We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. Last week, we covered the states in the Northeast. We move on to the Atlantic Coast.
Third Circuit
Court of Appeals
The fourteen judgeship Third Circuit, covering the states of Delaware, New Jersey, and Pennsylvania, has ping-ponged between narrow majorities of Republican-appointed and Democrat-appointed judges over the last two decades. Nonetheless, it has maintained a reputation for collegiality and moderation. Currently, the court has four judges appointed each by Presidents Bush, Obama, and Trump and two judges appointed by President Clinton. The Court has one vacancy for President Biden to fill, to be vacated by Clinton-appointee Theodore McKee upon confirmation of his successor. With McKee’s announcement coming just a couple of weeks ago, a nomination will likely not be made until October or November at the earliest.
Other than McKee, two judges are currently eligible for senior status. Chief Judge D. Brooks Smith, a moderate appointed by President Bush, has been a federal judge since 1988, has been eligible for senior status since 2016, has announced his selection as Penn State Law’s jurist in residence, and will end his tenure as Chief on December 4, 2021 (his 70th birthday). All of these signs suggest that Smith will either take senior status or retire upon the conclusion of his term as Chief, but this is, by no means, guaranteed. The other eligible judge is Clinton-appointee Thomas Ambro, who has made no indications that he plans to vacate his Delaware-based seat.
Furthermore, two more judges become eligible for senior status next year. Bush appointee Kent Jordan, based in Delaware, becomes eligible for senior status on October 24, 2022, and may choose to vacate his seat at that time. Obama appointee Joseph Greenaway has been a federal judge since 1996 and may choose to vacate his New Jersey based seat upon eligibility on November 16, 2022. Either way, it would not be surprising if an additional vacancy opened on the Third Circuit before the end of the 117th Congress.
Delaware
In theory, the district court in the President’s home state is unlikely to see any vacancies this Congress. However, both Judges Leonard Stark and Maryellen Noreika have been proposed as nominees to the Federal Circuit, and both could also be considered for the Third Circuit if Ambro or Jordan moved to senior status. If either or both are nominated, the resulting vacancies could allow Biden to expand his impact on the local district court.
New Jersey
Due to a standoff between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no judges were appointed to the District of New Jersey in the last four years. As a result, when Biden came into office, six out of the seventeen judgeships on the court were vacant. Since then, Biden has filled two of the vacancies, with Judges Julien Neals and Zahid Quraishi. Two more nominees, Christine O’Hearn and Judge Karen Williams, are currently pending on the Senate floor, while two vacancies, both in Newark, remain without nominees.
Of the eleven active judges on the court, only one, Chief Judge Freda Wolfson, is eligible for senior status, although Judge Noel Hillman will hit eligibility on December 22 of this year. Wolfson, a Democrat appointed to the Court by President Bush, may choose to serve out her term as Chief (in 2024), while Hillman, another Bush appointee, has made no announcements about taking senior status.
Pennsylvania
Pennsylvania is divided into three district courts: the Eastern District, based in Philadelphia; the Western District, based in Pittsburgh; and the Middle District, based in Harrisburg. Traditionally, Pennsylvania senators divided judicial nominations on a 3-1 ratio, with the White House appointing one judge of the opposing party for three of their own party. Examples of cross-party appointments include Judges Yvette Kane and R. Barclay Surrick under President Clinton; Judges Legrome Davis, Timothy Savage, David Cercone, and C. Darnell Jones under Bush; Judges Matthew Brann, Jeffrey Schmehl, Edward Smith, and Jerry Pappert under Obama; and Judges Susan Baxter, Robert Colville, and John Milton Younge under Trump. This tradition is expected to continue under Biden.
Currently, there are four vacancies on the Eastern District, and one vacancy on the Middle District. Pennsylvania Senators Bob Casey, a Democrat, and Pat Toomey, a Republican, opened applications for the Eastern District in January 2021 with a February 8 application deadline. They similarly opened applications for the Middle District vacancy in June 2021 with an application deadline of July 8, 2021. In the past, Casey and Toomey refrained from making their recommendations public, and, as such, no names are expected to come to light until announced by the White House.
In addition to the current vacancies, a number of judges are eligible for senior status. Specifically, Chief Judge Juan Sanchez, and Judges Cynthia Rufe, Gene Pratter, and Paul Diamond on the Eastern District are currently eligible to take senior status. Additionally, in October, Judge Robert Mariani on the Middle District becomes eligible for senior status. Judge Christopher Conner of the Middle District also reaches eligibility on October 25, 2022. In contrast, the Western District is unlikely to see any vacancies open this Congress, as the earliest any judge reaches eligibility is in 2024.
Fourth Circuit
Court of Appeals
The Fourth Circuit Court of Appeals used to have a reputation as one of the most conservative courts in the country. However, after President Obama named seven judges to the court in his two terms, the Court underwent an ideological transformation. Today, the Court frequently divides into a 9-6 liberal-conservative divide in en banc votes. The Fourth Circuit currently is composed of Judge J. Harvie Wilkinson, a Reagan appointee; Judge Paul Niemeyer, a George H.W. Bush appointee; Judges Diana Motz, Robert King, and Roger Gregory, Clinton appointees (although Gregory was confirmed as a George W. Bush appointee, he was recess appointed to the Court by President Clinton); Judge Steven Agee, a George W. Bush appointee; Judges Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris, Obama appointees; and Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing, Trump appointees.
Of the 15 judges on the court, eight are currently eligible for senior status, and a ninth becomes eligible next year. However, despite this, only one vacancy has been announced so far on the court, with Keenan taking senior status on August 31, 2021. Biden has already nominated Virginia Solicitor General Toby Heytens to replace Keenan. After a smooth confirmation hearing, Heytens is expected to reach the Senate floor in September, with a final confirmation vote by the end of October. Given the sheer number of Fourth Circuit judges who are eligible for senior status, it would not be surprising to see an additional vacancy or two open up before the end of the 117th Congress.
