The Latest And Greatest In President Trump’s Judicial Nominations (Part 2)

Ninth Circuit

The nation’s largest appeals court (and bête noire of President Trump) boasts five current vacancies, all classified as “Judicial Emergencies” by the Administrative Office of the U.S. Courts, and two future vacancies. The current vacancies are based out of Arizona (1), Hawaii (1), California (2), and Oregon (1). The future vacancies are based out of Idaho (1) and Washington (1).

For the Arizona seat, the cast of characters remains the same, but the situation is in a holding pattern pending the continuing recovery of Senator John McCain (R-Ariz.). In a prior story, I identified James Burnham as a strong contender for the opening, but noted that “his current position in the White House Counsel’s office… 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 last October, Burnham moved over to Main Justice, where he now serves as Senior Counsel in the Civil Division. In his new role, he’s handling — and winning — such high-profile matters as the Obamacare subsidies litigation (a case worth an estimated $10 billion to the federal government this year). So Burnham is now in a stronger position as a potential nominee, having put more distance between himself and all the drama in the White House Counsel’s Office.

For the Hawaii seat, given the state’s two Democratic Senators — including Senator Mazie Hirono, a member of the Senate Judiciary Committee — one might normally predict a wait. The early favorite, former federal prosecutor Michael Purpura, would have been an easy confirmation, but he ultimately passed on the opportunity (and recently left the partnership of Carlsmith Ball to become the chief legal officer of BlackSand Capital, a real estate private equity firm that presumably pays a lot better than the federal judiciary).

But I predict we’ll see a Hawaii nominee sooner rather than later. Last month, President Trump nominated assistant U.S. attorney Jill Otake to the district-court seat previously held by Judge Susan Oki Mollway. The nomination of Otake — who was previously recommended by Senators Hirono and Brian Schatz for the District of Hawaii during the Obama Administration, and who continues to enjoy their support — suggests that the White House and the Hawaii senators have reached a deal.

As for the Oregon seat, Yale Law School graduate and federal prosecutor Ryan Bounds was re-nominated earlier this month to fill the seat of his former boss, Judge Diarmuid F. O’Scannlain (disclosure: Bounds and I were law school classmates and co-clerks, and I consider him a friend — as well as a worthy successor to Judge O’Scannlain). Senators Jeff Merkley and Ron Wyden (D-Or.) complained that Bounds didn’t go through their judicial selection committee — even though the committee historically hasn’t been used to evaluate Ninth Circuit candidates, as opposed to district-court contenders — but Bounds’s application is now before the committee, so this objection will soon be addressed.

When it comes to the Ninth Circuit, it’s all about California. And it’s all about the (Democratic) senators, Senators Dianne Feinstein and Kamala Harris. As Professor Tobias told me, “I think the California senators will be tough on blue slips and consultation.”

Senator Feinstein’s judicial selection committees for the circuit and district courts have been interviewing possible candidates for several months now; whether they have reported back to her is unclear. Her Ninth Circuit committee has interviewed five picks sent over by the White House, plus additional candidates who do not have White House support. (I know some but not all of the interviewees’ identities; drop me a line if you can help me out.)

UPDATE (2/6/2018, 3:45 p.m.): Upon information and belief, two of the non-White House candidates for the Ninth Circuit who interviewed with the committee are Judge S. James Otero (C.D. Cal.), appointed by President George W. Bush to the district court in 2003, and Duf Sundheim, a principal at GPS Mediation, former U.S. Senate candidate, andformer  chairman of the California Republican Party. Both are older than a typical Trump Administration nominee — Judge Otero is 66-67 (born 1951), and Sundheim is 65 — but this could actually make them more palatable to California’s two Democratic Senators. Cf. Judge Carlos Bea, who was appointed by President George W. Bush to the Ninth Circuit at the age of 69.

