With the COVID-19 pandemic on everyone’s minds, judicial nominations have largely been on the backburner for the last few months. While a few more district nominees will likely be processed in the next few months, it’s safe to say that the victor of the 2020 election will nonetheless have many judicial vacancies to fill in the next four years.
Since speculation is what this blog enjoys most, let’s think about potential candidates for the federal appellate bench under a Democratic President. We’ll start by looking at federal district court judges who are poised for elevation to the appellate bench, and, for the sake of geographic diversity, we’ll limit our pick to thirteen judges, one for each Court of Appeal. As such, here are 13 district judges who would be strongly considered for elevation if a Democrat was elected in 2021.
Judge Ketanji Jackson (D.D.C.)
Here’s my first prediction: Jackson will be the first Democratic nominee to the D.C. Circuit in 2021, potentially replacing Judge Judith Ann Wilson Rogers, another black woman. Jackson, a clerk of Justice Breyer, has impressed enough to seriously be considered for a Supreme Court appointment in 2016. At 49, Jackson has another 10 years or so of viability for a Supreme Court appointment, and it would not be surprising to have her be the first black woman on the court.
Judge Mary McElroy (D.R.I)
Judge Ojetta Rogeriee Thompson is eligible for senior status in 2021, and Judge McElroy would be the frontrunner to replace her. This is particularly unusual given that McElroy is a Trump appointee. However, McElroy’s Trump appointment is an anomaly. She is a Democrat and her nomination was championed by Democratic Senator Sheldon Whitehouse. Furthermore, McElroy’s long career as a public defender would bring a fresh perspective to the First Circuit, which is dominated by former prosecutors.
Judge Jesse Furman (S.D.N.Y.)
I feel fairly safe in saying that Furman will be at the top of Democratic lists for elevation to the Second Circuit given his role in the suit over the Census Citizenship question. Throughout the complicated nature of the litigation, Furman maintained firm control of the proceedings, and his judgment was largely upheld by the Supreme Court. Interestingly, Furman was the target of an oblique critique from Justice Thomas who suggested he was “predisposed to distrust” Trump. Despite Justice Thomas’ broadside, a majority of the Supreme Court sided with Furman’s position on the Census Question. At 47 years old, Furman is perfectly placed for elevation in 2021 or even in 2025, when he would only be 52 years old.
Judge Cathy Bissoon (W.D. Pa.)
When she was appointed in 2011, Judge Cathy Bissoon was both the first Hispanic and the first Indian American judge on the Western District of Pennsylvania. Today, the 51-year-old judge is poised for elevation to the Third Circuit, which desperately needs more female judges, down to just two out of fourteen.
Judge George Hazel (D. Md.)
At 45 years old, Hazel is the youngest Democratic-appointed federal judge in the country, and was the youngest federal judge in the country between his appointment in 2014 and the appointment of Judge Trevor McFadden in 2017. Hazel has made a name for himself by handling the Maryland case challenging the Census Citizenship question, where he ruled that the Trump Administration violated the law in adding the question to the Census. Hazel would be only 45 in 2021 and would be poised to join the Fourth Circuit where both Judges Paul Niemeyer and Diana Gribbon Motz are eligible for senior status.
Judge Carlton Reeves (S.D. Miss.)
Perhaps no district court currently sitting has had the degree of significance as Carlton Reeves, who has issued landmark decisions on same-sex marriage, religious liberty, race, voting rights, qualified immunity and more. While, at 56, Reeves is on the older end of eligible nominees, his name will be first on the list for any Mississippi vacancy on the Fifth Circuit, perhaps if Judge James Graves moves to senior status upon eligibility in 2022.
Judge Travis McDonough (E.D. Tenn.)
McDonough doesn’t have the controversial opinions that others on this list do, but as a young, noncontroversial judge, he is a prime candidate for a Tennessee seat on the U.S. Court of Appeals for the Sixth Circuit, including if Judge Bernice Donald moves to senior status.
Judge Andrea Wood (N.D. Ill.)
A Democrat hasn’t appointed a judge to the Seventh Circuit since Judge David Hamilton’s appointment in 2009, and the circuit is fairly lopsided as a result. If and when the appointment comes, expect Judge Andrea Wood to be strongly considered. The 47-year-old Wood has presided over a number of prominent cases in Chicago, including a class action against Bose Headphones, and has the intellectual rigor to hold her own in the notoriously academic court.
Judge Kristine Baker (E.D. Ark.)
The 49-year-old Baker has developed a bit of reputation from her Little Rock court as a judge willing to make hard decisions, even if they may fly against popular sentiment in her home-state. For example, Baker relied on Supreme Court precedent to block a number of draconian anti-abortion measures in Arkansas from going into effect, a decision which prompted cries of judicial “activism.” Setting the issues aside, Baker would be an ideal candidate if Judges Bobby Shepherd or Lavenski Smith moved to senior status. Her status as a woman would also diversify one of the most male-dominated courts in the country (only two women have ever served on the Eighth Circuit).
Judge Vince Chhabria (N.D. Cal.)
The 50-year-old Chhabria has already made a name for himself as a strongly liberal voice on an even-otherwise liberal bench, making notable rulings, including striking down a law that prohibited IMDB from posting the birthdates of actors, citing the First Amendment. If elevated, Chhabria would be the first Indian American judge on the Ninth Circuit.
Judge Robert Shelby (D. Utah)
Shelby may seem like an unusual choice for a Democratic appellate appointee, given that he is, at least nominally, a Republican. Nonetheless, Shelby has won plaudits in Utah for his fair rulings, including many that seem downright liberal. For example, in 2013, Shelby made headlines by striking down Utah’s ban on same-sex marriage, despite the fact that almost no court in the country had adopted such a position. Shelby’s prescience in reading the law would serve him well on the Tenth Circuit, particularly to replace Judge Scott Matheson (if he moves to senior status upon eligibility).
Judge Leslie Abrams Gardner (M.D. Ga.)
The sister of the famous Stacey Abrams, Judge Leslie Abrams Gardner made history as the first woman ever appointed to the Middle District of Georgia. The 45-year-old Gardner is poised to potentially make history again as the first black woman appointed to the Eleventh Circuit (and potentially further to the Supreme Court).
Judge Lucy Koh (N.D. Cal.)
I’m cheating a bit by including Koh in here as she has already been a nominee, tapped late in the Obama Administration for the Ninth Circuit, but never confirmed. Personally, however, Koh seems a better fit for the Federal Circuit. Throughout the history of the Federal Circuit, only one district judge has ever served on the court (Judge Kate O’Malley). Koh, who handled patent matters in private practice, and who became famous for presiding over Apple’s suits against Samsung over smartphones, has the expertise and the intellect to excel on this specialized court of appeals.