Welcome to Bold Justice

Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting! Well, some of u [Federal Court Weekly header image]( Need to stay on top of the whirlwind world of the federal judiciary of the United States? Welcome to the newsletter that does just that: Bold Justice.  We're sending subscribers this first edition. Want to keep getting these in your inbox each Monday morning? [Update your preferences here ->]( Bold Justice. Catchy, right? Well, there’s a story behind it, and we’re happy to credit Justice [Samuel Alito]( for the inspiration. Back in October of 2014, Justice Alito joined his fellow Supreme Court Yale Law alumni, Justices [Clarence Thomas]( and [Sonia Sotomayor]( for a panel as part of the law school’s alumni weekend. During the discussion, the moderator asked the audience if they could guess which of the three justices on the panel served as the inspiration for a coffee house to name one of their blends of coffee, Bold Justice. Justice Alito responded, “Obviously, it’s me.” He went on to tell the story of how, during his days as a Third Circuit judge, his law clerks participated in a Newark, New Jersey, coffee shop’s year-long promotion wherein if customers sampled every blend for one year, the customers could then create and name a blend of coffee. Justice Alito described Bold Justice as a blend that was “designed for about three o’clock in the afternoon if you’re working and you’re starting to fall asleep, if you have this, it will jolt you awake.” A blend of courts and coffee: sounds perfect to us! If you jump to the 18-minute mark of [this video]( you can hear Justice Alito tell the tale of Bold Justice! We #SCOTUS, so you don’t have to Last week, the [U.S. Supreme Court]( was in the second week of a two-week break between its October and November argument sessions. The court did not hear arguments in any cases. The court met on Friday in its justices-only conference. Orders from that conference are expected on Monday, which is when the court will begin its two-week November argument session. The court did dispose of one case on its docket last Tuesday, [Trump v. Hawaii](. This case was one of two cases in which the court rejected a challenge to President Donald Trump's [March 2017 executive order]( restricting immigration and refugee admissions into the United States. The court order, which nullified the judgment of the [U.S. Court of Appeals for the Ninth Circuit]( also sent the case back to the Ninth Circuit with instructions to dismiss the case as moot, meaning the challenge no longer had any practical impact. The order in the Hawaii cases parallels an earlier order of the court, issued on October 10, in which the court vacated a judgment of the Fourth Circuit in [Trump v. International Refugee Assistance Project](. In both cases, the court held that the challenged provisions of the order had expired and that the appeals no longer presented live cases or controversies. Legal challenges to the current travel restrictions, which were issued on September 24, were filed in the same federal courts in which the dismissed cases were brought. Those cases are ongoing. The court will hear arguments in [four cases next week](. - On Monday, the court will hear arguments in [Ayestas v. Davis]( an appeal of a judgment of the [U.S. Court of Appeals for the Fifth Circuit](. In July of 1997, Carlos Manuel Ayestas received a capital sentence for a murder conviction. Over a period of over ten years, Ayestas sought appellate relief of his sentence in Texas state courts. During that period, Ayestas' appellate attorneys did not raise a claim that Ayestas' trial counsel was unconstitutionally ineffective in failing to introduce certain evidence that could have mitigated Ayestas' capital sentence, including evidence that Ayestas had suffered multiple head injuries related to automobile and motorcycle accidents, that he began drinking alcohol in his teenage years, and that he had developed a weekly cocaine habit prior to the murder. Ayestas exhausted his state appeals in 2008 without receiving a reduction in his sentence. In 2009, during his federal appeals, Ayestas' counsel tried to introduce the mitigating evidence for an ineffective assistance of trial counsel claim, but a federal court held that the claim was procedurally defaulted because it wasn't raised during Ayestas' state appeals. But a subsequent and unrelated U.S. Supreme Court decision later permitted a procedurally defaulted claim to be introduced in federal courts under certain circumstances. Based on this ruling and in an effort to prepare his appeal to introduce the ineffective assistance of counsel claim in federal court, Ayestas filed for assistance under a federal law, 18 U.S.C. §3599(f), to investigate his claim. The