Maryland
The U.S. District Court for the District of Maryland has already undergone a change in the current Administration, as Biden has named two judges to the court: Lydia Griggsby and Deborah Boardman. In addition, the ten judgeship court has a third vacancy that awaits a nomination: with Judge Ellen Lipton Hollander taking senior status upon confirmation of a successor. A fourth vacancy could potentially open next year as Judge Paul Grimm becomes eligible for senior status on December 6, 2022.
North Carolina
While the three judicial districts that cover North Carolina (the Eastern, Middle, and Western) do not currently have any vacancies, two judges are eligible for senior status, Judge Terrence Boyle on the Eastern District, an appointee of President Reagan, and Judge Max Cogburn, an appointee of President Obama. As such, there remains the possibility that additional vacancies may open in North Carolina this Congress.
South Carolina
The U.S. District Court for the District of South Carolina currently lacks judicial vacancies and only has one judge eligible for senior status, George H.W. Bush appointee David Norton. However, a vacancy may also open next year if Judge Juliana Michele Childs is elevated to the Fourth Circuit or if Judge Richard Gergel takes senior status upon reaching eligibility.
Virginia
Divided between the Eastern and Western Districts, Virginia is served by 15 active judgeships. Currently, Virginia has three Clinton appointees, one Bush appointee, five Obama appointees, and four Trump appointees, with the remaining two judgeships vacant. Thanks to swift recommendations made by Virginia Senators, both vacancies have nominees: federal prosecutor Patricia Giles; and Magistrate Judge Michael Nachmanoff. However, an additional two vacancies are scheduled to open later year, when Judges James Jones and John Gibney move to senior status. Earlier this month, Senators Mark Warner and Tim Kaine recommended U.S. Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott as prospective nominees to replace Jones on the Western District. Warner and Kaine also accepted applications to fill Gibney’s seat with a deadline of July 19, but no recommendations have been made yet.
Additional vacancies are also possible, as Judges Leonie Brinkema and Raymond Jackson on the Eastern District are eligible for senior status.
West Virginia
Despite being a small state, West Virginia is covered by two judicial districts, the Northern and Southern. Between them, the two districts have two judges appointed each by Presidents Clinton, Bush, Obama, and Trump. Of those judges, Judges Joseph Goodwin and Robert Chambers, the two Clinton appointees, and Judge John Bailey, a Bush appointee, are currently eligible for senior status. Additionally, Judge Irene Berger, an Obama appointee, joins them in eligibility next year. Given that fact, it would not be surprising if one or more vacancies opened in West Virginia before the end of the 117th Congress.
D.C. Circuit
Court of Appeals
The oft-described “second highest court in the country”, the D.C. Circuit is considered by many to be the first among equals in the federal Courts of Appeal. As currently composed, the Court has eleven active judges, four appointed by President Obama, three by President Trump, two by President Clinton, and one each by Presidents George H.W. Bush and Biden. While Biden has already named Judge Ketanji Brown Jackson to replace now-Attorney General Merrick Garland, he has a second vacancy to fill. Judge David Tatel, who has served on the court since 1994, announced in February his intent to take senior status upon the confirmation of a successor. So far, no nominee has been put forward to replace Tatel, unusual given that the D.C. Circuit does not require negotiating with home state senators before making a nomination.
Other than Tatel, two judges on the D.C. Circuit are currently eligible for senior status: Bush appointee Karen Henderson; and Clinton appointee Judith Ann Wilson Rogers. Both have been eligible for years and have declined to make the move under Presidents of both parties. While either could take senior status this Congress, it would not be surprising to see both continue to be active for a few more years.
Additionally, there is always the possibility that, if a vacancy opens on the U.S. Supreme Court, Jackson is elevated and Biden gains the opportunity to fill her seat and maintain the court’s narrow liberal majority.
District of Columbia
The U.S. District Court for the District of Columbia is the sole trial court that feeds into the D.C. Circuit. It is also a court of many firsts: the first Article III trial court to have a female judge, and the first Article III trial court to have an African American judge. Today, the 15-member court has two vacancies, both with pending nominees on the Senate floor: D.C. Superior Court Judge Florence Pan; and civil rights attorney Jia Cobb. Of the remaining judges on the court, only one, Judge Colleen Kollar-Kotelly, is eligible for senior status. Barring any moves on her part, additional vacancies are unlikely.
Federal Circuit
Court of Appeals
The Federal Circuit is the newest kid of the block in terms of federal courts, having only been created in 1982. Unlike other federal courts of appeal, which hear appeals from geographic areas, the Federal Circuit is specialized by subject matter, hearing patent cases, as well as appeals from a variety of Article I and Article III tribunals. It is also the only circuit not to see a vacancy during the Trump Administration. However, so far, only eight months into the Biden Administration, it has already seen two. The first, opened by Judge Evan Wallach’s move to senior status in May, has already been filled by Judge Tiffany Cunningham. The second will open next March when Judge Kate O’Malley, an Obama appointee like Wallach, will retire. No nominee has been named for the second vacancy so far.
There is significant potential for additional turnover on the Federal Circuit. Setting aside O’Malley, another four judges on the Circuit are eligible for senior status: Judges Pauline Newman, Alan Lourie, Timothy Dyk, and Sharon Prost. Three of the four are over eighty years old, with one, Judge Newman, being 94 (and the oldest active judge on the Federal Courts of Appeal). Furthermore, Judge Jimmie Reyna, an Obama appointee, becomes eligible for senior status next year, creating another potential vacancy. To be fair, it is unlikely that all of these seats will open. However, the last time that the Federal Circuit had so many judges poised for senior status eligibility, in the late 2000s, then President Obama named seven judges to the Court. For his part, Biden already has the opportunity to name two and will likely get at least one more vacancy before the end of the 117th Congress.
