Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up
Names, names, and more names, for federal judgeships around the country.
Sixth Circuit
There are two vacancies, both in Kentucky; Judge Amul Thapar has already been nominated for one, and he should be confirmed soon. Judge Thapar has a wonderful reputation and widespread support, and his confirmation hearing went off without a hitch.
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Getting buzz for the second spot is Judge Allison Jones of the Kentucky Court of Appeals. The University of Kentucky law grad is young (early 40s) and well credentialed (former federal law clerk, former lawyer at Fenwick & West and at Stites & Harbison, Kentucky’s oldest law firm). She clerked for the late Judge John G. Heyburn II, who was a close friend of Senate Majority Leader Mitch McConnell. She was elected to her current post in a landslide from the heavily Republican northern Kentucky area.
(Judge Jones is the first woman mentioned in this article as a possible pick. It would be nice to see more diversity, in terms of gender and racial/ethnic background, among the Trump judicial nominees.)
UPDATE (5/2/107, 8:31 a.m.): Over at Bench Memos, Professor Jonathan Adler identifies Justice Joan Larsen of Michigan, also a Trump SCOTUS shortlister, as a likely candidate for the seat of Judge David McKeague, who’s going senior.
Seventh Circuit
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The Seventh Circuit has two open judgeships, one in Wisconsin and one in Indiana. The Indiana seat is generating the most chatter. Word on the street is that Vice President Mike Pence, former governor of Indiana, and his chief counsel, Mark Paoletta, are playing a major role in this process. Some think that a lawyer with ties to Pence will get the seat (such as Asheesh Agarwal, general counsel to the Indiana Department of Revenue since 2013 — although it now seems Agarwal might get a different job in government).
The latest intel, however, points in the direction of Professor Amy Coney Barrett of Notre Dame Law School. It’s not clear whether she has ties to Pence (she’s not even a member of the Indiana bar), but it is clear that she has a glittering résumé: Notre Dame Law (summa), clerkships for Judge Laurence Silberman (D.C. Cir.) and the late Justice Antonin Scalia, and time at the late, great boutique of Miller, Cassidy, Larroca & Lewin.
I usually like it when law professors are appointed to the bench — I find them generally more interesting, provocative, and colorful than practicing lawyers or sitting judges (think Richard Posner or Guido Calabresi) — but there’s a reason why it’s getting harder to put public intellectuals on the bench: they have big paper trails (which, thanks to the internet, are easier to follow than ever).
For example, check out this 1998 piece for the Marquette Law Review by Barrett and Professor John H. Garvey, Catholic Judges in Capital Cases. The authors’ argument, in a nutshell (page 305): “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty.” That’s probably not a conclusion that would sit well in Republican legal circles — or, for that matter, with the Catholic justices of the Supreme Court who tinker regularly with the machinery of death (although note the authors’ statement that whether judges “may affirm lower court orders of either kind is a question we have the most difficulty in resolving”).
UPDATE (10 p.m.): If you read the full article — which, it should be noted, came out almost two decades ago, when Amy Barrett was still a law clerk — you’ll see that it does not conclude in a blanket way that Catholic judges can’t sit on death cases. Instead, the authors make the much more modest claim that a district judge judge should not impose a death sentence. It’s also worth noting that Barrett, during her clerkship with Justice Scalia, participated in death cases without any issue or objection — and presumably would act similarly as a circuit judge.
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(“Bonus” pick: there’s no current Illinois vacancy in the Seventh Circuit, but if and when one arises, Skadden Chicago partner Michael Scudder is one possible nominee. He graduated from Northwestern Law, where he was editor-in-chief of the law review; clerked for SCOTUS, for Justice Anthony M. Kennedy; worked as a federal prosecutor in Manhattan; and served in the George W. Bush White House, as general counsel of the National Security Council. Plus, he’s a CPA!)
Eighth Circuit
There are two open spots on the Eighth Circuit, one for Minnesota and one for Nebraska North Dakota. [UPDATE (10:55 p.m.): There will be a Nebraska opening as of June 30, 2017, when Judge William Jay Riley goes senior — see this list of future vacancies.]