assistance Ayestas sought can be awarded based on a judicial determination that the assistance was "reasonably necessary for the representation of the defendant." Both a federal district court and a three-judge panel of the Fifth Circuit denied the assistance, holding that the existing evidence did not support the ineffective assistance claim and that Ayestas had not demonstrated a substantial need for the assistance in order to pursue the claim. Ayestas argued that requiring him to demonstrate a substantial need in order to obtain the assistance presented what he called a "logical circularity," because he could not show a substantial need for the assistance to develop his claim without first obtaining the assistance in order to develop his claim. - The court will also hear arguments on Monday in [Wilson v. Sellers]( an appeal of a judgment of the [U.S. Court of Appeals for the Eleventh Circuit](. After receiving a capital sentence in Georgia, Marion Wilson Jr. appealed his sentence, arguing that his attorney failed to introduce evidence that might have reduced his sentence. In a written opinion, a [Georgia superior court]( denied his petition. That denial was upheld by the [Georgia Supreme Court]( in a one-word summary disposition: "Denied." Wilson then brought his appeal in federal court. A federal district court and a panel of the Eleventh Circuit Court of Appeals denied Wilson's claim based on the Georgia Supreme Court's summary disposition, holding that Wilson was required to show a reasonable basis to overrule the Georgia Supreme Court and that he had not done so. Wilson argued that the federal courts were required to look through the state supreme court's summary disposition to the reasoning of the Georgia superior court's decision. The full Eleventh Circuit, rehearing the case, rejected Wilson's argument by a 6-5 vote. Four other federal circuits, however, assert that a court must look through a summary disposition to the last reasoned opinion issued by a state court in order to review federal habeas petitions. - On Tuesday, the court will hear arguments in one case: [U.S. Bank National Association v. Village at Lakeridge]( which comes on appeal from the [U.S. Court of Appeals for the Ninth Circuit](. The Village at Lakeridge filed for Chapter 11 bankruptcy protection in 2011. There were only two creditors with legitimate claims to residual assets from Lakeridge's bankruptcy, U.S. Bank and MBP Equity Partners, and these were the only entities with voting rights on Lakeridge's proposed bankruptcy reorganization plan. U.S. Bank had a secured claim whereas MBP Partners had an unsecured claim. Dr. Robert Rabkin acquired MBP Equity Partners' unsecured claim through a personal friend who was also a MBP board member. U.S. Bank tried to purchase Rabkin's claim and, when the offer lapsed, sought to disallow Rabkin's claim by alleging that he was an insider. Under federal law, insiders, both statutory and non-statutory, are prevented from voting on a company's Chapter 11 bankruptcy reorganization plan. A bankruptcy court held that Rabkin was an insider, but a bankruptcy appellate panel reversed that holding. A divided three-judge panel of the Ninth Circuit upheld that decision, with a majority finding no clear error in the bankruptcy panel's decision. The Ninth Circuit panel's minority, however, argued that the determination of whether or not Rabkin was an insider was subject to de novo review by the court, not a review for clear error. De novo is Latin for new, and here refers to when an appellate court decides a legal question without consideration of a lower court's determination on that same question. The Third, Seventh, and Tenth Circuits have used the de novo standard. So, the question for the U.S. Supreme Court is: which standard for appellate review is correct in these cases: clear error or de novo? - On Wednesday, the court will hear arguments in [Artis v. District of Columbia](. The case comes to the U.S. Supreme Court on an appeal of a judgment of the [District of Columbia Court of Appeals]( which is a court that hears appeals of local court decisions in the [District of Columbia](. After her termination by the District of Columbia as a temporary health inspector, Stephanie Artis filed a civil lawsuit in 2011 in federal district court alleging that her termination violated federal and District laws. While waiting for the federal court to rule on her claims, a three-year statute of limitations period to file claims against the District in D.C. local courts expired. In 2014, the federal court held that it lacked jurisdiction over some of Artis' allegations that the District violated D.C. law. 59 days after that decision, Artis refiled her claims in a D.C. local court. The District moved to dismiss