Eric Miller – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Eric Miller is one of several clerks of Justice Clarence Thomas who are finding their way onto the bench (President Trump has already appointed ten to the federal bench).  Miller faces strong opposition from his home-state senators and from native american groups, which could complicate his path to the bench.

Background

Eric David Miller was born in Oak Park, Illinois, in 1975.  Miller received an A.B. from Harvard University in 1996 and a J.D. from the University of Chicago Law School in 1999.[1]  After graduating from law school, Miller clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.[2]

After his clerkships, Miller joined the Department of Justice, starting in the Appellate Staff of the Civil Division, and then shifting to the Office of Legal Counsel, before returning to the Civil Division in 2004.[3]  In 2006, Miller spent a year as Deputy General Counsel for the Federal Communications Commission and then joined the Office of the Solicitor General.[4]

In 2012, Miller left the Solicitor General’s office to join the Seattle office of Perkins Coie LLP as a Partner.  He continues to serve in that role.

History of the Seat

Miller has been nominated for a Washington seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on March 3, 2018 when Judge Richard Tallman moved to senior status.

In August 2017, Miller was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In September 2017, Miller interviewed with the White House Counsel’s Office and was formally nominated on July 19, 2018.[6]

Both of Miller’s home state senators, Sen. Patty Murray and Sen. Maria Cantwell, have expressed opposition to Miller’s nomination.[7]

Political Activity & Memberships

Miller has a fairly limited political history, having donated $1000 each to Sen. Marco Rubio and Rep. Cathy McMorris Rodgers in 2014-15.[8]

Furthermore, Miller has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) for various stretches, most recently in 2017.[9]

Legal Experience

Miller’s post-clerkship career can be organized into three chunks for analysis.  First, from 2001 to 2006, Miller worked in various capacities at the Department of Justice.  Then, from 2007 to 2012, Miller worked at the Solicitor General’s Office.  Finally, from 2012 to the present, Miller has been a Partner in the Seattle Office of Perkins Coie.

Department of Justice

From 2001 to 2006, Miller worked in the Department of Justice, serving in the appellate staff of the Civil Division from 2001 to 2003 and from 2004 to 2006.  From 2003 to 2004, Miller worked in the Office of Legal Counsel, his tenure coinciding with OLC head Jack Goldsmith, who clashed with the White House over the previous OLC memorandum that authorized enhanced interrogation techniques.

Solicitor General

From 2007 to 2012, Miller served as Assistant to the Solicitor General, working under six Solicitors General in the Bush and Obama Administration.  During this time, Miller argued 14 cases before the U.S. Supreme Court on behalf of the federal government and filed briefs in dozens of others.[10]  Of the cases Miller argued, the position he took prevailed in nine.[11]  Interestingly, Miller lost cases during this time to two future court of appeals judges: Judge Sri Srinivasan[12] and Judge Stephanos Bibas.[13]

Perkins Coie

Since 2012, Miller has been a Partner in the Seattle Office of Perkins Coie working in the appellate practice group.  During Miller’s tenure, he argued an additional two cases before the Supreme Court, both focusing on the issue of the sovereign immunity accorded to Indian tribes.  In the first, Miller prevailed before a unanimous Supreme Court in arguing that tribal sovereign immunity did not bar a suit against a member of the tribe in his individual capacity.[14]  In the second, Miller defended a Washington Supreme Court decision holding that sovereign immunity did not constitute a bar to a land suit and judgment where the court was seeking to exercise in rem jurisdiction.[15]  This time, Miller lost on a 7-2 vote with only Justices Thomas and Alito voting for his position.[16]

Writings

As a law student, Miller authored an article discussing the federal statute dictating Miranda warnings to criminal defendants.[17]  The statute in question, 18 U.S.C. § 3501, was enacted shortly after the landmark decision in Miranda v. Arizona, and sought to overrule the Supreme Court decision in federal criminal cases.[18]  However, in the next three decades, the Supreme Court did not consider the validity of the statute, which was never invoked by the Department of Justice.[19]

In his article, Miller argues that the Supreme Court should consider the constitutionality of the statute sua sponte, and that it was often appropriate for judges to raise issues not raised by the parties, including in cases involving the court’s jurisdiction, the application of judicial restraint, or a court frustration with the way parties have characterized the legal issues in the case.[20]  Miller argues that § 3501 clearly lays out rules for the admissibility of confessions, rules that the court should not ignore just because the parties agree that it should.[21]  Miller does not focus on the article on the constitutionality of § 3501, which was later struck down by the Supreme Court in Dickerson v. United States.[22]

Overall Assessment

Given his extensive appellate practice, it is easy to agree that Miller is qualified for a seat on the Ninth Circuit.  The American Bar Association agreed, giving him a unanimous Well Qualified rating.[23]  However, Miller’s path to confirmation may be complicated by the opposition of home state senators and that of Indian tribes.[24]  The latter argue that Miller has focused his private practice on seeking to cut down the sovereignty of Indian tribes.  Such arguments may be particularly persuasive to senators with large populations affected by such decisions.

As noted earlier, the Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  If Miller is confirmed, he will likely add a conservative voice to the court.  Furthermore, based on his law school writings, one could also argue that Miller would not be hesitant to exercise judicial power in raising issues not addressed by the parties where he believed the issues to be paramount to the case.  As such, one could expect Miller to be a more assertive voice on the court than the more circumspect judge he replaces.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric Miller: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Miller, supra n. 1 at 42.

[6] Press Release, White House, President Donald J. Trump Announces Sixteenth Wave of Judicial nominees, Sixteenth Wave of United States Attorney Nominees, and Eleventh Wave of United States Marshall Nominees (July 13, 2018) (on file at www.whitehouse.gov/the-press-office).

[7] Agueda Pacheco-Flores, Cantwell and Murray Object to Process for Filling Federal Appeals Court Seat, Seattle Times, Oct. 23, 2018, https://www.seattletimes.com/seattle-news/cantwell-and-murray-object-to-process-for-filling-federal-appeals-court-seat/.  

[9] See Miller, supra n. 1 at 5.

[10] See id. at 18-23.

[11] See Astrue v. Capato, 566 U.S. 541 (2012); Talk Am. v. Michigan Bell Tell Co., 564 U.S. 50 (2011); Staub v. Proctor Hosp., 562 U.S. 411 (2011); United States v. Marcus, 560 U.S. 258 (2010); NRG Power Marketing, LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165 (2010); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); Shinseki v. Sanders, 556 U.S. 396 (2009); Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008); Knight v. Comm’r of Int’l Rev., 552 U.S. 181 (2008).