Normally one wouldn’t expect the Trump Administration to give up a Ninth Circuit spot without a fight (instead of just giving Senator Feinstein some district-court seats, which would be more standard). But Senator Feinstein is the Ranking Member on Judiciary, and there is now a second California opening, after the unexpected retirement of Judge Alex Kozinski last month — so perhaps a deal can be reached. The names I’ve mentioned in previous reports on the Ninth Circuit are still viable contenders (as far as I know; if I’m wrong, please let me know).

As for timing, don’t expect anything anytime soon. Senator Harris, who just joined the Judiciary Committee (along with Senator Cory Booker), has set up her own separate judicial selection committee — which is likely to slow down the process even more.

In the past, Senator Feinstein has been fairly reasonable and cooperative with Republicans on judicial nominees. See, e.g., Judge Leslie Southwick’s comments about her in his (excellent) confirmation memoir, The Nominee (affiliate link). But that historic reasonableness has drawn her primary challengers from the left for this year’s election, so she has little incentive to help the Trump Administration fill seats on a crucial appeals court. And the same is doubly true of Senator Harris — who wasn’t very bipartisan to begin with, and is even less so as she courts the Democratic base for a possible presidential bid in 2020.

Last May, I suggested that Judge N. Randy Smith of Idaho might take senior status upon becoming eligible for it. Last December, Judge Smith announced he would be doing just that, effective August 2018. In my earlier story, I mentioned Ryan Nelson, general counsel at nutritional-supplement company Melaleuca, as a possible pick; let me know if you’re aware of others.

For the Washington-based seat of Judge Richard Tallman, which will open up in March, I’ve heard of at least three possibilities: Joel Ard, an IP litigator and former Foster Pepper who’s now at Immix Law Group; Matt Cooper, vice president and assistant general counsel at Boeing; and Eric Miller, partner and chair of the appellate practice at Perkins Coie. (I reached out to Ard, Cooper, and Miller for comment, but did not hear back from them.)

All three fit the Trump nominee template: young, conservative (reflected in their Federalist Society ties), and well credentialed. All three graduated from top law schools (U. Chicago for Ard and Miller, Harvard for Cooper); Miller and Cooper both clerked for federal appellate judges; and Miller clerked for Justice Clarence Thomas and served in the U.S. Solicitor General’s Office. So if one of them gets nominated, qualifications won’t be the question; rather, it will be who can pass muster with Washington State’s two Democratic senators, Patty Murray and Maria Cantwell.

Looking to the district courts in the Ninth Circuit, there are 20 current and future openings, as follows: the District of Alaska (1), the District of Arizona (4), the Central District of California (6), the Southern District of California (3), the District of Hawaii (1), the District of Nevada (1), the District of Oregon (1), and the Western District of Washington (3). There are just three nominees — not surprising given the general blueness of the states in question.

For Arizona, the reddest of these states, there are two district-court nominees: Judge Susan Brnovich, of the Superior Court for Maricopa County, and Dominic Lanza, a federal prosecutor. No surprises here; both were widely regarded as likely picks (and I mentioned Lanza last July as a possible nominee). Both are well credentialed and well connected — Susan Brnovich is married to Arizona Attorney General Mark Brnovich — and confirmation won’t be hard.

For Hawaii, look for the aforementioned Jill Otake to be easily confirmed. She’s highly qualified, she’s diverse, and she has the support of her two Democratic home-state senators.

Tenth Circuit

After the confirmation of Judge Allison Eid to fill the former seat of Justice Neil M. Gorusch, there’s one vacancy on the Tenth Circuit, the seat of Judge Paul Kelly of New Mexico, and one nominee, Joel M. Carson III. Carson has his own litigation boutique and also serves as a part-time U.S. magistrate judge (interesting; I didn’t know that was a thing). I mentioned Carson last August as a possible nominee, so I’m not surprised. He has a well-rounded résumé, including a Tenth Circuit clerkship and in-house experience as well as private practice; the main issue is whether he can garner the support of his home-state Democratic senators, Tom Udall and Martin Heinrich.

