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

Senior Status Upon Confirmation: The Way of the Future?

A century ago, Congress, responding to a changing legal landscape, fundamentally altered the operation of the federal judiciary by implementing “senior status,” allowing judges to continue working on a reduced caseload instead of retiring.  Since then, judges have used senior status extensively.  However, over the last thirty years or so, moves to senior status have become increasingly strategic, with judges timing their moves to allow like-minded successors to be confirmed.  This has culminated, in the last four years, with the widespread use of a formerly rare maneuver, taking senior status upon confirmation of your successor.  With a new Administration approaching, it is worth looking at the history of senior status, strategic retirements, and the likelihood that “senior status upon confirmation” will likely be the new normal.

What is Senior Status

Before 1919, federal judges were permitted to retire at age seventy, as long as they had at least ten years of service, after which they would maintain a pension for the rest of their life.  However, under the new system created by Congress, judges could, instead of retiring, move to senior status, which allowed them to continue to work and hear cases, but nonetheless open up a vacancy for the President to fill. 

On October 6, 1919, Judge John Wesley Warrington on the U.S. Court of Appeals for the Sixth Circuit became the first judge in U.S. history to take senior status, a position he maintained until his death on May 26, 1921.   In the century after Judge Warrington’s move, senior status has become the norm for federal judges, and it’s easy to see why.  A judge’s move to senior status essentially adds a judge to a court, as a new judge can now be appointed while the old still hears cases.  Senior judges have proven to be a boon for the federal judiciary, continuing to hear and move cases along even as caseloads expand and proposals for new judgeships stagnate.  Senior status also carries benefits for the judge themselves.  Unlike judges who retire from the bench, senior judges continue to be eligible for cost-of-living increases.  Additionally, they retain significantly more flexibility over their dockets, allowing them to travel and to focus on cases that are more interesting to them.    

Eligibility for Senior Status

At the time that the senior status system was created, a judge became eligible for senior status after ten years of service, if he or she was over the age of seventy.  In 1954, this requirement was revised to the “Rule of 80.”  Under this rule, any judge over the age of sixty five becomes eligible for senior status once their age + their tenure equals or exceeds 80.  In other words, a judge appointed at 50 (or younger) becomes eligible for senior status at age 65.  Similarly, a judge appointed at 55 becomes eligible at age 67.5 (when 67.5 + 12.5 years of service = 80).  However, there is a requirement of ten years of service on the federal bench for a judge to become eligible for senior status.  As such, a judge appointed at age 64 wouldn’t become eligible at age 72 but rather at 74, once the ten year minimum is satisfied.  Like every rule, there are exceptions, and judges can take senior status early if justified by health concerns or because of a certified disability.  

Strategic Retirements and Senior Status Upon Confirmation

Given the caseload benefits of adding an extra judge, many jurisdictions have an informal policy that judges will take senior status immediately upon eligibility.  (In 2013, Judge Richard Kopf of the District of Nebraska confirmed that his district had such a policy.)  However, many other judges, particularly appellate judges, do tend to be more “strategic” with their moves to senior status, timing their moves to allow like-minded successors. 

Of course, such strategic considerations are not a recent development.  Justice Thurgood Marshall famously resisted retirement through the 1980s, waiting for a Democratic Administration that came too late to replace him.  However, strategic retirements have grown increasingly more common in the last decade with the use of a formerly-rare tool, senior status upon confirmation.

Taking senior status upon confirmation is a relatively straightforward concept.  Instead of announcing a date on which he or she would vacate their seat, a judge declares their intention to take senior status contingent upon the confirmation of a successor.  This  prevents a vacancy from opening until a replacement was approved.  Now, where a judge wishes to retire, this mechanism makes sense, as it reduces the disruption from a court losing a judge without gaining a replacement.  However, a judge on senior status can easily maintain their full caseload and avoid disruption, and, as such, this mechanism has a different purpose: ensuring that the current President is able to appoint their successor.  If a judge announces that they will take senior status upon confirmation and their President of choice is unable to appoint a replacement before the end of their term, the judge can (at least in theory) withdraw their intention and hold the seat without leaving a vacancy for the new President.

Perhaps because such a move could be seen as blatantly partisan, taking senior status upon confirmation has been fairly rare for much of the 20th century.  In 1968, Chief Justice Earl Warren announced his retirement from the Supreme Court contingent upon the appointment of a successor.  However, President Lyndon Johnson’s nomination of Justice Abe Fortas failed and the Republican Richard Nixon was elected instead.  According to historian Ed Cray, Warren considered withdrawing his retirement after Nixon’s election, but decided against it, feeling that the move would be seen as “a crass admission that he was resigning for political reasons.”  

Similarly, on the lower court level, taking senior status upon confirmation was practically unheard of until the second Bush Administration.  In 2003, Judge John Louis Coffey of the U.S. Court of Appeals for the Seventh Circuit, an appointee of President Reagan, was the first judge, reflected on the U.S. Courts website, to announce a move to senior status upon confirmation of his successor.  In September 2003, Judge Emory Widener of the U.S. Court of Appeals for the Fourth Circuit, who previously announced that he would take senior status on September 30, modified his status to reflect a move to senior status upon confirmation of his successor (DOD attorney William J. Haynes, nominated on September 29, 2003).  The next month, Judge James Graham on the U.S. District Court for the Southern District of Ohio, who had previously announced that he would take senior status on May 1, 2004, changed his status to taking senior status upon confirmation of his successor.  

