Federal Judges, Politics

Circuit Court Nominees In The Trump Administration: The Latest News And Rumor (Part 2)

These highly qualified women and men should be swiftly confirmed to the federal bench.

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The James R. Browning U.S. Court of Appeals Building, the Ninth Circuit’s headquarters in San Francisco.

Last week, I provided an overview of circuit court nominations around the country — well, at least part of the country. My earlier story covered the D.C. Circuit, the Federal Circuit, and the regional circuits up to the Sixth Circuit. (If you missed my prior post — which also discussed the nominations process more generally, including the Democrats’ use of blue slips and possible Republican responses — read it here.)

The post you’re now reading constitutes the sequel, focused on the Seventh Circuit through the Eleventh Circuit. Let’s jump right in.

Seventh Circuit

The Seventh Circuit — one of my favorite federal courts, thanks to intellectual heavyweights and colorful personalities like Judge Richard Posner, Judge Frank Easterbrook, and Chief Judge Diane Wood — now has three vacancies (up from two vacancies as of my earlier report). The seats belong to — or, to be more precise, are currently associated with — the states of Indiana, Wisconsin, and Illinois. (For detailed discussion of whether circuit seats can — or should — be “moved” from one state to another, see my story from last week.)

For the Indiana seat, I correctly predicted the nomination of Professor Amy Coney Barrett of Notre Dame Law School. I’ll call her the Above the Law readers’ “fan favorite” or “people’s choice,” because I’ve received more praise for her than any other actual or prospective nominee (which is saying a lot, given the impressive nominees being fielded by the Trump administration). Correspondents have shared with me the many enthusiastic letters filed on her behalf, including ones signed by NDLS faculty (the entire full-time faculty), NDLS alumni (from across the ideological spectrum), fellow law professors (including prominent progressives like Neal Katyal), and fellow Supreme Court clerks from October Term 1998 (every single living clerk from that Term, also from across the ideological spectrum).

Now, the love for Professor Barrett is not universal. She has come under fire from liberal groups like the Alliance for Justice — which shouldn’t be surprising, given that she’s a young female conservative (read: a possible future SCOTUS nominee). But given the robust support for Professor Barrett from both sides of the aisle — just click on the letters linked in the prior paragraph, which are positively glowing — the AFJ and similar groups face an uphill battle.

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I’m predicting that Amy Barrett will win confirmation. Word on the street is that Senator Joe Donnelly (D-Ind.) and his staff grilled Professor Barrett during her interview last Thursday, but she won them over in the end — and Senator Donnelly returned his blue slip earlier this week. Indiana’s other senator, Todd Young, is a Republican, so it should hopefully be smooth sailing for Professor Barrett from here.

For the Wisconsin seat, the oldest circuit-level vacancy in the entire federal judiciary — unfilled since 2010, partly due to partisan wrangling — I’ve heard of two possible (and strong) contenders: Misha Tseytlin, a former SCOTUS clerk (Kennedy) and the current Wisconsin solicitor general, and Michael Brennan, a former judge now back in private practice at Gass Weber Mullins. Republican Senator Ron Johnson and Democratic Senator Tammy Baldwin have also agreed to work together on recommending possible judicial nominees to President Trump, so their commission could generate additional names.

The Illinois opening is new, created last month when Judge Ann Claire Williams took senior status. I’ve heard of at least three high-powered lawyers who have interviewed with the White House for the spot:

  • Dennis Murashko, general counsel to Illinois Governor Bruce Rauner;
  • Brian J. Murray, a former SCOTUS clerk (Scalia) and former partner in the Chicago office of Jones Day, who recently assumed the role of Deputy Associate Attorney General at the Department of Justice; and
  • Michael Scudder, a former SCOTUS clerk (Kennedy), former White House and DOJ lawyer, and current partner at Skadden Arps in Chicago.

All three are excellent contenders, and I wouldn’t be surprised to see all three on the federal bench eventually. I also wouldn’t be surprised if the White House sends multiple names to Illinois’s two Democratic senators, Dick Durbin and Tammy Duckworth, and basically says “dealer’s choice.”

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My personal guess for who gets the nod? Mike Scudder. He’s held in pretty much universal high regard, he’s extremely well liked, and he’s the oldest of the three — so the time to put him on the bench is now.

Note that there are also two vacancies in the U.S. District Court for the Northern District of Illinois (Chicago). These could be nice consolation prizes for whoever doesn’t make it this time around — and launching pads for a future Seventh Circuit nomination.

Eighth Circuit

There are three open judgeships — a Minnesota seat, a North Dakota seat, and a Nebraska seat — and two have nominees.

