Bench Memos

Law & the Courts

Federal Appellate Vacancies

With the confirmations Monday and yesterday of Michael Scudder (CA7), Amy St. Eve (CA7), John Nalbandian (CA6), and Joel Carson (CA10), President Trump has now had nine federal appellate nominees confirmed this year and a grand total of twenty-one over his first sixteen months in office. By contrast, here are the totals for recent presidents from their inauguration to May 15 of their second year in office:

Obama—9

GW Bush—9

Clinton—8

GHW Bush—13

Reagan—13

Carter—10

There is now one federal appellate nomination pending on the Senate floor: Mark Bennett (CA9/HI). There are two appellate nominees waiting to be reported out by the Senate Judiciary Committee: Andrew Oldham (CA5/TX) and Ryan Bounds (CA9/OR). There are seven nominees awaiting a committee hearing: Britt Grant (CA11/GA), Paul Matey (CA3/NJ), David Porter (CA3/PA), Marvin Quattelbaum (CA4/SC), Julius Richardson (CA4/SC), Richard Sullivan (CA2/NY), and Ryan Nelson (CA9/ID) (whose nomination was just announced and might not yet have reached the Senate).

On top of these ten pending nominations, there are eleven additional appellate vacancies (seven “current” and four declared “future”):

2 CA2/NY

2 CA6/OH

1 CA5/MS

1 CA8/SD

5 CA9: 3 in CA, 1 each in AZ and WA

Additional appellate vacancies in the near future are most likely to arise from decisions by sitting judges to retire or take senior status. On the premise that a judge is most likely to retire or take senior status when the president is of the same party as the president who appointed the judge, I list here the thirty Republican-appointed federal appellate judges who are currently eligible to retire or, in those instances in which I include dates, will soon be:

CA1/PR: Torruella

CA2/NY: Jacobs

CA2/VT: Hall

CA3/PA: Smith

CA4/MD: Niemeyer

CA4/NC: Duncan (Aug. 2018)

CA4/VA: Wilkinson

CA5/MS: Southwick (Feb. 2019)

CA5/TX: Jones

CA5/TX: Smith

CA6/MI: Griffin (Apr. 2019)

CA6/TN: Gibbons

CA7/IL: Easterbrook

CA7/IL: Flaum

CA7/IL: Rovner

CA7/IN: Kanne

CA8/AR: Shepherd (Oct. 2019)

CA8/MN: Loken

CA8/MO: Benton

CA9/CA: Bea

CA9/CA: Callahan

CA9/CA: M. Smith

CA9/NV: Bybee (Oct. 2018)

CA10/NM: Hartz

CA11/AL: E. Carnes

CA11/FL: Tjoflat

CADC: Henderson

CAFedCir: Lourie, Newman, and Prost

I emphasize that by listing these names I do not mean to suggest that any particular individual should retire.

(I may well have made some mistakes in this post. I welcome any corrections.)

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