For their part, this strategy had mixed results.  Both Graham and Coffey took senior status in 2004, upon the confirmations of Judges Michael Watson and Diane Sykes respectively.  However, Haynes was blocked from confirmation for four years by the opposition of Senate Democrats and Sen. Lindsay Graham.  Widener, facing ill health, finally took senior status unconditionally on July 17, 2007, and passed away two months later.  His seat was ultimately filled by President Obama with Judge Barbara Keenan.

Taking senior status upon confirmation did not resurface until June 2007, when Judge Daniel Manion, another conservative Reagan appointee on the Seventh Circuit, announced that he would move to senior status upon confirmation of his successor.  The next month, Judge Rudolph Randa on the U.S. District Court for the Eastern District of Wisconsin announced his intention to take senior status upon confirmation.  By the end of the Bush Administration, two other judges had announced a move to senior status contingent upon confirmation: Judge John Shabaz on the U.S. District Court for the Western District of Wisconsin; and Judge Garr King of the U.S. District Court for the District of Oregon.  For their parts, Manion was replaced by Bush appointee Daniel Tinder, but the Senate did not confirm Bush’s nominees to replace Randa, Shabaz, or King.  Upon the election of President Barack Obama in 2008, Randa did what Warren had not forty years earlier, and withdrew his decision to take senior status, essentially acknowledging that he did not want a Democrat to replace him.  In contrast, both Shabaz and King moved to senior status unconditionally in 2009, and President Obama replaced both judges. 

Taking senior status upon confirmation was sporadically (if rarely) used under President Obama, with five judges taking that route: Judge Barbara Crabb on the U.S. District Court for the Western District of Wisconsin; Judge Lawrence Piersol on the U.S. District Court for the District of South Dakota; Judge Frederick Motz on the U.S. District Court for the District of Maryland; Judge Claudia Wilken on the U.S. District Court for the Northern District of California; Judge Gary Fenner on the U.S. District Court for the Western District of Missouri.  All had their successors appointed by President Obama.  Notably, not a single appellate judge who took senior status under President Obama chose to do so contingent upon the confirmation of their successor.  As such, a number of Democratic appointees who took senior status late in the Obama Administration left their seats open for President Trump to fill.

In contrast, the “senior status upon confirmation” phenomenon exploded under President Trump.  In his first year alone, President Trump saw five judges announce moves to senior status contingent upon confirmation: Judge Edith Brown Clement on the Fifth Circuit; Judges David McKeague and Alice Batchelder on the Sixth Circuit; Judge Paul Kelly on the Tenth Circuit; and Judge Frank Hull on the Eleventh Circuit.  In 2018, five more joined the list: Judge Allyson Kay Duncan on the Fourth Circuit; Judge Edward Prado on the Fifth Circuit; Judges John Rogers and Deborah Cook on the Sixth Circuit; and Judge Roger Wollman on the Eighth Circuit.  In 2019, you had four: Judge Carlos Bea on the Ninth Circuit; and Judges Gerald Tjoflat, Stanley Markus, and Ed Carnes on the Eleventh Circuit.  In other words, there were more judges taking senior status upon confirmation under President Trump than had been in the entire history of America before then. 

What explains the flood of such announcements under President Trump?  For one, the White House has been proactive about contacting and pushing judges to take senior status in an effort to open vacancies.  Judge Michael Kanne on the Seventh Circuit described a call from the White House, where they promised to appoint one of his former clerks, Solicitor General Tom Fisher, if Kanne moved to senior status.  Kanne agreed and announced his intention.  However, the White House did not nominate Fisher, due to opposition from Vice President Pence, and Kanne withdrew his intent.  The 82 year old judge still serves on the Seventh Circuit.  It is possible that taking senior status upon confirmation allowed the judges to maintain some degree of control over their successors.

Senior Status Strategies Under President Biden 

After 54 appointments to the U.S. Court of Appeals, one could think that President Trump has emptied the bench of older Republican appointees, but that’s not true.  There remain twenty-six Republican appointed appellate judges who are eligible for senior status (an additional seven will become eligible over the next four years).  Nonetheless, a disproportionate share of judges likely to take senior status are expected to be Democratic appointees, making the next four years likely the first in over three decades to have more Democratic appointees leave the bench than Republican ones.  There are currently thirty-six Democratic appellate appointees eligible for senior status, and an additional thirteen that will become eligible over the next four years.  As such, if the Democratic appointees take senior status in the traditional manner and Republicans avoid confirming replacements, this would have the effect of making the bench significantly more conservative.

As a result, one could expect Democratic appointees to follow the precedent of the Trump years and take senior status only upon confirmation of their successors.  For those who are strategically inclined, this would disincentivize holding the vacancies open indefinitely and ensure that, while nominees remain pending, their circuits wouldn’t miss the judges’ voices on en banc issues.  Given that many judges are already mulling “strategic” moves to senior status, it wouldn’t be surprising to see many left-of-center jurists making their moves to senior status conditional over the next four years.  

