Law & the Courts

This Day in Liberal Judicial Activism—October 25

(Chip East/Reuters)

1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples.

Law & the Courts

This Day in Liberal Judicial Activism—October 23

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

Law & the Courts

The Supreme Court Has a Chance to Enforce Heller

The United States Supreme Court building in Washington, D.C. (Carlos Barria/Reuters )

In 2008, the Supreme Court’s decision in District of Columbia v. Heller gave teeth to the Second Amendment, holding that the “right of the people to keep and bear Arms” did, in fact, guarantee citizens the right to “keep” arms in their home for self-defense. Yet one decade later, lower courts continue to resist following Heller. Most shocking, several federal courts of appeals have ruled that whatever the Second Amendment says about the right to “keep” arms in your home, it does not guarantee lawful American citizens the right to “bear” arms in public for their self-defense.

That position is contrary to the Second Amendment’s text, history, and Supreme Court precedent interpreting that text and history. Yet the High Court has thus far sat out of the debate, declining to authoritatively state whether the Second Amendment means what it says and guarantees a right to self-defense both at home and in public.

Fortunately, all of this may be about to change for the better. Last June, Justice Thomas, joined by Justice Gorsuch, lamented the Court’s refusal to make clear that the Second Amendment applies outside the home, criticizing his colleagues for imposing a “hierarchy by selectively enforcing its preferred rights” like the First Amendment but underenforcing the Second Amendment. He described the lower court’s opinion as “indefensible” and the Supreme Court’s refusal to review Second Amendment cases as “inexcusable.”

One month later, the D.C. Circuit — considered by many the second-most-important court in America — disagreed with other federal courts of appeals and invalidated the District of Columbia’s “good reason” or “may issue” regime for licensing the public carry of firearms because that regime denied almost all law-abiding citizens the right to carry firearms in public for self-defense. Because the D.C. Circuit had created a “circuit split” — a division in authority among the appellate courts, the most important criterion for Supreme Court review — many observers thought the Supreme Court would finally decide whether the Second Amendment does indeed guarantee ordinary citizens the right to “bear Arms” in public. Their hopes were dashed: The District of Columbia government declined to appeal the ruling to the Supreme Court, fearful of what an adverse ruling might do to their restrictive gun laws.

Fortunately, in the coming months the Court will likely review multiple petitions presenting the question whether the Second Amendment’s guarantee that the public may “bear Arms” really means that ordinary Americans may carry firearms in public for self-defense. The Court would be wise to defer ruling on the first petition presented to it, instead biding its time until one of the other petitions in the pipeline lands in the Court — and presents the question more ably and cleanly.

The first petition, Rothery v. Blanas, will be considered during the justices’ private conference early next month. This petition presents a poor vehicle, and the Court should avoid it. The case was filed in the lower courts about ten years ago, and the factual record is stale. For example, lawyers opposing the petition have argued to the Supreme Court that one of the two plaintiffs in the case already has a permit to carry a firearm in public, and that the defendant sheriff grants licenses at higher rates than the sheriff did when the complaint was filed a decade ago.

Another critical weakness of the Rothery petition is its muddled presentation of the issues: The petition presents not only the Second Amendment question, which the Court must urgently decide, but also a Fourteenth Amendment equal-protection challenge based on the allegation that retired peace officers and the sheriff’s “political supporters” receive preference in the granting of carry permits. The Second Amendment question is too important to have the parties’ briefing distracted by another legal question of secondary importance.

While the Court might do well to grant Rothery if that were the only case on the horizon presenting the Second Amendment question, that is unlikely to be the case. Another petition is expected later this year or early next year out of the Third Circuit case Rogers v. Attorney General, New Jersey. That petition, in a case being litigated by experienced Supreme Court and Second Amendment lawyers, would also present the critical question relating to citizens’ Second Amendment right to carry firearms. If granted, the petition could be argued next fall, in Justice Kavanaugh’s first full term at the High Court. The Rogers case presents an excellent vehicle for the Court’s review.

