The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday evening, Judge Juan Torruella passed away. He was the lone First Circuit judge who resided in Puerto Rico. Indeed, he was the only person to ever hold that position. The judgeship was created in 1984 (See Section 201, 98 Stat 333). Given the rapid pace of judicial appointments, it is likely that President Trump will be able to fill this vacancy before January 20. And given that Puerto Rico has no Senators who could withhold blue slips, the process should be speedy.
Is President Trump required to nominate someone who resides in Puerto Rico? The answer is no. It is a common myth that Circuit Court judgeships are attached to a specific state. They are not. They belong to the Circuit. 28 U.S.C. § 44 provides that the First Circuit shall have six active judgeships. That statute only requires that a "circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service." There is no requirement that the circuit judge reside in any given state. The First Circuit covers four states: Massachusetts, New Hampshire, Rhode Island, and Maine. As things stand now, there are two judges from Massachusetts (Lynch and Barron), one judge from New Hampshire (Howard), one judge from Rhode Island (Thompson), and one judge from Maine (Kayatta).
If Judge Lynch decided to move to New Hampshire, that would be perfectly permissible. But it would not be possible for both Judges Lynch and Barron to move out of Massachusetts. Why? Section 44 provides that "In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit." There has to be at least one judge in Massachusetts.
But, Puerto Rico is not a state. (For now at least). And there is no requirement that there should be a circuit judge from Puerto Rico. Therefore, the President could nominate a judge from anywhere else in the First Circuit.
I'm not sure what would happen if Puerto Rico becomes a state. Given this statute, there would have to be at least one judge in the new state of Puerto Rico. But who would have to move? I don't think Congress anticipated that consequence in 1984.