Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up
Names, names, and more names, for federal judgeships around the country.
(President Donald Trump by Ali Shaker/VOA)
UPDATE (5/8/2017, 11:44 p.m.): Many of the predictions in this post have come to pass. See More Judicial Nominations From The Trump Administration.
In my admittedly biased opinion (as a legal nerd), the greatest success of President Donald Trump’s first 100 days was his nomination of Justice Neil Gorsuch to serve on the United States Supreme Court. It was a wise decision by President Trump, and it was executed almost flawlessly. Regardless of what happens to the rest of the Trump agenda, he has already made his mark on government and fulfilled one important campaign promise.
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But as we all know, the Supreme Court is far from the only game in town. Because SCOTUS hears around 80 cases a Term, compared to the 50,000 new cases that get filed in federal appellate courts each year, these 13 circuit courts — the D.C. Circuit, the Federal Circuit, and the regional circuits (the First Circuit through the Eleventh Circuit) — wield YUGE amounts of influence.
On Friday, I wrote about possible nominees to the Ninth Circuit (for which I have special affection, as a former Ninth Circuit clerk and author of a novel set in that court). I also mentioned that I’d be writing a longer story talking about potential nominees to all the other circuit courts. This is that story.
You’ll note that I didn’t waste much time in putting together his piece. Why? As Politico reported last week, the Trump administration plans to announce at least 10 judicial nominees in the next two weeks — meaning any day now.
My sources confirmed this intelligence and added some additional information. Taking a page from President George W. Bush’s playbook, later this month President Trump will announce multiple judicial nominees in one big press conference in Washington, D.C. (just as President Bush announced eleven nominees as a group, on May 9, 2001, in what Professor Carl Tobias described as “a White House ceremony which chief executives traditionally reserve for United States Supreme Court designees”). The messaging to accompany President Trump’s announcement: this is the next generation of great federal judges, the bench (pun intended) from which future Supreme Court justices will be recruited.
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Let’s now turn to the specific circuits and name some names. In subsequent stories, we will discuss possible nominees for district-court seats and for U.S. Attorney positions. (The White House has already started moving on those jobs as well; see, e.g., Zoe Tillman’s BuzzFeed piece on interviewees for the U.S. District Court for the District of Columbia.)
I communicated with many sources for this report, including potential nominees, people close to potential nominees, and individuals involved in the selection process. I sent requests for comment to every possible nominee mentioned below for whom I could find contact information; they all did not get back to me or declined to comment.
All of my sources insisted on strict anonymity, given the sensitivity of the subject and the fact that the appointments discussed herein have not yet been officially announced. So this story will contain very few direct quotations and be told from the perspective of an omniscient narrator, to preserve anonymity, but rest assured that it reflects extensive reporting.
Of course, reporting is only as accurate as the sources consulted, and sometimes sources are misinformed or misleading. The list below of potential nominees is a work in progress; it will look different in future iterations, after I hear from more readers and sources and as events unfold. So please share with me all comments, corrections, additions, and removals — plus thoughts on possible district court and U.S. Attorney nominees, for future stories — by email (subject line: “[Judicial/U.S. Attorney] Nominations”) or by text message (646-820-8477).
Because this story is an omnibus report, it will be a bit long — apologies. Most of you are lawyers, so you are used to reading lengthy pieces. And of course you can just skip ahead to the circuit(s) of interest to you.
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At the current time, there are 20 vacancies on the federal appellate/circuit courts. Current judicial vacancies are listed here, and anticipated vacancies are listed here; do a “find” on the page for “CCA” (“Circuit Court of Appeals”) to find the circuit seats.
As of now, there’s just one nominee: Judge Amul Thapar of the Eastern District of Kentucky, nominated for elevation to the Sixth Circuit. So the Trump White House should — and apparently will — get cracking very soon on lower-court nominations. Given the procedural roadblocks that Democrats are putting up these days, such as requiring cloture votes even for non-controversial nominees, there’s no time to waste.
Folks involved in Trump administration judicial selection want the confirmation process to move faster than the traditional pace of maybe one Senate Judiciary Committee hearing a month (say, a panel hearing featuring one circuit nominee and some district court nominees). But if the administration doesn’t announce nominees soon, they don’t have much standing to complain about delay.
Without further ado, let’s run through the circuits. You’ll note in the discussion below references to certain judicial seats as “belonging” to a particular state. Although this allocation of circuit seats by state is not official, i.e., required by statute — the relevant statutes merely state the total number of authorized judgeships for a circuit (see, e.g., the Judicial Improvements Act of 1990), remaining silent as to which state within a circuit a nominee can come from — it is rare to see a circuit judgeship “move” from one state to another. Disputes between states and senators over allocation of circuit-court seats can get pretty ugly, so the White House and Senate tend to stick to the established allocations and not rock the boat.
