#Appeals COurt for the Fourth District

[rodhalliburton]

Federal Court Fails K-5 Children

On May 16, 2024, Breitbart News reported the following: “A federal court on Wednesday upheld a Maryland school district policy that does not allow parents to opt their young K-5 children out of curriculum about gender identity and sexuality. In a 2-1 panel decision released by the U.S. Court of Appeals for the Fourth Circuit, federal judges affirmed a lower court decision denying the request of…

[rjzimmerman]

Excerpt from this story from Inside Climate News:

“This is the last turn and the end of the fourth hill of life, when Bad River, as a spirit, transforms into something other, something extraordinary,” Mike Wiggins said as he rounded a final bend in one of the largest and most pristine wetlands on the shores of Lake Superior, one of the biggest freshwater lakes in the world.

It’s “similar to our spiritual journey off this planet into something other and extraordinary.”

From the driver’s seat of his small fishing boat, Wiggins, the former chairman of the Bad River Band of Lake Superior Chippewa, contemplated his surroundings with awe as a bald eagle soared overhead.

Beds of wild rice, a key food source and cultural pillar of the Bad River tribe, danced in his wake, glinting under the afternoon sun and nearly ready for harvest. 

“This is a power place,” he said as he blasted Unbound, a recently released album by musicians including fellow Bad River tribal member Dylan Jennings. “It’s just no place for an oil pipeline.”

It has one, though. Seventy-one years ago, Lakehead Pipeline, a predecessor to Canadian pipeline company Enbridge, commissioned the construction of Line 5, a 30-inch diameter crude oil pipeline that transports up to 540,000 barrels of hydrocarbons per day from Superior, Wisconsin, to Sarnia, Ontario. The 645-mile line is part of a network that originates more than a thousand miles to the northwest in the oil fields of Alberta and, in the case of Line 5, ends back in Canada. It includes a 12-mile stretch that bisects the Bad River reservation, which is heavily forested with river crossings and large swaths of wetlands.

Any spill from the pipeline would drain into the Bad River and Kakagon Sloughs, where Wiggins fished. Known as the “Everglades of the North,” the area is protected under an international environmental agreement as well as multiple treaties between the U.S. and the Chippewa people, also known as the Ojibwe.

The path through the reservation was originally approved by the U.S. Bureau of Indian Affairs. However, more than a dozen easements granted to the pipeline, which was completed in 1953, have since expired.

In 2017, the Bad River tribal council voted unanimously not to renew them. Two years later, the tribe sued to have the pipeline removed from the reservation. The ongoing “David vs. Goliath” legal battle was chronicled in Bad River, a recent documentary.

In 2023, Judge William Conley of the U.S. District Court for the Western District of Wisconsin ruled in favor of the tribe and gave Enbridge three years to stop pumping oil through the reservation. The pipeline company has appealed the ruling.  

[beardedmrbean]

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

[justinspoliticalcorner]

Chris Geidner at Law Dork:

On Monday, 13 months after President Joe Biden announced that Adeel Mangi would be his nominee for a seat on the U.S. Court of Appeals for the Third Circuit, Mangi issued a searing indictment of a system that has left him as the longest-pending appellate nominee in the nation. “I have battled for justice, even if it meant there would be none for me,“ Mangi wrote in the letter, acknowledging there is “no pathway to confirmation” at this point.

[...] Mangi would have been the nation’s first Muslim American federal appeals court judge, and the attacks against him never stopped. After Republicans questioned him at his confirmation hearing largely with anti-Muslim guilt-by-association attacks, the opposition later expanded to include baseless claims of terrorism and anti-law enforcement connections. Then, three Democrats — Sens. Catherine Cortez Masto and Jacky Rosen of Nevada and Sen. Joe Manchin of West Virginia — announced earlier this year that they would not support Mangi’s nomination. As I wrote at the time, their opposition “is appalling cowardice, and they should be ashamed.” And yet, their opposition stood — and Mangi’s nomination went nowhere, as many others were confirmed.

Then, in the lame-duck session, Senate Majority Leader Chuck Schumer asserted that Mangi’s nomination lacked the votes to succeed — along with three other appeals court nominees — in reaching a deal with Republicans to allow district court nominees to proceed more easily. Of the other appellate nominees, Ryan Park, who was nominated for the Fourth Circuit, has already withdrawn his nomination — prompting the judge he was to replace, Judge James Wynn, to rescind his decision to take senior status upon the confirmation of his successor. The other two include Julia Lipez, nominated for a now-vacant seat on the First Circuit, and Karla Campbell, nominated for the Sixth Circuit seat currently held by Judge Jane Stranch. Like Wynn, Stranch was planning to take senior status upon the confirmation of her successor. Many are watching now to see if she, also like Wynn, rescinds her plans.1

Adeel Mangi got screwed out of being confirmed to a seat on the 3rd Circuit Court due to three craven cowardly Senate Democrats: Joe Manchin and both Nevada Senators (Jacky Rosen and Catherine Cortez-Masto).

Such a move reeked of pandering to Islamophobia, as Mangi would have been the first Muslim to serve on the federal appeals court level.

[mariacallous]

In the final weeks of 2024, Taiwan’s parliament once again turned into a pugilistic arena, as ruling-party lawmakers brawled with their opposition counterparts over barricades of furniture at the chamber entrances. It was at least the fourth such bust-up in 2024. Legislative brawls have a long tradition in Taiwan, but mostly they’re performative flailing. The fighting in 2024 saw lawmakers exchange punches, wrestle, throw water bottles, and even saw a male ruling-party legislator tackle and throw a female opposition counterpart to the ground.

As appalling as it was, the clashes were almost all instigated by the ruling Democratic Progressive Party (DPP), which still holds the presidency but is the minority in the legislature, where the opposition holds 62 out of 113 seats.

The ruling party’s continuous use of violence in the legislature and rallying of the public against the opposition and the legislature is undemocratic and reminiscent of heavy-handed tactics used by regimes in partly democratic states. The DPP and its supporters have tried to justify its actions by making wild claims about how the opposition is trying to create a parliamentary coup and “parliamentary dictatorship.”

In some ways, the situation resembles South Korea, where now-impeached President Yoon Suk-yeol declared martial law on Dec. 3 due in part to his irritation at the majority-controlled legislature. Incredibly, the DPP released a post on social media soon after Yoon’s martial law announcement that night implying support. It quickly withdrew that post, but not before people took note of it, which led to Taiwanese President Lai Ching-te having to reassure the public that the DPP did not support martial law.

