Eleven New Nominations to the District Court Announced

In a much needed and welcome move, the Trump Administration announced the nominations of 11 candidates to fill vacancies on U.S. District Courts.  The nominees are:

Annemarie Carney Axon, a Birmingham attorney, and Judge Liles C. Burke of the Alabama Court of Criminal Appeals were nominated for the U.S. District Court for the Northern District of Alabama.

Judge Tripp Self III of the Georgia Court of Appeals was nominated for the U.S. District Court for the Middle District of Georgia.

Michael Lawrence Brown, a partner in the Atlanta office of Alston & Bird LLP, and Judge Billy McCrary Ray II of the Georgia Court of Appeals, were nominated for the U.S. District Court for the Northern District of Georgia.

Judge Charles Barnes Goodwin, a federal magistrate judge, was nominated for the U.S. District Court for the Western District of Oklahoma.

Thomas Alvin Farr, a Raleigh attorney, was nominated for the U.S. District Court for the Eastern District of North Carolina.  Farr had previously been nominated to fill the same vacancy during the Bush Administration.

Chip Campbell Jr. and Eli Richardson, both Nashville attorneys in private practice, were nominated for the U.S. District Court for the Middle District of Tennessee.

Mark Norris, the currently serving Tennessee Senate Majority Leader, and Thomas Lee Robinson Parker, a Memphis attorney, were nominated for the U.S. District Court for the Western District of Tennessee.

 

Four Nominees Advance to Senate Floor

This morning, the Senate Judiciary Committee advanced the nominations of John Bush, Kevin Newsom, Tim Kelly, and Damien Schiff to the senate floor.  On one end of the spectrum, Newsom and Kelly were advanced with bipartisan support (the former with just two senators dissenting, and the latter by voice vote).  On the other end, Bush and Schiff attracted unanimous opposition from Democrats.

While the outcome of the committee vote was pre-ordained after GOP skeptics announced their support for Bush and Schiff, both nominees have a narrow margin for error on the senate floor.  Opponents will likely now turn their attention to lobbying moderate Republicans such as Sen. Susan Collins (R-ME).  While Republicans are unlikely to run afoul of Bush’s sponsor, Senate Majority Leader Mitch McConnell (R-KY), there is a small chance some senators may choose to oppose Schiff.

The Age Question

Earlier this year, various news reports announced that the White House Counsel’s Office was interviewing several lawyers in their late 30s and early 40s for judgeships.  The youth of these prospective nominees became the fodder of much consternation for liberals, and enthusiasm for conservatives.  Six months into the Trump Administration, it is worth looking at the nominees submitted to see if they are, on the age front, out of the mainstream for judicial nominations.

Court of Appeals Nominees:

President Trump has selected nine nominees to the federal appellate bench. They (along with their year of birth) are:

  • Stephanos Bibas (1969) – Third Circuit
  • Judge Amul Thapar (1969) – Sixth Circuit
  • John Bush (1964) – Sixth Circuit
  • Joan Larsen (1968) – Sixth Circuit
  • Prof. Amy Coney Barrett (1972) – Seventh Circuit
  • Justice David Stras (1974) – Eighth Circuit
  • Judge Ralph Erickson (1959) – Eighth Circuit
  • Justice Allison Eid (1965) – Tenth Circuit
  • Kevin Newsom (1972) – Eleventh Circuit

The average birth year of these nominees is 1968, giving them an average age of 49.

In comparison, the first nine nominees submitted by the Obama Administration were:

  • O. Rogeriee Thompson (1951) – First Circuit
  • Judge Gerald Lynch (1951) – Second Circuit
  • Judge Joseph Greenaway (1957) – Third Circuit
  • Judge Thomas Vanaskie (1953) – Third Circuit
  • Judge Andre Davis (1949) – Fourth Circuit
  • Justice Barbara Milano Keenan (1950) – Fourth Circuit
  • Jane Stranch (1953) – Sixth Circuit
  • Judge David Hamilton (1957) – Seventh Circuit
  • Judge Beverly Martin (1955) – Eleventh Circuit

The average birth year of these nominees is 1952.9, which, in 2009, gave them an average age of 56.1.