 

Maria Teresa Cenzon – Nominee to the U.S. District Court of Guam.

The District Court of Guam is a territorial court whose judges serve ten year terms.  Judge Frances Tydingco-Gatewood, the sole judge on the court, had her term expire in August 2016.  However, no nomination was put forward by the Trump Administration under November 30, 2020, with Judge Maria Teresa Cenzon’s nomination likely coming too late to be considered before the Biden Presidency.

Background

The daughter of Edward and Nita Cenzon from Pampanga Province, Cenzon was born in Guam.[1]  Cenzon was a 1987 graduate of the Academy of Our Lady of Guam, after which she received a B.A. from Marquette University in 1992, and a J.D. from Loyola University Chicago School of Law in 1996.  After graduating, Cenzon returned to Guam to start working at Barcinas & Terlaje, P.C.  A year later, Cenzon became a Partner at Mair, Mair, Spade & Thompson, P.C.  

In 2008, Cenzon moved to the firm of Cabot Mantanona, LLP, and then to Carlsmith Ball, LLP in 2009.  In 2010, Cenzon became Director of Policy, Planning and Community Relations for the Unified Judiciary of Guam.

In 2011, Governor Eddie Baza Calvo appointed his Chief Counsel James L. Canto II to the Superior Court of Guam, and chose Cenzon to replace him.  In 2012, Calvo named Cenzon to the Superior Court as well, where she has served since.

History of the Seat

The District Court of Guam has a single judgeship authorized.  Judge Frances Tydingco-Gatewood, who was appointed by President Bush, saw her appointment expire in 2016.  The Obama Administration did not make another appointment and Tydingco-Gatewood held the seat in the interim.  

After taking office, the Trump Administration did not make a nomination to fill this seat until Cenzon was nominated on November 30, 2020, four weeks after the 2020 Presidential election.

Legal Experience

Prior to her appointment to the bench, Cenzon worked as General Counsel to Republican Governor Eddie Balza Calvo.  In this role, Cenzon helped defend the Governor against a class action suit alleging that the Guam Government was illegally failing to pay taxpayers tax refunds.[2] 

Before joining the Governor’s office, Cenzon spent a dozen years litigating in private practice.  Among her notable cases during this time, Cenzon practiced before the Guam Supreme Court, defending the appointment of a visiting judge in a case where all the judges on the Superior Court were recused.[3]

Judicial Career

Cenzon has served on the Superior Court of Guam since 2012, where she has heard criminal, civil, and administrative cases.  At the time of her appointment, Cenzon was the first Filipino-American on the judiciary of Guam.[4] 

Overall Assessment

With her appointment having expired four years ago, Tydingco-Gatewood continues to serve on the Guam District Court due to the White House and the Senate’s failure to appoint a judge.  Unfortunately, she will have to wait longer as Cenzon’s nomination likely comes too late to be considered before President Biden’s inauguration.  While Cenzon has already made Guamanian history, her best hopes for appointment to the federal bench rest on a renomination by the Biden Administration.


[1] ABS-CBN News, Guam Gets First Fil-Am Judge, Dec. 28, 2012, ABS-CN News, https://news.abs-cbn.com/global-filipino/12/28/12/guam-gets-first-fil-am-judge.

[2] See Paeste v. Gov’t of Guam, 2012 U.S. Dist. LEXIS 100837 (D. Guam May 2, 2012).

[3] Lujan v. Lujan, 2000 Guam 21 (1999).

[4] See ABS-CBN News, supra n. 1.

The Shortlist of Four

A few quixotic election challenges notwithstanding, the 2020 Presidential election is over, and, barring anything unexpected, President-elect Joe Biden will be picking Supreme Court justices, likely in conjunction with a Republican controlled Senate.  Given the prospect of divided government, and our new President’s moderate instincts, a choice for the next Supreme Court nominee is likely to come down to a select group: a shortlist of four, to be precise.  It is my prediction that, if a Supreme Court vacancy opens during the 117th Congress, one of these four jurists will be selected.

Judge Ketanji Brown Jackson – U.S. District Court for the District of Columbia

President Biden has promised to appoint the first African American woman to the U.S. Supreme Court, and, Jackson, who currently serves as a trial court judge in Washington D.C. is bound to be high on the list.  The fact that Jackson ranks so highly on Supreme Court lists despite not being an appellate judge speaks to her experience and regard in progressive legal circles.

Jackson came to the bench with stellar legal credentials, with a B.A. and J.D. from Harvard University, and clerkships with First Circuit Judge Bruce Selya, and Supreme Court Justice Stephen Breyer.  Jackson then worked as a federal public defender and as an appellate litigator at Morrison & Foerster, filing a number of pro bono amicus briefs on criminal justice issues at the U.S. Supreme Court.

In 2009, President Obama nominated Jackson to serve on the U.S. Sentencing Commission, and she was unanimously confirmed by the Senate in 2010.  She was subsequently nominated and then unanimously confirmed again for the U.S. District Court for the District of Columbia in 2013.