Taiwan’s turbulent domestic politics have gone largely unnoticed despite the island sitting on a geopolitical fault line. The legislative fight on Dec. 20 occurred because the DPP was trying to prevent a vote on the third reading of several amendments that were eventually passed.

Back in May, legislative fights broke out after the DPP desperately tried to prevent a vote on amendments that would increase the power of the legislature and require the president to address the legislature, in essence seeking to both bolster the body and hold the president more accountable. They were passed by the legislature, but instead of signing them into law, Lai sent them to the Constitutional Court, which subsequently rejected most of the their powers. There have also been “smaller” fights in the legislature in the months in between, for similar reasons.

In addition, there is a pro-DPP protest movement that started in May that on Dec. 20 even tried to break into the legislature while it was in session, encouraged by several DPP legislators.

Besides legislative brawls, the government is also taking on the Taiwan People’s Party (TPP), the smaller of Taiwan’s two main opposition parties, indicting its founder, Ko Wen-je, a popular former Taipei mayor, on corruption charges related to a construction project during his mayoral term as well as funding for his presidential campaign last year. In the final week of December, prosecutors demanded that he be sentenced to an astonishing 28.5 years, after having held him incommunicado since September.

Ko was granted bail by the Taipei District Court, which led prosecutors to appeal to the High Court, which asked Ko to return for another bail hearing. Ko was granted bail a second time by the district court, which again led to prosecutors arguing for him to be brought back for a third bail hearing within a week. This time, on Jan. 2, Ko was ordered to return to detention.

The DPP and its supporters claim aggressive legislative antics are necessary to prevent certain bills or amendments from being passed that might undermine national security, but this is suspiciously opportunistic. After all, each of these bills and amendments reduces the political power of the DPP, whether by increasing scrutiny of the president, expanding legislative powers, or raising the threshold for launching recalls of elected politicians in positions where the main opposition Kuomintang (KMT) currently holds more offices.

That the KMT and TPP usually team up in the legislature, ensuring they can pass or vote down whatever bills they want, may be infuriating to the DPP, but that is how democracy works, specifically a divided government, which the US and even Taiwan itself has had several times. The DPP has relied heavily on the anti-China card while neglecting key problems such as energy, housing prices, and traffic deaths during the past few years, which saw it losing heavily in the November 2022 local elections.

Although the DPP lost the legislative majority in the national elections last January, the DPP’s Lai won the presidency, but only with 40 percent of the vote, despite facing two opposition candidates including Ko. It’s a situation reminiscent of South Africa, where the incumbent African National Congress (ANC) party also retained its presidency in last year’s election—but with only 40 percent of the vote. This required the party to form a coalition, but more importantly, to put aside its pride and work with the Democratic Alliance, the main opposition party that has starkly different views from the ANC. Taiwan’s DPP, in contrast, has eschewed any reconciliatory or cooperative approach with the KMT and TPP.

All this bickering, whether in the political, legal, or physical arenas, is extremely worrying. It has fostered a dysfunctional political climate and escalated societal tensions, and it now threatens to undermine democracy.

For example, Taiwan’s highest court, the Constitutional Court, has had seven vacancies after seven justices finished their terms last October. However, the legislature blocked all seven of Lai’s nominees in December, so the court, which usually has 15 justices, remains only just over half full.

Meanwhile, the government insists that one of the amendments passed on Dec. 20, the proposed increase of funding for local governments at the expense of Taipei, will undermine increased defense spending that it argues is essential for preparing for a future conflict with China.

Another amendment that raises the threshold for holding recalls against elected officials has been accused by the DPP of taking away the right of the public to hold politicians to account. Yet in Taiwan, recalls have been wielded in a retaliatory and petty manner as political weapons rather than as legitimate means of kicking bad politicians out of office, and the opposition’s proposals such as requiring signatories of recall petitions to provide photocopies of their ID cards are not unreasonable.

While the latter two amendments still have to be sent to Lai to be signed, an amendment that raises the minimum quorum for Constitutional Court hearings was promulgated on Jan. 23, though not before initially being sent back to the legislature for a revote. This was rejected by the legislature, so Lai had no choice but to implement the amendment, which came into effect later that week. However, both Lai and the DPP’s legislative caucus have said they would call on the Constitutional Court to review the amendment, which means further legal wrangling.

The detention of Ko after his third bail hearing caused the TPP to hold a rally to denounce what it claims is political persecution. A massive crowd of 150,000 gathered in Taipei on a cold Saturday on Jan. 11, a resounding demonstration of mass public discontent with the DPP, especially given that the TPP is only Taiwan’s second-largest opposition party. At the rally, the TPP slammed “green authoritarianism” (green is the DPP’s color) and warned that if the DPP could use the judicial system against Ko, it could go after any other politician. KMT politicians also appeared at the rally, further solidifying the two parties’ informal alliance.

In early January, the DPP legislative caucus whip threatened that the party might seek to recall over 40 KMT and aligned independent legislators, while the KMT replied that any such attempt would be met in kind. The DPP has since  initiated petitions to demand recall referendums for over 30 opposition lawmakers, with the KMT also doing the same for several DPP legislators.

Engaging in violence in the legislature to prevent bills from being passed, launching what many see as a political witch hunt against the leader of the third party, and attempting politically motivated recalls to target dozens of opposition lawmakers is a terrible look for any self-respecting democracy, much less one that is considered by some as a model in Asia. These dysfunctional domestic politics are not just embarrassing, but damaging for Taiwan’s stability.

[darkmaga-returns]

A federal district court has delivered a pivotal ruling that strikes at the heart of unchecked government surveillance. In the criminal case United States v. Hasbajrami, the court determined that backdoor searches of vast databases containing Americans’ private communications — collected under Section 702 — typically require a warrant. This judgment comes after more than a decade of legal battles and follows the Second Circuit Court of Appeals’ 2019 finding that such searches constitute “separate Fourth Amendment events,” leaving it to the lower court to address the warrant requirement. That question has now been resolved.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) grants the intelligence community the authority to collect communications between foreign targets, ostensibly for national security purposes.

[themenendezbrothers]

OZIEL - From the Archives: Menendez Tapes Ruled Acceptable as Evidence

Link to Article

By Lois Timnick

March 21, 1991 12 AM

Two Beverly Hills brothers allegedly confessed to their psychologist that they murdered their multimillionaire parents two months earlier “out of hatred and out of a desire to be free from their father’s domination,” according to tape recordings detailed Thursday in a state appellate court ruling.

