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The Federal Tap: Comparing Trump’s judicial appointments to prior presidencies

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May 18, 2019Issue No. 161

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Week in review
On tap next week

THE WEEK IN REVIEW

Here's what happened in Federal politics last week.

Monday, May 13

U.S Supreme Court rules App Store users can sue Apple, issues two other rulings

  • The U.S. Supreme Court issued three opinions. Here is a summary of those cases:
    • Apple v. Pepper was argued before the court on Nov. 26, 2018.
      • Robert Pepper and other plaintiffs filed an antitrust lawsuit against Apple Inc., alleging the company was monopolizing the market for iPhone apps. Apple controls which apps can be sold through its App Store and keeps 30% of sales from apps developed by third-party developers that are sold in the App Store.
      • A U.S. District Court dismissed the antitrust lawsuit. Citing the U.S. Supreme Court's 1977 decision in Illinois Brick Co. v. Illinois, the district court ruled App Store customers could not sue for antitrust violations because they are purchasing their apps directly from the developers, not Apple. According to Illinois Brick, "only the overcharged direct purchaser, and not others in the chain of manufacture or distribution" are able to sue for antitrust violations. The 9th Circuit Court reversed the dismissal, ruling that consumers are purchasing from Apple, not the app developers.
      • The outcome: In a 5-4 opinion, the U.S. Supreme Court affirmed the 9th Circuit’s ruling, holding that people who purchase apps through Apple's App Store are direct consumers and can sue Apple for having a monopoly in the market and increasing prices. Justice Brett Kavanaugh delivered the majority opinion and was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Neil Gorsuch authored the dissenting opinion and was joined by Chief Justice John Roberts, and Justices Clarence Thomas, and Samuel Alito.
    • Cochise Consultancy Inc. v. United States, ex rel. Hunt was argued before the court on March 19, 2019.
      • After serving time in prison for being part of a fraudulent subcontracting scheme, Billy Joe Hunt, a Parsons Corporation employee, filed a lawsuit alleging that Parsons and Cochise Consultancy Inc. violated the False Claims Act (FCA). Parsons and Cochise argued the statute of limitations barred Hunt’s claim. The statute requires a violation to be brought within six years of the violation or three years "after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.” The district court granted the contractors’ motion to dismiss, but the 11th Circuit reversed and remanded the case.
      • The outcome: In a 9-0 opinion, the court held that a relator (private citizen) in a False Claims Act qui tam action lawsuit can rely on the statute of limitations, but the relator is not an official of the United States. A qui tam action refers to a lawsuit brought by a private citizen against a company who is believed to be in violation of the law in performing a contract with the government. Justice Clarence Thomas wrote the opinion of the court.
    • Franchise Tax Board of California v. Hyatt was argued before the court on Jan. 9, 2019.
      • In 1993, Gilbert Hyatt, a computer chip inventor, was audited by the Franchise Tax Board of California (FTB). Hyatt had moved from California to Nevada, and FTB said he owed $1.8 million in state income taxes, along with other penalties. According to the National Conference of State Legislatures (NCSL), “Hyatt sued FTB in Nevada state court for several intentional tort and bad faith conduct claims. FTB argued that the Nevada courts were required to give FTB the full immunity to which it would be entitled under California law.”
      • In Hyatt I, decided in 2003, the U.S. Supreme Court held that Nevada courts did not have to give FTB full immunity, and a Nevada district court awarded Hyatt over $400 million in damages.
      • In Hyatt II, decided in 2016, the U.S. Supreme Court issued a 4-4 ruling on whether to overrule Nevada v. Hall, which permits a state to be sued in another state’s courts without its consent. The court issued a separate ruling that limited the amount of damages Nevada courts could award.
      • FTB appealed to the U.S. Supreme Court, which agreed to hear the case for the third time, resulting in the 2019 Hyatt III case. In a 5-4 decision, the court overruled Nevada v. Hall and established that a state cannot be sued in another state’s courts without its consent. Justice Clarence Thomas delivered the opinion of the court. He was joined by Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Justice Stephen Breyer filed a dissenting opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Tuesday, May 14

State Sen. Dan Bishop wins Republican primary in NC-09 special election

  • State Sen. Dan Bishop (R) won the Republican primary for the special election in North Carolina's 9th Congressional District with 48% of the vote. The 10-person field was the largest number of Republican candidates in the district since 2012.
  • Since Bishop received more than 30% of the primary vote, a Republican primary runoff is unnecessary, and the special election will be held on September 10. Bishop will face Dan McCready (D), the party’s 2018 nominee who ran unopposed in the Democratic primary.
  • Union County Commissioner Stony Rushing (R) came in second, receiving 19% of the vote. Club for Growth, which endorsed Bishop, spent more than $78,000 on ads against Rushing.
  • The National Association of Realtors spent the most money in the race, putting $1.3 million into television and radio ads supporting realtor Leigh Thomas Brown (R). She finished fourth —with 9%—behind former Mecklenburg County Commissioner Matthew Ridenhour (R), who received 17%.
  • The special election was called by the state Board of Elections following an investigation into alleged absentee ballot fraud in the 2018 election.