[12] Abuelhawa v. United States, 556 U.S. 816 (2009).

[13] See Vartelas v. Holder, 566 U.S. 257 (2012).

[14] Lewis v. Clarke, 137 S.Ct. 1285 (2017).

[15] Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018).

[16] See id.

[17] Eric D. Miller, Should Courts Consider 18 U.S.C. 3501 Sua Sponte?, 65 U. Chi. L. Rev. 1029 (Summer 1998).

[18] See id. at 1031-32.

[19] Id. at 1033-38.

[20] Id. at 1039.

[21] Id. at 1052.

[22] 530 U.S. 428 (2000).

[23] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Jan. 31, 2019).

[24] See, e.g., John Echohawk, Eric Miller on the Ninth Circuit? Time for a More Suitable Candidate, Indian Country Today, Sept. 10, 2018, https://newsmaven.io/indiancountrytoday/opinion/eric-miller-on-the-ninth-circuit-time-for-a-more-suitable-candidate-ra4MF3aidUKNy_9AXVc3cQ/.  

Judge T. Kent Wetherell – Nominee for the U.S. District Court for the Northern District of Florida

A nonpartisan jurist with close ties to Florida Democrats, Judge Thomas Kent Wetherell looks fairly likely to receive a bipartisan confirmation to the federal bench.

Background

The son of former Florida State House Speaker T. Kent Wetherell, Judge Thomas Kent Wetherell II was born in Daytona Beach on August 26, 1970.  When Wetherell was ten, his father was elected to the Florida House of Representatives, where he would serve for twelve years, the last two as speaker.  For his part, Wetherell graduated magna cum laude from Florida State University and with High Honors from Florida State University College of Law.[1]

After graduating, Wetherell joined Hopping Green Sams & Smith in Tallahassee as an Associate.  Four years later, he joined the Florida Attorney General’s Office under Democrat Bob Butterworth as Deputy Solicitor General.[2]

In 2002, Wetherell became an Administrative Law Judge with the Florida Division of Administrative Hearings.[3]  In 2009, Gov. Charlie Crist appointed him to be a Judge on the First District Court of Appeal, where he serves to this day.

History of the Seat

The seat Wetherell has been nominated for opened on Dec. 31, 2015, with Judge John Smoak’s move to senior status.  Florida Senators Bill Nelson, a Democrat, and Marco Rubio, a Republican, continued the use of a Judicial Nominating Commission (JNC) to solicit recommendations for vacancies.  Acting on the recommendations of the JNC, President Obama nominated Philip Lammens, a magistrate judge for the U.S. District Court for the Middle District of Florida, to fill the vacancy.[4]  However, even though Lammens had the support of both Nelson and Rubio, he never received a hearing in the 114th Congress and his nomination was returned unconfirmed upon the election of Donald Trump.

In early 2017, Rubio and Nelson jointly recommended that Trump renominate Lammens and two other unsuccessful Obama nominees.[5]  However, while one of the other picks, William Jung, was renominated, Lammens was not.  Meanwhile, the JNC recommended Wetherell for the Northern District alongside three other candidates on November 16, 2017.[6]  Wetherell was nominated alongside another finalist, Judge Allen Winsor.[7]

Legal Experience

Wetherell started his career at the Tallahassee firm of Hopping Green Sams & Smith, where he practiced land use law, mostly representing developers seeking municipal approval.  He also worked as a lobbyist, handling matters related to the Administrative Procedure Act and the motor vehicle lemon law.

From 1999 to 2002, Wetherell served as Deputy Solicitor General under the newly created Solicitor General’s Office.  In this capacity, Wetherell handled appeals on behalf of the state, but also participated in trial efforts seeking to shield media attention from Dale Earnhart’s autopsy photos.[8]

Jurisprudence

Wetherell has served as a judge since 2002, serving as an Administrative Judge for seven years, and as a judge on the First District Court of Appeal for the last nine years.  In the former position, Wetherell handled licensing, permitting, and discrimination claims on an administrative level.  In the latter, Wetherell heard civil and criminal appeals from the Florida Circuit Courts.  During his time as an appellate judge, Wetherell heard approximately 6500 cases.[9]  Of these cases, Wetherell has been reversed three times.

In the first matter where Wetherell was reversed, he ruled that legislators were protected from being deposed in challenges to congressional reapportionment by legislative immunity.[10]  The Florida Supreme Court reversed over a dissent by Justice Charles Canady, finding that legislative privilege did not apply in the matter as legislative intent was essential for the lawsuit.[11]  In the second, Wetherell upheld an agency determination that the City of Miami could unilaterally modify a collective bargaining agreement with the police under the “financial urgency statute,” and the Florida Supreme Court reversed.[12]  In the third, the Florida Supreme Court reversed Wetherell’s ruling upholding a defendant’s convictions for use of a computer to solicit a minor and traveling to meet a minor.[13]

Political Activity

Wetherell has a fairly limited political history, including campaigning for his father in his state house campaigns.  For his own part, Wetherell has just one contribution of record, to Colorado Senator Ben Nighthorse Campbell, a Democrat-turned-Republican.[14]

Overall Assessment

Overall, Wetherell looks to be set for a comfortable confirmation.  His record shows little that is controversial and he is the product of a well-respected bipartisan commission.  Furthermore, given his ties to Florida Democrats including his father, Crist, and Butterworth, it is unlikely that he will draw strong opposition.


[1] Sen. Comm. on the Judiciary, 115th Cong., T. Kent Wetherell II: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Press Release, President Obama Nominates Eight to Serve on United States District Courts (Apr. 28, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office/).

[5] Andrew Pantazi, Rubio and Nelson Ask Trump to Keep Judicial Picks They Sent to Obama, Florida Times-Union, Mar. 23, 2017, https://www.jacksonville.com/news/national/2017-03-23/rubio-and-nelson-ask-trump-keep-judicial-picks-they-sent-obama.  

[6] Alex Leary, Finalists Named for Federal Bench in Northern District of Florida, The Buzz, Nov. 16, 2017, http://www.tbo.com/florida-politics/buzz/2017/11/16/finalists-named-for-federal-bench-in-northern-district-of-florida/.  

[7] Press Release, President Donald J. Trump Announces Thirteenth Wave of Judicial Nominees, and Seventh Wave of United States Marshal Nominees (April 26, 2018) (on file at www.whitehouse.gov/thepressoffice).

[8] See Wetherell, supra n.1 at 37.

[9] Id. at 16-17.

[10] Fla. House of Representatives v. Romo, 113 So. 3d 117 (Fla. 1st DCA 2013).