Climaxing a year of legal wrangling, the 2nd District Court of Appeal ruled that psychotherapy sessions between Lyle and Erik Menendez and psychologist Jerome Oziel were not protected patient-therapist communications and that any claim to privacy had evaporated when the brothers threatened the therapist.The ruling, if upheld, means that the tapes will be given to prosecutors for possible use as evidence in the murder trial.

Attorney Joel Isaacson, who represents Lyle Menendez, 23, said the defense will appeal the decision to the state Supreme Court, thus delaying the release of the actual tapes and the start of proceedings against the defendants. They have been held in County Jail without bail since their arrest last year, and are due in Beverly Hills Municipal Court on Tuesday to schedule their preliminary hearing.

“Most of what is on the tapes is the statements, personal thoughts and impressions of Dr. Oziel,” said Isaacson, adding that the psychologist “clearly was manipulating Erik and Lyle.” He said the tapes represent but “a small portion” of the story that will unfold at trial.Three of the audiocassettes consist of notes dictated by Oziel after therapy sessions with the brothers on Oct. 31, Nov. 2 and Nov. 28, 1989. The fourth records a session on Dec. 11. The decision by the three-member appeals panel did not clearly identify which statements on the tapes were made by the brothers or by Oziel.

The tapes, seized from Oziel the day of Lyle Mendendez’s arrest, are the key prosecution evidence against the pair in the shotgun slayings of entertainment executive Jose Menendez and his wife, Kitty. They were shot at close range on the evening of Aug. 20, 1989, as they watched television and snacked on ice cream.

At first, authorities were investigating the murders as a possible mob hit aimed at Menendez, a high-ranking executive with Carolco Pictures Inc.

In October, 1989, Erik Menendez, now 20, telephoned his therapist for an urgent appointment.They met late Halloween afternoon, talking first in Oziel’s Bedford Drive office and then during a walk in a nearby park, according to court records. It was there, Oziel said on the tapes, that Erik confessed that he and his brother had committed the murder.

“Erik revealed in detail the planning and execution of the crime, including (the brothers’) fabricated alibi defense,” Oziel said, according to the decision.

On Nov. 2, 1989, both brothers discussed their motivation for the crime, according to the psychologist’s account. “They didn’t kill their parents for money but rather out of hatred and out of a desire to be free from their father’s domination, messages of inadequacy and impossible standards,” the decision quoted Oziel as saying.

The ruling also revealed previously secret testimony by Judalon Smyth, identified in court records as Oziel’s “paramour.” Smyth said she was in a hallway outside Oziel’s office when she overheard Lyle explode in anger after learning that his brother had admitted the murders to Oziel.”I can’t believe you did this!,” Lyle Menendez allegedly told his brother. “I can’t believe you told him! I don’t even have a brother now! I could get rid of you for this! Now I hope you know what we are going to do. I hope you realize what we are going to have to do. We’ve got to kill him and anyone associated to him.”Smyth also testified that she heard Erik sob, “I can’t stop you (Lyle) from what you have to do, but . . . I can’t kill anymore.”

After the session, Oziel panicked, told his wife to leave their house with their children and spent the night at Smyth’s home, according to the decision.

The psychologist told his wife and Smyth details of the brothers’ alleged confession and threats, then he bought three shotguns, repaired his home security system, and decided to try to persuade the brothers that he was on their side.

According to the decision, Lyle told Oziel that “it wouldn’t look too good if I (Oziel) disappeared too soon. It would start to become obvious that it wasn’t too healthy to be associated with the Menendez boys since people who did seemed to die a lot and always with shotgun shells around.

“When Lyle asked if he was frightened, Oziel replied that ordinarily he did not choose to live in fear, the decision said.”

Lyle looked at me coldly and said, ‘Neither did my father,’ ” according to Oziel.

The psychologist said that when Erik was alone with him, the brother expressed fear of Lyle and remorse for the killings, saying: “It wouldn’t be so bad if he killed me. I would just let him do it.” According to Oziel’s account, Erik said his brother was not interested in further sessions: “I don’t think he wants to be controlled by anybody . . . that’s why he murdered my parents . . . he just wants to be free and he wants to do whatever he wants to do.”

Oziel is expected to be a key witness at the Menendez murder trial, where defense attorneys say they will challenge his credibility.

Oziel had sought the return of his tapes, but Santa Monica Superior Court Judge James Albracht ruled last August--after a series of closed-door hearings--that they were not privileged and could be used as evidence against the brothers. Attorneys for the brothers appealed to the state Supreme Court.

The California Psychiatric Assn. filed a friend of the court brief supporting Oziel’s contention that the tapes should remain private. Mental health professionals view any disclosure of communications between therapists and patients as a violation of the long-held principle of doctor-patient confidentiality.

The state Supreme Court sent the case back to the appeals court for a full hearing, which also was conducted in secret.

The appeals court held that “where a psychotherapist has reasonable cause to believe that his patient poses a threat to himself or others, the psychotherapist may disclose otherwise confidential communications . . . to prevent the threatened danger.

“Where the patient seriously threatens the therapist himself and thereafter neither the psychotherapist nor the patient are engaged in a genuine therapeutic relationship, the confidential nature of the therapist-patient relationship ceases to exist and further communications by the patient to the therapist are not privileged.”

The court held that while the first two sessions fall into the category of therapy, the final two “focus primarily upon topics which might aid petitioners should they be arrested and tried for the murders. During these sessions, Dr. Oziel was motivated by self-preservation, and petitioners were motivated by self-interest.

“The purported ‘therapy’ was, in fact, a charade.”

Neither Deputy Dist. Atty. Pamela Ferrero nor defense attorney Leslie Abramson, who represents Erik Menendez, could be reached for comment.

[lboogie1906]

Judge Judith Ann Wilson Rogers (born July 27, 1939) law clerk, attorney, judge, and corporation counsel, was born in New York City. Her mother is unnamed, but her father was John Louis Wilson, Jr., an architect. She married in 1968.

She received a BA from the Radcliffe College of Harvard University. She was one of 15 women out of 500 students in her graduating class when she received her LLB from Harvard Law School. She became a law clerk at the Juvenile Court of the DC. She worked as an Assistant US Attorney for DC making her the third woman to work in the Criminal Division. She was involved in two legislative reforms that transformed the DC.

She was appointed general counsel to the Congressional Commission on the Organization of the DC. She lobbied for the enactment of the 1973 DC Self-Government and Governmental Reorganization Act which helped the district form a local government to represent residents separate from federal control.

