Tiffany Cunningham – Nominee to the U.S. Court of Appeals in the Federal Circuit

The Federal Circuit is the only federal appellate court that has never had an African American judge serving on it.  President Biden’s nomination of Chicago litigator Tiffany Cunningham, however, fixes this aberration while adding a seasoned patent litigator to the court.

Background

Tiffany P. Cunningham received a B. Sc. from Massachusetts Institute of Technology in 1998 and received a J.D. from Harvard Law School in 2001.  After graduating, Cunningham clerked for Judge Timothy Dyk on the U.S. Court of Appeals for the Federal Circuit.

After her clerkship, Cunningham joined the Chicago office of Kirkland & Ellis as an Associate.  In 2007, Cunningham became a Partner with the firm.  In 2014, she shifted to become a Partner with Perkins Coie, where she currently works.

History of the Seat

Cunningham has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit.  The seat will open on May 31, 2021 when Judge Evan Wallach moves to senior status.

Political Activity

As of 2021, Cunningham has donated relatively rarely to political candidates, making a contribution to President Obama in 2012, and to Hillary Clinton in 2016.[1]

Legal Career

After her clerkship on the Federal Circuit, Cunningham has spent the next twenty years of her career as a patent litigator, serving this role both at Kirkland & Ellis and at Perkins Coie.  Between these two positions, Cunningham has represented plaintiffs and defendants across the country in patent litigation.  

For example, while at Kirkland & Ellis, Cunningham was part of the legal team for Caterpillar, Inc. who successfully persuaded the Federal Circuit to reverse a jury decision finding that the company had misappropriated trade secrets and breached its contract.[2]  On the district court level, Cunningham defended Syngenta Crop Protection LLC in a patent infringement lawsuit brought by Bayer Cropscience Inc.[3]  

Similarly, while at Perkins Coie, Cunningham represented Intel Corp. before the Delaware Chancery Court in a dispute over the technology used in Wi-Fi products.[4]  

Overall Assessment

Perhaps because of the court’s specialized docket, nominees to the Federal Circuit don’t usually attract the same degree of controversy as nominees to the other courts of appeals.  Cunningham, who has extensive experience in the court’s IP-heavy docket, is unlikely to break this pattern, and will likely be confirmed with broad support.

[1]Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=Tiffany+Cunningham&cycle=&state=IL&zip=&employ=&cand= (last visited Apr. 3, 2021).

[2]See Caterpillar Inc. v. Sturman Indus., 387 F.3d 1358 (Fed. Cir. 2004).

[3] See Bayer Cropscience, Inc. v. Syngenta Crop Prot. LLC, 979 F. Supp. 2d 653 (M.D.N.C. 2013).

[4] See Jeff Montgomery, Intel Wins Early Round in Chancery Suit Over Sanyo License, Law 360, Mar. 1, 2021. See also Sanyo Elec. Co. Ltd. v. Intel. Corp., C.A. No. 2018-0723-MTZ, 2021 Del. Ch. LEXIS 35 (Del. Ch. Feb. 26, 2021).

Judge Deborah Boardman – Nominee to the U.S. District Court for the District of Maryland

In 2019, Judge Stephanie Gallagher, a magistrate judge in the District of Maryland, was confirmed to the federal bench.  She was replaced as a magistrate judge by federal public defender Deborah Boardman.  Boardman herself is now a nominee to join Gallagher on the Maryland District Court.

Background

The 46-year-old Boardman was born in Silver Spring, Maryland and grew up in nearby Frederick.  Boardman received a B.A. summa cum laude from Villanova University in 1996, and then spent a year in Amman, Jordan, on a Fulbright Scholarship.  Boardman then obtained a J.D. from the University of Virginia School of Law in 2000.

After graduation, Boardman clerked for Judge James Cacheris on the U.S. District Court for the Eastern District of Virginia. She then joined the D.C. office of Hogan & Hartson as an associate.  In 2008, Boardman left the firm to become a federal public defender in Maryland. 

In 2019, when Gallagher was elevated to be a U.S. District Judge, Boardman was appointed to replace her as a U.S. Magistrate Judge, where she currently serves.

History of the Seat

Boardman has been nominated for a seat on the U.S. District Court for the District of Maryland.  While the exact seat has not been specified, Boardman will likely fill the seat opened by Judge Richard Bennett’s move to senior status upon the confirmation of his successor.

Legal Career

Boardman began her legal career as a law clerk on the Eastern District of Virginia.  From 2001 to 2008, she worked as an associate at Hogan & Hartson in Washington D.C.  During her tenure there, Boardman worked on the legal team for Derek Tice, a former Navy officer who had been convicted of rape and murder in Norfolk.[1]  Boardman was able to convince Judge Everett Martin to overturn Tice’s conviction based on violations of his right against self-incrimination.[2] However, Martin’s decision was overturned by the Virginia Supreme Court (in a decision written by future Fourth Circuit Judge Barbara Keenan).

From 2008 to 2019, Boardman worked as a Federal Public Defender in Maryland, where she represented indigent defendants in federal court.  Among her notable matters there, Boardman represented Thomas Drake, an employee of the National Security Agency charged with mishandling classified information.[3]  The prosecution ended with the dropping of all charges in exchange for a plea on a single misdemeanor.  Boardman also represented Anthony McIntosh, a Prince George’s County jail worker who was charged with failing to seek medical attention when coming across an inmate who was found “hanging from a sheet in his cell.”[4] 

Political Activity

Boardman has a couple of political donations under her belt.  In 2007, Boardman gave $500 to the Presidential campaign of Hillary Clinton, while in 2008, she gave $300 to Sen. Barack Obama’s campaign.

Jurisprudence 

Boardman has served as a U.S. Magistrate judge in Maryland since her appointment in 2019.  In this role, she handles settlement, discovery, and makes recommendations on dispositive motions.  She also presides over cases where the parties consent.

Given her short tenure as a magistrate, Boardman has relatively few substantive decisions under her belt, generally involving issues of pretrial release and detention.  For example, Boardman denied the government’s motion to hold Michael Davis, who was charged with drug and firearm related offenses, finding that Davis has no history of violence and there were conditions other than detention that could protect the community.[5]

In another case, Boardman granted an inmate’s motion for pretrial release, noting that the COVID-19 pandemic materially changed the circumstances of his detention and that additional conditions could ensure the safety of the community.[6]  

Overall Assessment

With two decades of litigation experience, and a relatively uncontroversial background, Boardman should, barring the unexpected, see a relatively comfortable confirmation to the District of Maryland.

[1]See Matt Reed, Judge Overturns Conviction in 1997 Norfolk Murder Case, A.P., Nov. 30, 2006.

[2]Id.

[3] See Alex Dominguez, Motion to Drop Charges in NSA Leaks Case Denied, A.P., March 31, 2011.

[4] See Brian White, Man Pleads Guilty in Case Involving Inmate Death, A.P., Jan. 4, 2013.

[5]United States v. Davis, 449 F. Supp. 3d 532 (D. Md. 2020).

[6] United States v. Shaheed, 455 F. Supp. 225 (D. Md. 2020).

Judge Lydia Griggsby – Nominee to the U.S. District Court for the District of Maryland

Judge Lydia Griggsby, nominated to be a federal trial judge in Maryland, should have a short learning curve for her new role, given that she has served as a trial judge on the specialized Court of Federal Claims for the last seven years.

Background

A native Marylander, Lydia Kay Griggsby was born on January 16, 1968 in Baltimore.  Griggsby received a B.A. from the University of Pennsylvania in 1990, and then obtained a J.D. from the Georgetown University Law Center in 1993.[1]

After graduation, Griggsby worked for the Baltimore office of DLA Piper for two years before joining the U.S. Department of Justice as a trial attorney. [2]  In 1998, Griggsby became a federal prosecutor with the U.S. Attorney’s Office for the District of Columbia.