For the Minnesota slot, Justice David Stras of the Minnesota Supreme Court is a lock. This shouldn’t surprise anyone; Justice Stras, a Kansas Law grad and former SCOTUS clerk (for Justice Thomas), was on the Supreme Court shortlist that President Trump issued on the campaign trail. If Justice Dave Stras is good enough for SCOTUS, he’s surely good enough for the Eighth Circuit.
The Nebraska seat looks more competitive. I’ve heard at least three names (in alphabetical order, no clear frontrunner): Brian Buescher, a Georgetown Law grad and partner at Kutak Rock in Omaha; Steve Grasz, a Nebraska Law grad and senior counsel at Husch Blackwell in Omaha; and Jonathan Papik, a Harvard Law grad and former Silberman/Gorsuch clerk, now practicing at the Cline Williams law firm.
(Papik is a little young, as a 2008 grad — but his former boss was young too when appointed to the Tenth Circuit. Whether or not Papik gets the seat this time around, he is definitely on the administration’s radar screen for the future.)
Ninth Circuit
I incorporate by reference my Friday story on possible Ninth Circuit nominees. But here’s a quick recap regarding the four vacant seats: Arizona, California, Hawaii, and Oregon.
For Arizona, a number of names have been mentioned — including Magistrate Judge Bridget Bade, AUSA Dominic Lanza, and Justice Ann Scott Timmer of the Arizona Supreme Court — but it seems Kory Langhofer has the best shot. He’s young (a 2006 graduate of Yale Law), but he’s very plugged-in and threw his lot in with Trump early, serving as the campaign’s general-election lawyer in Arizona and Nevada. If for some reason he doesn’t get a judgeship this time around, Langhofer should get one eventually.
For California, I previously flagged noted appellate lawyer Jeremy Rosen of Horvitz & Levy, but my understanding is that he’s far from alone; there are all sorts of rumors of other contenders (including a high-profile law professor and a Biglaw partner). Prominent prosecutor Kathryn Haun — Stanford Law, Ninth Circuit and SCOTUS clerkships (for Judge Alex Kozinski and Justice Kennedy), major cases involving Silk Road and bitcoin — was getting talked about for the Ninth Circuit or for U.S. Attorney (N.D. Cal.), but it now seems that Katie Haun might pass this time around. [UPDATE (10 p.m.): Haun is open to government opportunities, but is also said to be exploring options at tech companies in Silicon Valley.]
For Hawaii, Michael Purpura — Columbia Law grad, former federal prosecutor, current partner at Carlsmith Ball — has the pole position. There was some question as to whether he wanted to take the bench or do something else in politics or government, but that question has now been resolved in favor of judicial service, I understand.
For Oregon, I’ve heard about AUSA Ryan Bounds and Chief Judge Michael Mosman. They both have impeccable credentials — Yale Law for Bounds, BYU Law for Mosman, top-shelf clerkships, service in the George W. Bush administration — but Bounds might have the edge because of his age (43 to Mosman’s 60).
This would be a good point to talk about the role of senators. Oregon has two Democratic senators, like a number of other states mentioned in this story (such as California and New York), and because of “blue slips” (previously discussed here and here), these Democratic home-state senators must sign off on the nominees from their states.
Senatorial support should not be much of an issue in Oregon, since both prospective nominees are well within the mainstream. Bounds prosecutes white-collar and environmental crimes, which should earn him points with the left, and nothing in Judge Mosman’s judicial record jumps out as a dealbreaker for progressives. Furthermore, this is the seat most recently held by Judge Diarmuid F. O’Scannlain, one of the Ninth Circuit’s most conservative judges — meaning that there’s a lot of ideological leeway when it comes to picking his successor (cf. selecting a successor to Justice Scalia). But senatorial support and blue slips could be an issue in other states, like California — and how aggressively Democrats use blue slips could determine whether they endure or whether they get nuked, a la the filibuster. (My sources say the Republicans will have no qualms about going nuclear on blue slips if they feel the Democrats are abusing them.)
