Federal Judges, Politics

Federal Judicial Nominations: A Quick Recap

The August recess offers a good opportunity to evaluate the state of play in judicial nominations.

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The E. Barrett Prettyman courthouse, home of the D.C. Circuit.

The Senate is now in its August recess, aka “vacation,” and I’m about to join them (returning after Labor Day). But before doing so, I’ll provide a quick update on the state of federal appellate judicial nominations from around the country.

I incorporate by reference all of my prior nominations posts (collected at the end of this article). If I don’t discuss a particular seat, it’s because I’m not aware of any significant new developments.

Now, on to the courts….

D.C. Circuit

For the one open seat on this extremely prestigious and powerful court, I previously wrote, “If [Deputy White House Counsel] 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.” And it seems, according to NPR, that Katsas wants it.

Of course, nothing’s final until a nomination gets officially announced (and not even then; sometimes nominees withdraw, or get withdrawn). But for the time being, consider Katsas the frontrunner.

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Federal Circuit

No current or anticipated vacancies.

First Circuit

No current or anticipated vacancies.

Second Circuit

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Zoe Tillman of BuzzFeed broke the news of the four names that the White House sent to New York’s two senators for the two Second Circuit openings. I discussed them in greater detail The Art Of The Possible: New York Nominees For Federal Judgeships And Prosecutor Posts (and I’m unaware of any notable developments since that story).

Third Circuit

Nothing terribly exciting since my prior story, but I would like to highlight some comments by Howard Bashman, author of our sister site How Appealing, in a recent Legal Intelligencer column:

[W]e should expect that [Democratic Senator Robert] Casey in due course will likewise return a favorable blue slip allowing the [Stephanos] Bibas nomination to proceed. Bibas has stellar academic and professional qualifications. He has even frequently litigated cases at the U.S. Supreme Court on behalf of criminal defendants, no doubt giving him insights and experiences that few judicial nominees of a conservative Republican president are likely to possess.

Two other positive facts noted by Bashman: (1) the (left-leaning) American Bar Association gave Professor Bibas its highest rating, “Well Qualified,” and (2) Senator Casey is up for reelection in 2018 — in a state carried by President Trump. So I stand by my prior prediction that Professor Bibas will be confirmed.

Fourth Circuit

No current or anticipated vacancies (although lots of rumors). I previously mentioned Elbert Lin, West Virginia’s solicitor general, as a possible nominee for a future opening, and he recently stepped down as SG — but apparently to return to the private sector, as noted by Zoe Tillman on Twitter.

Fifth Circuit

Sources say that the standoff between the four impressive possibilities for the two Texas openings, which has been going on for months, will be resolved very soon — possibly within the next few weeks. Stay tuned….

Sixth Circuit

I predicted that Justice Joan Larsen of the Michigan Supreme Court would be confirmed to the Sixth Circuit — and it looks like that will happen. Earlier this month, Democratic Senators Debbie Stabenow and Gary Peters returned their blue slips for Justice Larsen. Expect hearings sometime in September and a vote shortly thereafter.

Seventh Circuit

Full speed ahead for the Indiana nominee, Notre Dame law professor Amy Coney Barrett, whose confirmation hearings are scheduled for September 6.

The Wisconsin nominee, former judge Michael Brennan, will be more controversial. Democratic Senator Tammy Baldwin is complaining that the White House nominated Brennan even though he fell one vote shy of winning approval from the nominations committee set up by her and Senator Ron Johnson (who strongly supports Brennan).

There’s some bad blood over this seat. As mentioned earlier, it’s the oldest circuit-level vacancy in the entire federal judiciary. As Professor Carl Tobias, a leading analyst of the federal courts, pointed out to me, “The Wisconsin Seventh Circuit seat was one where Donald Schott, a highly qualified, mainstream nominee, did not receive a final vote in 2016.” Given this history, according to Tobias, for the Democrats to now “bury the hatchet” and allow Brennan and similar nominees to proceed would amount to “unilateral disarmament and rewarding bad behavior.”

For better or worse, though, Democrats just aren’t as good at playing hardball as Republicans — especially when it comes to judges. In general, progressives view the federal judiciary more instrumentally — important because it has the power to affect certain issues that are important to them (e.g., abortion), as opposed to something that’s important in and of itself.