In 2004, Griggsby left to become Counsel for the Senate Committee on Ethics.  In 2006, she became Counsel to Sen. Patrick Leahy at the Senate Judiciary Committee, working on privacy and technology issues.[3]

In 2014, Griggsby was nominated by President Obama to be a Judge on the U.S. Court of Federal Claims, replacing Judge Francis Allegra.  Griggsby was confirmed by voice vote on December 5, 2014, and has served in that position ever since.

History of the Seat

Griggsby has been nominated for a seat on the U.S. District Court for the District of Maryland.  While the exact seat has not been specified, Griggsby will likely fill the seat opened by Judge Ellen Lipton Hollander’s move to senior status upon the confirmation of her successor.

Legal Career

Griggsby has held a number of positions throughout her career, including work in private practice, for the federal government, and as a staffer for the U.S. Senate.  Interestingly, by her own description, most of these roles did not involve Griggsby working on litigation, and Griggsby did not actively try any cases except on the pleadings.[4]

Nonetheless, Griggsby has worked on a number of complex cases.  For example, Griggsby worked as part of the federal government in negotiating a consent decree requiring better environmental protections in vehicles produced by Toyota. [5]  She also defended the Bureau of Prisons against a constitutional lawsuit challenging regulations governing the inmates’ use of mail.[6] 

Political Activity

Griggsby has a fairly short political history, consisting primarily of two stints conducting voter protection for the Obama campaigns in 2008 and 2012.[7]

Jurisprudence 

Griggsby has served as a U.S. Court of Federal Claims judge since her appointment in 2014.  In this role, she adjudicates suits involving monetary claims against the federal government as well as specialized cases, including vaccine injury suits.  Among her notable rulings on the Court of Federal Claims, Griggsby ruled, in a decision upheld by the Federal Circuit, that a protester to the award of a government contract did not have standing to file a challenge if the protester was unable to perform the contract.[8]  

Overall Assessment

Seven years ago, Griggsby was confirmed unanimously for a seat on the Court of Federal Claims.  Given the lack of controversy in her background, there is little reason to think that her confirmation to the District of Maryland will be too different.

[1]See Sen. Comm. on the Judiciary, 113rd Cong., Lydia Griggsby: Questionnaire for Judicial Nominees 1.

[2]Id. at 2.

[3] See id.

[4] Id. at 14-15.

[5]See United States v. Toyota Motor Corp., No. 99-018888 (D.D.C. July 1, 2003).

[6] McCain v. Reno, 98 F. Supp. 2d 5 (D.D.C. 2000).

[7] See Griggsby, supra n. 1 at 11.

[8] See Stuart Turner and Nathaniel Castellano, Fed. Circ. Ruling Highlights Bid Protester Standing Issues, Mondaq, Sept. 28, 2018.

Judge Florence Pan – Nominee to the U.S. District Court for the District of Columbia

In 2016, D.C. Superior Court Judge Florence Pan became the first Asian woman tapped for the U.S. District Court for the District of Columbia.  Despite a favorable recommendation from the Republican-controlled Senate Judiciary Committee, Pan’s nomination was never confirmed.  Now, more than four years later, Pan has a second chance to join the federal bench.     

Background

Born in 1966, Florence Yu Pan graduated summa cum laude from the University of Pennsylvania in 1988 and then received her J.D. cum laude from Stanford Law School in 1993. 

After graduating, Pan clerked for Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and for Judge Ralph Winter on the U.S. Court of Appeals for the D.C. Circuit before joining the Department of Justice as a Bristow Fellow in the Office of the Solicitor General.  Pan then worked in the Department of Treasury between 1998 and 1999.

In 1999, Pan became a federal prosecutor with the U.S. Attorney’s Office for the District of Columbia.  She stayed with the office until her appointment by President Obama to the D.C. Superior Court in 2009.  

On April 28, 2016, Pan was nominated by President Barack Obama to become a U.S. District Judge on the U.S. District Court for the District of Columbia, replacing Judge Reggie Walton.  However, her nomination was not confirmed by the U.S. Senate, which was then under Republican control, and after President Donald Trump was elected, he nominated Dabney Freidrich to fill the vacancy.

History of the Seat

The seat Pan has been nominated for will open upon the confirmation of Judge Ketanji Jackson to the U.S. Court of Appeals for the D.C. Circuit.  

Legal Experience

Pan started her legal career as a clerk to Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and then for Judge Ralph Winter on the U.S. Court of Appeals for the Second Circuit.  Since then, Pan worked for the federal government until her appointment to the D.C. Superior Court, going from the Department of Justice to the Department of the Treasury to the U.S. Attorney’s Office.  During her tenure, Pan tried around forty cases, half of which were jury trials. 

Among the significant matters that she worked on, Pan argued before the en banc D.C. Circuit in support of the police partially unzipping the jacket of a suspect during a Terry stop. See U.S. v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) (en banc).  The D.C. Circuit ruled against her on the issue, finding that the facts surrounding the stop did not create reasonable suspicion for unzipping the jacket. See id.

Pan also argued in front of the D.C. Court of Appeals in defending a conviction against a defendant alleging an insanity defense to killing her child. See McNeil v. United States, 933 A.2d 354 (D.C. 2007).  The D.C. Court of Appeals overturned the conviction, finding that the prosecutor below improperly used the defendant’s invocation of her Miranda rights to argue that she was sane. See id. at 369.

Judicial Experience

Since her confirmation in 2009, Pan has served as a Judge on the D.C. Superior Court.  She started her time in the court on a Felony docket, but has since served on the Family, Misdemeanor, and Civil dockets as well.     

While serving on the Felony docket, Pan presided over a number of prosecutions of violent offenders, frequently handing out significant sentences, including a 15-year-sentence for a man who assaulted a victim in LeDroit Park, a 12-year-sentence for a man who stabbed the victim in Southeast D.C., and a 60-year-sentence to Antwon Pitt, who sexually assaulted a woman in Southeast D.C. as part of two home invasions.  On the civil side, Pan dismissed a lawsuit filed by the Center for Inquiry against Walmart for selling homeopathic medicines.

In her twelve years on the bench, a handful of Pan’s rulings have been reversed by the D.C. Court of Appeals.  In two cases, Pan presided over convictions for assault with significant bodily injury that were reversed because the Court of Appeals found insufficient evidence of significant injury. Compare In re D.P., 122 A.3d 903 (D.C. 2015) with Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013).  On the civil side, in 2020, the D.C. Court of Appeals reversed Pan’s decision not to award treble damages in a wage-and-hour suit, finding that she had no discretion not to award the damages. Sivaraman v. Guizzetti & Associates., 228 A.3d 1066 (D.C. 2020).

Political Activity

Pan made a $500 contribution to the Presidential Campaign of John Kerry in 2004, her only contribution of record.  

Overall Assessment

This will be the third time that Pan has faced the U.S. Senate. In 2009, she was confirmed unanimously by a Democratic-controlled Senate. In 2016, she was approved by a Republican-controlled Committee but ultimately did not receive a confirmation vote before the U.S. Senate. Today, with a relatively uncontroversial moderate-liberal record, Pan is favored for a bipartisan confirmation.

Judge Ketanji Brown Jackson – Nominee to the U.S. Court of Appeals for the D.C. Circuit

For the last eight years, Judge Ketanji Brown Jackson has served on the U.S. District Court in Washington D.C., making her mark in a number of prominent cases, and making a presidential shortlist for the Supreme Court twice.  As she is now nominated to the prestigious D.C. Circuit, a potential Supreme Court nomination becomes even more likely.

