Courts

More Judicial Nominations From President Trump -- And More Judicial Emergencies

April brought not one but two waves of new nominees from the White House.

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Justice Britt Grant (Supreme Court of Georgia)

April showers bring… more judicial nominations from President Donald Trump. Last month, the White House announced its twelfth wave and thirteenth wave of judicial nominees.

So the Trump administration actually seems be picking up the pace on nominations, considering that the usual timetable up until now has been roughly one new wave per month. And the White House was already excelling on this front, having set a record for the most-ever federal appellate judges confirmed during the first year of a presidency.

One can understand why the Trump administration wants to move swiftly. First, the November elections loom. Right now it’s looking unlikely that the Democrats will take the Senate, but it’s not impossible — and if it does happen, look for the judicial nominations process to screech to a halt.

Second, despite the impressive speed with which the White House, the Senate Judiciary Committee, and the Senate as a whole are moving on nominees, the number of vacancies, including judicial emergencies, continues to grow. As of this writing there are 142 current vacancies on the Article III bench, up from 108 at the start of Trump’s term, and 72 judicial emergencies, up from 42 at the start of Trump’s presidency.

Now let’s look at the two waves. This post will offer general observations and focus on circuit-court nominees, with more granular analysis and district-court discussion to follow in subsequent posts. If you have information or opinion you’d like to share on the subject, please feel free to email me, subject line “Judicial Nominations.”

The twelfth wave, announced on April 10, consisted of three nominees for the circuit courts — Britt Grant of Georgia (11th Cir.), Paul Matey of New Jersey (3d Cir.), David Porter of Pennsylvania (3d Cir.) — and 16 nominees for the district courts. I’ll begin with some observations from one of my favorite sources on the federal judiciary, Professor Carl Tobias, then follow with my own points:

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This list is interesting in a number of ways and resembles some prior lists in certain ways. It shows the White House is steadily nominating batches of nominees so that the Senate Judiciary Committee has plenty of people for its hearings every two weeks when the Senate is in session.

Of the three circuit nominees, Britt Grant (11th Cir.) seems well qualified. I know little about Paul Matey (3d. Cir.) but assume Chris Christie recommended him.

If you’ll indulge my self-congratulation, I flagged Britt Grant as an Eleventh Circuit nominee in July 2017, and I predicted Paul Matey as a Third Circuit nominee in May 2017. I think Professor Tobias’s assumption of Chris Christie’s involvement is correct; Paul Matey worked for Christie back when Christie was New Jersey’s U.S. Attorney (disclosure: Matey and I were colleagues in that office), then served as deputy chief counsel when Christie became governor.

Back to Professor Tobias:

David Porter (3d Cir.) was a Pat Toomey (R-Pa.) pick for a W.D. Pa. vacancy in the Obama years, and Bob Casey and many others opposed him then — so there does not seem to have been much White House consultation here, which may mean that Casey will not return the blue slip.

With all due respect to Professor Tobias, I think that might be an overstatement; the White House consults with senators all the time, but isn’t required to defer to their wishes, especially on circuit nominees (as opposed to district-court or U.S. attorney nominees, where senators receive more deference).

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Professor Tobias does acknowledge extensive White House consultation with senators on some of the other nominees:

On the positive side, numerous nominations show what can happen when the White House assiduously consults with home state senators and those senators work together. The Rhode Island nominee, the two Indiana nominees, and the two Ohio nominees attest to that. My sense is that these nominees will move smoothly through the process. These and the other district nominees seem to be named primarily for their competence in managing cases and have been recommended by their senators.

I am concerned about the dearth of “blue” state nominees in this package and overall. For example, California and New York both have a dozen lower-court vacancies, half of which are “judicial emergencies,” and Trump has nominated no one to any of these 24 vacancies. There needs to be some movement on these vacancies and vacancies in other states like New Jersey. (Pennsylvania and Florida have 10 vacancies each, so the two Florida nominees should help.)

I agree with Professor Tobias on the disturbing number of vacancies and the need to have more nominees from blue states (and therefore disagree, as I often do on judicial matters, with my colleague Joe Patrice, who views the complaining about vacancies as overwrought and often disingenuous).

UPDATE (5/3/2018, 10:08 a.m.): For more on the issue of judicial vacancies and emergencies, especially in the deep blue state of California, see this excellent op-ed by Professor Derek Muller of Pepperdine Law, Judicial Vacancies Threaten the Rule of Law.

In defense of the White House, the high number of vacancies lamented by Professor Tobias isn’t entirely the administration’s fault. In a number of cases, to be discussed in my subsequent posts, no nominees have been announced because the administration is going back and forth with senators over nominations. Contrary to the claims of some critics, the White House is most definitely consulting and working with home-state senators on judicial picks (even if it doesn’t always accede to the senators’ wishes).

Now let’s turn to the thirteenth wave of nominees, announced on April 26. It consisted of three nominees for the circuit courts — A. Marvin Quattlebaum, Jr. of South Carolina (4th Cir.), Julius “Jay” N. Richardson of South Carolina (4th Cir.), Richard J. Sullivan of New York (2d Cir.) — and five nominees for the district courts. Again, from Professor Tobias:

The new wave is small but interesting. The Fourth Circuit nominees seem well qualified. Jay Richardson prosecuted Dylann Roof, and Marvin Quattlebaum practiced for decades at a fine firm. Quattlebaum’s elevation might be the fastest in U.S. history, as he was confirmed to the District of South Carolina on March 1.

