Toby Heytens – Nominee to the U.S. Court of Appeals for the Fourth Circuit

Virginia Solicitor General Toby Heytens, nominated for the Fourth Circuit, is, in many ways, a liberal counterpart to President Trump’s most notable appellate nominees: young; impeccably credentialed; and politically active.


Born on December 24, 1975, Toby Jay Heytens received a B.A. from Macalester College in 1997, where he was on the mock trial team, Seth Hattena, Mock Trial Judges College Students, Telegraph Herald, Dec. 2, 1995, and a J.D. from the University of Virginia Law School in 2000. After graduating, Heytens clerked for Chief Judge Edward Becker on the U.S. Court of Appeals for the Thirs Circuit and then for Justice Ruth Bader Ginsburg on the U.S. Supreme Court (his clerk year on the court included NYU Dean Trevor Morrison, SDNY Judge Jesse Furman, and 8th Cir. Judge David Stras).

After his clerkship, Heytens joined the D.C. office of O’Melveny & Myers as an Associate. Heytens left to become a professor at Cornell Law School, and then, in 2006, at the University of Virginia Law School, where he stayed until 2018 (notwithstanding a three year leave of absence to work in the U.S. Solicitor General’s Office). In 2018, Attorney General Mark Herring named Heytens to be Virginia’s Solicitor General, and Heytens has served in that role since.

History of the Seat

Heytens has been nominated to replace U.S. Circuit Judge Barbara Milano Keenan, who will be moving to senior status on August 31, 2021. Heytens was one of three candidates recommended by Virginia Senators Mark Warner and Tim Kaine for the vacancy on May 25, 2021. Frank Green, Senators from Virginia Recommend Three Candidates to Fill Federal Appeals Court Vacancy, Richmond Times-Dispatch, May 25, 2021. Heytens was announced on June 30, 2021.

Legal Experience

After his clerkships, Heytens started his career at O’Melveny & Myers, where, appointed under the Criminal Justice Act, Heytens represented Richard Wayne Simons, convicted of burglary in Maryland. See Peter Geier, New Trial Ordered for Burglary, Baltimore Daily Record, Nov. 2, 2004. Heytens was able to get the Court of Special Appeals to reverse Simons’ conviction, arguing that the prosecutor’s failure to disclose an inculpatory witness statement required suppression of the identification. See id.

While Heytens has spent most of his career since O’Melveny in academia, he did have two notable periods of litigation: from 2007 to 2010 in the U.S. Solicitor General’s Office; and since 2018 as Virginia Solicitor General.

During the former period, Heytens argued six cases before the U.S. Supreme Court:

Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008) – The Age Discrimination in Employment Act (“ADEA”) requires a plaintiff to file a “charge” with the Equal Employment Opportunity Commission (“EEOC”) within 60 days of the discriminatory act. This case discussed whether filing an intake questionnaire within the 60 days qualifies as filing a charge even where the agency fails to file a formal “charge” within the time limit. Heytens argued as amicus that the filing of an intake questionnaire did not qualify as a charge under the law. The Supreme Court disagreed in a 7-2 ruling by Justice Anthony Kennedy and held that the plaintiffs had met the requirement to file a charge.

Flores-Figueroa v. United States, 556 U.S. 646 (2009) – The petitioner in this case was an illegal immigrant who had used a social security number belonging to another person and was convicted of two counts of aggravated identity theft. The question raised was whether the government needed to prove that the petitioner was aware that the social security number he used belonged to another person for the conviction. Heytens argued that the government did not need to prove this element but the Supreme Court held unanimously, in an opinion by Justice Stephen Breyer, that it did.

Arizona v. Johnson, 555 U.S. 323 (2009) – The question was whether a police officer could, without probable cause, frisk a suspect during a traffic stop in the middle of a conversation about a topic unrelated to the stop. Heytens argued as amicus that probable cause was not needed in that scenario. The Supreme Court, in a unanimous opinion by Justice Ruth Bader Ginsburg, agreed that questions about unrelated topics during the temporary detention of a traffic stop did not transform the stop into a consensual encounter and that an officer could search an individual for weapons without probable cause.

