Rachel Bloomekatz – Nominee to the U.S. Court of Appeals for the Sixth Circuit

In 2019, the Trump Administration nominated former Jones Day attorney Chad Readler to the Sixth Circuit. Now, the Biden Administration is seeking to tap one of Readler’s old associates, Columbus attorney Rachel Bloomekatz.

Background

Born December 3, 1982, Rachel Bloomekatz received a B.A. magna cum laude from Harvard University in 2004 and a J.D. from UCLA Law School in 2008 before clerking for Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit and for Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court. She then spent a year at the Massachusetts Attorney General’s Office before clerking for Justice Stephen Breyer on the U.S. Supreme Court.

Bloomekatz then spent two years at Jones Day before becoming a principal at the civil rights firm Gupta Wessler PLLC. Since 2019, Bloomekatz has been a solo practitioner at Bloomekatz Law LLC.

History of the Seat

Bloomekatz has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit. This seat opened in December 2021 with Judge Ransey Guy Cole’s announcement that he would move to senior status upon confirmation of a successor. Bloomekatz was nominated on May 25, 2022.

Legal Experience

Bloomekatz started her career as an associate at Jones Day. While at the firm, she worked with future Sixth Circuit Judge Chad Readler in challenging the granting of class certification to a series of suits brought against Proctor & Gamble for alleged deceptive marketing of probiotic digestive supplements. See Rikos v. P.G., 799 F.3d 497 (6th Cir. 2015). The grant was affirmed 2-1 by the Sixth Circuit. See id.

From 2016 to 2019, Bloomekatz worked as a principal at Gupta Wessler PLLC. At Gupta Wessler, Bloomekatz particularly worked on a number of election law cases, including successfully suing to allow 17 year olds to vote in the 2016 primary elections. See Tom LoBianco, In Victory for Sanders, Ohio Judge Says 17-Year-Olds Can Vote in Primary, CNN, Mar. 11, 2016. Bloomekatz’s expertise in election law also resulted in her appointment by the Sixth Circuit as amicus. See In re 2016 Primary Election, 836 F.3d 584, 586 (6th Cir. 2016) (Sutton, J.) (noting that Bloomekatz “admirably” defended the district court order after appointment from the court).

Additionally, Bloomekatz represented Brandon Moore in challenging a sentence of 112 years in prison for a series of convictions arising from an incident when he was 15 years old. Andrew Welsh-Huggins, Teen Rapist Given 112-Year Sentence Appeals to Top Court, A.P., Feb. 4, 2015. The Ohio Supreme Court struck down the sentence as unconstitutional in a 4-3 vote. See Andrew Welsh-Huggins, Ohio Supreme Court Rejects Teen Rapist’s 112-Year Sentence, A.P., Dec. 22, 2016.

Bloomekatz also represented the American Cancer Society Cancer Action Network in multiple suits involving harms from tobacco, see Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th Cir. 2017), and beverages. See Am. Bev. Ass’n v. City & Cty. of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc).

Since 2019, Bloomekatz has served as a solo practitioner based in Columbus. During her time as a solo practitioner, Bloomekatz has notably represented parents in a suit against the Madison Local School District over their plan to arm teachers without conducting law enforcement training otherwise required. See Gabbard v. Madison Local Sch. Dist. Bd. of Educ., 153 N.E.3d 471 (Ohio App. 2020). The policy was ultimately struck down by the Ohio Supreme Court. See Louise Hall, Teachers Must Have Police Training to Carry Guns at School, Ohio’s Top Court Rules, The Independent, June 24, 2021. Bloomekatz has also filed suit against Ohio’s “Stand Your Ground” law for violating the state’s single-subject rule and three-day consideration provisions. See Anna Staver, Group Challenges Ohio’s Stand Your Ground Law, Columbus Dispatch, Sept. 10, 2021.

Statements and Writings

Like a number of other judicial nominees, Bloomekatz authored a law review note as a student. Her paper discusses the protections that immigrants have from employment discrimination and exploitation. See Rachel Bloomekatz, Rethinking Immigration Status Discrimination and Exploitation in the Low-Wage Workplace, 54 UCLA L. Rev. 1963 (August 2007). The comment discusses various applications of particular federal statutes on discrimination based on immigration status, including discrimination against U.S.-born workers. In the paper, Bloomekatz suggests that an expansion of Section 1981, which bars racial discrimination in contracting, to cover alienage discrimination, is the best legal tool to address such issues. Id. at 1989-90.

Political Activity

Bloomekatz has been a frequent political contributor throughout her career. Among the recipients of her donations are President Biden, Senator Sherrod Brown, and Hillary Clinton.

Additionally, Bloomekatz has worked as counsel for the campaigns of several Ohio Democrats, including Brown. Bloomekatz also served for the campaign of Danny O’Connor, who narrowly lost a house seat to Rep. Troy Balderson in 2018.

Overall Assessment

For her part, Bloomekatz, at 39, is the youngest Biden appointee to the federal appellate bench so far. However, her youth belies extensive experience with both trial and appellate litigation. Furthermore, given that a number of members of her clerk class at the Supreme Court were appointed to the federal bench under Trump, senators are unlikely to gain much traction by arguing that Bloomekatz is under-qualified for the federal bench.

This is not to say that Bloomekatz will not face strong opposition. Her role in election litigation, as well as her work on firearms regulations, are likely to draw particular fire, and Bloomekatz will likely face a hotly contested confirmation. Nonetheless, with the support of Sen. Sherrod Brown, Bloomekatz is nonetheless favored to join the bench before the end of the session.

241 Comments

  1. The only agreement I want to see Schumer make is whatever agreement he made on December 16th last year when they were allowed to vote for cloture then immediate confirmation on about nine judicial nominees back to back. That was the last day before the end of the year recess so a repeat before the 4th ofJ uly recess would be great.

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  2. I strongly dissent from the general consensus here regarding Brad Garcia. He is a corporate law partner who repeatedly represented big corporations on class action cases. To put that in perspective, Brad Garcia would have been on the other side of someone like Deepak Gupta, Rachel Bloomekatz, or Karla Gilbride in these cases. It is not as bad as being a management lawyer, but it’s not much better.