Court of International Trade
The United States Court of International Trade adjudicates civil actions arising from customs and trade laws, and its cases feed into the Federal Circuit on appeal. The Court is composed of nine judges, and, by statute, no more than five of those can be of the same political party. As a result, Presidents frequently make cross-party appointments to avoid violating this threshold. Currently, the court has four Obama appointees, three Trump appointees, and two vacancies. There are currently two-cross party judges on the court: Obama appointee Jennifer Choe-Groves; and Trump appointee Timothy Reif. Thus, Biden cannot fill both vacancies on the court with Democrats. Of the judges serving on the bench, none is close to eligibility for senior status, which makes it unlikely that additional vacancies will open on the Court in the next year.
Court of Federal Claims
After years of chronic shortages, a surge of confirmations late in the Trump Presidency brought the Court of Federal Claims down to just three vacancies by the time Biden was sworn in. Since then, a fourth vacancy has opened with Judge Lydia Griggsby’s confirmation to the District of Maryland. Of the four vacancies, two have nominees: Armando Bonilla and Carolyn Lerner. With an overwhelming majority of the court having been appointed over the last two years, no new vacancies are expected on the court after the current ons are filled.
The Vetting Room 
Pennsylvania has a wealth of young progressive possibilities to nominate if Chief Judge D. Brooks Smith steps down. President Trump was able to place some conservatives on the court so I hope President Biden looks to the progressives in the state to counter that & not look to renominate Rebecca Ross Haywood. I know it will be tempting as she was nominated by President Obama & never given a vote, but he needs to be bold with the few opportunities he will have to fill seats on this court.
I think it’s a good bet either Judges Leonard Stark and Maryellen Noreika will be elevated but I hope to the Federal Circuit instead of the third circuit. I would rather see Delaware supreme court justice Tamika Montgomery–Reeves appointed to the Third Circuit.
I’m not even going to get into how disappointing the last two nominees from New Jersey have been. I am not confident at all in the remaining two, or any additional vacancies that may occur being filed by young liberal nominees. The only good news is at least senators Menendez & Booker was able to keep president Trump from filling any of the vacancies for 4 years.
I know Representative Clyburn is high on Judge Juliana Michele Childs but she is already 55 years old. Obviously if he pushes President Biden to nominate her to the fourth circuit if a vacancy occurs, Biden owes a lot to him & will most likely do so. I just hope Biden lets Clyburn pick who he wants but try to persuade him to pick a nominee at least a decade younger.
I definitely believe the Federal Circuit will have at least 3 more vacancies during Biden’s term. He should have at least two additional nominees vetted & ready to nominate in quick succession with the ages & years of service of some of the judges on this court.
I wasn’t aware of the no more then 5 judges from the same party rule for the Court of International Trade. In that case I wouldn’t rush to fill any of the Republican seats. I would just leave it vacant for now & focus committee & floor time on other vacancies.
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As for Virginia recommendation by Senators Mark Warner and Tim Kaine, this should be a no brainier. U.S. Magistrate Judge Robert Ballou was born in 1962. Juval Scott was born in 1976 & is a Chief Federal Defender. There’s no question Juval Scott is the best choice.
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In South Carolina, I’m predicting that Michelle Childs will be nominated to the Fourth Circuit. She’s the obvious choice. I do believe that the Senators would support her unless there’s some really bad rulings or scandal that makes her unacceptable.
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I don’t see any bold progressives coming out of Pennsylvania for now. Bob Casey and Pat Toomey have a great working relationship and have consistently sought consensus nominees whom both could accept. Toomey is retiring next year and if a Democrat succeeds him, that could change. But Casey is not someone who is strongly partisan.
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Pennsylvania Senator Pat Toomey & former senator Rick Santorum tried to get president Obama to nominate David J. Porter to the Western Pennsylvania District Court in 2014 but progressives made an uproar because he was an ultra conservative. After Trump became president he nominated him to the Third Circuit instead so Senator Bob Casey couldn’t block it by with holding his blue slip. Republicans play dirty when they are in power. Democrats need to respond in kind. I will put the articles below;
https://www.huffpost.com/entry/obama-judicial-nominee-david-porter_n_5042326
https://sign.moveon.org/petitions/president-obama-dont-20
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Actually that is not really true. Toomey rejected Rebecca Ross Haywood in 2016 for the 3rd Circuit, and Casey refused to support Bibas and Porter for the 3rd Circuit (I forgot whether he supported Phipps who was less controversial). Casey and Toomey have a deal that allows senator out of power to choose one out of every three judges. So it isn’t that Casey won’t select progressives, rather every third judge appointed will be a Republican.
Casey is a moderate on social issues, but otherwise is a party line Democrat. Not a progressive, but not a troublemaker either. He is also really close to Biden personally and will likely follow his guidance for more progressive judges.
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I know President Biden has re-nominated some previous President Obama nominees that never received a vote. I hope he does not re-nominate Rebecca R. Haywood for the appeals court as we can get a nominee much younger then her (born October 12, 1968) & certainly more progressive.
Here are some possible names for any of the appeals court or district court vacancies if they chose to apply along with their approximate years of birth’s;
Christina Allison Swarns (Born 1968) – She is the same age as Rebecca R. Haywood but she seems to be much more progressive.
