For the last few weeks, we have been looking at potential nominees for the Court of Appeals in the next four years. Previously, we looked at federal district court judges. This time, we’ll look to another potential source of federal judges, the state courts. As always, we’ll look at one prospective nominee for each geographically based court of appeal.
D.C. Circuit – Justice Sarah Hawkins Warren
There’s nothing requiring a nominee to the D.C. Circuit to come from D.C. After all, President George W. Bush picked California Supreme Court Justice Janice Rogers Brown for a seat on the D.C. Circuit. With the D.C. Court of Appeals lacking any viable conservatives to elevate, it wouldn’t be surprising to see President Trump look to other courts for conservatives to mine. And Warren, who currently serves on the Georgia Supreme Court, is an appealing pick. Not only is she young, at only 39, but Warren has close connections to D.C., having clerked for Judge Richard Leon on the U.S. District Court for the District of Columbia, and having been a Partner at the Washington D.C. office of Kirkland & Ellis.
First Circuit – Justice Patrick Donovan
The First Circuit is the only one of the twelve geographic circuits that Trump has yet to name a nominee to. The sole New Hampshire member of the court, Chief Judge Jeffrey Howard, becomes eligible for senior status this year and may well take it in the next four years. If he does, Justice Patrick Donovan of the New Hampshire Supreme Court is likely to be strongly considered. Donovan has strong credentials, including working for the New Hampshire House of Representatives, and will have a champion in Governor Chris Sununu. Furthermore, the Justice, while conservative, is unlikely to attract strong opposition from the state’s Democratic senators.
Second Circuit – Justice Karen Carroll
How many judicial conservatives are there in Vermont? The White House will have to consider this if Judge Peter Hall takes senior status in a second Trump term. Among its candidates, the White House will have to seriously consider Vermont Supreme Court Justice Karen Carroll. The 56-year-old jurist was Republican Governor Phil Scott’s first appointment to the court and would be the first woman from Vermont on the Second Circuit.
Third Circuit – Judge P. Kevin Brobson
The 49-year-old Brobson, who currently serves on the Commonwealth Court of Pennsylvania, made the news in 2017 for declining to strike down Pennsylvania’s congressional maps as being gerrymandered. Brobson’s ruling (which was later overturned), alongside the fact that he has spoken at Federalist Society events, and his strong reputation in the Pennsylvania Bar, may make him an attractive conservative choice for a Pennsylvania seat on the Third Circuit.
Fourth Circuit – Judge Richard Dietz
The 43 year old Dietz has the trifecta of strong conservative bona fides, good Republican connections, and excellent academic credentials (having been first in his class at Wake Forest Law). Dietz, who serves on the North Carolina Court of Appeals, will be strongly considered by the Trump Administration if Judge James Wynn moves to senior status in 2022.
Fifth Circuit – Justice Jimmy Blacklock
There are many conservatives who would be salivating for a seat on the Fifth Circuit under a second Trump term. A strong contender would be Texas Supreme Court Justice Jimmy Blacklock. The strongly conservative jurist started his career at the Department of Justice and has close connections to Gov. Greg Abbott, a strong Trump surrogate and supporter (Blacklock was the longtime General Counsel for Abbott). It doesn’t hurt that, at forty, Blacklock could spend decades on the bench.
Sixth Circuit – Justice Elizabeth Clement
The 43 year old Clement had a long history with the Michigan Republican Party when she was appointed to the Michigan Supreme Court to replace Judge Joan Larsen in 2017. Nonetheless, she soon attracted fire from conservatives for voting to permit an Independent Redistricting referendum to go on the Michigan ballot. Despite being booed at the state convention, Clement retained the nomination of the Michigan Republican Party and was comfortably re-elected in 2018, the only Republican to win statewide in Michigan that year. Despite the hand-wringing over that decision, Clement’s record on the Court is generally conservative, while Michigan’s Democratic Senators may sign off on her elevation to allow Gov. Gretchen Whitmer to replace her.
Seventh Circuit – Justice Brian Hagedorn
If Judge Diane Sykes took senior status in 2022 under a Trump Administration, Hagedorn would be the favorite to fill the vacancy. The 42-year-old jurist has a strongly conservative background, while also establishing a reputation as a principled jurist on the Wisconsin Supreme Court, occasionally dissenting from the more aggressive views of his colleagues. Hagedorn’s quieter form of conservatism is also less likely to draw opposition than the more vocal views of his colleague, Justice Rebecca Bradley, who may be a rival for the appointment.
Eighth Circuit – Justice Jonathan Papik
In 2017, Papik narrowly missed out on an appointment to the Eighth Circuit when the White House chose Leonard Grasz instead of him. Nonetheless, Papik found himself appointed to the Nebraska Supreme Court in 2018, despite being only 36 years old at the time. Papik, who clerked for Justice Neil Gorsuch (on the Court of Appeals) will be closely considered for an Eighth Circuit vacancy, and, while Grasz is not expected to leave the court anytime soon, if he does under Trump, expect Papik to be the nominee.
Ninth Circuit – Judge Jerome Tao
Here’s where it gets interesting. Judge Jerome Tao is, at least nominally, a Democrat who started his career working for former Senator Harry Reid. Nonetheless, the judge was appointed to the Nevada Court of Appeals by Republican Governor Brian Sandoval, ran a fiercely conservative campaign for the Nevada Supreme Court in 2018 (unsuccessfully), and recently made the news for a concurring opinion decrying deference to administrative agencies. The Trump Administration’s judge-pickers care deeply about administrative law, and, if Judge Johnnie Rawlinson takes senior status, expect Tao to be strongly considered.
Tenth Circuit – Justice Thomas Lee
Judge Scott Matheson will be eligible for senior status in 2022, and, if he chooses to take it under a Trump Administration, Justice Thomas Lee from the Utah Supreme Court will be a strong contender to replace him. Lee is already on Trump’s radar, with a place on his Supreme Court shortlist, as well as being the brother of Sen. Mike Lee. The only knock against Lee is his age (he will be 58 in 2022). Nonetheless, he will likely have right of first refusal for the position, given his credentials (clerked for Judge J. Harvie Wilkinson and Justice Clarence Thomas) and his connections.
Eleventh Circuit – Justice Nels Petersen
Another former Georgia Solicitor General, like Warren and Eleventh Circuit Judge Britt Grant, Petersen would be a safe pick if Judge Beverly Martin’s seat opened in a second Trump term. The 42 year old jurist has established a solidly conservative profile on the Georgia Supreme Court.