The district courts have eight current and future vacancies, in the District of Colorado (1), the District of Kansas (2), the District of New Mexico (1), the Eastern District of Oklahoma (1), the Western District of Oklahoma (2), and the District of Utah (1).

For Daniel Domenico, nominated to the District of Colorado, the nomination is, in the words of the Vetting Room, “a bit of a consolation prize” — as I noted last May, the former Colorado Solicitor General was also a possibility for the Tenth Circuit. I concur with the Vetting Room’s assessment of Dan Domenico’s confirmation prospects: “Domenico, who is well-established in Colorado conservative legal circles, is likely to have a smooth confirmation for a trial judgeship” (especially since Democratic Senator Michael Bennet has already returned his blue slip; Republican Senator Cory Gardner supported Domenico from the get-go).

The two Kansas nominees, Hinkle Law Firm partner John Broomes and assistant U.S. attorney Holly Lou Teeter, will also be confirmed soon. Both enjoy the support of their Republican home-state senators, and both got reported out of the Senate Judiciary Committee with no opposition — Broomes on a voice vote, and Holly Lou Teeter on a vote of 21-0. (There was a minor kerfuffle over Teeter’s ABA rating of “not qualified,” mainly due to the length of her legal career — the ABA seeks 12 years of experience in nominees, and she falls just shy of that mark — but as reflected in her SJC vote, she seems well on her way to confirmation.)

The Western District of Oklahoma nominee, U.S. Magistrate Judge Charles Barnes Goodwin, also garnered a “not qualified” from the ABA. But it looks like this will also be a non-issue. The ABA had no problems with Goodwin’s “judicial temperament, intellectual capacity, writing and analytical abilities, knowledge of the law, or breadth of professional experience,” but questioned his work ethic, noting that he often didn’t show up to the courthouse until the late afternoon. But at his Senate Judiciary Committee hearing, Judge Goodwin explained that he often works remotely from home when he doesn’t have hearings in court, and that explanation seemed to satisfy the SJC: he got reported out of committee by a vote of 15-6. Yay for telecommuting! (I typed these words while sitting at my kitchen table.)

The District of Utah nominee, Howard C. Nielson Jr., is a partner at the high-powered, conservative-leaning boutique of Cooper & Kirk. His legal work for conservative causes over the years, including defense of the California ban on gay marriage (Proposition 8) and service at the DOJ Office of Legal Counsel during the “torture memos” period, has generated criticism from liberal interest groups like the Alliance for Justice. At his confirmation hearings earlier this month, Democrats questioned Nielson aggressively about their concerns. Nielson has strong support from his two Republican home-state senators, Orrin Hatch and Mike Lee — but as long as he has a target on his back from progressive groups, his confirmation is not guaranteed.

Eleventh Circuit

Last but not least, we reach the Eleventh Circuit. With Judge Kevin Newsom confirmed, the court has one opening, the seat of Judge Frank Hull, and one nominee, Judge Elizabeth “Lisa” Branch of the Georgia Court of Appeals. Rated “well qualified” by the ABA, Judge Branch got voted out of the Senate Judiciary Committee by a vote of 19-2; I predict she will be confirmed soon.

Don’t be surprised if we see another open Georgia seat on the circuit in the next year or so. Judge Julie E. Carnes has been eligible for senior status since 2015, and she might just take it. If so, the odds-on favorite for her spot would be Justice Britt Grant of the Georgia Supreme Court.

Back in November, Justice Grant got added to President Trump’s running list of possible Supreme Court nominees (along with her former boss, Judge Brett Kavanaugh). Every state high-court judge on the Trump SCOTUS list from a state with a circuit-court opening has been nominated for that opening — Allison Eid, Joan Larsen, David Stras, Don Willett — and I expect Britt Grant to follow in their footsteps. (I reached out to Justice Grant for comment but did not hear back from her.)