    I knew who Brad Garcia was, and there is a reason why I never advocated for him here. Because there were much better options for a Hispanic judge here than him. Even someone like Roberto Gonzalez, who is a Big Law partner has several years of experience at the CFPB.

    That said, Garcia has represented progressive interests on a bunch of matters, including on criminal justice issues. So he is better than that Garland/Millett/Pan types. Toss in his youth (which the nomination gets a bonus because Garcia has some progressive credentials), and I would probably give the nomination a B or B-.

    Dequan, I would request that you reread the article that you posted above from the American Prospect and you will understand why I don’t love the selection of Brad Garcia.

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    • @Shawn

      I think this goes back to our difference in looking at nominees who have been corporate law partners. You have said you take off points or give a nominee a lower grade once you see that. To me, I think it makes it incumbent on the nominee to have a defined progressive background in addition to them being a law partner.

      So when I review Garcia, I see the type of cases he did pro bono. He has represented immigrants, drug cases where minorities have gotten proportionately more time then White people sho have done the same crime & other indigent defendants.

      Now going back to the article we both mentioned. Garcia only lost one case (Sorry I can’t remember how many he won but I believe it was in the 20’s if not 30’s). So that tells me he must be effective. So that raises his grade in my book because I have reason to believe his opinions will stand the test of time similar to how you have mentioned Goodwin Lui.

      And of course none of that even begins to take into account him being 35 years old. So I believe his votes will be the same as others you & I have mentioned for the DC circuit such as Deepak Gupta or Andrew Manuel Crespo. I believe his decisions will be written as well as others we have mentioned.

      So I will add one more thing I don’t think we speak about enough on this site. Can a judge persuade conservatives that truly approach cases open minded. It was reported justice Kagan persuaded Chief Justice Roberts on the Obamacare case. This probably has occurred more times then we know with either Robert’s or Kavanaugh. I believe Garcia is the type of judge that could persuade open minded conservatives. That to me gives him an even higher grade.

      So I think you & I want the same type of nominees but approach if they were corporate law partners much differently when vetting them. That’s probably why I look at Garcia as one of Biden’s finest circuit court nominees to date where as you may give him a B.

      Liked by 1 person

      • You are completely ignoring the point of that article that you posted in this thread.

        “The federal courts are oversaturated with pro-corporate lawyers, while workers’ rights attorneys have been too long overlooked when it comes to being nominated to serve. The bench of these fierce advocates is deep and should be looked to to not only fill this new vacancy on the D.C. Circuit, but to also fill the many others that remain open.”

        https://prospect.org/justice/anti-worker-judges-and-the-dc-circuit/

        Brad Garcia is another pro-corporate hack in the courtroom. Yes, he is progressive on other matters, but he has shown zero evidence that he has any sympathies toward progressive economic values. As I said, he would have been the lawyer on the other side of Gupta, Bloomekatz, or Gilbride. Gupta or Gilbride should have been nominated, not J. Michelle Childs, Florence Pan, or Brad Garcia. Frankly I think I’m a bit generous giving him even a B.

        The overwhelming majority of Democratic nominees are going to be solid on abortion, LGBT, civil rights, voting rights, and other social issues. Being solid on these issues starts you at C and no better. The issues that divide progressives and centrists and really twofold, criminal justice, and progressive economics (examples are labor and plaintiff attorneys). When I look at the quality of the nominee, I look specifically at these issues, because they are the ones that who are underrepresented on the bench.

        I frankly don’t give a shit if they can persuade conservatives. People are going to have to accept that most of these Trump conservatives are just not persuadable. I want progressive judges who can write harsh dissents like Brandeis and Douglas did (as well as Scalia) when need be, that years later will persuade courts to reverse their bad opinions. Goodwin Liu is in that mold, Brad Garcia is not.

        I don’t like the liberal viewpoint of trying to “persuade” someone like Brett Kavanaugh, you’re just not going to do that in general. A far better approach would be to go scorched earth and go all out to discredit this SCOTUS as a far right partisan hack institution (because it is) much like the progressives in the early 20th century through FDR did, and then down the line justify SCOTUS expansion.

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      • @Shawn

        That is just one of the few differences at how we approach the situation the judiciary is in right now. We agree on a lot, but I just don’t see Robert’s & Kavanaugh (Or lower court conservative judges in their mold) as a lost cause. I want young, progressive judges with a pro bono or progressive background just like you.

        But we definitely disagree on the scorched Earth approach. I want smart majority opinions written that was able to sway a conservative judge today versus a hard left liberal minority opinion that we will all jump up for joy & cheer for. That’s just a clear difference in our approach to the judiciary with the reality we are in today. I’m sure those same divisions occur in The White House Counsels office as well. That’s probably why you & I can have similar opinions about a nominee while still coming to a different grade on them.

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  3. Grades on the Biden nominations below.

    Brad Garcia: B as explained above.

    Dana Douglas: C-. Career of defending oil companies in her line of work. Could have done a hell of a lot better.

    Roopali Desai: B, perhaps B+. Basically similar to Brad Garcia or Ana Reyes, but more solid progressive credentials than Garcia.

    Jerry Blackwell: D+. Long time corporate lawyer who defended corporations against regular people. Also nearly 60, although that may be good given his background. Yes I do appreciate his pro bono work, which is why this is not an F. There were far better Black nominees who were 20 years younger.

    Gina Mendez-Miro: B+

    The other two PR nominees: D+.

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    • Here are my grades for this batch;;

      Brad Garcia: A+

      Dana Douglas: B – While I agree with Shawn’s reasoning for a C-, I’ll give a higher grade strictly because this is a red state. One of the two Republican senators is on the SJC & has at times voted for Biden nominees such as Andre Mathis. He also pushed back on Trump nominees as well. So for this seat, while I wouldn’t compromise as far as I would with Graham for the 4th South Carolina seat, I’m fine with a compromise nominee within reason for this seat. A black woman who is a sitting magistrate judge (Versus a district court judge that would require a backfill) that is in her 40’s leads me to give her a higher grade.