United Student Aid Funds Inc. v. Espinosa, 559 U.S. 260 (2010) – In this case, Heytens argued as amicus in favor of a lender, arguing that the lender’s due process rights were violated when a borrower was permitted in discharging $4500 in loan debt in a bankruptcy proceeding without a showing of “undue hardship.” The Supreme Court, in a unanimous opinion by Justice Clarence Thomas, held that the failure to find “undue hardship” was mere legal error and did not rise to a due process violation.

Maryland v. Shatzer, 559 U.S. 98 (2010) – This case involved an inmate who had been questioned in 2003 regarding allegations of sexual abuse of his child, and had invoked his Miranda rights at the time. The inmate was subsequently questioned in 2006 by a different detective who was unaware of the previous invocation. The question before the Supreme Court was whether the statements made in the 2006 confession should be suppressed due to the 2003 invocation. Heytens argued as amicus that they should not be suppressed and the Supreme Court, in a unanimous opinion by Justice Antonin Scalia, agreed.

Dolan v. United States, 560 U.S. 605 (2010) – The question in this case was whether the 90 day time limit to award restitution under the Mandatory Victims Restitution Act was jurisdictional, with Heytens arguing that the district court could still award restitution outside the limits. The Supreme Court agreed in a 5-4 ruling by Justice Stephen Breyer.

During his time in academia, Heytens managed the University of Virginia Law School Supreme Court Litigation Clinic and also argued one case before the U.S. Supreme Court:

City of Hays, Kansas v. Vogt, 584 U.S. ___ (2018) – Heytens represented the City of Hays, Kansas, in arguing that the Fifth Amendment rights of a former police officer were not violated when compelled statements were used during a probable cause hearing. The Supreme Court did not decide the case, instead dismissing the petition for certiorari as improvidently granted after oral argument.

As Virginia Solicitor General, Heytens serves as the Commonwealth’s top appellate lawyer and has argued three more cases before the U.S. Supreme Court:

Virginia Uranium, Inc. v. Warren, 587 U.S. ___ (2018) – In this suit, Heytens defended Virginia’s ban on uranium mining against a pre-emption challenge under the Atomic Energy Act. The Supreme Court ultimately upheld the Virginia ban in a 6-3 decision, with Justice Neil Gorsuch writing for a plurality of three justices in the controlling opinion.

Virginia House of Delegates v. Bethune-Hill, 587 U.S. ___ (2019) – This case arose as a challenge to “racial gerrymandering” in the redistricting of state house districts in Virginia. After a lower court panel struck down 11 districts, the Solicitor General’s Office declined to appeal, and the Virginia House of Delegates (then controlled by Republicans) filed an appeal. The Supreme Court dismissed the case in a 5-4 opinion by Justice Ruth Bader Ginsburg on the basis that the Virginia House of Delegates lacked standing to appeal.

Mathena v. Malvo – In this case, Heytens sought to reinstate sentences of life imprisonment against D.C. sniper Lee Malvo, vacated by a lower court due to prior Supreme Court precedent regarding life in prison for minors. After argument, the Supreme Court dismissed the case without decision due to an intervening change in law in Virginia.

In addition to his work before the U.S. Supreme Court, Heytens has defended Virginia’s coronavirus restrictions against legal challenges. See, e.g., Denise Lavoie, Virginia Defends Coronavirus Restrictions in Church Lawsuit, A.P. Int’l, May 7, 2020. In other notable matters, Heytens successfully argued before the Virginia Supreme Court that the risk of violence justified a weapons bar on a gun rights rally, see Denise Lavoie, Virginia’s Highest Court Upholds Weapons Ban at Gun Rally, A.P., Jan. 17, 2020, and defended the legality of removal of a Robert E. Lee statue from Richmond. See Adam Klasfeld, ‘A Matter of Racial Equality’: Virginia’s Solicitor General Urges Top Court to Affirm Ruling Allowing Removal of Robert E. Lee Statue, Newstex Blogs, June 8, 2021.