She served as a staff attorney at the San Francisco Neighborhood Legal Assistance Foundation. She then returned to DC, where she served as a trial attorney for the Department of Justice Criminal Division. She served as general counsel for the Congressional Commission on the Organization of the District Government.

She worked as the assistant city administrator for intergovernmental affairs relations in DC. She served as the corporation counsel for DC making her the first woman appointed a chief legal officer for the DC. She was nominated by President Ronald Reagan to become an associate judge on the DC Court of Appeals.

She obtained her LLM from the University of Virginia School of Law. She served as chief judge on the Court of Appeals. She was nominated by President Bill Clinton for a seat on the US Court of Appeals for the DC Circuit. She became the fourth woman and first African American woman to serve on this court.

She has been honored with the Margaret Brent Award for her efforts in diversifying the courthouse and judicial branch along with numerous other prestigious awards. #africanhistory365 #africanexcellence

[dankusner]

Supreme Court takes up LGBTQ+ book debate

WASHINGTON − An alphabet primer about children chasing their dog through a pride parade is now on the reading list for the Supreme Court.

The court on Friday agreed to decide whether Maryland parents who object to 'Pride Puppy' and a handful of other books with LGBTQ+ characters should be able to get their children excused from the classroom when the reading materials are being used in the Montgomery County Public Schools.

Lawyers for a group of parents from different religious backgrounds who are asking for an opt-out said their only other choice is to send their kids to private school or to opt for homeschooling.

The books were introduced in the Montgomery County Public Schools at the start of the 2022-23 school year as part of an ongoing effort to reflect the diversity of the community.

Previous additions to the curriculum included a book about an Asian American immigrant family and one recounting the life of civil rights icon John Lewis.

'In addition to helping students explore sentence structure, word choice, and style, the storybooks support students’ ability to empathize, connect, and collaborate with peers and encourage respect for all,' lawyers for the school district told the Supreme Court.

The main character of 'Born Ready: The True Story of a Boy Named Penelope,' is a transgender boy.

Another book, 'Prince and Knight,' features a romance between two male characters.

After various teachers, administrators and parents raised concerns about the efficacy and age appropriateness of the books, the school system initially allowed students to be excused when the books were read in class.

But officials said they had to discontinue that because the growing number of opt-out requests created other problems, such as high absenteeism and the difficulty of administering the opt-outs.

Represented by the Becket Fund for Religious Liberty, a group of parents sued.

They’ve asked the federal courts to force the schools to give them temporary opt-outs while they pursue a permanent waiver.

But a divided panel of appeals court judges said the parents hadn’t shown that they or their children had been coerced to believe or act contrary to their religious views.

'And simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires,' 4th Circuit Appeals Court Judge G. Steven Agee wrote.

Agee said the parents may have a stronger case when the record on how the books are being used is more developed as the litigation continues.

But lawyers for the parents said they 'should not have to wait until too late to protect their children against forced participation in instruction that violates their faith.'

'Under the Fourth Circuit’s reasoning, parents cannot be heard until after the damage has been done to their children,' lawyers for the parents told the Supreme Court.

'But there is no unringing that bell – by then, innocence will be lost and beliefs undermined.'

The case is expected to be argued this spring

[totoblgf]

North Carolina Federal Appeals Lawyers Offer Expert Representation for Civil and Criminal Appeals Before the Fourth Circuit Court

When dealing with legal issues involving civil or criminal appeals before the Fourth Circuit Court, expert representation is not a luxury but a necessity. Federal appeals are complex, requiring a nuanced understanding of legal precedents, procedural rules, and strategic advocacy. Our North Carolina federal appeals lawyers are equipped with the expertise and experience to provide unparalleled representation for individuals and businesses alike.

Understanding the Fourth Circuit Court of Appeals

The Fourth Circuit Court of Appeals is a federal appellate court that reviews decisions made by district courts within its jurisdiction. This includes cases from North Carolina, South Carolina, Virginia, West Virginia, and Maryland. Known for its rigorous standards, the Fourth Circuit demands precision and comprehensive legal arguments. Successfully appealing a decision or defending a favorable ruling requires in-depth knowledge of federal law and meticulous preparation.

The Role of Federal Appeals Lawyers

Federal appeals lawyers serve as your advocates in navigating the complexities of appellate law. Unlike trial court proceedings, appeals focus on identifying legal errors in the initial trial, whether procedural or substantive. Our team of attorneys specializes in crafting persuasive written briefs and delivering compelling oral arguments to ensure your case is presented in the strongest possible light.

Key Responsibilities of Federal Appeals Lawyers

Analyzing Trial Records: A thorough review of transcripts, evidence, and rulings to identify potential errors.

Legal Research: Comprehensive research to support arguments with precedent and statutory authority.

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Our firm has a history of success in the Fourth Circuit, with numerous favorable rulings for our clients. Our commitment to excellence and dedication to our clients’ rights set us apart.

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Civil appeals often arise from disputes involving contracts, property, personal injury claims, or administrative decisions. In such cases, our lawyers meticulously analyze the trial court record to uncover legal errors, including:

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Our goal is to ensure that justice is served and that your rights are upheld. Whether you are seeking to overturn an unfavorable decision or defend a favorable outcome, our team is here to provide expert guidance.

Criminal Appeals: Fighting for Justice

Criminal appeals are particularly high-stakes, as they often involve matters of personal liberty and justice. Our attorneys are adept at handling cases involving wrongful convictions, sentencing errors, and violations of constitutional rights. Common issues we address in criminal appeals include:

Ineffective assistance of counsel.

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We understand the emotional and legal challenges faced by individuals navigating criminal appeals. Our team works tirelessly to ensure that every client receives fair treatment under the law.

Navigating the Appeals Process

The appeals process in the Fourth Circuit involves several critical stages:

Notice of Appeal: Filing a timely notice of appeal is the first step to initiate the appellate process.

Record on Appeal: Compiling all relevant documents, transcripts, and evidence from the trial court.

Appellate Briefs: Drafting and submitting opening, response, and reply briefs that outline the legal arguments.

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Our attorneys guide clients through each stage with clarity and professionalism, ensuring they are fully informed and prepared.

Commitment to Excellence and Client Advocacy

At our firm, we pride ourselves on providing top-tier legal representation. Our commitment to excellence is reflected in our meticulous attention to detail, robust legal research, and unwavering dedication to our clients. Whether representing individuals, corporations, or nonprofit organizations, we are steadfast in our pursuit of justice.

