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Bold Justice: February 12, 2018

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Bold Justice: Redistricting during recess

The Supreme Court is still in recess, but Bold Justice is back. Despite the recess, the Supreme Court issued two orders in redistricting cases. And South Carolina judges were re-elected, in one of only two states using legislative elections for judges. News and updates, on their way!

News around the courts

  • The U.S. Supreme Court denied Pennsylvania Republicans' request for a stay of a state supreme court order striking down the state's congressional district plan as an illegal partisan gerrymander, allowing that order to stand. On January 22, 2018, the state supreme court ruled that Pennsylvania's congressional district plan "clearly, plainly, and palpably violates the Constitution of the Commonwealth of Pennsylvania." Attorneys for Republicans argued that the state supreme court overstepped its authority in striking down Pennsylvania's congressional district plan: "This is not simply a question of a state supreme court interpreting its state constitution, but a state supreme court usurping that state legislature's authority expressly granted under Article I, § 4." David Gersch, an attorney for the voters who initially brought the lawsuit challenging the congressional district plan, said that Republicans were making inconsistent arguments, having claimed in a separate lawsuit that the matter should be addressed by state-level authorities: "Now that they have lost in the highest court of the commonwealth, the legislators turn around and say the exact opposite."
The state supreme court ordered lawmakers to draft a remedial map and submit it to the governor by February 9, 2018. The court set a deadline of February 15, 2018, for the governor to submit that remedial plan to the court. On January 26, 2018, the court appointed Stanford University law professor Nate Persily "to assist the court in adopting, if necessary, a remedial congressional redistricting plan." The court ordered state lawmakers turn over digital files containing information on the state's current congressional district boundaries by January 31, 2018." On January 31, 2018, according to The Philadelphia Inquirer, an attorney for the Pennsylvania General Assembly said, in a letter to the court, "The General Assembly and its Legislative Data Processing Center do not maintain ESRI shapefiles that contain current boundaries of all Pennsylvania municipalities and precincts."
  • The U.S. Supreme Court issued a partial stay against a federal district court order that implemented new state legislative district maps in North Carolina. The stay applies directly to five revised state House district maps in Wake and Mecklenburg counties. The four remaining district maps adopted by the district court (in Hoke, Cumberland, Guilford, Sampson, and Wayne counties) were permitted to stand. For all remaining districts, maps drawn by the state legislature in August 2017 will apply in the 2018 election season. The February 6 order came after state Republicans, on January 21, 2018, filed a motion requesting that the Supreme Court intervene and stay the order issued on January 19, 2018, by a three-judge panel of the United States District Court for the Middle District of North Carolina.
These court actions are the latest in a series of events surrounding North Carolina's state legislative district plans. In June 2017, the Supreme Court of the United States issued a ruling affirming an earlier district court decision finding that 28 state legislative districts in the state had been subject to an illegal racial gerrymander. The district court ordered state lawmakers to draft remedial maps by September 1, 2017, for use in the 2018 election cycle. The state legislature adopted remedial district plans in August 2017. In October 2017, the court appointed Nate Persily, a law professor at Stanford University, to serve as a special master "to assist the Court in further evaluating and, if necessary, redrawing" the remedial maps. Persily issued his recommendations, which were adopted as a result of the January 19, 2018, order, on December 1, 2017.
  • The California Judicial Council of the Second Circuit has closed its investigation into the misconduct allegations against former United States Court of Appeals for the 9th Circuit Judge Alex Kozinski. Kozinski retired from the court 10 days after allegations against him were first published in the Washington Post. In a four-page order, the Judicial Council wrote that because of Kozinski's retirement, it did not have the jurisdiction to continue investigating the allegations. The order stated, "Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the [Judicial Conduct and Disability] Act."
Kozinski was mentioned during the wave of sexual assault and misconduct allegations in 2017 and 2018. On December 8, 2017, The Washington Post reported that six women who previously served as clerks or externs in the Ninth Circuit alleged that Kozinski had engaged in inappropriate sexual conduct, including making comments with sexual overtones and showing them pornography on his computer. Kozinski responded to the allegations in a statement, saying, "I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”
  • The South Carolina General Assembly voted to re-elect South Carolina Supreme Court Justice John Kittredge and South Carolina Court of Appeals Judge Thomas Huff. South Carolina is one of only two states to use legislative election to select judges. Kittredge’s new term will expire in 2028; Huff’s will expire in 2024. They were the only judges up for election on their respective courts this year.
Justices on the South Carolina Supreme Court and judges on the South Carolina Court of Appeals are elected by the South Carolina General Assembly. Supreme court justices serve ten-year terms; court of appeals judges serve six-year terms. The South Carolina Judicial Merit Selection Commission screens and selects candidates for judgeships. The Commission then submits a list of three finalists to the general assembly. The assembly votes on the candidates, either choosing one of the three recommendations or rejecting the entire slate. The commission is composed of 10 members. The speaker of the South Carolina House and the president of the South Carolina Senate each appoint five members to the commission. Three of the five must be members of the General Assembly.


