Circuit Court Nominees In The Trump Administration: The Latest News And Rumor (Part 1)

What are the chances of these folks getting confirmed?

The John Minor Wisdom Courthouse in New Orleans, home of the Fifth Circuit (by Bobak Ha’Eri via Wikimedia).

I’m politically moderate, or maybe (slightly) right of center. In terms of statutory and constitutional interpretation, I favor textualism and originalism.

I support many of President Donald Trump’s judicial nominees, but I do not support a number of his other policies (think trade and immigration). And I’m not a huge fan of some of the things the president says or tweets; I’d prefer a president with more decorum and discipline.

What do I tell myself whenever President Trump does or says something cringeworthy? I channel Humphrey Bogart in Casablanca: “We’ll always have SCOTUS.”

And the lower courts too. I agree with Ron Klain, writing in the Washington Post today: regardless of Trump’s other failings, “he is proving wildly successful in one respect: naming youthful conservative nominees to the federal bench in record-setting numbers.”

I’ve previously noted this White House’s focus on youth in picking judicial nominees, and Klain quantifies that: “Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s.” In other words, Trump’s judicial appointees will be on the bench long after we’ve all forgotten about #covfefe.

There’s a sense among some that the Trump administration isn’t moving fast enough on judicial nominees — and for constitutionalists, sure, faster is always be better — but Klain cites facts showing the Trump White House is doing just fine:

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Trump’s predecessors all slowly ramped up their judicial nominations during their first six months in office. Ronald Reagan named Sandra Day O’Connor to the Supreme Court and made five lower-court nominations in that period; George H.W. Bush made four lower-court nominations; Bill Clinton named Ruth Bader Ginsburg to the high court but no lower-court judges; and George W. Bush named four lower-court judges who were processed by the Senate (plus more than a dozen others sent back to him and later renominated). The most successful early actor, Barack Obama, named Sonia Sotomayor to the Supreme Court and nine lower-court judges who were confirmed.

What about Trump? He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.

As you can see from the nominations page on the White House website, the Trump administration is picking up the pace when it comes to legal nominees. It has gone beyond the circuit courts to start filling district-court spots and U.S. Attorney positions.

For now, let’s focus on the circuits, since there’s more than enough to cover there. Here’s a nationwide round-up of the appellate-court action (similar to my earlier stories here and here), for the D.C. Circuit, the Federal Circuit, and the regional circuits up to the Sixth Circuit. Coverage of the remaining circuits will follow next week (because otherwise this post would be insanely long).

[UPDATE (7/27/17, (9:25 a.m.): Here’s the post on the remaining circuits.]

I incorporate by reference my earlier explanation of my reporting process and my sources. As always, if you have any comments or corrections — especially thoughts on the circuit courts not covered in this post — please reach out by email (subject line: “[Judicial/U.S. Attorney] Nominations”) or by text message (646-820-8477).

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Before delving into individual courts and possible nominee names, let’s discuss some matters of general applicability. Here’s the big issue looming over everything: President Trump can nominate whomever he wants, but will these nominees get confirmed — especially in states with one or two Democratic senators?

Republicans in the Senate have successfully maintained a united front on judicial nominees — not just on Justice Neil M. Gorsuch, but even on John K. Bush, just confirmed to the Sixth Circuit, despite some controversial undercover blogging — so confirmability truly turns on blue slips. As Kevin Daley of the Daily Caller explains:

By Senate convention, senators from states where judicial vacancies occur submit an opinion or a “blue slip,” giving a positive or negative evaluation of a nominee named to that vacancy. As a general matter, the Judiciary Committee will not convene a hearing for a nominee until the relevant senators submit their blue slips, effectively giving home-state senators veto power over judicial nominations.

I have previously expressed the hope that Democratic senators will be reasonable on blue slips, and not use them “to stop or stymie the nominations of qualified individuals just because the nominee happens to be more conservative than the senator.” But word on the street is that many Democratic senators, energized by anti-Trump sentiment, do plan to be aggressive in withholding blue slips.[1]

What will happen if Democrats dig in their heels on blue slips? I predict the Republicans will respond by getting rid of blue slips, or at least cutting back their scope.

