At the end of 2020, as the 116th Congress came to an end, it sent back around thirty judicial nominations unconfirmed to President Trump. Now, as the Biden Administration prepares to take office, it faces a critical question: how many of them, if any, should they renominate to the federal bench.
This is a question facing every incoming Administration, as the old one almost inevitably leaves some judicial nominees unconfirmed. While putting forward nominees from the prior administration can help with judicial dealmaking and efficiency, it also risks upsetting the President’s base. So far, no Administration has chosen to renominate all of their predecessor’s pending judges, instead making that determination on an ad hoc basis.
Johnson to Nixon
At the end of the Johnson Administration, for example, two Supreme Court nominees (Abe Fortas to be Chief Justice; and Homer Thornberry to be Associate Justice); one circuit court nominee (Barefoot Sanders for the D.C. Circuit); and three district court nominees (David Bress to District Court for the District of Columbia; Cecil Poole to the Northern District of California; William Byrne to the Central District of California) were left unconfirmed. President Nixon chose not to renominate any of the Johnson holdovers at the outset of his Administration, instead picking the following:
- Judge Warren Burger to be Chief Justice of the Supreme Court
- George MacKinnon to the D.C. Circuit
- Barrington Daniels Parker to the District Court for D.C.
- Judge Gerald Levin to the Northern District of California
- Judge David Williams to the Central District of California
However, in 1971, Nixon did choose to nominate Byrne to a different seat on the Central District of California, where he served until his death in 2006.
Ford to Carter
For his part, after the resignation of Nixon, President Ford largely maintained the same nominees. However, after his own loss in 1976, Ford had two appellate nominees and eight district court nominees pending before the U.S. Senate. President Carter chose not to renominate any of the ten. However, he did later nominate Richard Bilby, who Ford had unsuccessfully put up for a Ninth Circuit seat, for the District of Arizona, where he served until his death in 1998.
Carter to Reagan
At the end of the Carter Administration, the Senate left four appellate nominees and twelve district court nominees pending. On January 1, 1981, Carter appointed one of the pending nominees, Judge Walter Heen, to the District of Hawaii using a recess appointment. For his part, President Reagan declined to renominate Heen, letting his appointment expire at the end of the year. He did, however, renominate two other judges:
- I. Leo Glasser for the Eastern District of New York
- John Sprizzo for the Southern District of New York
Reagan to Bush
Perhaps because it was a transition between two Presidents of the same party, President George H.W. Bush was more open to renominating his predecessor’s nominees. At the end of his term, President Reagan left seven appellate nominees pending:
- Judith Richards Hope for the D.C. Circuit
- Stuart Summit for the Second Circuit
- Jacques Wiener for the Fifth Circuit
- Ferdinand Francis Fernandez for the Ninth Circuit
- Pamela Rymer for the Ninth Circuit
- Guy Hurlbutt for the Ninth Circuit
- Susan Leibeler for the Federal Circuit
Bush chose to renominate three of the seven (Wiener; Fernandez; and Rymer), who were all confirmed. To fill the other seats, Bush chose Clarence Thomas, John Walker, Thomas Nelson, and Jay Plager respectively.
Reagan also left ten district court nominees pending:
- Howard Levitt for the Eastern District of New York
- James McGregor for the Western District of Pennsylvania
- Adriane Dudley for the Virgin Islands
- Marvin Garbis for the District of Maryland
- Shannon Mason for the Eastern District of Virginia
- Melinda Harmon for the Southern District of Texas
- Robert Bonner for the Central District of California
- Vaughn Walker for the Northern District of California
- William Erickson for the District of Colorado
- Donald Abram for the District of Colorado
Of those ten, Bush chose to renominate five (Garbis; Dudley; Harmon; Bonner; Walker). All of them except for Dudley were confirmed. For the other seats, Bush nominated the following:
- Carol Amon for the Eastern District of New York
- Donald Lee for the Western District of Pennsylvania
- Rebecca Beach Smith for the Eastern District of Virginia
- Daniel Sparr for the District of Colorado
- Edward Nottingham for the District o Colorado
Bush also chose to renominate McGregor to a different seat on the Western District of Pennsylvania in 1990, where he was ultimately blocked by conservative opposition.