In 2015, Justice Thomas, joined by the late Justice Scalia, lamented that the lower courts’ “noncompliance with [the Court’s] Second Amendment precedents” had the effect of “relegating the Second Amendment to a second-class right.” Now, with the Court restored to a full complement of justices and a square circuit split finally presented to it on the most critical outstanding question concerning the scope of the Second Amendment, the right of the people to not only “keep” but also “bear” arms for self-defense may finally be vindicated.

Law & the Courts

The Truth about the Lame-Duck Judicial Confirmations

During the 115th Congress, the Democrats’ approach to the judicial confirmation process can be summed up as “Do as I say now, not as I did then.” And they’ve given no hint of changing that strategy when they come back after the midterm election.

Last year, for example, Democrats complained about including more than one nominee to the U.S. Court of Appeals in a single confirmation hearing. They hoped no one would remember that previous chairmen, of both parties, have held more than 50 hearings with multiple appeals-court nominees. Senator Dianne Feinstein (D., Calif.) served on the Judiciary Committee in the 1990s when Chairman Orrin Hatch (R., Utah) held a dozen such hearings for President Bill Clinton’s nominees. I haven’t found any Feinstein objection to doing for Democratic nominees what she now opposes for Republican nominees.

When the Senate resumes its work on November 13, look for Democrats to re-double their efforts to prevent filling the many longstanding vacancies across the federal judiciary.

Today, 14 percent of the judiciary’s seats are vacant. In fact, we are in the longest period of triple-digit judicial vacancies in 25 years. This is in spite of President Trump making nearly 40 percent more nominations, and the Judiciary Committee holding hearings for 32 percent more nominees, than under previous new presidents at this point. In November of those presidents’ second year in office, judicial vacancies averaged less than 8 percent.

Precedent is a funny thing. In the Senate, past practice is worth following until it isn’t. Nonetheless, here’s what the judicial confirmation process has looked like during previous lame-duck sessions following midterm elections.

Democrats controlled the entire appointment process — nomination and confirmation — in the last two midterm elections. In 2014, Democrats confirmed 27 nominees to the federal district courts after Election Day. Don’t think that these were all low-hanging confirmation fruit, either. President Obama’s two most controversial district-court appointees were confirmed, with 45 and 46 negative votes, in this batch.

In 2010, the Judiciary Committee held a confirmation hearing in November, and the Senate continued confirming judicial nominees until December 22. The 19 judges confirmed in December included five to the U.S. Court of Appeals and two more highly controversial nominees to the U.S. District Court.

Overall, the Senate has met after a midterm election ten times since the Second World War and confirmed judges in nine of those lame-duck sessions. In the two most recent, Democrats confirmed nearly as many judges as in the rest combined.

Nearly three dozen nominees to the district and appeals courts are ready for confirmation now. Whether it’s the needs of the judicial branch, past confirmation practice, or both, the Senate should get to work as soon as they return.

Law & the Courts

Grassley to Washington Senators: No More Blue-Slip Obstruction

On Wednesday, the Senate Judiciary Committee will hold a hearing on the nomination of Eric Miller to a Ninth Circuit vacancy in the state of Washington (and on other nominations, including the nomination of Bridget Bade to a Ninth Circuit vacancy in Arizona).

In a letter last week to Washington senators Patty Murray and Maria Cantwell, Senate Judiciary Committee chairman Chuck Grassley noted that he has not yet received their blue slips on the nomination. Grassley spelled out at great length the extensive consultation that the White House undertook with Murray and Cantwell. He explained that “the blue-slip courtesy exists for a specific purpose: to ensure the White House consults with home-state senators before nominating an individual to the bench.” He reiterated that he “will not allow senators to abuse the blue-slip courtesy by withholding the blue slip for political or ideological reasons”—especially not for circuit-court nominees, “who are nominated to regional courts that affect several states, not just the home-state senators’ states.”

Law & the Courts

This Day in Liberal Judicial Activism—October 22

Judge Rosemary Barkett.

1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause.

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”

Law & the Courts

This Day in Liberal Judicial Activism—October 21

1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1993, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”

Law & the Courts

This Day in Liberal Judicial Activism—October 20

(Shutterstock)

2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.