Background

A D.C. native, Jackson was born Ketanji Onyika Brown on September 14, 1970, the daughter of an attorney and a school principal.  Jackson graduated magna cum laude from Harvard University in 1992 and from Harvard Law School in 1996.[1]  After graduating, Jackson clerked for Judge Patti Saris on the U.S. District Court for the District of Massachusetts and for Judge Bruce Selya on the U.S. Court of Appeals for the First Circuit before clerking for Justice Stephen Breyer on the U.S. Supreme Court.[2] 

After her clerkships, Jackson joined the Boston office of Goodwin Proctor as an Associate.[3]  In 2002, Jackson moved back to D.C. to work for The Feinberg Group, LLP as an Associate, but moved just an year later to the U.S. Sentencing Commission to be Assistant Special Counsel.[4] 

In 2005, Jackson joined the Federal Public Defender’s Office in Washington D.C.[5]  Two years later, Jackson moved to the D.C. Office of Morrison & Foerster as Of Counsel.

In 2010, Jackson was nominated by President Obama and confirmed by the U.S. Senate to the U.S. Sentencing Commission.  She served there until her 2013 confirmation to the U.S. District Court for the District of Columbia, where she currently serves.

History of the Seat

Jackson has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit.  She will either fill the seat opened by the confirmation of Judge Merrick Garland to be U.S. Attorney General on March 10, 2021, or the vacancy opened by Judge David Tatel’s move to senior status upon the confirmation of his successor.

Political Activity

In 2008, Jackson gave $400 to President Obama’s campaign.[6]  Additionally, Jackson volunteered as an election poll monitor for the Obama campaign in the primaries and the general election.[7] 

Legal Career

Setting aside her clerkships, Jackson’s pre-bench career can largely be divided into three categories: working on sentencing with the U.S. Sentencing Commission; working as a federal public defender; and working in private practice.  

U.S. Sentencing Commission

From 2010 to 2013, Jackson served as a Commissioner on the U.S. Sentencing Commission, an independent agency that creates the guidelines used by federal judges in sentencing after conviction.  Jackson had previously served as a staffer with the Commission from 2003 to 2005.  As a Commissioner, Jackson worked on criminal sentencing policy, including working with the federal judiciary on changes to the guidelines.  

Federal Public Defender

Between 2005 and 2007, Jackson worked as a Federal Public Defender in the District of Columbia.[8]  During this time, Jackson had around ten appearances in federal court, including arguments before the D.C. Circuit.[9]  Among her more significant cases, Jackson was able to get the D.C. Circuit to overturn a conviction for felon in possession of a firearm based on improper voir dire by the district judge.[10] 

Private Practice

Jackson has had a number of stints in private practice, including from 1998 to 1999, 2000 to 2003, and 2003 to 2007.[11]  In these roles, Jackson worked on civil litigation at both the trial and appellate levels.  For example, Jackson successfully convinced the D.C. Court of Appeals to reverse a $350,000 civil forfeiture award against the Washington Light Gas Company.[12]  Jackson also represented the non-profit Rails-to-Trails Conservancy in litigation regarding government use of abandoned railroad corridors and conversion to public spaces.[13] 

Jurisprudence

Since her unanimous confirmation in 2013, Jackson has served as a federal district judge on the U.S. District Court for the District of Columbia.  In this capacity, Jackson has presided over a number of newsworthy cases.  Some of the key ones are summarized below.

U.S.D.A. Country of Origin Labels

Early in her tenure on the bench, Jackson presided over a challenge of the U.S. Department of Agriculture’s rule requiring meat to be labeled with country of origin.[14]  Jackson denied a preliminary injunction against the rule, finding that the rule could not cause irreparable damage to the plaintiff meatpackers.[15] 

H.H.S. Teen Pregnancy Prevention Program

In 2018, Jackson reviewed a suit brought by Texas nonprofit Healthy Futures of Texas after five-year-grants for anti-teen pregnancy programs offered by the U.S. Department of Health and Human Services were terminated two years early.[16]  Jackson ruled that the early termination was “arbitrary and capricious” joining four other district court judges in so ruling.[17] 

Border Wall Waiver

In 2019, Jackson dismissed a lawsuit brought against the Trump Administration’s decision to waive environmental laws in building its border wall.[18]  Jackson ruled that she lacked jurisdiction over the claims under the Illegal Immigration Reform and Immigrant Responsibility Act.[19] 

Expansion of “Fast Track” Deportations

In 2019, Jackson enjoined a U.S. Department of Homeland Security rule that expanded the use of “fast track” deportation procedures, allowing immigrants to be deported with more limited procedural protections.[20] Jackson ruled that the agency rule was “arbitrary and capricious” and that the agency violated the Administrative Procedure Act by not seeking public comment before issuing the rule.[21] 

House Judiciary Subpoenas Against Don McGahn

In 2019, Jackson reviewed a lawsuit filed by the House Judiciary Committee seeking to compel the testimony of former White House Counsel Don McGahn.[22]  Jackson rejected the Administration’s claims of absolute privilege, ruling that McGahn could be compelled to testify.[23]  In February 2020, a 2-1 panel of the D.C. Circuit overturned Jackson’s ruling, finding that the Separation of Powers prevented the House from compelling testimony from the Executive Branch.  However, the full D.C. Circuit vacated the panel decision and affirmed Jackson’s original decision on a 7-2 vote.[24] 

Overall Assessment

Given her stellar academic credentials (including a prestigious Supreme Court clerkship) and her tenure on the district court, Ketanji Jackson has a distinguished record for the appellate bench.  Furthermore, if confirmed, Jackson would be primed for a history-making nomination to the Supreme Court.

However, it is that trajectory to the high court that is likely to make Jackson controversial.  Critics may point to Jackson’s rulings against the Trump Administration and in favor of endorsing the McGahn subpoena to argue that she is too liberal to sit on the D.C. Circuit. In contrast, her supporters will likely note that Jackson has sided with the Trump Administration in a number of suits as well, including the suit over the Board Wall, and that her overall record is respected in the legal community.

In the end, Jackson has the advantage of a narrow Democratic majority in the U.S. Senate.  Assuming the caucus holds together, she will likely be confirmed in due course.


[1]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[2]Jackson’s clerk class included 7th Circuit Judge Michael Scudder, Texas Supreme Court Justice Brett Busby, and appellate superstar Kannon Shanmugam. 

[3] See Jackson, supra n. 1 at 2.

[4] Id.

[5]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[7] See Jackson, supra n. 1 at 20.

[8] Id. at 23.

[9]See id. at 24.

[10] United States v. Littejohn, 489 F.3d 1335 (D.C. Cir. 2007). 

[11] See Jackson, supra n. 1 at 22-23.

[12] See Washington Gas Light Co. v. Pub. Service Comm’n of D.C., 982 A.2d 691 (D.C. 2009).

[13]See Ladd v. United States, No. 1:07-cv-271 (Fed. Cl., Oct. 14, 2009).

[14] Charles Abbott, New U.S. Meat Rule Survives Challenge by Meat Packers, Reuters, Sept. 11, 2013, https://www.reuters.com/article/us-usa-meat-labeling-idUSBRE98A14U20130911.

[15] See id.

[16] Jennifer Hansler, HHS Loses Another Court Battle Over Teen Pregnancy Prevention Grant Funding, CNN, June 4, 2018, https://www.cnn.com/2018/06/02/politics/hhs-teen-pregnancy-program-dc-district-court/index.html.

[17]See id.

[18] Barbara Grzincic, Trump Administration Can Waive Enviro Laws for Border Wall – Judge, Reuters, Sept. 5, 2019, https://www.reuters.com/article/border-wall-waiver-lawsuit-idUSL2N25X00X.

[19] See id.

[20] Spencer Hsu, Judge Bars Trump Fast-Track Deportation Policy, Saying Threat to Legal Migrants Was Not Assessed, Wash. Post, Sept. 28, 2019, https://www.washingtonpost.com/local/legal-issues/judge-bars-trump-fast-track-deportation-policy-saying-threat-to-legal-migrants-was-not-assessed/2019/09/28/cf3d237e-e1ed-11e9-b199-f638bf2c340f_story.html.

