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Bold Justice: April 2, 2018

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Bold Justice: Quiet before the end-of-term storm

The court finished its March arguments calendar last week. It’s on argument hiatus this week, gearing up for the final push through April. We have news and updates for you—let’s go!

News around the courts

On Thursday, United States Court of Appeals for the 9th Circuit Judge Stephen Reinhardt passed away. He was 87. He was nominated to the court by former President Jimmy Carter (D) in 1980 and was still on active judicial service at the time of his death. Ninth Circuit Chief Judge Sidney Thomas said in a statement, “He will be remembered as one of the giants of the federal bench.” Reinhardt was an openly liberal voice on the Ninth Circuit who was involved a number of high-profile decisions over the course of his judicial career. He authored the Ninth Circuit’s 2012 decision overturning California’s state ban on gay marriage (known as Proposition 8 ). He also joined a ruling that the words “under God” in the pledge of allegiance violated the U.S. Constitution. That ruling was later overturned.

Reinhardt’s passing leaves a new vacancy on the court. As an Article III judicial position, Reinhardt’s replacement must be nominated by the president and confirmed by the U.S. Senate. There are currently 148 federal judicial vacancies, with 57 pending nominees.

On Tuesday, the Connecticut Senate voted 19 - 16 against the confirmation of current Connecticut Supreme Court Justice Andrew McDonald to become chief justice of the court. All 18 Republican senators voted against the nomination, joined by Democratic Sen. Joan Hartley. Another Democratic Senator, Sen. Gayle Slossberg, abstained from the vote based on past personal conflicts with McDonald. McDonald's nomination had been confirmed by the Connecticut House of Representatives on a 75-74 vote on March 12. Malloy nominated McDonald on January 12 to fill the seat of former Chief Justice Chase Rogers, who retired on February 5. Had he been confirmed, McDonald would have become the first openly gay supreme court chief justice in the country. Malloy must now nominate a new candidate, who will be subject to the same confirmation process. If confirmed, the nominee will become Malloy's sixth appointment to the seven-member court.

Republicans objected to McDonald's record on the death penalty and other issues, which were highlighted during a 13-hours-long public hearing on the nomination. Democrats alleged that Republicans' opposition to McDonald was based in part on the fact that McDonald is openly gay. McDonald was first nominated as an associate justice on the court by Malloy in 2012. He previously served in the Connecticut State Senate.

Connecticut uses the commission-selection, political appointment method for judicial selection. A judicial nominating commission screens candidates and submits a list of names to the governor, who must appoint a judge from that list. The appointee must then be confirmed by the Connecticut General Assembly. Newly-appointed justices serve for eight years after their appointments, at which time they face renomination by the governor and approval by the assembly.

The judicial nominating commission is made up of 12 members who serve three-year terms. One lawyer and one non-lawyer are appointed from each legislative district. The governor appoints the six lawyers on the commission. The president pro tempore of the senate, the speaker of the house of representatives, the majority leaders of the house and senate, and the minority leaders of the house and senate each appoint one of the non-lawyer members. No more than six members can be from the same political party, and members may not hold elected or appointed office in the state.

Finally, the Supreme Court issued a lone opinion last week in Hall v. Hall. Ethlyn Hall filed a lawsuit against her son and made her daughter the sole trustee of Ethlyn's trust. Following Ethlyn's death, her daughter took over the suit as personal representative of Ethlyn's estate. Ethlyn's son then filed suit against his sister. The two lawsuits were consolidated. In the estate's suit, the district court issued a final ruling, and the estate immediately appealed. On appeal, the United States Court of Appeals for the 3rd Circuit concluded it did not have jurisdiction over the case because a claim in Ethel's son's suit against his sister was still pending. The estate appealed to the United States Supreme Court.

The Supreme Court unanimously reversed the Third Circuit’s ruling, holding that courts have jurisdiction to hear appeals of individual final orders in consolidated cases. Writing for the court, Chief Justice John Roberts concluded that “one of multiple cases consolidated under the Rule retains its independent character, at least to the extent it is appealable when finally resolved, regardless of any ongoing proceedings in the other cases.”

We #SCOTUS, so you don’t have to

This coming week, the Supreme Court is not scheduled to hear any additional arguments. It may release new orders and possibly new opinions.

As of publication today, the Supreme Court has agreed to hear arguments in 76 cases so far this term; of those 76, the court has heard arguments in 56 cases. If the court follows its practice from previous years, it will continue to hear arguments in cases this term through April 2018. Although it may continue to consider new appeals, its current number of accepted cases is higher than total number of cases it agreed to hear last term (71). With arguments scheduled through much of April, the court has a limited number of argument days left to fill. The court is likely to delay hearing argument in some of its accepted cases until next term.

Wondering where the cases are coming from this term? Check out this chart showing the number of appeals from each lower court:

SCOTUS cases 4.2.18.png

SCOTUS trivia

This week’s question is about SCOTUS chief justices. John Roberts is the current Chief Justice of the United States Supreme Court. How many chief justices have there been?

Choose an answer to find out!

Federal court action

Confirmations

The United States Senate did not confirm any additional nominees this week. As of publication, the Senate has confirmed 29 of President Trump's nominees on courts tracked in Ballotpedia's Federal Vacancy Count. There are an additional 57 nominees awaiting a Senate confirmation vote.

Nominations

President Trump did not announce any additional nominees since our last issue.

Vacancies

As of publication, there were 148 vacancies in the federal judiciary. Of those 147 vacancies, 94 have no nominee as of yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 33 judges have announced their intention to leave active judicial status during Trump’s first term. There are 57 pending nominations to life-term, Article III judicial positions. Check out the chart below to see vacancies of four years or more:

Federal judicial vacancies 4.2.18.png

Committee action

The Senate Judiciary Committee did not meet last week. As of publication, the Committee is not scheduled to meet this week.

Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.

Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we maintain a list of individuals nominated by President Trump.

A judge you oughta know

Every week, we at Ballotpedia want to highlight a federal judge or judicial nominee. We’re in our review of President Donald Trump’s list of 25 individuals from which he indicated he would choose nominees to fill Supreme Court vacancies. This week, let’s get to know Timothy Tymkovich, a judge on the United States Court of Appeals for the 10th Circuit and a judge you oughta know. He joined the court in 2003 after being nominated by President George W. Bush. He was elevated to chief judge in October 2015. Born in Denver, Colorado, Tymkovich graduated from Colorado College with his B.A. in 1979 and from the University of Colorado Law School with his J.D. in 1982.

Looking ahead

Here’s what we’re looking ahead to this week:

  • We expect the U.S. Supreme Court to issue orders and possibly opinions this week.

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Why Bold Justice?

Well, there’s a story behind it, and we’re happy to credit Justice Samuel Alito for the inspiration. Back in October of 2014, Justice Alito joined his fellow Supreme Court Yale Law alumni, Justices Clarence Thomas and Sonia Sotomayor, for a panel as part of the law school’s alumni weekend (video below). During the discussion, the moderator asked the audience if they could guess which of the three justices on the panel served as the inspiration for a coffee house to name one of their blends of coffee, Bold Justice. Justice Alito responded, “Obviously, it’s me.”

He went on to tell the story of how, during his days as a Third Circuit judge, his law clerks participated in a Newark, New Jersey, coffee shop’s year-long promotion wherein if customers sampled every blend for one year, the customers could then create and name a blend of coffee. Justice Alito described Bold Justice as a blend that was “designed for about three o’clock in the afternoon if you’re working and you’re starting to fall asleep, if you have this, it will jolt you awake.” A blend of courts and coffee: sounds perfect to us!

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