By this comparison, Trump’s appellate nominees are, on average, about seven years younger than Obama’s, a significant difference.

However, to have a truly accurate comparison, we have to look at previous presidents as well.

President Bush announced his first eleven appellate nominees in a joint ceremony on May 9, 2001.  Setting aside Judges Roger Gregory and Barrington Daniels Parker, who were both Democrats chosen for bipartisanship, we can look to the other nine conservatives as a comparison.  They were:

  • Miguel Estrada (1961) – D.C. Circuit
  • John Roberts (1955) – D.C. Circuit
  • Judge Terrence Boyle (1945) – Fourth Circuit
  • Judge Dennis Shedd (1953) – Fourth Circuit
  • Judge Edith Brown Clement (1948) – Fifth Circuit
  • Justice Priscilla Owen (1954) – Fifth Circuit
  • Justice Deborah Cook (1952) – Sixth Circuit
  • Jeffrey Sutton (1960) – Sixth Circuit
  • Prof. Michael McConnell (1955) – Tenth Circuit

These nine have an average birth year of 1953.7, which, in 2001, translates to an average age of 47.3.  This not only makes them younger than Trump’s nominees, it also makes them, in absolute terms, younger than Obama’s as well.

President’s Clinton’s first nine appellate nominees were:

  • Judge Judith Ann Wilson Rogers (1939) – D.C. Circuit
  • Judge Pierre Leval (1936) – Second Circuit
  • M. Blane Michael (1943) – Fourth Circuit
  • Judge Diana Gribbon Motz (1943) – Fourth Circuit
  • Fortunato Benavides (1947) – Fifth Circuit
  • Judge Robert Manley Parker (1937) – Fifth Circuit
  • Judge Carl Stewart (1950) – Fifth Circuit
  • Justice Martha Craig Daughtrey (1942) – Sixth Circuit
  • Justice Rosemary Barkett (1939) – Eleventh Circuit

These nine nominees had an average birth year of 1941.8 and an age (in 1993) of 51.2.

In other words, the average age of President Trump’s appellate appointees, 49, falls squarely between those of President Bush’s (47.3), and President Clinton’s (51.2).  The only outlier is the group of nominees submitted by President Obama, who are significantly older than the norm.

District Court Nominees

As of July 3, 2017, President Trump has announced seven district court nominees.  The oldest of the nominees is Judge David Nye, born in 1958.  The youngest is Trevor McFadden, born in 1978.  The seven nominees have an average birth year of 1967, and an average age of 50.

In comparison, the average birth year of the first six nominees made by President Obama is 1960, with an average age of 49.

The average birth year of the first seven nominees made by President Bush is 1949, with an average age of 52.

The average birth year of the first ten nominees made by President Clinton is 1943.5, with an average age of 49.5,

In other words, the age of President Trump’s district court nominees is within the mainstream of the previous three presidents.

Setting aside the hype on both sides, Trump’s judicial nominees, at least so far, are not significantly younger than the nominees of previous presidents.  Rather than spending more ink criticizing the youth of Trump’s nominees, it may be worth pondering why the Obama Administration squandered its own opportunity to appoint young liberals to the bench, instead choosing judges in their late 50s and early 60s.

Thoughts on Today’s Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing for three of President Trump’s judicial nominees: John Bush, nominated for the Sixth Circuit, Kevin Newsom, nominated for the Eleventh Circuit, and Damien Schiff, nominated for the Court of Federal Claims.  Anyone interested can watch the hearing, but I wanted to offer some preliminary observations.

DISCLAIMER: These are my subjective views.  Obviously, opinions will differ, and I don’t claim to be an authority on confirmation hearings.

