Who Will President Trump Nominate To The Circuit And District Courts?
Let's get this party started.
Judge Amul Thapar (by NAPABA via YouTube)
On Monday, Justice Neil Gorsuch will hear his first oral arguments as a member of the U.S. Supreme Court. Now that he’s firmly ensconced on the bench at One First Street, we can shift our focus to nominees for the federal circuit and district courts.
The confirmation process for Justice Gorsuch was unpleasant, to put it mildly (and for reasons having nothing to do with the nominee; you can blame Democrats or Republicans, but it was clearly the fault of the legislative rather than judicial branch). Let’s hope, for the sake of the country, that both parties can take the temperature down and start filling those hundred-plus vacant judgeships (almost half of them considered judicial emergencies).
Early Adopters Of Legal AI Gaining Competitive Edge In Marketplace
Article III of the Constitution refers to these non-SCOTUS federal courts as “inferior,” but in practice they are anything but. As I wrote back in January about judicial nominations, because the Supreme Court hears so few cases, “the brilliant women and men who serve as federal judges on the lower courts wield a great deal of power.”
The main potential stumbling block to progress on lower-court nominees: “blue slips.” As explained by prominent conservative commentator Hugh Hewitt in the Washington Post:
The blue slip is simply the piece of paper that is sent to the senators from the home state of every judicial nominee. If a senator has no objection to the nominee, the blue slip (so named for the color of the paper) is sent back to the Judiciary Committee chairman with an indication of approval. If the senator objects, the paper is either sent back indicating disapproval or not returned at all.
Under current Senate practice, if the blue slip isn’t returned, the nominee doesn’t move forward. Hugh Hewitt isn’t a fan of this de facto veto power enjoyed by home-state senators; he condemns it as “simply and obviously deeply anti-democratic,” and wants Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) to, well, give blue slips the nuclear treatment.
Sponsored
Early Adopters Of Legal AI Gaining Competitive Edge In Marketplace
Is The Future Of Law Distributed? Lessons From The Tech Adoption Curve
Navigating Financial Success by Avoiding Common Pitfalls and Maximizing Firm Performance
Navigating Financial Success by Avoiding Common Pitfalls and Maximizing Firm Performance
Senator Grassley recently told Roll Call that his Committee remains “committed to” current blue-slip practice, but noted that blue slips aren’t sacrosanct. This strikes me as totally reasonable: blue slips can be honored for now, and used by senators to stop truly unqualified nominees. But if the Democrats abuse blue slips by using them to stop qualified nominees whose ideology they just don’t like — basically what Republicans did to the eminently qualified Merrick Garland, and what Democrats tried to do to the eminently qualified Neil Gorsuch — then it might be time to shred the blue slip.
That’s it for big-picture observations; now, on to discussion of specific courts and nominees. As I wrote back in January, “the White House Counsel’s office has already started interviewing possible judicial nominees. As one might expect, the interviewees are skewing young — many are only in their 40s — and conservative.”
Some addenda to that. First, the nominees are very young — some names I’ve heard mentioned are still in their 30s. Second, in terms of courts, I’ve heard through the grapevine that interviews for some (but not all) spots on the Third, Seventh, and Ninth Circuits, as well as the District of Columbia (D.D.C.), are underway. This is not an exhaustive list. If you’re aware of other courts, as well as specific nominees, please email us, subject line “Judicial Nominations,” or text us (646-820-8477), including the words “Judicial Nominations” somewhere in your text.
So far President Trump has made one lower-court nomination, putting up Judge Amul Thapar of the Eastern District of Kentucky for elevation to the Sixth Circuit. That’s a superb nomination, and a no-brainer.
Judge Thapar has a fantastic and well-rounded résumé, featuring a top law school (Boalt Hall), two federal clerkships, private-practice experience (Williams & Connolly and Squire Sanders), and government service (as an assistant U.S. attorney and now district judge). He’s a fantastic (and fun) writer. He’s diverse; he’s the nation’s first Article III judge of South Asian ancestry, and if confirmed to the Sixth Circuit, he’d be only the second Indian American on a circuit court of appeal (the first being Judge Sri Srinivasan of the D.C. Circuit). He enjoys support from a diverse range of groups, from the left-leaning NAPABA to the right-leaning Federalist Society. And he’s respected by members of the Supreme Court, who eagerly snap up his clerks for their own chambers — making him the rare “feeder judge” who’s not on a federal appellate court. That should change quickly — he won’t be on the district court for much longer — but his feeding power should endure (unless he gets elevated to SCOTUS himself).
Sponsored
The Business Case For AI At Your Law Firm
Legal AI: 3 Steps Law Firms Should Take Now
Recall also that Judge Thapar was on the Supreme Court shortlist released by Donald Trump during the presidential campaign, and was even one of just four judges interviewed personally by the Donald for the nomination that went to Justice Gorsuch. If a judge is good enough to be in Supreme Court contention, he’s certainly good enough to sit on a federal appeals court if he’s not there already.