D.C. Circuit
The D.C. Circuit is, as judiciary junkies know, first among equals when it comes to the circuit courts. It hears some of the most important and high-profile cases in the country, and it’s the unofficial “farm team” for SCOTUS (the former court of Chief Justice John Roberts, Justice Clarence Thomas, and Justice Ruth Bader Ginsburg). It currently has no vacancies — but the names I’ve heard mentioned as possible D.C. Circuit nominees for the future are all superstars, entirely in line with that court’s high standards.
Federal Circuit
There are currently no openings on the Federal Circuit. Because of its focus on patent cases, it tends to be somewhat less ideological than the regional circuit courts.
First Circuit
With just six judgeships, the First Circuit is the smallest federal appeals court (and also one of the more collegial, because the judges see each other so frequently). It also has no vacancies.
Second Circuit
The Second Circuit has two vacancies, both New York seats. One possible nominee: Judge Richard J. Sullivan, a well-regarded judge on the Southern District of New York, to which he was appointed by President George W. Bush in 2007. Judge Sullivan is young (53) and has a great résumé; he’s a graduate of Yale Law School and a former assistant U.S. attorney in the vaunted S.D.N.Y.
Third Circuit
The Third Circuit has three open seats — two for Pennsylvania, and one for New Jersey. A leading contender for the New Jersey seat is Paul Matey, senior vice president and general counsel at University Hospital in Newark. A graduate of Seton Hall Law School, Matey is a former Third Circuit clerk himself. He’s also a former associate at super-elite Kellogg Hansen (née Kellogg Huber), a former AUSA in New Jersey, and former deputy chief counsel to Governor Chris Christie (which might not be a plus right now in the Trump administration — but it doesn’t seem to have been held against Matey).
Fourth Circuit
The Fourth Circuit is currently full, but here’s an anticipatory “bonus” pick: if and when a vacancy arises, one likely candidate is Elbert Lin. A rising star in conservative legal circles, Lin is a Yale law grad, former SCOTUS clerk (for Justice Thomas), and current solicitor general of West Virginia. He was reportedly interviewed by the White House for a district judgeship in D.C. (where he previously practiced, at the Wiley Rein law firm).
Fifth Circuit
So, how much time do you have? I haven’t seen this kind of Texas-sized drama since the soap opera Dallas. There are two open seats in the Lone Star State plus one Louisiana seat. [UPDATE (11:55 p.m.): And there will be an open Mississippi seat as of October 2017, when Judge E. Grady Jolly takes senior status.]
The competition over the Texas spots is fiercer than Bodacious the Bull. I suspect that the White House would have already announced its big slate of circuit-court nominees but has been held up by the wrangling over Texas.
I could write a whole separate post about the Fifth Circuit battle; heck, books have been written about the quest for a Fifth Circuit seat (or at least a book — Judge Leslie Southwick’s excellent memoir, The Nominee (affiliate link)). But let me give you the abridged version, both in the interests of time and avoidance of saying anything erroneous. (I’ve heard so many conflicting accounts about what’s going on here, so the less I write, the lower the chance of error.)
Earlier this year, the Texas Lawyer named six possibilities:
The Federal Judicial Evaluation Committee (FJEC), a standing by bipartisan committee of lawyers named by Texas U.S. Sens. John Cornyn and Ted Cruz, is set to meet Friday in Houston to vet Trump’s candidates.
According to four people who are familiar with the process but who declined to be named, the candidates being considered include: Texas Supreme Court Justice Don Willett; U.S. District Court Judge Reed O’Connor of Fort Worth; former Texas solicitor general James Ho; Andy Oldham, a deputy general counsel to Gov. Greg Abbott; Michael Massengale, a justice on Houston’s First Court of Appeals; and Brett Busby, a justice on Houston’s Fourteenth Court of Appeals.
Note that these potential picks emerged from the senatorial committee, not the White House. One apparent flashpoint relating to the Fifth Circuit seats is the allocation of decision-making authority between the senators and the Trump administration. Note also that there might be additional possible candidates, whether for a current or future vacancy (Judge Edward Prado has entertained the thought of going senior), who are not among the senatorial six. (For example, one name on the administration’s radar is Baker Botts partner Evan Young — a Yale Law grad, former law clerk to Judge J. Harvie Wilkinson and the late Justice Scalia, high-powered DOJ lawyer, and overall superstar.)
Assuming the Fifth Circuit nominees come from the senatorial six, who has the edge? I’ve heard very divergent reports (reminiscent of how, in the days preceding President Trump’s big SCOTUS announcement, supporters of both then-Judge Gorsuch and Judge Thomas Hardiman of the Third Circuit swore up and down to me that their guy was getting it).