  1. It was a Good Day for Kevin Newsom – Early in the hearing, it was clear that Democrats did not particularly care to make a case against Kevin Newsom’s confirmation.  Ranking Member Dianne Feinstein (D-CA) set the tone when she stated that she would not hold the GOP blockade of Judge Abdul Kallon to this seat against Newsom.  For his part, Newsom navigated questions related to substantive due process with ease, charmed senators on both parties, and even offered a moment of genuine emotion during his opening statement when he remembered his late sister.  Some Senators, including Sen. Al Franken (D-MN), didn’t even bother to ask Newsom any questions, while Sen. Richard Blumenthal (D-CT) went out of his way to praise the nominee for his pro bono advocacy of immigrants.  In short, Newsom should feel pretty good about his chances.
  2. It was a Bad Day for John Bush – John Bush went into this hearing having already faced sustained opposition from liberal groups over his blogging and his speeches. He tried to rehabilitate himself early by apologizing for using a racial slur in a previous speech.  However, Democrats largely ignored that particular complaint, instead focusing on his blogging.  Both Sen. Feinstein and Sen. Franken took Bush to task over his writings, focusing on his criticism of Roe v. Wade and his citing of conspiracy theories respectively.  Perhaps Bush’s lowest point came when Sen. John Kennedy (R-LA), whose vote Bush needs to advance, declined to ask him any questions, instead pithily noting: “I’ve read your blog; I’m not impressed.”  A rattled Bush failed to seize on a lifeline offered by Sen. Thom Tillis (R-NC), telling the senator that impartiality as a judge was an “aspiration” rather than an “absolute expectation.”  To make things worse, Newsom stepped in to disagree and state that impartiality was an “absolute expectation” from judges.  Of course, none of this is to say that Bush will not be confirmed.  However, he did not make things any easier for himself.
  3. Nobody Cares About Damien Schiff – Walking into this hearing, Damien Schiff was likely the easiest nominee to oppose, given his inflammatory writing, including his reference to Justice Anthony Kennedy as a “judicial prostitute.”  However, only a handful of senators stayed to question Schiff, and of them, only Sen. Franken seriously questioned Schiff’s blogging.  Schiff’s explanation that the term was intended to criticize the media’s reporting on the Supreme Court (an explanation that falls apart the moment you actually read the entire post) was never challenged. This lack of attention speaks to how little senators (and probably the general public) cares about the court of federal claims.

There are other observations that can no doubt be made, but I will limit myself to those three.  Overall, while the hearing was interesting, it had little that will attract media attention or the anger of the broader public.  For nominees seeking confirmation, that can only be seen as a good thing.

The Consultation Double-Standard

Let’s compare excerpts from the Senate Judiciary Questionnaires of two judicial nominees:

“In January 2017, I was asked separately by both Congressman Erik Paulsen and Congressman Tom Emmer if I would be interested in being nominated to fill a vacant position on the United States Court of Appeals for the Eighth Circuit.  I indicated I would be interested.  In early February 2017, Congressman Paulsen, Congressman Emmer, and Congressman Jason Lewis sent a letter to the White House recommending that I be nominated for the position.  Each congressman met with me separately.  Also in early February 2017, I corresponded and spoke with an official from the White House Counsel’s Office about the vacancy and my potential interest in the position…”

“There is a commission formed by Senators Baldwin and Johnson to recommend judicial candidates to the Senators.  I applied to that commission and was interviewed on November 18, 2014 in Madison, Wisconsin.  On May 7, 2015, Senator Baldwin asked for my permission to include my name on a list of candidates she sent to the White House for consideration…On October 28, 2015, I interviewed with staff from Senator Johnson’s office in Milwaukee, and on November 5, 2015, I interviewed with Senator Johnson at his office in Washington D.C.”

The first is the description of the judicial nomination process offered by Justice David Stras, nominated for a Minnesota seat on the Eighth Circuit, a state with two Democratic Senators.  The second is a description of the same process offered by Donald Schott, a Wisconsin attorney nominated by President Obama to a seat on the Seventh Circuit (but never confirmed).  At the time, Wisconsin had a Democratic and a Republican Senator.

Let’s look at other examples.  Here is Justice Joan Larsen’s path to a Michigan seat on the Sixth Circuit (Michigan has two Democratic Senators):

“Since March 9, 2017, I have been in contact with officials from the White House Counsel’s Office and the Department of Justice Office of Legal Policy about a potential federal judicial appointment.  On April 27, 2017, I interviewed with White House Counsel Don McGahn in Washington D.C.  On May 8, 2017, the President submitted my nomination to the Senate.”