Which brings us to some other obvious prospects for lower-court nominations from DJT. From a conversation between Hugh Hewitt and Leonard Leo, the Federalist Society executive vice president who plays a major role in judicial picks:
HH: There are 18 Circuit Court vacancies right now, and I have in front of me President Trump’s list of 21 potential Supreme Court nominees, and I see on there Keith Blackwell, who’s an associate justice of the Supreme Court of Georgia, Charles Canady, who is an associate justice of the Supreme Court of Florida. We’ve got Allison Eid, who’s on the Colorado Supreme Court. We’ve got, of course, the wonderful Justice Willett on the Texas Supreme Court. You’ve got Thomas Lee on the Utah Supreme Court…. [Y]ou’ve got Ed Mansfield on the Iowa Supreme Court. Ed’s an old friend of mine back to Harvard days. You’ve got David Stras, who’s 42, on the Minnesota Supreme Court. Isn’t it automatic, Leonard, that a state supreme court justice who is on the short list for the Supreme Court would be nominated to the Circuit Court of the federal system?
LL: I think there’s very serious contenders for any vacancy on the Circuit Court, and it wouldn’t surprise me if you saw a handful of those people nominated sometime this spring for the positions that are open. There is a position open, for example, in Colorado when Judge Gorsuch is confirmed. There’s a position open in Minnesota on the 8th Circuit, and I think there are a couple of others.
It sounds like there’s an excellent chance of Justice Willett — who made it to the final six for Justice Gorsuch’s spot — being nominated to the Fifth Circuit. Like Judge Thapar, Justice Willett would make an excellent circuit judge. My main worry: would Justice Willett stop tweeting? #AppellateTwitter won’t be the same without him (but we’d certainly understand).
So Justices Blackwell, Canady, Eid, Lee, Mansfield, and Stras — plus two other state-court justices who made the Trump SCOTUS lists, Chief Justice Robert Young and Justice Joan Larsen, both of Michigan — would seem to be likely picks for circuit seats. And as you can see from this list of current judicial vacancies, there’s at least one open seat in all of their circuits.
The circuit with the most vacancies is the largest circuit, as well as a sentimental favorite of mine (because I clerked for and set my novel in it): the Ninth Circuit. It currently has four openings (including the seat of my former boss, Judge Diarmuid F. O’Scannlain). Here’s some discussion of possible nominees for that court, via the Daily Journal (paywalled, so no direct link to the article; if you have access, search for “9th Circuit may take right turn under Trump” by John Roemer):
[For retired Judge Harry] Pregerson’s open seat, [prominent California litigator Jean-Paul] Jassy — a political independent — suggested that Trump nominate Horvitz & Levy LLP appellate partner Jeremy B. Rosen, a former president of the conservative Federalist Society’s Los Angeles chapter, who is on record as having deplored the deep polarization that has infected the judicial selection process.
Rosen in 2011 suggested that centrist Democrat Paul J. Watford of Pasadena would make a good Obama candidate for the 9th Circuit, an idea that came to pass with Watford’s confirmation to the court in 2012.
“Rosen would be a great candidate,” Jassy said. “I’ve worked with him, and he’s a very smart guy that Democrats could support even with his Republican credentials.” While denying any inside knowledge, Jassy added, “I wouldn’t be surprised if he’s in contention.”
Rosen, a leading appellate lawyer in California who clerked for the Ninth Circuit and appeared before that court numerous times, would be a very logical pick. But he’s not the only possible nominee:
Another name suggested by some: Harmeet K. Dhillon, California’s Republican national committeewoman and a San Francisco trial lawyer.
“People have asked me if I’m interested, but I’m happy where I am,” she said Wednesday. “Of course, if the president calls, I couldn’t say no to that. I do know more lawyers who want the job than there are seats available.” She declined to name names.
Dhillon urged that the confirmation process go smoothly, whomever is nominated.
Amen to that. Regardless of “who started it” when it comes to judicial nominees, now is the time to move forward in bipartisan fashion and get the federal judiciary back up to full strength. As a certain former president might say, #YesWeCan.
P.S. We remain keenly interested in federal judicial nominations here at Above the Law. If you have information about other courts or possible nominees, please email us, subject line “Judicial Nominations,” or text us (646-820-8477), including the words “Judicial Nominations” somewhere in your text. Thanks.
Trump’s Chance to Fill Lower Court Vacancies Rest on Bipartisanship [Roll Call via How Appealing]
The one obstacle to an originalism-driven judiciary [Washington Post]
Leonard Leo On President Trump And Judicial Nominations [Hugh Hewitt]
9th Circuit may take right turn under Trump [Daily Journal (sub. req.)]
Earlier: Lower-Court Judicial Nominations By The Trump Administration
Friday Night Fights — At The Ninth Circuit
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
