Judge Embry Kidd – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

U.S. Middle District of Florida Magistrate Judge Embry Kidd has been nominated for a seat on the United States Court of Appeals for the Eleventh Circuit. The Atlanta-based Circuit is a federal appellate court that oversees the states of Alabama, Florida, and Georgia. He is also the fifth Magistrate Judge to be nominated directly to a circuit court by President Biden. There had been six all time before Biden took office. 

Background

Embry Kidd earned a Bachelor of Arts from Emory University in 2005 with high honors in political science as a Robert W. Woodruff Scholar.  He then earned a Juris Doctor from Yale Law School in 2008. While at Emory University, Kidd was the Editor of the Emory Political Review, Treasurer of the Student Government Association, Treasurer of the Media Council and served as a tour guide. After graduating from law school, Kidd served as a law clerk for Judge Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit from 2008 to 2009. In 2009, he worked as an Associate at Williams & Connolly in Washington, D.C. He remained there until 2014, when he left to serve as an Assistant United States Attorney for the Middle District of Florida. On July 25, 2019, Kidd assumed office as a United States Magistrate Judge for the Middle District of Florida.

History of the vacancy

On May 8, 2024, President Biden announced his intent to nominate Kidd to the seat vacated by Judge Charles R. Wilson, who will assume senior status on December 31, 2024. Like Kidd, Wilson served as a Magistrate Judge for the Middle District of Florida (from 1990-1994) and in the U.S. Attorney’s office for the Middle District of Florida (serving as U.S. Attorney from 1994 to 1999), when President Clinton nominated him. Wilson was the second African-American on the Eleventh Circuit. If Kidd, who is also African-American, is confirmed to replace him, he would serve alongside President Biden nominated judge Nancy Abudu as the only two African-Americans on the 12 judge court. 

Jurisprudence

During his nearly five years on the bench as a magistrate judge, Kidd presided over numerous cases. 

On March 15, 2021, Kidd ruled Kenneth Harrelson to be held without bond pending his trial in Washington D.C. Harrelson was a members of the Oath Keepers group charged in connection with the January 6 Capitol riot. Kidd ruled that while Harrelson likely wasn’t a flight risk, he should be held based on the nature of the charges, which prosecutors argued amount to a “federal crime of terrorism.”

On September 15, 2022, Kidd ordered Jose Ramon Tejeda-Guerrero remain detained pending trial. Tejeda-Guerrero was extradited from the Dominican Republic to the United States and charged in a 2012 indictment with fraudulent possession of counterfeit or unauthorized access devices and four counts of aggravated identity theft. 

On September 23, 2022, Kidd ordered ​Brett Avery Tipton remain detained pending trial. Tipton was charged with enticing a minor to produce child sexual abuse material. According to the criminal complaint, Tipton began communicating with the child victim through various social media platforms requesting and urging the then approximately 12 years old send him numerous pictures of the victim engaging in sexually explicit conduct.

On September 14, 2023, Miami-based businessman Sergey Karpushkin, a Belarussian citizen, pleaded guilty before Judge Kidd in Orlando, Florida to engaging in a scheme to violate U.S. sanctions and commit money laundering by conducting transactions for the purchase and acquisition of metal products valued at over $139 million from companies owned by Sergey Kurchenko, a sanctioned oligarch.

Overall Assessment

While on paper, Embry Kidd’s career may seem non-controversial and a consensus candidate for a seat on a circuit court in a state with two Republican U.S. Senators, it is almost guaranteed he will not receive the unanimous support Judge Charles R. Wilson did when he was confirmed to the same seat. With less than six months until the 2024 presidential election, the senate calendar is filled with numerous recess weeks along with an increasing urgency from the minority party to keep as many judicial seats vacant as they can in case there is a change in administration or the Senate composition as a result of the election. With the previous 14 U.S. Supreme Court Justices all having been previously nominated to one of the nation’s 13 circuit courts (Justice Kagan was nominated for but not confirmed to the U.S. Court of Appeals for the District of Columbia Circuit in 1999), a nominee such as Kidd could have decades on the bench on a crucial court, particularly with him being in his early 40s. 