Artis' lawsuit, arguing that she exceeded a 30-day grace period under 28 U.S.C. §1367(d) to refile her claims once the federal court determined it lacked jurisdiction. Artis argued that 28 U.S.C. §1367(d) suspended the statute of limitations and that she had over two years to refile her claims in the D.C. court. Both a local judge and a D.C. appeals court panel sided with the District. SCOTUS trivia This week marked the 198th anniversary of the death of former U.S. Supreme Court Justice Thomas Johnson. According to the U.S. Supreme Court website, Johnson, a delegate to the Continental Congress and a former governor of Maryland, served on the U.S. Supreme Court from August 6, 1792, until January 16, 1793. At just 163 days, Justice Johnson holds the record for the shortest term of any of the 113 individuals who have served on the U.S. Supreme Court. Your question: which justice has the second-shortest term of any justice of the Supreme Court? Think you know? Your answer is below. Judicial motions Last week was a quiet week in terms of both judicial nominations and judicial vacancies. No Article III judicial vacancies were reported and President Trump did not make or announce his intention to nominate anyone to an Article III position. The U.S. Senate did confirm one of President Trump’s judicial nominees. The confirmed nominee was [Scott Palk]( a nominee to the [U.S. District Court for the Western District of Oklahoma](. Palk was also nominated to the same position on the Oklahoma court by President [Barack Obama]( in 2016. Among Article III judicial positions in which a confirmed nominee is commissioned to serve a life term, Palk is the eighth judge to be confirmed by the U.S. Senate this year. The [Senate Judiciary Committee]( voted to report eight nominations to the Senate floor for a final confirmation vote on Thursday. These nominees were: - [Stephanos Bibas]( nominee to the [U.S. Court of Appeals for the Third Circuit]( - [Allison Eid]( nominee to the [U.S. Court of Appeals for the Tenth Circuit]( - [Liles Clifton Burke]( nominee to the [U.S. District Court for the Northern District of Alabama]( - [Walter David Counts III]( nominee to the [U.S. District Court for the Western District of Texas]( - [Michael Juneau]( nominee to the [U.S. District Court for the Western District of Louisiana]( - [A. Marvin Quattlebaum Jr.]( nominee to the [U.S. District Court for the District of South Carolina]( - [Karen Gren Scholer]( nominee to the [U.S. District Court for the Northern District of Texas]( - [Tilman E. Self III]( nominee to the [U.S. District Court for the Middle District of Georgia]( Here’s a quick look at the numbers since President Trump’s inauguration: - Article III judicial vacancies inherited by President Trump: 108 out of 870 Article III life term positions - Article III judicial vacancies created since January 20, 2017: 43 - Article III judicial vacancies filled since January 20, 2017: 8 - Number of Article III judicial nominees awaiting a final confirmation vote in the Senate: 19 - Number of Article III judicial nominees awaiting committee hearings/committee vote: 33 Current judicial vacancies [Judicial vacancies](   [Facebook](   [Twitter](   Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly [Federal Vacancy Count]( which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary. Need a daily fix? Our [Federal Vacancy Warning System’s]( got you covered with continuing updates on the status of all federal judicial nominees. Riding circuit Federal circuit courts are where over 99% of federal cases end. Here’s a sampling of what caught our eye in the circuit courts last week. - United States v. Julian Alexander Zuk (Fourth Circuit): Zuk pleaded guilty in a federal district court to one count of possessing child pornography. Under provisions of the U.S. Sentencing Guidelines, Zuk’s recommended sentence was 20 years’ imprisonment, but the sentencing judge sentenced Zuk to time served (26 months) based on Zuk’s recently diagnosed autism spectrum disorder, which was “the ‘primary driver’ behind the sentence.” The government appealed the sentence as substantively unreasonable, alleging the sentence created unwarranted sentencing disparities and failed to provide just punishment or adequate deterrence in light of Zuk’s conduct. A three-judge panel of the Fourth Circuit agreed and vacated the district court’s sentence. The circuit panel returned the case to the district court for resentencing. - Jessica Jauch v. Choctaw County, Mississippi, et al. (Fifth Circuit): Jessica Jauch was indicted on a misdemeanor warrant for unpaid traffic tickets, arrested, and taken into custody. 