Trump will have three Eighth Circuit vacancies to fill

By: Rox Laird on February 4th, 2017

Besides filling the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia, President Donald Trump has at least 17 vacancies to fill on the federal appeals courts around the country.

That includes three vacancies on the U.S. Court of Appeals for the Eighth Circuit, which has jurisdiction to hear appeals from seven Midwest states including Iowa.

Though they operate in relative obscurity, the 13 United States Courts of Appeals are the second most important federal courts, after the U.S. Supreme Court, and they decide the vast majority of federal criminal and civil appeals.

Court of appeals decisions can be appealed to the Supreme Court, but given the small number of appeals decided each year by the Supreme Court, the courts of appeals are likely to be the court of last resort for most appellants. Thus, the work of these judges establishes law that must be followed by federal courts in the states where they have jurisdiction.

The Eighth Circuit has 11 authorized judgeships to hear appeals from federal courts in Nebraska, North and South Dakota, Minnesota, Iowa, Missouri and Arkansas. There currently are two vacancies on the court and one pending:

Judge Kermit Bye of North Dakota stepped down from active status in April 2015 and retired from the bench last September. The delay in filling the vacancy has created a “judicial emergency,” according to the federal courts, which means a vacancy for more than 18 months where adjusted case filings are between 500 and 700 cases per panel.

Judge Diana Murphy of Minnesota took senior status last year, which means she will continue to hear cases but on a reduced caseload.

In June, there will be a third vacancy. Chief Judge William Jay Riley of Nebraska recently announced that he will take senior status at that time. Judge Lavenski Smith of Arkansas will become chief judge – and the first African-American to serve as chief judge on the Eighth Circuit.

The Republican president’s appointments to fill these vacancies will likely result in a shift of the ideological balance on the Eighth Circuit.

Of the nine active judges now serving on the court, eight were appointed by Republican presidents (Ronald Reagan, George H.W. Bush and George W. Bush). Jane Kelly of Cedar Rapids, who was appointed in 2013 by President Barack Obama, is the lone Democratic appointee.

When the court was last at full strength, three of 11 judges on the court were appointed by Democrats – including Murphy and Bye, both of whom were appointed by Bill Clinton. Assuming three Trump nominees are confirmed, Kelly will be the only member of the court appointed by a Democratic president.

That would make the Eighth Circuit the most ideologically lopsided of all the U.S. Courts of Appeals.

Two current members of the court – Steven Colloton of Des Moines and Raymond W. Gruender of St. Louis – were among the sitting federal circuit judges President Trump considered for the vacancy on the U.S. Supreme Court. Had one of them gotten the nod, he would have been the fourth Eighth Circuit judge – Justice Harry Blackmun of Minnesota being the most recent – to be elevated to the high court.(Follow this link at the Eighth Circuit U.S. Court of Appeals to fine a list of all current members of the court.)

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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