In addition to the calendar, demographics could come into play during the confirmation process of Kidd. Two African-American men have been Justices on the nation’s highest court. While both Thurgood Marshall and Clarence Thomas had rough confirmations, you could make an argument that African American men have had an even rougher path to the second highest level of the nation’s judiciary, particularly in the previous dozen years. Since 2013, there has been a net deficit of African American men on the nation’s appellate courts, which have 179 authorized judgeships between them. A quick look at the past dozen years may show why that trend has occurred.

In 2013, President Obama nominated a trio of nominees to the widely recognized second-highest court in the nation, the U.S. Court of Appeals for the District of Columbia Circuit, including Robert L. Wilkins, who is African-American. Senate Republicans refused to confirm Wilkins or the other two nominees despite being in the minority. This was made possible by the filibuster which required 60 votes to confirm a judicial nominee in the 100 seat U.S. senate. Senate Majority Leader Harry Reid and senate Democrats voted to change senate rules to end the fillister which only required a simple majority to confirm circuit and district court nominees, leading to Wilkins’ eventual confirmation. 

None of President Trump’s 54 appellate judges were African-American (male or female) so the next example to look to would be Andre Mathis. Mathis was nominated by President Biden in 2021 to the United States Court of Appeals for the Sixth Circuit. His Tennessee home state senator Marsha Blackburn bashed the nomination claiming both home state Republican senators were not adequately consulted about the nomination. Blackburn accused Mathis of having a “rap sheet” due in part to three previous speeding tickets that he didn’t pay on time. Mathis was eventually confirmed, becoming the first Democrat appointed circuit court judge to be confirmed despite not having blue slips, a piece of paper used by the Senate Judiciary Committee to solicit views of home state senators on judicial nominees.

In 2022, President Biden nominated Jabari Wamble to the United States Court of Appeals for the Tenth Circuit. No action was taken on his nomination and it was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate at the start of the new year. In February 2023, Wamble was nominated again but this time to a lower court, the United States District Court for the District of Kansas. His nomination to that court was ultimately withdrawn in May 2023 with no public explanation.

With Embry Kidd being the fourth African-American man to be nominated to a United States circuit court in the past 12 years, he has the opportunity to reverse the near historically difficult paths the previous three mentioned nominees all faced on the road to confirmation. If he can, he could possibly be on any Democrat President’s list of potential candidates for future U.S. Supreme Court vacancies for decades. 

References

https://www.kansascity.com/news/politics-government/article275716501.html

https://www.whitehouse.gov/briefing-room/presidential-actions/2024/05/08/president-biden-names-forty-ninth-round-of-judicial-nominees/

https://www.ajc.com/news/atlanta-news/biden-taps-florida-judge-for-atlanta-based-federal-appeals-court/WMR5WINX6FCW3JT7NVXZ3M3PF4/

https://woodruffscholars.emory.edu/about/advisory-bios/kidd-embry.html

https://www.flmd.uscourts.gov/sites/flmd/files/documents/mdfl-8-19-mc-1-t-23-appointment-of-embry-kidd.pdf

https://cbc.house.gov/news/documentsingle.aspx?DocumentID=2511

https://www.tampabay.com/opinion/2021/02/15/this-black-history-month-remember-not-just-the-giants-of-our-courts-but-also-our-courts-history-column/

https://www.reuters.com/legal/government/11th-circuits-wilson-take-senior-status-creating-vacancy-2024-01-23/

https://www.justice.gov/usao-mdfl/pr/fugitive-extradited-dominican-republic-face-fraud-and-aggravated-identity-theft-charges

https://www.justice.gov/usao-mdfl/pr/security-guard-arrested-enticing-13-year-old-repeatedly-produce-sexually-explicit

https://www.justice.gov/usao-mdfl/pr/miami-based-businessman-pleads-guilty-conspiracy-violate-russia-ukraine-sanctions-and

https://www.floridatoday.com/story/news/2021/03/15/federal-judge-denies-bond-titusville-man-charged-over-capitol-riot-oath-keepers/4700778001/

https://www.youtube.com/watch?v=7WKb7M5EJ8E

https://www.reuters.com/legal/government/us-senate-confirms-biden-appellate-judge-pick-opposed-by-home-state-senators-2022-09-08/

https://news.bloomberglaw.com/us-law-week/us-district-court-nominee-wamble-withdraws-from-consideration

172 Comments

    • I’ve listened through Kidd’s hearing so far, nothing really explosive. Attendance was pretty light, Graham wasn’t present at the hearing so Lee acted as the Ranking Member. Lee did refer to Trump’s conviction where Durbin rebutted that the DOJ A) Had nothing to do with the hush money case and B) The DOJ is currently bringing charges against the President’s son and a Democratic Senator. Kidd only faced questions from Lee, Kennedy, and Blackburn on the Republican side. Wasn’t really hammered and did have a light exchange with Kennedy in the process. I’d still expect his vote to be party-line over not having blue slips from Florida’s Senators.