Having been an academic for most of his career, Heytens has written a number of articles discussing developments in the law. Some of his writing is summarized below:

The Constitutionality of Blaine Amendments

As a law student in 2000, Heytens argued in a note that Blaine Amendments, amendments in state constitutions that bar public money from being spent to benefit religious institutions, are constitutionally suspect under the Equal Protection Clause as they discriminate based on religion. See Toby J. Heytens, School Choice and State Constitutions, 86 Va. L. Rev. 117, 140 (February 2000). Heytens details the anti-Catholic animus underlying many of the amendments and suggests that any effort by states to restrict public money in a voucher program from going to religious schools would likely run afoul of the Equal Protection Clause. See id. at 153-54.

“Transitional Moments”

Heytens has been particularly active in writing about the issues and problems that arise in applying changes in the law. In 2006, Heytens wrote on the application of changes in criminal law and precedent on cases that are pending during the “transition.” Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L.J. 922 (March 2006). Heytens criticizes traditional views of “forfeiture” in the criminal context as unduly restrictive, arguing that we shouldn’t penalize criminal defendants from making legal arguments that were not viable at the time that the defendant was initially convicted. See id. at 942-43. In 2012, Heytens further discussed retroactivity in the law and potential remedies when the law changes. Toby J. Heytens, The Framework(s) of Legal Change, 97 Cornell L. Rev. 595 (March 2012).

Reassignment on Remand

In 2014, Heytens authored an article discussing the rare practice of appellate courts reassigning decisions to different district court judges after reversing the original opinions. Toby J. Heytens, Reassignment, 66 Stan. L. Rev. 1 (Jan. 2014). Heytens suggests that the practice be more clearly delineated through local rules that are broadly applicable to reassignment decisions rather than having the decisions be made on a case-by-case basis. See id. at 54.

Political Activity

Heytens has an extensive record of political contributions, almost exclusively to Democrats. Recipients of Heytens’ contributions included the Presidential campaigns of Barack Obama, Hillary Clinton, and Joe Biden, as well as Gov. Ralph Northam, A.G. Mark Herring, and Rep. Abigail Spanberger.

Overall Assessment

With excellent academic credentials, and a record of strong appellate advocacy, Heytens can be deemed well-qualified for a seat on the Fourth Circuit. Nonetheless, he may draw opposition based on his academic writings, as well as his litigation history (including his defense of the Lee statue removal and the firearms ban) and his political contributions.

However, barring any unexpected developments, Heytens will likely be confirmed in due course. On the bench, Heytens is expected to pad up the Fourth Circuit’s aging center-left majority.


  1. Solid pick. I know some will not be happy because he is a white male on a court short on women & minorities, but as a black man I care more about what kind of judge he will be first & foremost. From his clerkships, to his writings, to his political donations, to his career he seems to be a young progressive. While I do not agree with the process in which led to his selection (Virginia Senators Mark Warner and Tim Kaine recommending Toby Heytens along with two district court judges born in 1960 & 1963, obviously too old for a court of appeals appointment), I do agree with the outcome. He also passes the most important test which is young & liberal enough but with nothing n his background that would seem to get any opposition from Senators Manchin or Sinema in this 50/50 senate.


    • So I would be willing to go along, if there is evidence that he is a progressive. But there isn’t. His political donations are evidence that he is a politically active Democrat, but he could just as easily be a moderate Democrat. None of his writings or jobs suggest his genuine viewpoints. There is no evidence to suggest that he would be like Judge Pam Harris.


      • I certainly agree there were more progressive options then Toby Heytens, but that doesn’t necessarily mean it is not a good pick. President Biden is a moderate left of center politician but seems to be the most liberal president since FDR from my perspective. Brown vs. Board of Education was decided by 9 white men, 2 of whom reports say initially did not want to vote with the majority. Chief Justice Warren was able to persuade the court to make a unanimous decision. Reports say Chief Justice Roberts initially was going to vote Obama Care down but Justice Kagan had some influence in changing his mind.