[21]See Josh Gerstein, Judge Blocks Trump Plan to Expand Fast-Track Deportations, Politico, Sept. 28, 2019, https://www.politico.com/news/2019/09/28/judge-blocks-trump-fast-track-deportations-007717.

[22] In re Don McGahn, 1:19-cv-02379, D.D.C. 2019.

[23] Bobby Allyn, In Blow to White House, Federal Judge Rules That Don McGahn Must Testify, Nat’l Pub. Radio, Nov. 25, 2019, https://www.npr.org/2019/11/25/782705643/federal-judge-rules-that-mcgahn-must-testify-delivering-blow-to-white-house.

[24] Josh Gerstein and Kyle Cheney, Appeals Court Rejects Key Argument Against McGahn Subpoena, Politico, Aug. 7, 2020, https://www.politico.com/news/2020/08/07/appeals-court-rules-mcgahn-must-testify-392562.

What Can We Expect From the Early Batches of Biden Judges

Last week, we discussed the timing of judicial nominations from the new Administration, specifically, that they were unlikely to hit the Senate until March at the earliest.  Today, we’ll discuss who we can expect to see in that first batch.  As we discussed, district court nominees generally arise from home state senator recommendations, which, in many states, have yet to be submitted.  As such, it is likely that appellate nominees will come at a faster pace than district court nominees.  The Biden Administration came into office with two unfilled appellate vacancies.  Since then, an additional four vacancies have been announced.  As such, we could expect to see nominees for one to six appellate seats as part of the first batch.  Here’s who might be included:

D.C. Circuit – seat to be vacated by Judge Merrick Garland

Yes, technically there is no vacancy on the D.C. Circuit at the moment.  However, the consensus in Washington is that Judge Merrick Garland will be confirmed by the U.S. Attorney General in February, and, will (although he doesn’t have to) vacate his seat upon confirmation.  It’s also assumed that the expected nominee for this seat will be Judge Ketanji Brown Jackson.  The former Supreme Court clerk and public defender was confirmed unanimously to the U.S. District Court for the District of Columbia in 2013 and is a shortlister for a Supreme Court vacancy.  Given her profile, it would not have been surprising for the Administration to have been vetting her to replace Garland alongside Garland’s own vetting for Attorney General.  As such, barring something unexpected in the vetting process (or the judge declining to be considered), Judge Jackson’s nomination to the D.C. Circuit will likely be in the first batch of judicial nominees announced.

First Circuit – Puerto Rico seat

The lone judge from Puerto Rico on the First Circuit, Judge Juan Torruella, passed away on October 26, 2020.  The Trump Administration nominated U.S. District Judge Raul Arias-Marxuach for the vacancy in November, and, while Judge Arias-Marxuach was given a hearing, his nomination was never confirmed before the end of the Trump Administration.  While Senator Lindsey Graham has suggested that the Biden Administration renominate Judge Arias-Marxuach, it’s more likely that the Administration will choose their own candidate.  A strong contender would be the 40-year-old Margarita Mercado Echegeray, the former Solicitor General of Puerto Rico, and a former clerk to Torruella on the First Circuit.  Echegeray would not only be the first Hispanic woman on the First Circuit, but would be young enough to be a strong future Supreme Court contender.  The Administration may also strongly consider Chief Justice Maite Oronoz Rodriguez of the Puerto Rico Supreme Court, who would be the first openly gay judge on the First Circuit if confirmed.

Second Circuit – New York seats

Judge Robert Katzmann’s move to senior status on January 21, 2021, opened up a prized vacancy on the Second Circuit.  Judge Denny Chin’s move on June 1, 2021 will open a second.  Democrats have an embarrassment of riches when it comes to New York based appellate candidates, but, given the influence of Senate Majority Leader Chuck Schumer in the appointment, four candidates are likely be strongly considered:

  1. Judge Alison Nathan – The 48-year-old jurist was the youngest judge in the country when she was narrowly confirmed to the Southern District of New York in 2011.  Today, the former clerk to Justice John Paul Stevens would be, if confirmed, the first openly gay jurist on the Second Circuit.
  2. Judge J. Paul Oetken – The 55-year-old Oetken is, like Nathan, a judge on the Southern District of New York confirmed in 2011, and was, at the time of his confirmation, the first openly gay male judge confirmed to the federal bench.  Oetken also came to the bench with glowing credentials, including a clerkship with Justice Harry Blackmun.
  3. Judge Jesse Furman – The 48-year-old Furman joins Oetken and Nathan as a trio of young, credentialed attorneys recommended by Schumer to the Southern District in 2011.  Furman is also a Supreme Court clerk (Justice David Souter) and has the distinction of presiding over the challenges to the Census Citizenship question, where his injunction against the question was upheld by the U.S. Supreme Court.
  4. Caitlin Halligan – The 54-year-old Halligan was also, at Schumer’s recommendation, nominated to the federal bench by President Obama in 2010.  However, unlike the other nominees noted above, the former New York Solicitor General and clerk to Justice Stephen Breyer was filibustered by Republicans, and her nomination to the D.C. Circuit was never confirmed.  Now, with the judicial filibuster gone, Halligan has a second chance at an appellate seat.

Of course, all four candidates above have relatively conventional resumes for appellate nominees, and liberals may seek more dynamic candidates.  Two options are NYU Law Professor Melissa Murray, who testified against Justice Brett Kavanaugh’s nomination in 2018, and Director of the ACLU’s Voting Rights Project Dale Ho.  Both would attract strong Republican opposition, but have more unconventional backgrounds that might motivate liberals.  Furthermore, both in their early 40s, Ho and Murray could add a decade of judicial tenure over the previously mentioned candidates.

One wrinkle is that it isn’t perfectly clear if Katzmann’s seat should go to a New York nominee.  When the Second Circuit was enlarged to 13 seats in 1984, both new seats were filled by President Reagan with New York judges, assigning 9 judges to New York, 3 to Connecticut, and one to Vermont.  This ratio held until 1993, when Judge Thomas Meskill (from Connecticut) moved to senior status.  At the time, Hispanic groups were advocating for Connecticut District Judge Jose Cabranes to be nominated for the U.S. Supreme Court.  With Cabranes’ record on the bench being fairly conservative, Connecticut Senators instead pushed for Cabranes to replace Meskill on the Second Circuit.  However, President Clinton already had a candidate for the vacancy, his old law professor Guido Calabresi.  Seeking a compromise, and with the consent of New York Senator Daniel Moynihan, Clinton instead nominated Cabranes to replace Judge Richard Cardamone, filling a New York seat on the court, and shifting the ratio of judges on the Second Circuit.

In 1997, the Connecticut-based Jon Newman moved to senior status.  In seeking to replace Newman, the Clinton Administration vetted Connecticut Attorney General Richard Blumenthal, before the latter withdrew from consideration in favor of running for re-election.  Clinton then chose Robert Katzmann, a professor at Georgetown Law in Washington D.C.  After being confirmed, Katzmann set up his chambers in New York, restoring the 9-3 split that was disrupted by Cabranes’ confirmation.

However, the turf battle between the two states didn’t end there.  In 2000, Connecticut-based Judge Ralph Winter moved to senior status, and the Clinton Administration again prepped Blumenthal to fill the vacancy.  However, Clinton never made the nomination official, and the seat remained empty when the Bush Administration came to office.  President Bush, upon Schumer’s recommendation, chose a New York-based federal judge, Barrington Daniels Parker, to fill the vacancy.  Parker’s confirmation reduced Connecticut to just 2 seats on the Second Circuit.

Parker took senior status in 2009, and President Obama then restored the seat to Connecticut, appointing Yale General Counsel Susan Carney.  That restored the 9-3 ratio which holds to this day.