      Liked by 1 person

  4. Thanks for sharing. Sounds like it wasn’t explosive at least. I do not think Graham will support him without Rubio/Scott’s blue slip but I suppose there’s a distant chance at Murkowski/Collins.

    I expect Kidd to ultimately get with party line support (minus Manchin).

    Liked by 1 person

  5. The Miami Herald posted an article yesterday about Rubio and Scott and their proposed boycott of judges in the wake of the Trump verdict.

    “Even before Trump’s 34-count guilty verdict came out Thursday, both Rubio and Scott told the Miami Herald they were not moving forward with Biden’s nomination of Shaw-Wilder, claiming the White House had not properly consulted with them before announcing her appointment.”

    It doesn’t sound good for that nom. Not terribly surprising but still dissapointing.

    https://www.miamiherald.com/news/local/article288973935.html

    Liked by 1 person

    • If not judges, I’m fine with these confirming these kinds of nominees, since they’d be serving well after Biden’s term ends (27, 28, and 29 for these three nominees). Just reported out of their committee yesterday, so pretty quick considerations. Like the FTC/SEC/USPS board of governors there is a party balance requirement on that commission (no party can hold more than 3 of the 5 seats), so usually deals are struck between the two parties on these kinds of nominations and none of them should have any issues getting confirmed.

      Tuberville (who was one of the Senators who signed onto Lee’s statement about opposing any nominee) mentioned in an article about how from here on out the Senate would likely be focusing on nominations and judges. I’m not sure what’s entirely left for must-pass legislation, government funding does run out in September, so I’m not sure if they’d just run on continuing resolutions and kick the can to the next presidential term. I know last summer they passed the NDAA in the Senate (although I think that went to conference and wasn’t cleared in Congress until much later on the year), not sure if they’ll have to do that again at some point this year, and maybe a farm bill.

      Liked by 1 person

  7. I’ve been doing some research about the top feeders by circuit. It’s common nowadays to clerk for two judges before the SC so that’s why it has .5 at the end.

    1st: Boudin 29

    2nd: Calabresi 31.333

    3rd Tie Goodrich (judge 1940-1962) and Sirica 7

    4th Wilkinson 64.5

    5th Wisdom 17

    6th Sutton 28.5

    7th Posner 28

    8th Magill 3

    9th Kozinski 57.5

    10th Gorsuch 10

    11th Pryor 20.5

    DC Circuit Wright 37.5

    • I should note that I’m not including ex-clerks that sitting justices bring in. Alito and Gorsuch both did that a lot for there first few years. The third circuit is pretty weak when compared with the northeastern united states.
    • The eighth circuit is notoriously weak. Stras should be able to break the previous record but he’s still the tallest kid in kindergarten.
    • Edith Jones, despite being a judge for almost 40 years, still has sent less clerks to SCOTUS than John Wisdom (who existed in a time when justices would hire clerks right out of law school).

    Liked by 1 person

    • J Skelly Wright was a giant. Surprised Bazelon isn’t the guy there, but he may not have been a feeder in his early years.
      Kozinski kind of surprises me as he was more libertarian than conservative.
      The 3rd is pretty weak too. The 8th is not known for being an influence, the 3rd should have done better.

      Liked by 1 person

  8. Wow, 2.5 day work week and no judges lined up for next Tuesday means they don’t have the votes for any of the current 7 nominees that have passed the judiciary committee.

    That is insane.

    9 more DC Superior Court nominees are waiting to be confirmed, if you can’t do federal judges at least confirm these folks.

    Liked by 1 person

    • That 3-5 weeks would include the next two weeks the Senate is in session plus the two weeks during the 4th of July break, so a possibility he’s back in July. There’s also the one week break in July for the RNC, so maybe he comes back for the two weeks in July before the August recess?

      If they do get Menendez back for July, not that I expect anything but I’d at least cut into the first week for the August break, just say you’re making up time for being out for D-Day today and that I’d hate losing a week to the opposite party’s convention.