Contact Us for Expert Representation

If you are considering an appeal or need expert representation for a pending case before the Fourth Circuit Court, contact our Carolina federal appeals lawyers today. Our team is ready to provide the guidance and advocacy you need to achieve a favorable resolution.

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[thellawtoknow]

The Concept of Circuit Splits in U.S. Law: Implications and Significance

The Concept of Circuit Splits in U.S. Law: Implications and SignificanceUnderstanding Circuit Splits Causes of Circuit SplitsJudicial Philosophy Regional Diversity Ambiguity in Law Evolving Legal Standards Role of the Supreme Court in Addressing Circuit SplitsMechanism of Supreme Court Intervention Challenges in Addressing Circuit Splits Examples of Circuit Splits Resolved by the Supreme Court The Concept of Circuit Splits in U.S. Law: Implications and Significance In the legal landscape of the United States, a circuit split refers to a situation in which different federal appellate courts (circuits) reach divergent conclusions on the same legal issue. The United States is divided into 13 federal judicial circuits, each overseen by its own Court of Appeals. These courts serve as intermediate appellate courts, addressing appeals from federal district courts within their jurisdictions. While the autonomy of these circuits fosters regional jurisprudential development, it also gives rise to circuit splits, which can have profound implications for the coherence and predictability of federal law.