Dina Chavar (Born 1975)
Nilam Sanghvi (Born 1977)
Ilana H. Eisenstein (Born 1979)
Elizabeth Anne DeLosa (Born 1984)
Clayton Don Waterman (Born 1986)
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I’ve had a busy day and can’t sleep, so I’m typing.
I expect Jennifer Rearden to be nominated again in New York District Court. Kirsten Gillibrand pushed hard for her. The Trump White House was clearly unhappy to nominate her, but made her part of a bipartisan package. I don’t know if he’ll nominate Hector Gonzales again, but I wouldn’t be shocked. He was also reluctantly nominated as part of the bipartisan package that failed. Both seem to be progressive.
The package collapsed after Amy Coney Barrett’s nomination.
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Judge Robert Bruce King just announced he is taking senior status so the 4th circuit will have a second vacancy. I don’t expect any progressive from Senator Manchin.
As for Jennifer Rearden & Hector Gonzales, I too thought they would be renominated but since we have had six batches of judicial nominees & they haven’t been nominated yet, that makes me think the Biden administration might be looking for other nominees. Perhaps Biden does not want to renominate Rearden because she was acceptable enough for Trump to nominate & Gonzales was born in 1963 plus was passed over by governor Cuomo for the NY court of appeals (That states highest court) so something tells me they want a better nominee.
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I’m going to write another post on 4th Circuit nominees, but honestly this seat should be moved to Northern Virginia. West Virginia and South Carolina are overrepresented in the number of judges they have (as compared to court cases from the states), while Virginia and North Carolina are underrepresented. This is due to the population loss in West Virginia and Strom Thurmond’s power as the Judiciary committee Chair and ranking member, as well as the growth in federal court cases in Virginia and North Carolina.
Of course, Democrats can’t alienate Joe Manchin right now, so I don’t think this is going to happen. If this were a 52-48 Senate, the seat could be moved to Virginia. And I doubt the South Carolina seat will be moved because Lindsey Graham is the GOP senator who regularly votes for Biden’s nominees (perhaps this is the reason why he does so).
I think you will like the person I have in mind for the West Virginia seat.
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Yea with a 50/50 senate there is zero chance of any state getting a seat moved out to another state. I honestly think Democrats should push harder to add seats to the lower courts (Even though I personally think two seats should be added to the Supreme Court but I realize there is no chance of that happening).The data backs up adding seats to numerous courts & I could see 10 Republicans would probably go for it.
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“I honestly think Democrats should push harder to add seats to the lower courts (Even though I personally think two seats should be added to the Supreme Court but I realize there is no chance of that happening).”
It does for many circuits. California, New York, Texas, and Florida all dump a massive number of appellate cases, far more than the judges they have in their circuits. All of these states should get multiple extra judges. Nevada, Arizona, Virginia, North Carolina, and Georgia should get an additional judge. However, the 3rd Circuit and the 10th Circuit is heavily underworked. Pennsylvania and New Jersey needs one less judge, and states like Utah, New Mexico, Kansas, Delaware, and West Virginia do not need two judges, while Colorado can also lose a judge.
As far as the Supreme Court, while I would support adding additional seats there, I think the better reform is to just limit terms to 18 years starting immediately. And staggered appointment of justices in odd years. If a current Justice has not served 18 years when their term is supposed to up, then their replacement would be selected immediately but the current Justice would be allowed to serve their full 18 years. That may result in a few years with 10 or 11 justices, but eventually it would stabilize at 9.
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I have looked into the term limit idea with the Supreme Court before & could never find a law that would affect the current justices. I actually went into it assuming you could just pass a law that would limit the current justices but I have yet to see a law that would do such. If I am missing something then great, but I believe any change would only affect future justices. So term limits would still not help the current or near future situation like adding seats would. But either law would have almost no chance of passing in the senate’s current format.
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So I think you can pass a law with term limits provided that you give the Supreme Court judges life tenure somewhere in the judicial system. I would allow any termed out Supreme Court justice to be a full member of whatever Circuit of their choice except for the DC Circuit.
Also in that law, I would strip the jurisdiction of the Supreme Court to hear cases regarding this sort of judicial reform (because the current Supreme Court justices would have an obvious conflict of interest here). Any cases regarding this law should go to the DC Circuit or perhaps should not receive judicial review at all.
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Ah yea, I guess that would be a work around. But definitely a tough sell to pass through Congress regardless.
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In South Dakota, District Judge Jeffrey Viken is going Senior. The first choice of most local Democrats was ex-Congresswoman Stephanie Herseth, but she’s not interested. I can’t find a list of possible candidates, but I found a screening committee of state Democrats to do their own vetting. Presumably, they’ll present this to the Senators.
https://dakotawarcollege.com/democrat-party-vetting-candidates-for-their-second-choice-for-federal-judge/
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Two others who applied are Tracey Zephier and Sarah Collins, both have Native American ancestry.
https://www.nativesunnews.today/articles/three-seeking-u-s-district-judge-position-including-2-native-attorneys/
There is also federal defender Jason Tupman, who got his JD in 2005, and Molly Quinn, the Chief appellate attorney, who appears to be born around 1983. Although I suspect that Quinn may have no trial experience for what is a trial court.
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With Stephanie Herseth being born in 1970 & a former representative, she probably wouldn’t have run into blue slip issues so it’s too bad she is not interested.
With senator John Thune up for re-election next year in addition to his past issues with Trump, he may try to play hard ball on any nominee.
With Jason Tupman being born around 1979 & Molly Quinn around 1983, the senators may push for an older nominee on the 3 seat court & cover it as looking for more experience.
Julian Beaudion & Neil Fulton sounds like two good people to be on the 6 person screening so perhaps we will get a decent list of recommendations.