Law & the Courts

Senate Judiciary Committee Keeps Humming Along

Despite the Senate’s recess, Judiciary Committee chairman Chuck Grassley and his stalwart staff are keeping his committee very busy in reviewing and processing President Trump’s judicial nominees.

On Wednesday, the committee held a hearing on the nomination of Allison Jones Rushing to a Fourth Circuit seat in North Carolina and on five district-court nominations. Next Wednesday, it intends to hold a hearing on two Ninth Circuit nominations—Eric Miller (in Washington) and Bridget Bade (in Arizona) and one district-court nomination. The committee aims to report these nominations to the Senate floor by late November.

On Wednesday, November 14, the committee intends to hold a hearing on Third Circuit/New Jersey nominee Paul Matey and four district-court nominees. The committee aims to report these nominations to the Senate floor in early December.

Already pending on the Senate floor are one appellate nomination (Jonathan Kobes, CA8/South Dakota) and 31 district-court nominations. Two other appellate nominees—Eric Murphy and Chad Readler, each to a CA6 seat in Ohio—are awaiting their committee votes, as are nine district-court nominees.

So that’s a total of seven appellate nominees and 50 district-court nominees who should be ready for a Senate floor vote in December.

If these nominees are all confirmed, that will take President Trump’s two-year total to 36 federal appellate judges and 104 federal district judges—plus, of course, Justice Gorsuch and Justice Kavanaugh.

By way of comparison: President Obama appointed 16 federal appellate judges and 44 federal district judges—plus Justice Sotomayor and Justice Kagan—during his first two years.

Law & the Courts

Senate Democrats Change Their Stance on Confirmation Hearings

Democrats on the Senate Judiciary Committee, September 28, 2018. Front row (from left): Amy Klobuchar (D, Minn.), Chris Coons (D, Del.); (back row): Cory Booker (D, N.J.), Kamala Harris (D, Calif.), and Richard Blumenthal (D, Conn.) (Jim Bourg/Reuters)

Supreme Court Justice Antonin Scalia died unexpectedly in February 2016, and President Barack Obama nominated Judge Merrick Garland to that vacancy on March 16, 2016. The Left had a single mantra for the Senate: Do your job. Specifically, they demanded that the confirmation process move forward, starting with a Judiciary Committee hearing.

They have changed their tune.

There’s no need to cover here all the reasons why the unique circumstances in 2016 justified allowing the next president to fill the Scalia vacancy. Republicans in 2016 were merely following Joe Biden’s advice. In 1992, when he chaired the Judiciary Committee, he recommended that the Senate not consider a Supreme Court nominee in the middle of a divisive presidential campaign.

In 2016, Democrats demanded that the Judiciary Committee hold a confirmation hearing on a Democratic nominee despite those unique circumstances. Today, Democrats object to the Judiciary Committee holding confirmation hearings even though those circumstances do not exist.

Keep in mind that 120 positions on life-tenured federal courts across the country remain vacant. In fact, we are in the longest sustained period of triple-digit judicial vacancies in 25 years. Today’s situation is far less defensible, however. The high number of vacancies in the early 1990s was caused by Congress creating dozens of new judgeships. High vacancies today result simply from Democratic obstruction.

But despite these high current vacancies, Democrats are trying to prevent the Judiciary Committee from holding the hearings that, only two years ago, they said defined what it meant to “do your job.”

The committee was scheduled to hold regular confirmation hearings on September 26 and October 10 for nominees to the U.S. Court of Appeals and U.S. District Court. Senator Dianne Feinstein (D., Calif.), the committee’s top Democrat, first agreed to that schedule but then asked for multiple postponements. She then agreed to hold hearings on October 10, 17, and 24.

Now, Judiciary Committee Democrats are demanding that these hearings be put off yet again. Their latest “reason” is that the full Senate is not in regular session until after the election. Yet Feinstein agreed to these October hearings knowing that the Senate would likely be in recess for at least some of this period.