As previously reported, Justice David Stras of the Minnesota Supreme Court has been nominated for the Minnesota seat. Senator Al Franken hasn’t turned in his blue slip — and we hear that Senator Amy Klobuchar is holding on to hers as well, mainly to see what Senator Franken does — but I suspect that Senator Franken will go along in the end.

Justice Stras, a member of Minnesota’s high court since 2010, is amazingly qualified — which might explain his presence on then-candidate Donald Trump’s Supreme Court shortlist. He enjoys what the Minneapolis Star Tribune describes as a “broad swath of support,” and he won reelection to his current office by a large margin.

On the bench, Justice Stras has sided with liberals as well as conservatives over the years — so although he does move in Federalist Society circles, he is not an ideologue and “not beholden to anyone,” in the words of Faegre Baker Daniels partner Chuck Webber. This might explain why three of Justice Stras’s former colleagues on the Minnesota Supreme Court — who could all be described as “liberal,” according to Professor Jonathan Adler — wrote a letter in Stras’s support.

Even Senator Franken acknowledged that Justice Stras is “a committed public servant whose tenure as a professor… underscores how much he cares about the law.” The senator did complain that Stras’s selection was “the product of a process that relied heavily on guidance from far-right Washington, D.C.-based special interest groups — rather than through a committee made up of a cross-section of Minnesota’s legal community.” But I think it’s hard to argue that a state high court justice who was reelected in his last race with almost 60 percent of the vote doesn’t enjoy the support of the “Minnesota legal community” — or the people of Minnesota, period.

For the North Dakota seat, the nomination went to U.S. District Court Judge Ralph R. Erickson. His Senate Judiciary Committee hearing took place yesterday, and it was nothing short of a lovefest. The state’s Democratic Senator, Heidi Heitkamp, offered her “highest recommendation,” saying that Judge Erickson “is widely respected by both Democrats and Republicans in my home state.” So expect him to join the Eighth Circuit any day now.

(Also, kudos to Judge Erickson for having the courage to talk openly about his success in overcoming alcoholism. As we’ve discussed extensively in these pages — see especially the work of columnist Brian Cuban, author of The Addicted Lawyer (affiliate link) — alcoholism and addiction are serious problems in the legal profession. People struggling with these issues should know that there’s nothing wrong with seeking help — and that seeking help won’t prevent them from someday taking the federal bench.)

Finally, for the Nebraska seat, among the three possibilities I previously reported — 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 — it seems that Grasz has the edge right now.

Ninth Circuit

There are four vacant seats — Arizona, California, Hawaii, and Oregon — and no nominees for any of them yet. Let’s go state by state.

Arizona: The onetime frontrunner, former federal prosecutor Kory Langhofer (who also served as the Trump campaign’s general election lawyer in the state), appears to no longer be the frontrunner — and might even be out of the running altogether, at least for now. It’s not clear why, but it might relate to a controversial matter he’s currently handling that could complicate his confirmation. The complication might go away eventually, and Langhofer’s supporters view the situation as unfair to him, but for the time being, it’s too… complicating.

Will the White House pick someone else from the list generated by Arizona’s (two Republican) senators, John McCain and Jeff Flake — namely, Magistrate Judge Bridget Bade, AUSA Dominic Lanza, or Justice Ann Scott Timmer of the Arizona Supreme Court? It’s possible, although right now unlikely; the White House isn’t in love with any of them. (Bade or Lanza could get appointed to the district court, which has two open seats.)

With Kory Langhofer out of the running, some new names have emerged. Leading the pack is James Burnham. He currently works in Washington, where he serves as senior associate White House counsel, but he grew up in Arizona, where his parents are both prominent practicing lawyers. He’s at the top of the list, thanks to the White House colleagues’ trust in him and his gilded résumé: U. Chicago Law, a Ninth Circuit clerkship with Judge Alex Kozinski, and several years at Trump’s go-to firm of Jones Day (where he earned more than $800,000 in his last year or so, while still an associate).

Burnham is young, still in his 30s — but so was his former boss, Judge Kozinski, so that’s not a dealbreaker. It’s his current position in the White House Counsel’s office that could pose the biggest obstacle; Democrats will take full advantage of the chance to interrogate a White House lawyer, under oath, about Russia, the travel ban, or any other legal bees in their bonnet. But Burnham should be able to invoke various forms of privilege to dodge any questions not to his liking.