Wednesday, May 15

Trump has fourth-most Article III judicial appointments of last 13 presidents

  • Through May 15 of the third year of his term, President Donald Trump has made the fourth most Article III judicial appointments of the last 13 presidents, dating back to Harry Truman. The three presidents who had more at this point were Bill Clinton (141), George W. Bush (124), and John F. Kennedy (116).
    • Article III judges are lifetime appointments to the U.S. Supreme Court, a U.S. court of appeals, a U.S. district court, or the Court of International Trade.
  • Trump has made the most appeals court appointments through this point, 39, which is 22% of the 179 appeals court judgeships in the country. The next highest number of appointments at this point in a presidency was Richard Nixon (25) and George W. Bush (21).
  • Kennedy had 56 total Article III judges confirmed in the first year of his term, most among the group. Dwight Eisenhower had nine, the fewest. Trump's 19 appointments in the first year of his presidency were eighth-most.
  • Trump has made the eighth-most district court appointments, 63, which is 9% of the 677 district court judgeships. Clinton had made 118 such appointments, and George W. Bush had 100.
  • Trump inherited 108 Article III judicial vacancies when he was inaugurated. This represented 12.4% of the 870 Article III judicial posts. Among the last six presidents, only Clinton inherited more vacancies—111 of 842 positions, or 13.2%.

Thursday, May 16

Bullock and de Blasio enter presidential race, 20 Democrats qualify for first set of debates

  • New York City Mayor Bill de Blasio (D) declared he was running for his party’s 2020 presidential nomination. In his campaign announcement, de Blasio stated that a $15 minimum wage, paid sick leave, mental health services, and universal pre-K were key policy issues he has worked on in New York. He is the third sitting mayor to enter the race.
  • Montana Gov. Steve Bullock (D) also announced that he was running for president earlier in the week. In a video posted to social media, Bullock focused on his Montana roots, campaign finance reform, and bipartisan efforts as governor.
  • Twenty candidates, including Bullock and de Blasio, have qualified for the first set of Democratic primary debates in late June.
  • A maximum of 20 candidates—10 per night of the debate—will be able to participate. If more than 20 candidates qualify, the DNC will use the following three tiebreakers, in order, to determine who will participate: (1) candidates that meet both the polling and fundraising thresholds, (2) candidates with the highest average poll performance, and (3) candidates with the largest number of unique donors. Candidates have until June 12 to meet the qualifying thresholds.

Friday, May 17

Senate confirms Trump’s fifth nominee to the Ninth Circuit and two district judges

Congress is in session

The Senate will be in session May 20-24, and the House will be in session May 20-23. Click here to see the full calendar for the first session of the 116th Congress.

SCOTUS is in session

The Supreme Court finished hearing arguments for the October 2018-2019 term on April 24. To learn more about this term, read our review.

WHAT'S ON TAP NEXT WEEK

Here's what is happening in Federal politics this week.

Tuesday, May 21

First congressional special election of 2019 to take place in PA-12

  • College professor Marc Friedenberg (D) and state Rep. Fred Keller (R) are running in a special election to fill the vacant seat representing Pennsylvania's 12th Congressional District in the U.S. House. This will be the first special election of the 116th Congress.
  • The vacancy occurred following the resignation of former Rep. Tom Marino (R) on January 23, 2019. He beat Friedenberg by 32 points in November 2018. Donald Trump (R) won the district by 36 points in the 2016 presidential election.
  • In 2018, Democrats picked up three Pennsylvania U.S. House seats in special elections: Conor Lamb (D) won in Pennsylvania's 18th Congressional District in March 2018, while Mary Gay Scanlon (D) won Pennsylvania's 7th Congressional District and Susan Wild (D) won Pennsylvania's 15th Congressional District in November 2018.
  • So far, there have been four special elections called during the 116th Congress. Three of those are for seats in the U.S. House, and one is for a seat in the U.S. Senate. From the 113th Congress to the 115th Congress, a total of 40 special elections were held.


Where was the president last week?

  • On Monday, Trump participated in a bilateral meeting with the Prime Minister of Hungary.
  • On Tuesday, Trump attended a fundraiser and participated in a roundtable with supporters in Louisiana.
  • On Wednesday, Trump spoke at the 38th Annual National Peace Officers’ Memorial Service.
  • On Thursday, Trump met with the President of the Swiss Confederation and attended a joint fundraising committee dinner.
  • On Friday, Trump spoke at the National Association of Realtors Legislative Meetings and Trade Expo.

Federal Judiciary

  • 146 federal judicial vacancies
  • 61 pending nominations
  • 15 future federal judicial vacancies


About

The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

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