[11] League of Women Voters of Florida v. Fla. House of Representatives, 132 So. 3d 135 (Fla. 2013).

[12] Headley v. City of Miami, 118 So. 3d 885 (Fla. 1st DCA 2013), quashed, 215 So. 3d 1 (Fla. 2017).

[13] Griffis v. State, 133 So. 3d 650 (Fla. 1st DCA 2014), quashed, 2016 WL 1664979 (Fla. Apr. 27, 2016).

Paul Matey – Nominee for the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips, he has held hearings for nine nominees that lack blue slips from one or both home-state senators.  Of those, four have been confirmed on the floor and one has been rejected, the rest, including Paul Matey of New Jersey were blocked from a final vote by then-Sen. Jeff Flake’s objections.  In the new Congress without Flake, he remains a favorite to be confirmed.

Background

Paul Brian Matey was born in Edison, New Jersey on March 29, 1971.  Matey attended Scranton University and then spent four years working for Marvel Entertainment in New York City.[1]

In 1997, Matey joined Seton Hall University School of Law, graduating summa cum laude in 2001.[2]  Matey then clerked for Judge John Lifland on the U.S. District Court for the District of New Jersey and for Judge Robert Cowen on the U.S. Court of Appeals for the Third Circuit (Matey has been nominated for the seat that Cowen once held).

After his clerkships, Matey joined Kellogg, Hansen, Todd, Figel & Frederick LLC as an associate.  In 2005, Matey joined the U.S. Attorney’s Office for the District of New Jersey, working under U.S. Attorney Chris Christie.[3]  When Christie was elected Governor in 2009, Matey joined the Governor’s Office as Assistant Counsel.  He later was elevated to be Senior Counsel and Deputy Chief Counsel.

In 2015, Matey was hired to be General Counsel for University Hospital in Newark.[4]  He left this position in 2018 to become a Partner with Lowenstein Sandler LLP, where he works today.

History of the Seat

Matey has been nominated for a New Jersey seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Julio Fuentes.  Fuentes, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 18, 2016.  As the vacancy opened up relatively late in the Obama Administration, no nominee was put forward to fill the seat.

Shortly after Trump’s election, Christie reached out to the Administration to recommend Matey for the Third Circuit.[5]  In August 2017, news outlets reported that New Jersey’s Democratic Senators, Robert Menendez and Cory Booker, had agreed to sign off on Matey in return for the nominations of Democrats to fill District Court vacancies.[6]  However, the deal never materialized and Matey wasn’t nominated until April 2018.  To date, no district court nominees have been put forward for New Jersey vacancies and Menendez and Booker has not returned blue slips on Matey.

Political Activity

As noted above, Matey worked for Christie when he served as Governor of New Jersey.  In addition, Matey’s only contribution of record is for Christie.[7]  Matey has also been a member of the Federalist Society for Law and Public Policy since 2001 and a member of the Republican National Lawyers Association since 2005.[8]

Legal Experience

While Matey started his legal career as an Associate at Kellogg, Huber, Hansen, Todd, Evans, and Figel PLLC in Washington D.C.[9], he is most known for his later positions with the U.S. Attorney’s Office, working for Gov. Chris Christie, as well as his time with University Hospital.

From 2005 to 2009, Matey worked as an Assistant U.S. Attorney under then-U.S. Attorney Chris Christie.  In this role, Matey worked primarily to prosecute complex white collar crimes, securities fraud, and healthcare fraud.  Matey also handled pornography cases.[10]

In 2010, when Christie was elected to be Governor of New Jersey, Matey joined his office to be Assistant Counsel, later becoming Senior Counsel and Deputy Chief Counsel.  In this role, Matey analyzed legislation, executive orders, and regulations, and gave legal advice to Christie.  Notably, Matey was Deputy Chief Counsel during the Bridgegate Scandal, when officials in the Christie Administration closed down much of George Washington bridge as political retribution against the mayor of Fort Lee.[11]  Matey was one of two officials who ultimately fired Bridget Anne Kelly, the individual who had authorized the lane closures.[12]

From 2015 to 2018, Matey worked as General Counsel for University Hospital in Newark.  Matey’s tenure has already been criticized by Sen. Cory Booker, who noted that patient safety ratings at the Hospital dropped from C to F during his time there.[13]

Writings and Speeches

While not an academic, Matey has written and elaborated on the law.  Much of his work is descriptive rather than normative.  For example, Matey authored an article explaining a recent New Jersey Supreme Court decision regarding the statute of limitations as it relates to toxic tort actions.[14]  Notably, in 2005, Matey co-authored a paper with Justice Neil Gorsuch criticizing securities class actions for creating “vast social costs.”[15]  In another 2003 paper, Matey argued that the First Amendment rights of network broadcasters should be evaluated based on the “market power of the broadcast content.”[16]  Matey argues that this approach would limit government regulation of the First Amendment rights of broadcasters with regard to areas such as Presidential Debates.[17]

Overall Assessment

Matey’s nomination has advanced, so far, without the support of New Jersey Senators Bob Menendez and Cory Booker.  Under the new blue slip regime, however, the lack of such support is not fatal.  That being said, Matey is still likely to face strong opposition based on his conservative judicial views, membership in the Federalist Society, and close associations to Christie.

Specifically, some may argue that Matey was handpicked over other better-qualified candidates due to his close association with Christie.  The ABA, notably, gave Matey a middling Qualified/Not Qualified rating.[18]

However, with a narrow Republican majority, Matey remains a favorite to be confirmed.  At this point, it would take four Republican defections to kill Matey’s nomination, a tall order as only one Trump nominee has seen that many defections on the floor, and those defections were from the right.  As such, it is likely that Matey will be confirmed in short order.


[1] Sen. Comm. on the Judiciary, 115th Cong., Paul Matey: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] Id. at 2.

[4] See id. 

[5] See id. at 27-28.

[6] Andrew Seidman and Jonathan Tamari, Trump Poised to Nominate Christie Ally for U.S. Attorney in Complex Political Deal, Philadelphia Inquirer, Aug. 10, 2017, http://www2.philly.com/philly/news/politics/presidential/trump-poised-to-nominate-christie-ally-for-u-s-attorney-post-20170810.html.  

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=paul+matey&cycle=&state=&zip=&employ=&cand= (last visited Nov. 10, 2018).

[8] See Matey, supra n. 1 at 5.

[9] During his time at Kellogg, Matey did have a chance to work with then-partner Neil Gorsuch.

[10] See, e.g., United States v. Valenzuela, 07-CR-00412 (N.J. 2007); United States v. Adams, 07-CR-00859 (N.J. 2007).

