Bench Memos

Law & the Courts

Last Year in Judicial Appointments

In this post a year ago, I posed and addressed the “four big questions” on judicial appointments for 2020. Let’s revisit them:

1. “Will another Supreme Court vacancy arise?”

I predicted that if a vacancy arose, whether on the liberal or on the conservative side of the Court, a “strong nominee” would “be confirmed expeditiously by the Senate.” In particular: “The 53-47 Republican margin ought to make confirmation relatively smooth, notwithstanding the ruckus the Left will raise.”

Justice Amy Coney Barrett had a smooth and quick path to Senate confirmation, a mere 39 days after Justice Ginsburg’s death.

2. “Will many new vacancies open up on the federal appellate courts?”

I was skeptical that many new vacancies would arise (“Don’t count on many additional vacancies opening up over the course of the year”) and doubted that the Senate would “reach double figures in 2020” on confirmed appellate nominees.

There were, I believe, only three new vacancies that arose in 2020—two by retirement and one by death. [Correction: Make that *four* new vacancies. A reader reminds me that I neglected to count the vacancy resulting from Barrett’s elevation.] The Senate confirmed only four appellate nominees. (A fifth, to replace First Circuit judge Juan Torruella who died on October 26, could be confirmed by January 20.)

3. “Will the Senate trial of President Trump’s impeachment interfere with judicial confirmations?”

I expressed my “doubt that the impact will be much.”

4. “Will Donald Trump win re-election?”

“If [Trump] loses re-election, the courts could be very much up for grabs.” That is where we now are.

How quickly President-elect Biden will be able to undo President Trump’s improvement of the judiciary depends heavily on whether Republicans will retain control of the Senate after this week’s two run-off elections in Georgia. Given all the crazy Republican infighting in Georgia, I can’t say that I’m optimistic.