Understanding Circuit Splits Circuit splits occur when two or more circuit courts issue conflicting decisions on a question of federal law. These divergences often arise in cases involving statutory interpretation, constitutional rights, or federal regulations. For example, one circuit may interpret a statute narrowly, while another may adopt a broader interpretation. Such splits underscore the dynamic nature of legal interpretation and highlight the challenges of applying uniform federal standards across a vast and diverse nation. Causes of Circuit Splits Circuit splits arise from a variety of factors inherent in the federal judicial system. These causes are rooted in the interpretative philosophies of judges, regional disparities, ambiguities in the law, and the fluid nature of legal standards. Below, each of these factors is discussed in detail. Judicial Philosophy Judges often approach legal questions through distinct interpretative frameworks that reflect their understanding of the law’s purpose and scope. These philosophical differences can lead to conflicting rulings among circuits. - Textualism: Textualists prioritize the literal meaning of the statutory or constitutional text. They avoid considering external factors, such as legislative intent or policy outcomes. For example, textualist judges may interpret ambiguous terms in isolation, leading to narrow rulings that differ from those of more context-driven approaches. - Example: In cases involving statutory phrases like "waters of the United States," textualist judges may restrict interpretation to the dictionary meaning of "waters," while others might consider legislative history to include broader ecological concerns. - Originalism: Originalist judges aim to interpret legal texts according to their meaning at the time of enactment. This approach often contrasts sharply with more dynamic methods, particularly in cases involving constitutional rights, such as privacy or free speech in the digital age. - Example: A split could emerge between circuits on whether a new technological development, such as drone surveillance, constitutes an unconstitutional search under the Fourth Amendment. Originalist judges might focus on 18th-century notions of privacy, while others consider evolving societal expectations. - Purposivism: Purposivists emphasize the broader purpose and legislative intent behind a law. Their decisions may differ significantly from those of textualists or originalists when a statute's language is vague. - Example: In employment discrimination cases, purposivist judges might interpret statutes expansively to address systemic issues, creating splits with textualist courts that adhere strictly to the statutory text. The interplay of these judicial philosophies means that the same legal question can be analyzed through profoundly different lenses, often resulting in divergent outcomes across circuits. Regional Diversity The federal circuits are geographically distinct, and their rulings often reflect the unique economic, cultural, and social characteristics of the regions they serve. This diversity can lead to splits in areas where localized concerns strongly influence judicial perspectives. - Economic Factors: Regions with different economic profiles may interpret federal statutes in ways that align with local industries or interests. For instance, a circuit with a significant agricultural economy might approach environmental regulations differently from one with a focus on manufacturing or technology. - Example: Circuits covering rural areas may favor interpretations that prioritize landowners' rights in environmental cases, while urban circuits might emphasize ecological preservation. - Social and Cultural Norms: Social attitudes toward contentious issues like abortion, gun rights, or LGBTQ+ protections vary widely across regions. These differences often manifest in judicial reasoning, with circuits reflecting the dominant values of their jurisdictions. - Example: A circuit in a socially conservative region may interpret the Second Amendment more expansively than one in a liberal region, leading to splits over the scope of gun rights. - Historical Contexts: Historical events and traditions specific to a region can shape how courts view certain legal questions. For instance, circuits with a legacy of civil rights activism might take a broader view of anti-discrimination laws compared to those without such a history. Ambiguity in Law Ambiguous language in statutes, regulations, or constitutional provisions is a significant driver of circuit splits. Such ambiguities arise when lawmakers fail to anticipate future scenarios, use vague terms, or draft laws without adequate precision. - Vague Terminology: Words or phrases with multiple plausible meanings often lead to divergent interpretations. Courts in different circuits may choose interpretations based on textual emphasis, contextual factors, or policy implications. - Example: The term "reasonable accommodation" under the Americans with Disabilities Act (ADA) has been interpreted variably, with some circuits requiring employers to take significant steps, while others impose less stringent obligations. - Complexity of Modern Issues: Many statutes fail to address complex modern realities, such as digital privacy or emerging technologies. Courts are left to fill gaps, resulting in varying decisions. - Example: Circuits have differed on whether emails stored on foreign servers are subject to U.S. warrants under the Stored Communications Act. - Legislative Oversight or Inconsistency: When Congress fails to reconcile conflicting provisions within a statute or neglects to amend outdated laws, courts must navigate these inconsistencies. Different circuits may prioritize different parts of the statute, creating splits. Evolving Legal Standards The law is not static; it evolves alongside societal norms, technological advancements, and shifts in judicial precedent. Circuit splits frequently emerge when courts interpret the law in light of these changes. - Social Norms: As societal attitudes shift, courts may differ in how quickly they incorporate these changes into their interpretations of the law. - Example: Before the Supreme Court's decision in Obergefell v. Hodges (2015), circuits were divided on whether same-sex marriage bans violated the Constitution, reflecting differing regional norms and judicial willingness to embrace evolving standards of equality. - Technological Advancements: Rapid technological progress often outpaces legislative updates, leaving courts to interpret outdated laws in new contexts. - Example: Circuits have split on whether a smartphone's location data constitutes protected information under the Fourth Amendment, as privacy expectations evolve in the digital age. - Precedent and Judicial Activism: As courts revisit old precedents, they may diverge on whether to uphold, modify, or overturn them. Some circuits are more inclined toward judicial activism, while others emphasize judicial restraint. - Example: The doctrine of qualified immunity for law enforcement officers has been applied inconsistently across circuits, with some courts narrowing its scope and others maintaining broad protections. Circuit splits are an inevitable consequence of the decentralized nature of the federal judiciary. Differences in judicial philosophy, regional diversity, ambiguous laws, and evolving legal standards all contribute to these inconsistencies. While such splits can create challenges, they also serve as a valuable mechanism for testing legal principles and fostering robust debate within the judiciary. Ultimately, they underscore the importance of a dynamic and responsive legal system capable of adapting to the complexities of modern society. Implications of Circuit Splits - Legal Uncertainty: Circuit splits create uncertainty for individuals, businesses, and government agencies, as the same legal issue may yield different outcomes depending on the jurisdiction. - Forum Shopping: Litigants may strategically file cases in circuits with favorable precedents, leading to uneven access to justice. - Burden on the Supreme Court: Circuit splits often compel the U.S. Supreme Court to intervene to resolve inconsistencies, adding to its already heavy caseload. - Incremental Development of Law: On the positive side, circuit splits allow for diverse judicial experimentation, which can lead to the development of more robust legal principles when the Supreme Court eventually provides resolution. - Role of the Supreme Court in Addressing Circuit Splits The Supreme Court of the United States serves as the final arbiter of federal law, playing a vital role in resolving circuit splits to ensure uniformity and consistency across the nation. In a federal judiciary divided into 13 circuits, each capable of interpreting the law independently, such inconsistencies are inevitable. The Supreme Court's intervention is crucial to maintaining the principle of equal justice under law, as conflicting interpretations can lead to unequal application of federal law based on geographic location. Mechanism of Supreme Court Intervention - Petitions for Certiorari: When a circuit split occurs, parties affected by the conflicting rulings may petition the Supreme Court for a writ of certiorari, requesting that the Court review the case. Circuit splits are a common and compelling basis for granting certiorari, as they signify a broader need to clarify the law. - Selective Case Review: The Supreme Court exercises discretion in choosing which cases to hear, granting certiorari to a small fraction of the thousands of petitions it receives annually. Typically, the Court selects cases involving significant legal questions, particularly those with widespread impact or where uniformity in federal law is imperative. - Resolution and Precedent Setting: When the Supreme Court resolves a circuit split, its decision establishes binding precedent for all lower federal courts. This ensures that the interpretation of federal law is consistent nationwide, eliminating disparities that could otherwise undermine the rule of law. - Refinement of Legal Doctrine: By addressing circuit splits, the Supreme Court refines and clarifies legal doctrines, often providing definitive interpretations of ambiguous statutes or constitutional provisions. This process contributes to the stability and predictability of the legal system. Challenges in Addressing Circuit Splits - Limited Caseload Capacity: The Supreme Court hears only about 70–80 cases per term, a fraction of the petitions filed. Consequently, some circuit splits may persist for years before the Court addresses them, leaving lower courts and litigants to navigate inconsistent legal landscapes. - Balancing Judicial Priorities: The Court must prioritize cases with the most significant legal or societal implications, often leaving less prominent but equally problematic circuit splits unresolved. - Potential for Judicial Activism: The Court's resolution of circuit splits can sometimes reflect broader judicial philosophies, raising concerns about judicial activism or perceived overreach in politically sensitive areas. Examples of Circuit Splits Resolved by the Supreme Court A prominent example of the Supreme Court's role in resolving circuit splits involves Title VII of the Civil Rights Act of 1964 and workplace discrimination based on sexual orientation and gender identity. - Title VII and Workplace Discrimination: Title VII prohibits employment discrimination "because of... sex." However, the scope of "sex" was debated in federal courts for decades. - The Split: Some circuits, such as the Second and Seventh Circuits, interpreted Title VII as encompassing discrimination based on sexual orientation and gender identity. These courts reasoned that such discrimination inherently involved sex-based considerations. Conversely, other circuits, such as the Eleventh Circuit, held a narrower view, excluding sexual orientation and gender identity from Title VII’s protections. - The Supreme Court’s Intervention – Bostock v. Clayton County (2020): In Bostock, the Supreme Court resolved the circuit split by holding that Title VII's prohibition on sex discrimination does indeed cover discrimination based on sexual orientation and gender identity. Writing for the majority, Justice Neil Gorsuch applied a textualist approach, reasoning that an employer who discriminates against an individual for being gay or transgender inherently considers the individual's sex in doing so. - Impact: This landmark decision provided nationwide clarity and uniformity, ensuring that LGBTQ+ individuals are protected under federal employment discrimination law. It also underscored the Supreme Court's essential role in addressing and resolving deeply divisive legal questions. The Supreme Court's role in resolving circuit splits is fundamental to preserving the integrity of the U.S. legal system. By providing definitive interpretations of federal law, the Court eliminates disparities across circuits, fosters predictability, and strengthens the rule of law. While its selective approach to granting certiorari leaves some splits unresolved, the Court's decisions on pivotal issues, such as those in Bostock v. Clayton County, demonstrate its indispensable function in harmonizing federal jurisprudence. Examples of Circuit Splits One prominent example is the disagreement over the interpretation of Title VII of the Civil Rights Act of 1964 concerning workplace discrimination based on sexual orientation and gender identity. Before the Supreme Court's 2020 decision in Bostock v. Clayton County, some circuits held that Title VII's prohibition of sex discrimination encompassed these protections, while others did not. The Supreme Court's ruling resolved this split, providing nationwide clarity. Potential Solutions To mitigate the effects of circuit splits, several approaches can be considered: - Legislative Action: Congress can amend ambiguous statutes to provide clear guidance, preempting divergent interpretations. - Judicial Collaboration: Greater inter-circuit dialogue and consistency in adopting precedent could reduce the likelihood of splits. - Enhanced Role for Specialized Courts: Expanding the jurisdiction of specialized federal courts, such as the Federal Circuit, could help unify certain areas of law. Conclusion Circuit splits are an inherent feature of the decentralized federal judicial system in the United States. While they pose challenges to legal uniformity and predictability, they also serve as a mechanism for testing and refining legal doctrines. By fostering diverse judicial perspectives, circuit splits contribute to the richness of American jurisprudence. However, their resolution requires careful intervention by Congress, the Supreme Court, and the judiciary at large to ensure that federal law remains cohesive and accessible. As the legal system continues to evolve, the management of circuit splits will remain a crucial aspect of maintaining justice and equality under the law. Read the full article

[bllsbailey]

Georgia Appeals Court Order Makes Fulton County Trump Verdict Nearly Impossible Before Election Day

(L) Republican presidential candidate, former U.S. President Donald Trump and Former first lady Melania Trump on stage and the conclusion of the fourth day of the Republican National Convention at the Fiserv Forum on July 18, 2024 in Milwaukee, Wisconsin. (Photo by Win McNamee/Getty Images) / (R) Fulton County District Attorney Fani Willis arrives for the final arguments in her disqualification hearing at the Fulton County Courthouse on March 1, 2024, in Atlanta, Georgia.