      Roopali Desai: A – I went back & fourth between an A & an A+. She was one of the foremost election lawyers against Trump in Arizona. She’s in her low 40’s & has a nice pro bono background. Also her being South Asian adds diversity to the circuit. And with Sinema being one of the senators, I actually paused on if we would get a good nominee here. She is outstanding.

      Jerry Blackwell: C- – I actually agree with everything Shawn said here, I just think it adds up to a C-, not a D. I simply can’t give him that low of a grade based on his work on cases like Derek Chauvin even though I hate we have a nominee in his 60’s for a blue state.

      Gina Mendez-Miro: A- – This was actually one of the nominees I wanted to see for the 1st Puerto Rico seat. And her being LGBT only adds to the diversity of her being Latina.

      The other two PR nominees: C- – I think with all of the pushback Biden has gotten with his lack of Hispanic picks, he didn’t want any pushback for these picks. These were more of a compromise picks. As Shawn mentioned, there were definitely better picks for these seats.

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    • @Frank

      First off as you said, my condolences to the Kanne family. This is the judge that notified Trump he will step down but then withdrew when they didn’t nominate the judge they agreed on who was his former law clerk. VP Pence pushed back on the agreed upon potential nominee.

      As to the seat, I hope while Biden was apparently negotiating with senator Young in good faith to get his support for Doris Pryor, hopefully he gave him two or three names. If so, this could actually be a seat we get filled this year. Of course my first pick as I have said in the past would be Jessica Elgin. But with a black woman being picked for the other seat, combined with Young’s support for Pryor, I would be fine with a less liberal nominee here. Especially with it replacing a Reagan judge & with it being a little over 4 months before the midterms.

      With Pryor being a magistrate judge (Along with the 5th. I’d hit nominee), we possibly could see Mario Garcia for this seat. I think Young could support him. And of course him being Hispanic would be a win/win for Biden.

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      • @Dequan great minds think alike! I think we said the exact same things, and yes I agree the priority is just to fill this seat. Great if Young cooperates, but I don’t think he’ll be as willing – Pryor replacing Hamilton is liberal for liberal, whereas this will move the 7th to the left. But I was surprised by Young on Pryor in the first place, so who knows.

        Either way, Biden needs to be ready to move forward if not.

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      • @Hank

        Haaaaaa… Right. The only thing I would slightly disagree with you on is caving to judge King. Believe me it hurts me to say this. But I would rather an 89 plus year old judge stay on the bench then him retire only if I pick his handpicked nominee. The precedent is more important then the seat. Drawing the line in the sand now will show other judges you will not tolerate that nonsense.

        You just have to hope he lives through any future Republican president but you simply can’t set that precedent. The King case is particularly sad because the judge he wanted is actually the judge I had as most likely to get the nomination. But I wouldn’t do it under threat.

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      • As of now I have few qualms with Mario Garcia, who was primarily a criminal defense and personal injury attorney.
        There are clearly better choices, such as Jennifer Soble and Jeffrey Macey (a labor lawyer who also represents Democrats in election cases), Liz Watson (who ran for Congress in Indiana) as well as professors at IU Law. But Garcia seems ok with me.

        Also there is no reason to give this seat to Northern Indiana, Trump already appointed a judge from there.

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      • “The King case is particularly sad because the judge he wanted is actually the judge I had as most likely to get the nomination. But I wouldn’t do it under threat.”

        I would go even further. Even if the nominee he wanted was an A+ in my book and I was just about ready to pick them; if a judge like King made that demand, I would select someone else who is worse out of spite. For example, if the Ohio 6th Circuit Court judge said that he would recind his resignation unless Bloomekatz were selected, I would absolutely refuse to nominate her.

        That’s how important standing up to this kind of corruption is.

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      • @Dequan and @Shawn,

        I think you both make great points, and I wish I could be on the same page with you both on the King issue. In a perfect world where our judiciary wasn’t already skewed dangerously to the right, I would agree with you both.

        But given the damage Trump did and how rare it is for Democrats to have both the Presidency and the Senate, my #1 principle is keeping as many Fed Soc hacks off the bench as possible. I’ll make a deal with the devil himself if it means more progressives (or even center-left) judges on the court. The Republicans don’t have any such principles when it comes to the judiciary – the only reason Kanne didn’t get his chosen successor was because Pence was worried about skeletons in his closet hurting his political future (funny to think about now, of course). I’m sure if it were another state or Pence hadn’t been VP, they would’ve nominated whoever Kanne wanted (and Kanne was a hard-right judge, so there would’ve been no disagreement there).

        Sure, if the judge wanted a replacement who has since become a registered Republican, I would tell them to screw themselves. But if the vetting indicates they’re within the Democratic mainstream and we pass on that opportunity, then we’re fighting the Republicans with one hand tied behind our backs. Or at least one more hand behind our backs, on top of everything else Dems are failing to get done on the judiciary.

        Liked by 1 person

      • @Hank

        Yea I totally get it. Believe me it hurts me to write what my opinion is on this one. It’s truly just my principles but I get why you feel the way you do. Hopefully we both get what we want & judge King give his seat up without having to do it the same way judge Kanne eventually had to this morning.

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      • A thing about Mario Garcia, he’s a Magistrate Judge for the Southern Indiana district, while Kanne’s Duty Station is in northern Indiana. Also, Garcia has only been a judge for 15 months. I think he’s more likely to be nominated for a future District Court judgeship.

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  4. Re: Kanne: my condolences to his family – I did not agree with him on pretty much anything, but I can still imagine it is a hard loss for those who are close to him.

    Importantly, this gives Biden a chance to flip a seat on the 7th, and in a red state. I have no faith in Biden’s ability to nominate someone before the midterms though – especially in a red state. It took them forever to nominate Pryor, but hopefully they vetted several others along with her and can go with one of them. The only wrinkle is that the nominees vetted there were probably from the Southern District of Indiana and Kanne sat in Lafayette in the Northern District. Hopefully Biden ignores any regional issues and just picks someone fast, and ideally Young will cooperate again – I wouldn’t expect a public defender or ACLU lawyer, but maybe Mario Garcia.