For example, as Senate Judiciary Chairman Chuck Grassley mentioned earlier this year, he might honor blue slips only with respect to state-based nominees, such as district judges and U.S. attorneys. As I mentioned in a previous post, circuit seats are regional positions — circuit judges hear appeals from multiple states throughout their circuit, and no statutory or constitutional provision allocates judgeships on a state-by-state basis — so not letting an individual senator hold an entire circuit hostage makes perfect sense.

This brings us to a second issue: possible reallocation of judicial seats within a circuit. I’ve heard that if Democrats play hardball on judicial nominations, the White House might unilaterally try to “move” a seat from one state to another. For example, if Oregon Senators Jeff Merkley and Ron Wyden refuse to return blue slips for the Ninth Circuit seat in their state, then the White House might “move” that seat to Arizona, simply by nominating an Arizonan for that spot.

While I very much want the Democrats to not abuse blue slips, which means returning them as long as the nominee is qualified (without regard to ideology), I can’t say I support this tactic of moving seats. It would open a Pandora’s box of problems.

First, it will damage the relationship between the White House and the Senate, which already isn’t the greatest; senators guard circuit seats in their states jealously, which is why fights over occasional reallocation attempts get so ugly. Second, turnabout is fair play — the next time we have a Democratic president, he (or she) might use the same tactic, giving rise to a game of “musical chairs” every four years — and perhaps eventually leading to a situation where almost all Republican judges come out of red states, and all Democratic judges come out of blue states. Our politics are polarized enough as it is; we don’t need to expand this polarization to the judiciary.

Reallocating circuit seats between states because of demographic changes is, of course, an entirely different matter. Over the years, populations and caseloads change, and so it might be reasonable to take a judgeship from a state that has experienced little population growth and transfer it to a state that has experienced major population growth. But moving seats just for partisan purposes — basically, to give the middle finger to the other political party — strikes me as a terrible idea.

[UPDATE (7/27/2017, 12:50 p.m.): No statute specifies which circuit seat goes with which state or even how many total circuit judgeships each state gets, but there is one constraint on moving seats. Per 28 U.S. Code § 44, “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.” As a practical matter, this isn’t much of a constraint — but it should be kept in mind, especially for states with small populations and few circuit judges.]

With this as background, let’s now turn to specific courts and seats. At the current time, there are 20 vacancies on the federal appellate/circuit courts, and an additional five vacancies are anticipated over the next few months. 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.

D.C. Circuit

This extremely influential appeals court, second only to SCOTUS in power and prestige, now has a vacancy. Judge Janice Rogers Brown, described by Damon Root of Reason as “America’s most libertarian judge,” is leaving that bench, effective August 31.

(The news was broken by Jess Bravin of the Wall Street Journal; note that, as reported by Zoe Tillman of BuzzFeed News, Judge Brown is leaving the court entirely — i.e., she is not taking senior status, which would allow her to hear cases as a semi-retired judge.)

In one of my prior roundups, I described the possible D.C. Circuit nominees I’ve heard mentioned as “all superstars, entirely in line with that court’s high standards.” Here are some of them, identified by Jonathan Adler of the Volokh Conspiracy (citing Professor Chris Walker):

Speculation is already beginning about who might be tapped to succeed Brown on the U.S. Court of Appeals for the D.C. Circuit. Ohio State’s Chris Walker identifies four potential nominees: Associate Attorney General Rachel Brand, University of Minnesota law professor Kristin HickmanKate Todd of the U.S. Chamber of Commerce, and Office of Information and Regulatory Affairs administrator nominee Neomi Rao (who [was recently confirmed to that post]).