[11] See Matt Katz, Exclusive: Inside Bridgegate, New Jersey Monthly, Jan. 18, 2016, https://njmonthly.com/articles/jersey-living/exclusive-inside-bridgegate/.  

[12] Id. 

[13] See Twitter, @CoryBooker, Nov. 13, 2018, https://twitter.com/corybooker/status/1062474801560895493?lang=en.  

[14] Paul B. Matey, Surveys of Recent Developments in New Jersey Law – Torts: The Discovery Rule, 30 Seton Hall L. Rev. 101 (2003).

[15] Neil Gorsuch and Paul Matey, Settlements in Securities Fraud Class Actions: Improving Investor Protection, Wash. Legal Found., Working Paper No. 128, 2005. 

[16] Paul B. Matey, Abundant Media, Viewer Scarcity: A Marketplace Alternative to First Amendment Broadcast Rights and the Regulation of Televised Presidential Debates, 36 Ind. L. Rev. 101, 102 (2003).

[17] Id. at 137.

Judging the 2020 Contenders – The Others

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at the 2020 candidates who have experience as governors and as senators.  Today we look at those who do not fall into either camp.  Obviously, it is difficult to build up a record on judicial matters if you have neither appointed judges nor voted on them.  Nevertheless, we look at the remaining contenders and their public stances (if any) on judicial matters.  Most, if not all, of the contenders in this category have not spoken out on judges and have a thin record on this front.

Stacey Abrams

Abrams, a Georgia state legislative leader who narrowly lost the 2018 gubernatorial election in the state, is, funnily enough, the sister of a federal judge, Judge Leslie Abrams of the U.S. District Court of the Middle District of Georgia.  Regarding other nominations, Abrams came out against the nomination of Thomas Farr in December, which ultimately fell short of a vote.

Michael Bloomberg

Former New York City mayor Michael Bloomberg is currently planning a run for President in 2020, either as a Democrat or as an Independent.  Unlike other candidates in this category, Bloomberg had the opportunity to appoint judges, namely, municipal judges to the New York City Criminal Court, Civil Court and the Family Court.  However, Bloomberg’s appointments to these courts have made few waves and do not reveal much about his judicial views.

Outside of his role as mayor, Bloomberg is primarily known for his advocacy on gun control, as well as his support for the New York stop and frisk policy.

Pete Buttigieg

South Bend Mayor Pete Buttigieg is the youngest candidate in the 2020 Presidential race, and is the only openly gay candidate.  However, Buttigieg’s largely local pedigree has left him little room to develop positions on judicial issues, and he has been silent on such issues since announcing.

Julian Castro

Julian Castro is the only Hispanic candidate who has currently announced a bid for President, and, with experience leading San Antonio, one of the Nation’s largest cities, and heading the Department of Housing and Urban Development, he has the experience in an executive role.

That being said, Castro has been virtually invisible on the issue of judges, with virtually no formal statements on the issue.

John Delaney

Former Maryland Congressman John Delaney was the first major Democrat to announce for the 2020 Presidential camapign.  Despite fairly detailed positions on many major issues, Delaney has largely been silent on judicial issues, with no mention of judicial nominations on his campaign site.

Tulsi Gabbard

Hawaii Congresswoman Tulsi Gabbard is, perhaps, one of the most polarizing candidates in the 2020 race. On one side, Gabbard is a member of the Congressional Progressive Caucus and was one of the strongest supporters for Sen. Bernie Sanders’ presidential campaign in 2016.  On the other, she has been criticized for her lack of support on LGBT issues, and her demagoguery on such issues in the past.

Particularly notoriously, Gabbard wrote an op-ed criticizing Democratic Senators (including fellow Presidential candidate Kamala Harris) for probing judicial nominee Brian Buescher over his membership in the Knights of Columbus, arguing that their questions constituted religious bias.  While Gabbard did note that she herself opposed Buscher’s nomination, her position nonetheless brought pushback from fellow Hawaii Democrats.

Richard Ojeda

The former West Virginia State Senator and unsuccessful Congressional candidate does not have a section on judges on his Presidential campaign website.

Beto O’Rourke

Former Congressman Beto O’Rourke ran a surprisingly strong Senate campaign in 2018, falling just narrowly short of Sen. Ted Cruz despite running in strongly Republican Texas.  During the campaign, O’Rourke opined on the pending Kavanaugh nomination, wishing that there had been more focus on Kavanaugh’s judicial positions during the confirmation battle.  O’Rourke has said little about Trump’s other judicial nominations, however, including many appointed to Texas courts.  Interestingly, O’Rourke’s strong campaign nonetheless propelled many Texas judicial candidates to victory, flipping many courts across the state to Democrats.

Tim Ryan

Ohio Rep. Tim Ryan has been planning a run for President since mid-2018, even as he led an aborted coup against House Speaker Nancy Pelosi.  While Ryan has made a name for himself as a Pelosi opponent, he has been largely invisible on the issue of judicial nominations, although he did issue a statement opposing the nomination of Brett Kavanaugh.

Eric Swalwell

Swalwell has served in the U.S. House since his election in 2012 and currently serves on the House Judiciary Committee (which, unlike its senate counterpart, has no role in judicial confirmations).  In 2018, Swalwell came out strongly against the nomination of Brett Kavanaugh to serve on the Supreme Court.

The Nominees Left Out

Updated on January 23, 2019 at 3:24 PM

When the 115th Congress adjourned, it sent 73 judicial nominees back to the President.  Yesterday, President Trump announced his intention to renominate 50 of them (as well as one nominee to the U.S. Court of Military Commission Review).  This leaves 23 nominees not on the initial list and still in limbo.  Zoe Tillman at Buzzfeed has a great rundown of the nominees sent back to the Senate.  Today, we look at the 23 who were not.

Out of the 23, 16 come from just three states: New York; California; and Illinois.  Each of these states has two Democratic Senators, and, more importantly, Senators with prominent positions in the Democratic Party.  As such, one could argue that the blocking of these renominations are intended to add pressure to Democrats during the government shutdown.  However, I would argue that the truth is more complicated.

Let’s start with California, which has two senators, Sen. Dianne Feinstein and Sen. Kamala Harris, on the Senate Judiciary Committee.  Both were strong opponents of Justice Brett Kavanaugh.  There were six California nominees pending that were not renominated: Patrick Bumatay, Dan Collins, and Kenneth Lee to the Ninth Circuit; and Stanley Blumenfeld, Jeremy Rosen, and  Mark Scarsi for the Central District of California.  This batch was submitted relatively late in 2018, and did not have the support of California’s home-state senators.  Since that point, White House Counsel Don McGahn has departed and has been replaced with Pat Cippolone, and, by all accounts, negotiations between the White House and California senators are back on.  As such, not renominating the California nominees can be seen as an optimistic sign.  Of course, some, if not all, of the six will ultimately make it to the bench, either as part of a package, or, if negotiations fail, individually.