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My guess is that the SD senators may accept Tracey Zephier, born in 1973. She is recommended by the tribal organizations in the area and has largely practiced Native American law in the past few years. Although she has a bunch of donations to Bernie Sanders in 2016 and Biden in 2020.
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With the lack of Native American federal judges, I think that would be harder to block in addition to her being a female. Unless the South Dakota Republican senators are negotiating in good faith, I would go that route as well.
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Two of the three Federal District Judges from South Dakota (all appointed by Democratic Presidents) were born in the 1950’s. No one would be surprised if Karen Schreier also went Senior soon. So I see some intense negotiations going on.
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That’s why the Biden administration should get the two senators to sign off on 2 or 3 possible nominees before they chose one for this vacancy. If a second vacancy occurs over the next couple years you already have that nominee teed up.
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For the First circuit vacancy, I do hope Rhode Island supreme court justice Melissa A. Long (Born 1970) is chosen. If so, she can be added to the other 4 African American women appointed to the appeals court by President Biden plus California supreme court justice Kruger for the short list for a US supreme court vacancy.
Also Rhode Island supreme court justice Erin Lynch Prata (Born May 17, 1975) could be considered.
Rhode Island District Court judge Mary Susan McElroy (born 1965) is older then both of them but could be nominated. She is a former federal defender which may give her the age over nominees who are 5 to 10 years younger.
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Here’s an article about possible nominees for the DC Circuit.
“The group has forwarded to the White House seven possible picks for the seat, Saenz said. He didn’t identify them in comments to Bloomberg Law but said the list was a mix of men and women, each with a connection to Washington. He also said the list didn’t include Big Law partners or federal prosecutors, in an effort to keep in line with the administration’s desire to increase professional diversity on the courts.”
I wonder who is on Saenz’s list. Saenz himself would have been an excellent pick during Obama’s administration. He’s a bit too old now.
“According to multiple groups and lawyers who spoke with Bloomberg Law, the White House is believed to be considering or to have considered consumer rights attorneys Deepak Gupta, a founder of boutique appellate firm Gupta Wessler, and Karla Gilbride, a senior attorney at Public Justice.”
Gupta is by far my top choice for this seat. Gilbride would be excellent too. Perhaps nominate her to a future DC Circuit seat.
“Other names the lawyers and advocacy groups mentioned as people for the White House to consider included:
Kelsi Brown Corkran, Supreme Court director of the Institute for Constitutional Advocacy and Protection at Georgetown Law;
Loren AliKhan, the solitictor general of the District of Columbia; and
Cate Stetson, a partner at Hogan Lovells.”
Corkran and AliKhan aren’t bad at all, and perhaps consider Corkran for a future Virginia 4th Circuit seat as well.
Cate Stetson is beyond awful. She not only supported Gorsuch and Kavanaugh (prior to the sexual assault allegations), but also represented an anti-union group at the Supreme Court repeatedly (along with Neal Katyal). I don’t know who is recommending her for any appointment in a Democratic administration, but there is no chance she will be selected.
https://news.bloomberglaw.com/us-law-week/biden-takes-time-weighing-next-pick-for-d-c-circuit
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I am disappointed that the Biden administration is only considering DC area lawyers. I think this should be a nation wide search similar to GW Bush appointees. But thanks for the link to the great article. I will comment on the names mentioned in the article with their approximate years of birth;
Deepak Gupta (1977) – Great choice but politically Biden could make a better choice. We already have had a judge of South Asian descent with chief judge Sri Srinivasan. I would rather a history making judge (And even better a younger judge) such as the first Hispanic, LGBT or a disabled judge on the court. But if he was the choice I would be pleased.
Karla Gilbride (1982) – Good choice as she would keep one disabled judge on the court replacing judge Tatel with another blind judge. I would probably keep her in my back pocket in case judges Henderson or Rogers retire or if judge Brown Jackson is elevated since Gilbride could still be viable for a Supreme Court elevation even a decade from now.
Kelsi Brown Corkran (08/10/1976) – Great choice perhaps for another court. I don’t see her as a Supreme Court pick two vacancies down the line (As Biden has committed to naming a black women for the first vacancy) & only nominees who would be considered for elevation for the next decade should be put on this court by a Democrat president.
Loren AliKhan (1981) – A young solicitor general is usually going to be on the short list & I expect no different here.
Cate Stetson (1969) – Haaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa… I am laughing because I assume this is a joke. I would literally join Republicans for calls for Biden’s impeachment if this was his choice to the DC Circuit so I won’t even entertain it any further.
I truly believe President Biden could get better nominees if he expanded his search to nationwide. And my personal pick would be a Hispanic young proven progressive in the mold of Myrna Perez (But younger then her) or the same but from the AAPI community in the mold of Dale Ho (Or just pick him).
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Personally I think Gupta is an immediate candidate for Supreme Court elevation if you put him on the DC Circuit. If Biden gets a second SCOTUS nominee it will have to be one from the AAPI (or LGBT) communities. But the reason why Gupta is the right choice for the DC Circuit isn’t his ethnicity. It’s his status as the possibly the top attorney for plaintiffs and the public interest in front of the Supreme Court.
So if you want a history making LGBT judge from a different area of the country, I would suggest Fred Smith Jr from Georgia. He is 40 years old, Black, and constitutional law scholar. Alternately, you can save him for the Rogers seat.
I would be interested in knowing who is on Saenz’ list of Hispanics. I have to do further research but off the top of my head I can’t think of too many public interest Hispanics who was born after 1980 ready for the DC Circuit. One certainly is Andrew Manuel Crespo at Harvard.
BTW, what do you think of my non-California 9th Circuit list?
