Judicial vacancies and politics, from coast to coast
A federal appeals judge in California is giving Biden a vacancy to fill, while New York's governor is still backing her high court nominee. Also: Two scheduled executions. And: Many anti-trans bills.
President Biden got his first forthcoming appeals court vacancy of the new year on Jan. 5 in a letter reported by Nate Raymond of Reuters on Jan. 9.
In that letter, Judge Paul Watford of the U.S. Court of Appeals for the Ninth Circuit announced that he would be stepping down at the end of May. He will be resigning from the bench entirely — not taking senior status and still hearing cases. (Watford is not yet eligible for senior status.)
Watford, who is only 55, was considered for nomination to the Supreme Court by former President Obama when the late Justice Antonin Scalia died in 2016. Obama, of course, instead nominated then-Judge Merrick Garland for the seat, which the Republicans blocked and former President Trump eventually filled with his nomination of now-Justice Neil Gorsuch.
Obama had nominated Watford to the Ninth Circuit in 2011, and he was confirmed in May 2012. Watford’s forthcoming resignation from that bench 11 years later creates the only future appeals court vacancy for which Biden has not already named a nominee, according to the Administrative Office of the U.S. Courts.
Anthony Devos Johnstone has been nominated for Judge Sidney Thomas’s seat, also on the Ninth Circuit, and Connecticut Supreme Court Justice Maria Araújo Kahn has been nominated for Judge José Cabranes’s seat on the U.S. Court of Appeals for the Second Circuit.
In addition to Watford, five district court judges announced forthcoming vacancies — either by way of resignation or taking senior status — since Democrats kept the Senate majority in the midterm elections. Understandably, no nominees have yet been announced for any of those vacancies, but the first of those seats does become vacant in six weeks, on Feb. 24.
To be clear, there are other appeals court vacancies and nominees announced, several of whom were already renominated in the new Congress. They are among the 23 nominees for the 83 judicial vacancies that have already occurred, according to the Administrative Office of the U.S. Courts, as opposed to those, like Watford, that have not yet taken effect.
While the White House has only formally renominated 23 people thus far for judicial vacancies, Bloomberg’s Madison Alder reported that we should expect more renominations before the end of the month.
CNN’s Joan Biskupic, highlighting the dearth of nominees from Southern states thus far in Biden’s presidency, wrote on Jan. 9 that “Biden has designated nominees for only about half of th[e 83 judicial] vacancies.” Her piece focuses on how many of those … vacant … vacancies are in the South, specifically states with two Republican senators.
Although Biskupic does note the Judiciary Committee’s “blue slip” policy that allows home-state senators — even when not of the president’s party — to effectively stop nominations from going forward, the lengthy story quotes no one opposing the continued use of “blue slips” or really even commenting on it.
While spending five paragraphs asking many Southern Republican senators’ offices about whether the White House was consulting them on nominees, the story pushed off the “blue slip” question to vague uncertainty with no quoted sources:
It’s unclear whether the Senate Judiciary Committee will feel increased pressure, from its Democratic ranks or from outside liberal interests, to amend the “blue slip” process.
This matters because the CNN story is really downplaying a lot of the solution: Eliminating blue slips.
As I have written previously at MSNBC, this is an area where — despite the Republican control of the House — Democrats can and must press ahead aggressively and immediately.
Eliminating blue slips to stop the Republican logjam is a necessary step to moving forward, and any story talking about how “Biden struggles to confirm judges in the South” really has to address that more directly and fully.
The Republicans eliminated blue slips for appellate nominees during the Trump administration when they needed to do so (another point not mentioned in Biskupic’s story), and there’s no reason it shouldn’t be a key part of any story about the holdup of district court (and appellate) nominees now.
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JUDGING NEW YORK: Speaking of judges, Newly elected Democratic New York Gov. Kathy Hochul hasn’t pulled her beleaguered high court nomination of Hector LaSalle (yet?), currently an appellate judge, despite significant and growing Democratic opposition in and out of the state Senate.
The primary opposition has come from union leaders, abortion rights leaders, and criminal justice progressives — although a wide swath of Democrats have questioned or outright opposed the nomination, given the close ideological divide on the New York Court of Appeals and concerns that LaSalle would lock in a conservative majority on the court.
Here was the New York Senate Democrats’ majority leader on Jan. 9:
Far from backing down, however, there were also reports on Jan. 9 that Hochul is both pressuring lawmakers to support the pick and punishing advocates for expressing their opposition.
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DEATH PENALTY NEWS: Texas has scheduled for today what would be the second execution in the United States this year.
The state wants to kill Robert Fratta for his part in a 1994 murder-for-hire plot in which his ex-wife was murdered. Fratta, the middleman Fratta hired to find a gunman, and the gunman are all on death row for the murder, Houston Public Media reported.
The U.S. Supreme Court has already this week rejected two of Fratta’s requests to halt his scheduled execution. A third request remains pending, a challenge relating to Texas having concealed information about the sole eyewitness, who was put under hypnosis by the state in the presence of police officers.
The technical question is whether a state law that limits review of cases is sufficient to shield Fratta’s case from additional federal court review. On Monday, Texas argued that federal court review should be rejected and the execution should be allowed to proceed.
The scheduled execution is the first of nine scheduled executions already on the books for Texas this year, according to the Death Penalty Information Center.
Oklahoma also has an execution scheduled for this week. The state — in the midst of attempting to carry out a 25-person killing spree that began last summer — has scheduled the execution of Scott Eizember for Jan. 12. The state’s pardon and parole board denied Eizember clemency on a 3-2 vote in December.
ANTI-TRANS BILLS: New legislative sessions are getting started across the country, which means more anti-transgender bills and anti-LGBTQ bills are being proposed. Many will be debated, some will pass one or both chambers of the state’s legislature, and some will become law. It can be overwhelming to track and cover such legislation and legislative debates, and I truly appreciate the hard work done by those who do so consistently and conscientiously.
I’ll have more on specific bills as the year proceeds, but, for today, I wanted to highlight one of the people who I’ll be following this session: Erin Reed.
Here is Reed’s coverage of a bill out of Oklahoma, one of the most extreme anti-trans measures we’ve seen thus far:
And, here is Reed’s latest, a roundup of what is being introduced around the country:
Do keep in mind that bills aren’t laws, and that laws can and often do face court challenges, but paying attention to what is being proposed is important to opposing such bills — whether to the public, in the legislature, to the governor, or in court.
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1) With the Republicans in control of the House for the next two years, President Biden should focus on getting judges confirmed. Non-stop. He should fill every single vacancy that exists. Republicans long before the Democrats realized the importance of the courts in shaping the country, and it's long past time that the Democrats played the same game.
2) Once again, the so-called "pro life" states seem exceptionally eager to put people to death.
3) Those same Red States do love to abuse the LGBTQ community, don't they? So mean-spirited, and so completely unnecessary.
Since you seem to favor elimination of blue slips for district court nominees, I have a question: Are you prepared to see the next Republican president packing blue state district courts with judges like Aileen Cannon, Matthew Kacsmaryk, Drew Tipton, etc.?
I see a lot of people advocating elimination of blue slips and literally none of them seriously consider the risk of doing that. The usual response I get some variant of "Mitch will just get rid of blue slips for district judges anyway." But he could have done it before and didn't. The usual response to that is "Mitch cares only about his own power, not the Senate as an institution." I agree. But he still kept district court blue slips in place when he could have elimiated them.
I'm on team "the filibuster on legisdlation should be abolished or at least weakened." But no one has yet made an argument that convinces me that blue slips should be eliminated.