The situation in New York is more complicated.  New York Senator Chuck Schumer leads the Senate Democratic Caucus and Senator Kirsten Gillibrand has presidential ambitions.  Nevertheless, they managed to work with the White House to put together a seven-judge package of nominees last year.  These nominees, including three Democrats and four Republicans, have not been renominated.  At the same time, the White House has renominated four other New York nominees: Judge Joseph Bianco and Michael Park for the Second Circuit; Thomas Marcelle for the Northern District of New York, and Philip Halpern for the Southern District of New York.  It is unclear why the White House has declined to put forward a group of nominees who were passed out of the Judiciary Committee with bipartisan support, although one can speculate that it is intended as a slight to Schumer.

Finally, we come to perhaps the most surprising omission, Illinois.  Illinois Sens. Dick Durbin and Tammy Duckworth established a productive relationship with the White House on judicial nominations, resulting in the smooth confirmations of Michael Scudder and Judge Amy St. Eve to the Seventh Circuit (the only appellate nominations during the Trump Administration to receive unanimous support).  They also put together a package of three district court nominees: conservatives Martha Pacold and Steven Seeger; and liberal Mary Rowland.  None of the three have been renominated.  Of course, given the number of vacancies on the federal bench in Illinois, it is possible that the three will be wrapped into a larger package of nominees.

Stepping away from these three states, you have an additional seven who have not been renominated.  Two of these, Mary McElroy of Rhode Island and Judge Stephanie Gallagher of Maryland, were nominees originally chosen by President Obama and renominated by President Trump with Democratic support.  I think the Administration is hoping, supported by a new Judiciary Chair, to renegotiate these picks and try to find nominees with more conservative records.  (The Trump Administration did renominate Judge John Milton Younge so it’s not that all Democratic picks were left off the list)

The remaining five are nominees who would likely face a difficult journey to confirmation.  This includes Jon Katchen, who withdrew his nomination late last year in the face of strong opposition from the Alaska Bar, Gordon Giampietro, who has been blue-slipped by Sen. Tammy Baldwin, and Thomas Farr, whose expected confirmation fizzled last year after opposition from Sen. Tim Scott.  Farr is perhaps the most notable of the three, as Sen. Thom Tillis has still been advocating for his renomination.  Regardless, withdrawing Farr is a no-brainer for the White House.  The sixty-four year old nominee can easily be replaced with a judge just as conservative and two decades younger.

The last two are the most interesting and surprising.  FTC Commissioner Maureen Ohlhausen was not renominated to the Court of Federal Claims.  While Ohlhausen did face strong Democratic opposition from the Senate Judiciary Committee, so did fellow nominee Ryan Holte (Holte was renominated).  As such, I’m inclined to think that Ohlhausen may have asked for her nomination to be withdrawn.  (UPDATE: An individual familiar with the judicial confirmation process has confirmed that Ohlhausen withdrew her nomination.)   Finally, there is John O’Connor, nominated to a district court seat in Oklahoma.  O’Connor was rated Unqualified by a unanimous panel of the American Bar Association, who cited his lackluster legal career, and noted ethical issues.  It is hard to believe that the ABA rating was the sole factor in blocking O’Connor given that other nominees have soldiered on past such a rating and been confirmed.  Given that the allegations against O’Connor were presumably examined during the White House vetting process, the lack of a renomination is surprising.

Overall, some, if not all, of these 23 picks, could still be renominated.  However, their exclusion from the initial list clearly makes a point: the Administration is continuing to move deliberately with regard to judicial nominations, and the area is still a priority for them.  As such, we’re in for an interesting Congress.

Judging the 2020 Contenders: The Senators

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at governors.  Today, we turn to senators.

Senators may not have the nominating ability that Governors do, but they still have two important ways of displaying their judicial philosophies.  The first and most obvious is through their votes: senators show their judicial leanings by which nominees they support and oppose.  The second, and perhaps even more important, is through the judges they recommend to the White House.  Depending on the Administration, senators have been allowed to recommend district (and sometimes circuit) judges for nomination.  How senators have exercised this power relates directly to how they will exercise power as an executive.  Today, we will look at the current and former senators who may run for president, and their records on these two points.

Joe Biden

Perhaps no other senator (with the possible exception of the late Sen. Ted Kennedy) has had the level of influence over the federal bench that Biden has.  As the senator from Delaware for thirty six years, Biden shepherded eight district judges onto the District of Delaware, only one of which, Judge Gregory Sleet, was during a Democratic Administration.  Biden also supported the appointments of Delaware judges to the Third Circuit during the Reagan, H.W. Bush, Clinton, and W. Bush Administrations.  The home-state judges Biden supported, regardless of Administration, have generally been judicial moderates.  From Judge Walter Stapleton to Judge Thomas Ambro, they have avoided controversy and have established themselves as well-respected across the political spectrum.

On the flip side, Biden has exercised his blue slip privileges on occasion.  Late in the Bush Administration, Biden blocked the nomination of then-U.S. Attorney Colm Connolly to the district court.  As a result, Connolly was not confirmed despite support from Sen. Tom Carper, another Democrat.  (Carper nonetheless sponsored Connolly for a judgeship during the Trump Administration, and he was duly confirmed).

However, Biden’s real impact has been on the Senate Judiciary Committee.  Biden served as Chair of the Committee from 1987 to 1995, during which time he oversaw a whopping seven Supreme Court nominations.  Biden oversaw the failure of Judge Robert Bork’s nomination to the Supreme Court, as well as the confirmations of Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, all of whom he supported.  Biden was also Chair of the Committee during the confirmation hearings for Justice Clarence Thomas.  While Biden did not support Thomas, he nonetheless attracted strong criticism for failing to adequately investigate allegations of harassment and impropriety raised against Thomas and for buckling to political pressure from Republicans.  Biden also supported the nominations of Justices John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia, while opposing Chief Justices William Rehnquist and John Roberts, and Justice Samuel Alito, who were all confirmed.