Bush to Clinton
At the conclusion of the Bush Administration, ten appellate nominees and forty two district court nominees were left unconfirmed, a significantly higher number than previous Administrations. Of these fifty two nominees, President Clinton renominated none of the appellate nominees and just two of the district court nominees.
- David Trager for the Eastern District of New York
- Joanna Seybert for the Eastern District of New York
However, later in the Administration, Clinton nominated an additional two nominees from the leftover list to different seats.
- George O’Toole for the District of Massachusetts
- Richard Casey for the Southern District of New York
Of the remaining forty eight nominees not renominated under Clinton, thirteen were renominated for federal judgeships by President George W. Bush.
- John Roberts for the D.C. Circuit (subsequently elevated to the Supreme Court)
- Franklin Van Antwerpen for the Third Circuit
- Jay Waldman for the Third Circuit (passed away before the Senate could act on the nomination)
- Terrence Boyle for the Fourth Circuit (never confirmed)
- Carlos Bea for the Ninth Circuit (Bea had been unsuccessfully nominated to the Northern District of California by H.W. Bush)
- William Quarles for the District of Maryland
- Leonard Davis for the Eastern District of Texas
- Andrew Hanen for the Southern District of Texas
- Percy Anderson for the Central District of California
- John Walter for the Central District of California
- Larry Hicks for the District of Nevada
- Ronald Leighton for the Western District of Washington
- James Payne for the Northern District of Oklahoma (jointly with the Eastern and Western Districts)
Clinton to Bush
Similar to George H.W. Bush before him, President Clinton faced an opposition Senate through his final term, and thus, a number of his appellate and district court nominees were left unconfirmed at the end of his term. Specifically, the Senate did not process seventeen appellate nominees and twenty four district court nominees before the end of the 106th Congress. In response, President Clinton appointed one of his appellate nominees, Roger Gregory to the Fourth Circuit in a recess appointment.
For his part, George W. Bush renominated three of Clinton’s appointments. Specifically, Bush renominated:
- Judge Roger Gregory for the Fourth Circuit
- Judge Legrome Davis for the Eastern District of Pennsylvania
- Judge David Cercone for the Western District of Pennsylvania
Additionally, later in his tenure, President Bush renominated an additional two stalled Clinton appellate nominees as part of an agreement with Democrats:
- Judge Helene White for the Sixth Circuit
- Judge Christine Arguello for the Tenth Circuit (nominated to the District of Colorado)
Bush to Obama
At the end of the Bush Administration, the Senate left ten appellate and twenty district court nominees unconfirmed. Of the thirty pending nominees, President Obama renominated just one: Marco Hernandez for the District of Oregon.
However, later in his Administration, Obama nominated another two of the stalled Bush nominees to the federal bench:
- Judge John Tharp for the Northern District of Illinois
- William Jung for the Middle District of Florida (never confirmed)
Incidentally, Obama also renominated three stalled Clinton appointees:
- Judge Andre Davis for the Fourth Circuit
- Judge James Wynn for the Fourth Circuit
- Judge Dolly Gee for the Central District of California
Obama to Trump
Due to a dramatic slowdown of confirmations in the last two years of his Presidency, President Obama saw 59 judicial nominees left pending before the Senate, more than any other President in recent history. This list included one nominee to the U.S. Supreme Court, seven to the courts of appeal, and forty four nominees to the district courts.
