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The Judiciary at Noon, #42: September 27 to October 3, 2024

Keep up-to-date on the US federal judiciary, September 27 to October 3, 2024.

Anthony Myrlados
3–4 minutes

Image courtesy of Sora Shimazaki/Pexels

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

No judges were confirmed for the week spanning September 27 to October 3, 2024.

Vacancies

  • Sep. 27, 2024: Judge James Edward Shadid of the Central District of Illinois assumed senior status, opening a vacancy on the court.
  • Oct. 1, 2024: Judge Lance Michael Africk of the Eastern District of Louisiana assumed senior status, opening a vacancy on the court. As of Oct. 3, Senior Judge Africk’s vacant seat has been declared a judicial emergency as there is a very high caseload relative to the number of active judges still serving on the court.
  • Oct. 1, 2024: Judge Nancy Torresen of the District of Maine announced she would be assuming senior status on October 11, 2025.

66 vacancies remain on the federal judiciary, an increase from 65 a week ago.

Retirements, Deaths, and Resignations

  • Oct. 1, 2024: Senior Judge Joseph Harold Gale, appointed by Clinton and reappointed by Obama, retired from service as a Judge of the United States Tax Court.

Other

Judges seated

  • Oct. 3, 2024: Jeffrey Samuel Arbeit received his commission to serve as a Judge of the United States Tax Court.
  • Oct. 3, 2024: Benjamin Alfred Guider III received his commission to serve as a judge of the United States Tax Court.

Chief Judges

  • Oct. 1, 2024: Judge Andrew Patrick Gordon, an Obama appointee, became Chief Judge of the District of Nevada. He is succeeding Judge Miranda Mai Du, an Obama appointee, as Chief Judge.

Analysis

With Africk’s retirement, the Eastern District of Louisiana now has an active Democratic majority. There are now five Democrats and four Republicans serving in an active capacity, though with three vacancies on the court, I would hardly call this a Democratic majority.

I was surprised to see the Torresen vacancy. It is extraordinarily late at this point for Torresen, an Obama appointee, to take senior status if she wishes to be replaced by a Democratic judge. The chance that Biden will find a nominee for this seat and this nominee will be confirmed this year is close to zero.

Is there anything to make out of this vacancy? Torresen is the fifth judge in the nine weeks since Joe Biden dropped out to take senior status or announce a date to take senior status. That seems like a frequent vacancy rate to me, especially in an election year, about a month away from the election.

Then again, three of these judges are Republican appointees; two are Democratic appointees. Are these judges sending a message, forecasting who they think will win and preparing for a smooth ideological transition? Or is this all just a coincidence? I think it’s the latter.

Last week was the vice presidential debate. I don’t think it’s going to change anything. We have some polling indicating that many viewers thought the debate was a tie. The presidential race remains close, with odds slightly favoring Kamala Harris.

While I don’t think anyone won the debate last night, I do appreciate it being the first “positive” debate in a long time, and it seems a lot of people appreciate that as well.

Now, what is going on with these commissions? We have a number of judges who have been confirmed for weeks and still haven’t been seated. Here’s an example: Jeanette Vargas was confirmed to the Southern District of New York on September 10th. That was almost a month ago.

Come on, people. You’ve been appointed a federal judge. It’s an honor. But you also have an obligation to serve the American people “in good behavior”, as the Constitution says. That means there is an expectation that you will assume your role in good time, and get to work resolving cases.

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.

5 responses to “The Judiciary at Noon, #42: September 27 to October 3, 2024”

  1. Avatar
    Anonymous

    There have been some changes at the US Tax Court, Senior Judge Joseph H. Gale has retired effective at September 30, 2024, and Jeffrey Arbeit and Benjamin Guider have been sworn in at October 3, 2024 and started their terms.

    Nancy Torrensen is not eligible for senior status before October 7, 2025, hence she’s not able to go earlier, but determined to leave at the earliest possible date. Afterwards the court will most probably have the same composition for twelve years. Although it’s a state court question, but at the Maine Supreme Court there is an open slot since January 31, 2024, where the governor have not nominated somebody. That means the chance of a job as federal judge in Maine is very dire for the next decade after Lipez and the Torrensen successor are confirmed.

