Last week, we discussed the timing of judicial nominations from the new Administration, specifically, that they were unlikely to hit the Senate until March at the earliest. Today, we’ll discuss who we can expect to see in that first batch. As we discussed, district court nominees generally arise from home state senator recommendations, which, in many states, have yet to be submitted. As such, it is likely that appellate nominees will come at a faster pace than district court nominees. The Biden Administration came into office with two unfilled appellate vacancies. Since then, an additional four vacancies have been announced. As such, we could expect to see nominees for one to six appellate seats as part of the first batch. Here’s who might be included:
D.C. Circuit – seat to be vacated by Judge Merrick Garland
Yes, technically there is no vacancy on the D.C. Circuit at the moment. However, the consensus in Washington is that Judge Merrick Garland will be confirmed by the U.S. Attorney General in February, and, will (although he doesn’t have to) vacate his seat upon confirmation. It’s also assumed that the expected nominee for this seat will be Judge Ketanji Brown Jackson. The former Supreme Court clerk and public defender was confirmed unanimously to the U.S. District Court for the District of Columbia in 2013 and is a shortlister for a Supreme Court vacancy. Given her profile, it would not have been surprising for the Administration to have been vetting her to replace Garland alongside Garland’s own vetting for Attorney General. As such, barring something unexpected in the vetting process (or the judge declining to be considered), Judge Jackson’s nomination to the D.C. Circuit will likely be in the first batch of judicial nominees announced.
First Circuit – Puerto Rico seat
The lone judge from Puerto Rico on the First Circuit, Judge Juan Torruella, passed away on October 26, 2020. The Trump Administration nominated U.S. District Judge Raul Arias-Marxuach for the vacancy in November, and, while Judge Arias-Marxuach was given a hearing, his nomination was never confirmed before the end of the Trump Administration. While Senator Lindsey Graham has suggested that the Biden Administration renominate Judge Arias-Marxuach, it’s more likely that the Administration will choose their own candidate. A strong contender would be the 40-year-old Margarita Mercado Echegeray, the former Solicitor General of Puerto Rico, and a former clerk to Torruella on the First Circuit. Echegeray would not only be the first Hispanic woman on the First Circuit, but would be young enough to be a strong future Supreme Court contender. The Administration may also strongly consider Chief Justice Maite Oronoz Rodriguez of the Puerto Rico Supreme Court, who would be the first openly gay judge on the First Circuit if confirmed.
Second Circuit – New York seats
Judge Robert Katzmann’s move to senior status on January 21, 2021, opened up a prized vacancy on the Second Circuit. Judge Denny Chin’s move on June 1, 2021 will open a second. Democrats have an embarrassment of riches when it comes to New York based appellate candidates, but, given the influence of Senate Majority Leader Chuck Schumer in the appointment, four candidates are likely be strongly considered:
- Judge Alison Nathan – The 48-year-old jurist was the youngest judge in the country when she was narrowly confirmed to the Southern District of New York in 2011. Today, the former clerk to Justice John Paul Stevens would be, if confirmed, the first openly gay jurist on the Second Circuit.
- Judge J. Paul Oetken – The 55-year-old Oetken is, like Nathan, a judge on the Southern District of New York confirmed in 2011, and was, at the time of his confirmation, the first openly gay male judge confirmed to the federal bench. Oetken also came to the bench with glowing credentials, including a clerkship with Justice Harry Blackmun.
- Judge Jesse Furman – The 48-year-old Furman joins Oetken and Nathan as a trio of young, credentialed attorneys recommended by Schumer to the Southern District in 2011. Furman is also a Supreme Court clerk (Justice David Souter) and has the distinction of presiding over the challenges to the Census Citizenship question, where his injunction against the question was upheld by the U.S. Supreme Court.
- Caitlin Halligan – The 54-year-old Halligan was also, at Schumer’s recommendation, nominated to the federal bench by President Obama in 2010. However, unlike the other nominees noted above, the former New York Solicitor General and clerk to Justice Stephen Breyer was filibustered by Republicans, and her nomination to the D.C. Circuit was never confirmed. Now, with the judicial filibuster gone, Halligan has a second chance at an appellate seat.
Of course, all four candidates above have relatively conventional resumes for appellate nominees, and liberals may seek more dynamic candidates. Two options are NYU Law Professor Melissa Murray, who testified against Justice Brett Kavanaugh’s nomination in 2018, and Director of the ACLU’s Voting Rights Project Dale Ho. Both would attract strong Republican opposition, but have more unconventional backgrounds that might motivate liberals. Furthermore, both in their early 40s, Ho and Murray could add a decade of judicial tenure over the previously mentioned candidates.