Brand, Hickman, Todd, and Rao are all highly impressive individuals. Among these four, Kate Todd might have the best shot. Brand and Rao just got confirmed to their DOJ and OIRA posts, so it might make more sense to nominate them to the bench a little later. As for Hickman, she might be a better contender for the next Eighth Circuit opening.

Yes, the D.C. Circuit, like the Federal Circuit, is a “national” court, and its nominees come from across the country — but being “inside the Beltway” still helps. Also, if a non-D.C. type were to get the spot, it would probably be through this scenario outlined by Adler:

Another possibility is for Trump to use the D.C. Circuit opening to break the apparent logjam over nominations to the U.S. Court of Appeals for the 5th Circuit.

How would that work? By nominating one of the “extra” Fifth Circuit nominees — I discuss that situation below — to fill the seat being vacated by Judge Brown. Prominent conservative commentator Hugh Hewitt, for example, favors Texas Supreme Court Justice Don Willett for the opening. And it would make a certain amount of sense; Judge Brown herself came to the D.C. Circuit after serving on the California Supreme Court.

Another possibility for the “state high court to D.C. Circuit” path, raised in this Politico piece from April, would be Thomas Lee of the Utah Supreme Court. Like Justice Willett, Justice Lee is a Trump SCOTUS shortlister — but unlike Justice Willett, his state has no circuit-court vacancy, so this move would make some sense.

While there’s a chance of the spot going to Justice Lee or Justice Willett, I think it’s an outside possibility. Here’s my prediction: the nomination will go to Kate Todd or to someone like her, i.e., a D.C.-area lawyer with a sterling résumé, including a SCOTUS clerkship.

My three picks: Kannon Shanmugam, head of the Supreme Court and appellate practice at Williams & Connolly; Chris Landau, a senior appellate partner at Kirkland & Ellis; or Greg Katsas, Jones Day partner turned Deputy White House Counsel. (As some might recall, both Shanmugam and Landau were considered for the post of solicitor general.)

Among these possibilities, who has the best shot? It’s tough to say. If Greg Katsas wants it, then he’ll probably get it; he wields great power within the White House Counsel’s office, including oversight of judicial nominations.

If the White House decides to use the seat as a Supreme Court holding pen — which would not be surprising, given the many SCOTUS justices over history who have come from the D.C. Circuit (including a third of the current Court) — then Shanmugam and Todd might have the edge, mainly because of youth. They’re both about a decade younger than Katsas and Landau, who are nearing the age when it’s tough to be nominated to the high court.

Whoever doesn’t get it shouldn’t worry too much; there should be additional vacancies in the not too distant future. For example, Judge Karen LeCraft Henderson, a 73-year-old Republican appointee (Bush I), might finally take senior status. Under the “Rule of 80,” Judge Henderson has been eligible to go senior for years.

(Or maybe Chief Judge Merrick Garland, who will become eligible for retirement at full pay in November, might follow my advice and become president of Harvard University, his (double) alma mater. Wouldn’t that be awesome?)

Federal Circuit

No current or anticipated vacancies.

First Circuit

No current or anticipated vacancies.

Second Circuit

The Second Circuit has two vacancies, both New York seats. There are so few Republicans in elective office in New York — Senator Al D’Amato and Governor George Pataki, who used to have some sway, left office long ago — so it’s not clear who even has the White House’s ear on these nominations. The dearth of Republican politicians in the state also means it’s less likely the slots will be used to reward political backers or allies.

This situation gives sitting district judges a better shot than usual at elevation. I previously identified Judge Richard J. Sullivan, a young, conservative, and highly regarded judge on the Southern District of New York, as a strong contender for one of them.

Here’s a new name to add to the mix: Judge Joseph F. Bianco, a Bush II appointee to the Eastern District of New York. Judge Bianco, like Judge Sullivan, is a well-respected judge with a great CV, including time as an assistant U.S. attorney in the legendary S.D.N.Y. office.