        I don’t think a judge Toby Heytens will have much of a different voting pattern from a judge Pam Harris at the end of the day. But if he can have more influence on the other 2 judges in a 3 judge panel or in an en blanc vote in front of the entire circuit then I think he could be as effective, if not more effective then a more progressive nominee in the long run.


      • Jim, it is highly unlikely that a Democratic President will nominate a white male to the Supreme Court in the near future unless a GOP Senate would be willing to confirm one.
        If Heytens is really a progressive, a GOP Senate won’t be confirming him regardless.


  2. Seems like there isn’t anything here which would dissuade any Democrats from voting in favor of confirmation, especially considering that Kaine and Warner were the ones recommending him. If any republicans voted in favor though, I’d be surprised considering the history of political donations. Harris will break the tie in all likelihood.


    • Heytens isn’t that controversial at all, frankly. I suspect Graham, Collins, and Murkowski to vote for him.

      If he bombs the committee hearing, and no GOP senators vote for him, perhaps Manchin might use the opportunity to tank this nominee. But I can’t see it.


  3. There’s so much talent in state Solicitor General offices. The GOP has tapped into this talent well in the past while Democrats have largely ignored people in these positions. Hopefully Noah Purcell, Michael Mongan and Ryan Park get good looks for appeals court judgeships if there are openings in Washington, California and North Carolina.


    • Good point. A lot of focus is usually reserved to Solicitor Generals of the Us such as Stanley Reed, Robert Jackson, Thurgood Marshall & Elena Kagan that were elevated to the US Supreme Court but state Solicitor Generals are a good place to look for federal judges as well. Perhaps Toby Heytens is the first of more to come from the Biden administration.


    • I would look to the deputies in the state Solicitor General offices and state attorney general offices (particularly in the civil rights and consumer protection divisions). Ryan Park would be a good choice, but the other two less so. But I think the Democrats should look for more diversity in background (that is those who are not log time corporate lawyers or prosecutors before their time in the state AG office) and in race/gender.

      There are some things that we should take from the GOP (picking much younger judges), but there are other constraints that the GOP doesn’t have. Corporate law partners and AUSAs are way overrepresented in the judiciary and the Democrats should exclude them in their search for judicial candidates.


      • I don’t know as much about the deputies in the state Solicitor General offices and state attorney general offices but I’m sure they have some good talent too.

        I completely agree about taking a page out of the GOP playbook for judicial nominees, particularly looking for younger nominees that are progressive. I wouldn’t completely exclude corporate law partners and AUSAs because that alone doesn’t mean they aren’t aligned with progressive views & if they are, they would most likely be easier to confirm in a 50/50 senate then a fire breathing liberal. But I would give any recommendation from a state with two Democrat senators more scrutiny with that background.


    • “Why not Mongan for one of the CA seats? He’s even younger than Heytens and just won the ACA case at the Supreme Court. I think expecting someone like Jenny Martinez to be nominated to every seat is only setting oneself up for disappointment.”

      Why not Mongan? (and I didn’t like the pick of Heytens either) He’s likely to be a younger version of Merrick Garland. That’s fine for arguing a case in front of an extremely right-wing Supreme Court, but it is wholly insufficient to advance a progressive or even a center-left legal agenda.

      Before we had FDR’s New Deal Supreme Court, we had Harlan I, Holmes and Brandeis dissents. Before we had the Warren Court in the 1960s, we had Hugo Black and William Douglas framing that agenda in dissent after dissent. Before we had the conservative court of the 1990s and 2000s, we had Rehnquist filing solo dissents in the 70s and 80s. Before we had this extremely right-wing court thanks to Trump, we had the biting dissents from Scalia and Thomas.

      As well discussed in the John Michaels article below, we need to find judges who are in this vein to expose this right-wing fake law, not to make peace with it. And those people often do not come from the legal establishment. Biden has already started with Myrna Perez and Jennifer Sung. Keep nominating them, and keep at it even if some nominees get rejected. Manchin won’t reject every one of them.

