The Federal Tap: January 29, 2022
Our weekly summary of federal news highlights Supreme Court Justice Stephen Breyer's upcoming retirement and new congressional district maps in Arizona and Mississippi. Read all about it in this week’s edition of the Federal Tap.
Congress is in session
Both the House and Senate are in session next week. Click here to see the full calendar for the second session of the 117th Congress.
SCOTUS is out of session
The Supreme Court will not hear oral arguments next week. To learn about the 2021-2022 term, click here.
Where was the president last week?
On Monday, Tuesday, and Wednesday, Biden remained in Washington, D.C.
On Thursday, Biden remained in Washington, D.C., and delivered remarks on the retirement of U.S. Supreme Court Justice Stephen Breyer.
On Friday, Biden traveled to West Mifflin, Pennsylvania.
Opinion polling comparison during the Trump and Biden administrations
President Biden's approval rating for the 52nd week of his term was 41.5%, down 1.1 percentage points from the week before. President Trump's approval rating at the same point in his term was 39.9%, up 0.1 percentage points from the week before.
Federal Judiciary
- 79 federal judicial vacancies
- 32 pending nominations
- 35 future federal judicial vacancies
Upcoming Article III Judicial Vacancies
According to the latest vacancy data from the U.S. Courts, there were 35 total announced upcoming vacancies for Article III judgeships. One Article III judge has announced an upcoming vacancy since our last report on Jan. 22. The earliest vacancy announcement was on Jan. 22, 2021, when U.S. District Court for the District of Maryland Judge Ellen Hollander announced she would assume senior status upon the confirmation of her successor. The most recent was on Jan. 26, 2022, when U.S. Court of Appeals for the 1st Circuit Chief Judge Jeffrey Howard announced that he would assume senior status on Mar. 31, 2022. Twenty-two vacancy effective dates have not been determined because the judges have not announced the date they will leave the bench. The next upcoming vacancy will occur on Feb. 14, 2022, when U.S. District Court for the Central District of California Judge Virginia Phillips assumes senior status.
For historical comparison, on Jan. 30, 2021, there were 53 federal judicial vacancies and 14 upcoming vacancies in the federal judiciary reported by the U.S. Courts.
Supreme Court Justice Stephen Breyer to retire at the end of 2022 term
United States Supreme Court Justice Stephen Breyer announced on Jan. 27 that he would be retiring from the court at the start of the summer recess, which typically occurs at the end of June or the beginning of July. In his official letter of resignation, he said, “I enormously appreciate the privilege of serving as part of the federal judicial system - nearly 14 years as a Court of Appeals Judge and nearly 28 years as a Member of the Supreme Court. I have found the work challenging and meaningful.”
Breyer, a Bill Clinton (D) appointee, has served on the court since 1994. He is one of three justices on the current nine-member court appointed by a Democratic president.
Breyer’s retirement will be President Joe Biden’s (D) first opportunity to nominate a member to the court; Donald Trump (R) and Barack Obama (D) each nominated three SCOTUS justices while in office. Biden’s nominee will need to receive approval from the Senate Judiciary Committee and the full U.S. Senate before taking office.
In a statement regarding Breyer’s retirement, Biden said he intended to announce a nominee by the end of February and that, “The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court.”
Democrats currently hold a 50-50 majority in the full Senate, with Vice President Kamala Harris (D) casting the tie-breaking vote. Control of the committee is split 11-11. Under the organizing resolution the U.S. Senate adopted at the beginning of the current Congress, a tied vote in committee will not prevent a nomination from advancing to the full Senate.
President Biden will not need to wait for Justice Breyer’s retirement to take effect before selecting a nominee, giving Democrats time to confirm a successor ahead of the November elections. In the 15 Supreme Court vacancies that have opened since 1975, an average of 76 days elapsed between the outgoing justice leaving office and a successor taking their place.
SCOTUS accepts first cases for its 2022-2023 term
The Supreme Court of the United States (SCOTUS) accepted three cases for argument during its October 2022-2023 term on Jan. 24. These are the first cases SCOTUS has granted for its next term scheduled to begin on Oct. 3.
- Students for Fair Admissions, Inc. v. President & Fellows of Harvard (consolidated with Students for Fair Admissions, Inc. v. University of North Carolina)
- Axon Enterprise, Inc. v. Federal Trade Commission
- Sackett v. Environmental Protection Agency
Students for Fair Admissions, Inc. v. President & Fellows of Harvard (consolidated with Students for Fair Admissions, Inc. v. University of North Carolina) concerns the legality of higher education institutions using race as a factor in admissions decisions. The case originated from the U.S. Court of Appeals for the 1st Circuit.