Cory Booker

Cory Booker has served in the Senate since his election in 2013 to replace the late Sen. Frank Lautenberg.  As such, even as the junior senator from New Jersey, Booker has had a significant influence on judicial nominations for the state.  Booker was particularly active in pushing the nomination of Julien Neals, a member of his cabinet when Booker served as mayor of Newark.  Neals, nominated by Obama in 2015, was blocked from confirmation by Senate Majority Leader Mitch McConnell.  Booker has been actively pushing the nomination of Neals with the Trump Administration.

During the Trump Administration, Booker has been one of the most vocal opponents of the President’s judicial nominees, using his perch on the Senate Judiciary Committee to grill nominees on racial bias in the criminal justice system.  Booker strongly opposed both Justices Gorsuch and Kavanaugh, and has opposed 13 of Trump’s district court judges, and twenty five appellate judges.  In fact, Booker has supported just five Trump appellate nominees: Judge Jay Richardson for the Fourth Circuit; Judges Michael Scudder and Amy St. Eve for the Seventh Circuit; Judge Ralph Erickson for the Eighth Circuit; and Judge Mark Bennett for the Ninth Circuit.

Sherrod Brown

Brown has served as the U.S. Senator from Ohio since 2006, when he defeated Sen. Mike DeWine (now the Governor).  Since that day, Brown has overseen and supported seven nominations to the district courts in Ohio.  Early in his tenure, Brown supported President George W. Bush’s nomination of Judge Sara Lioi to serve on the U.S. District Court for the Northern District of Ohio.  During the Obama and Trump Administrations, Brown has established a bipartisan commission on judicial nominations with Senators John Voinovich and Rob Portman respectively.  The commission produced three confirmations during the Obama Administration: Judge Timothy Black to the Southern District of Ohio; and Judges Benita Pearson and Jeffrey Helmick to the Northern District.  All three judges have established left-of-center records on the bench.  During the Trump Administration, Brown has supported Trump nominees Pamela Barker, Sarah Morrison, and Matthew McFarland, who all emerged from the bipartisan commission, but opposed Sixth Circuit nominees Eric Murphy and Chad Readler, who did not.

Throughout his tenure, Brown supported almost all the judicial nominees that Presidents Bush and Obama put out, voting against just one, Judge Leslie Southwick for the U.S. Court of Appeals for the Fifth Circuit.  However, Brown has opposed 37 out of 59 Trump nominees brought up on a roll call vote, including both of Trump’s Supreme Court picks and 25 out of 30 appellate picks, supporting only Judges Richardson, Scudder, St. Eve, Erickson, and Bennett.

Hillary Clinton

Has there been a politician whose name is as ubiquitous as Hillary Clinton? Amid her resume of various political positions, it is easy to forget that Clinton served in the U.S. Senate, from 2000 to 2008, to be precise, when she represented New York.  During that period of time, Clinton generally deferred on nominations issues to Sen. Chuck Schumer, who negotiated judgeships with the Bush Administration.  Nevertheless, Clinton was not hesitant to vote against Bush nominees, voting against both Justices Roberts and Alito, for example.  Clinton also voted against Judges D. Brooks Smith, Dennis Shedd, Paul Cassell, Jay Bybee, Timothy Tymkovich, Jeffrey Sutton, Michael Chertoff, Deborah Cook, Victor Wolski, J. Leon Holmes, Diane Sykes, Priscilla Owen, Janice Rogers Brown, Thomas Griffith, William Pryor, Brett Kavanaugh, Jerome Holmes, and Leslie Southwick during her senate tenure.

Kirsten Gillibrand

New York Senator Kirsten Gillibrand had developed a relatively moderate record in the U.S. House before she was tapped to replace then-Senator Hillary Clinton in 2009.  Since that point, Gillibrand has developed a strongly liberal record on most issues, including judicial nominations.  Gillibrand has been a frequent opponent of Trump judicial nominees, for example, voting to reject all but four of his appellate picks (Scudder, St. Eve, Erickson, and Bennett) and, overall, rejecting 43 out of 59 nominees who received roll call votes (Interesingly, Gillibrand even opposed New York 2d Cir. nominee Richard Sullivan, who she nonetheless returned a blue slip on, and who fellow N.Y. Senator Chuck Schumer supported).

Relating to home-state nominees, Gillibrand has generally deferred to Senator Chuck Schumer (now the Minority Leader), but has chosen a few nominees of her own to recommend during her tenure.  During the Obama Administration, Gillibrand recommended the following district court judges: Judges Joan Azrack and LeShann DeArcy Hall on the Eastern District of New York; Judges Ronnie Abrams, Valerie Caproni and Analisa Torres on the Southern District of New York.  All of Gillibrand’s recommendations to the bench have been women and have been confirmed with near-unanimous support.  The lone exception is Caproni who attracted criticism from both the left and the right for her tenure as General Counsel at the FBI (Caproni even attracted the opposition of Sen. Jeff Merkley, a Democrat).

Kamala Harris

Elected to the U.S. Senate in 2016 from California, Harris has the distinction of herself being considered a top candidate for the Supreme Court.  Harris currently serves on the Senate Judiciary Committee and has voted on 85 Trump judicial appointees in her two years in the Senate.  Of the 59 nominees who received roll call votes, Harris opposed 38 on the floor.  She has been a particularly strong opponent of Trump’s appellate nominees, supporting just five of them: Judge Ralph Erickson; Michael Scudder; Judge Amy St. Eve; Mark Bennett; and Julius Richardson.  She has also been a vigorous questioner of Trump nominees, winning notice for her pointed and often precise questioning.

On the nomination front, Harris has been part of negotiations with the Trump Administration over a package of California nominees to the Ninth Circuit and district courts, although she has taken a smaller role than senior senator Dianne Feinstein, who is also the Ranking Member on the Senate Judiciary Committee.  A prospective deal over the nominees fell apart in late 2018 and the Trump Administration nominated three conservative candidates to the Ninth Circuit.  With a new White House Counsel coming in, Harris and Feinstein are still trying to negotiate a package.

Additionally, before she was a senator, Harris served as Attorney General of California from 2011 to 2017.  During this time, Harris served on the Commission of Judicial Appointments, which reviews all gubernatorial appointments to the California Supreme Court and the courts of appeal.  During Harris’ tenure, the Commission approved a number of left-leaning judges to California courts, including Justices Goodwin Liu, Mariano-Florentino Cuellar, and Leondra Krueger.