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Don’t get me wrong, Deepak Gupta is a great choice. I am speaking strictly political. I think Biden nominating the first Hispanic or Asian American judge to the second highest court on the court would be better politically. But that is predicated on the first thing I said which is the search needs to be nationwide, not just DC area based. Now I do think we can get a younger nominee then 1977 (5 years older then Trump’s most recent nominee) because the first SCOTUS nominee is going to be a black women according to Biden’s pledge which means the appointment to this seat would not be realistically considered until two vacancies from now. Assuming that isn’t until a second term, I think mid 50’s would be on the tail end of realistic consideration. But if the search is strictly DC area (Which I strongly disagree with) only, then Deepak Gupta is probably the best choice.
I didn’t know Fred Smith Jr was LGBT but I already thought he was a great choice for the 11th circuit should Leslie Abrams pass on the opportunity (I doubt she will pass on it however) even without knowing that. He definitely should be nominated for one of the two district court vacancies at worst. Unfortunately with Trump putting 2 judges on that court from Georgia, the only likelihood for him being put on an appeals court would be the DC circuit unless he has some specialized experience that would make him qualified for the Federal Circuit. If so he would be a great choice for that court as I expect at least 2-3 more vacancies on that court with the advanced ages of the judges.
The 9th circuit definitely needs to be split. I agree with you that there needs to be an overall reorganization of the federal judiciary but that is unlikely so I would just work on creating a 12th circuit unless they can combine the first circuit with the second. I don’t know if Republicans would agree with your proposal on California being its own circuit, particularly with it losing a congressional seat for the first time ever this year. I definitely think any state losing a judge is out the question. But definitely some good ideas you had.
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So if Biden were to get a second SCOTUS nomination, I would say the most likely departure is Clarence Thomas (leaving involuntarily). There is a chance it could be Sotomayor (Myrna Perez would be a leading contender here) or possibly Alito.
But if either Thomas or Alito were to depart under Biden, I would expect a AAPI (or LGBT) nominee. Sotomayor’s replacement likely would be a Hispanic.
So I actually wanted your thoughts about the new list of candidates I posted of potential nominees for the 9th Circ outside California on bottom of the West thread. (Please respond on that thread when you have a chance) I will try to post similar lists of candidates for the other circuits as well.
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I just responded on the 9th Circuit outside California names you mentioned on the other post.
I definitely believe if Justice Sotomayor were to retire, Myrna Perez would be the most obvious replacement. Any other second vacancy I agree would most likely be either the first AAPI or LGBT justice since you would have an African American (First vacancy) & Hispanic (Sotomayor or her replacement) justice. There’s an outside chance of it being a Native American but Biden would have to get to work on appointing some who are progressive to the appeals court to even have a realistic chance at that.
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I couldn’t find any information on the names recommended by Thomas Saenz, but here is a list of names given to The White House by another progressive group with my input, states they could be nominated for as well as approximate years of birth;
Leah Camille Aden (1979) – New York, Deputy Director of Litigation, NAACP Legal Defense & Educational Fund. She would be a good nominee.
Amanda Alexander (1986) – Michigan, Founding Executive Director, Detroit Justice Center. This would be a much better nominee then either of the two nominees already announced. Michigan has an additional district court vacancy.
Easha Anand (1989) – California & Washington DC, Appellate Counsel, MacArthur Justice Center. She would probably have a better chance of being nominated in California.
Jennifer Bennett (1982) – California, plaintiffs’-side appellate litigation, covering issues including civil rights, consumer protection, constitutional law, workers’ rights, and government transparency. Not bad but we have much better possibilities.
Maggie Blackhawk (1983) – Pennsylvania, Assistant Professor of Law, University of Pennsylvania Carey Law School. Not a bad pick for a district court vacancy but Christina Swarns would still be my pick for the appeals court vacancy.
Tiffany Cabán (1985) – New York, National Political Organizer, Working Families Party, public defender at New York County Defender Services for four years and the Legal Aid Society’s Criminal Defense Practice. Really good pick here.
Matthew Campbell – New Mexico, Staff Attorney, Native American Rights Fund. I couldn’t find his age but from his picture he looks like he could be in his mid to late 40’s. If so, not a bad pic for one of the two vacancies on the district court.
Steve Choi (1989) – New York, Executive Director, New York Immigration Coalition. Very good pick & from the under represented AAPI community on the federal bench.
Luis Cortes-Romero (1989) – Washington, Managing Partner, Immigrant Advocacy & Litigation Center. Young, Hispanic & has a progressive background. He should get consideration albeit vacancies in D.C. are few now.
Joanna Darcus (1986) – Washington DC, Staff Attorney, National Consumer Law Center. We can probably get better nominees for the few slots in D.C.
Veena Dubal (1980) – California, Professor of Law, UC Hastings Law. We can get better nominees from California.
Rochelle Garza (1987) – Texas, Staff Attorney, ACLU of Texas. Great nominee for Texas. Senator Cruz would probably rather eat rat poison then turn his blue slip in for her so she would have to either be part of a package deal for a district court or wait for an appeals court vacancy to be considered.
Karla Gilbride (1982) – Washington DC, Senior Attorney, Public Justice. With her being young & disabled (Blind), as mentioned in an earlier post she should get consideration for a judgeship.
Becca Heller (1983) – Co-Founder and Executive Director, International Refugee Assistance Project. I could not find what state she lives in but depending on where, she would be a good nominee.
Kalpana Kotagal (1977) – Washington D.C. Partner, Cohen Milstein Sellers & Toll PLLC. There are better nominees with more of a progressive record.
Leah Litman – Michigan. Assistant Professor of Law, University of Michigan Law School. I believe she is a member of The Federalist Society. If so, HELL NO in a state with two Democrat senators.