    The question, why it’s lasting longer for getting the commission signed is, seems that after long months of waiting for senate confirmation many people want to have a vacation before, or that a transfer have to be made at some positions, especially Michelle Court from the Central District of California is a supervisor of 150 judges, Byron Conway at the Eastern District of Wisconsin as shareholder of a law firm might also need some paperwork to do , but Jeannette Vargas as prosecutor and Rose Jenkins as attorney at the Internal Revenue Service might start their jobs maybe a little bit faster. Generally it’s desirable that they start at the next possible date. On the other side they can’t really plan their lives for a longers time, like Adeel Mangi, Sarah Russell or Mustafa Kasubhai, who are both waiting more than a year, and maybe they won’t be confirmed at the end. So it you have planned vacation long before, I wouldn’t blame them for it.

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    1. Anthony Myrlados Avatar
      Anthony Myrlados

      Thank you for the updates. When I write the article, it was not yet known that Arbeit and Guider III had been commissioned. I have updated the article to include these changes.

      Normally, I don’t track retirements or deaths on the Tax Court, but your insight has inspired me to track that Court as well going forward. When I have the time I will go back to previous articles and write down appropriate changes to the United States Tax Court in those entries as well.

      Regarding the commissions, that is some useful insight regarding why it may be taking some time for these judges to be seated. Nevertheless, I am surprised that Vargas is taking so long to take her commission. It has been almost a month!

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  2. Breadmaker Avatar
    Breadmaker

    Can you clarify in respect of the seating a judge? Does it all depend on the judge ()self?

    Liked by 1 person

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    1. Anthony Myrlados Avatar
      Anthony Myrlados

      Hello Breadmaker, once a judge is confirmed by the Senate, they must receive a judicial commission to begin working. This is essentially a certificate signed by the President authorizing them to begin working as a judge. A confirmed judge does not have to take a commission immediately and may wait before choosing to do so. Many judges are lawyers, professors, managers, etc. and so they may take some time to finish projects, submit letters of resignation, and transfer their work. We currently have a judge confirmed almost a month ago who has not received their commission. But the President must be willing to sign the commission. If the President does not, the judge cannot begin hearing cases. This famously occurred in 1801, when Thomas Jefferson refused to hand over commissions to five judges appointed by the previous President, John Adams. The five judges sued in the landmark case Marbury v. Madison (1803), where the Supreme Court took the power of declaring a law unconstitutional for itself.

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  3. Avatar
    Anonymous

    I appreachiate your work, some things are also slipping under my radar, so I hope it’s ok when I write it down when I notice something is missing, should not look like know-it-all attitude. I studied the website of the US Tax Court for a longer time, because Judge Gale was just put on the list of the senior judges, but there was no update at the biographical data for almost a year, and now he retired completely.

    On behalf of the new chief judge at the Fifth Circuit, Priscilla Owen turned seventy at October 4, 2024, hence her term ended that day and Jennifer Walker Elrod is the new chief judge now. I had that on my screen, as well as Prof. John Collins jr., who made a notice on his Bluesky account, but there was no press release from the court itself and I have also not read it somewhere else, so you have been very attentive.

    Another new chief judge at the Superior Court of the District of Columbia, where Milton C. Lee has replaced Anita Josey-Hering, who retired effective at October 1, 2024, the court has now nine vacancies again, if they follow the usual procedure, her post can’t be filled until the end of the year, the White House have here to nominate one out of the 4 remaining candiadates submitted for the last two vacancies.

    The handling of commissions are not always clear, they can be signed at the same day directly after the confirmation, but it can also last months, I remember Maame Ewusi-Mensah Frimpong at the Central District of California needed some months at the, she was confirmed in December 2021 and received her commission in February 2022. And the time the commission is signed, is not necessary the date, they start their jobs. Prosecutors as Jeannette Vargas can assign their jobs to other collegues in the office, so that usually doesn’t require more than a month.

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