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
Whyis it that Garland will not be required to vacate his seat?
One of the quirks of lifetime tenure. Judges can theoretically hold multiple government posts without vacating their judgeships. In practice though, it’s fairly certain that Garland would vacate the seat upon confirmation.
Interesting; are you aware of this ever happening in recent history? I guess it theoretically means you could hold judgeships on multiple courts, too?
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Technically, yes, you can. It pretty much never happens though. It’d be an interesting case if, for example, a circuit judge was confirmed to the Supreme Court, but declined to vacate their circuit seat.
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Garland officially retired on March 11, 2021.
With GOP input for confirmations in the Senate sidelined for now due to the new senators in Georgia, Biden has asked for professional diversity for judicial picks. Biden has also rejected giving an ABA a veto, due to their long history of giving low ratings to those who are not corporate lawyers.
That means far fewer selections from big corporate law firms and far more from civil rights/pro-consumer/liberal organizations, labor lawyers, liberal law professors, public defenders and other non white collar criminal defense lawyers.
I would expect Rodriguez for the First Circuit, Murray and Ho as the two for the Second Circuit and someone in that vein for the Seventh Circuit. There are several top notch professors in Chicago area law schools who would be great choices for that selection.
Ketanji Brown Jackson is most likely the DC Circuit nominee, but Howard Dean Danielle Holley Walker would make for a fantastic nominee as well.
Also there is little chance that Biden will renominate Trump picks in any blue state.
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Here’s another name being considered, ACLU Voting Rights lawyer
Adriel I. Cepeda Derieux (link is in Spanish). It is looking like that Biden is going to try to avoid nominating bland corporate lawyers wherever possible.
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DC Circuit Court Judge David Tatel is taking senior status as expected. I think Judge Jackson will likely be nominated for the Garland vacancy, but someone else will be considered here. Also expect Judith Rogers, who is 81 to go soon as well.
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I’m not sure that Murray is confirmable in a 50-50 Senate–her writings on abortion and her podcast are likely to be much more controversial than anything Goodwin Liu ever wrote. I expect Nathan to get Katzmann’s seat and one of Ho, Furman, and Murray to get Chin’s. Oetken has the biglawiest background, is a white guy, and is the oldest by seven years so I’m not confident he’ll get elevated.
For the Seventh Circuit seat, Illinois uses merit selection, which will heavily favor an NDIL judge. Feinerman is one of the most prominent liberal district judges in the country (like Furman, Nathan, and Oetken) and Wood is one of the few young black women on a major district. I expect both to be elevated, one for Flaum and one for Rovner. If there’s a third seat that opens (Diane Wood) I agree a prof would be likely, maybe John Rappaport or Jennifer Nou from UChicago.
I don’t expect a lot of big lawyers for circuit courts, more elevations than anything, but for district courts most will be from private practice. There just aren’t very many fed judge-plausible public interest lawyers in most states (e.g. most ACLU chapters are tiny), though I expect a higher ratio of of PDs and state gov attys to AUSAs.
Illinois uses a merit selection process for District Judges. Durbin has explicitly stated that the process for circuit court nominees would begin from the White House.
Rappaport and Nou are far better choices for 7th Circuit than Feinerman or Andrea Wood. Wood isn’t bad, her prosecutorial experience is primarily against corporate criminals. But I’d also consider suggesting a nominee from one of the top (non white collar )criminal defense, labor, civil rights, or plaintiff law firms in Chicago.
As far as the district court nominees (and even circuit court ones), look to the federal public defenders and law professors. There are civil rights and plaintiff lawyers everywhere. There’s plenty of talent there. If you need to, allow consideration of candidates who grew up in a particular area, not just those who practiced law there.
And we also need academic diversity, an attorney shouldn’t have to be on a law review at Harvard or Yale or clerk for a federal appellate judge to be considered. There are plenty of qualified candidates in every state that are not corporate lawyers or prosecutors. Corporate lawyers and prosecutors are severely over represented on the federal judiciary and we do not need any more judges with a corporate lawyer or criminal prosecutor background (unless it was just for a handful of years early in their career.) A clear exception can be made for prosecutors who mostly prosecuted financial crimes.
Biden should also disregard the ABA ratings, there are plenty of highly qualified public interest attorneys who would get “not qualified” ratings from the ABA because they didn’t practice a sufficient amount of corporate law. A couple NAACP attorneys that Obama wanted to appoint to the federal bench were rated “not qualified” by the ABA. An United Steelworkers attorney (an African-American female) in Pennsylvania running for a PA appeals court position was rated “not qualified” by the state ABA even though she had tried many cases in the Third Circuit Court. Their official reason was that she hadn’t tried enough cases in the PA judicial system, but it is likely that the real reason was that she was a labor lawyer.
I’m quite disappointed with the first set of selections. Some of them are good, some of them are ok but not optimal. But several are not good at all.
Julian Neals and Florence Pan are simply too old for a district judge selection. Nominees under 50 should be prioritized (unless they are an incredibly ). On top of it Florence Pan has been a life long criminal prosecutor. Awful nominee.
Regina Rodriguez, a corporate lawyer and a former prosecutor is an absolutely atrocious selection in particular. Honestly I don’t think you could have done worse if you picked a Trump nominee. Hopefully Republicans and progressives form an unholy coalition to reject this nominee.
Even one of the best ones, Margaret Strickland from New Mexico, wasn’t even the best choice in her small law firm. Her partner, Mollie McGraw, with ties to the ACLU and ACS, would have been a far better choice.
Margaret Strickland seems to be just as progressive as her law partner Mollie McGraw, but without the association to the ACLU which would probably guarantee all but 2 or 3 Republicans voting against her nomination at best. Plus she is younger then Mollie McGraw by a year or two so she seems to be the better of the two choices, particularly in a 50/50 senate.
A lot of these names have been bypassed.
Ya think? Biden has made it very clear to D senators that they are to prioritize public interest attorneys who are extremely underrepresented in the federal judiciary and not corporate attorneys or criminal prosecutors who are extremely overrepresented. Nearly all of the listed names fit the latter category and/or are simply too old.
Most of the senators have complied, but there are few (e.g. Bennet, Warner, utterly corrupt Bob Menendez who should be expelled from the Senate) who are resisting and continuing to nominate really shitty candidates. I hope Dana Remus starts to lay down the law with these senators in solidly blue states, like Christopher Kang tried to in the Obama admin.
As such, I think this blog should come up with a new list of projected names for open seats. I don’t think any of the traditional legal prognosticators had Eunice Lee, Myrna Perez, Veronica Rossman, or Jennifer Sung for circuit court seats, because they had biased views about who would be selected. KBJ, Gelpi, and Heytens were the ones that were standard selections. And I suspect that the Biden admin didn’t really want Heytens.
Senators Kaine & Warner’s recommended Toby J. Heytens & district court judges Arenda L. Wright Allen (Born 1960) & Mary Hannah Lauck (born 1963) for the 4th Circuit. There was no chance of the two district court judges being nominated to the Court of Appeals with their ages. I am fine with Toby J. Heytens as his record seems to be good & he is 45 so he should serve for decades. But if any other senators pull a stunt like that, The White House should send the list back for additional names.