the general election is nonpartisan.  The Ohio Supreme Court has a 4 R 3 D breakdown.

Pennsylvania:  Commonwealth Court Judge Kevin Brobson has been endorsed by the NRA and GOA.  The other GOP candidates for an open Supreme Court seat, Philadelphia Court of Common Pleas Judge Paula Patrick, and Commonwealth Court Judge Patricia McCullough, are also courting pro-gun voters.  The primary is May 18, and the winner will face Superior Court Judge Maria McLaughlin (D) in the November 2 general election.

Wisconsin:  R candidates picked up two seats on the Wisconsin Court of Appeals in the April 6 election.  In district 2, Shelley Grogan won 56-44 over incumbent Jeffrey Davis, who was appointed to replace Brian Hagedorn.  In district 3, Gregory Gill defeated Rick Cveykus 55-45 for the seat of retiring judge Mark Seidl.

Numbers and Trivia:

As of May 23, Jeffrey Sutton will be the Chief Judge of the 6th Circuit, taking over from R. Guy Cole. Cole was appointed by Clinton.  Sutton clerked for Scalia.  He was appointed by W in 2003, and is a feeder judge.

As of May 24, Kimberly Ann Moore will be the Chief Judge of the Federal Circuit, taking over from Sharon Proust. Moore was appointed by W in 2001 and Proust by W in 2006. 

The Presidents who appointed chief judges of the 13 appeals courts will be Clinton (4, 9), W (1, 2, 3, 5, 6, 7, 8, 10, 11, Fed), and Obama (DC).

Here are the numbers of senior status declarations/retirements for the past few months.
1 December
20 January
19 February
8 March
7 April


Court Packing:  Carrie Severino surveys statements by Senate Ds opposing court packing.  We shall see whether these statements have expiration dates.

Retirements:  Joan Biskupic reviews the history of presidents encouraging Supreme Court justices to retire.


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