      Jenny Martinez wouldn’t be a bad choice, especially as a Hispanic female. As to who else could be good choices for the 9th Circuit Cali seats, here are some ideas:

      Linda Lye (former labor lawyer and ACLU, now general counsel CA Dept of Environment)

      Jennifer Bennett, from Public Citizen

      Bertrell Ross (Black law prof at UC Berkeley)

      Jon Michaels (law prof at UCLA)

      Attorneys from the Cali ACLU both NoCal and SoCal

      Attorneys from the environmental public interest groups, NRDC, Earthjustice, etc (many who have argued in the circuit courts and know administrative law well)

      Attorneys from SoCal immigration public interest groups


      • I must admit I like any of those picks mentioned above for any or all of the 3 California 9th circuit vacancies. I would be more confident in any of them being nominated if The White House kept its original word in them starting the nomination process for circuit court nominees but it seems they have already gone back to deferring to home state senators in states with a Democrat senator. With Senator Feinstein as the senor senator I have little faith in her nominating any of these judges. Maybe with the addition of Senator Alex Padilla we may have a chance on him pushing her in the right direction.


  4. Here’s a good article from 2018 by Professor Jon Michaels about the kind of judges Democrats should appoint.

    The part about *transformative dissent* is the key point for me; I don’t want judges like Justices Kagan or Breyer who try to narrow right-wing decisions, I want judges who will in clear and certain terms rip to shreds the far right fake law from some of these Trump judges and Justices. If you are not willing to write a harsh and nasty dissent, you should not be appointed. I also want judges who will lay out the progressive legal framework (in these dissents) which may be enacted 20 or 30 years from now.

    Secondly, we should not shy from appointing progressive law professors who would be most likely to write these kinds of dissents. And keep appointing them even if one or two are rejected by Manchin. I would hope that a law professor is appointed for at least one or two of the California 9th Circuit seats.


    • GREAT article, particularly the fourth point on critical mass. While I personally am fine with left of center judges that will most likely vote the same way as more liberal judges, I do agree that Democrats need to fight harder when they appoint liberal judges. Victoria Nourse is one thing (Blue Slips were still in effect for court of appeals in Wisconsin back then), but no reason Goodwin Liu isn’t sitting on the 9th Circuit with California having two Democrat senators, or Caitlan Halligan isn’t sitting on the DC Circuit.


      • Actually they could have had Victoria Nourse if Obama had acted fast enough. The Wisconsin senators (both Dems at the time) had sent their recommendations in January 2010, which was plenty of time to nominate and confirm Nourse before the end of the year (when Feingold was defeated by Ron Johnson).

        I am not okay with nominating a bunch of young Merrick Garlands anymore with a Dem Senate. We need far more progressive judges to push the legal spectrum and dissent hard against this right-wing fake law, and not go along with the far right. Basically we need to find judges who could be the liberal versions of Scalia and Thomas in their early years, or the next Reinhardts and Berzons. (Sotomayor seemed like she was going to be this dissenter early in her career but has really backed off in the past few years.) I understand the strategy of Breyer or Kagan on the Supreme Court (although I think it is a hopeless one), but there is no reason to follow that in the lower courts.

        Historically these dissenters have not come from the legal establishment, but were a little bit outside of it, at least in some ways. You’re not going to get this kind of a judge from someone who followed the path of most of the traditional candidates., i.e. law review at a top law school, clerk for an establishment minded appellate court judge like Garland, clerk at the Supreme Court. Then work in Big Law for a few years/as an AUSA and/or in the WH Counsel’s office/OLC/Solicitor General’s office, etc.

        It’s why candidates like Myrna Perez, Jennifer Sung, and Jia Cobb were such a huge breath of fresh air. We should keep nominating people like this (including a few academics) and keep at it even if a few get rejected.


