Sunday, October 31, 2021

November 2021 Judiciary News

Happy Reformation Day.

Nominations, Hearings, Confirmations:

9th Circuit:  Judge Lucy Koh had a rough hearing in her nomination for the 9th Circuit.  She was grilled on a ruling allowing California to ban religious services in the name of fighting COVID, despite allowing comparable secular activities.

9th Circuit:  The Senate Judiciary Committee deadlocked 10-10 on the nomination of Jennifer Sung to the 9th Circuit, who made nasty comments against Brett Kavanaugh.  Notably, this is the first time Lindsay Graham has voted against a Biden judicial nominee.

Leahy:  Senator Patrick Leahy complained that R senators did not show "courtesy" toward nominee Beth Robinson (2nd Circuit) even though he obstructed many R nominees when he was Judiciary Committee Chairman.


The Federal Judiciary:

Kavanaugh:  Justice Kavanaugh tested positive for COVID on September 30, just before the start of the court's new term.  He was back on the bench on October 12.

Alito:  Justice Alito responded to an attack by leftist scribe Adam Serwer in a recent speech.  Ed Whelan dismantles Serwer's hysterical response.

Ginsberg:  Katie Couric hid comments by Ruth Bader Ginsberg in 2016 critical of kneeling during the national anthem.  RBG said they show 'contempt for a government that made a decent life possible'.  Couric claims she was protecting the justice, though it seems she was really protecting the leftist narrative.

Thomas:  Thomas Jipping celebrates Clarence Thomas' 30 years on the court.

Sotomayor:  Back in 2020, Justice Sotomayor praised radical San Francisco DA Chesa Boudin, calling him “a great beacon to many”.

9th Circuit:  The 9th Circuit will consider en banc a case from six years ago.  The panel led by Carter appointee Dorothy Nelson somehow claimed that second degree murder is not a crime of violence.

Court reform:  A draft report from President Biden's court commission criticized court packing, saying "The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court's legitimacy."  The draft was more open to term limits, though there are obstacles to that idea also.

Court reform:  The Advisory Opinions podcast breaks down the draft of the Supreme Court commission.  Notably, it notes that court expansion is often a sign of the breakdown of democracy, as in Venezuela and Turkey.

Conflicts:  Legislation has been introduced in Congress to tighten financial-disclosure requirements after a Wall Street Journal investigation found 131 judges who had ruled in cases when they had a financial interest.

Vacancy Declarations:  There are now 108 current and future judicial vacancies.  New vacancies over the past month are listed below.
ED-VA: Raymond Alvin Jackson (Clinton) 11/23/21 (senior)
4th Circuit: Henry Floyd (Obama) TBD (senior)
2nd Circuit: José Cabranes (Clinton) TBD (senior)
2nd Circuit: Rosemary Pooler (Clinton) TBD (senior)
ND-MS: Michael Mills (W) 11/1/21 (senior)

State Supreme Courts:

California:  Why did California Supreme Court Justice Mariano-Florentino Cuéllar resign on October 31?  It could be because he is married to Judge Lucy Koh (ND-CA), who has been nominated for the 9th Circuit.  She would have to recuse from any appeal of a case he had ruled on, which is especially important given the 9th Circuit's frequent use of limited en banc panels.

North Carolina:  The North Carolina Supreme Court is still considering whether to force two R justices to recuse themselves so that it can more easily strike down ballot initiatives on voter ID and tax limitation that were passed by the legislature and the voters in 2018.  The R controlled state legislature is considering impeachment of some D justices in response.  During an impeachment trial, the justices would be suspended from hearing cases.  Even though there would not be the votes to convict, there is no limit to how long an impeachment trial can last.

Pennsylvania:  The one state supreme court election this November is in Pennsylvania.  Commonwealth Court Judge Kevin Brobson (R) faces Superior Court Judge Maria McLaughlin (D).  The two candidates are trading attacks.  McLaughlin currently has a fundraising advantage, but outside spending favors Brobson.  There are also elections for the Superior Court and Commonwealth Court.

Texas:  Governor Greg Abbott appointed Evan Young to the Texas Supreme Court. He graduated from Yale Law in 2004, and clerked for Wilkinson (4th Circuit) and Scalia. This is Abbott’s fifth appointment to the court. Eva Guzman vacated the seat to run for Attorney General in 2022. The seat will be up for election in 2022, and Justice David Schenck, of the 5th Court of Appeals is running.

Utah:  Utah Supreme Court Justice Constandinos Himonas will retire on March 1, 2022.  He is 57, and was appointed to the court by Gary Herbert in 2015.  Governor Spencer Cox will get his first appointment to the court.

Numbers and Trivia:

Thanks to user JOEYFALCONI for computing the number of NO votes cast against confirmed circuit court nominees:

Obama-538 total no votes. Avg=9.8 per confirmed nom
Trump-1966 total no votes. Avg=36.4 per confirmed nom
Biden-206 total no votes. Avg=41.2 per confirmed nom