We #SCOTUS, so you don’t have to

As of publication today, the Supreme Court has agreed to hear arguments in 67 cases so far this term; of those 67, the court has heard arguments in 36 cases. SCOTUS typically adds more cases throughout the term. In its previous term, SCOTUS heard arguments in 71 cases. The court will continue to hear arguments in cases this term through April 2018 and will continue to consider new appeals. However, with arguments scheduled through March, the court has limited number of argument days left to fill.

SCOTUS trivia

Supreme Court justices have some pretty impressive resumes. And many of them share prestigious credentials. Three of the current justices are graduates of Yale Law School and five are graduates of Harvard Law School. Only one of the current justices graduated from law school somewhere other than Yale or Harvard. Your question: Name that justice.

a) Justice Ginsburg

b) Chief Justice Roberts

c) Justice Thomas

d) Justice Breyer

Choose an answer to find out!


Federal court action

Confirmations

The U.S. Senate did not confirm any additional nominees last week. As of publication, the Senate has confirmed 24 of President Trump’s judicial nominees.

Nominations

President Trump did not announce any new Article III nominations this week. Trump did announce two nominations to 15-year terms on the Superior Court of the District of Columbia:

  • Kelly Higashi
  • Shana Frost Matini

Vacancies

As of publication, there were 146 vacancies in the federal judiciary out of 870 Article III life-term judicial positions. Of those 146 vacancies, 92 have had no nominee put forth as yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 29 judges have announced their intention to leave active judicial status during Trump’s first term. There are 53 pending judicial nominations. Check out the chart below to see vacancies of four years or more:

Current judicial vacancies longest in days 2.12.18.png


Committee action

Last week, the Senate Judiciary Committee met to report nominees out of committee for a full confirmation vote. Four nominees were reported and will now face a confirmation vote in the U.S. Senate:

  • Kurt D. Engelhardt, nominee for the United States Court of Appeals for the 5th Circuit.
  • Barry W. Ashe, nominee to the United States District Court for the Eastern District of Louisiana.
  • Howard C. Nielson, Jr., nominee to the United States District Court for the District of Utah.
  • James R. Sweeney II, nominee to the United States District Court for the Southern District of Indiana.

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.

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 Thomas Hardiman, a judge on the United States Court of Appeals for the 3rd Circuit and a judge you oughta know. He was appointed to the court in 2007 after being nominated by President George W. Bush. Prior to his service on the Third Circuit Court of Appeals, Hardiman was a judge on the United States District Court for the Western District of Pennsylvania. Hardiman received his bachelor's degree from the University of Notre Dame in 1987 and his J.D. from Georgetown University Law Center in 1990.

Looking ahead

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

  • We expect the Senate Judiciary Committee to meet on February 14 to consider additional nominees and on February 15 to potentially report additional nominees for confirmation votes in the Senate.

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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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