Over the course of his term, President Trump renominated sixteen of these nominees, more than any other president in the last fifty years. Specifically, he renominated:
- Judge Mary McElroy for the District of Rhode Island
- Judge Gary Brown for the Eastern District of New York
- Diane Gujarati for the Eastern District of New York
- Judge John Milton Younge for the Eastern District of Pennsylvania
- Judge Susan Paradise Baxter for the Western District of Pennsylvania
- Judge Marilyn Horan for the Western District of Pennsylvania
- Judge Robert Colville for the Western District of Pennsylvania
- Judge Stephanie Gallagher for the District of Maryland
- Donald Coggins for the District of South Carolina
- Karen Gren Scholer for the Northern District of Texas (previously nominated to the Eastern District)
- James Hendrix for the Northern District of Texas
- Walter Counts for the Western District of Texas
- David Nye for the District of Idaho
- Kathleen O’Sullivan for the Western District of Washington (announced but withdrawn before confirmation)
- Scott Palk for the Western District of Oklahoma
- William Jung for the Middle District of Florida
Trump also renominated four nominees who stalled under President Bush (not including Jung who is accounted for above).
- Thomas Marcelle for the Northern District of New York (never confirmed)
- Colm Connolly for the District of Delaware
- Thomas Farr for the Eastern District of North Carolina (never confirmed)
- David Novak for the Eastern District of Virginia
Trump to Biden
President Trump leaves office with twenty six unconfirmed judicial nominees, including one appellate nominee (Judge Raul Arias-Marxuach to the First Circuit); and 21 district court nominees. These nominees are largely focused on two states: New York, which has six pending nominees; and California, which has ten. Outside those two states, the remaining five unconfirmed district court picks are:
- Judge Barbara Jongbloed for the District of Connecticut
- Jennifer Togliatti for the District of Nevada
- Fred Federici for the District of New Mexico
- Brenda Saiz for the District of New Mexico
- Edmund LaCour for the Middle District of Alabama
Of those five, three: Federici, Saiz, and LaCour, were blocked by Democratic home state senators, and, as such, would be unlikely to be renominated in a Biden Administration. Jongbloed is a Democrat chosen by Senators Blumenthal and Murphy who cleared the Judiciary Committee unanimously before stalling on the floor. However, she’s also 61 years old and relatively middle-of-the-road. Without a Republican Administration, it is more likely that the Senators push for a younger candidate rather than seeking to renominate Jongbloed. This leaves Togliatti as the most likely contender in this group for renomination.
In addition, the New York and California groups are packages that include a number of Democrats, who could all potentially be renominated. This includes:
- Jennifer Rearden for the Southern District of New York
- Hector Gonzalez for the Eastern District of New York
- Judge Steve Kim for the Central District of California
- Judge Sandy Leal for the Central District of California
- Knut Johnson for the Southern District of California
- Shireen Matthews for the Southern District of California
In addition, Biden may look to the thirty five Obama nominees who were not renominated by Trump. Of those, many are likely too old to be considered for nomination today, but the following could be considered for current vacancies:
- Inga Bernstein for the District of Massachusetts (Bernstein turns 60 this year so she may be passed over for a younger candidate)
- Julien Neals for the District of New Jersey (will almost certainly be renominated)
- Anne Traum for the District of Nevada (will likely be renominated)
- Beth Andrus, Kathleen O’Sullivan, and J. Michael Diaz for the Western District of Washington (will likely be renominated)
- Regina Rodriguez for the District of Colorado
Additionally, the following could be considered for renomination if vacancies open:
- Rebecca Ross Haywood for the Third Circuit
- Judge Lucy Koh for the Ninth Circuit or the Federal Circuit
- Stephanie Finley for the Western District of Louisiana
- Judge E. Scott Frost for the Northern District of Texas
- Judge Irma Ramirez for the Northern District of Texas
- Edward Stanton for the Western District of Tennessee
- Clare Connors for the District of Hawaii
- Judge Suzanne Mitchell for the Western District of Oklahoma
- Judge Patricia Barksdale for the Middle District of Florida
- Judge Philip Lammens for the Northern or the Middle Districts of Florida
As a bottom line, every President since Nixon has renominated at least one of their predecessor’s failed nominees for the federal bench. As such, it would not be surprising to see at least a few unconfirmed nominees from the past two Administrations put forward again by President Biden.
