To err on the side of understatement, this was an eventful week. From Democrats winning control of the U.S. Senate to violent insurrectionists temporarily seizing control of the U.S. Capitol to the U.S. Congress certifying the win of President-elect Biden to questions about the resignation or removal of President Trump, there has been plenty to focus on. As such, it is somewhat understandable that the selection of Judge Merrick Garland to be the next Attorney General of the United States has slipped under the radar to an extent. This selection would not only place a veteran of the Department back at its head, but it would give the incoming Administration a chance to add a new judge to the U.S. Court of Appeals for the D.C. Circuit.
And the Biden Administration is looking for these opportunities. After the Trump Administration’s historic successes in appointing judges to the federal bench, only 49 vacancies are currently open for the new administration to fill, significantly lower than the 114 that Trump inherited from President Obama. Nonetheless, there is reason to believe that more seats will open.
As we discussed, judges (particularly appellate judges) have started to become more strategic in their retirement announcements, with their potential successor playing some role in many of their decisions. There are currently sixty four appellate judges eligible for senior status, at least some of whom were waiting for Senate control to become fixed before making a decision whether to vacate their seats. Now that control has been decided, it wouldn’t be surprising to see announcements of vacancies in the coming months. Here are the appellate judges who are currently eligible for senior status (and those who would become eligible during the 117th Congress). If vacancies arise in the coming weeks, they are likely to come from this group.
(All eligibility dates are approximate)
D.C. Circuit
Judge Judith Ann Wilson Rogers – eligible since November 7, 2006
Judge David Tatel – eligible since June 16, 2008
Judge Karen Henderson – eligible since July 11, 2009
Judge Merrick Garland – eligible since November 13, 2017 (will step down upon confirmation to be U.S. Attorney General)
First Circuit
Judge Sandra Lynch – eligible since July 31, 2011
Chief Judge Jeffrey Howard – eligible since November 4, 2020
Judge Ojetta Rogeriee Thompson – eligible since November 23, 2020
Second Circuit
Judge Jose Cabranes – eligible since December 22, 2005
Judge Rosemary Pooler – eligible since July 6, 2006
Judge Peter Hall – eligible since August 28, 2016
Judge Robert Katzmann – eligible since April 22, 2018
Judge Denny Chin – eligible since April 13, 2019
Judge Susan Carney – eligible on July 6, 2021
Third Circuit
Judge Theodore McKee – eligible since June 5, 2012
Judge Thomas Ambro – eligible since January 11, 2015
Chief Judge D. Brooks Smith – eligible since December 4, 2016
Judge Kent Jordan – eligible on October 24, 2022
Judge Joseph Greenaway – eligible on November 16, 2022
Fourth Circuit
Judge Paul Niemeyer – eligible since April 5, 2006
Judge Diana Gribbon Motz – eligible since December 19, 2008
Judge Robert Bruce King – eligible since May 25, 2009
Judge J. Harvie Wilkinson – eligible since September 29, 2009
Judge Henry Floyd – eligible since October 5, 2015
Chief Judge Roger Gregory – eligible since July 17, 2018
Judge Barbara Milano Keenan – eligible since March 9, 2020
Judge G. Steven Agee – eligible since August 27, 2020
Judge James Wynn – eligible on May 19, 2022
Fifth Circuit
Judge James Dennis – eligible since November 10, 2005
Judge Jerry Smith – eligible since November 7, 2011
Judge Edith Jones – eligible since April 7, 2014
Judge Carl Stewart – eligible since January 2, 2015
Judge Leslie Southwick – eligible since December 10, 2018
Chief Judge Priscilla Owen – eligible since January 25, 2020
Judge James Graves – eligible on June 23, 2022
Sixth Circuit
Judge Eric Clay – eligible since January 18, 2013
Judge Karen Nelson Moore – eligible since November 19, 2013
Judge Julia Smith Gibbons – eligible since December 23, 2015
Chief Judge Ransey Guy Cole – eligible since May 23, 2016
Judge Bernice Donald – eligible since September 17, 2016
Judge Richard Allen Griffin – eligible since November 2, 2018
Judge Helene White – eligible on September 25, 2021
Judge Jane Brandstetter Stranch – eligible on March 7, 2022
Seventh Circuit
Judge Ilana Rovner – eligible since August 21, 2003
Judge Michael Stephen Kanne – eligible since December 21, 2003
Judge Frank Easterbrook – eligible since September 3, 2013
Judge Diane Wood – eligible since July 4, 2015
Judge David Hamilton – eligible on May 5, 2022
Chief Judge Diane Sykes – eligible on December 23, 2022
Eighth Circuit
Judge James Loken – eligible since July 24, 2005
Judge William Duane Benton – eligible since July 26, 2017
Judge Bobby Shepherd – eligible since April 20, 2019
Ninth Circuit
Judge William Fletcher – eligible since January 27, 2012
Judge Richard Paez – eligible since May 5, 2012
Judge Marsha Berzon – eligible since September 20, 2012
Judge Ronald Gould – eligible since April 25, 2013
Judge Susan Graber – eligible since July 5, 2014
Judge Margaret McKeown – eligible since May 11, 2016
Judge Milan Dale Smith – eligible since May 19, 2016
Judge Consuelo Callahan – eligible since November 22, 2016
Judge Johnnie Rawlinson – eligible since December 16, 2017
Chief Judge Sidney Runyan Thomas – eligible since August 14, 2018
Judge Kim McLane Wardlaw – eligible since July 2, 2019
Judge Sandra Segal Ikuta – eligible since June 13, 2020
Judge Andrew Hurwitz – eligible on June 27, 2022
Tenth Circuit
Judge Carlos Lucero – eligible since March 2, 2008
Judge Mary Beck Briscoe – eligible since April 4, 2012
Judge Harris Hartz – eligible since June 21, 2014
Chief Judge Timothy Tymkovich – eligible on November 2, 2021
Judge Scott Matheson – eligible on March 27, 2022
Eleventh Circuit
Judge Charles Wilson – eligible since October 14, 2019
Judge Beverly Martin – eligible since August 7, 2020
Federal Circuit
Judge Pauline Newman – eligible since October 14, 1995
Judge Alan Lourie – eligible since August 15, 2002
Judge Timothy Dyk – eligible since May 25, 2010
Judge Evan Wallach – eligible since November 11, 2014
Chief Judge Sharon Prost – eligible since July 14, 2016
Judge Kathleen O’Malley – eligible on November 17, 2021
Judge Jimmie Reyna – eligible on January 12, 2022
The Vetting Room 
The 50-50 Senate could complicate things greatly for anyone considering senior status right now. The assumption is that the Republicans will force as many 50-50 votes as possible in order to force Schumer’s hand on everything. But will every Democrat in the senate vote “Aye” for every Biden nominee for at least two years?