    This would flip a seat on the 7th from conservative to liberal. The 7th is 7 conservatives to 4 liberals right now (the 3 Dem appointees + Ilana Rovner, who is quite liberal despite being a Republican nominee). Making the 7th 6-5 could go quite a ways to mitigating its rightward tilt under Trump. With the liberals being young, this would hold at least until Rovner dies or goes senior under a Republican (for the life of me, I don’t know why the old lady hasn’t gone senior under Biden given how liberal her rulings are).

    Notably, Kanne was the one who went senior but then took it back under Trump – exactly what King on the 4th did under Biden. I still think we should’ve done whatever necessary to replace King with a liberal (including letting him and Manchin negotiate between themselves), but now let’s hope King holds on longer than Kanne did and is until the next Dem president + Senate.

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  5. This makes me smile. I still can’t give her anything higher than a B+ due to her corporate law background, but I love hearing that the GOP thinks of Desai this way.

    https://arizonadailyindependent.com/2022/06/15/sinema-and-kelly-applaud-appointment-of-desai-to-ninth-circuit/comment-page-1/

    “Republicans know Desai as a highly partisan attorney, eager to attach herself to high-profile left-wing causes. “I don’t think it was a secret that she wanted to be a judge and she certainly put in the hours on behalf of the Democratic Party to get herself a nomination, but I think a lot of us are surprised that she is getting elevated all the way to the Ninth Circuit,” remarked one Capitol observer. “No judicial experience, a very partisan and hard left resume, and suddenly she is one step from the Supreme Court? Don’t let Democrats ever get away with claiming they don’t want activist judges, because this is a textbook case of trying to place an activist as high in the judicial system as you can get her.”

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  6. Condolences to the Kanne family. Props to him for not giving up his seat to a Federalist Society hack in their 30’s. Time to ram through a nominee to replace him before the midterms just like Republicans would do if the judge dying was a Democrat. I give Dems a 0% chance to do that though.

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  7. If I am reading this tweet thread right, apparently it is highly unusual for more than two circuit court nominees to be in a hearing; hasn’t been done in almost a decade and even that occasion has an asterisk (I.E. 2003 hearing date for 2001 nominees):

    Don’t expect Durbin to push any envelope…

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    • @Gavi

      I’m ok with Durbin sticking to two circuit court nominees. What he needs to do (Assuming Biden sends him additional nominees in the next couple weeks) is either have hearings back to back weeks or have at least one hearing on a recess week. Both were done by Republicans while Trump was in office so nothing unprecedented about that.

      Between Biden, Durbin & Schumer I would say Durbin is doing the best job right now. I truly think he will have a hearing for every Biden nominee that is sent prior to the August recess.

      I’m getting a little worried about Schumer confirming all of the circuit court nominees which take 30 hours of debate time. But even Schumer can smarten up & start voting for cloture for 2 or 3 circuit court nominees on a Thursday & vote to confirm them the following Monday.

      At this point we need more nominees from Biden. He has been doing a good job with the last two batches but we need him to do a great job if we want to fill all of the pending circuit court vacancies, & I’m not even including Michael Kanne’s seat.

      We already know senators have recommended nominees for 2 Virginia seats, 3 New York seats & the Colorado seat that will be vacated next year. I hope we have a bulk of nominees going through the vetting process for the 9 vacant California , 3 Massachusetts, New Mexico, Oregon & 3 Michigan seats.

      We may have open minded Republicans work to fill the Idaho, Alaska & 3 Louisiana seats. I’ve been on record on this site before that I wouldn’t waste my time filling any of the 7 Pennsylvania seats because I think Democrats have a good chance of flipping that seat in the midterms. You would then have two Democrats that can give you all Democrat appointees should we hold the majority versus having to nominate 2 Republicans in a package deal now. Even if Democrats lose, you either get the same deal you would get now or just leave the seats vacant.

      Hopefully Biden will send another batch of nominees in a week & a half if not sooner. At the very least I hope it’s 3 circuit court & more then a handful of district court nominees.

      Interesting observation from your last post. The last time we had three circuit court nominees at the same hear we got an eventual SCOTUS Chief Justice out of it.

      Liked by 1 person

  8. I think there is a really strong case for Mario Garcia for the now vacant 7th Indiana seat. He is around 49 years old, served as Chairman of the Board for the Indiana Federal Community Defenders, Inc & provided pro bono services for 10 years to participants in the District Court’s Re-Entry and Community Help (REACH) Program. The other judge just picked for the other vacant 7th Indiana seat, Doris Pryor founded the REACH program.

    He is a magistrate judge just like Pryor. I know he was just sworn in on April 5, 2021, but that still is much more judicial experience then many Trump circuit court judges had. While he is from the Southern district & judge Kanne was from the Northern district, I hope they do not let that be an obstacle because Trump’s judge Thomas Kirsch sits in the Northern district. And of course, he would be the first Hispanic judge to ever sit on the circuit.

    Another possibility would be Zachary Myers. He is the US Attorney from the southern district. He was born in 1981 & would be the first black man to serve on the circuit. He was confirmed by a voice vote by this senate last year so he may have an easier path to confirmation.

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      • I wouldn’t be so sure – US attorneys are not scrutinized to the same extent as judges are (for good reason since their term is only a few years). I think all but two of Biden’s US attorneys were confirmed by voice vote – and one of the ones where they had a vote was Rollins on D. Mass. (the only “progressive prosecutor” to be nominated, a great candidate for a future Massachusetts vacancy, and Cotton essentially admitted that he did it to paint Dems as soft on crime).

        I doubt Young/Braun’s support will be very predictive, especially for a 7th Circuit seat – US attorney to district court judge might have more correlation (would certainly be an interesting issue to research), but I am a thousand percent sure that Braun in particular would still oppose Myers if he were the nominee for Kanne’s seat. Maybe Young will be more reasonable, but I wouldn’t hold my breath because this would be a Dem nominee replacing a Republican.

        For a red state, Myers wouldn’t be a bad nominee (though not one I’d be particularly excited about). Mario Garcia does seem better to me given his work with the Indiana federal defenders, but my guess is that Young will be more resistant for that exact reason. I’ll honestly take whatever center-left candidate we can get to fill this seat before the midterms – I still fully expect this administration to mess up this opportunity and leave this seat vacant until 2024 though (and maybe longer if a Dem wins in ’24).