About this list. The New Mexico nominees, Fred Federici and Brenda Saiz, were reccomended by the Senators. The Senators withdrew their support to protest the nomination of Amy Coney Barrett, not because of any objections to the nominees themselves.
Jennifer Togliatti of Nevada is a Republican who’s friends with Catherine Cortez Masto. Isn’t Sandy Leal also a Republican?
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Diane Gujarati (EDNY) was originally nominated by Bush 43.
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Diane Gujarati was first nominated by President Obama in 2016, and then renominated by President Trump. She was not nominated to a judgeship by President Bush.
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Speaking of the two New Mexico nominees, Fred Federici and Brenda Saiz, why shouldn’t they be re-nominated? Any nominees who have passed through the process with no objections and strong local support deserve another shot at confirmation. We all understand partisan politics; but certainly 2 nominees put forward by both home state Democratic senators should get a fair shake from a Democratic president and senate?
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Some in the Democratic party are objecting to the re-nomination of Regina Rodriguez for the District of Colorado opening. She seems well-qualified. Why is this resistance taking place?
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Most of these nominees are corporate lawyers or prosecutors. There are enough of those types on the federal bench, and there needs to be better professional and educational diversity. Look for civil rights, public defenders, labor, and plaintiff attorneys to fill these positions instead. Biden has explicitly asked senators to prioritize candidates that are not corporate attorneys or prosecutors.
Hopefully Democrats started from scratch in their search.
Just because a Trump nominee was recommended by two Democrat senators doesn’t mean they are good enough for a Biden appointment. Remember often times states with two senators from the president’s opposite party will often recommend the best nominee they can get the president of the opposite party to nominate. But if the nominee is not confirmed & now you have a future president from your same party, the search should begin again with no regard to finding a consensus nominee.
I think the best example of this from the last administration is the Eastern district of Virginia. President Trump got 3 judges confirmed to that court based on the recommendation of the two Democrat senators. All 3 men were born between 1957 – 1966 (On the older side). 2 of the 3 men were African American & one was even a federal defender. I think those were 3 fantastic nominations that two Democrat senators could get out of a Republican president but I wouldn’t want to see President Biden re-nominate any of them had they not been confirmed under the Trump administration. There are younger & more progressive options.
Actually I disagree with your viewpoint on the Trump Virginia judges. One of the Black judges that Trump nominated, Rossie Alston, was a tough-on-crime conservative. He was also extremely anti-union, working for an extreme anti-labor organization. Democrats blocked him to the Virginia State Supreme Court.
Was he the best we could get here given his age? Maybe. But that doesn’t make him even a decent nomination.
“Alston attended Averett College, now a university, and North Carolina Central University’s School of Law. He worked at the National Labor Relations Board under President Ronald Reagan and then at the National Right to Work Legal Defense Foundation. He spent several years as a private attorney before his nomination to the bench in Prince William County, first as a juvenile and domestic relations court judge and then as a Circuit Court judge. He joined the state Court of Appeals in 2009.”
Yes, that’s exactly my point. For a Biden administration, had he not been confirmed during the Trump administration, I would not even remotely consider him like suggested by the comments above. But If I had to choose between him versus your run of the mill white male, ultra conservative who would probably be a decade or more younger, I think this is the best type of nominee we could have gotten from Trump. I’ll take my chances on an older black man & hope his conscience would at least give me a punchers chance at him have some rulings during his tenure go my way versus the alternative.
Sorry, I misread your original comment. Having re-read the comment, yes you are mostly right. I still think that Judge Rossie Alton sounds closer to Clarence Thomas than a moderate, so I think we could have found someone better even with Trump.
Or just withheld their blue slips. I mean giving Trump 2 nominees would have justified withholding them for the third seat & keeping it open similar to what was done in New Jersey, Nevada & Massachusetts.