In 2016, Jackson was one of five candidates closely considered by President Obama for appointment to replace Justice Antonin Scalia.  While she was not chosen, many assumed that she would be next in line for a seat on the D.C. Circuit if Judge Merrick Garland was confirmed to the Supreme Court.

While serving as a trial court judge, Jackson has made her mark with a series of bold decisions.  For example, in 2019, Jackson enjoined the Department of Homeland Security’s rule that expanded fast-track deportations without immigration hearings.  Similarly, in a suit seeking to compel testimony before the U.S. House from former White House Counsel Don McGahn, Jackson ruled that McGahn could be required to testify.  Jackson’s ruling was initially reversed by a 2-1 panel of the D.C. Circuit, but was ultimately affirmed by a 7-2 en banc decision of the full court.  This is not to say that Jackson has been a reflexive vote against the Trump Administration.  She sided with the Administration in holding that conservation groups couldn’t maintain a legal action against the building of a border wall on the basis of environmental impact.

As a whole, Jackson’s experience in indigent criminal defense and on sentencing issues, along with her experience with complex legal issues on the bench, would make her a compelling candidate for the Biden Administration, particularly in replacing Justice Breyer.

Justice Leondra Kruger: California Supreme Court.

The only shortlister who is not a federal judge, Justice Leondra Kruger is also, at 44, the youngest serious candidate for the Supreme Court.  Despite her age, Kruger is widely respected as an appellate litigator, has impressed on the California Supreme Court, and is a very real contender for a spot on the high court.

An L.A. native, Kruger received a B.A. magna cum laude from Harvard University and a J.D. from Yale Law School.  She then clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the U.S. Supreme Court.  After a couple of years as an Associate at Wilmer Hale, Kruger joined the U.S. Solicitor General’s Office, spending six years there and arguing 12 cases before the U.S. Supreme Court.  She then moved to the Department of Justice Office of Legal Counsel in 2013.

In November 2014, California Governor Jerry Brown appointed Kruger to the California Supreme Court, replacing Justice Joyce Kennard, where she, along with fellow Brown nominees Goodwin Liu, Tino Cuellar, and Joshua Groban, have shaped a liberal revival on the Court.

This is not to say that Kruger has been predictable or outcome-driven.  Rather, she has been described as an incrementalist and swing vote.  She has voted with the court’s conservatives far more often than Liu or Cuellar and has generally proved moderate in her judging.  Nonetheless, Kruger has also been willing to speak boldly when the law requires it.  This year, she wrote for a unanimous court in reversing a death sentence for convicted murderer Scott Peterson, finding that the trial court violated Supreme Court precedent in its jury selection.  Similarly, in 2019, Kruger wrote for the Court in reversing the death sentence of a white supremacist based on prejudicial comments raised by the prosecutor.  Again, every justice concurred with Justice Kruger’s opinion.

As a whole, despite her youth, Kruger is unquestionably qualified for the Supreme Court, and could prove an intriguing choice for an Administration eager to make history by naming the first African American woman to the Supreme Court.

Judge Srikanth “Sri” Srinivasan – U.S. Court of Appeals for the D.C. Circuit

There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated.  During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background.  While Srinivasan is not a Black woman, he may nonetheless be an appealing choice for confirmation in a Republican Senate, particularly if President Biden needs to replace a more conservative justice.

Born in India, Srinivasan moved with his family to Lawrence, Kansas, when he was four years old.  Srinivasan received a B.A., M.B.A., and J.D. from Stanford University and clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Sandra Day O’Connor on the U.S. Supreme Court.

After his clerkships, Srinivasan practiced as an appellate litigator at O’Melveny & Myers, and also served in the Office of the Solicitor General for five years under President George W. Bush.  In 2011, Srinivasan was appointed to be Principal Deputy Solicitor General, ultimately arguing 25 cases before the U.S. Supreme Court over the course of his career.

In 2010, Srinivasan was vetted for a seat on the D.C. Circuit by President Obama, but Obama backed away due to liberal opposition and chose New York Solicitor General Caitlin Halligan for the vacancy (Halligan was ultimately filibustered for the Court by Republicans).  For his part, Srinivasan was nominated in 2012 to a different seat and confirmed in 2013 with unanimous support from the Senate.  During his confirmation, Srinivasan received rave reviews from prominent conservatives, who praised him as “highly respected.”

On the D.C. Circuit, Srinivasan has largely served as a center-left voice, pushing the once-conservative court to the left.  He has generally been more deferential to agency rulemaking, upholding labor regulations that guaranteed overtime and minimum wage to home health care workers. More recently, Srinivasan joined the majority of the en banc court in holding that former White House Counsel Don McGahn could be compelled to testify by the U.S. House, and joined the majority in dismissing Michael Flynn’s petition for mandamus seeking dismissal of charges against him.

In 2016, Srinivasan was one of three finalists for the Supreme Court nomination that ultimately went to Judge Merrick Garland.  Today, Srinivasan remains a worthy contender for the Court.  Additionally, like Kruger or Jackson, Srinivasan would also make history on the court, as  the first Asian American, Indian American, and Hindu American on the Supreme Court.

Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit

When Paul Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so.  Luckily for Watford, enough Republicans broke from the pack  to allow him to clear the then-60 vote cloture threshhold and be confirmed.  Today, the 53-year-old judge, who was nipped at the post for a Supreme Court nomination in 2016, would be strongly considered for a vacancy, particularly if Justice Clarence Thomas chooses to step down.

A California native, Watford received a B.A. from U.C. Berkley and a J.D. from U.C.L.A. School of Law before clerking for Judge Alex Kozinski on the Ninth Circuit and Justice Ruth Bader Ginsburg on the Supreme Court.  After his clerkships, Watford worked as a federal prosecutor in Los Angeles and then served as an L.A. Partner at Munger Tolles & Olson for ten years before President Obama tapped him for the federal bench.  At the time of his nomination, Watford won rave reviews from California Republicans, who described him as non-ideological and “very moderate.”  Nonetheless, Republicans quickly lined up to oppose Watford, complaining that Watford has assisted in a legal challenge to Arizona’s strict immigration law (the law was ultimately blocked by the U.S. Supreme Court).  Nonetheless, nine Republicans broke ranks and pushed Watford past a filibuster and onto the bench.  (Of the nine, three, Senators Collins, Graham, and Murkowski, will still be in the Senate in 2021).

In 2016, when Justice Antonin Scalia died, Watford was the third of President Obama’s shortlist for the appointment (with Judge Merrick Garland getting the appointment).

On the Ninth Circuit, Watford has forged a moderate path, serving as a swing vote on the closely divided court.  For example, in 2019, Watford sided with conservative judge Diarmund O’Scannlain in upholding the Trump Administration’s “Remain in Mexico” policy regarding asylum applicants (with Judge William Fletcher dissenting).  Similarly, in 2017, Watford broke in dissent from two Democratic appointees on the Ninth Circuit in affirming a district court order to the Government to provide a broad array of documents relating to the rescinding of DACA.  Watford’s position was ultimately upheld unanimously by the Supreme Court.

That’s not to say that Watford is conservative.  In 2018, he joined Judge Michelle Friedland’s opinion holding that a Catholic school teacher could bring an employment discrimination case against his employer without being bound under the “ministerial exception.”  Similarly, Watford authored a 7-4 en banc decision of the Ninth Circuit holding that the Fourth Amendment bars a Los Angeles regulation requiring hotels to retain guest records (the ruling was upheld 5-4 by the Supreme Court).

Given his stellar credentials, moderate reputation, and respect among the conservative legal community, Watford would be an intriguing choice for the Biden Administration.

Overall, if a Supreme Court vacancy opens over the next two years with a Republican Senate overseeing the confirmation, I expect Biden to choose one of these four jurists. Each are impeccably credentialed, experienced, and moderate enough to draw some Republican support.

Joseph Barloon – Nominee to the U.S. Court of International Trade

As noted previously, nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, generally do not draw the level of rancor that other judicial nominations do.  Joseph Barloon, who currently serves as General Counsel for the U.S. Trade Representative, is more than qualified for a seat on the Court, but may be stuck due to the timing of his nomination.

Background

Born in 1967, Joseph L. Barloon received a B.A. from Harvard University in 1989, an M.A. from the University of Pennsylvania in 1991, and his J.D. from the Georgetown University Law Center in 1996.  After graduating, Barloon clerked for Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit and then joined the Washington D.C. office of Skadden Arps as an Associate.[1]  He was later elevated to be a Partner at the firm.

In 2019, Barloon replaced Stephen P. Vaughn as General Counsel to U.S. Trade Representative Robert Lighthizer.  He currently serves in that role.

History of the Seat

Barloon has been nominated for a seat vacated by Judge Leo Gordon, an appointee of President George W. Bush, on March 22, 2019.  

Legal Experience

Barloon has spent the vast majority of his legal career at the firm of Skadden Arps, where he worked primarily on civil and commercial litigation.  In the mid-2000s, Barloon was on the legal team for accounting firm KPMG as it faced government investigation and potential indictment for its work on tax shelters.[2]  Notes that Barloon took at meetings with prosecutors were later made public in the process of criminally trying several KPMG officials.[3]

Since 2019, Barloon has served as General Counsel to U.S. Trade Representative Robert Lighthizer.  In this role, Barloon has provided legal advice and guidance to Lighthizer and the Acting Deputy Trade Representative.  Notably, Barloon oversaw the Trump Administration’s proposal of tariffs against China on a wide variety of goods.[4]

Statements and Writings

As an associate and a partner at Skadden, Barloon has both written and spoken on the law, including making frequent statements to the media in commentary on legal developments.  For example, Barloon frequently cowrote articles on banking law with fellow Skadden attorneys Anand Raman and Matthew Michael.[5] 

Lending and Disparate Impact

Barloon has frequently commented on the use of “disparate impact” when evaluating fair lending practices.  Disparate impact allows plaintiffs to prove discrimination by showing the impact of banking policies and procedures, instead of presenting evidence of intent, which is frequently unavailable.  While most of his comments on the subject have been descriptive,[6] Barloon has expressed reservations about the use of disparate impact in fair lending lawsuits in his capacity as an attorney for lenders.[7]

CFPB

Barloon has also spoken frequently, in his capacity as a bank lawyer, on the Consumer Financial Protection Bureau (CFPB) and its actions.  For example, Barloon commented on lawsuits challenging the recess appointment of CFPB head Richard Cordray.[8]  He also spoke favorably regarding the CFPB’s approach in regulating payday lenders, finding the regulations to be “data-driven.”[9] 

Overall Assessment

With decades of experience with commercial litigation and international trade, Barloon is qualified for an appointment to the Court of International Trade.  However, now that we have less than two months left in the Trump Administration (and less than three weeks in the current Congress), it is unlikely (albeit not impossible) that the Senate will be able to process Barloon’s nomination in time.