John Kerry

A former Democratic presidential candidate and Secretary of State under President Obama, Kerry also served as U.S. Senator from Massachusetts from 1984 to 2013.  During his tenure, Kerry was primarily known for his expertise in international relations, as his senior senator, Sen. Ted Kennedy, primarily handled the judiciary issues for the state.  It was only after Kennedy’s death in 2009 that Kerry became the primary home-state senator on judiciary issues.  In that capacity, Kerry approved the selection of Denise Casper to serve on the U.S. District Court in Massachusetts (Casper had originally been selected by a Committee established by Kennedy).  Kerry also negotiated a nominations deal with Republican Sen. Scott Brown to fill two vacancies.  The deal would involve the nominations of U.S. Magistrate Judge Timothy Hillman, a Democrat, and Massachusetts Superior Court Judge Jeffrey Kinder, a Republican.  While Hillman was promptly nominated and confirmed, the Obama Administration refused to nominate Kinder, who eventually withdrew from consideration after Brown was defeated by Sen. Elizabeth Warren.

During his long tenure in the Senate, Kerry had the opportunity to vote on judges appointed by five different presidents (three Republican and two Democratic).  Kerry voted for most of them.  Nonetheless, Kerry voted against the Supreme Court nominations of Chief Justice William Rehnquist, Robert Bork, David Souter, Clarence Thomas, John Roberts, and Samuel Alito, while supporting Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Amy Klobuchar

Amy Klobuchar, who has served as U.S. Senator for Minnesota since 2006, has one of the more “moderate” records on judicial nominations among the current batch of Democratic senators.  Klobuchar has backed ten appellate nominees and all but eight district court picks.  In addition to the five that attracted the most Democratic votes, Klobuchar backed Judges Kevin Newsom and Elizabeth Branch to the 11th Circuit, Judge Joel Carson to the 10th Circuit, and Judge Kurt Engelhardt to the 5th Circuit.  Most notably, Klobuchar also supported Judge David Stras’ nomination to the 8th Circuit, a decision in which she was opposed by fellow Minnesota senators Al Franken and Tina Smith (Stras has since developed a strongly conservative record on the federal bench).

Regarding the nominations covering her home state, Klobuchar has shepherded four judicial nominations through the Senate.  Early in the Obama Administration, Klobuchar sponsored then-magistrate judge Susan Nelson to confirmation.  Later, she was able to leverage her relationships with Republican senators to secure the confirmation of Wilhemina Wright to the Minnesota District Court, even as many Republicans lined up against her, claiming that she had made negative comments about President Reagan.  During the Trump Administration, Klobuchar was able to shepherd through the unanimous confirmations of two moderate nominees, Judges Eric Tostrud (proposed by Rep. Eric Paulsen, a Republican), and Nancy Brasel (who Klobuchar herself pushed).

Jeff Merkley

Since his defeat of Sen. Gordon Smith in 2008, Merkley has been one of the most liberal voices in the U.S. Senate, including on judicial nominations.  During the Obama Administration, Merkley was one of the strongest supporters of Senate Majority Leader Harry Reid’s decision to end the filibuster on judicial nominees, a stance that conservatives brought up when Merkley led a 14-hour filibuster of Neil Gorsuch’s nomination in 2017.  However, Merkley’s outspokenness hasn’t led to the appointment of young liberals to the federal bench in Oregon.  During the Obama Administration, Merkley supported the renomination of Judge Marco Hernandez, a state judge originally tapped by President Bush, to fill a district court vacancy.  For two other vacancies, Merkley supported male judges in their 50s, Judges Michael Simon and Michael McShane.  During the Trump Administration, Merkley has supported Trump’s nomination of Karen Immergut, a former prosecutor who worked with Ken Starr in the 1990s.

On the flip side, Merkley successfully helped kill the 9th Circuit nomination of Ryan Bounds, who advanced through Committee over the opposition of Merkley and Sen. Ron Wyden.  Additionally, Merkley has strongly opposed most Trump judicial nominees, voting against 41 out of 59 on a roll call vote.

Bernie Sanders

One of two Independents in the Senate, Sanders has served as Senator from Vermont since 2006, and made a previous presidential run in 2016.  While Sanders’ view on judges did not get much airtime during 2016, he has since established himself as a frequent critic of Trump judges.  Sanders supported just 15 out of 59 judges on a roll call vote, one of the lowest support scores of any senator.  Sanders was the only senator to oppose the nomination of Judge Claria Horn Boom, an otherwise uncontroversial nominee in Kentucky.

During his entire tenure in the Senate, Sanders has served as a junior senator, and, as such, judge decisions have been deferred to senior senator Patrick Leahy, who also chaired the Judiciary Committee between 2007 and 2014.  Leahy selected Judges Christina Reiss and Geoffrey Crawford to serve on the Vermont federal bench, and Sanders supported both.

Elizabeth Warren

The first serious candidate to announce her run for the Presidency, Warren is one of the most liberal members of the senate, and has stuck out strongly liberal positions throughout her tenure, including on judges.  She has supported the fewest number of Trump appellate judges of any Democrat in the Senate, voting for just three, Scudder, St. Eve, and Bennett.  In total, Warren supported just 14 out of 59 Trump judges on a roll call vote, the lowest support score of any senator.

Almost immediately after her 2012 election to the Senate, Warren became the senior senator for Massachusetts, as Sen. John Kerry became Secretary of State.  In this role, Warren led the effort to select Massachusetts judicial nominations for the Obama Administration.  Warren supervised the confirmations of four district court nominees, Judges Mark Mastroianni, Indira Talwani, Leo Sorokin, and Allison Boroughs, all of whom were mainstream liberals in their early 50s (Warren supported the nomination of the similarly credentialed Inga Bernstein in the 114th Congress but she was not confirmed).  Warren did not push for the appointment of young attorneys, liberal academics, or candidates who sought to reshape the law from the progressive side, instead focusing on lawyers with 30+ years of practice.  Warren’s tenure also coincided with the confirmation of Judge David Barron to the First Circuit.  While Barron is more typical of the young liberal judges that many progressives wanted Obama to nominate, Barron’s nomination came from the Administration, not from Warren.

Judging the 2020 Contenders: The Governors

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.  

We start our conversation by looking at the governors in contention for the 2020 Democratic nomination.

Perhaps no one has a more analogous record that can be applied to a President’s than a state governor’s.  In most states, governors make appointments to the state bench.  As such, a governor has tremendous influence over the direction of the state judiciary, should they choose to exercise it.  As such, let us look at the presidential contenders with gubernatorial experience and look at their record on judges.  (As always, the opinions are my own and can be disagreed with by reasonable people)

Steve Bullock

Bullock is the Governor of Montana, where he has served since 2013, and before which, he served as Attorney General of Montana from 2009 to 2013.  In Montana, Governors can fill interim judicial vacancies until the next general election.  Governors must select their picks from a list sent by a nominating commission, and the picks must be confirmed by the Montana State Senate.  Throughout Bullock’s tenure as Governor, the State Senate was controlled by the Republican Party.

