Courts

President Trump's Eleventh Wave Of Judicial Nominees

Look for more confirmations in the very near future.

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Justice Neil M. Gorsuch: the beginning, but far from the end, of President Trump’s judicial nominees.

The Trump Administration is moving so quickly on judicial nominations that I’m having a hard time keeping up. Not long after I posted my last exhaustive roundup on federal judicial nominees (see Part 1 and Part 2), the White House announced its eleventh wave of judicial nominees.

There are nine nominees, four for the circuit courts and five for the district courts. Professor Carl Tobias of the University of Richmond, a leading analyst of the federal judiciary, shared these overarching thoughts with me:

The most important aspect of the latest wave is that three of the appellate nominations show how White House consultation and cooperation with home state Democratic senators can yield highly qualified, conservative nominees, who in turn will smoothly secure confirmation. Illinois and Hawaii nominees illustrate this idea. Senators Durbin and Duckworth expressed strong support for the two Illinois nominees, as did Senators Schatz and Hirono for the Hawaii nominee. This shows that the process can work effectively to yield nominees whom both parties can support.

The nomination of Andy Oldham for the Fifth Circuit means that Trump will have appointed five new judges to the court and further solidified its reputation as the most conservative appeals court in the United States.

The Senate will return to confirming judges next week. Senate Majority Leader Mitch McConnell has given notice that five nominees will receive cloture votes on the Senate floor.

I agree with all of Professor Tobias’s astute insights, and I thank him for sharing them. The nominees getting cloture votes are Terry Doughty (W.D. La.), Tilman Eugene “Tripp” Self III (M.D. Ga.), Karen Gren Scholer (N.D. Tex.), A. Marvin Quattlebaum Jr. (D.S.C.), and Elizabeth “Lisa” Branch (11th Cir.). Expect them to be confirmed soon.

If Senator McConnell and the Republicans would like to maintain or even accelerate the pace of judicial confirmations, Professor Tobias has this advice to offer:

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Karen Gren Scholer is one of the four district nominees on whom Senator McConnell will move for cloture next week. If confirmed, she will be the fifth Obama nominee whom Trump has renominated and confirmed, which shows the efficacy of that approach because renominees only need an SJC [Senate Judiciary Committee] and floor vote. The practice could work well in California, New York, and New Jersey, where there are Obama nominees like Scholer. Rumors from 2017 said that the White House was considering some of them for New York and New Jersey vacancies. California and New York both have two circuit and nine district vacancies.

This is wise advice (at least for district-court nominees; I don’t expect the White House to give up circuit seats unless absolutely necessary). And it’s consistent with information I’ve previously reported as well. For example, federal prosecutor Diane Gujarati, said to be on the slate of judicial nominees that the White House floated to New York’s senators, was an Obama nominee to the Eastern District of New York.

I’ll now discuss the state of play in judicial nominations in more detail, proceeding circuit by circuit, as usual. If you have any comments, corrections, or additional information, please email me (subject line: “Judicial Nominations”). As you read this roundup, keep these useful links on hand for ready reference:

There are a number of circuits with no new nominees or other news. If you don’t see a circuit listed here, it’s because I don’t have anything to report.

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Third Circuit

There’s a new district-court nominee within the Third Circuit: Peter Phipps, nominated to the U.S. District Court for the Western District of Pennsylvania. (Links to nominee names will generally go to their Wikipedia pages. I’ve noticed that every Trump judicial nominee seems to have a fresh Wikipedia page, in a consistent format, with generally positive information. Props to whoever in the White House or Justice Department came up with the idea of creating or editing these pages.)

Phipps is a graduate of Stanford Law School, a former Sixth Circuit clerk, a former associate at Jones Day (the go-to law firm for the Trump Administration), and a current lawyer at the Department of Justice (specifically, in the Federal Programs Branch of the Civil Division). During his 14 years at the DOJ, Phipps has earned significant recognition for his work, including the Attorney General’s Distinguished Service Award. With this strong background and the support of his home-state senators, Phipps should be easily confirmed.