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Judge Hurwitz is in his early 70’s, wouldn’t he already be eligible?
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He has not served ten years on the federal bench yet. Because he was appointed after age 60, he becomes eligible ten years after his appointment.
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Hopefully President Biden will put forth a nominee for all current appeals court vacancies by the end of the year, with a bulk by the end of the Summer recess. Here are some possible nominees, with the caveat I am sure there are plenty of just as good or better nominees I don’t know of for most of these vacancies;
DC Circuit – I would personally prefer Dale Ho (Instead of the NY southern district court) or Melissa Murray but more likely either of the following…
Abid Riaz Quershi
Anne Joseph O’Connell
Eloise H. Pasachoff
Matthew S. Hellman
Or a Latino/Latina as one has never been appointed to this court.
First Circuit;
Melissa A. Long
Erin Lynch Prata
Third Circuit – I’m afraid it will be Rebecca R. Haywood but I am hoping for a better nominee. Perhaps…
Nilam Sanghvi
Christina Swarns
Fifth Circuit;
Cedric Richmond (Unlikely but he is obviously close to Biden)
Stephanie Finley – Hopefully it will be a nominee younger.
Any number of state judges appointed by the Democrat governor Edwards over the past 5 years. All Obama district court judges would be too old.
Sixth Circuit;
Edward Stanton
Travis Randall McDonough – Unlikely as a white male but the Tennessee bench isn’t deep for Democrats.
Ninth Circuit (Currently three vacancies, probably will be additional over the next year). Also any of these other then those on the California Supreme Court that aren’t chosen, would be great for district court nominations.
Davina T. Chen
Goodwin H. Liu (I doubt he would want a second nomination fight).
Mariano-Florentino Cuéllar
Leondra R. Kruger (Almost guaranteed if she wants it).
Brian E. Nelson
Holly A. Thomas
Brigitte Amiri
Nicole Berner
Fatima Goss Graves
Catherine Lhamon
Janai Nelson
L. Song Richardson
Tenth Circuit
Keynen Jae “K.J.” ‘Wall
Stephen Six (I doubt it since he withdrew under President Obama).
Any number of state judges appointed by the Democrat governor.
Eleventh Circuit
Leslie Abrams – I think it’s pretty much first right of refusal for her but as discussed on other feeds on this website, there is no shortage of great possible nominees from Georgia, many of whom are younger.
Federal Circuit
Maryellen Noreika
Lucy Koh
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In addition, the judiciary’s policymaking arm, the Judicial Conference, recently recommended to Congress to add additional federal judgeships. Link below
Click to access 2021_judicial_conference_recommendations_0.pdf
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(https://www.uscourts.gov/sites/default/files/2021_judicial_conference_recommendations_0.pdf)
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Here are the names recommended for federal judges from The Peoples Parity Project with their approximate years of birth;
https://www.peoplesparity.org/unrigthecourts/
Leah Camille Aden (1979) – New York
Amanda Alexander (1986) – Michigan
Easha Anand (1989) – California & Washington DC
Jennifer Bennett (1982) – California
Maggie Blackhawk (1983) – Pennsylvania
Tiffany Cabán (1985) – New York
Matthew Campbell – New Mexico
Steve Choi (1989) – New York
Luis Cortes-Romero (1989) – Washington
Joanna Darcus (1986) – Washington DC
Veena Dubal (1980) – California
Rochelle Garza (1987) – Texas
Karla Gilbride (1982) – Washington DC
Becca Heller (1983)
Kalpana Kotagal (1977) – Washington D.C.
Leah Litman – Michigan. I believe she is a member of The Federalist Society.
Natasha Merle (1983) – New York
ReNika Moore (1977) – New York
Sanjukta Paul (1977) – Minnesota
Joshua Perry (1980) – Connecticut
Jaclyn Hope Prange (1982) – California
Ajmel Quereshi (1981) – Washington D.C. & Maryland
Jessica Ramey Stende (1984) – California
Allison Riggs (1982) – North Carolina
Vincent Southerland (1976) – New York
Marbre Stahly-Butts (1991) – New York
Chase Strangio (1984) – New York
Ria Tabacco Mar (1982) – New York
Franita Tolson – California
Stephanie Toti (1978) – New York
Elizabeth Wagoner (1982) – New York
Rebecca Williford (1983) – California
Janson Wu (1978) – Massachusetts
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