In his tenure, Bullock has appointed two justices to the Montana Supreme Court, both of whom have been confirmed by wide bipartisan margins.  In 2014, Bullock appointed Jim Shea, then a workers’ compensation judge, to fill a vacancy opened by Justice Brian Morris’ elevation to the federal bench.  Shea was confirmed by a 41-9 vote by the Montana State Senate and won election to a full-term in 2016 unopposed.  In 2018, Bullock appointed district judge Ingrid Gustafson to replace Justice Mike Wheat.  Gustafson, who was considered for the federal bench in 2013, was confirmed and re-elected unopposed.  Both Shea and Gustafson are considered relatively mainstream judges.  Both justices were in the majority of a 5-2 decision that struck down a Montana program that permitted school vouchers to go to religious schools.  In 2017, Shea wrote a 4-3 opinion rejecting an argument that a sentence of 110 years in prison without the possibility of parole for a crime committed shortly before turning 18 was unconstitutional (Gustafson was not on the court at the time).  From this, one could extrapolate that Bullock would continue to appoint moderate liberals to the federal bench, rather than selecting bomb-throwers or liberal lions.

Andrew Cuomo

Andrew Cuomo currently serves as the Governor of New York, where he has led the state since 2011.  As Governor, Cuomo has had a huge impact on the judiciary, particularly on the New York Court of Appeals (despite its name, the highest court in the state).  Cuomo has named the seven judges currently serving on the court, as well as Judge Sheila Abdus-Salam, who served on the court until her untimely death in 2017.  Cuomo’s selections have been fairly diverse, with four of the eight being women, and four being judges of color.  Cuomo also appointed the first openly LGBTQ judge on the court, Judge Paul Feinman.  In fact, only one of Cuomo’s eight appointments has been a straight white male: Judge Eugene Fahey.

However, on the political front, Cuomo has undoubtedly been cautious.  Despite representing one of the most liberal states in the country, Cuomo has largely chosen moderate judges with relatively noncontroversial records, including selecting one Republican, Judge Michael Garcia.  On the flip side, Cuomo declined to reappoint Judge Victoria Graffeo, a Republican appointed by Gov. George Pataki, despite the Judge’s relatively mainstream jurisprudence and bipartisan support.  Furthermore, Cuomo’s appointees are relatively old, especially given New York’s mandatory judicial retirement at the age of 70.  The average age of a Cuomo appointee has been 57 at the time of appointment (compared to approximately 50 among Trump appointees).  Based on these appointments, look for a President Cuomo to prize diversity and experience over appointing young liberals.

John Hickenlooper

John Hickenlooper served as Governor of Colorado from 2011 to 2019.  The Colorado Governorship is particularly powerful when it comes to judicial appointments, as such appointments do not need to be confirmed by a legislative body (although recommendations do come from a judicial nominating commission).

As far as his appointments go, Hickenlooper’s record is mixed at best.  Hickenlooper has tapped five justices to the Colorado Supreme Court, having had an outsized impact on the court.  However, those appointments have not cemented a progressive majority on the court, largely because Hickenlooper has forfeited opportunities and named conservative candidates.  In his very first appointment to the Colorado Supreme Court, Hickenlooper appointed a Republican, Brian Boatwright, sidestepping two more liberal candidates, to replace the left-leaning Justice Alex Martinez.  Similarly, Hickenlooper’s last appointment to the court replaced the center-left Chief Justice Nancy Rice with Justice Carlos Samour, again choosing a former registered Republican over two more liberal candidates.  Interestingly, in making the selection, Hickenlooper felt the need to address criticism that Samour was “too conservative,” noting:

“[Samour is] a judge committed 100 percent to fairness and fidelity of the law.”

On the flip side, Hickenlooper had the opportunity to replace the strongly conservative Justice Allison Eid (tapped by Trump to the federal bench), and chose law professor Melissa Hart, considered the youngest and most liberal of the three candidates presented to him.  Nevertheless, looking at his record overall, Hickenlooper seems unmotivated by the ideology of his appointments.

Jay Inslee

Jay Inslee currently serves as Governor of Washington state, where he has led an ambitiously liberal agenda.  As Governor, Inslee can fill judicial vacancies that open midterm, and Inslee has filled one vacancy on the Washington Supreme Court, as well as 12 on the Courts of Appeal.  Inslee’s sole appointee to the Washington Supreme Court, Justice Mary Yu, was the first LGBTQ-American, the first Latina, and the first Asian American on the Washington Supreme Court.  Yu had also achieved the distinction of being the first judge to preside over same-sex marriage ceremonies in Washington state.  Yu has been a firmly liberal voice on the court, joining opinions striking down the death penalty, holding the state liable for the welfare of children in foster care, and finding that juveniles cannot be sentenced to life in prison without parole.  As such, Inslee, more than any other governor, can claim to have pushed his state bench in a progressive direction.

Terry McAuliffe

Former DNC Chair Terry McAuliffe served as Governor of Virginia from 2013 to 2017.  Unlike in most states, Virginia gives the state legislature the power to appoint judges, with governors having the power only to fill interim vacancies.  Nevertheless, McAuliffe’s tenure coincided with a brutal fight with legislative Republicans over one such interim appointment.

In 2015, Justice Leroy Millette announced that he would move to senior status, opening up his seat.  After consulting with Delegate Dave Albo, a Northern Virginia Republican, McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court as an interim candidate.  However, Republican leaders in the Assembly argued that they were cut out of the nomination process, and refused to process Roush at all, instead choosing their own candidate, Court of Appeals Judge Rossie Alston.  For his part, McAuliffe cited Albo’s endorsement of Roush and argued that Republican leaders were rejecting a qualified candidate.  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.  With neither candidate elected after the interim appointment expired, McAuliffe renominated Roush to another interim term.  Meanwhile, Watkins retired and was replaced by Sen. Glen Sturtevant, a fellow Republican.  However, Republican plans to confirm Alston were again stymied by Sturtevant’s opposition and the reneging of support by two African American Democrats.  Meanwhile, McAuliffe rejected a compromise in which Roush would be appointed to the Virginia Court of Appeals to replace Alston.

Ultimately, realizing that Alston lacked majority support in the Senate, Republicans replaced him with Court of Appeals Judge Steven McCullough, who was easily confirmed. The entire saga is hardly a display of McAuliffe’s mastery of judicial politics.  Given McAuliffe’s ultimate defeat in the fight, progressives may wonder if he can be trusted to maneuver judicial nominations from the White House.