96 days after being taken into custody, Jauch received an appointed attorney, and had both bail and a trial date set. Jauch posted bail six days later, on August 12, 2012. A prosecutor later moved to dismiss the charge and the Circuit Court of Choctaw County entered the dismissal in January of 2013. Suing both the county and the sheriff, Jauch filed a motion for summary judgment. A federal district court dismissed her claims for summary judgment, but a three-judge panel of the Fifth Circuit reversed, holding that Jauch’s pre-trial detention denied her of her constitutional right to due process, that the county was liable, and that the sheriff who authorized the detention was not entitled to qualified immunity. - United States v. Hakeem El-Bey (Seventh Circuit): This case represents a high-water mark for irony. Judge Richard Posner retired from active judicial service on the Seventh Circuit in September, in part to organize a nationwide pro bono law group. Pro bono legal work is performed without charge and is often done on behalf of litigants who cannot afford counsel. This case presented an appeal of a decision in which Judge Posner, by designation, sat as the trial judge and not on the appeals court. El-Bey, who represented himself at trial, appealed his conviction for mail fraud, alleging that the trial court judge (Posner) made statements in the presence of the jury that “conveyed that El-Bey was guilty or dishonest and impaired El-Bey’s credibility in the eyes of the jury.” A three-judge panel of the Seventh Circuit agreed with El-Bey and remanded the case for a new trial. It was not yet known if Posner would serve as El-Bey’s trial attorney on remand. - Lair v. Motl (Ninth Circuit): A divided three-judge panel of the Ninth Circuit reversed a federal district court’s judgment in this case over Montana’s laws governing campaign contribution limits. A federal district court held that Montana’s law limiting contributions violated the First Amendment’s protections of political speech. Two of the three judges on the circuit court panel, however, held that Montana’s limits were justified and adequately tailored to protect Montana’s asserted interest in combating corruption. Judge [Carlos Bea]( dissented, stating the district court’s finding that Montana failed to prove the appearance or existence of corruption was correct. Bea went on state, “Absent a showing of the existence or appearance of quid pro quo corruption based on objective evidence, the presence of a subjective sense that there is a risk of such corruption or its appearance does not justify a limit on campaign contributions. Restrictions on speech must be based on fact, not conjecture.” - Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated v. Eric D. Hargan et al. (D.C. Circuit): The District of Columbia Circuit, sitting en banc, voted 6-3 to reinstate a district court's order permitting an immigrant detainee in U.S. custody to obtain an abortion. The case began on October 18, 2017, when Judge [Tanya S. Chutkan]( issued a temporary restraining order requiring the government to make or permit accommodations for an unaccompanied minor, Jane Doe, to receive counseling and undergo an abortion procedure on or before October 21, 2017. Jane Doe, an undocumented immigrant minor, was in U.S. custody at the time of the order. The government argued that "undocumented minors do not have a constitutional right to an elective abortion in federal custody, unless it is a medical emergency, and also said immigrants here illegally have 'minimal' protections in this country." Judge Chutkan rejected that position and ordered the government to make or permit accommodations for Jane Doe to terminate her pregnancy. The judge further stated that failure to comply with her order could lead to the government being held in contempt of court. The government appealed Judge Chutkan's decision to the D.C. Circuit. A three-judge panel of the D.C. Circuit issued a judicial stay of a portion of Judge Chutkan's order. Arguments before the D.C. Circuit were held on October 20, 2017. Later that day, the circuit court vacated a portion of Judge Chutkan’s stay and ordered Judge Chutkan to give the Department of Health and Human Services until the end of October to find Jane Doe a sponsor and to release Jane Doe to the sponsor. On October 24, 2017, the circuit panel's decision was vacated by an order of the full D.C. Circuit. The circuit court order reinstated Judge Chutkan's order in the case. The circuit vote divided by the party of the nominating president. Six judges appointed by Democratic presidents voted to reinstate Judge Chutkan's order and three judges appointed by Republican presidents voted to maintain the circuit panel's decision to halt Judge Chutkan's order. Judge Cornelia T. L. Pillard, an Obama appointee, did not participate in the court's decision. It was not known if the government would