Now, with Katzmann’s move to senior status, it remains to be seen if Blumenthal, now a U.S. Senator from Connecticut, will push for the seat to be restored to Connecticut as the Carney seat was.  If he’s successful in that push, Connecticut Supreme Court Justice Raheem Mullins would be an attractive pick (despite a decade on the bench, Mullins is only 42).

Regardless of who the White House picks, however, the Administration is likely to move relatively quickly on a nominee, and it wouldn’t be surprising to see a Second Circuit nominee among the first batch.

Seventh Circuit – Illinois seat

This Illinois seat on the Seventh Circuit opened on November 30, 2020, when Judge Joel Flaum moved to senior status.  Similar to New York, Democrats have many options when it comes to qualified appellate nominees in Illinois.  However, two judges on the Northern District of Illinois are likely to be strongly considered:

  1. Judge Gary Feinerman – The 55-year-old judge comes from an illustrious background.  He clerked for Justice Anthony Kennedy on the U.S. Supreme Court, and two of his co-clerks, Justices Neil Gorsuch and Brett Kavanaugh, now sit on the U.S. Supreme Court.  Feinerman, for his part, served as Illinois Solicitor General and a Partner at Sidley Austin before being appointed to the federal bench in 2010.
  2. Judge Andrea Wood – The 47-year-old Wood has served on the federal bench since 2013, when, at age 40, she was the youngest federal judge in the country.  As President Biden seeks to diversify candidates for the Supreme Court, Judge Wood would be a prime candidate to elevate.

Tenth Circuit – Colorado Seat

Judge Carlos Lucero’s move to senior status off of the Tenth Circuit was only made official today, and was announced just three days ago.  As such, it is unlikely that the White House would have a nominee ready for Lucero’s seat by March.  However, two Colorado Supreme Court Justices would make intriguing selections:

Justice Monica Marquez would be, if confirmed, the first openly gay judge on the Tenth Circuit.  The 51-year-old jurist has served on the Colorado Supreme Court since 2010 and has charted a relatively liberal path on the court.

Similarly the 50-year-old Justice Melissa Hart is also impeccably qualified, having clerked on the U.S. Supreme Court for Justice John Paul Stevens, and having replaced another SCOTUS clerk who was tapped for the Tenth Circuit, Judge Allison Eid, on the Colorado Supreme Court.

District Court

In addition to the above-mentioned appellate seats, the first batch of White House nominees is likely to include some nominees for vacancies in California, New York, Nevada, and Washington, likely renominating acceptable picks from the Obama and Trump Administrations.  The White House may specifically consider the following:

  • California
    • U.S. Magistrate Judge Steve Kim
    • San Diego Criminal Defense Attorney Knut Johnson
    • Jones Day Partner Shireen Matthews
  • Colorado
    • Wilmer Hale Partner Regina Rodriguez
  • District of Columbia (assuming Jackson is elevated, opening up her seat on the district court)
    • Latham & Watkins Partner Abid Qureshi, who would be, if confirmed the first Muslim Article III judge.
  • Nevada
    • University of Nevada-Las Vegas Professor Anne Rachel Traum
  • New York
    • Dechert Partner Hector Gonzalez
    • Gibson Dunn Partner Jennifer Rearden
  • Washington
    • King County Superior Court Judge Beth Andrus
    • King County Superior Court Judge J. Michael Diaz
    • AUSA Tessa Gorman
    • Perkins Coie Partner Kathleen O’Sullivan

The Timing of Judicial Nominations – When Can We Expect the First

We’re a week into the Biden Administration, and, so far, things are off to a slow start, at least on the confirmation front.  Unlike the relatively swift pace of confirmations that kicked off the Bush and Obama Administrations, the Senate has, thus far, confirmed just four nominations, matching the pace set under President Trump.  What has moved fast, in contrast, is the pace of judicial vacancies, as a total of 17 federal judges (1 circuit; 16 district) have either moved to senior status or announced their departures in the past week.  With the number of judicial vacancies growing rapidly, it’s worth asking when the White House will start nominating judges.

The process before a nominee is sent to the senate is fairly extensive.  For district court judges, it typically starts with a recommendation made by a home-state senator or representative.  Some senators will solicit applications through a public process, while others recommend based on references or pre-existing relationships.  The Biden Administration has instructed Democratic Senators to submit recommendations for existing vacancies by January 19.  While not many senators have met that deadline, it’s safe to say the White House has at least a few names to begin considering.

After the recommendation, the nominee is submitted to the Department of Justice for vetting, where the Office of Legal Policy reviews the nominee’s background, character, and experience.  This process can be lengthier or shorter depending on the nominee, but will typically take at least a few weeks.  Simultaneous to this process, the nominee will also undergo review by the Federal Bureau of Investigation.

If multiple candidates for a vacancy go through the vetting process, the White House must select who will be the primary candidate.  Assuming that no issues have arisen during the vetting process, the nominee can then be formally announced and submitted to the Senate.

One wrinkle is that most Administrations (barring only the second Bush and the Trump Administrations) would submit their nominees to the ABA for evaluation before sending the nominee to the Senate.  The Biden Administration, to my knowledge, has not made any announcement as to whether they will participate in the ABA pre-nomination vetting process.  If they do so, the ABA process can further delay a nomination being sent to the Senate.  Even if they don’t, the process is still likely to take a couple of months, at the fastest.

In other words, assuming senators have complied with the White House’s request and have submitted their recommendations by January 19, we can expect nominees coming out in March and April.

While this may seem like a long time, March is actually relatively fast for Presidents to nominate their first judges.  President Carter nominated his first district court judge on March 29th of his first year, and his first appellate nominee on August 16.  President Reagan’s first nominees hit the Senate on July 1st of his first year, and, while President George H.W. Bush renominated a few of his predecessor’s picks in February, he did not make his own nominations until August 4.  Similarly, President Clinton’s first lower court nominations were made on August 6 of his first year.  President George W. Bush got out his first nominees in May, while President Trump got his first appellate nominee, Judge Amul Thapar, to the Senate on March 21, 2017.  Surprisingly, despite criticism for the slowness of his nomination pace, President Obama got his first nominee to the Senate the fastest in modern history, nominating Judge David Hamilton to the Seventh Circuit on March 17, 2009.

Nonetheless, it’s possible that President Biden’s appellate nominees may be announced sooner, as the vetting process on them may have begun before January 19.  As such, depending on the vetting process, we may well see some nominees to the appellate seats as early as mid to late February.

To Renominate or Not to Renominate: A Question For Any Incoming President

At the end of 2020, as the 116th Congress came to an end, it sent back around thirty judicial nominations unconfirmed to President Trump.  Now, as the Biden Administration prepares to take office, it faces a critical question: how many of them, if any, should they renominate to the federal bench.

This is a question facing every incoming Administration, as the old one almost inevitably leaves some judicial nominees unconfirmed.  While putting forward nominees from the prior administration can help with judicial dealmaking and efficiency, it also risks upsetting the President’s base.  So far, no Administration has chosen to renominate all of their predecessor’s pending judges, instead making that determination on an ad hoc basis.

Johnson to Nixon

At the end of the Johnson Administration, for example, two Supreme Court nominees (Abe Fortas to be Chief Justice; and Homer Thornberry to be Associate Justice); one circuit court nominee (Barefoot Sanders for the D.C. Circuit); and three district court nominees (David Bress to District Court for the District of Columbia; Cecil Poole to the Northern District of California; William Byrne to the Central District of California) were left unconfirmed.  President Nixon chose not to renominate any of the Johnson holdovers at the outset of his Administration, instead picking the following:

  • Judge Warren Burger to be Chief Justice of the Supreme Court
  • George MacKinnon to the D.C. Circuit
  • Barrington Daniels Parker to the District Court for D.C.
  • Judge Gerald Levin to the Northern District of California
  • Judge David Williams to the Central District of California

However, in 1971, Nixon did choose to nominate Byrne to a different seat on the Central District of California, where he served until his death in 2006.