This is not the first time that Democrats have done this. The previous complaint was that Judiciary Committee chairman Chuck Grassley (R., Iowa) sometimes includes more than one appeals-court nominee in a single hearing. They had to be reminded that chairmen of both parties, under presidents of both parties, have held more than 50 hearings with multiple appeals-court nominees. Chairmen Biden and Orrin Hatch (R., Utah), for example, held more than a dozen such hearings for President Bill Clinton’s appeals court nominees while Feinstein served on the committee. There’s no record that she had any objection to doing for Democratic nominees what she objects to doing for Republican nominees today.

With vacancies so high, Judiciary Committee Democrats should stop playing games, take their own advice, and do their job.

Law & the Courts

What Justice Ginsburg Can Learn from Justice Kavanaugh

In today’s Washington Post, Georgetown University law professor Paul Butler takes Justice Ruth Bader Ginsburg to task for her notoriously poor law clerk hiring record. Despite her status as a progressive icon, the Notorious RBG has anything-but a progressive record when it comes to the diversity of her law clerks. As Butler notes, “Ginsburg’s progressive jurisprudence on racial justice doesn’t show up in her own chambers.”

Interestingly enough, Justice Ginsburg’s newest colleague, Justice Brett Kavanaugh, has the most diverse law clerk hiring record of any justice, ever. Butler writes:

Kavanaugh has engaged in one of the most diverse hiring practices of any federal appellate judge. Of his 48 law clerks, a little more than 25 percent have been nonwhite. And as a justice, he has already hired one African American clerk.  She is one of only three blacks clerking on the Supreme Court this year — two of whom previously clerked for Kavanaugh on the Court of Appeals. . . .

Ginsburg, on the other hand, has hired only one African American law clerk in her 25 years on the Supreme Court. This is an improvement from her 13-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, when Ginsburg never had any black clerks. When this issue was raised during her Supreme Court confirmation hearings in 1993, Ginsburg said: “If you confirm me for this job, my attractiveness to black candidates is going to improve.” This remains a promise unfulfilled. . . .

Kavanaugh’s clerkship listing should state “This employer practices diversity affirmative action. People of color strongly encouraged.” Ginsburg’s might as well say “I support racial diversity everywhere except in my chambers.”

Professor Butler is critical of Kavanaugh as well, suggesting that if Kavanaugh recognizes the value of diversity in his own hiring practices, he should be more supportive of affirmative action requirements and racial set-aside laws. Yet not every virtue should be a requirement, and there’s nothing hypocritical about refusing to force others to follow your lead. The same cannot be said about failing to live up to the standards you would impose upon others.

Law & the Courts

President Trump Continues to Fill Court Vacancies, Despite Senate Democrats’ Obstruction

President Donald Trump speaks to th media as he makes his way to Marine One, in Washington, D.C., October 2, 2018. (Leah Millis/Reuters)

One of a president’s most profound and lasting legacies is his appointment of federal judges. Supreme Court vacancies capture the most attention but are very rare, and the Supreme Court considers hears less than 1 percent of the appeals it receives. The ongoing appointment of judges to the other federal courts can actually have the biggest impact.

The Constitution established the Supreme Court, and Congress created the rest of the courts. Today, the U.S. District Courts, U.S. Courts of Appeals, and U.S. Supreme Court have a total of 851 judgeships in jurisdictions around the country. Vacancies on these courts, however, are all filled the same way: The president makes nominations but can appoint someone he has nominated only with the Senate’s consent.

The number of vacancies, and therefore the number of appointment opportunities, can be unpredictable because judges on these courts do not have specific terms. The vast majority of vacancies occur when judges choose to retire from active judicial service or are appointed to a different judicial position.

A president’s success in filling judicial vacancies depends on his determination to make nominations and the Senate’s progress in approving them. When President Trump took office, 14.3 percent of the positions on these life-tenured courts were vacant, much higher than under any of the previous five presidents. In his first 18 months in office, Trump’s nomination pace and the Senate Judiciary Committee’s hearing pace were each more than 40 percent faster than the average under those five predecessors during the same period in their presidencies.

