Federal Judges, Politics

The Latest Legal Luminaries Nominated For Federal Judgeships By President Trump

Prominent conservatives are hailing this latest slate as "a fantastic list."

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Justice Allison Eid, at a Federalist Society event (via YouTube)

Justice Allison Eid, at a Federalist Society event (via YouTube)

President Donald Trump recently complained — on Twitter (where else?) — that “Dems are taking forever to approve my people…. They are nothing but OBSTRUCTIONISTS!”

But many observers pointed out in response that President Trump has been slow to put forward nominees. On the judicial front specifically, even conservatives supportive of the president have expressed disappointment that he hasn’t made more nominations.

Well, that’s starting to change, as reported by the Washington Times:

President Trump announced a new round of 11 judicial nominations Wednesday, including three nominees for high-profile federal appeals courts.

One of the nominees, Colorado Supreme Court Justice Allison H. Eid, is being tapped by the president to fill a vacancy on the 10th U.S. Circuit Court of Appeals created when Justice Neil Gorsuch was confirmed for the Supreme Court in April.

Justice Eid was on Mr. Trump’s list of conservative potential Supreme Court nominees that he presented to voters during the presidential campaign last year. She has served on Colorado’s high court since 2006, and previously was the state’s solicitor general.

Justice Eid’s nomination comes as no surprise. She’s superbly qualified, and I predicted her nomination more than a month ago.

Mr. Trump also nominated U.S. District Court Judge Ralph R. Erickson of North Dakota for the 8th U.S. Circuit Court of Appeals, and said he intends to nominate University of Pennsylvania Law School professor Stephanos Bibas to serve on the 3rd U.S. Circuit Court of Appeals. Judge Erickson has served on the district court since 2003.

The White House called Mr. Bibas, director of the university’s Supreme Court Clinic, “one of the nation”s leading experts in criminal law and procedure.” He has argued six cases before the Supreme Court, taught at the University of Chicago Law School and served from 1998 to 2000 as an assistant U.S. Attorney in the Southern District of New York.

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Judge Erickson’s nomination was expected; I mentioned him as a possible Eighth Circuit nominee several weeks ago. The same can be said of Professor Steve Bibas, a superstar of legal academia and former Supreme Court clerk (for Justice Kennedy) whose likely nomination was also widely discussed. See, e.g., CA3blog, citing Howard Bashman of How Appealing and Professor Orin Kerr — currently of GW Law, but on his way to USC Law (quite a hiring coup for USC).

Here are the other eight nominees (all via the Washington Times):

  • Michael P. Allen of Florida – U.S. Court of Appeals for Veterans Claims (not an Article III court, but the judges do get relatively long terms of 15 years)
  • Claria Horn Boom of Kentucky – U.S. District Courts for the Eastern and Western Districts of Kentucky (no, that’s not a typo; the two Districts have a “concurrent seat”)
  • Dabney L. Friedrich – U.S. District Court for the District of Columbia (whose nomination I previously discussed here)
  • Timothy J. Kelly – U.S. District Court for the District of Columbia
  • Trevor N. McFadden – U.S. District Court for the District of Columbia
  • Amanda L. Meredith – U.S. Court of Appeals for Veterans Claims
  • Stephen S. Schwartz – U.S. Court of Federal Claims (no, not an Article III court, but some of its members have gone on to life-tenured glory, such as Judge Alex Kozinski (9th Cir.) and Judge Randall Rader (Fed. Cir.))
  • Joseph L. Toth – U.S. Court of Appeals for Veterans Claims

Conservatives praised the newest nominees. Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, said the latest slate is “a fantastic list,” featuring nominees who are “well known in the conservative legal movement and have shown commitment to principled and evenhanded application of the law throughout their careers.”

Here are some interesting (and, in my view, accurate) observations from Professor Jonathan Adler:

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Although one might not have expected this, the Trump administration appears to have a soft spot for academics. Five of the nine circuit court nominees announced thus far are current or former law professors (Eid, Bibas, Joan Larsen, David Stras and Amy Coney Barrett). Much like the Reagan administration, this administration appears to believe that appointing academics is one way to maximize its influence on the federal judiciary. President Ronald Reagan placed quite a few prominent legal academics on the bench, including Antonin Scalia, Frank Easterbrook, Douglas Ginsburg and Stephen Williams, and these nominations certainly had an outsize influence on the courts.

I think these professors turned judges could wield great influence on the courts — provided that they get confirmed. Will the Democrats try to stop them with filibusters blue slips? And if they do, will the Senate “go nuclear” on blue slips, or at least give them less weight when it comes to circuit nominees? (I floated this idea on Twitter in early May, and it seems to be gaining traction.)

If I were the Senate Democrats, I’d pick different fights, and get out of the White House’s way on judicial nominees. When it comes to federal judgeships, this administration’s approach could be summarized by this line from Beyoncé’s (fabulous) “Formation,” uttered by Big Freedia: “I didn’t come to play with you hoes — I came to slay.”[1]

[1] If you are not familiar with the term “ho” (plural “hoes”), fear not; there’s a citation for that. See United States v. Murphy, 406 F.3d 857, 859-n.1 (7th Cir. 2005) (“We have taken the liberty of changing ‘hoe’ to ‘ho,’ a staple of rap music vernacular as, for example, when Ludacris raps ‘You doin’ ho activities with ho tendencies.'”).

Trump nominates new slate of federal judges [Washington Times]
President Trump continues to make sterling judicial nominations [Volokh Conspiracy / Washington Post]

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and 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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