  5. Well you certainly will not get any disagreement from me regarding judges like Myrna Perez, Jennifer Sung, and Jia Cobb. I think they are phenomenal choices. I guess where we disagree is that a corporate lawyer can’t be good too. They probably aren’t too many but I wouldn’t go far enough to say none can be.

    If I was a senator in a state with another Democrat senator I would push for nominees like any of those 3 you mentioned but if my fellow senator recommended a nominee from a corporate background, I would vigorously look into their background before signing off without just outright saying they are disqualified. Now obviously that wasn’t done in the last two New Jersey selections but to be honest Angel Kelly from Massachusetts was born in 1967. I find it hard to believe there isn’t another African American and/or women progressive lawyer in the state at least a decade younger & Elizabeth Warren & Ed Markley are two of the more progressive senators we got. So my point is I’m not sure any senator has their hands clean enough to threaten to tank another states nominee. I would have probably out right rejected Christine O’Hearn if I was the White House though. I agree with you on her, she seems to be an atrocious pick.


    • So, I’m not saying all corporate lawyers are incapable of being fair or progressive judges, what I’m saying is that they are so overrepresented that it is time to look in a different direction. In addition those who took a traditional path are likely to have the same deference to the courts that have been hijacked by the right-wing. The attorneys who are outside of that traditional path are far more likely to call this bullshit for what it is and shake things up.

      I’m sure that there are some corporate lawyers/AUSAs who have quite progressive views and are going down this track so they have a better chance to be confirmed. In fact I’ve read that until the last couple years law professors at some top universities have told their top students not to do liberal public interest work because it would hurt their chances at getting a federal government position or a judgeship (because it clearly had in the past). It is important to change those incentives, like Biden has done this year.

      This is also why we should be a little patient regarding the speed of some of these nominations by Biden. You are asking people to apply for judgeships who never were seriously considered in the past and many who probably never envisioned themselves as a federal judge. Getting such people to submit applications and getting others to rally on their behalf will take a few months. What should be done is that for any possible district court retirement in the next 2 years, senators should be taking applications now.


      • Oh, yea not THIS I agree with 100%. And your absolutely correct on the last point to. Honestly Every Democrat senator should start the process & have at least three nominees for each district court judge that can take senor status before January 3, 2023. And The White House should already have three possible nominees for all court of appeals judges in that same category as well.

        I am not sure if its possible or not but I honestly would begin the FBI background checks on any probable court of appeals nominee for a future vacancy. When Beverly Martin announced she was taking senor status on September 30, 2021, President Biden should have already had started the FBI background checks on Leslie Abrams Gardner (Most likely the probable nominee) early in the administration. If the FBI needs a real reason to start the process, just tell them you reconsidering her for the DC Circuit vacancy.

        Democrats need to work as though they are one Patrick Leahy or Bernie Sanders heart beat away from losing hte majority because sadly they are.


    • So I don’t accept that Leslie Abrams Gardner is the best we can do for the Georgia 11th circuit seat. I think Fred Smith Jr. and Lauren Sudeall, two young Black professors with Supreme Court clerkships and public interest experience, are both far better selections.

      If Stacey Abrams makes a huge push for her sister, Biden and the Georgia senators (who owe their election to Abrams) will certainly go that way. But she’s running for governor and probably doesn’t want to risk that kind of nepotism to be public.


      • I am not familiar with Fred Smith Jr. and Lauren Sudeall but I am sure they are fantastic possibilities as I know Georgia has a wealth of talent for a Democrat president to chose from. Particularly after 4 years of Trump appointees, 8 years of G.W. Bush appointees & 8 years of Obama deal making thrown in between (I am still fuming at Natasha Perdew Silas & Linda T. Walker not getting a hearing & instead we get a 64 year old court of appeals Julie E. Carnes who then retires 4 years later to allow Trump to appoint her successor, Michael P. Boggs (Thankfully he was blocked by the Democrats) & Mark Howard Cohen).