        And I agree with @Shawn and @Dequan that the Northern Indiana/Southern Indiana thing shouldn’t matter. I’m sure the senators will use it as a reason to slow down the process, but given that S.D. Ind. is much more populous/has many more cases, N.D. Ind. should not “get” (in a sense) more than 1 out of the 3 seats anyways. My hope is that since this administration has not observed regional allocations within states (Nathan in NYC replaced Pooler in Syracuse on the 2nd, Mendoza in the Tri-Cities replaced formerly Seattle-based McKeown on the 9th), they won’t let this excuse slow them down here.

        Question – has anyone done the math on how many judiciary hearings dates there are left on the calendar (assuming they don’t hold any hearings during the recess, which we all know they won’t)? And how many hearing “slots” are left if the Dems continue to have 2 COA judges a hearing? I’ve accepted that this administration won’t fill all the pending COA vacancies (though I’m still bitter about it), but I’m wondering what is a realistic expectation for us to have.

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      • @Hank

        Without holding any nominations hearings during recess or back to back weeks, that would leave at most 6 hearings left not counting the one this Wednesday. That would be 12 circuit court nominees (Not counting the two in this Wednesday’s hearing) plus 18 district court nominees.

        I agree with you that a hearing during a recess is out of the question (Although I’m pretty pissed at that as well as Schumer not cancelling at least one recess week). I am a little more optimistic about back to back weeks of hearings. If I’m not mistaking, Durbin has already done that once last year. If we can sneak 4 district court nominees in a hearing with 2 circuit court nominees, that would be a breath of fresh air too.

        Of course all that is predicated on Biden sending them enough nominees to fill all those slots. We know he has already been given district court recommendations for Virginia (2), New York (3) & one Colorado seat. Out of the 9 vacant California seats, I can’t imagine he hasn’t been given recommendations for at least a handful of them. Perhaps Massachusetts has given him some for their 3 vacancies. Oregon has had a vacancy since the middle of last year so we have to have a recommendation by now there. Both Washington state & New Mexico have been good on getting recommendations in so that’s 3 more seats (4 once Mendoza is confirmed to the 9th). I am still confident Idaho senators will work to get a consensus nominee to Biden as they did with Obama, even though McConnell blocked him so he wasn’t confirmed until Trump.

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      • @Dequan thanks for looking into it! So assuming 12 more COA slots (though of course hoping there will be more) and with 4 current COA nominees (assuming they have 2 this week), Dems will realistically confirm at most 8 more COA nominees this presidency unless we hold the Senate?

        Wow that is depressing – I forget how many pending/future COA vacancies there currently are, but I’m sure it’s more than 8. Now I would bet good money on this not getting a successor confirmed (or honestly even nominated) to Kanne’s seat. I would prioritize the 8 slots as follows:

        1. 2nd (replacing Cabranes creates a true liberal majority on a court that decides a lot of important cases. Just nominate Cristina Rodriguez already)
        2. 10th (maintains the 7-5 liberal majority, and as a matter of principle, this was one of the first vacancies and should be filled already)
        3 & 4. 3rd (filling both the PA and DE seats flips the 3rd to a 7-7 tie. DE is Biden’s home state, so leaving that vacant would just be embarrassing)
        5 &6. 4th (Graham seems reasonable so I have hope about filling the SC seat, but even if that stays vacant, filling the MD seat at least ensures an 8-liberal majority. Probably not for long though, since King screwed us)
        7. 9th (replacing S. Thomas would preserve the 16-13 liberal majority. We should do this now because I doubt Tester is going to survive in ’24, and this seat would only get harder for a Dem president to fill with 2 Republican senators).
        8. 1st (at this point we’re filling seats that won’t change the partisan balance. Replacing Costa on the 5th isn’t going to do much to make it any less of a joke, so we might as well try to firm up our liberal majority on the 1st. Both NH and MA have 2 Dem Senators, so this should be easy. I also wouldn’t be opposed to filling Kanne’s seat to moderate the 7th, but that seems harder given the two R Senators in IN).

        At least we firmed up the liberal majority on the DC Circuit with young, at least center-left judges – I guess that’s something.

        Also, thanks for summarizing the district court situations. I’d happily take no district court nominees at a hearing at all if it meant we got more COA nominees approved, but I know that’s a pipe dream. Still think it’s a waste of Senate time to process district judges in PR or red states like Iowa when there are so many more important district court seats in Blue states to fill though.

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    • Yup. There are better and younger choices than Garcia, but Garcia is sufficiently solid enough as a largely a plaintiffs and criminal defense attorney that I wouldn’t mind him at all. I’d probably give his nomination an A- or perhaps even an A. Not to mention another Hispanic would help Biden.

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  9. If I am understanding this correctly, 7 more hearings (counting this week) means 14 more nominees will get hearings. Given that there are 6 nominees and 11 vacancies with no nominees, this would mean 3 seats go unfilled, correct? And that’s assuming of course every single nominees is confirmed, which is dubious, and no further vacancies occur.

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    • As much grief I give Schumer for the slow pace of confirmations, I actually think he will confirm every nominee pending that gets voted on to the floor. My biggest worry is Manchin doesn’t start saying the senate shouldn’t confirm any more judges after the midterms if the Democrats lose the senate. I believe he voted for some Trump nominees after he lost so he wouldn’t be consistent if he tried that. As long as he keeps voting for them, I don’t think Schumer will hand the gavel over to McConnell with any pending nominees on the floor.

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      • @ Dequan

        I still think Democrats can keep the senate…..There are some extraordinarily bad candiates on the GOP side, and as the old expression in politics goes “You can’t beat somebody with nobody”..

        As far as Manchin in the other scenario you mentioned….He voted for most of the nominees the Democrats cleared in the lame duck period in 2014 after they lost the senate that year…

        But again, I truly think Democrats can keep the senate based on some of the horrible candiates the other side has.

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      • I tend to agree as well. Schumer has been around a while and knows what he’s doing. Manchin is the X factor for sure but as you said he (and Sinema) did vote for Andrew Kirsch on December 15 after Trump had lost the election and with the Georgia races in a runoff. I hope he continues to be reliable.