appeal to the U.S. Supreme Court. Legal briefs - Judge [Daniel Jordan III]( of the [United States District Court for the Southern District of Mississippi]( a physician convicted of bribing a former Mississippi prisons chief to forfeit $1.3 million dollars, rejecting the doctor’s contention that the amount of the fine violated his rights under the Eighth Amendment to be free from excessive fines. - Judge [David Bunning]( of the [United States District Court for the Eastern District of Kentucky]( reaffirmed his July ruling the state of Kentucky was to pay the legal fees and court costs of a married couple who sued [Rowan County]( clerk Kim Davis. Davis refused to issue the couple a marriage license in 2015 even after the U.S. Supreme Court’s ruling in [Obergefell v. Hodges]( required states to treat same-sex marriages on equal terms as all other legal marriages. In July, Bunning held that Davis’ authority to issue licenses came from the state and not from Rowan County, and so the state was responsible for reimbursing the couple for legal expenses. - Judge [Myron Thompson]( of the [United States District Court for the Middle District of Alabama]( struck down two provisions of an Alabama law related to the location and manner in which patients could obtain an abortion. The law prohibited clinics that perform abortions from being within 2,000 feet of a public K-8 school in Alabama. In addition, Reuters referred to Judge Thompson’s opinion [in a report]( stating that the law “effectively banned the most common method of second-trimester abortion, known as dilation and evacuation,” and “would have prohibited abortions after 15 weeks.” Judge Thompson ruled these provisions placed an undue burden on a patient’s right to obtain an abortion. - Regarding ongoing litigation over [legislative redistricting in North Carolina]( Judge [Catherine Eagles]( of the [United States District Court for the Middle District of North Carolina]( issued [an order]( appointing Professor Nathaniel Persily of Stanford Law School as a special master “to assist the Court in further evaluating and, if necessary, redrawing the Subject Districts by developing an appropriate plan remedying the constitutional violations allegedly rendering the Subject Districts legally unacceptable.” The order was made pursuant to [Rule 53 of the federal rules of civil procedure]( which governs the use of special masters. It was not known if the parties would appeal the order appointing a special master in lieu of continued negotiation and litigation over the North Carolina legislature’s proposal for district boundaries. A judge you oughta know Every week, we at Ballotpedia want to highlight a federal judge. This week, we’re celebrating a legal legend in Michigan who celebrated his 50th anniversary as a federal judge this month. Meet Judge [Damon Keith]( of the [U.S. Court of Appeals for the Sixth Circuit]( a judge you oughta know. SCOTUS trivia answer The answer to our SCOTUS trivia question is Justice Neil Gorsuch. Gorsuch, currently the most junior member of the Supreme Court, joined the court on April 10, 2017. Gorsuch celebrated his 200th day as a justice last Friday. Looking ahead Here’s what we’re looking ahead to next week: - We expect the Supreme Court to issue orders stemming from its Friday conference on Monday and to hear arguments in four cases this week. - We expect the Senate to hold a confirmation vote on the nomination of [Trevor McFadden]( to the [U.S. District Court for the District of Columbia]( on Monday. - We expect the Senate to hold confirmation votes on four federal appeals court nominees next week: [Amy Coney Barrett]( (Seventh Circuit), [Joan Larsen]( (Sixth Circuit), [Allison Eid]( (Tenth Circuit), and [Stephanos Bibas]( (Third Circuit). - We expect arguments to take place before Judge [James Robart]( of the [Western District of Washington]( on Monday related to a motion for a temporary restraining order preventing enforcement of provisions of the administration’s travel restrictions on immigrant and refugee admissions that [were issued on September 24, 2017](. - We expect the Senate Judiciary Committee to hold confirmation hearings on Wednesday for four judicial nominees. The nominees are: [L. Steven Grasz]( (Eighth Circuit), [Terry A. Doughty]( (Western District of Louisiana), [Terry F. Moorer]( (Southern District of Alabama), and [Mark Norris]( (Western District of Tennessee). [Donate Online Securely]( Interested in advertising in Ballotpedia's Bold Justice? For email and site advertising information, please contact us at [editor@ballotpedia.org](mailto:editor@ballotpedia.org?subject=Advertising on Ballotpedia). Decide which emails you want from Ballotpedia. [Unsubscribe]( or [adjust your preferences](   [Facebook](   [Twitter](