        As for Leslie Abrams Gardner, I think she would be a phenomenal nominee even without her sister. She was confirmed 100 to 0 by the US senate, had a very good ruling in an election case last year & is young being born in 1974. But at the end of the day she most likely will get first right of refusal as Biden, Warnock or Ossoff would not have won the state without her sister.

        I wouldn’t worry about the nepotism claim. I am sure she is more qualified then Senator Manchin’s wife who was confirmed by a voice vote to her position earlier this year, David Bunning when he was confirmed to be a district court judge while his father was a sitting US senator of Kentucky or Justin R. Walker (Basically Mitch McConnel’s side kick) confirmed to the district court & then DC Circuit in less then a year. As long as Georgia doesn’t “New Jersey this up”, I’ll be fine with whoever the nominee is… Lol


      • I fully agree that Leslie Abrams Gardner is quite qualified on her own right unlike several of the right-wing embarrassments that you listed. But I don’t see the 100-0 confirmation to be an asset. If Ted Cruz votes for a Democratic nominee, I’m a little concerned frankly.

        Also Fred Smith Jr. appears to be around 40 yrs old and Sudeall is around 43. Both years younger than Gardner.


      • Byron Conway appears to be another name to watch for the Georgia federal judicial vacancies. He appears to be born in or around 1987.

        Staley-Ngomo appears to be under consideration for one of the California federal judicial vacancies & she appears to be even younger. I will put the article link below…


      • Byron Conway would be an excellent selection for a GA district court selection. But his appellate experience seems thin for the 11th Circuit.
        There are 6 openings on the Southern CA district court and Staley-Ngomo should be one of those nominees.


    • I saw that but political contributions are just part of the game in this day & age. I don’t see it being an issue at all. I think the Republicans know a white male, left of center nominee is probably the best they are going to get for a court of appeals. He will probably get the usual 3 Republican votes & if I had to guess I would say probably at least 5 along with all 50 Democrats.


    • I have my doubts Graham is going to vote no based on political contributions, as the next nominee for this seat will likely be even less palatable to him. However I could easily see him voting no if Heytens’ comes off as evasive or dishonest about these or other matters during the hearing.

      However if every GOP senator votes no, Heytens would be a candidate for Senator Manchin to tank the nominee and “show his independence”. It appears that Manchin was stung a little by the criticism on his no vote on Neera Tanden being racist/sexist (although it was really unfair to Manchin, I don’t think it had anything to do with that.). But I don’t know what his public reasoning would be for doing so.

      I don’t agree with Dequan that at least 5 GOP senators will vote for Heytens, he will (at most) get the three usual ones.


      • Toby Heytens is having his hearing in the senate judiciary committee this morning & senator Grassley just gave him a GLOWING endorsement. He basically said what I wrote above almost word for word, stating this was the best nominee Republicans can expect from a Democrat president in a state with two Democrat senators. We will see which one of us end up being right but after today not only do I expect him to be confirmed with at least 55 votes, i would probably say the final YEA votes will be closer to 60 then 55.


  6. Yeah, I’m not sure that is a good thing that he is getting GOP support though. If Toby Heytens was the best that the Grassley could expect, that means that we could have done a LOT better than Heytens. Especially given that there is little evidence that he is a progressive.

    It’s the same thing with Leslie Abrams Gardner. That she got confirmed 100-0 makes me quite concerned, and I would prefer someone clearly more progressive.


    • i wouldn’t worry too much if a nominee gets 60 plus votes. It’s strategic. The Republican’s know a white male solicitor general is probably the best they can get for an appeals court nominee. RBG was confirmed 93-3. It happens sometimes.

      These nominees are vetting so thoroughly that mistake picks are more rare then not. I agree with you there are more progressive nominees in Virginia but at the end of the day, I doubt Toby Heytens judicial record will be much different then Myrna Perez or Jennifer Sung. The same with Leslie Abrams, albeit I must admit your suggestion of Fred Smith Jr. and Lauren Sudeall would be well welcomed. At the very least I hope they, or like minded nominees are nominated to the district court vacancies.


  7. Pingback: Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast | The Vetting Room

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