It’s safe to say that of those six, the top four are Justice Willett, Judge O’Connor, Jim Ho, and Andy Oldham (although the usual caveat applies: with the Trump administration, nothing is final until announced — and sometimes not even then).
As reported in Breitbart, leading Texas conservatives (including attorney general Ken Paxton) have thrown their support behind three: Judge O’Connor, Justice Willett, and Jim Ho. I would add Andy Oldham to the top four because of his powerful backer, Governor Greg Abbott (whom he currently serves as deputy general counsel).
It’s also safe to say that one of the two seats is going to Judge Reed O’Connor (N.D. Tex.). Sitting district judges tend to fare well in seeking open circuit seats, and Judge O’Connor has another big advantage: he’s a former counsel to Senator Cornyn, the current Senate Majority Whip. Word on the street is that Senator Cornyn pushed hard for O’Connor, who otherwise might not have gotten the spot (his White House interview wasn’t the greatest), and the administration gave in (because, well, you don’t want to tick off the Majority Whip if you’re in the White House).
Judge O’Connor’s confirmation hearing will be interesting. The South Texas Law grad has a solid range of experience — private practice, state and federal prosecution experience, work on the Judiciary Committee with Senator Cornyn — but he does have at least one controversial ruling on his record: the nationwide injunction he granted that blocked the Obama administration’s Title IX interpretation in a transgender bathroom case.
Of the remaining three finalists — Jim Ho, Andy Oldham, and Justice Don Willett — who will get the second seat? Right now, that’s anyone’s guess. Here’s a quick recap of the strengths and weaknesses of each.
James Ho. Pros: he has a sterling résumé: Stanford, U. Chicago Law, Fifth Circuit clerkship (with Judge Jerry Smith), Supreme Court clerkship (with Justice Clarence Thomas), varied government service (Senate Judiciary Committee, Department of Justice, Texas solicitor general), and private practice (Gibson Dunn, where he’s currently a Dallas-based partner and co-chair of the appellate and constitutional law practice group). He has strong support from Senator Ted Cruz, a predecessor of his as Texas SG and also a personal friend. He’s diverse — Taiwanese by birth, and an active member of the Asian American community.
Cons: some conservatives question whether he is “solid.” I’m not sure where this comes from — Ho is a longtime member of the Federalist Society, former Thomas clerk, and former Republican staffer on Capitol Hill — but that’s what some sources say. (Perhaps it comes from him not having a judicial record like Judge O’Connor or Justice Willett.)
Andy Oldham. Pros: he too has a fabulous résumé — UVA, Cambridge, Harvard Law, a clerkship with Justice Samuel Alito, service in the Justice Department’s prestigious Office of Legal Counsel — plus youth (he’s a 2005 HLS grad). This is totally the nominee profile that the White House Counsel’s office falls for. He has strong backing from Governor Abbott, and he’s very well liked (“a prince of a guy”).
Cons: he doesn’t have the backing of either Texas senator (each senator sent his two top names to the White House, and Oldham made neither list). Because of his service in the Abbott administration, he’d be recused for years on a number of major issues (e.g., voter ID, abortion, affirmative action, transgender issues, redistricting, etc.). He’s young — so some suggest he should replace Justice Willett on the Texas Supreme Court if Willett goes to the Fifth Circuit, and then get a federal appointment later.
Justice Don Willett. Pros: he also has great credentials — Duke Law, Fifth Circuit clerkship (for Judge Jerre Stockton Williams), private practice (at Haynes and Boone), federal government experience (in the George W. Bush White House and DOJ), state government experience (as chief counsel to then-AG Greg Abbott), and judicial experience (on the Texas Supreme Court since 2005). He has a powerful personal story: he’s a native Texan, raised by single mom after his father passed away at 40; his mom worked as a waitress to make ends meet; neither of his parents graduated high school; and he was the first college graduate in his family.
More pros: Justice Willett is famous on Twitter, where he has almost 85,000 followers. He has a national profile, as both a Trump SCOTUS shortlister and one of the six finalists to replace Justice Scalia.
Cons: turning 51 later this year, he’s a little older than Ho and Oldham (but still well within the good range for a judicial appointment). Some might find his social media activity to be a bit much (but this is the administration of @realDonaldTrump — and since Justice Willett already made the top six for the seat that went to Justice Gorsuch, the Trump administration probably doesn’t have a problem with the judicial tweeting).
Where does this leave us? As between these three, your guess is as good as mine. In fact, I’d like to get your guess — take this poll, dear readers:
Of these candidates, who is most likely to be nominated to the Fifth Circuit?
Loading ...Now, on to the other circuits….
(Flip to the next page to read about the remaining circuits.)
