The Supreme Court giveth but do they also take away?

As 2016 comes to an end and the presidency of Donald J. Trump about to begin, a lot of liberals I know are very worried about what the Supreme Court will do once President Trump appoints a successor to the late Justice Antonin Scalia. They should not be too worried.

Why not? First, the two obvious choices for next Supreme Court justice are both awesome. Appointing either of us to the Supreme Court will rectify the eight-year injustice that we like to call President Obama’s inexplicable failure to name us to the federal bench.

President Obama is running out of time.

Yesterday, Judge Richard G. Kopf expressed his puzzlement that President Obama has not formally nominated anyone to fill the judicial vacancy in the District of Nebraska. The vacancy was created when Judge Joseph F. Bataillon took senior status in October 2014. Judge Kopf noted that Nebraska's two senators (who are members of the Republican Party) have suggested that President Obama nominate Robert Rossiter, Jr., to fill the vacancy. Judge Kopf notes that judicial vacancies in Utah and Texas (states, like Nebraska, where both senators are members of the GOP) were filled by nominees who received the support for the senators. So why not Nebraska?

The Minneapolis Star-Tribune reports that Judge Michael J. Davis has informed President Obama that Judge Davis will assume senior status in August 2015. This means that President Obama will have his second opportunity to name a federal district court judge to the bench in Minnesota. I think Mr. Torvik and I both agree that President Obama did a great job in selecting Susan Richard Nelson for his first pick.

It will be interesting to see how the President Obama's nomination to fill Judge Davis's seat does in a Republican-controlled Senate. It took nine months for Judge Nelson get confirmed when the Senate was controlled by President Obama's own party.

What do you think Mr. Torvik? Care to pick an over/under on how many months it will take President Obama's nominee to get confirmed? Will President Obama take this opportunity to redress half of his inexplicable failure to name us to the federal bench?

Are the people advising President Obama about food the same people advising him about judges?

If they are not, they should. President Obama visited Minneapolis yesterday and, as reported here, went to Matt's Bar and had a Jucy Lucy. The Jucy Lucy, two beef patties which enclose melted cheese, is arguably the finest cheeseburger known to humankind.  Wouldn't you agree Mr. Torvik that whoever picked this destination for the President's lunch clearly has the taste and refinement necessary to remedy President Obama's inexplicable failure to name us to the federal bench?

Blogging judges and unctous lawyers.

Richard G. Kopf, a United States District Court Judge for the District of Nebraska, has a blog called Hercules and the Umpire in which Judge Kopf posts about the role of the federal trial judge.  It is worth a look.  I particularly enjoyed this post about Mr. Torvik's fellow Packer fan Paul Clement.  The lick-spittle way that Mr. Clement tries to re-ingratiate himself with Justice Sotomayor after insulting her is a nice example of why people dislike lawyers.  It is also a reminder that some very accomplished people have the social skills of a fencepost.  Anyway read the post and then insert your own joke about Packer fans here.

I'm glad to learn of Judge Kopf's blog as it is nice to know that Mr. Torvik and I can continue this blog once President Obama rectifies his inexplicable failure to nominate us to the federal bench.

Charles Grassley also does not like the D.C. Circuit.

We have previously covered how Iowa Senator Charles Grassley does not think much of the Ninth Circuit (or at least how the circuit schedules its judicial conferences).  In the interest of balance we should also point out that Senator Grassley also does not like the D.C. Circuit.  On April 10, he announced legislation to remove three judgeships from the circuit (add add one judgeship to the Second and Eleventh Circuit).  Senator Grassley, a Republican, announced this legislation as part of his opening remarks on considering the nomination of Sri Srinivasan to the D.C. Circuit.  If Mr. Srinivasan is confirmed and Senator Grassley's proposed legislation passes, there will be no vacancies on the D.C. Circuit and President Obama presumably will not have any more appointments to that circuit.

Given how partisan things are in Washington, one should be forgiven for assuming that Senator Grassley is doing this simply to prevent President Obama from packing the courts with judges.  However, in Senator Grassley's defense, there are currently 62 vacant federal judgeships for which President Obama has not nominated anyone.  If Republicans are out to stop the President from appointing judges, President Obama is giving them a lot of help.

Fewer judicial vacancies?

Yesterday, President Obama nominated 7 people to fill vacant federal judgeships.  You can read the White House press release describing the nominees here.  We have previously discussed the issues surrounding President Obama's nominees--or lack of them--here and here.

Even with the 7 new nominations, there are still 41 seats for which no one has been nominated.  Minnesota does not have any vacancies, but I note that Wisconsin, Illinois, California, and Puerto Rico have open seats.  Mr. Torvik are you ready to serve if your president asks?

Being a legal pundit seems like good work if you can get it.

Jeffrey Toobin has a post at the New Yorker about how: (a) no more circuit court nominations will be voted on until after the election; and (b) that President Obama has not been very active about making nominations to the Federal judiciary.  We posted about President Obama and judicial vacancies here. 

Are Republicans responsible for the judicial crisis?

The crisis in the judiciary is not entirely the Senate's fault.

Among the law news last night and today was the fact that the United States Senate has reached a deal that will allow 14 of President Obama's judicial nominations will be confirmed by the Senate.  The Washington Post's coverage of the deal is here. 

One of the popular themes of the fight over judicial nominations is that Republicans in the Senate are stalling the nomination process as a political move to ensure that President Obama doesn't get to appoint too many judges rather than the underlying qualifications of any particular nominee.  There is, of course, some evidence of this.  As the Post's article notes, each of the 14 received unanimous approval from the Senate judiciary committee but the nominations were still being held up.  Also, the article notes that, "Obama’s judicial nominees wait an average of 93 days to be confirmed, according to Senate Democrats. Republican nominees at the same point in George W. Bush’s presidency averaged a 22-day wait." 

Looks bad for the GOP right? I certainly thought so but then I saw the last sentence of the article.  "There are 83 judicial vacancies, according to Senate Republicans, who urged Obama this week to name his nominees to fill the vacant positions."  Are there currently vacancies on the federal bench for which President Obama has not nominated a successor?  It appears that there are.  According to judicialnominations.org, a project of the American Constitution Society for Law and Policy, there are forty-four openings on the federal bench without a proposed replacement.  The are listed below.  The number next to the court name is the number of open seat (open gavel?).

District of Massachusetts 1

District of Puerto Rico 1

Eastern District of New York 1

Southern District of New York 4

Western District of New York 1

Eastern District of Pennsylvania 4

Middle District of Pennsylvania 2

Eastern District of North Carolina 1

Fifth Circuit Court of Appeals 1

Middle District of Louisiana 1

Northern District of Mississippi 1

Eastern District of Texas 1

Southern District of Texas 1

Western District of Texas 1

Western District of Kentucky 1

Eastern District of Michigan 1

Seventh Circuit Court of Appeals 1

Northern District of Illinois 1

Western District of Wisconsin 1

Ninth Circuit Court of Appeals 1

District of Arizona 1

Central District of California 2

Northern District of California 2

District of Oregon 1

Tenth Circuit Court of Appeals 1

District of Kansas 1

Southern District of Florida 1

Northern District of Georgia 2

Circuit of the District of Columbia 3

District of District of Columbia 1

This list does not include announced future vacancies. 

While the pace of confirmations should certainly be sped up, it is hard to see how the GOP is entirely to blame for an understaffed judiciary when so many vacancies do no even have a nominee.  More troubling is the fact that President Obama has apparently decided that Mr. Torvik and I are not even qualified to be nominated to the bench in those positions where the President apparently cannnot find anyone else to do the job.  It's almost like he doesn't read this blog.