The Enlightenment

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Welcome to The Judiciary at Noon! Take a break from work to get an update on the oft-neglected third branch of the United States government, the judicial branch.

The series covers any updates to the federal judiciary, including any new judges confirmed, any deaths, resignations, or retirements from the courts, and any new vacancies that have occurred. It includes political analysis at the very end. All information spans the previous week.

Confirmations

• Sep. 25, 2024: Byron Browning Conway was confirmed to the Eastern District of Wisconsin by a vote of 58 – 37.
• Sep. 25, 2024: Jeffrey Samuel Arbeit was confirmed to the United States Tax Court by voice vote.
• Sep. 25, 2024: Benjamin Alfred Guider III was confirmed to the United States Tax Court by voice vote.

All vacancies on the Eastern District of Wisconsin have now been filled.

Vacancies

No vacancies occurred in the week spanning September 20 to 26, 2024. 65 vacancies remain on the federal judiciary, down from 66 a week ago.

Retirements, Deaths, and Resignations

No federal judges died, retired, or resigned in the week spanning September 20 to 26, 2024.

Other

Committee Hearings

• Sep. 25, 2024: The Senate Judiciary Committee held a hearing to consider six nominees to district courts in New York, Arizona, Georgia, Pennsylvania, and New Mexico.
• Sep. 26, 2024: The Senate Judiciary Committee cancelled its Executive Business Meeting to consider advancing one judicial nominee, one marshal, and various bills to a full vote in the Senate.

Analysis

With the Conway confirmation, the Eastern District now has an active Democratic majority; three judge appointed by Democrats, and two by Republicans. When considering all judges currently serving on the court, the Eastern District of Wisconsin is tied ideologically, three for three.

With the confirmations of Guider III and Arbeit to the United States Tax Court, an outright Democratic majority has now been formed on the court, with eleven Democrat-appointed judges, seven Republican-appointed judges, and one vacancy.

However, considering the United States Tax Court does not handle major constitutional issues, I doubt this is going to have a major impact on the outcome of cases. What we can be sure of is that Americans can resolve their tax disputes much quicker now.

So this is it. The action this week is the last that we will see for a long time. The Senate is going to be in recess for a long time again, and will only convene again on November 12, after the election.

How are Senate Democrats going to proceed the rest of the year? Nobody knows. We are approaching the last four, even less months of Biden’s presidency, and Senate Democrats will have a number of different things to consider on November 12.

First and foremost, when the Senate next convenes, two variables still up in the air will decide how they proceed. The first is who wins the November 5th election for President. The second is which party keeps control of the Senate.

If Trump wins, I expect Democrats will focus entirely on nominating as many judges as possible before Trump takes office, even if in the (in my opinion, very unlikely) scenario that Democrats keep the Senate.

If Harris wins, Senate Democrats may spend some time instead on confirming her nominees to the Cabinet. If Harris wins, she has the option of simply reappointing any of Biden’s nominees that may not have been able to be confirmed.

If Harris wins and Democrats lose the Senate, which I believe to be the most likely scenario, then I think they will focus on confirming judges. Will they be able to do it all? Frankly, I don’t think they will.

Right now Democrats have 24 nominees for consideration. Of those, six need to be voted out of the Senate Judiciary Committee. There are another five nominees that can realistically be put forward by year’s end. These are all the remaining nominees in states with two Democratic Senators.

Perhaps there is some miracle and a Republican Senator ends up cooperating, but I wouldn’t count on it at this point. So we are looking at a maximum of 29 nominees.

Of these nominees, five are currently for circuit courts. There is a potential additional nominee to the Third Circuit, meaning the number could be six. These nominees will all require a minimum period of time of debate after they are brought to consideration on the Senate floor, requiring an elaborate timing scheme to confirm them.

Furthermore, Senators Joe Manchin and Kyrsten Sinema are wildcards, and are not at all interested in playing ball with Democrats, meaning they are not reliable votes. Neither will be in office and neither appears to particularly care about getting Biden judges appointed.

On the other hand, after the election, Senators will be less worried about the political implication of voting for judges. I don’t believe the American public cares at all about a “controversial” vote on a judicial nominee, but Senators may nevertheless feel “free” after November 5th.

Some Democratic Senators, such as Jon Tester or Sherrod Brown, may very well lose their elections and have nothing to lose at all, and both, I believe, care about helping Biden judges get confirmed (unlike Manchin or Sinema).

In the event of a Harris victory, Senator J.D. Vance will end his Vice Presidential campaign and will be back in office to assist voting down nominees. On the contrary, in the event of a Trump victory, Vance will be out, and Harris will be in the Senate to cast tie-breaking votes, making confirming judges the easiest in such a scenario, ironically.

Then again, I still doubt certain nominees will be able to pass Senate muster. Sarah French Russell was nominated almost a year ago, and was grilled on her support for releasing prisoners during the worst of the COVID-19 pandemic. Mustafa Kasubhai has been nominated for over a year, with a vote on his nomination retracted earlier this year.

And of course, there is Adeel Mangi. Of all the nominations to the federal bench made by Biden, Mangi has been by far the most controversial, the most famous, and the most opposed. His nomination was unique in garnering not one, but two public statements of opposition by Democratic (not Republican) Senators.

Are these opposition fears going to go away after the election? Possibly. I predict some opposition will remain. Then again, I doubt President Biden would have kept Mangi’s nomination in consideration unless he knew he would eventually be confirmed…right?

No matter what, it seems like Democrats are planning to mount a judicial offensive in the post-break period. The first order of business will be confirming Cathy Fung, the final nominee to the United States Tax Court.

Afterwards, the Senate will move to vote on April Perry, nominee to the Northern District of Illinois, and then Jonathan Hawley to the Central District of Illinois.

What happens after that? I don’t know. Check back in seven weeks.

SIGN-OFF

That’s it for this week’s The Judiciary at Noon. This has been Anthony Myrlados. I’ll see you next noon and until then I wish you all an enjoyable weekend.