One wrinkle is that it isn’t perfectly clear if Katzmann’s seat should go to a New York nominee. When the Second Circuit was enlarged to 13 seats in 1984, both new seats were filled by President Reagan with New York judges, assigning 9 judges to New York, 3 to Connecticut, and one to Vermont. This ratio held until 1993, when Judge Thomas Meskill (from Connecticut) moved to senior status. At the time, Hispanic groups were advocating for Connecticut District Judge Jose Cabranes to be nominated for the U.S. Supreme Court. With Cabranes’ record on the bench being fairly conservative, Connecticut Senators instead pushed for Cabranes to replace Meskill on the Second Circuit. However, President Clinton already had a candidate for the vacancy, his old law professor Guido Calabresi. Seeking a compromise, and with the consent of New York Senator Daniel Moynihan, Clinton instead nominated Cabranes to replace Judge Richard Cardamone, filling a New York seat on the court, and shifting the ratio of judges on the Second Circuit.
In 1997, the Connecticut-based Jon Newman moved to senior status. In seeking to replace Newman, the Clinton Administration vetted Connecticut Attorney General Richard Blumenthal, before the latter withdrew from consideration in favor of running for re-election. Clinton then chose Robert Katzmann, a professor at Georgetown Law in Washington D.C. After being confirmed, Katzmann set up his chambers in New York, restoring the 9-3 split that was disrupted by Cabranes’ confirmation.
However, the turf battle between the two states didn’t end there. In 2000, Connecticut-based Judge Ralph Winter moved to senior status, and the Clinton Administration again prepped Blumenthal to fill the vacancy. However, Clinton never made the nomination official, and the seat remained empty when the Bush Administration came to office. President Bush, upon Schumer’s recommendation, chose a New York-based federal judge, Barrington Daniels Parker, to fill the vacancy. Parker’s confirmation reduced Connecticut to just 2 seats on the Second Circuit.
Parker took senior status in 2009, and President Obama then restored the seat to Connecticut, appointing Yale General Counsel Susan Carney. That restored the 9-3 ratio which holds to this day.
Now, with Katzmann’s move to senior status, it remains to be seen if Blumenthal, now a U.S. Senator from Connecticut, will push for the seat to be restored to Connecticut as the Carney seat was. If he’s successful in that push, Connecticut Supreme Court Justice Raheem Mullins would be an attractive pick (despite a decade on the bench, Mullins is only 42).
Regardless of who the White House picks, however, the Administration is likely to move relatively quickly on a nominee, and it wouldn’t be surprising to see a Second Circuit nominee among the first batch.
Seventh Circuit – Illinois seat
This Illinois seat on the Seventh Circuit opened on November 30, 2020, when Judge Joel Flaum moved to senior status. Similar to New York, Democrats have many options when it comes to qualified appellate nominees in Illinois. However, two judges on the Northern District of Illinois are likely to be strongly considered:
- Judge Gary Feinerman – The 55-year-old judge comes from an illustrious background. He clerked for Justice Anthony Kennedy on the U.S. Supreme Court, and two of his co-clerks, Justices Neil Gorsuch and Brett Kavanaugh, now sit on the U.S. Supreme Court. Feinerman, for his part, served as Illinois Solicitor General and a Partner at Sidley Austin before being appointed to the federal bench in 2010.
- Judge Andrea Wood – The 47-year-old Wood has served on the federal bench since 2013, when, at age 40, she was the youngest federal judge in the country. As President Biden seeks to diversify candidates for the Supreme Court, Judge Wood would be a prime candidate to elevate.
Tenth Circuit – Colorado Seat
Judge Carlos Lucero’s move to senior status off of the Tenth Circuit was only made official today, and was announced just three days ago. As such, it is unlikely that the White House would have a nominee ready for Lucero’s seat by March. However, two Colorado Supreme Court Justices would make intriguing selections:
Justice Monica Marquez would be, if confirmed, the first openly gay judge on the Tenth Circuit. The 51-year-old jurist has served on the Colorado Supreme Court since 2010 and has charted a relatively liberal path on the court.
Similarly the 50-year-old Justice Melissa Hart is also impeccably qualified, having clerked on the U.S. Supreme Court for Justice John Paul Stevens, and having replaced another SCOTUS clerk who was tapped for the Tenth Circuit, Judge Allison Eid, on the Colorado Supreme Court.
In addition to the above-mentioned appellate seats, the first batch of White House nominees is likely to include some nominees for vacancies in California, New York, Nevada, and Washington, likely renominating acceptable picks from the Obama and Trump Administrations. The White House may specifically consider the following:
- U.S. Magistrate Judge Steve Kim
- San Diego Criminal Defense Attorney Knut Johnson
- Jones Day Partner Shireen Matthews
- Wilmer Hale Partner Regina Rodriguez
- District of Columbia (assuming Jackson is elevated, opening up her seat on the district court)
- Latham & Watkins Partner Abid Qureshi, who would be, if confirmed the first Muslim Article III judge.
- University of Nevada-Las Vegas Professor Anne Rachel Traum
- New York
- Dechert Partner Hector Gonzalez
- Gibson Dunn Partner Jennifer Rearden
- King County Superior Court Judge Beth Andrus
- King County Superior Court Judge J. Michael Diaz
- AUSA Tessa Gorman
- Perkins Coie Partner Kathleen O’Sullivan