[2] Lynnley Browning, Documents Show KPMG Secretly Met Prosecutors, N.Y. Times, July 6, 2007.

[3] See id.

[4] See Patrick Shanley, Nintendo, Sony, Microsoft Urge Trump to Withdraw China Tariffs in Joint Letter, Hollywoodreporter.com, June 26, 2019.

[5] See, e.g., Anand S. Raman, Joseph L. Barloon, and Matthew D. Michael, Cutting the Risks Built Into Third-Party Lending Relationships, ABA Banking Journal, Pg. 65, Vol. 95, No. 7 (July 2003).

[6] See, e.g., Kevin Wack, Supreme Court Case Could Be Big Help to Banks in Fair-Lending Fight, American Banker, Nov. 14, 2011 (quoting Joseph Barloon).

[7] See Kevin Wack, Banks Hit Legal Setback in Fair Lending Fight, National Mortgage News, Feb. 27, 2012.

[8] Kevin Wack, CFPB Suit Faces Long Odds, But May Still Have Impact, American Banker, July 25, 2012.

[9] See Victoria Finkle, Payday Loan Crackdown Could Have Big Upside for Banks, American Banker, June 29, 2012.

Judge Raul Arias-Marxuach – Nominee to the U.S. Court of Appeals for the First Circuit

While President Trump has had a significant impact on most of the federal courts of appeals, he has yet to appoint any judges to the U.S. Court of Appeals for the First Circuit, which has remained moderately liberal under the influence of three appointees of President Obama and the pioneering Judge Juan Torruella.  However, Judge Torruella’s untimely death in October may give President Trump a chance to place his stamp on the court.

Background

Raul Manuel Arias-Marxuach was born in San Juan, Puerto Rico in 1967.  Arias-Marxuach received his B.S. cum laude from Boston College in 1989 and his J.D. from the University of Puerto Rico School of Law in 1992.[1]  After graduating, Arias-Marxuach clerked on the Supreme Court of Puerto Rico and then received an LLM from Harvard Law School.

After receiving his LLM, Arias-Marxuach joined the San Juan firm Fiddler Gonzalez & Rodriguez P.S.C. as a Litigation Associate.[2]  In 1995, Arias-Marxuach moved to McConnell Valdes LLC.  Arias-Marxuach became an Income Partner at the firm in 1999 and a Capital Partner in 2003.[3] 

In March 2017, Arias-Marxuach was contacted by the White House after being recommended for a federal judgeship by Resident Commissioner Jenniffer Gonzalez.[4]  Arias-Marxuach was selected as the primary candidate for a vacancy on the U.S. District Court for the District of Puerto Rico in April 2017, but was not officially nominated for the next year, until April 10, 2018.  The Senate confirmed Arias-Marxuach by a 95-3 vote on May 2, 2019, and he has served as a federal judge since.

History of the Seat

Arias-Marxuach has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit.  This seat opened with the death of Judge Juan Torruella, a pioneering judge who was the first from Puerto Rico to sit on the First Circuit, on October 26, 2020.

Political Activity

Arias-Marxuach has limited political experience, having worked as a volunteer attorney for the campaign of Governor Luis Fortuno in 2008 (Fortuno caucused with the GOP as a resident commissioner in Washington).[5]  He also served as a member of the Republican National Lawyers Association.[6] 

Legal Experience

Arias-Marxuach has spent almost his entire legal pre-judicial career at the same firm, working in a variety of subject areas including maritime law, product liability, and antitrust matters.[7]  During his career, Arias-Marxuach has tried three cases to verdict before the U.S. District Court for the District of Puerto Rico.[8] 

Among the most notable cases he handled, Arias-Marxuach represented the University of Puerto Rico in seeking legal remedies against 21 student “strikers” who sought to maintain collective action against the University.[9]  The case went all the way to the Puerto Rico Supreme Court, which found that students at the University do not have the right to strike.[10]

Judicial Experience

Arias-Marxuach has served as a federal district judge for a year and a half.  During this time, he has authored only one published opinion, granting the plaintiff’s motion to remand a gross negligence action to the Puerto Rico Court of First Instance.[11]

Among other matters over which he has presided, Arias-Marxuach reviewed the plea of Trevor Leslie Doyle, a radio host convicted of trying to solicit sex from a minor.[12]  He also presided over a civil suit against the Municipality of Guynabo, alleging that the former mayor’s son, Hector O’Neill Rosa, engaged in a pattern of sexual harassment.[13]

Overall Assessment

Judge Arias-Marxuach’s confirmation to the federal bench, while slow (taking more than 2 years from recommendation to confirmation) was widely bipartisan.  His record on the bench itself is also uncontroversial.  However, no President since Jimmy Carter has seen lame-duck confirmations to the court of appeals, and it is unclear whether the eight weeks remaining until the new Administration is enough time to process Judge Arias-Marxuach’s nomination.