        If we could find a way to get all 41 potential Circuit Seats filled that would be an incredible victory

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      • @Rick

        I will say privately I think the Democrats can retain the senate but I will never say it publicly. My every waking moments between is & the midterms will be dedicated to assuming the Dems will lose the senate & we need to act with the urgency as if they will lose the majority.

        If we hold then great, we just start next year off with a clean slate. I actually hate polls like the one that came out Friday showing Fetterman up 9 points over Dr. Oz. in Pennsylvania. I wish they would shave 7 or 8 points off that poll. I don’t want to see anything giving anybody an out to not vote. The stakes are simply too high.

        @Joe

        Thanks for the good memories. I remember screaming at the television in 2014 when the Dems were going to recess then hand over the majority with 14 pending nominees. Then Ted Cruz did some crazy procedural move that kept the senate in session. Harry Reid then proceeded to file for cloture on the nominees including three from Texas. It was probably one of two times (The other when Cruz stood up to Trump during the primary after he called his wife ugly) that I actually liked Ted Cruz… Lol

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      • The other issue in the lame duck session in November is that Reverend Warnock may be in another runoff in Georgia, which again could decide control of the Senate. And since the runoff was moved up, Warnock will likely be in Georgia for most of November and it is unclear how available he will be to cast votes. I’m sure he will try hard to attend as often as he can, but if the plan is to vote of 20+ nominees where his vote is needed, that may not work.

        As I’ve said for a long time on this site, I think the Democrats are better than 50/50 to retain the Senate due to the piss poor candidates they are putting up in almost every single competitive seat. Basically every single competitive race except for Nevada has a GOP candidate that is below average or worse. In addition, the Democratic incumbents are quite strong. That doesn’t mean that the GOP can’t win it back with a strong wave. But it’s less than 50/50 IMO.
        I generally dislike polls as a whole, but I think the PA Senate result is accurate. Oz will have real trouble consolidating the GOP base in rural PA. I don’t think he will lose by 9, but I do think he’ll lose and he could lose even in a major GOP wave. I can easily see scenarios where the GOP wins back the Senate and Oz still loses.

        But even if the Democrats hold the Senate they should rush through nominees in November and December. It would be a hassle even if you hold the Senate to start from scratch next year on nominees who have gotten a hearing.

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  10. @ Shawn:

    When Warnock ran against Loeffler in Nov 2020, there were like 15 candiates on the ballot for that election……THAT election was certain to go to a runoff…..But I think for the Warnock / Walker election, I don’t think there will be a runoff since it’s just those 2 on the ballot in Nov..

    As far as Nevada, I think Laxalt is the weaker candiate……He lost the governor race in 2018 and has gone full Trumper since then……I think the veteran Sam Brown who was badly injured in Afghanistan would have been tougher opponent for CCM..

    As far as PA, I think Fetterman has the ability to win over some rural voters, especially the people who voted Obama – Trump….Pretty hard to tag the elitist tag on Fetterman when he looks like a bouncer , covered in tattoos who wears shorts to campaign events…He won every county in PA in the primary and he should beat OZ by at least 5 points…..

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    • I believe there is a Libertarian and a fourth independent candidate that qualified for that race as well. Warnock may still clear 50% but I suspect a runoff may happen again.

      Personally I think we have a slightly higher than 50% shot to keep/grow the senate majority, but everyone should be operating under the assumption that we will lose it. If we keep it that’s just a bonus and gives us more flexibility.

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    • The two races that scare me the most are Nevada & New Hampshire. Both are close even in good years for Democrats. The service industry hashit Nevada HARD plus they don’t have as good of a political machine as when Harry Reid was alive.

      New Hampshire has always been a state that worries me. It still hurts to this day to know had Al Gore just won the state in 2000, he would have been president. That was a much more attainable state then either his or Clinton’s home states of Tennessee or Arkansas.

      I was worried about Walker taking a good portion of the Black vote away from Warnock but he is off to such a terrible start, he may actually be a worst candidate then Loeffler.

      If I could have one political wish in regards to the midterms, it would be that somebody gets into Trump’s ear & tell him DeSantis is a serious threat. I think there would be a good chance he would jump in the Florida governors race for a 3-way just to sink DeSantis getting re-elected. Charlie Christ is a former Republican (He’s actually the only Republican I have ever voted for in my life when he ran for governor the first time) so him getting elected from a split Republican vote wouldn’t be the worst thing for Trump. Then if his ego really got the best of him he can remember his hatred for Rubio from the 2016 primaries & say only he can run the state so he mine as well run for both the governor & senate at the same time. I think if he offered to do that I would offer him a post election pardon… Lol

      But back to reality, I really hope no Democrat candidate screws up this year like Cunningham did in North Carolina in 2020. His loss is the reason my heart skips a beat every time a Democrat senator gets Covid, slips or chocks on their drink at Subway. Dems really need to play a perfect hand this midterm because only twice in the past 100 years or so has the party in control not lost seats. For this to be the third time they need to play error free.

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      • Nevada yes, NH no. Nevada is dangerous for the reason you said, but also because Adam Laxalt is seen as sufficiently mainstream that he doesn’t hurt the GOP. NH is considerably more Democratic than in 2000 and the GOP only has joke candidates as options.
        Although the one thing in both states that helps Democrats is the overturning Roe v Wade, as opposition to religious right social conservatism played a big role in these states becoming bluer. Trump did unusually well in these states because he was not seen as a religious right style candidate. But I think CCM is the Democratic incumbent most likely to lose, and it’s not even close.

        I have zero doubt that Walker is a much worse candidate than Loeffler. Loeffler was a credible, albeit bad, candidate who was the incumbent senator, Walker frankly is a total joke and I suspect he will be seen that way even among many center right voters. He is going to bomb badly among centrist and center-right women. That said 2022 will be less favorable to Democrats than 2020. The only question is how much. My fear is that this race may go to a runoff because some of these voters will vote for the Libertarian. But I think Warnock wins a runoff (unlike 5 years ago, runoffs probably favor a Black Democrat compared to a general election.)

