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Fair Courts E-Lert: New Vacancies Pave the Way for Biden Judicial Appointments

This Fair Courts E-Lert highlights the retirement of several federal judges, a bomb threat called into the U.S. Supreme Court on Inauguration Day, and more.

Last Updated: January 29, 2021
Published: July 15, 2021

New Vacancies Pave the Way for Biden Judicial Appointments

Following the inauguration of President Joe Biden on January 20, several federal judges have opted to assume senior status, which will enable the new president to fill their seats.

U.S. District Judge Victoria Roberts sent a letter to Biden on Inauguration Day announcing her decision to take senior status. The following day, Judge Robert A. Katzmann announced his decision to do the same, creating a vacancy on the U.S. Court of Appeals for the Second Circuit. On January 25, U.S. District Judge B. Lynn Winmill also announced he is taking senior status, creating another vacancy for Biden to fill.

As of January 29, Biden has 53 judicial vacancies to fill, in comparison to former President Trump, who began his time in office with 112. In all, Trump appointed 229 federal judges, including three Supreme Court justices. President Obama confirmed 324 judges as did George W. Bush over their respective two terms in office.

U.S. Supreme Court Receives Bomb Threat Just Hours Before Biden Inauguration

The U.S. Supreme Court received a bomb threat on January 20, just hours before President Joe Biden took the oath of office. In a statement, the Court said it had experienced “a bomb threat, the building and grounds were checked out, and the building is not being evacuated.”

Beyond the U.S. Supreme Court, other federal judges have faced security threats in recent years. Last year, federal Judge Esther Salas’ son was murdered and her husband injured after a shooting at her home in New Jersey. In 2017, federal Judge James Robart received over 100 death threats after he blocked former President Trump’s Muslim travel ban. In total, four federal judges and three family members have been killed since 1979.

The attack on Salas’ family prompted Congress to introduce legislation that would protect personally identifiable information of federal judges and their immediate family members. The federal judiciary also sent recommendations to Congress that would increase the current judicial security infrastructure.

Kansas Republicans Reject Public Defender for Judicial Nomination for the Second Time

On January 21, the Republican-controlled Kansas State Senate rejected Democratic Governor Laura Kelly’s nomination of Carl Folsom III for a vacancy on the state’s second-highest court. The vote on Folsom’s nomination was 18–17 in favor, but he needed 21 votes to be approved.

This is the second time the state Senate has rejected his nomination to the Kansas Court of Appeals since last June. Some Republican senators criticized Folsom over his experience as a federal public defender, with some suggesting he would be an “activist” judge. Folsom’s supporters argued that his experience as a defense attorney and broad support from the legal community, including the state’s top federal prosecutor who was appointed by former President Trump, made him well-qualified for the vacancy.

That same day, the state Senate voted 37–0 to confirm Kelly’s nominee Amy Cline, a corporate lawyer with experience representing oil and gas companies, to the Kansas Court of Appeals.

Study Recommends Legislation to Protect Independence of Administrative Law Judges

A new study by Richard E. Levy, a law professor at the University of Kansas, and Robert J. Glicksman, a law professor at George Washington University, examining the independence of Administrative Law Judges during the Trump administration recommends measures to protect them against politicization.

The study argues that actions by former President Trump, such as his removal of ALJs from civil service merit selection requirements, the U.S. Supreme Court’s endorsement of a strong unitary executive theory, and a Justice Department memo weakening good-cause removal protections for ALJs, “raise concerns about the neutrality and independence of ALJs.”

The authors recommend Congress pass legislation creating an independent group of federal ALJs using the “central panel” model, under which ALJs are no longer officers of the agencies they serve. This change would allow ALJs to maintain their policy authority and expertise, while also ensuring judicial independence. “Taking reasonable steps toward securing independent and impartial adjudication by agencies is a nonpartisan issue that Congress can and should address,” the authors wrote.