[1] Sen. Comm. on the Judiciary, 115th Cong., Raul Arias-Marxuach: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[5] See id. at 8.

[6] See id. at 4.

[7] See id. at 1.

[8] See id. at 18.

[9] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[10] See Univ. of Puerto Rico v. Labarde Torres, 180 D.P.R. 253 (P.R. 2010).

[11] See Carrillo v. Marina Puerto Del Ray Operations, LLC., 432 F. Supp. 3d 7 (D.P.R. 2019).

[12] See Radio Host Reaches Plea Agreement, Court Docs Say, The Telegraph-Journal, Jan. 11, 2020.

[13] See Judge Reserves the Ruling on Dismissal, CE Noticias Financieras English, Oct. 29, 2019.

Joseph Dawson – Nominee to the U.S. District Court for the District of South Carolina

The J. Waites Waring Judicial Center in Charleston, SC

There has never been an African American judge on the South Carolina federal bench appointed by a Republican President.  If confirmed, Charleston County attorney Joseph Dawson would break that notable barrier.

Background

Born in 1970, Joseph Dawson III received a B.A. from The Citadel in 1991 and a J.D. from the University of South Carolina Law School in 1997.[1]  While a law student, Dawson worked as a clerk at the Charleston County Attorney’s Office.  Upon graduation, Dawson was hired there as an Assistant County Attorney.  In 2000, Dawson became Deputy County Attorney and has served as County Attorney since 2001.[2] 

Additionally, Dawson has also maintained a part-time solo practice since 2001.

History of the Seat

The seat Dawson has been nominated for opened on February 28, 2019, with Judge Terry Wooten’s move to senior status.  Dawson was nominated on October 23, 2020 at the recommendation of U.S. Sen. Tim Scott.

Legal Experience

Dawson’s primary role is as County Attorney for Charleston County.  In this capacity, Dawson oversees all legal matters for the County and manages the County Attorney’s Office, with a budget of approximately $1.7 million.[3]  Among Dawson’s more prominent cases, he was the primary lawyer defending the County Assessor in a suit challenging tax assessments laid against a new Hampton Inn & Suites.[4]  After losing the suit at trial, Dawson appealed the matter to the South Carolina Court of Appeals and the South Carolina Supreme Court, which ultimately upheld the assessment.[5]

However, Dawson’s tenure as County Attorney has not been without some controversy.  In 2011, Dawson drew criticism for drawing an income of over $300,000 a year from the County, significantly more than other County Attorneys across the state.[6]  Dawson’s contract maintained a fixed salary of $172,500 but permitted compensation for additional legal services, which allowed for the greater income.[7] 

Overall Assessment

Salary issues aside, there is little in Dawson’s background that should attract controversy during his confirmation.  Rather, the biggest issue Dawson is facing is the depleting Senate calendar.  Nonetheless, I expect that, as Dawson has already received a hearing and the Judiciary Chairman is his home-state senator, his nomination will be one of the last confirmed before the end of the Congress.


[1] Sen. Comm. on the Judiciary, 116th Cong., Joseph Dawson III: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 17-18.

[4] See Charleston Cnty. Assessor v. Univ. Ventures, LLC, 427 S.C. 273 (2019).

[5] Id. 

[6] Bill Sharpe, Charleston County Attorney Dodges Questions About His Salary, Live 5 News, May 3, 2011, https://www.live5news.com/story/14566073/charleston-county-attorney-dodges-questions-about-his-salary/.

[7] See id.

Charles Atchley – Nominee to the U.S. District Court for the Eastern District of Tennessee

Longtime federal prosecutor Charles Atchley is President Trump’s latest nominee to the U.S. District Court for the Eastern District of Tennessee.  While Atchley has the support of his home-state senators, he has a very short confirmation window before the end of the year.

Background

A Tennessee native, Charles Edward Atchley Jr. was born in Knoxville in 1966.  He graduated from the University of Tennessee in 1989 and then attended Cumberland School of Law at Samford University, graduating in 1993.[1]  Atchley then joined the Office of the District Attorney General as a state prosecutor in 1994.

In 2001, Atchley became a federal prosecutor at the U.S. Attorney’s Office for the Eastern District of Tennessee.[2]  Atchley became First Assistant with the Office in 2018 and has served in that capacity since.  

History of the Seat

Atchley has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on March 10, 2020, when Judge Harry Mattice moved to senior status.  Atchley applied for a federal judgeship and was recommended by Tennessee’s senators to the White House in September 2019.[3]  However, he was not formally nominated until September 2020, more than a year later.