Service as an AUSA in the Southern District could help Republicans make it past Senator Chuck Schumer, who both has the blue slips for New York and additional procedural powers to delay nominations as Senate Minority Leader. Why? Senator Schumer respects the views of Preet Bharara, who served as Schumer’s chief counsel in the Senate before becoming U.S. attorney for the Southern District. Bharara, who has friends on both sides of the aisle — yes, a rarity in these politically polarized times — is known to go to bat for, or at least say nice things about, former AUSAs in the S.D.N.Y. whom he respects. So it’s possible that Bharara might put in a good word for Judge Sullivan or Judge Bianco.

UPDATE (3/8/2018, 3:18 p.m.): Or maybe not, at least as to Judge Sullivan. Judge Sullivan previously criticized the “tabloid” tone of press releases from the S.D.N.Y. under Bharara, so I wouldn’t be surprised if Bharara is less than enthusiastic about Judge Sullivan getting elevated.

Third Circuit

The Third Circuit has three open seats — two for Pennsylvania, and one for New Jersey. Penn law professor Stephanos Bibas, whom I described as “a superstar of legal academia,” has been nominated to the seat of Judge Marjorie O. Rendell (aka “Midge” Rendell, former First Lady of Pennsylvania).

Will Professor Bibas get confirmed? I’m guessing yes. Pennsylvania has two senators, Pat Toomey (R) and Bob Casey Jr. (D). Casey is a moderate Democrat, in a state that Trump carried in the presidential election. Although Casey isn’t a Trump fan, his bipartisan instincts should prevail in the end. Note how quickly his office corrected erroneous reports of him blocking Bibas’s nomination, touting his “strong bipartisan record of working to confirm judicial nominees from both Republican and Democratic presidents.”

What about the second Pennsylvania seat? Sorry, Dems, but Obama nominee Rebecca Haywood is not getting renominated. Instead, look for a lawyer in private practice, with conservative credentials and connections, from the western half of the state (think Pittsburgh).

As for the New Jersey seat, I’ve heard nothing new since my prior report that Paul Matey, federal prosecutor turned general counsel, has a strong shot.

Fourth Circuit

No current or anticipated vacancies (although there are rumors, not yet ripe enough for repetition here, of possible openings in the not-too-distant future).

Fifth Circuit

There are three seats that are currently open, one in Louisiana and two in Texas, and one Mississippi seat that will be vacated in October, when Judge E. Grady Jolly retires.

I haven’t heard much about the Louisiana seat. Word on the street is that the White House has its eye on a young, well-credentialed lawyer currently practicing in D.C. but with Louisiana ties, who would love to move back to his home state to take a seat on the federal bench. But the White House has to sell this to the state’s two Republican senators, John Neely Kennedy and Bill Cassidy, who want (or wanted) to have input into the process.

For the Mississippi seat, the Clarion Ledger identifies these possibilities:

  • Mike Hurst, a former assistant U.S. attorney who prosecuted high-profile government corruption cases and made an unsuccessful but noteworthy run for attorney general in 2015.
  • State Supreme Court Justice James D. Maxwell, a former state Court of Appeals justice and former assistant U.S. attorney appointed to the state high court last year by Bryant to fill the seat vacated by former Justice David Chandler.
  • State Court of Appeals Justice Jack Wilson, appointed to the court by Bryant in 2015, then elected to an eight-year term in November.
  • Federal District Judge Dan Jordan, from the federal Southern District, appointed by George W. Bush in 2006.

A source of mine added these observations: “Jordan is an exceptional DJ, but in his 50s. Wilson has a stellar background, but is very young [Harvard Law, class of 2004]. Maxwell is politically connected.”

UPDATE (7/27/2017, 9:25 a.m.): Scratch Mike Hurst from the list; he’s been nominated to serve as U.S. Attorney for the Southern District of Mississippi.

And now, the Lone Star State. I previously described, in great detail, the Texas-sized dilemma. An embarrassment of riches, in terms of well-credentialed conservatives, has given rise to what Texas law professor Josh Blackman dubbed a “red slip” problem on Twitter.

