The Western Right: January 2023

2022 in Review:

Breyer retired, and was replaced by Ketanji Brown Jackson.

Circuit judges: Biden has filled 17 circuit court seats in 2022, for a total of 28 overall. Only 4 of the 28 replaced R appointees (all moderate to liberal). There are 9 more nominees who were not confirmed and will presumably be renominated this year. There are 5 more vacancies without nominees. There are 15 more D-appointed circuit court judges who are eligible for senior status but have not yet taken it.

Three nominees are in red states (TN, IN, LA) and one in a purple state (PA). Two (IN, LA) had support from home state R senators, and two (TN, PA) did not. Only 2 of 28 circuit appointees is a white male. This compares to President Trump’s appointment of 30 Circuit judges in his first two years.

The most votes for a circuit judge was 67 for Roopali Desai (one of the more radical nominees), and the smallest margin was 1 for Andre Mathis, along with Jennifer Sung in 2021. Biden’s biggest impact is on the 9th Circuit, where he has appointed six judges.

District Judges: Biden appointed 39 district judges, for a total of 68 overall. This compares to President Trump’s appointment of 53 District judges in his first two years. Biden’s larger number of district judges is due to a rule change that reduced the number of hours of debate on district judges from 30 to 2.

Two district judges were confirmed by voice vote, Stephen Locher (SD-IA) and Jennifer Rearden (SD-NY). Aside from them, the most votes was 64 for Jeffery P. Hopkins (SD-OH). Four judges were confirmed by 2-vote margins (John Chun, Anne Traum, Charlotte Sweeney, Kay Behm). One (IA) appointee is in a red state, and 8 (4 OH, 4 PA) are in purple states.

Review: Harsh Voruganti of the Vetting Room gives his year in review.

Nominations, Hearings, Confirmations:

Nominations: Brookings looks at how Biden's appointments so far compare to those of previous presidents, and the prospects of future appointments over the next two years.

Nominations: President Biden has continued to fill vacancies, though Republican opposition to his nominees has increased.

Vacancies: Harsh Voruganti of the Vetting Room surveys the existing judicial vacancies and prospects to fill them, now that Ds have held the Senate.

Nominees: Several Biden nominees, including Nancy Abudu and Dale Ho, remain in limbo.

Schumer: Senator Chuck Schumer hopes to ‘achieve balance’ on every appeals court. It isn't clear how he plains to do that on the 8th Circuit, which has 10 R-appointed judges, one D-appointed judge, and no vacancies.

Nominations:

D-NJ: Michael E. Farbiarz--clerk for José Cabranes (2nd Circuit), Michael Mukasey (SD-NY), Port Authority of NY/NJ, AUSA (SD-NY)

D-NJ: Robert Kirsch--clerk for William Zloch (SD-FL), judge, New Jersey Superior Court, AUSA (D-NJ)

SD-IN: Matthew P. Brookman--Magistrate Judge (SD-IN), AUSA (SD-IN)

SD-CA: Marian Gaston--judge, Superior Court of California

CD-CA: Wesley Hsu--clerk for Mariana Pfaelzer (CD-CA), judge, Los Angeles County Superior Court, AUSA (CD-CA)

CD-CA: Mónica Ramírez Almadani--clerk for Warren J. Ferguson (9th Circuit), AUSA (CD-CA)

The Federal Judiciary:

Alito: Rep. Jim Jordan (R-OH) destroyed the credibility of Reverend Robert Schenck, who claimed that Justice Alito leaked the result of a Supreme Court decision in 2014.

Originalism: Ed Whelan debunks Ruth Marcus’s attack on originalism.

11th Circuit: Chief Judge William Pryor granted an interview to progressive legal writer Mark Joseph Stern. Pryor had joked about Stern after Stern's hyperbolic attacks on conservatives. Pryor defends the role of the Federalist Society within the legal community in a very civil interview.

Vacancy Declarations: There are now 113 current and future judicial vacancies. New vacancies over the past month are listed below.

ND-IL: Gary Feinerman (Obama) 12/31/22 (resigned)

ED-LA: Carl Barbier (Clinton) 1/1/23 (senior)

MD-FL: Charlene Edwards-Honeywell (Obama) 12/4/23 (senior)

D-MD: George Hazel (Obama) 2/24/23 (senior)

D-MT: Dana Christensen (Obama) TBD (senior)

D-DC: Amy Berman Jackson (Obama) 5/1/23 (senior)

State Supreme Courts:

Elections: Carrie Severino highlights the significance of Republican victories in judicial elections in North Carolina and Ohio.