Ford to Carter

For his part, after the resignation of Nixon, President Ford largely maintained the same nominees.  However, after his own loss in 1976, Ford had two appellate nominees and eight district court nominees pending before the U.S. Senate.  President Carter chose not to renominate any of the ten.  However, he did later nominate Richard Bilby, who Ford had unsuccessfully put up for a Ninth Circuit seat, for the District of Arizona, where he served until his death in 1998.

Carter to Reagan

At the end of the Carter Administration, the Senate left four appellate nominees and twelve district court nominees pending.  On January 1, 1981, Carter appointed one of the pending nominees, Judge Walter Heen, to the District of Hawaii using a recess appointment.  For his part, President Reagan declined to renominate Heen, letting his appointment expire at the end of the year.  He did, however, renominate two other judges:

  • I. Leo Glasser for the Eastern District of New York
  • John Sprizzo for the Southern District of New York

Reagan to Bush

Perhaps because it was a transition between two Presidents of the same party, President George H.W. Bush was more open to renominating his predecessor’s nominees.  At the end of his term, President Reagan left seven appellate nominees pending:

  • Judith Richards Hope for the D.C. Circuit
  • Stuart Summit for the Second Circuit
  • Jacques Wiener for the Fifth Circuit
  • Ferdinand Francis Fernandez for the Ninth Circuit
  • Pamela Rymer for the Ninth Circuit
  • Guy Hurlbutt for the Ninth Circuit
  • Susan Leibeler for the Federal Circuit

Bush chose to renominate three of the seven (Wiener; Fernandez; and Rymer), who were all confirmed.  To fill the other seats, Bush chose Clarence Thomas, John Walker, Thomas Nelson, and Jay Plager respectively.

Reagan also left ten district court nominees pending:

  • Howard Levitt for the Eastern District of New York
  • James McGregor for the Western District of Pennsylvania
  • Adriane Dudley for the Virgin Islands
  • Marvin Garbis for the District of Maryland
  • Shannon Mason for the Eastern District of Virginia
  • Melinda Harmon for the Southern District of Texas
  • Robert Bonner for the Central District of California
  • Vaughn Walker for the Northern District of California
  • William Erickson for the District of Colorado
  • Donald Abram for the District of Colorado

Of those ten, Bush chose to renominate five (Garbis; Dudley; Harmon; Bonner; Walker).  All of them except for Dudley were confirmed.   For the other seats, Bush nominated the following:

  • Carol Amon for the Eastern District of New York
  • Donald Lee for the Western District of Pennsylvania
  • Rebecca Beach Smith for the Eastern District of Virginia
  • Daniel Sparr for the District of Colorado
  • Edward Nottingham for the District o Colorado

Bush also chose to renominate McGregor to a different seat on the Western District of Pennsylvania in 1990, where he was ultimately blocked by conservative opposition.

Bush to Clinton

At the conclusion of the Bush Administration, ten appellate nominees and forty two district court nominees were left unconfirmed, a significantly higher number than previous Administrations.  Of these fifty two nominees, President Clinton renominated none of the appellate nominees and just two of the district court nominees.

  • David Trager for the Eastern District of New York
  • Joanna Seybert for the Eastern District of New York

However, later in the Administration, Clinton nominated an additional two nominees from the leftover list to different seats.

  • George O’Toole for the District of Massachusetts
  • Richard Casey for the Southern District of New York

Of the remaining forty eight nominees not renominated under Clinton, thirteen were renominated for federal judgeships by President George W. Bush.

  • John Roberts for the D.C. Circuit (subsequently elevated to the Supreme Court)
  • Franklin Van Antwerpen for the Third Circuit
  • Jay Waldman for the Third Circuit (passed away before the Senate could act on the nomination)
  • Terrence Boyle for the Fourth Circuit (never confirmed)
  • Carlos Bea for the Ninth Circuit (Bea had been unsuccessfully nominated to the Northern District of California by H.W. Bush)
  • William Quarles for the District of Maryland
  • Leonard Davis for the Eastern District of Texas
  • Andrew Hanen for the Southern District of Texas
  • Percy Anderson for the Central District of California
  • John Walter for the Central District of California
  • Larry Hicks for the District of Nevada
  • Ronald Leighton for the Western District of Washington
  • James Payne for the Northern District of Oklahoma (jointly with the Eastern and Western Districts)

Clinton to Bush

Similar to George H.W. Bush before him, President Clinton faced an opposition Senate through his final term, and thus, a number of his appellate and district court nominees were left unconfirmed at the end of his term.  Specifically, the Senate did not process seventeen appellate nominees and twenty four district court nominees before the end of the 106th Congress.  In response, President Clinton appointed one of his appellate nominees, Roger Gregory to the Fourth Circuit in a recess appointment.

For his part, George W. Bush renominated three of Clinton’s appointments.  Specifically, Bush renominated:

  • Judge Roger Gregory for the Fourth Circuit
  • Judge Legrome Davis for the Eastern District of Pennsylvania
  • Judge David Cercone for the Western District of Pennsylvania

Additionally, later in his tenure, President Bush renominated an additional two stalled Clinton appellate nominees as part of an agreement with Democrats:

  • Judge Helene White for the Sixth Circuit
  • Judge Christine Arguello for the Tenth Circuit (nominated to the District of Colorado)

Bush to Obama

At the end of the Bush Administration, the Senate left ten appellate and twenty district court nominees unconfirmed.  Of the thirty pending nominees, President Obama renominated just one: Marco Hernandez for the District of Oregon.

However, later in his Administration, Obama nominated another two of the stalled Bush nominees to the federal bench:

  • Judge John Tharp for the Northern District of Illinois
  • William Jung for the Middle District of Florida (never confirmed)

Incidentally, Obama also renominated three stalled Clinton appointees:

  • Judge Andre Davis for the Fourth Circuit
  • Judge James Wynn for the Fourth Circuit
  • Judge Dolly Gee for the Central District of California

Obama to Trump

Due to a dramatic slowdown of confirmations in the last two years of his Presidency, President Obama saw 59 judicial nominees left pending before the Senate, more than any other President in recent history.  This list included one nominee to the U.S. Supreme Court, seven to the courts of appeal, and forty four nominees to the district courts.

Over the course of his term, President Trump renominated sixteen of these nominees, more than any other president in the last fifty years.  Specifically, he renominated:

  • Judge Mary McElroy for the District of Rhode Island
  • Judge Gary Brown for the Eastern District of New York
  • Diane Gujarati for the Eastern District of New York
  • Judge John Milton Younge for the Eastern District of Pennsylvania
  • Judge Susan Paradise Baxter for the Western District of Pennsylvania
  • Judge Marilyn Horan for the Western District of Pennsylvania
  • Judge Robert Colville for the Western District of Pennsylvania
  • Judge Stephanie Gallagher for the District of Maryland
  • Donald Coggins for the District of South Carolina
  • Karen Gren Scholer for the Northern District of Texas (previously nominated to the Eastern District)
  • James Hendrix for the Northern District of Texas
  • Walter Counts for the Western District of Texas
  • David Nye for the District of Idaho
  • Kathleen O’Sullivan for the Western District of Washington (announced but withdrawn before confirmation)
  • Scott Palk for the Western District of Oklahoma
  • William Jung for the Middle District of Florida

Trump also renominated four nominees who stalled under President Bush (not including Jung who is accounted for above).