Some might detect shades of “Dick Cheney” in terms of Burnham overseeing the selection and vetting of Ninth Circuit candidates, as a White House lawyer, only to become a nominee himself. But Burnham didn’t suggest himself for it in the first instance; after Kory Langhofer fell out of the picture, other players in the process drafted Burnham, aware of his credentials and Arizona ties. So while he certainly faces challenges — his youth, his work generally in the Trump administration, and his work specifically on judicial nominations — Burnham should be confirmable. (As I noted on Friday, if John K. Bush could win confirmation to the Sixth Circuit, despite a Louis Vuitton steamer set of baggage, it’s hard to imagine who can’t make it through — setting aside blue slips, which shouldn’t be a problem for Burnham in a state with two Republican senators.)

Besides James Burnham, here are three other options:

  • Dominic Draye: Like Burnham, Draye has a strong CV. He currently serves as state SG, a favorite hunting ground of this White House for judicial nominees, and he previously worked at Kirkland & Ellis. He’s a graduate of Penn Law and a former law clerk to a conservative stalwart, Judge Edith Jones of the Fifth Circuit
  • Michael Liburdi: Now the general counsel to Arizona Governor Doug Ducey, Liburdi was previously a partner at Snell & Wilmer. He has strong Arizona ties: he graduated from Arizona State for both college and law school, and he clerked for the Arizona Supreme Court.
  • John R. Lopez IV: Justice Lopez, Dominic Draye’s predecessor as Arizona SG, joined the Arizona Supreme Court at the start of this year. Like Liburdi, he graduated from ASU for law school and clerked for the Arizona Supreme Court.

So that’s the Arizona situation. But don’t expect a nomination anytime soon. The selection and vetting process take time under normal circumstances, and in light of Senator John McCain’s recent diagnosis of brain cancer, nobody is rushing things, out of deference to the state’s senior senator.

California: I previously mentioned noted appellate lawyer Jeremy Rosen of Horvitz & Levy and prominent prosecutor Kathryn Haun as two possibilities. Both interviewed for the post with the White House — which apparently has interviewed as many as two dozen people for this judgeship.

Upon information and belief, the following individuals have also interviewed for the spot: Kenneth K. Lee, a partner at Jenner & Block in Los Angeles and former associate White House counsel; Paul J. Beard, a counsel at Alston & Bird in Sacramento and former principal attorney at the Pacific Legal Foundation (PLF); and Judge James Rogan of the California Superior Court (and formerly of the U.S. House of Representatives).

World Net Daily identifies Rogan as the frontrunner, but… the site has its detractors. Also, Rogan turns 60 next month, and as I’ve observed repeatedly in these pages, this White House is youth-focused in its judicial appointments. On the other hand, given California’s two Democratic senators, Rogan’s age might not be as disqualifying as it would otherwise be — and could even be a plus. Note how Judge Carlos Bea joined the Ninth Circuit at age 69 — and is still going strong, as an active rather than senior judge. So World Net Daily might actually be right here.

Personally speaking, however, I favor someone more in the mold of the other four possibilities mentioned here — Paul Beard, Katie Haun, Ken Lee, or Jeremy Rosen. They fit the White House playbook: youthful, well credentialed, and conservative but not off-puttingly so (but again, even the arguably off-putting, like controversial blogger John K. Bush, can still win confirmation). Any of the four would be a fine addition to a bench that, despite some movement to the center in recent years, often finds itself far out in left field.

Would California Senators Dianne Feinstein and Kamala Harris return their blue slips for one of these individuals? It’s tough to tell, but one can hope. The four lawyers I’ve mentioned above are all outstanding, and many are diverse as well. (Paul Beard is Latino — note his membership in the Hispanic National Bar Association — Kathryn Haun is female, and Ken Lee is Asian-American.)

Senator Feinstein has been reasonable on judicial nominees in the past, even nominees whose views she might disagree with — note Judge Leslie Southwick’s admiring discussion of her in his (fascinating) memoir, The Nominee. And Senator Harris, if she has aspirations for higher office, would want to develop a reputation as a reasonable legislator who can work across the aisle. But Democratic senators face heavy pressure from left-wing groups when it comes to judicial nominations, so we shall see.

Hawaii: I previously praised the frontrunner (or only runner?) for this seat, Carlsmith Ball partner Michael Purpura, as a great pick. The Trump administration did in fact offer the nomination to Purpura, but he declined it for personal reasons, choosing to remain in private practice. It’s not clear who will take his place — but there should be no shortage of takers for a Ninth Circuit seat in the tropical paradise of Hawaii.

Oregon: I’m not aware of any new developments since I identified Ryan Bounds, a current federal prosecutor and former Main Justice official, as the likely pick for the seat held by his (and my) former boss, Judge Diarmuid F. O’Scannlain. Bounds has a superb CV, a long history in government service, and the enthusiastic backing of Representative Greg Walden, the only Republican in Oregon’s congressional delegation.