Legal Career

Atchley has spent virtually his entire legal career as a prosecutor, spending seven years at the state level and nineteen at the federal level.  In this time, Atchley has tried more than 50 cases to judgment or verdict.[4]

During his time as a prosecutor, Atchley has handled a number of high profile cases, most notably prosecuting Allen Ho for trying to recruit nuclear experts to help the Chinese government.[5]  Atchley also prosecuted Tennessee Rep. Joseph Armstrong, a Democrat, for allegedly manipulating the state’s cigarette tax system to make more than $300,000.[6]  Additionally, Atchley prosecuted four Campbell County Sheriff’s deputies for the beating and torture of a suspected drug dealer.[7] 

Overall Assessment

As a relatively apolitical career prosecutor, Atchley’s nomination is likely to be fairly uncontroversial, except for its timing.  With the Trump Administration’s term winding down, Democrats are likely to oppose any nominee at this late stage, arguing that these seats deserve to be filled by President Biden.  If Republicans stick together and prioritize the nomination, they are likely to be able to push Atchley onto the bench.


[1] Sen. Comm. on the Judiciary, 116th Cong., Charles E. Atchley Jr: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 30-31.

[4] Id. at 17.

[5] See Robin Pagnamenta, Nuclear ‘Spy’ Claims FBI Tricked Him Into Confession, The London Times, Aug. 18, 2016.

[6] Erik Schelzig, Prosecutors: Tennessee Lawmaker Acted ‘Above the Law’, A.P. State & Local, Aug. 2, 2016.

[7] See Four Former Campbell Officers Sentenced in Torture Case, A.P. State & Local Wire, July 13, 2005.

Katherine Crytzer – Nominee to the U.S. District Court for the Eastern District of Tennessee

36-year-old Katherine Crytzer was already before the Senate seeking an executive appointment when she was nominated for a federal judgeship.  While Crytzer’s nomination to be Inspector General was never confirmed by the Senate, her nomination to be a federal judge remains an open question.

Background

Born in 1984, Katherine A. Crytzer graduated from Middle Tennessee State University in 2006 and attended George Mason University Law School, graduating in 2009.  Crytzer then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.

After her clerkship, Crytzer joined Kirkland & Ellis as an associate.  In 2014, Crytzer joined the U.S. Attorney’s Office for the Eastern District of Kentucky as a federal prosecutor.  In 2017, Crytzer joined the Office of Legal Policy at the Department of Justice.  Since 2020, Crytzer has served as Principal Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In 2020, Crytzer was nominated to be the Inspector General for the Tennessee Valley Authority, replacing acting Inspector General Jill Matthews.[1]  However, Crytzer’s nomination came under fire for her refusal to disavow the Administration’s practice of dismissing Inspector Generals for their investigation and oversight activities.[2]  Crytzer’s nomination cleared the Senate Environment and Public Works Committee by a narrow 12-11 vote, but never received a vote on the Senate floor.

History of the Seat

Crytzer has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on September 10, 2020, with the untimely death of Judge Pamela Reeves.

Legal Career

Crytzer started her legal career by clerking on the U.S. Court of Appeals for the Eighth Circuit and then in private practice at Kirkland & Ellis.  While at the firm, Crytzer was part of a legal team that challenged California’s Low Carbon Fuel Standard as being pre-empted by federal law, and discriminating against interstate commerce in violation of the Dormant Commerce Clause.[3]

From 2014 to 2017, Crytzer worked as a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Kentucky.  As a prosecutor, Crytzer argued before the Sixth Circuit in support of the stop, detention, and frisk of suspected drug traffickers.[4]  A 2-1 decision of the Sixth Circuit held that the Officer lacked probable cause for the frisk, and vacated the conviction.[5] 

Since 2017, Crytzer has worked at the Department of Legal Policy, working primarily on judicial nominations.  In this role, Crytzer helped “shepherd” the nomination of Justice Brett Kavanaugh through the Senate.[6]

Writings

As a law student, Crytzer authored a law review article considering when, under Supreme Court precedent, the publication of unfavorable information about a public employee implicates their due process interests.[7]  Crytzer argued that the Supreme Court should confirm an “actual publication” test adopted by two circuits, holding that the only way that an employee’s due process rights would be harmed is with the “actual publication” of the unfavorable information to third parties.[8]

Overall Assessment

With less than ten weeks left in the Trump Presidency, Crytzer faces a narrow window for confirmation.  Additionally, given her youth, the opposition to her executive appointment, and her work on Justice Kavanaugh’s confirmation process, Crytzer is likely to be considered a controversial nominee.


[1] Georgiana Vines, Katie Crytzer Introduced as Potential TVA Inspector General, Knox News, May 31, 2020, https://www.knoxnews.com/story/news/columnists/georgiana-vines/2020/06/01/katie-crytzer-introduced-potential-tva-inspector-general/5284749002/.

[2] Newswire, Democrats Balk at TVA Inspector General Pick, Greenwire, July 1, 2020.

[3] See Rocky Mt. Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2012).

[4] See United States v. Noble, 762 F.3d 509 (6th Cir. 2014).

[5] See id. at 529.

[6] See Jerry Lambe, Trump’s Latest Judicial Nominee Is DOJ Attorney Who Helped Kavanaugh’s Confirmation to Supreme Court, Newstex Blogs, Sept. 16, 2020.

[7] Katherine Crytzer, You’re Fired! Bishop v. Wood: When Does a Letter in a Former Public Employee’s Personnel File Deny a Due Process Liberty Right, 16 Geo. Mason L. Rev. 447 (Winter 2009).

[8] See id. at 449.