Unfortunately, however, final approval of Trump’s judicial nominees during his first 18 months lagged 25 percent behind the pace of his predecessors. Democrats have forced the Senate to take unnecessary separate votes for ending debate on nominees, demanded extensive time to “debate” nominees who had no opposition, and insisted on time-consuming recorded votes to approve nominations. Separately, and especially in combination, seemingly insignificant steps such as these can add days to the confirmation timeline for each nomination.

But things are looking up in a couple of different ways. First, the overall confirmation pace has markedly improved in the last few months. The three-month total of 39 confirmations during August-October was exceeded only five times since 1949. As their arbitrary and unprecedented obstruction tactics have been exposed, Democrats have used them less. As a result, Trump is now slightly ahead of the average confirmation pace of his five predecessors at the same point in their presidencies.

Second, the decision by Trump and Senate Republican leaders to prioritize filling vacancies on the U.S. Courts of Appeals is working. Trump has already appointed more appeals-court judges than any new president in history, with at least a few more expected by the end of the year.

When the Senate reconvenes after the election, we will know what the partisan landscape will look like in the 116th Congress, which begins on January 3. There will still be work to do, however, because 32 judicial nominees are on the full Senate’s docket, and another 22 are ready for Judiciary Committee hearings or approval. That would make Trump’s first two years a real judicial confirmation triumph.

Law & the Courts

Judicial Nominations Update

It has been less than a week since my last update, but a lot has changed since then.

On Thursday, the Senate voted to confirm 15 new federal judges.  The tranche included three circuit court judges: Richard Sullivan (Second), David Porter (Third), and Ryan Nelson (Ninth).  With the confirmations of these new judges, a total of 29 of President Trump’s circuit court nominees have been confirmed since Inauguration Day.

Last Wednesday evening, President Trump announced his 18th wave of judicial nominees, which included nominees to the Second and Ninth Circuits.  (I detailed the bios of those new circuit court nominees in a Bench Memos post earlier this week.)

Also on Thursday, the Senate Judiciary Committee voted to advance eight judicial nominees to the Senate floor, including Jonathan Kobes, President Trump’s nominee to the Eighth Circuit.

Here is an update on the status of President Trump’s federal judicial nominations. The figures below include last week’s new wave of nominations:

Current and known future vacancies:  154

Courts of Appeals:  15

District/Specialty Courts*: 139

Pending nominees for current and known future vacancies:  72

Courts of Appeals:  12

District/Specialty Courts*:  60

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Paul Matey (3rd) 4/12/2018 186 No Not yet scheduled
Eric Miller (9th) 7/19/2018 88 No Not yet scheduled
Bridget Shelton Bade (9th) 8/27/2018 49 No Not yet scheduled
Allison Jones Rushing (4th) 8/27/2018 49 Yes Not yet scheduled
Joseph Bianco (2nd) 10/12/2018 5 No Not yet scheduled
Michael Park (2nd) 10/12/2018 5 No Not yet scheduled
Patrick Bumatay (9th) 10/12/2018 5 No Not yet scheduled
Dan Collins (9th) 10/12/2018 5 No Not yet scheduled
Ken Lee (9th) 10/12/2018 5 No Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Eric Murphy (6th) 6/18/2018 119 10/10/2018
Chad Readler (6th) 6/18/2018 119 10/10/2018

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Jonathan Kobes (8th) 6/11/2018 124 10/11/2018

Nominees Awaiting Floor Votes: 34

Courts of Appeals:  1

District/Specialty Courts:  33

Nominees Confirmed by the Senate: 84

Supreme Court: 2

Courts of Appeals: 29

District/Specialty Courts:  53

Law & the Courts

This Day in Liberal Judicial Activism—October 15

Justice William Brennan in 1972 (Library of Congress)

1956—So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.

2014—By a vote of 9 to 2, a limited en banc panel of the Ninth Circuit rules (in Lopez-Valenzuela v. Arpaio) that an Arizona law that bars pretrial release of an illegal alien charged with a serious felony offense violates substantive due process.

Dissenting months later from the Supreme Court’s refusal to review the ruling, Justice Thomas, joined by Justice Scalia, will lament that the Court fails to exercise its certiorari discretion “with a strong dose of respect for state laws” and that “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”

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