Some have speculated whether the apparent delay in nominating Ryan Bounds might mean the administration is having second thoughts on his selection. But I’m aware of no such change of heart at the White House, and the delay is not unusual; more than a dozen circuit court seats, including all four Ninth Circuit spots, still need nominees. (And remember the point I made last week, citing Ron Klain: when you look at the numbers, this White House compares favorably to prior ones regarding the pace of judicial nominations.)

Oregon has two democratic senators, Jeff Merkley and Ron Wyden. Will they use their blue slips to obstruct a Ryan Bounds nomination? I hope not, given Bounds’s longstanding public service, especially his work prosecuting environmental crimes. If the senators were to try and stop an immensely qualified nominee who has spent most of his career in government service, then it speaks volumes about the state of politics in our nation. As our president might tweet, “Sad!”

Tenth Circuit

There’s one current vacancy on the Tenth Circuit in Colorado, the former seat of Justice Neil M. Gorsuch, and one anticipated vacancy in New Mexico, the seat to be vacated by Judge Paul Kelly.

I’m not aware of any new developments since my last reporting. As I predicted, Justice Allison Eid of the Colorado Supreme Court was nominated to fill the Gorsuch seat. She’s incredibly qualified — note her presence on the Trump SCOTUS shortlist — and very popular in her home state. She has been a member of Colorado’s high court since 2006, and she won her last election with a whopping 75 percent of the vote.

Will she get confirmed? My prediction is yes. Republican Senator Cory Gardner strongly supports Justice Eid, whom he has known for almost two decades, so it all comes down to Democratic Senator Michael Bennet and whether he’ll return his blue slip.

On the nomination of Neil Gorsuch, a fellow Coloradan, Senator Bennet took a compromise position: he opposed a filibuster, but ultimately voted against the nomination. But that was a national position, and Senator Bennet confronted tremendous pressure from his fellow Democrats to maintain a united front. For a regional position like a Tenth Circuit seat, it will be very difficult for Senator Bennet to come up with a reason for opposing an obviously qualified, exceedingly popular, longstanding member of his own state’s highest court.

As for the New Mexico seat, my understanding remains unchanged: it’s between 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. Both enjoy strong support from the local bar; Judge Hanisee is younger. (If you’d like to learn more about Judge Hanisee, see these interviews of him conducted by Emil Kiehne of the New Mexico Appellate Law Blog, in 2012 and again in 2014.)

Eleventh Circuit

For the current vacancy, out of Alabama, Kevin Newsom, chair of the appellate group at Bradley Arant in Birmingham, should be confirmed very soon. He got voted out of the Senate Judiciary Committee by an overwhelming 18-2 margin — an especially impressive feat given our polarized times, but not surprising given his reputation and credentials.

There’s a new anticipated opening out of Georgia, the seat being vacated by Judge Frank Hull. Judge Hull announced her — yes, her — retirement plans just this month.

It’s still early in the process, so I’ll be brief. There are many names in the mix — including, but not limited to, Justices Keith Blackwell, Britt Grant, and Nels Peterson, of the Georgia Supreme Court; Chief Judge Stephen Dillard and Judge Elizabeth (Lisa) Branch, of the Georgia Court of Appeals; and Dean Peter B. “Bo” Rutledge, of the University of Georgia School of Law.

UPDATE (7/28/2017, 11:55 p.m.): I accidentally omitted Justice David Nahmias of the Georgia Supreme Court from my list of Eleventh Circuit possibilities (although whether he or any of the others are interested is a separate question; for now I’m just identifying “names in the mix,” opposed to candidates going through the interview and vetting process).

Have you heard any other names for this vacancy, or any other vacancy throughout the federal judiciary? Might you have interesting comments or important corrections to any of my reporting? If so, please reach out by email (subject line: “Judicial Nominations”) or by text message (646-820-8477, including the words “Judicial Nominations” somewhere in your text, so it will come up when I search my (clogged) inbox). Thanks!

UPDATE (7/27/2017, 12:50 p.m.): Two additional items:

1. On the issue of “moving” a seat, I previously wrote, “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.”

This is true, insofar as no statute specifies how many circuit judges each state gets, but it is subject to a constraint. 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, it’s not much of a constraint — but it should be kept in mind, especially for states with small populations and few circuit judges.

2. For detailed bios of the nominees and analysis of their judicial records (where applicable), check out The Vetting Room, “a project dedicated to examining and analyzing the records of President Trump’s judicial nominations.”

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