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

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.