Fourth Circuit

The Fourth Circuit seat of Judge Dennis Shedd of South Carolina is now officially open (after Judge Shedd took senior status on January 30). As reported by Kevin Daley of the Daily Caller, the White House reached out to Representative Trey Gowdy (R-S.C.), the former federal and state prosecutor who attained fame (or infamy) for leading the congressional investigation into Hillary Clinton’s email situation, to gauge his interest in judicial service. But Gowdy passed, and the seat awaits a nominee.

As for the district courts within the circuit, Thomas S. Kleeh, a partner at Steptoe & Johnson — the West Virginia firm, not the D.C. firm — has been nominated to the Northern District of West Virginia. He’s a seasoned litigator with deep West Virginia roots — he graduated from West Virginia University (summa cum laude) and the West Virginia University College of Law, where he served as editor-in-chief of the law review — and he enjoys the support of Senator Shelley Moore Capito (R-W.V.). I don’t believe Senator Joe Manchin (D-W.V.) has weighed in yet, but considering Kleeh’s credentials and Manchin’s general conservatism — he crossed the aisle to vote for Justice Neil Gorsuch — I predict that Kleeh will have a smooth confirmation.

Fifth Circuit

I previously predicted that Andrew Oldham would be nominated for the seat of Judge Edward Prado, whom the Trump Administration (brilliantly) picked to serve as ambassador to Argentina, and this prediction has come to pass.

Oldham, currently serving as General Counsel to Texas Governor Greg Abbott, is young (39). But as a 2005 graduate of Harvard Law School, he does have more than the 12 years that the American Bar Association likes to see in judicial nominees. His résumé is otherwise superb and extremely well-rounded: clerkships for Judge David Sentelle (D.C. Cir.) and Justice Samuel A. Alito, federal government service (at the Justice Department’s elite Office of Legal Counsel), private practice (at the uber-prestigious Kellogg Hansen law firm), and now state government service (in the Texas Solicitor General’s office and now to Governor Abbott). Oldham enjoys the support of Senators John Cornyn and Ted Cruz, and I expect Oldham to be confirmed.

The Mississippi-based seat of Judge E. Grady Jolly still wants for a nominee. There was some concern in Mississippi that it might be losing this seat to another state, but it now seems that Mississippi will retain it.

Who will fill it? Here’s what one source said:

In the ongoing drama over replacing Grady Jolly on the Fifth Circuit, the name of U.S. District Judge Halil Suleyman “Sul” Ozerden, a former naval flight officer and Turkish American, has been mentioned. He would be interesting.

Senator Thad Cochran (R-Miss.) is said to be continuing to push for Chief Judge Daniel Jordan (S.D. Miss.), while Governor Phil Bryant is supporting Judge Jack Wilson (Miss. Ct. App.), who’s young (in his late thirties; I could see him getting a district court spot instead). State Supreme Court Justice James D. “Jimmy” Maxwell has also been mentioned.

This is taking an awfully long time Have the state’s delegation and the White House Counsel’s office reached an impasse?

As for action on district-court nominees, last month Walter David Counts III (W.D. Tex.) got confirmed by a vote of 96-0. No surprise there: Counts, a long-serving magistrate judge, was previously nominated to the district bench by President Obama, and he had support from both of Texas’s senators.

Sixth Circuit

Last month witnessed confirmations of two nominees to the district bench: Thomas “Tommy” Parker (W.D. Tenn.), confirmed by a vote of 98-0, and William L. Campbell Jr. (M.D. Tenn.), confirmed by a vote of 97-0. In these polarized times, it’s nice to see senators agreeing on things (although note that even these non-controversial nominees are getting confirmed by roll-call rather than voice vote).

