Federal Judges

A Surprising Turn In The Fifth Circuit Sweepstakes (Plus Seven Other Federal Judicial Nominees)

Congratulations to the two Texas nominees, including a celebrity tweeter!

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Justice Don Willett (photo by yours truly)

Back in May, I compared the fight over the two Texas openings on the Fifth Circuit to a soap opera (specifically, Dallas). My comparison holds true; no soap opera is complete without an evil twin, a return from the dead, or some other surprise ending, and that’s what we got today in terms of the Fifth Circuit nomination race.

Earlier this afternoon, Ariane de Vogue of CNN reported:

The White House will announce four nominees for the 5th US Circuit Court of Appeals, a conservative-leaning court that has ruled against key Obama-era initiatives, including on immigration, two sources tell CNN.

The four are: Texas Supreme Court Justice Don R. Willett; Kyle Duncan, a private lawyer and former general counsel of the Becket Fund for Religious Liberty; Kurt D. Engelhardt, currently the chief judge of the Eastern District of Louisiana; and former Texas Solicitor General James C. Ho.

Why is this a surprise? For months, the conventional wisdom was that one of the seats was definitely going to Judge Reed O’Connor (N.D. Tex.), former counsel to Senator John Cornyn, the senior senator from Texas and current Majority Whip. It now seems that Judge O’Connor has been left standing in this game of musical benches. (Also left off the slate: Andy Oldham, a lawyer to Texas Governor Greg Abbott, who pushed hard for his nomination.)

James C. Ho (via Gibson Dunn)

On the other hand, while perhaps a little surprising, the nominations make sense upon closer inspection. First, Jim Ho and Don Willett boast superb qualifications. Ho, a Stanford and Chicago Law grad, is a former Fifth Circuit and Supreme Court clerk, a former Texas solicitor general, and a current partner at Gibson Dunn (where he serves as co-chair of the appellate and constitutional law practice group). Willett, a Baylor and Duke Law grad, is a former Fifth Circuit clerk, a former White House and Justice Department lawyer (in the Bush Administration), and a long-serving, highly respected justice of the Texas Supreme Court.

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Second, Ho and Willett had powerful backers. Ho enjoyed the support of both Senator Cornyn, whom he previously served as chief counsel, and Senator Ted Cruz, a friend of Ho and his predecessor as Texas SG. Willett enjoyed tremendous popular support and a nationwide reputation, due in large part to his delightful Twitter activity. (A rumor went around that Justice Willett’s Twitter activity, which included a few jabs at Donald Trump, was causing trouble for DRW’s Fifth Circuit prospects — but the rumor turned out to be unfounded, as today’s nomination news confirms.)

Third, Ho and Willett are solid conservatives (which is important for a state like Texas). Ho is a longtime member of the Federalist Society, a former Republican staffer on Capitol Hill, and a former clerk to Justice Clarence Thomas (aka the legal godfather of the Trump administration). Willett, also a Fed Soc friend, has shown a libertarian streak in his jurisprudence that has won him praise from George Will of the Washington Post and Damon Root of Reason.

Fourth, the other two top contenders, Judge O’Connor and Andy Oldham, will have other chances. The White House communicated to all four that it would love to see the entire quartet on the Fifth Circuit eventually, and it’s just a question of order. Oldham in particular is quite young — he graduated from Harvard Law in 2005 — and so his prospects are particularly bright. (In fact, some have suggested that he might take Justice Willett’s seat on SCOTX, which would set him up nicely for a future federal nomination.)

Congratulations to Jim Ho and Justice Don Willett on their Fifth Circuit nominations. They would both be excellent additions to the court where they once clerked.

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Texas has a way of sucking all the oxygen out of the room, but let’s not forget the seven other nominees in today’s slate, President Donald Trump’s eighth wave of judicial candidates:

  • Stuart Kyle Duncan of Louisiana, nominated to the Fifth Circuit;
  • Kurt D. Engelhardt of Louisiana, nominated to the Fifth Circuit;
  • Gregory E. Maggs of Virginia, nominated to the U.S. Court of Appeals for the Armed Forces;
  • Barry W. Ashe, nominated to the U.S. District Court for the Eastern District of Louisiana;
  • Daniel D. Domenico, nominated to the U.S. District Court for the District of Colorado;
  • Howard C. Nielson Jr. of Utah, nominated to the U.S. District Court for the District of Utah; and
  • Ryan T. Holte of Ohio, nominated to the U.S. Court of Federal Claims.

Some of these names will be familiar to regular readers of Above the Law:

  • Kyle Duncan, former general counsel of the Becket Fund for Religious Liberty and former Louisiana solicitor general, has worked on such high-profile cases as Hobby Lobby and the North Carolina bathroom battles (which could give him headaches at his confirmation hearings; but with a Republican majority that held together even for controversial blogger John Bush, Duncan should still win confirmation).
  • Greg Maggs is a prominent law professor whose popularity among students and faculty at GW Law led him to be appointed interim dean (during a rocky period for the law school, which he successfully led it through).
  • Dan Domenico was previously mentioned in these pages as a possible nominee for the Tenth Circuit seat formerly held by Justice Neil Gorsuch (which ultimately went to Justice Allison Eid of the Colorado Supreme Court).

Congratulations to these nine new nominees, who extend the Trump administration’s strong track record on judicial nominations. Long after we’ve forgotten about #covfefe, the Robert Mueller probe, and all the other indiscretions and embarrassments of Trumpworld, these outstanding individuals will continue to serve the interests of justice on the federal bench.

P.S. The only disappointing thing about Justice Willett’s nomination: he will no longer be able to join me and leading litigator John Browning at SMU Law this Tuesday, October 3, at 12:05 p.m., to discuss “Judges, Social Media, and the First Amendment.” But don’t worry, Justice Willett, we won’t hold it against you!

Trump picks active tweeter, Hobby Lobby case lawyer for appeals court [CNN]
The Stalemate Over Texas Court Vacancies Is Over, As Trump Announces Nominees [BuzzFeed News]
President Donald J. Trump Announces Eighth Wave of Judicial Candidates [White House]

Earlier: Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up

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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