  • Thomas Marcelle for the Northern District of New York (never confirmed)
  • Colm Connolly for the District of Delaware
  • Thomas Farr for the Eastern District of North Carolina (never confirmed)
  • David Novak for the Eastern District of Virginia

Trump to Biden

President Trump leaves office with twenty six unconfirmed judicial nominees, including one appellate nominee (Judge Raul Arias-Marxuach to the First Circuit); and 21 district court nominees.  These nominees are largely focused on two states: New York, which has six pending nominees; and California, which has ten.  Outside those two states, the remaining five unconfirmed district court picks are:

  • Judge Barbara Jongbloed for the District of Connecticut
  • Jennifer Togliatti for the District of Nevada
  • Fred Federici for the District of New Mexico
  • Brenda Saiz for the District of New Mexico
  • Edmund LaCour for the Middle District of Alabama

Of those five, three: Federici, Saiz, and LaCour, were blocked by Democratic home state senators, and, as such, would be unlikely to be renominated in a Biden Administration.  Jongbloed is a Democrat chosen by Senators Blumenthal and Murphy who cleared the Judiciary Committee unanimously before stalling on the floor.  However, she’s also 61 years old and relatively middle-of-the-road.  Without a Republican Administration, it is more likely that the Senators push for a younger candidate rather than seeking to renominate Jongbloed.  This leaves Togliatti as the most likely contender in this group for renomination.

In addition, the New York and California groups are packages that include a number of Democrats, who could all potentially be renominated.  This includes:

  • Jennifer Rearden for the Southern District of New York
  • Hector Gonzalez for the Eastern District of New York
  • Judge Steve Kim for the Central District of California
  • Judge Sandy Leal for the Central District of California
  • Knut Johnson for the Southern District of California
  • Shireen Matthews for the Southern District of California

In addition, Biden may look to the thirty five Obama nominees who were not renominated by Trump.  Of those, many are likely too old to be considered for nomination today, but the following could be considered for current vacancies:

  • Inga Bernstein for the District of Massachusetts (Bernstein turns 60 this year so she may be passed over for a younger candidate)
  • Julien Neals for the District of New Jersey (will almost certainly be renominated)
  • Anne Traum for the District of Nevada (will likely be renominated)
  • Beth Andrus, Kathleen O’Sullivan, and J. Michael Diaz for the Western District of Washington (will likely be renominated)
  • Regina Rodriguez for the District of Colorado

Additionally, the following could be considered for renomination if vacancies open:

  • Rebecca Ross Haywood for the Third Circuit
  • Judge Lucy Koh for the Ninth Circuit or the Federal Circuit
  • Stephanie Finley for the Western District of Louisiana
  • Judge E. Scott Frost for the Northern District of Texas
  • Judge Irma Ramirez for the Northern District of Texas
  • Edward Stanton for the Western District of Tennessee
  • Clare Connors for the District of Hawaii
  • Judge Suzanne Mitchell for the Western District of Oklahoma
  • Judge Patricia Barksdale for the Middle District of Florida
  • Judge Philip Lammens for the Northern or the Middle Districts of Florida

As a bottom line, every President since Nixon has renominated at least one of their predecessor’s failed nominees for the federal bench.  As such, it would not be surprising to see at least a few unconfirmed nominees from the past two Administrations put forward again by President Biden.

Here Come the Retirements?

To err on the side of understatement, this was an eventful week. From Democrats winning control of the U.S. Senate to violent insurrectionists temporarily seizing control of the U.S. Capitol to the U.S. Congress certifying the win of President-elect Biden to questions about the resignation or removal of President Trump, there has been plenty to focus on. As such, it is somewhat understandable that the selection of Judge Merrick Garland to be the next Attorney General of the United States has slipped under the radar to an extent. This selection would not only place a veteran of the Department back at its head, but it would give the incoming Administration a chance to add a new judge to the U.S. Court of Appeals for the D.C. Circuit.

And the Biden Administration is looking for these opportunities. After the Trump Administration’s historic successes in appointing judges to the federal bench, only 49 vacancies are currently open for the new administration to fill, significantly lower than the 114 that Trump inherited from President Obama. Nonetheless, there is reason to believe that more seats will open.

As we discussed, judges (particularly appellate judges) have started to become more strategic in their retirement announcements, with their potential successor playing some role in many of their decisions. There are currently sixty four appellate judges eligible for senior status, at least some of whom were waiting for Senate control to become fixed before making a decision whether to vacate their seats. Now that control has been decided, it wouldn’t be surprising to see announcements of vacancies in the coming months. Here are the appellate judges who are currently eligible for senior status (and those who would become eligible during the 117th Congress). If vacancies arise in the coming weeks, they are likely to come from this group.

(All eligibility dates are approximate)

D.C. Circuit

Judge Judith Ann Wilson Rogers – eligible since November 7, 2006

Judge David Tatel – eligible since June 16, 2008

Judge Karen Henderson – eligible since July 11, 2009

Judge Merrick Garland – eligible since November 13, 2017 (will step down upon confirmation to be U.S. Attorney General)