Seventh Circuit

The subject of nominees who enjoy broad support brings us to the two new Seventh Circuit nominees: Judge Amy St. Eve and Skadden partner Michael Scudder, nominated by President Trump but also supported by Senators Dick Durbin and Tammy Duckworth (D-Ill.). These were the nominees praised by Professor Tobias as “highly qualified, conservative nominees, who [should enjoy] secure confirmation.” As prominent Chicago lawyer Peter Baugher, chair of former Senator Mark Kirk’s Judicial Screening Commission, raved to me, “Judge Amy St. Eve and Michael Scudder are first-rate nominees to fill the Illinois Seventh Circuit vacancies.”

I highlighted Mike Scudder as a potential nominee back in May 2017: “He graduated from Northwestern Law, where he was editor-in-chief of the law review; clerked for SCOTUS, for Justice Anthony M. Kennedy; worked as a federal prosecutor in Manhattan; and served in the George W. Bush White House, as general counsel of the National Security Council. Plus, he’s a CPA!”

As for Judge St. Eve, the double-Cornell grad has a broad range of experience: private practice, at Davis Polk; in-house practice, at Abbott Laboratories; and government service, as an assistant U.S. attorney in Chicago and in the Whitewater Independent Counsel’s Office. Ken Starr’s investigation into the Whitewater scandal and then L’Affaire Lewinsky might have been controversial, but there’s no denying that his deputies have gone on to impressive legal careers. Fellow Whitewater alums include Judge Brett Kavanaugh (D.C. Cir.) and Judge Steven Colloton (8th Cir.) have been mentioned by the Trump administration as possible Supreme Court nominees, and Karin Immergut served as U.S. Attorney for Oregon (and is now in the running for a district-court seat there).

When she was nominated for the district bench back in 2002, Amy St. Eve earned a “Well Qualified” rating from the ABA, despite her youth (36 at the time). Now that she has more than 15 years of judicial experience added to her résumé, it would be hard to come up with a more qualified nominee than Judge St. Eve.

Eighth Circuit

It should have happened long ago, but better late than never: on January 30, Justice David Stras of the Minnesota Supreme Court won confirmation to the Eighth Circuit, by a vote of 56-42. In the past, a nominee this qualified and popular would have won confirmation in a landslide — but in our polarized times, the Democrats presumably want to protect their prerogative to vote against him should he be nominated to the Supreme Court. (Stras appeared on then-candidate Donald Trump’s first SCOTUS shortlist, and Democrats surely recall how President Trump got a lot of mileage out of the fact that Neil Gorsuch won confirmation to the Tenth Circuit without any Democratic objection.)

UPDATE (3:03 p.m.): President Trump will have another Eighth Circuit seat to fill. Judge Roger L. Wollman recently announced that he’ll take senior status upon confirmation of a successor (but in no event later than December 31).

As for the district courts… whoa, President Trump nominated C.J. Williams to the Northern District of Iowa? How is a 28-year-old NBA player qualified to be a federal judge?

Actually, no; the judicial nominee is C.J. Williams, former federal prosecutor and current U.S. magistrate judge, not C.J. Williams, the Los Angeles Clippers shooting guard. Williams has the support of his two home-state senators, Senators Chuck Grassley and Joni Ernst (R-Iowa) — and Grassley is, of course, chairman of the Senate Judiciary Committee. Look for Williams to move up to the Article III leagues very soon.

The latest round of nominees features two picks for the District of Minnesota: Judge Nancy Brasel, currently a Minnesota State District Court Judge for the Fourth Judicial District, and Eric Tostrud, an of-counsel at Lockridge Grindal Nauen who also serves on the full-time faculty at Mitchell Hamline School of Law (from which he graduated — the William Mitchell part, not the Hamline part — summa cum laude).

Brasel and Tostrud should be easily confirmed, given their distinguished careers and bipartisan support. They’ve earned praise from Representative Erik Paulsen (R-Minn.) and Senator Amy Klobuchar (D-Minn.), who said, “They are both well-respected in the legal community and over their long legal careers they have proved that they are well-qualified. As a member of the Senate Judiciary Committee, I look forward to working with both of them throughout the confirmation process.”

