Here Come the Retirements?

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

7 Comments

  1. 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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  2. 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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  3. 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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