Axon Enterprise, Inc. v. Federal Trade Commission concerns whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission before plaintiffs raise such challenges during agency adjudication proceedings.
Sackett v. Environmental Protection Agency concerns how to interpret the Clean Water Act to decide what land falls within the EPA's wetland regulatory jurisdiction.
Both Axon and Sacket came from the U.S. Court of Appeals for the 9th Circuit.
Last week, SCOTUS accepted one additional case for its current term. The court granted Oklahoma v. Castro-Huerta on Jan. 21. The case concerns state authority in Indian Country and the scope of the U.S. Supreme Court's ruling in the case McGirt v. Oklahoma (2020).
The court has accepted three cases for its 2022-2023 term. The court has agreed to hear 65 cases during its current 2021-2022 term and so far has issued decisions in eight of those cases.
Redistricting summary: Federal court panel blocks Alabama’s congressional map; Arizona, Mississippi enact new congressional district boundaries
Alabama
On Jan. 24, a unanimous three-judge federal court panel blocked Alabama Secretary of State John Merrill (R) from holding the state’s 2022 congressional elections using the redistricting plan the state adopted on Nov. 4, 2021. The panel delayed the filing deadline for U.S. House candidates, moving the date from Jan. 28 to Feb. 11 to give the Legislature time to redraw the map.
A spokesperson for Alabama Attorney General Steve Marshall (R) said, “The Attorney General’s Office strongly disagrees with the court’s decision and will be appealing in the coming days.”
Four sets of plaintiffs challenged Alabama’s new congressional districts for violating Section Two of the Voting Rights Act. Ruling on one of those lawsuits, Milligan v. Merrill, the panel wrote that the plaintiffs are “substantially likely to establish that the Plan violates Section Two of the Voting Rights Act.” The panel also said plaintiffs could likely show that “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.”
The judges directed the Legislature to devise a congressional redistricting plan “that includes either an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice.”
Arizona
Arizona enacted new congressional district boundaries on Jan. 24 after the state’s independent redistricting commission transmitted the maps to the secretary of state. Arizona was apportioned nine seats in the U.S. House of Representatives after the 2020 census, the same number it received after the 2010 census. The redistricting commission had originally approved the maps on Dec. 22, 2021.
Following their approval, the maps entered a review period during which time towns and counties could suggest minor administrative edits. On Jan. 18, the commission reconvened to discuss incorporating those edits and to certify the maps. The commission voted 3-2 to certify the congressional map.
At the time of the map’s enactment, Democrats held five U.S. House seats in Arizona and Republicans held four. The Arizona Republic’s Ray Stern wrote, “The new map, should it withstand legal challenges, favors Republicans in five — and possibly six — of the state’s nine districts.”
Mississippi
Mississippi enacted new congressional districts on Jan. 24 when Gov. Tate Reeves (R) signed the state's congressional redistricting plan. Mississippi was apportioned four seats in the U.S. House of Representatives after the 2020 census, the same number it received after the 2010 census. This map will take effect for Mississippi's 2022 congressional elections.
On Jan. 6, the state House approved the plan, 75-44, with 73 Republicans, one Democrat, and one independent voting in favor, and 41 Democrats, two Republicans, and one independent voting against. On Jan. 12, the state Senate approved the new congressional map, 33-18, with all votes in favor by Republicans, and 16 Democrats and two Republicans voting against.
After the state Senate approved the plan, Lee Sanderlin wrote in the Mississippi Clarion Ledger, “The bill preserves the current balance of congressional power in Mississippi, keeping three seats for Republicans and one for lone Democrat Bennie Thompson, D-Bolton."
Jan. 25 marked the second statewide filing deadline for the 2022 election cycle
On Jan. 25, the filing deadline to run for elected office in Kentucky passed. Candidates filed for the following offices:
- U.S. Senate (one seat)
- U.S. House (six seats)
- Incumbent John Yarmuth (D) is not running for re-election in Kentucky's 3rd Congressional District. There are five other house seats up for election, all of which have incumbents in the race.
- State Senate (19 seats)
- State House (100 seats)
- State Supreme Court
- Intermediate appellate courts
The primary is scheduled for May 17, and the general election is scheduled for Nov. 8, 2022.
Kentucky’s statewide filing deadline was the second to take place in the 2022 election cycle. West Virginia, New Mexico, Ohio, and Indiana also have federal filing deadlines in the coming week.