[Ed. note: I’m not aware of a faster elevation in federal judicial history; if you are, email me. (UPDATE (5/3/2018, 10:14 a.m.): It will depend on how quickly Judge Quattlebaum gets confirmed to the Fourth Circuit; he has been a district judge for two months now. A reader points out the swift elevation of David Souter from the First Circuit to the Supreme Court. Souter was confirmed to the First Circuit on April 27, 1990, and confirmed to the Supreme Court on October 2, 1990 — so he was on the First Circuit for just over five months.)]

Most presidents wait several years before elevation, so the nominee has time to build a record and secure experience. It may also indicate that the GOP is watching the calendar in terms of approvals before the midterms and possible concerns about losing the Senate.

Richard Sullivan (2d Cir.) is another elevation, of a Bush 2007 appointee, and he is the first New York nominee, which is great — but New York has 11 more vacancies, half emergencies.

Judge Sullivan’s elevation comes as no surprise; I identified him as a likely nominee back in May 2017.

As for all the New York vacancies, some of this fault lies with the senators. The White House sent the senators a (bipartisan and impressive) slate of possible nominees way back in July 2017.

And New York isn’t even the biggest problem, as Professor Tobias notes:

California is now worst with 12 vacancies, most emergencies and no nominees.

The five Florida district nominees will fill all the vacancies — and the state really needs them, as a number are emergencies. Most were recommended by the Rubio/Nelson commissions, which shows that they and senators’ cooperation can be effective. Two of the S.D. Fla. nominees are minorities. There are no female noms.

As readers of my coverage know, in general I’ve been quite impressed by the Trump judicial nominees (especially the appellate rather than trial-court ones). But I do think the administration could do better on diversity; the George W. Bush administration demonstrated that it’s possible to put up nominees who are qualified, conservative, and diverse.

How quickly will these nominations turn into confirmations? Professor Tobias points out that Senate Majority Leader Mitch McConnell isn’t wasting any time:

Another major event was McConnell’s filing notice of cloture on six circuit nominees when the Senate returns on May 7. I think this is unprecedented.

In Bush’s eight years, he never tried to confirm more than two or three in one week and then with the Democrats’ permission. Obama did confirm five in one December 2010 week, but they had been on the floor for months and the GOP would not agree to final votes and Congress was recessing for the year.

It is unclear why McConnell is doing this. He did stack five in the first week of November 2017. Doing that grants the minority little time to prepare and can deprive the Senate of the rigorous debate that is needed to discharge Senate responsibility for advice and consent on life-tenured judges who will resolve life-and-death issues. This may also be a sign that McConnell realizes the GOP could lose the Senate majority in November.

One last point is the calendar. [Senate Judiciary Committee Chairman Chuck] Grassley has set hearings every two weeks that Congress has been in session, usually for one circuit and four district nominees. Given the backlog of nominees in the process and the time remaining, it seems that this wave of nominees will be the last who can possibly be confirmed this year, because they will need evaluations, SJC hearings, discussions and approvals and floor debates and votes. There simply is too little time left, although there could be a lame-duck session in which noms might be confirmed.

This analysis makes sense based on past precedent — but as with many things relating to the Trump Administration, precedent can be broken.

Senator McConnell has stressed that confirming circuit-court nominees is his “top priority.” And a possible rules change, already approved by the Senate Rules Committee, would shorten the maximum debate time for most nominations from 30 hours to eight hours — and district judges would go down to two.

This proposal is entirely reasonable. First, it’s identical to a policy adopted for a time during the Obama administration. Second, if the 30-hour rule isn’t revised, it could take nine years for all pending Trump nominees to be confirmed. One might not love all of the DJT nominees, but it shouldn’t be controversial for them to get up-or-down votes within a reasonable period of time.

In fairness to the Democrats — I’m not a Democrat, but I do try to be fair to them — they have a rebuttal to this, and it’s two words long: Merrick Garland.

Of course, there’s a rebuttal to the rebuttal: two wrongs don’t make a right. Republican obstruction of Obama nominees doesn’t justify Democratic obstruction of Trump nominees.

And now let the blame games begin. The Republicans obstructed Obama’s trio of (very qualified) D.C. Circuit nominees! The Democrats obstructed Bush’s (very qualified) D.C. Circuit nominee, Miguel Estrada! Lather, rinse, repeat — going back (at least) to 1987 and the failed Supreme Court nomination of Robert Bork.

Regardless of which side you take, you can’t deny this truth: this is why the Senate can’t have nice things.

President Donald J. Trump Announces Twelfth Wave of Judicial Nominees [White House]
President Donald J. Trump Announces Thirteenth Wave of Judicial Nominees and Seventh Wave of United States Marshal Nominees [White House]
A Look at President Trump’s Twelfth Wave of Judicial Nominations [National Review]
A Look at President Trump’s 13th Wave of Judicial Nominees [National Review]
Trump announces 12th wave of judicial picks [Washington Times]

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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