There are four great contenders (in alphabetical order):

  • James Ho, co-chair of Gibson Dunn’s appellate practice and former Texas solicitor general;
  • Judge Reed O’Connor, of the Northern District of Texas;
  • Andy Oldham, deputy general counsel to Governor Greg Abbott; and
  • Justice Don R. Willett, of the Texas Supreme Court.

One of the seats is almost certainly going to Judge O’Connor — former counsel to Senator John Cornyn, the current Senate Majority Whip, who pushed hard for him — leaving the remaining three to duke it out over the other seat.

What has changed since we last checked in? Not much, it seems. The White House has told this formidable foursome that they pretty much have “dibs” on the next four Fifth Circuit vacancies out of Texas, and it’s just a question of order and timing in terms of who gets on the court when. The administration also sent all four potential nominees into FBI vetting, a sign of how seriously they’re taken as candidates.

One interesting possibility: moving a Fifth Circuit seat, whether a currently open one or a future vacancy, from another state into Texas. Based on changing demographics — Texas has the second-fastest population growth rate among all the states, while Louisiana and Mississippi are both below average — there’s a case to be made that Texas should get greater representation on the Fifth Circuit.

But both Louisiana and Mississippi have Republican senators — including Senator Thad Cochran, one of the most-senior Republicans in the Senate, and chair of the powerful Appropriations Committee — so this could be a tough feat for the White House to accomplish politically.

Sixth Circuit

With the elevation of Judge Amul Thapar in May and the confirmation of John K. Bush earlier this week, there’s just one vacancy: the seat of Judge David McKeague, who will take senior status upon confirmation of his successor. That successor: most likely Justice Joan Larsen, of the Michigan Supreme Court (and also a Trump SCOTUS shortlister).

Michigan’s two Democratic senators, Debbie Stabenow and Gary Peters, are taking their sweet time returning their blue slips on Justice Larsen. She was nominated back in May, but has not even had a hearing yet.

I predict (and hope) she will be on the Sixth Circuit soon, for the reasons set forth in this Detroit News staff editorial:

Larsen has impeccable credentials. She was appointed to the Michigan Supreme Court by Gov. Rick Snyder, and then won an election for the seat last fall.

Her qualifications are impossible to argue with: She graduated first in her class from Northwestern Law School, clerked on the D.C. Circuit and the U.S. Supreme Court, and taught at the University of Michigan for 17 years. She also worked in the Justice Department during the George W. Bush administration….

The blue slip process is supposed to give senators a tool for withholding support for a nominee whom the voters of their states simply can not support.

No one can make that case of Larsen. She won every county in the state last fall and enjoys broad bipartisan support in legal circles.

It should only be a matter of time before Justice Larsen becomes Judge Larsen (and who knows, she might become Justice Larsen again after that).

I’ve gone on for long enough for a Friday evening. Please check back next week, when I’ll discuss the state of play in judicial nominations for the remaining circuits.

If you have any comments or corrections, including information about the circuits I’ll be discussing next week, please reach out by email (subject line: “[Judicial/U.S. Attorney] Nominations”) or by text message (646-820-8477). Thanks!

[1] In fairness to the Democrats, Russell Wheeler of the Brookings Institution points out that Republicans used blue slips aggressively in the Obama years to stop judicial nominees — which partly explains why Trump now has so many judgeships to fill. So yes, the Democrats could certainly take a “have a taste of your own medicine” approach to blue slips. But I’ll repeat what I’ve written before: “Both parties have unclean hands when it comes to judicial nominations. So at this juncture, there’s no point in allocating blame; let’s just bury the hatchet on judicial nominations and fill the bench with qualified individuals, without regard to ideology.”

[UPDATE (7/27/2017, (9:25 a.m.): Again, here’s the sequel to this post, covering the Seventh Circuit through the Eleventh Circuit.]

Earlier:


DBL square headshotDavid 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.