Courts

The Latest And Greatest In President Trump's Judicial Nominations (Part 1)

Here's a rundown of where things stand, including district as well as circuit courts.

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Fourth Circuit

There are no current vacancies but two future vacancies, both out of South Carolina: Judge William B. Traxler, whose seat will become open on August 31, 2018, and Judge Dennis W. Shedd, whose seat will become open on January 30 (two days after his 65th birthday, which is when he’ll be eligible to take senior status) . Neither seat has a nominee yet.

As for district courts under the Fourth Circuit’s jurisdiction, there are eight current and future vacancies, in the following districts: the District of Maryland (1), Eastern District of North Carolina (1), Western District of North Carolina (1), District of South Carolina (1), Eastern District of Virginia (2), Western District of Virginia (1), and Northern District of West Virginia (1). There are two nominees: Thomas Alvin Farr (E.D.N.C.) and A. Marvin Quattlebaum Jr. (D.S.C.).

Farr, currently a partner at Ogletree Deakins, has drawn criticism for his recent work on election-law cases in North Carolina and past work, back in 1990, as campaign counsel to the late Senator Jesse Helms. But Farr has his defenders (like Senator Thom Tillis and conservative commentator Ed Whelan), the ABA rated Farr “Well Qualified,” and his nomination just got reported out of the Senate Judiciary Committee, on a party-line vote of 11-10. If Republicans maintain a similarly unified front when his nomination hits the full Senate, as they’ve done before for similarly controversial nominees, he will be confirmed.

Quattlebaum, a partner and executive committee member at Nelson Mullins, should have no problems getting confirmed. He too has the ABA’s top rating, and he was reported out of the Judiciary Committee on a voice vote.

Fifth Circuit

In case you missed it, the Texas-sized drama over those two Fifth Circuit seats has been resolved. Last month, the Senate confirmed two superbly qualified nominees: Don Willett, former justice of the Texas Supreme Court, and James Ho, former Gibson Dunn partner. Congratulations, Your Honors!

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The confirmation votes were along party lines: 50-47 for Willett and 53-43 for Ho. It’s a sad sign of our polarized times that two highly regarded nominees were confirmed by such narrow margins. (In this case, it’s unfortunate that more Democrats didn’t cross the aisle to support Ho and Willett, but Republicans bear blame for the current state of affairs as well; they prevented President Obama from filling these seats for years — since 2012 for Willett’s seat, and since 2013 for Ho’s seat.)

Now, some fun facts. Judge Willett, who won fame (and more than 111,000 followers) for his Twitter activity as a justice, remains on Twitter (even if not as active as he used to be). He is, as far as I know, the only federal appellate judge with a public and active Twitter presence (not counting Justice Breyer’s covert presence on what he calls the “tweeting thing”). There’s just one issue: now that his title is Judge Willett, his @JusticeWillett Twitter handle is inaccurate — unless, well, he gets another promotion…. (As many of you might recall, Willett was one of the seven finalists for the seat that ultimately went to Justice Neil M. Gorsuch.)

As for Judge Ho, his investiture was quite the star-studded event, attended by three of his former bosses:

Even after the Ho and Willett confirmations, there are still three current and future vacancies on the Fifth Circuit: the seats of Judges Edith Brown Clement (Louisiana), W. Eugene Davis (Louisiana), and E. Grady Jolly (Mississippi). For Davis’s seat, the nominee is Kyle Duncan, and for Clement’s seat, the nominee is Chief Judge Kurt Engelhardt. I predict that both Duncan and Engelhardt, deemed “well qualified” by the ABA, will be confirmed.

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Kyle Duncan, currently in private practice at his own firm, previously served as general counsel of the Becket Fund for Religious Liberty and as Louisiana’s first solicitor general. His work on such controversial matters as Hobby Lobby and Gloucester County School Board v. G.G. (aka the Gavin Grimm case) made him friends among conservatives, who strongly support his nomination, and enemies among liberals, who strongly oppose it. But Duncan got voted out of the Senate Judiciary Committee, on a party-line vote, and I expect him to win confirmation along similar lines. (His most serious obstacle was actually his home-state senator, John Kennedy — a Republican, but miffed over how little the White House consulted with him — but Senator Kennedy came around after Duncan’s hearing, pretty much ensuring eventual confirmation.)

Chief Judge Kurt Engelhardt should be an even easier sell. He has ample judicial experience — a judge for the Eastern District of Louisiana since 2001, chief judge since 2015 — and he did well at his hearing. As Carl Tobias, University of Richmond law professor and longtime analyst of the judiciary, told the New Orleans Times-Picayune, “I thought that the judge did well in answering a number of difficult questions, especially from Democrats.” There’s no reason for any Republicans to defect from supporting his nomination, either in committee or on the Senate floor.

That count of three current and future vacancies on the Fifth Circuit, based on the tallies on the U.S. Courts website, does not include the Texas-based seat of Judge Edward Prado, since that’s still subject to his confirmation as ambassador to Argentina. But I predict that the moderate and well-regarded jurist will be confirmed to the post (despite his lack of diplomatic experience; many ambassadorships go to non-career diplomats, often friends or fundraisers of the president, and Judge Prado has great credentials when measured against the typical non-career diplomat). If that happens, look for his seat to be filled by one of the two runners-up in the Texas Fifth Circuit sweepstakes, Judge Reed O’Connor (N.D. Tex.) or Andy Oldham, recently promoted to serve as general counsel to Governor Greg Abbott.

(There was a little game of musical chairs down in Texas: Governor Abbott’s former GC, Jimmy Blacklock, got appointed to Judge Willett’s former seat on the Texas Supreme Court, making way for Oldham to take over as general counsel. This is a modified version of a game plan I suggested last May during the Fifth Circuit deadlock: appoint Willett ahead of Oldham, despite Oldham’s similarly superb credentials, because that would allow Oldham — still quite young by judicial-nominee standards, as a 2005 Harvard Law School graduate — to take Willett’s SCOTX seat and get more experience.)

Turning to district-court seats, there are a whopping 22 seats within the territory of the Fifth Circuit, as follows: the Eastern District of Louisiana (3 — counting Chief Judge Engelhardt’s seat), the Western District of Louisiana (5), the Southern District of Mississippi (1), the Eastern District of Texas (4), the Northern District of Texas (5), the Southern District of Texas (2), and the Western District of Texas (2).

There are six nominees: Barry W. Ashe (E.D. La.), Terry A. Doughty (W.D. La.), Michael Joseph Juneau (W.D. La.), Matthew J. Kacsmaryk (N.D. Tex.), Karen Gren Scholer (N.D. Tex.), and Fernando Rodriguez Jr. (S.D. Tex.). In light of their strong backgrounds (all “Qualified” or “Well Qualified” from the ABA) and the support they enjoy from their Republican home-state senators, expect all or most of them to be confirmed.

The nominee most at risk is Matthew Kacsmaryk, deputy general counsel at First Liberty Institute. Kacsmaryk has been criticized by progressives and civil-rights groups as “an anti-LGBT activist” for his work on cases pitting religious-liberty claims against LGBT rights, but he will probably still be confirmed. Not nearly as inflammatory as his former First Liberty colleague Jeff Mateer — who (in)famously referred to transgender children as “part of Satan’s plan,” and whose nomination got withdrawn — Kacsmaryk got voted out of the SJC with full Republican support. He enjoys the strong backing of his home-state senators, John Cornyn and Ted Cruz, so expect to see him confirmed soon.

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I’ve gone on for long enough for a Friday night. 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 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!

Earlier:

DBL square headshotDavid 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].

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