      I’ve seen various Republican Senators complain about the light Senate schedule and I ironically agree with them, mostly for the selfish fact that I’d like to maximize usage of the Senate calendar when your party has both the Presidency and the Senate.

      Liked by 1 person

      • About 6 weeks back, I admonished someone who was impatient about none of the party line nominees being confirmed yet. I told them that Leader Schumer knows what he’s doing better than any of us.

        Back then I had all the confidence in the world that we’d have at least a couple of the party line nominees confirmed before Menendez’s trial began. Yet here we are today guaranteed to wait another few weeks until the Menendez trial ends. I’m a lot less optimistic now about seeing Leader Schumer opportunistically take advantage of small time windows. Truth is I have not one damn clue how that guy thinks when it comes to scheduling judicial votes. 😕

        Liked by 1 person

      • There was some unfortunate timing with what the Senate had to deal with when we had Menendez in April, with the Mayorkas trial that House Republicans couldn’t make up their mind on when they were going to send the articles over, and then the legislation passed in that timeframe. Up until the last round of nominees that were voted out of the SJC, I think we were down to three or four district court nominees that best-case would need 50 votes/the VP to confirm (Ali, Sooknanan, Russell, Kasubhai).

        On the other hand, if Trump picks someone like JD Vance as his running mate, I wonder how much time Vance will miss to be out on the campaign trail, that’d at a minimum counter Menendez being out.

        Liked by 1 person

  12. Hello! Just found The Vetting Room blog and I love it! Subscribed! The Vetting Room readers may be interested in following my own blog, The Enlightenment, where I’ve been posting weekly coverage of the federal judiciary (confirmations, vacancies, hearings, etc.) for 6 months and running now.

    https://lifeisgoodblog.com/ <My blog.

    https://lifeisgoodblog.com/2024/05/31/the-judiciary-at-noon-24/ < My latest entry.

    I believe people here will know, why hasn’t Senate Majority Leader Schumer been scheduling more votes on judges? I understand Joe Manchin is not a reliable vote and Bob Menendez is not able to vote due to his corruption trial, but seeing the large numbers of Republicans not voting on the last few judges and the sheer number of nominees eligible for votes makes me wonder.

    Liked by 1 person

  13. @Ads

    I don’t know who you admonished 6 weeks ago. But I’ve been saying for 4 years that Schumer doesn’t know what he’s doing on scheduling confirmation votes.

    I have said then, and time and time again that it’s silly to think that Schumer will finally move on all the nominees (who have more or less been available for a floor vote for a while) once the trial is over. Or once a bill is out the way. Or after an urgent deadline. Or after a CODEL. Or after an extended break. Or after an illness. Or after any number of things we kid ourselves must be the reason for the delay. Ali, Sooknanan, Russell, Kasubhai, et al, have been available for votes before, between, and after many of those. Yet here we are.

    There’s no grand unifying theory behind it. It’s just a simple fact that some folks cannot accept: Dems are not generally in a rush to commit floor time on confirming judges, let alone the party line ones. After Menendez’s/a new senator’s return, I’m curious what’ll be the next “reason” for not confirming party-line nominees. Folks should start thinking of one.

    Also, whatever happened to Dequan?

    Liked by 1 person

  14. Interesting article about Latinas in the law that also touches on the demographic makeup of the federal judiciary and state supreme courts (pages 45-51): https://escholarship.org/content/qt67w299vn/qt67w299vn.pdf?t=sejzqy

    The article points out that the proportion of Black and AAPI federal judges is now in line with the general population after Biden’s efforts to diversify the judiciary. In fact, Black men and AAPI women are actually slightly overrepresented among federal judges.

    In contrast, Latinos and Latinas (and also white women, surprisingly) are now the most underrepresented groups in the federal judiciary, and there are apparently no Native American men who are federal judges.

    I think these statistics reflect the competing priorities that the WH often has to balance in terms of nominating judges from underrepresented backgrounds. Whereas Republicans have no incentive to care about demographic diversity, Dems have to juggle pressure from all of these groups (as well as the LGBT community) for more representation, and there’s no way to make everyone happy. For example, the WH has heavily focused on correcting the historic underrepresentation of Black women, but is now being criticized (including by a retired Obama appointee) for not maintaining the overrepresentation of Black men. But ultimately there’s a limited number of judicial vacancies to go around, and the number of vacancies that can go to historically underrepresented groups is reduced further by (1) mostly white Dem senators advocating for their (probably mostly white) friends or former legal counsels, and (2) the perception that white men are more moderate and thus easier to confirm.