In comparison, here is the path for Judge Carolyn McHugh, who was nominated by Obama to a Utah seat on the Tenth Circuit (Utah has two Republican Senators):

“In January 2013, I submitted a cover letter and resume to Senator Orrin Hatch and to Congressman Jim Matheson for a possible position on the Tenth Circuit.  On January 16, 2013, I interviewed with Senator Hatch and Senator Mike Lee, and on January 30, 2013, I interviewed with Congressman Jim Matheson.  On February 4, 2013, I was notified by Senator Hatch that he and Senator Lee would be recommending me to the White House for consideration.”  

The contrast is stark.  Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process.  Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.

 

Consultation under Obama

On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.  Specifically, the letter noted:

“The principle of senatorial consultation (or senatorial courtesy)…dates to the Administration of George Washington.  Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications for federal service.”

The letter goes on to state a bright-line rule on judicial nominees:

“…if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators.  For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.  

In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips:

  • Louis Butler – Western District of Wisconsin
  • Elissa Cadish – District of Nevada
  • Alison Lee – District of South Carolina
  • Jennifer May-Parker – Eastern District of North Carolina
  • Arvo Mikkanen – Northern District of Oklahoma
  • Victoria Nourse – Seventh Circuit Court of Appeals
  • Natasha Perdew Silas – Northern District of Georgia
  • Steven Six – Tenth Circuit Court of Appeals
  • William Thomas – Southern District of Florida

When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips.  During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked:

  • Donald Beatty – District of South Carolina
  • Mary Barzee Flores – Southern District of Florida
  • Rebecca Ross Haywood – Third Circuit Court of Appeals
  • Lisabeth Tabor Hughes – Sixth Circuit Court of Appeals
  • Abdul Kallon – Eleventh Circuit Court of Appeals
  • Myra Selby – Seventh Circuit Court of Appeals
  • Dax Erik Shepard – Northern District of Georgia
  • Patricia Timmons-Goodson – Eastern District of North Carolina

 

Consultation under Trump

Under a Trump Administration, Senate Republicans’ dedication to the even-handed application of senatorial courtesy has dimmed.  Rather, some Republicans seem to be ready to trash the “special responsibility” they once defended.

At any rate, such rhetoric may end being just that: rhetoric.  Tradition and principles aside, there are many practical reasons for keeping the blue slip.  Even if Republicans seek to look only at short-term interests, there is one key number to keep in mind: two.  In order words, if all Democrats line up against a nominee, Republicans can only afford to lose two of their own Senators without risking the judge’s confirmation.  While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.  

In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.  If nothing else, it gives the nominees a champion in the convoluted Senate confirmation process.  To use the words of the Senate Republican Conference:

“[Republicans], as a Conference, expect [senatorial consultations] to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not.”

President Trump Announces Ten New Judicial Nominations

Today, according to the Washington Times, President Trump nominated three judges to the U.S. Court of Appeals.  They are:

Stefanos Bibas, a law professor at the University of Pennsylvania and the director of the University’s Supreme Court Clinic, was nominated to the Third Circuit Court of Appeals.

Judge Ralph Erickson, a federal trial judge on the U.S. District Court for the District of North Dakota, was nominated to the Eighth Circuit Court of Appeals.

Justice Allison Eid of the Colorado Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Tenth Circuit Court of Appeals.

Trump also named three judges to the U.S. District Courts.  They are:

Claria Horn Boom, a Lexington attorney, was nominated to a joint seat on the Eastern and Western Districts of Kentucky.

Timothy J. Kelly, chief counsel to Senate Judiciary Committee Chairman Chuck Grassley, was nominated to the U.S. District Court for the District of Columbia.

Trevor McFadden, a deputy assistant attorney general in the Department of Justice, was nominated to the U.S. District Court for the District of Columbia.

Finally, Trump nominated Stephen S. Schwartz to the U.S. Court of Federal Claims, and Michael P. Allen, Amanda Meredith, & Joseph Toth to the U.S. Court of Appeals for Veterans Claims.