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      • “Dems really need to play a perfect hand this midterm because only twice in the past 100 years or so has the party in control not lost seats. For this to be the third time they need to play error free.”

        This is true for the House. It is blatantly NOT true for the Senate. Since 1960 there have been 15 midterms. In SIX of them (1962, 1970, 1982, 1998, 2002, 2018), the party in power ran even or gained seats. That 40% of the time, not rare at all.

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  11. I@ Dequan

    If Sununu would have run in NH, I really would have worried…..New Hampshire has a late primary, (Sept) so the GOP candiates can beat each other up til then, and hopefully weakening them for Nov..

    And if former NV governor Brian Sandoval would have run for senate, he would have been very formidable…

    While I agree with you on Cunningham, what he did was still relatively minor compared to what some GOPers have gotten away with……Greg Gianforte body slammed a reporter and won his House race, then subsequently won the MT governor race in 2020…

    Actually, the 2020 senate loss that disappointed me most was Sara Gideon in Maine…..After Susan Collins voted for Kavanaugh in 2018, over $3 million was raised for her then unnamed opponent….You could argue Collins NO vote against Barrett in 2020 probably helped her – some were like ok she’s moderate after all…

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    • Unfortunately Gianforte is in a red state so body slamming a reporter probably gained him points. It’s a wonder we still have Tester at all. Had Cunningham been running in a blue state like New York or California then he could zip his pants down all he wants & he would still be a senator today. But when running in swing state, you just can’t have unforced errors as a Democrat & expect to win.

      Collins was a real disappointment for me too. Had RBG stayed alive, she possibly could have lost. What I really wanted to know was if let’s say along with her & Murkowski, had Romney & maybe one of the retiring senators said they would fire no on ACB out of principle, would she had kept her no vote after the midterms had she lost. Something tells me she would have folded like a wet lawn chair which is another reason I had hoped she would be defeated. I am happy she didn’t take the attacks personal & is still voting for most of Biden’s judicial nominees but of course I would rather have 51 Dems instead of 50.

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      • Cunningham still pisses me off. Without his bad behavior, we don’t have to deal with discharge votes, dealing with Manchin, and having to wait until every Democrat shows up for votes. You would only need VP Harris in the Senate for nominees that Manchin rejects (which would only be a few).
        And while Sinema would still be an obstacle, we’d be able to see if she really could withstand the pressure. Right now she can hide behind Manchin, whom to be fair is representing a state that Trump won by 40%. If she was the fundamental obstacle, it’s possible she might fold on things like voting rights.

        Beating Collins along with Tillis probably doesn’t help Democrats. I don’t know you would have seen the massive turnout in the GA runoffs without the Senate being in play. If the Democrats had already clinched the Senate, then I think turnout drops enough to at least reelect Purdue. Warnock may still have won, but I suspect that Ossoff does not. Given the option, I’d prefer Ossoff and Collins versus Gideon and Purdue.

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      • I think with Trump’s Meddling in Georgia after his loss, we still could have seen both Dems elected. As for Sinema, I completely agree with you. She can hide behind Manchin for now but if there were 51 Dems then she would actually have to take a stand. That would be interesting. And yes Cunningham… How could he screw up so bad. At least keep it zipped up until the first Wednesday in November 2020… Lol

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      • I think that the 2020 campaign against Susan Collins backfired badly. In a small state like Maine, people feel like they know her. She visits every county and major city and large town. So when they saw and heard all those personal attacks on the air and internet, they didn’t like it. Many people felt that while they didn’t agree with everything Collins did, including supporting Brett Kavanaugh, progressives were perceived with attempting to intimidate her with threats of violence and it really violated their sense of fairness.

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  12. Ok, I know we did a list of grades for all Biden circuit court nominees about six months ago. Here is my updated list. The only difference is this time I’m giving my grade for everything we know today, unlike the last list in which we only included things we knew at the time of nomination. Here goes…

    Ketanji Brown Jackson – A+

    Candace Jackson-Akiwumi – A+. I flirted with downgrading her to an A because she just released her first opinion last week despite being on the 7th circuit since last July 1st. But I won’t penalize her for that with her lengthy record as a public defender as well as her being in her low 40’s.

    Tiffany P. Cunningham – A

    Eunice C. Lee – A. While there were younger choices that were just as progressive, with her being the longest serving federal defender to ever serve on a circuit court, I really couldn’t go lower then an A.

    Veronica S. Rossman – A

    Gustavo Gelpí – B+. He is a good pick, but the Puerto Rico SCOTUS chief justice or her wife whom Biden just nominated to the district court last week would have been younger & just as progressive. However with him being a Trump appointee to the district court, I get the temptation to go with him for an easier confirmation. I also have to take a little off for having to spend time backfilling his district court seat.

    Myrna Pérez – A+

    Beth Robinson – A. While she was born in 1965, she truly is a solid & historic pick. I doubt a SCOTUS pick will come from Vermont so I’m ok with an older pick for this seat.

    Toby J. Heytens – A-

    Lucy Koh – C+. I previously gave her a C, however I will upgrade her to a C+ because of things I found out during her SJC hearing & confirmation process that showed me she was more progressive then previously known to me. Still her age plus California having so many more younger & progressive nominees, even just AAPI, leaves me not to be able to go higher then that. I also have to take a little off for having to spend time backfilling her district court seat.

    Jennifer Sung – A

    Gabriel P. Sanchez – A-. I went back & fourth with this or a B+ but after seeing his confirmation hearing I’m going to go with the A- here.

    Holly A. Thomas – A+

    Leonard P. Stark – A-. Had he been nominated for any of the other 12 circuit courts this grade would have been lower. But for the federal circuit I’ll go with an A-.

    Alison Nathan – A

    Stephanie D. Davis – A-. Her age is the only reason she’s not an A.

    Andre Mathis – A. With Tennessee being a red state, plus us going on 3,079 without a black man being confirmed to any circuit court, a Tennessee former Innocence Project lawyer & black man in his low 40o’s is a great pick.

    J. Michelle Childs – F+. I really am trying to be fair here. My heart really wants me to give her a F or F- but I am going to take her years of experience into account. Now had she been nominated to the 4th circuit instead I would have given her a C.

