More Judicial Nominations From The Trump Administration
We were right about a number of nominees; let's look ahead to the next batch.
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Last week, I shared the names of several possible judicial nominees from the Trump administration. Last night, Adam Liptak of the New York Times broke the news of ten forthcoming judicial nominations from the White House — and of the five appeals-court nominees, four appeared on my earlier list: Amy Coney Barrett (Seventh Circuit), Joan Larsen (Sixth Circuit), Kevin Newsom (Eleventh Circuit), and David Stras (Eighth Circuit). (I missed John K. Bush, who will be nominated to the Sixth Circuit.)
The nominees should please mainstream conservatives. As White House Counsel Don McGahn put it, the nominations deliver on President Trump’s campaign promise “to appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.” Writing for the National Review, Carrie Severino of the Judicial Crisis Network hailed them as “an exceptional slate that carries on the tradition this president began by nominating Justice Gorsuch.”
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At the same time, the nominees are mainstream thinkers and superbly qualified candidates, who should win confirmation with bipartisan support (well, at least in less polarized times). As summed up by Professor Jonathan Adler, “The nominees make up an impressive list of highly respected jurists, attorneys and legal thinkers. Those of us who doubted Trump would take judicial nominations seriously may have some crow to eat.”
In addition to the circuit court nominees mentioned above, President Trump is nominating Dabney Friedrich to the U.S. District Court for the District of Columbia, Terry Moorer to the Middle District of Alabama, David Nye to the District of Idaho, Scott Palk to the Western District of Oklahoma, and Damien Schiff to the U.S. Court of Federal Claims. Interestingly enough, as pointed out by Vanessa Blum of the National Law Journal, Nye and Palk were previously nominated by President Obama but never confirmed. (But note that both Idaho and Oklahoma have two Republican senators each, so presumably the Nye and Palk nominations reflect support from their home state senators as opposed to Trump cutting a deal with Democrats.)
UPDATE (10:45 p.m.): The ten nominees are now official; see this release from the White House press office, President Donald J. Trump Announces Judicial Candidate Nominations.
According to the senior White House official quoted by Liptak in the Times, we should get new nominees on a monthly basis. So let’s look ahead and try to predict who might wind up in future waves (in addition to the individuals I mentioned last week who didn’t make today’s round-up).
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I repeat the explanatory note from my prior post: I communicated with many sources for this report, and I sent requests for comment to every possible nominee mentioned below for whom I could find contact information; they all did not get back to me or declined to comment. All of my sources insisted on strict anonymity, given the sensitivity of the subject and the fact that the appointments discussed herein have not yet been officially announced. So this story will contain very few direct quotations and be told from the perspective of an omniscient narrator, to preserve anonymity, but rest assured that it reflects extensive reporting.
Where are the openings in the federal judiciary? Current judicial vacancies are listed here, and anticipated vacancies are listed here. (Do a “find” on the page for “CCA” (“Circuit Court of Appeals”) to find the circuit seats on each list.)
As I did before, I’ll go circuit by circuit, but this time I’ll discuss district court as well as circuit court seats in each circuit. You’ll note that some courts get more coverage than others; this simply reflects where my sources come from. If you’d like more coverage of your judicial district or circuit, please help out by providing me with information, by email (subject line: “Judicial Nominations”) or by text message (646-820-8477, including the words “Judicial Nominations” somewhere in your text).
Second Circuit
According to the Buffalo News, the two leading candidates for the open seat on the Western District of New York are Amy Habib Rittling, an employment and commercial litigator who’s a partner at Lippes Mathias Wexler Friedman, and Jeremy Colby, former Erie County Attorney and current partner at Webster Szanyi. (Fun fact: check out Colby’s blog, A Buffalo Lawyer. Social media can sometimes get potential nominees in trouble, but my quick skim of the blog — which hasn’t been updated since, interestingly enough, right before Trump’s election — reveals nothing problematic.)
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It’s not clear, however, that we’ll see movement on this seat anytime soon. Representative Chris Collins (R-NY) told the Buffalo News that New York is on the back burner because “blue slips” remain intact (for now) and the state has two Democratic senators — including Senate Minority Leader Chuck Schumer, who apparently favors Kathleen Sweet, a partner at Gibson, McAskill & Crosby, for the open seat.
Fourth Circuit
There’s an opening in the Eastern District of North Carolina. Rumored contenders including Magistrate Judge Robert Numbers II, who practiced at Womble Carlyle before taking the bench in 2014, and Thomas Farr, a shareholder at Ogletree Deakins. Numbers enjoys support from the Federalist Society, in which he played a local leadership role before becoming a judge, and Farr enjoys support from Republican Party figures.
The main problem for Farr is age (he’s in his 60s), although another issue is that he’d have to recuse from certain cases because of his past legal work for the Republican party. The White House Counsel’s office and the Republican senators diverge on some seats, and this one might be one of them: the White House likes younger nominees (like Numbers), while senators pay more attention to political concerns (like rewarding Farr for his service to the Republican Party).
Sixth Circuit
I previously mentioned Judge Allison Jones of the Kentucky Court of Appeals as a possibility for the second Kentucky seat on the Sixth Circuit (Judge Amul Thapar has been nominated to the first one), and I heard good things about her from folks on both sides of the aisle. For example, one progressive said to me, “Judge Jones for the Sixth Circuit? I’m a Trump-hating liberal, but I’m good with that. Good judge with a compelling personal story.”