(“Bonus” pick: there’s no current vacancy for Idaho, but Judge N. Randy Smith will soon be eligible for senior status and is contemplating taking it. If he does, one possible successor is Ryan Nelson, general counsel at nutritional-supplement company Melaleuca. Nelson is a BYU Law grad and former Sidley Austin associate and Justice Department lawyer who also has deep roots in Idaho — and a powerful billionaire backer, Melaleuca CEO Frank VanderSloot.)
Tenth Circuit
There’s one opening: the Colorado seat vacated by Justice Gorsuch. A few folks are under consideration, but the favorite is Justice Allison Eid of the Colorado Supreme Court. No surprise there: like Dave Stras, another clerk for Justice Thomas turned state high-court justice, Allison Eid was on candidate Trump’s SCOTUS shortlist. She has a superb background — she graduated from U. Chicago Law, worked at Arnold & Porter, taught as a professor at the University of Colorado Law School, and served as Colorado’s solicitor general — and she is widely liked and admired. (Perhaps the biggest downside for Republicans of nominating Justice Eid: Governor John Hickenlooper, a Democrat, would get to appoint her successor to the Colorado Supreme Court.)
If for some reason Justice Eid doesn’t get the nod, or if another Colorado seat opens up in the Trump administration, one strong possibility is Dan Domenico. Like Eid, Domenico is a former SG for Colorado. He graduated from UVA Law, worked for the Interior Department, and now has his own law firm, Kittredge LLC. He clerked on the Tenth Circuit for Judge Timothy Tymkovich. If Chief Judge Tymkovich’s seat were to open up — note that he, like his friend and former colleague Neil Gorsuch, was also on the Trump SCOTUS list — it might be nice for Domenico to take that seat. (Cf. Ryan Bounds possibly taking the seat of Judge O’Scannlain, for whom he clerked.)
Eleventh Circuit
There’s one opening (Alabama), and there’s one name I’ve heard again and again: Kevin Newsom, chair of the appellate group at Bradley Arant in Birmingham. This also isn’t a shocker: Newson is a graduate of Harvard Law (where he worked with Professor Laurence Tribe), a former Supreme Court clerk (for Justice David Souter), and a former solicitor general for Alabama. With mentors from across the ideological spectrum — Professor Tribe, Justice Souter, and on the conservative side, Judge Diarmuid O’Scannlain — Newsom should be a shoo-in.
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So there you have it: my working list of potential nominees to the 20 vacant seats on federal appeals courts around the country. If you have comments, corrections, additions, or removals, please email me (subject line “Judicial Nominations”) or text me (646-820-8477; texts only, not a voice line; please include the words “Judicial Nominations” in your text, so I can find your message in my inundated inbox).
With your help, the next version of this list will be even more comprehensive and accurate than this one. Thanks in advance for your information and insights.
UPDATE (5/8/2017, 11:44 p.m.): Many of the predictions in this post have come to pass. See More Judicial Nominations From The Trump Administration.
The White House Is Preparing To Make A Move On The DC Federal Trial Court [BuzzFeed]
First Trump lower-court nominee coasts through Senate hearing [Politico]
Trump administration moving to replace fired U.S. attorneys [Politico]
6 Candidates Trump Wants to Place on the Fifth Circuit Set for Vetting [Texas Lawyer]
Exclusive–Texas Republicans Hail Judicial Hopefuls to Fulfill Trump Promise [Breitbart]
Texas Conservatives Send Three Judicial Picks to Trump [Breitbart]
Earlier: Some Possible Nominee Names For The Ninth Circuit
Who Will President Trump Nominate To The Circuit And District Courts?
Lower-Court Judicial Nominations By The Trump Administration
Friday Night Fights — At The Ninth Circuit
Making SCOTUS Great Again: Trump’s Supreme Court Shortlist
Making SCOTUS Even Greater: Trump’s Supplemental Supreme Court Shortlist
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 [email protected].