Alaska: The Alaska Judicial Council advanced four nominees for the seat to be vacated by Chief Justice Daniel Winfree in February 2023. The council once again rejected Judge Paul Roetman, a conservative judge who is highly respected. The appointment will be made by governor Mike Dunleavy.

Florida: Governor Ron DeSantis appointed three new judges to the 6th District Court of Appeal and four new judges to the 5th District Court of Appeal. The 6th District Court of Appeal was created by a new bill to cover the Tampa Bay area. The appointments were delayed by a lawsuit challenging the eligibility of some of the nominees due to their living outside the districts. The Florida Supreme Court ruled they were eligible if they lived in the districts at the time of appointment.

New York: Governor Kathy Hochul nominated Hector LaSalle to be Chief Judge on the New York Court of Appeals. He is the presiding judge in the state Supreme Court’s Second Department in Brooklyn, and a former prosecutor. The position was vacated by Janet DiFiore, one of a group of four 'conservative' (non-leftist) judges (along with Cannatarro, Garcia, and Singas) on the court. Progressives are mad about the nomination, so LaSalle may join that group. The nomination must still be approved by the New York state senate, where some progressive senators have vowed to oppose it.

Ohio: Governor Mike DeWine appointed Hamilton County Prosecutor Joe Deters (R) to the Ohio Supreme Court. He was elected in 2004 after being Ohio Treasurer 1998-2004. He is 65. The seat is open after Justice Sharon Kennedy was elected chief justice, replacing Maureen O’Connor.

Oregon: Governor Kate Brown appointed Multnomah County Circuit Judge Stephen Bushong and Oregon Court of Appeals Judge Bronson James to the Oregon Supreme Court. They replace Chief Justice Martha Walters and Justice Thomas Balmer, who both retired on December 31. The retirements seemed to be timed to occur before the election.

Pennsylvania: The race to fill the seat of the late Justice Max Baer (D) is well underway. Pennsylvania Superior Court judges Deborah Kunselman of Beaver County and Daniel McCaffery of Philadelphia are seeking the D nomination. Carolyn Carluccio, the president judge of Montgomery County Court, is seeking the R nomination. The general election is on November 8, 2023. Outgoing Governor Tom Wolf has not made a nomination to fill the seat.

South Carolina: Justice Kaye Gorenflo Hearn was age-limited at the end of 2022. She was appointed to the court in 2010. Three judges have applied for the seat. Her replacement will be appointed by the South Carolina legislature. South Carolina and Virginia are the only two states where the legislature appoints supreme court justices.

Tennessee: Five lawyers from East Tennessee have applied for a vacancy on the Tennessee Supreme Court due to the retirement of Justice Sharon Lee (D) in August 2023. They will be interviewed on January 4. Governor Bill Lee (R) will get his second appointment to the court.

Wisconsin: There will be an election for the Wisconsin Supreme Court seat held by Justice Patience Roggensack (R), who is retiring at age 82. The nonpartisan primary is on February 21, and the top two candidates advance to the general election on May 4. Former justice Dan Kelly and Waukesha County Circuit Court judge Jennifer Dorow are competing for the votes of conservatives. Kelly was appointed to the court in 2016, but lost election 45-55 in 2020. Dorow presided over the high-profile trial of Darrell Brooks, who murdered six people with a car. Dane County Circuit Court Judge Everett Mitchell and Milwaukee County Circuit Court Judge Janet Protasiewicz are competing for the support of liberals.

Numbers and Trivia:

Chief Judges: The Presidents who appointed chief judges of the 13 appeals courts are Clinton (4), W (2, 3, 5, 6, 7, 8, 10, 11, Fed), and Obama (1, 9, DC). There is one chief judge that will change in 2023. This is expected to be 4th Circuit (July 8) Roger Gregory (Clinton) -> Albert Diaz (Obama)

Here are the numbers of senior status declarations/retirements for federal judges (circuit judges) for the past year.

13 (4) January 2022

4 (0) February

3 (2) March

6 (0) April

5 (0) May

5 (2) June

3 (0) July

5 (0) August

3 (0) September

6 (0) October/November

6 (0) December 2022