Ninth Circuit

Last month, in discussing the nomination of assistant U.S. attorney Jill Otake to the district court with bipartisan support, I guessed that the White House and Hawaii’s two Democratic senators had cut a deal — and it looks like that was right.

The new Ninth Circuit nominee from Hawaii, Mark J. Bennett, enjoys bipartisan support. Currently a director in the Honolulu law firm of Starn O’Toole Marcus & Fisher, Bennett previously served as Hawaii’s attorney general. That was under the governorship of Linda Lingle, a Republican, but Bennett now boasts the support of Senators Mazie K. Hirono and Brian Schatz, both Democrats. Look for this Cornell Law School graduate, former assistant U.S. attorney, and seasoned litigator (with two SCOTUS wins under his belt) to join the Ninth Circuit soon.

The other Ninth Circuit news comes out of Oregon. The state’s two Democratic senators, Ron Wyden and Jeff Merkley, made a big deal over their bipartisan judicial selection committee last fall — and complained that the Trump administration’s nominee, federal prosecutor Ryan Bounds, hadn’t gone through their committee.

The senators recently sent the White House a letter listing the four district-court and four circuit-court nominees approved by their committee. Lo and behold, Ryan Bounds was one of the Ninth Circuit picks.

So does that mean the senators now support his nomination? Alas, no — Senators Merkley and Wyden have moved the goalposts on Bounds, now finding new reasons to complain about him.

As I have disclosed before, I’m not an objective observer here; Ryan and I were classmates at Yale Law School, then co-clerks to Judge Diarmuid F. O’Scannlain (whose seat Ryan is nominated to fill). But I do believe that an objective observer would and should join both the American Bar Association and the Oregon senators’ judicial selection committee in supporting his nomination.

For example, here’s the evaluation of Ryan Bounds from the Vetting Room, a website I’ve praised before for its detailed, thorough, non-partisan analyses of judicial nominees:

Ryan Bounds, a federal prosecutor, is President Trump’s first nominee for the Ninth Circuit Court of Appeals. An Oregon native and an accomplished lawyer, with experience in private practice and the public sector, Bounds has not received the support of the state’s senators, who contend that his nomination was made in contravention of the state’s bipartisan selection process. [Ed. note: This was written before the bipartisan committee came out in support of Bounds.]

Bounds’ relatively long, diverse career in litigation makes him an experienced candidate for the bench. While Bounds’ political orientation is decidedly conservative, his public positions have not been dogmatic or particularly ideological. If Bounds is able to overcome the blue slip hurdle and gain the support of his home state senators, he will likely be confirmed.

And he should be confirmed, with the support of his senators. I would urge Senators Wyden and Merkley to take a page from Senator Amy Klobuchar’s playbook on the David Stras nomination. Senator Klobuchar, a Democrat, said that while she does not share all of Stras’s views — to wit, he’s more conservative than she is — “after carefully reviewing his record, I determined that he is qualified to serve.” She also stated, quite correctly in my view, that “at this moment in our history, I believe that in some small way it’s important that we respect those we don’t always agree with” — and support qualified nominees, notwithstanding the ideological disagreements we might have with them.

(For more analysis of the Ryan Bounds nomination, including my responses to the (rather weak) objections raised to him, read this Oregonian op-ed that I co-authored with prominent Oregon attorney Courtney Angeli, in which we urge the Senate to confirm Ryan without delay.)

Eleventh Circuit

As mentioned earlier, look for Judge Elizabeth “Lisa” Branch, currently serving on the Georgia Court of Appeals, to be confirmed as early as next week.

As for district-court nominations, last month Michael Lawrence Brown was confirmed to serve as a judge for the Northern District of Georgia, by a vote of 92-0.

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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 Eleventh Wave of Judicial Nominees [White House]

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 dlat@abovethelaw.com.

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