    And lastly, although I agree that demographic diversity is important, Dems definitely use it as a crutch to justify otherwise milquetoast nominees. For example, I am not convinced that a person of color who has been (for example) a corporate lawyer/prosecutor their whole career is automatically better for communities of color than a civil rights lawyer/public defender who (regardless of their race) has actually worked with clients of color their whole career.

    Liked by 1 person

  15. Was just thinking about how around this time in June last year, there was one week where Dale Ho, Choudhury, and Merle were all confirmed on 50-49 votes, and then cloture on Rikelman to end the week (her vote felt like a blowout vote when she got Manchin, Collins, and Murkowski after the prior votes that week). Probably the first week that whole Congress we had utilized full Democratic attendance, after Fetterman and Feinstein’s extended absences? During those votes I wasn’t at ease until I would see A) Feinstein enter the chamber and vote and B) Hear the clerk call Fetterman’s vote since he just votes from one of the doors off-camera since he doesn’t want to suit up to walk onto the chamber. I remember being at lunch with my mom and aunts and being excited to head home and watch the Rikelman cloture vote haha.

    Hopefully we get a few more weeks of those kind of votes before the end of the year.

    Liked by 2 people

    • It’s a shame Murphy couldn’t find someone who’s less Republican for this seat, even if Hoffman is officially unaffiliated. Maybe Hoffman is just a big fan of Christie.

      Can’t wait for a Dem NJ governor to have the spine to do away with this ridiculous partisan balance *tradition* in NJ. More often then not, we can *now* expect NJ to have more Dem governors than Republicans, so this tradition will hurt Dems much more.
      But since we’re stuck with the tradition for the time mean, I guess Hoffman isn’t the worse Republican Murphy could have picked.

      Liked by 1 person

  17. With the seat of James Wynn being negotiated, I’ve wondered who is being considered? In my research, I found a name that caught my attention. Halifax County Superior Judge Brenda Branch is an experienced and qualified judge with a fascinating biography, including a working class background. Before earning her law degree, she worked as a maintenance mechanic in a paper mill. Afterwards, she’s been both a lawyer for social services and an ADA.

    She was first appointed to her position in 2007, becoming the first black woman to hold that position, and has won reelection since. She’s won awards from the NAACP and other organizations.

    The only problem for some would be her age (she’s 64 y/o), but that might make her more confirmable. Her varied life experience is inspiring and I’m not aware of any bad publicity. She was unopposed for reelection in 2016.

    Liked by 1 person

    • While 24 of Biden’s 49 circuit nominees have been judges, few have come from a similar level as Branch. There have been:

      12 district judges
      5 magistrate judges
      3 from states’ top courts
      2 from states’ second-highest courts
      2 from lower courts: Holly Thomas (LA Co. superior) and DeAndrea Benjamin (two-county circuit court), both of whom are considerably younger

      I could see her being considered in a district court deal a lot easier than a circuit vacancy.

      Liked by 1 person

    • Ridiculous.

      The two Republicans would get away with murder with such an elderly nominee.

      I don’t see the utility in randomly picking out anyone with a gavel and pretending that gives them a shot at nomination.

      As things stand right now in NC, under no circumstances would it be acceptable for Biden to nominate a social security-eligible circuit court candidate. Not for 2 district court seats, not even for 4.

      Liked by 1 person

      • Yeah agree with @Gavi here – given her age and lack of traditional qualifications, Branch would have to be unusually well-connected/have some powerful backers (like Clyburn-level) for her to be considered. Until there’s any evidence of that, we’re better off focusing on more plausible candidates.

        Liked by 1 person

  18. So while the Senate won’t be voting on anything too exciting this week (the three Nuclear Advisory Board nominees and to confirm the State Dept. nominee whose cloture was invoked last Thursday most likely, in addition to the IVF bill), it should still be an important week for judiciary news, since we need nominees on Wednesday to be lined up for a 7/10 hearing, and the SJC has a meeting to vote out several nominees this Thursday. Would bank on an explosive hearing since Republicans will likely want to take a few more shots at Netburn, but anybody not voted out on party-lines could at least be confirmed by a Menendez-less Senate in the meantime.

    Liked by 1 person

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