First Circuit

Judge Sandra Lynch – eligible since July 31, 2011

Chief Judge Jeffrey Howard – eligible since November 4, 2020

Judge Ojetta Rogeriee Thompson – eligible since November 23, 2020

Second Circuit

Judge Jose Cabranes – eligible since December 22, 2005

Judge Rosemary Pooler – eligible since July 6, 2006

Judge Peter Hall – eligible since August 28, 2016

Judge Robert Katzmann – eligible since April 22, 2018

Judge Denny Chin – eligible since April 13, 2019

Judge Susan Carney – eligible on July 6, 2021

Third Circuit

Judge Theodore McKee – eligible since June 5, 2012

Judge Thomas Ambro – eligible since January 11, 2015

Chief Judge D. Brooks Smith – eligible since December 4, 2016

Judge Kent Jordan – eligible on October 24, 2022

Judge Joseph Greenaway – eligible on November 16, 2022

Fourth Circuit

Judge Paul Niemeyer – eligible since April 5, 2006

Judge Diana Gribbon Motz – eligible since December 19, 2008

Judge Robert Bruce King – eligible since May 25, 2009

Judge J. Harvie Wilkinson – eligible since September 29, 2009

Judge Henry Floyd – eligible since October 5, 2015

Chief Judge Roger Gregory – eligible since July 17, 2018

Judge Barbara Milano Keenan – eligible since March 9, 2020

Judge G. Steven Agee – eligible since August 27, 2020

Judge James Wynn – eligible on May 19, 2022

Fifth Circuit

Judge James Dennis – eligible since November 10, 2005

Judge Jerry Smith – eligible since November 7, 2011

Judge Edith Jones – eligible since April 7, 2014

Judge Carl Stewart – eligible since January 2, 2015

Judge Leslie Southwick – eligible since December 10, 2018

Chief Judge Priscilla Owen – eligible since January 25, 2020

Judge James Graves – eligible on June 23, 2022

Sixth Circuit

Judge Eric Clay – eligible since January 18, 2013

Judge Karen Nelson Moore – eligible since November 19, 2013

Judge Julia Smith Gibbons – eligible since December 23, 2015

Chief Judge Ransey Guy Cole – eligible since May 23, 2016

Judge Bernice Donald – eligible since September 17, 2016

Judge Richard Allen Griffin – eligible since November 2, 2018

Judge Helene White – eligible on September 25, 2021

Judge Jane Brandstetter Stranch – eligible on March 7, 2022

Seventh Circuit

Judge Ilana Rovner – eligible since August 21, 2003

Judge Michael Stephen Kanne – eligible since December 21, 2003

Judge Frank Easterbrook – eligible since September 3, 2013

Judge Diane Wood – eligible since July 4, 2015

Judge David Hamilton – eligible on May 5, 2022

Chief Judge Diane Sykes – eligible on December 23, 2022

Eighth Circuit

Judge James Loken – eligible since July 24, 2005

Judge William Duane Benton – eligible since July 26, 2017

Judge Bobby Shepherd – eligible since April 20, 2019

Ninth Circuit

Judge William Fletcher – eligible since January 27, 2012

Judge Richard Paez – eligible since May 5, 2012

Judge Marsha Berzon – eligible since September 20, 2012

Judge Ronald Gould – eligible since April 25, 2013

Judge Susan Graber – eligible since July 5, 2014

Judge Margaret McKeown – eligible since May 11, 2016

Judge Milan Dale Smith – eligible since May 19, 2016

Judge Consuelo Callahan – eligible since November 22, 2016

Judge Johnnie Rawlinson – eligible since December 16, 2017

Chief Judge Sidney Runyan Thomas – eligible since August 14, 2018

Judge Kim McLane Wardlaw – eligible since July 2, 2019

Judge Sandra Segal Ikuta – eligible since June 13, 2020

Judge Andrew Hurwitz – eligible on June 27, 2022

Tenth Circuit

Judge Carlos Lucero – eligible since March 2, 2008

Judge Mary Beck Briscoe – eligible since April 4, 2012

Judge Harris Hartz – eligible since June 21, 2014

Chief Judge Timothy Tymkovich – eligible on November 2, 2021

Judge Scott Matheson – eligible on March 27, 2022

Eleventh Circuit

Judge Charles Wilson – eligible since October 14, 2019

Judge Beverly Martin – eligible since August 7, 2020

Federal Circuit

Judge Pauline Newman – eligible since October 14, 1995

Judge Alan Lourie – eligible since August 15, 2002

Judge Timothy Dyk – eligible since May 25, 2010

Judge Evan Wallach – eligible since November 11, 2014

Chief Judge Sharon Prost – eligible since July 14, 2016

Judge Kathleen O’Malley – eligible on November 17, 2021

Judge Jimmie Reyna – eligible on January 12, 2022

In Memoriam: A Tribute to the Judicial Minds We Lost This Year

2020 has taken a lot from all of us. We have lost many institutions of the judiciary this year, with the passing of a collective two millennia of legal expertise. Below, we remember all the state supreme and federal judges who passed away in 2020. (Any exclusions are inadvertent, please feel free to add to the list through the comments).

U.S. Supreme Court

Ruth Bader Ginsburg (Sept. 18) – U.S. Supreme Court, 1993-2020

U.S. Court of Appeals

Raymond Fisher (Feb. 29) – U.S. Court of Appeals for the Ninth Circuit, 1999-2020

Jerome Farris (July 23) – U.S. Court of Appeals for the Ninth Circuit, 1979-2020

Clyde Hamilton (Sept. 2) – U.S. Court of Appeals for the Fourth Circuit, 1991-2020

Nathaniel R. Jones (Jan. 26) – U.S. Court of Appeals for the Sixth Circuit, 1979-2002

Monroe McKay (Mar. 28) – U.S. Court of Appeals for the Tenth Circuit, 1977-2020

Lawrence Pierce (Feb. 5) – U.S. Court of Appeals for the Second Circuit, 1981-1995

Thomas Reavley (Dec. 1) – U.S. Court of Appeals for the Fifth Circuit, 1979-2020

Juan Torruella (Oct. 26) – U.S. Court of Appeals for the First Circuit, 1984-2020

Stephen Williams (Aug. 7) – U.S. Court of Appeals for the D.C. Circuit, 1986-2020

Ralph Winter (Dec. 8) – U.S. Court of Appeals for the Second Circuit, 1981-2020

U.S. District Courts

G. Ross Anderson (Dec. 1) – U.S. District Court for the District of South Carolina, 1980-2009

Deborah Batts (Feb. 3) – U.S. District Court for the Southern District of New York, 1994-2020

Dee Benson (Nov. 30) – U.S. District Court for the District of Utah 1991-2020

A. Richard Caputo (Mar. 11) – U.S. District Court for the Middle District of Pennsylvania, 1997-2020

William Castagna (Dec. 18) – U.S. District Court for the Middle District of Florida, 1979-2020

James Paul Churchill (June 29) – U.S. District Court for the Eastern District of Michigan, 1974-2020

John Davies (Mar. 24) – U.S. District Court for the Central District of California, 1986-1998

Kevin Duffy (Apr. 1) – U.S. District Court for the Southern District of New York, 1972-2016

Patrick Duggan (Mar. 18) – U.S. District Court for the Eastern District of Michigan, 1986-2000

William Enright (Mar. 7) – U.S. District Court for the Southern District of California, 1972-2020

Lloyd George (Oct. 7) – U.S. District Court for the District of Nevada, 1984-2020

Walter Gex (Nov. 12) – U.S. District Court for the Southern District of Mississippi, 1986-2020

Jackson Kiser (Oct. 21) – U.S. District Court for the Western District of Virginia, 1981-2020

Blanche Manning (Sept. 20) – U.S. District Court for the Northern District of Illinois, 1994-2020

James Munley (Mar. 22) – U.S. District Court for the Middle District of Pennsylvania, 1998-2020

Juan Perez-Jimenez (Dec. 10) – U.S. District Court for the District of Puerto Rico, 1979-2020

Pamela Reeves (Sept. 10) – U.S. District Court for the Eastern District of Tennessee, 2014-2020

James Redden (Mar. 31) – U.S. District Court for the District of Oregon, 1980-2020

Lowell Reed (Apr. 11) – U.S. District Court for the Eastern District of Pennsylvania, 1988-2020

Jack Shanstrom (Jan. 13) – U.S. District Court for the District of Montana, 1990-2020

Charles Alexander Shaw (Apr. 12) – U.S. District Court for the Eastern District of Missouri, 1993-2020

George Curtis Smith (Apr. 15) – U.S. District Court for the Southern District of Ohio, 1987-2020

Laurie Smith Camp (Sept. 23) – U.S. District Court for the District of Nebraska, 2001-2020

William Sessions (June 12) – U.S. District Court for the Western District of Texas, 1974-1987

Arthur Spatt (June 12) – U.S. District Court for the Eastern District of New York, 1989-2020

Stanley Sporkin (Mar. 23) – U.S. District Court for the District of Columbia, 1985-1999

Michael Telesca (Mar. 5) – U.S. District Court for the Western District of New York, 1982-2020

Lee Roy West (Apr. 24) – U.S. District Court for the Western District of Oklahoma, 1979-2020

Thomas Wiseman (Mar. 18) – U.S. District Court for the Middle District of Tennessee, 1978-1995

State Supreme Courts

Shirley Abrahamson (Dec. 19) – Wisconsin Supreme Court, 1976-2019

Russell Anderson (Sept. 15) – Minnesota Supreme Court, 1998-2008

Edmond Burke (Mar. 31) – Alaska Supreme Court, 1975-1993

George Carley (Nov. 26) – Georgia Supreme Court, 1993-2012

Boyce Clayton (Mar. 15) – Kentucky Supreme Court, 1976-1982

Robert Erwin (Jan. 24) – Alaska Supreme Court, 1970-1977

Ralph Gants (Sept. 14) – Massachusetts Supreme Judicial Court, 2009-2020

Ernest Gibson (May 17) – Vermont Supreme Court, 1983-1997

Frank Gordon Jr. (Jan. 6) – Arizona Supreme Court, 1987-1992

Sandy Keith (Oct. 3) – Minnesota Supreme Court, 1990-1998

Robert Lavender (Mar. 23) – Oklahoma Supreme Court, 1965-2007

Charles Levin (Nov. 19) – Michigan Supreme Court, 1973-1996

Hans Linde (Aug. 31) – Oregon Supreme Court, 1977-1990

Lawrence Lindemer (May 21) – Michigan Supreme Court, 1975-1976

Richard Neely (Nov. 8) – West Virginia Supreme Court, 1973-1995

Lenore Prather (Apr. 11) – Mississippi Supreme Court, 1982-2000

Thomas Steffen (Sept. 1) – Nevada Supreme Court, 1982-1997

Other Notable Jurists

Gregory Carman (Mar. 5) – U.S. Court of International Trade, 1983-2014

Alfred Laureta (Nov. 16) – U.S. District Court for the Commonwealth of the Northern Mariana Islands, 1978-1988