By ED WHELAN

November 14, 2022 12:06 PM

Because Democrats will retain control of the Senate, President Biden will continue to have an easy time getting his judicial nominations confirmed. How different things would be if Donald Trump had gracefully conceded his loss in the 2020 presidential election and not gone on to sabotage the run-off elections for the two Senate seats for Georgia. How different things would be if Trump hadn’t pushed in Republican primaries for terrible MAGA candidates—e.g., Oz, Masters—in winnable races this cycle.

The Senate has already confirmed 25 of Biden’s appellate nominees, and 12 more are pending. That’s a very impressive total. For sake of comparison, the Senate confirmed 30 of Trump’s appellate nominations during his first two years.

Looking at the details, though, I’m struck to see how little Biden’s appointments have affected the ideological composition of the courts of appeals. In making this observation, I don’t mean to suggest at all that the appointments are ideologically insignificant. Among other things, they perpetuate those seats with liberal judges and thus make it all the more difficult for the next Republican president to transform the appellate courts.

Of Biden’s 25 appointments so far, all but four were to seats in which the incumbent was a Democratic appointee. Further, of the four incumbents that had been Republican appointees, one (Helene White) was a liberal Democrat nominated by President George W. Bush in a deal with Senate Democrats, and the three others fell somewhere between moderate and liberal.

There is a similar picture with respect to the 12 pending nominees. Eleven of them are to seats held by Democratic appointees. (The one exception is Biden’s nomination of Cindy Chung to replace Third Circuit judge Brooks Smith.)

To be sure, Trump’s appellate appointments were likewise heavily to seats in which the incumbent had been appointed by a Republican president. If my quick math is right, though, Trump increased the number of Republican-appointed appellate judges from 71 to 96 over the course of his four years. (I’m relying on Russell Wheeler’s Table 2 here, which I have adjusted to include 2020 data.) A good chunk of that increase is due to the ten vacancies that he inherited, thanks to Mitch McConnell, from the Obama administration.

Looking forward, I wonder how many additional appellate seats will open up for Biden to fill. Here is my list of the Democratic appointees who are (or will soon be) eligible to take senior status or retire. (I welcome corrections.)

Kayatta, 1^st Circuit

Greenaway, 3^rd CircuitCA3

Gregory, 4^th Circuit (recess-appointed by Clinton, then appointed by GWB)

King, 4^th Circuit

Wynn, 4^th Circuit

Graves, 5^th Circuit

Stewart, 5^th Circuit

Clay, 6^th Circuit

Moore, 6^th Circuit

Gould, 9^th Circuit

Rawlinson, 9^th Circuit

Wardlaw, 9^th Circuit

Matheson, 10^th Circuit

Dyk, Federal Circuit

Taranto, Federal Circuit

This Day in Liberal Judicial Activism—November 14

By ED WHELAN

November 14, 2022 8:00 AM

2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004. 

This Day in Liberal Judicial Activism—November 13

By ED WHELAN

November 13, 2022 8:00 AM

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination. 

2018—In a statement regarding the denial of certiorari in a death-penalty case (Reynolds v. Florida), Justice Breyer expresses his concern that “lengthy delays [in carrying out death sentences] deepen the cruelty of the death penalty and undermine its penological rationale,” and he proposes that the Court reconsider the constitutionality of the death penalty. Justice Thomas responds:  

It makes a mockery of our system of justice for a convicted murderer, who, through his own interminable efforts of delay has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional…. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As “the Drum Major in this parade” of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences. 

This Day in Liberal Judicial Activism—November 12

By ED WHELAN

November 12, 2022 8:00 AM

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.  
 
1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens. 

This Day in Liberal Judicial Activism—November 11

By ED WHELAN

November 11, 2022 8:00 AM

2014—What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.  

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.” 

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments. 

One other peculiarity: According to a letter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.