Natasha Merle (1983) – New York, Senior Counsel, NAACP Legal Defense & Educational Fund. Another great choice for consideration in New York.
ReNika Moore (1977) – New York, Director, ACLU Racial Justice Project. Good choice, only to be passed over by another younger good choice which New York has no shortage of.
Sanjukta Paul (1977) – Minnesota, Assistant Professor of Law, Wayne State University Law School. Not bad but we can probably get a more progressive nominee from Minnesota.
Joshua Perry (1980) – Connecticut, Special Counsel for Civil Rights, Office of the Connecticut Attorney General. With all of the district court vacancies having a nominee, he would only have a chance on the appeals court. I would probably go with Justice Raheem L. Mullins who is about 2 years older if there was only one vacancy albeit two judges on the 2nd circuit is eligible for retirement now.
Jaclyn Hope Prange (1982) – California, Senior Attorney and Managing Litigator, National Resources Defense Council. Not a bad choice but probably more progressive choices.
Ajmel Quereshi (1981) – Washington D.C. & Maryland, Senior Counsel, NAACP Legal Defense & Educational Fund; Director, Civil Rights Clinic, Howard University School of Law. Solid choice. He would be my pick for the final Maryland district court vacancy.
Jessica Ramey Stende (1984) – California, Senior Counsel for Workplace Justice & Public Policy, Equal Rights Advocates. Good pick.
Allison Riggs (1982) – North Carolina, Interim Executive Director and Chief Counsel for Voting Rights, Southern Coalition for Social Justice. Very good pick for North Carolina if you could get blue slips turned in for a district court nomination, especially with one of the North Carolina Republican senators being on the senate judiciary committee.
Vincent Southerland (1976) – New York, Executive Director, Center on Race, Inequality, and the Law. With the lack of African American men appointed by President Biden, this would be a good step in the right direction in correcting that.
Marbre Stahly-Butts (1991) – New York, Executive Director, Law for Black Lives. Probably the toughest sell of this entire list because of both age & resume.
Chase Strangio (1984) – New York, Deputy Director for Transgender Justice, ACLU LGBT & HIV Project. See comments for Marbre Stahly-Butts & add the word “second” before “toughest”.
Ria Tabacco Mar (1982) – New York, Director, ACLU Women’s Rights Project. Good pick.
Franita Tolson – California, Vice Dean for Faculty and Academic Affairs and Professor of Law, University of Southern California Gould School of Law. I couldn’t find her age but her picture looks like she is in her early 40’s. Either way there are probably more progressive nominees.
Stephanie Toti (1978) – New York, Senior Counsel & Project Director, Lawyering Project. Probably more progressive nominees.
Elizabeth Wagoner (1982) – New York, Director of Investigations, Office of Labor Policy and Standards, NYC Department of Consumer Affairs. Probably more progressive nominees.
Rebecca Williford (1983) – California, Managing Attorney, Disability Rights Advocates. A good pick.
Janson Wu (1978) – Massachusetts, Executive Director, GLBTQ Legal Advocates and Defenders. He should get consideration for one of the two vacancies on the district court.
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Thanks for this list. Several of these people are ones I have on my lists for Circuit Courts. Most of these people are excellent, some of them are complete nonstarters with a 50/50 Senate though.
A few comments.
We should consider appointing people in NYC, DC area, or in California to other circuits and districts if someone has ties to those areas. If someone grew up and went to high school in Texas, but now practices law in one of the above areas, we should consider them for Texas as well. An example of this is for Natasha Merle, who is from Houston. And I would reject any input for pro-insurrectionist Ted Cruz. If Ted Cruz refuses to turn in a blue slip, it should be ignored.
Rochelle Garza would be a fantastic choice especially at this time, specifically because she specializes in reproductive rights, but I suspect that Manchin would kill her nomination even if we ignored blue slips. Ria Tabacco Mar should have already been nominated by Schumer.
Leah Litman is a strong progressive academic and would be a fantastic choice for either the 6th or DC Circuit. There are a lot of progressive academics who are “members” of the Federalist Society because they have been invited to speak there in the past. I wouldn’t consider that a disqualification.
Kalpana Kotagal is a fantastic plaintiff attorney, I think she would be a great choice for a DC district court.
Others that could get strong consideration are Anand, Bennett, Blackhawk, Campbell, Gilbride, Moore, Prange, Riggs, Southerland, Tolson, and Wu.
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That’s actually a really good idea. If somebody has ties to multiple states & is admitted to multiple state bars then The White House should be strategic. Depending on if there is a Republican senator in one of the states, they should try to get the most confirmable of the progressives into those states & leave the fire breathing liberals for states with two Democrat senators.
If somebody is a “members” of the Federalist Society but otherwise progressive I guess that’s ok. I would definitely be skeptical & do a more in depth look into their background similar to a Republican administration would if somebody was a member of the ACLU, Demand Justice or Alliance for Justice.
And yea some on this list are definitely non starters in a 50/50 or even 52/48 senate. I listed some in my comments. I would try to get any of them into a position that doesn’t require senate confirmation, tell them to delete their Twitter & let them build their resume in hopes they would be more confirmable in a second term.
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“If somebody is a “members” of the Federalist Society but otherwise progressive I guess that’s ok. I would definitely be skeptical & do a more in depth look into their background similar to a Republican administration would if somebody was a member of the ACLU, Demand Justice or Alliance for Justice.”
It’s a bit different. The Federalist Society invites liberal legal scholars to their panels during their annual convention or other meetings to argue their point of view. If someone attends a Fed Society convention, they technically become a “member”. It doesn’t mean they believe the Federalist Society point of view. Now if someone is a chapter leader or otherwise are involved with the Federalist Society, then they are a conservative.