So I predict Brennan will ultimately make it on to the bench; this seat has been vacant long enough. But his path could be longer than those of other nominees.

Eighth Circuit

Democratic Senators Amy Klobuchar and Al Franken have not yet returned their blue slips for Justice David Stras of the Minnesota Supreme Court, complaining that they were not consulted enough about his nomination. They might continue to stall, perhaps to make a point or perhaps to extract concessions (e.g., greater input into other Minnesota picks). But it’s hard to believe that the senators will ultimately block a highly regarded, very popular justice of their state’s high court, who has received a unanimous “Well Qualified” from the ABA and an outpouring of support from the Minnesota legal community.

Ninth Circuit

For the California opening, the White House has sent a list of possible nominee names to Democratic Senators Dianne Feinstein and Kamala Harris. (I don’t know how many names are on the list, or whose names are on the list; if you do, please reach out by email.)

In my last Ninth Circuit story, I named five of the roughly two-dozen individuals who have been interviewed by the White House for the seat. Here are two more: UCLA law professor Samuel Bray, and Kirkland & Ellis partner Daniel Bress (who’s based out of K&E’s D.C. office, but whose firm bio notes that he “is originally from Gilroy, California”).

I’m aware of no new developments concerning the Arizona, Hawaii, and Oregon seats. Also, note that there will soon be an open seat in Washington State: Judge Richard Tallman is taking senior status in March 2018. (It’s not surprising that Tallman is leaving during the current administration; although he was nominated by President Bill Clinton, Tallman himself is a Republican, and his nomination was part of a broader bipartisan deal.)

Tenth Circuit

There are several new names I’ve heard mentioned. One is Ben Allison, described to me as “a well-regarded intellectual property lawyer in Santa Fe, who has represented some interesting clients — like the Arthur Conan Doyle Estate in some Sherlock Holmes litigation (seriously).” Another is Joel Carson, an oil and gas lawyer in Roswell, New Mexico (yes, that Roswell).

The possibility I’m most excited about: William Ranney Levi, who totally fits the profile of a Trump judicial nominee: Stanford for college, Yale for law school, a SCOTUS clerkship (for Justice Samuel Alito), and both Biglaw and government experience (former chief counsel on the Senate Judiciary Committee for Senator Mike Lee).

Levi currently works at Sidley Austin in D.C. but has deep New Mexico roots. He’s a member of the bar of New Mexico, where he has lived on and off over the years, and his mother, Nancy Ranney Levi, runs the Ranney Ranch, a cattle ranch in Corona that has been in the family for half a century. If he were to return to New Mexico from D.C., it would be quite “Neil Gorsuch” of him; Gorsuch grew up in the west, burnished his credentials and built his connections in Washington, and then returned to his home state to take the bench.

On his dad’s side, Will Levi is legal aristocracy: his father is David F. Levi, former federal judge and current dean of Duke Law School, and his grandfather was the late Edward H. Levi, who served as the United States attorney general from 1975 to 1977. So it would not be surprising to see Will Levi follow in the illustrious footsteps of his father and grandfather by returning to public service.

Eleventh Circuit

In my earlier story, I identified seven excellent contenders for the Georgia opening (note my update, adding Justice David Nahmias of the Georgia Supreme Court). But it’s not clear that all seven would want the job, at least this time around. More specifically, I understand that Justice Nahmias, Justice Keith Blackwell, and Chief Judge Stephen Dillard of the Georgia Court of Appeals won’t be throwing their gavels into the ring.

Although the reasons the three declined to be considered are not entirely clear, all three are said to be happy with their current positions. In addition, all three are quickly rising in seniority at their respective courts (Dillard is currently Chief Judge of the Court of Appeals; with the expected retirement of the Chief Justice in 2018, Nahmias will be second in seniority at the Supreme Court, and Blackwell will be next in line). All three were integral in pushing through a major 2016 reform and modernization of the Georgia appellate courts, and it would be unsurprising to learn that they want to see those reforms through implementation. All three are also on the cusp of vesting in the state appellate retirement system. And there’s no shortage of talent in Georgia.

And, of course, no shortage of future opportunities to take the federal bench. The White House has been announcing slates of nominees every three to four weeks; with the last batch announced in early August, we should get new nominees not long after Labor Day.

Do you know of a federal judgeship that might be opening up soon, and who might be in line to get it? Do 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, and see you in September!

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.

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