But Judge Jones didn’t get the nod, at least not this time. Instead, the seat is going to John Bush, a partner at Bingham Greenebaum Doll, where he co-chairs the litigation department. Bush has an impeccable résumé — Vanderbilt (summa cum laude), Harvard Law (cum laude), a long list of successful representations — and ties to both the Federalist Society and the Republican Party. (He currently serves as president of Fed Soc’s Louisville Lawyers Chapter.)
Here is one Kentucky source’s interesting take on Bush v. Jones:
Bush is a top-shelf corporate litigator, one of the best in that part of the country. Naming him is the Kentucky equivalent of, say, a Cravath litigation partner being named to the Second Circuit. He’s represented both KFC and Senator McConnell, and has a long history deep in the Republican Party and in the Federalist Society. Usually people like him don’t become judges because they don’t want to give up the big money, but maybe he’s made enough already.
If it really was between him and Allison Jones, then it’s potentially a “Trump betraying his base!” story. Bush is a big-shot corporate lawyer in Louisville, which the rest of Kentucky hates. Jones was elected to be a judge by all those Trump voters in rural Kentucky.
And wait, there’s more Kentucky judicial dish. There are two open district court seats in the state — one in the Eastern District, one in the Western — and for the Western District seat, one possible nominee is Caroline Pitt Clark. Clark heads up government relations at KU Energy and is the daughter of M. Stephen Pitt, general counsel to Governor Matt Bevin.
Eighth Circuit
For the Eighth Circuit, I previously discussed the about-to-open Nebraska seat and also the Minnesota seat (which I correctly predicted going to Justice David Stras of the Minnesota Supreme Court). But what about the North Dakota seat?
We’ve heard several names, all of them plausible: Judge Ralph Erickson, of the District of North Dakota; Daniel Traynor, who previously served as state chairman for the Republican Party in North Dakota; and Justice Jerod Tufte, of the North Dakota Supreme Court.
Also in the mix, but less likely: assistant U.S. attorney Jennifer Klemetsrud Puhl, who was nominated to the Eighth Circuit under the prior administration (thanks, Obama). Senator Heidi Heitkamp is pushing for Puhl’s renomination, but she probably won’t get it unless some sort of deal is cut.
As for district courts within the Eighth Circuit, a seat in the Eastern District of Arkansas will open up next year, when Judge J. Leon Holmes takes senior status. Two possible nominees are Chad Pekron, a top commercial litigator and partner at Quattlebaum, Grooms & Tull, and Bud Cummins, a solo practitioner who served as the Trump/Pence campaign chair in Arkansas and as U.S. Attorney under President George W. Bush. (His departure from the post was part of the U.S. attorney firing scandal — the 2006 controversy under President Bush, not the 2017 controversy under President Trump.)
Normally past service as a U.S. attorney gives someone the inside track on a district judgeship, but Cummins has the obstacle of age: he turns 58 this year. And we’ve discussed before the importance of youth to the current White House when it comes to picking judicial nominees. (Similarly situated to Bud Cummins: Thomas Farr, discussed above, and Boris Feldman and Judge Michael Mosman, discussed last week.)
UPDATE (11:25 p.m.): Judge Holmes’s retirement is a long way off (he’s not going senior until March 31, 2018), and vetting of possible successors has not yet begun.
Tenth Circuit
Tenth Circuit Judge Paul Kelly of New Mexico will be going senior soon (exact date TBD). Many will seek his spot; two possibilities we’ve heard discussed are Judge James O. Browning, of the U.S. District Court for New Mexico, and Judge J. Miles Hanisee, of the New Mexico Court of Appeals.
Judge Browning, a graduate of Yale College and UVA Law, “is a solid conservative and generally viewed as one of the smartest people in the state,” according to one source. “He very nearly got the last New Mexico spot on the Tenth and would be the obvious pick except for age” (born in 1956, making him 61 this year). Judge Hanisee, while less of a known quantity than Judge Browning, is “generally conservative, and certainly younger.”
Speaking of the Tenth Circuit, I previously predicted Justice Allison Eid for the Colorado seat vacated by Justice Neil Gorsuch (with former Colorado solicitor general Daniel Domenico as an outside possibility). I stand by that prediction — as long as the seat gets filled, that is. As reported by Law360, the Judicial Conference of the United States will propose to Congress the creation of 57 new Article III judgeships — more spots for President Trump to fill — but will also advise Congress and the White House that two vacancies, Justice Gorsuch’s former Tenth Circuit seat and a District of Wyoming seat, don’t need to be filled because of low filing rates in those courts.
The Judicial Conference’s recommendations are not binding, so the Trump administration might ignore them — especially because it’s surely eager to place the highly regarded Justice Eid, one of candidate Trump’s SCOTUS shortlisters, on a federal appeals court. But if Democrats want to fight Justice Eid, precisely because she might be on a “rocket ship to the Supreme Court,” this recommendation could serve as ammunition for them. Cf. the occasional (partisan) disputes over whether the D.C. Circuit needs to have all its seats filled.
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And that’s a wrap: the latest in news and rumor about possible nominees to the federal courts. 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).
My thanks in advance for your help in tracking these important appointments from across the land.
Trump to Announce Slate of Conservative Federal Court Nominees [New York Times]
Here come Trump’s judges: President to put forward more strong judicial nominees [Volokh Conspiracy / Washington Post]
Trump Set to Nominate 10 Federal Judges [National Law Journal]
Trump Proposes an Excellent Slate of Appellate Judicial Nominees [Bench Memos / National Review]
Judicial Conference To Propose 57 New Federal Judgeships [Law360]
Earlier: Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up
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.