The Eleventh Circuit has a ton of district-court spots: 22 judgeships, more than any other circuit (even the much larger Ninth). They’re in the Middle District of Alabama (2), the Northern District of Alabama (3), the Southern District of Alabama (2), the Middle District of Florida (4), the Northern District of Florida (2), the Southern District of Florida (5), the Middle District of Georgia (1), the Northern District of Georgia (2), and the Southern District of Georgia (1).

Alabama, a red state that until the Roy Moore debacle recently had two Republican senators, has four nominees: Annemarie Carney Axon (N.D. Ala.), a partner in the Birmingham law firm of Wallace, Jordan, Ratliff, & Brandt; Liles C. Burke (N.D. Ala.), a judge on the Alabama Court of Criminal Appeals; Jeffrey Uhlman Beaverstock (S.D. Ala.), a partner in the Mobile office of Burr & Forman; and Terry F. Moorer (S.D. Ala.), a U.S. magistrate judge (in the Middle rather than Southern District).

All four nominees have “Qualified” ratings from the ABA, all four were voted out of the Senate Judiciary Committee, and all four will be confirmed. The only one with a close SJC vote was Liles Burke, who left committee on a party-line vote of 11-10. This might be because, as noted by the Vetting Room — again, a resource I can’t praise enough for the detailed profiles it prepares of nominees — Burke is a staunch conservative, on the bench and off (e.g., on Twitter: @JudgeLilesBurke). But while Burke might enjoy less Democratic support than the other three, the Vetting Room is correct: “With a Republican majority in the Senate, Burke is almost certain to be confirmed.”

(Two fun facts about these nominees. Annemarie Carney Axon, if confirmed, will join her former boss, Judge Inge Prytz Johnson, on the court for which she once clerked. Judge Moorer is President Trump’s first African-American nominee to the federal bench, as well as the first African American nominee to the Alabama federal bench named by a Republican president.)

The Middle District of Florida nominee, William F. Jung, is a veteran litigator with his own law firm, Jung and Sisco. The ABA hasn’t rated him yet this time around, but on the two occasions when he was nominated before — by President George W. Bush in 2008, and by President Barack Obama in 2016 — Jung won a unanimous “well qualified.” Expect the third time to be the charm for this former Eleventh Circuit and SCOTUS clerk (for then-Associate Justice William H. Rehnquist).

Finally, we reach our three Georgia nominees: Tilman Eugene “Tripp” Self III (M.D. Ga.), a judge on the Georgia Court of Appeals; William M. Ray II (N.D. Ga.), also a judge on the Georgia Court of Appeals; and R. Stan Baker (S.D. Ga.), a U.S. magistrate judge. As three sitting judges, rated “well qualified” by the ABA, with nothing especially controversial in their backgrounds — to paraphrase the late Justice Antonin Scalia, they’re conservatives, but they’re not nuts — the trio will surely win confirmation.

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And that’s a wrap. If you have any comments or corrections, please reach out by email (subject line: “Judicial Nominations”) or by text message (646-820-8477, including the words “Judicial Nominations” in your text, so I can find your message in my inundated inbox). Thanks!

President Donald J. Trump Announces Tenth Wave of Judicial Nominees [White House]
Trump And Republicans Are Forging Ahead With Conservative Judicial Nominees After Last Year’s Setbacks [BuzzFeed]
Trump Just Named His Tenth — TENTH — Wave Of Judicial Nominees [Daily Caller]

Earlier:

• The Latest And Greatest In President Trump’s Judicial Nominations (Part 1)
• Do Trump’s Judicial Renominations Signal A Strategic Pivot?
• A Surprising Turn In The Fifth Circuit Sweepstakes
• Federal Judicial Nominations: A Quick Recap
• 16 New Judicial Nominations From President Trump
• Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up

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David Lat is editor at large and founding editor of Above the Law, as well as 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 [email protected].