A decision in the Fulton County election meddling lawsuit against former President Donald Trump prior to election day is all but impossible, due to an order issued late on Tuesday afternoon by the Georgia Court of Appeals.

The order, shared by the lead counsel for former President Trump, approved petitions for oral arguments in an ongoing appeal by eight defendants in the case, including the former president, to have Fulton County District Attorney Fani Willis removed from the case.

Most notably, those oral arguments were scheduled by the appeals court for December 5th, over a month after the presidential election.

Trial proceedings are halted until the Court of Appeals reaches a ruling.

During oral arguments, the appeal court will take up the co-defendants’ appeal of Fulton County Superior Court Judge Scott McAfee’s March decision, which resulted in the removal of special prosecutor Nathan Wade from the election interference case but left D.A. Willis in place.

The co-defendants contend that McAfee’s decision was insufficient and that Willis’s disqualification and the dismissal of the charges should have resulted from it. They also argue that an unlawful conflict of interest resulted from Willis and Wade’s romantic relationship.

However, according to McAfee, there was no conflict of interest arising from the circumstances under Georgia law. He continued, saying that the facts gave the prosecution team an “appearance of impropriety” that “infected” them.

Wade later chose to step down, which gave Willis permission to proceed with the case after the judge’s ultimatum declared that she must recuse herself from the case or remove the special prosecutor.

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[beardedmrbean]

Diane Rwigara, an outspoken critic of Rwandan President Kagame, has been barred from standing in next month’s presidential election.

Only Mr Kagame and two other politicians - Frank Habineza of the Democratic Green Party and independent Philippe Mpayimana - were cleared by the electoral body.

Ms Rwigara, who was also disqualified from the 2017 poll, took to X, formerly Twitter, to express her disappointment to Mr Kagame.

“Why won't you let me run? This is the second time you [have] cheat[ed] me out of my right to campaign,” she said.

The 42-year-old, who is the leader of the People Salvation Movement (PSM), had earlier told the BBC’s Newsday programme that she had hoped to be a able to stand this time round.

"I'm representing the vast majority of Rwandans who live in fear and are not allowed to be free in their own country,” she said.

“Rwanda is portrayed as a country where the economy has been growing. But on the ground, it's different. People do lack the basics of life, food, water, shelter."

But on issuing its provisional list of candidates, the electoral commission said Ms Rwigara had failed to provide the correct documentation to show she had no criminal record.

It also said she had failed to show she had enough support nationwide to stand.

"On the requirement for 600 signature endorsements, she did not provide at least 12 signatures from eight districts," Oda Gasinzigwa, the electoral commission chief, was quoted as saying.

Another reason the commission gave was that Ms Rwigara had failed to prove she was Rwandan by birth. She once held Belgian citizenship but surrendered that in 2017 before her last bid to become a candidate.

But Ms Rwigara has told the BBC that she was born in Rwanda and dismissed all the other grounds for the rejection of her candidacy.

A total of nine applications to stand for president were received by Rwanda's National Electoral Commission. Their final list will be announced next Friday as it still considering appeals lodged earlier in the process – though at this stage it is too late for the PSM leader to appeal.

In 2017 she was barred following accusations of forging the signatures of supporters for her application.

Ms Rwigara was imprisoned for more than a year but acquitted in 2018 over charges of inciting insurrection and forgery. She said the charges were politically motivated.

In March, a Rwandan court blocked efforts by prominent opposition figure Victoire Ingabire to lift a ban on her running in the presidential election.

She was freed in 2018 after spending eight years in prison for threatening state security and "belittling" the 1994 genocide.

In Rwanda, people who have been jailed for more than six months are barred from running in elections.

The two cleared candidates - Mr Habineza and Mr Mpayimana - were also the only candidates approved to stand against Mr Kagame in the 2017 election.

Mr Kagame is running for a fourth term, which could extend his presidency to nearly three decades should he win.

He won the last presidential election in 2017 with nearly 99% of the vote.

The 66-year-old president has faced criticism from rights groups for cracking down on the opposition.

But he has always fiercely defended Rwanda's record on human rights, saying his country respects political freedoms.

[justinspoliticalcorner]

Chris Geidner at Law Dork:

A little past 7 p.m. Friday, the U.S. Senate confirmed Serena Raquel Murillo to a district court judgeship for the Central District of California. With the 49-47 vote, Murillo became the 235th lifetime-tenure judge nominated by President Biden and confirmed by the Senate. The count is one more than Donald Trump got confirmed in his first term in office. Earlier Friday, the Senate also confirmed Benjamin Cheeks to a seat on the Southern District of California. “One out of every four active judges on the bench” was nominated by Biden and confirmed by this Senate, Majority Leader Chuck Schumer said in a press conference after hitting that mark. In all, the Senate confirmed 22 judges in the lame-duck session — and 14 since Thanksgiving.

With Friday’s four votes done, the Senate is likely finished confirming Article III judges for the year — and for the Biden administration. There are only three remaining nominees pending on the floor — three of the four appellate nominees who Majority Leader Chuck Schumer has said lacked the votes to be confirmed. As such, Schumer agreed to a deal in which he wouldn’t put those up for a vote — again, that he has said they would lose — in exchange for Republicans not forcing extra votes on every nominee that did get through. In addition to Adeel Mangi, who spoke out via letter this week about his stalled nomination to the Third Circuit, Julia Lipez’s nomination to the First Circuit is not expected to get a vote. It should be noted, however, that all five active judges on the First Circuit currently are Democratic nominees. Finally, Karla Campbell’s nomination to the Sixth Circuit is not expected to get a vote. Unlike Mangi and Lipez, though, Campbell would be replacing a judge still in active status. Judge Jane Stranch, who announced that she would be taking senior status upon the confirmation of her successor, could withdraw her plans if Campbell does not get confirmed. (Judge James Wynn, on the Fourth Circuit, already did so when Park Park withdrew his nomination because it was not going to get a vote.) Additionally, Judge Kent Jordan is retiring from the Third Circuit in January. In all, then, there will only be three or four appeals court vacancies, depending on whether Stranch withdraws her plans, when Trump takes office in January. Additionally, there are 32 current district court vacancies, as of Friday, and another nine district court judges who have announced they will be retiring or taking senior status in the future, on a date certain or upon the confirmation of their successor. If you haven’t followed judicial nominations for a while, this might seem like a lot and — to be sure — it is. But to have lowered that number in any real way, there was basically only one thing that they could have done but did not do: Get rid of blue slips. Continued adherence to the blue slip rule, which allows home-state senators to stop district court nominees from proceeding, explains nearly all of the vacancies that will be awaiting Trump. All but two of the district court nominees are in states with at least one Republican senator, and the vast majority are in states with two Republican senators.