    John Z. Lee – B- – While he is a good judge, there simply were far younger & more progressive choices here.

    Salvador Mendoza Jr. – B+. While there were some better choices here, A 50 year old Latino that seems pretty progressive will due, particularly with Biden’s lack of Hispanic nominees. I also have to take a little off for having to spend time backfilling his district court seat.

    Sarah A. L. Merriam – A- – She is a good pick, but there were younger & more progressive picks here. Cristina Rodriguez would have been a much needed Hispanic & both Jamal Greene (Rapper Twalib Kweli’s brother) & Justin Driver would have been solid black men to pick. Also I have to take a little off for having to spend time backfilling her district court seat.

    Lara Montecalvo – A

    Nancy Abudu – A+

    Arianna J. Freeman A+

    Florence Y. Pan – D. This is pretty much a slightly better version of J. Michelle Childs with the same age. Plus I have to take a little off for having to spend time backfilling her district court seat.

    Rachel Bloomekatz – A+. If there was an A++ she would get it.

    Doris Pryor – A-

    Brad Garcia – A+. He litigated pro bono immigration case & represented a group of prisoners who were denied the freedom to practice their religion. He only lost once in federal court, will e the first Hispanic to serve on the second highest court in the country & is 35. I am flip flopping between him & Myrna Perez as my second favorite pick.

    Dana Douglas – B+ – For the 5th Louisiana seat I am fine with this pick. Senator Kennedy has voted for a few nominees & pushed back against some Trump nominees so I’m ok with a slight compromise nominee here.

    Roopali Desai – A – I’ll be honest, if I had to pick one nominee I will change my grade on by the end of the year, this will probably be it. I can easily see me upgrading her to an A+ after her hearing & confirmation process. But for now I’ll leave her at an A.

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    • My grades haven’t changed much since last year. I think judicial nominees would much rather take your class than mine…

      Even the ones that I like in some form like Sarah Merriam or Roopali Desai, I wouldn’t give them a grade higher than a B+. I like Stephanie Davis, who was an ACS chapter leader, but she gets a C for multiple reasons, including age and being a AUSA.

      I believe that a grade of A should be given only for truly excellent nominees. These are appellate court judges who get an A from me by ranking.

      1. Rachel Bloomekatz- A+

      2. Myrna Perez- A+

      3. Holly Thomas- A

      4. Nancy Abudu- A

      5. Jennifer Sung- A

      6. Arianna Freeman- A

      7. KBJ (SCOTUS)- A-

      8. Lara Montecalvo- A-

      And grades of C or worse (by reverse ranking).

      1. J. Michelle Childs- Z. Even F- doesn’t do justice.

      2. Florence Pan- D-

      3. John Lee- D

      4. Lucy Koh- D

      5. Dana Douglas- C-

      6. Leonard Stark- C-

      7. Salvador Mendoza- C

      8. Gustavo Gelpi- C

      9. Toby Heytens- C

      10. Gabriel Sanchez- C

      11. Stephanie Davis- C

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      • @Shawn

        I could definitely be persuaded on your grades for J. Michelle Childs & Florence Pan. I truly was trying to give credit for them at least being qualified but my heart was set on the grades you gave them both. But yea as you said when it comes to the rest, the would rather take my class then you be their professor… Lol

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      • @Shawn

        I’m surprised at your A grades for Holly Thomas, Arianna Freeman & Nancy Abudu. Since you didn’t give them an A+ like me, I’m curious who would you have selected for each of those seats keeping in mind a 50/50 senate, not who your dream candidate would be. I think you mentioned Fred Smith for the 11th circuit seat before so maybe that’s your answer for that seat.

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      • @Dequan

        Thomas, Freeman, and Abudu are great nominees. But the A+ should be saved for the truly historically great nominee (it’s like your A++). That is, those who would be on the top of my SCOTUS list and would have the potential for groundbreaking progressive impact either on SCOTUS or the Circuit Court. I think of comparison with Brandeis, Douglas, or Scalia (from the other side) on SCOTUS. For non-SCOTUS judges, I think of someone like Stephen Reinhardt (without the sexual harassment and general assholery).
        For the 11th Circuit, both Fred Smith Jr. and Lauren Sudeall would have gotten an A+ from me. For the 7th Circuit, John Rappaport would have gotten an A+ from me. I think one could make an argument for an A+ for Holly Thomas given her age.

        Now thinking about it, I might downgrade Perez to A as well. She is awesome, but is she at the same level of Goodwin Liu in 2010 or Bloomekatz today? I’m not so sure.

        For my grades, C means average, not bad. B is above average.

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      • So for me, the only time I take if they are going to live up to somebody like Goodwin Liu’s judicial opinions into my grading is if they were either an existing judge before they were confirmed or if we have some major rulings since they have been on the bench. I don’t think it’s fair to guess where they will end up at on the opinion spectrum. So perhaps Myrna Perez will be downgraded in the future, but just based on what we know now, I feel she is an A+.

        I totally agree with you on John Rappaport however. It truly is a shame him being a white male probably will prevent him from being placed on the 7th. Particularly after seeing judge Lee was the last nominee. Hell even if we had another quick vacancy I doubt he would get it as it will probably go to the first Hispanic judge for the circuit (Understandably so). Hopefully we at least would get Johanes Maliza if that happens. A 41 year old ex professional Puerto Rican soccer player turned lawyer with a nice pro bono background would go a long way for me to forgive not getting Rapporport… Lol

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  13. Has anyone tracked any of Biden circuit nominee’s opinions? There are relatively few (couldn’t find any for the 2nd circuit), but Rossman seems like a solid progressive and Heytens had a few good opinions as well. Also, this week the 9th circuit is set to hear a few cases en banc and all 4 Biden nominees are on at least one en banc panel.

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    • I haven’t really tracked them, only waiting to see if any where surprises. The only one I found so far was Gelpi joined the conservative opinion in one case, albeit I believe it was the minority opinion.

      I have been tracking the SCOTUS opinions a little more. I noticed Gorsuch joined the liberals quite often the last couple of months. I was actually quite surprised.

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