The proper progressive analogy to the Federalist Society is the American Constitution Society (ACS), which also invites some conservatives to their panels as well. The ACS is much weaker than the Federalist Society. The ACLU/DJ/AFJ are advocacy groups and are unlikely to have any conservatives or moderates.
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Ah ok, thanks for the clarification. When I see the word “member” I assume that means you joined but from your description that is actually something I would do as I like to argue my view point with people that have different ideologies. So that definitely is more acceptable.
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It looks like Henry Franklin Floyd has announced he will be taking senior status. I know Rep. Clyburn will want President Biden to nominate Julianna Michelle Childs & Biden probably owes it to him if he pushes it, but I hope a younger nominee can be found instead.
Childs would be 56 by the time she is confirmed which would be too old for a supreme court appointment. I’m sure they can find a nominee at least a decade younger & just as progressive if not more.
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Unfortunately Judge Childs is the favorite. But two younger Black women deserve a good look. Two options are Marie Boyd, a professor at University of South Carolina and Breon Walker, the President of the SC Black Lawyers Association. It should also be noted that Boyd’s husband is Jamie Harrison, the DNC chairman.
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I hadn’t previously heard of either of those two names but Marie Boyd (Born around 1981) & Breon Walker (Born around 1978) would both be far better then Judge Childs who is simply too old for any real consideration for the Supreme Court. That ultimately should be one of two (Along with being a proven progressive) requirements for any Biden appeals court nominees.
But as you mentioned unfortunately Judge Childs is probably the favorite & just like Leslie Abrams for the 11th Circuit will probably have first right of refusal.
My personal favorite pick would be Bakari Sellers (Born 1984). He is a proven progressive & young enough to remain in consideration for a Justice Thomas replacement for a second Biden term or even beyond that. I know he will receive some push back for past received criticism from pro-Palestinian activists, and groups such as Black Lives Matter, for his opposition to including the word “occupation” in the 2016 Democratic Platform but I don’t believe enough to lose any Democrat votes. That may actually gain him senator Grahams vote plus another 1 or 2 Republicans. He (As well as CNN) was sued for his 2019 Lincoln Memorial tweet & settled out of court so that may come up as well if he was nominated.
But Republicans may be willing to confirm Sellers because it would take him off the table for a future political run in the state. He has also worked for Jim Clyburn in the past as well.
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Sellers would be a good choice, but I suspect he would not be interested in a judicial appointment. I think he is waiting to replace Clyburn in the House. Although, I think it could be problematic if Jamie Harrison also wants to run for that seat. Unless we can somehow force South Carolina to have two Black majority seats as the VRA clearly requires.
My sense is that Clyburn could be sold on Marie Boyd. Harrison being DNC chair could have considerable sway to get his wife appointed, although that could be problematic if Harrison is planning another statewide run for office (which I’m sure he is planning to do).
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Yea I’m sure Sellers has other aspirations but I would sit him down in a rom & lay out the long term benefits, especially with Justice Thomas becoming the most senior Justice once Justice Breyer retires. With Biden so far not nominating any black men to the appeals court, I would lay out how vital each black man being nominated is in regards to a possible Thomas replacement.
But luckily there are a wealth of good nominees. I’m very happy Judge Floyd retired & over blown with joy at the two 2nd circuit retirements just announced. It’s been a great 24 hours for Biden appeals court vacancies.
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Justice Thomas is more senior than Breyer despite Breyer being 10 years older than Thomas. Thomas has been on SCOTUS since 1991 & Breyer since 1994.
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Well some people just wouldn’t enjoy being a judge. It’s just not in their temperament. It’s why President Obama declined a clerkship with DC Circuit court Judge Abner Mikva (and a certain Supreme Court clerkship), and then rejected an offer to become a full time tenured professor at University of Chicago. My sense from watching Sellers is that he enjoys politics not law.
Frankly I don’t think it is a must to nominate a Black man for the Thomas seat (provided that a Black woman replaces Breyer first). A Black woman or a AAPI/LGBT nominee will be fine. The best option would be to somehow get Fred Smith (both Black and LGBT) onto either the 11th Circuit or the DC Circuit and then nominate him if Thomas leaves the bench.
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Any DC Circuit considerations goes back to what I mentioned on an earlier article, that the Biden administration needs to abandon only considering DC area residents for that court. Neither Bush or Trump held that view & neither should Biden. As long as they do, possibilities like Fred Smith & many more will only be considered for vacancies in their home states.
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Hello, this is my first post, I have a question to ask. Do you think with the elevation of Judge Stark, Coons and Carper will recommend Justice Tamika R. Montgomery-Reeves for the open seat?
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Hello,
With the nomination of Judge Stark to the Federal Circuit, do you think that Delaware Justice Tamika R. Montgomery-Reeves will be nominated to fill the vacancy on the Delaware District Court if he is confirmed?
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I doubt it. Usually State supreme court justices will leave for a court of appeals seat, not often a district court seat. And in the case of California justices, they don’t even leave for appeals court seats.
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I am from Maryland. I was surprised at the nominee put forth by Senators Cardin and Van Hollen. I have nothing against either nominee, but the latest nominee Judge Rubin was a real surprise for me. It will be interesting to see if Judge Motz or Judge Niemeyer retire from the Fourth Circuit who the nominees will be.
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Here is some bad news…
(https://www.reuters.com/legal/litigation/4th-circuit-judge-maintain-active-status-eliminating-vacancy-biden-2021-11-24/)
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There must be something behind it. One of the articles said that it likely wasn’t just King changing his mind.
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He probably withdrew for a similar reason Michael Stephen Kanne withdrew under Trump. He found out who they were going to nominate & didn’t agree with the pick. It’s really selfish if that was the reason.
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