President Biden got one more judicial nominee confirmed than Donald Trump did in his one term.

See Also:

The Guardian: Biden beats Trump’s record of judicial confirmations with 235th appointee

[mariacallous]

President Biden’s 22 judicial confirmations from January to the April recess are more than any of his predecessors in the comparable period (President Trump had 12). Still, as I speculated in late January, President Biden is unlikely to top Trump’s 231 lower court appointments — second only to President Carter’s 262.

Senate Democrats’ narrow voting majority has confronted some snags, including within-ranks opposition to some candidates and, more prominently, Senator Dianne Feinstein’s possibly extended absence for health reasons, making it almost impossible to move more controversial nominees (however defined) out of the Judiciary Committee. But even if, or when the committee is back to full strength, the administration likely faces a dearth of fillable vacancies, the essential precursor to nominations and confirmations.

Figure 1 and Figure 2 present key metrics for court of appeals and district court confirmations at the Senate’s April recess in recent presidents’ third years. Each president’s first three bars are the numbers of confirmations, pending nominations; and vacancies with no nominees (vacancies in-place and announced).

The fourth and fifth bars show additional nominations and additional confirmations through the end of the fourth year. The first and final bars equal the total four-year confirmation numbers shown with presidents’ names.

Courts of Appeals

Trump’s 37 confirmations by the third-year April recess topped all five presidents. Only Biden’s 31 comes close, reflecting the priorities that those presidents and their Senate allies gave to staffing the appellate courts.

At the recess, Trump’s prospects for 54 total confirmations may have seemed bleak, with only five pending nominees and five more nominee-less vacancies. But eleven more vacancies occurred, and the Senate was able to confirm 17 additional nominees.

Biden also came to the April recess with few pending nominees and nominee-less vacancies, and, to boot, he has six fewer confirmations than Trump. Biden will have 42 confirmations if he gets his six pending nominees confirmed and gets nominees in place and confirmed for the five nominee-less vacancies (not counting the two recent post-recess nominees). Those eleven confirmations are hardly sure things; one nominee has been pending over 460 days and another has provoked within-ranks public opposition.

Forty-two confirmations, even if unlikely, is still 12 short of Trump’s 54 (although way ahead of predecessors). The starting point for 12 more appointments is at least 12 more vacancies. Vacancies occurring between the third-year April recess and the end of the fourth year (not shown on Figure 1) ranged, for Biden’s four immediate predecessors, from seven to 13. For Trump the figure was eleven, nine from retirements, one from death, and one from then-Judge Barrett’s Supreme Court appointment.

It seems unlikely that 12 more vacancies will occur and, if so, Biden can fill them. At the end of January 2023, 16 Democrat-appointed court of appeals judges were eligible to retire, on salary, from active status, but since then, only one has done so (one more becomes eligible this summer, and another Democratic appointee resigned). Key to Biden’s prospects is whether more will retire, perhaps including some of the six who have been eligible for over ten years. (Twenty-four Republican-appointed circuit judges are similarly eligible, but only four have retired since Biden took office, and one was apparently health-related, and another was a Democrat whom George W. Bush appointed in a deal. Other vacancies may occur.)

And a vacancy is not necessarily a filled vacancy. While Trump was able to fill nine of his 11 post-April recess vacancies, for example, Obama, in his first term, could only fill two of his 13.

District Courts

Trump’s district appointment situation at the April recess was the opposite of the circuit nominee picture — the lowest of the five presidents shown, 30 fewer than Biden’s 88.

Yet, Trump had more pending nominees and more nominee-less vacancies than any of the others. He and the Senate (with a stronger Republican majority, 53, up from 51 in 2017-18, and having concentrated on appellate appointments in the first two years) seated a record number of district judges.

To Trump’s 75 pending nominees at April recess, Biden has 30. To Trump’s 84 nominee-less vacancies, Biden has 61. Confirming those 91 current or potential nominees would lift Biden’s four-year total to 179, two over Trump’s, but a 100% confirmation rate would be unprecedented.

Moreover, five of his 30 pending district nominees have been waiting from 456 to 577 days, suggesting insufficient Democratic support for successful floor votes, a situation unlikely to change as the 2024 elections approach. And one of Mississippi’s senators has announced her opposition to a recent nominee there, using the so-called “blue-slip” rule that currently gives home-state senators of either party a virtual veto over nominees.

Indeed, of Biden’s 61 nominee-less vacancies, 40 are in states with one or two Republican senators. Of Biden’s 119 district nominees, only 15 (13%) have been in states with a Republican senator — including four each in Pennsylvania and Ohio.

Biden’s avoiding red and purple state vacancies may be because many Republican senators are threatening blue slip vetoes and perhaps because the administration finds it easier to deal with Democratic senators; median days from vacancy to nomination was 399 for the 15 red and purple state nominees, versus 253 for blue state nominees. (Trump’s 132 pre-April recess district nominations included 60 to vacancies in blue states — 45% compared to Biden’s comparable 13%. And Trump’s blue and purple state nominees also took longer — 446 median days to 229 for red state nominations.).

Biden’s pace may be picking up — five of the 15 red and purple state nominees came since November — but any hope of 177 district appointments will be just that unless large numbers of judges in blue states retire or the pace of red and purple state nominations accelerates rapidly. But that requires Democratic leadership’s ending or modifying the blue slip rule — without provoking Republicans to use the parliamentary tools at their disposal to shut the process down completely.

In sum, Senate Democrats hoped that their one-vote working majority, compared to Biden’s first two years, would give an impetus to their impressive first-two-year confirmation record. Vagaries of life and realities of fillable judicial vacancies have challenged those hopes.