The Irony of Michael Bogren’s Defeat

Early in the Trump Administration, a judicial nominee with strongly conservative credentials faced critical questioning from senators regarding a motion he had filed in a case involving LGBTQ rights.  In response to questioning, he noted:

“The views I express in litigation are those of my clients.”

The nominee in question is Howard Nielson, the Utah attorney whose involvement in defending California’s Proposition 8 was deeply controversial.  Nielson was ultimately confirmed this year by a narrow margin but his battle has a curious coda.  Just as Nielson took the bench in Utah, another nominee, Michael Bogren, withdrew his nomination to a U.S. District Court seat.  The reason: his defense of an East Lansing ordinance that barred businesses that discriminated against LGBT customers from taking part in city events.

Bogren went down, essentially, for engaging in the practice of law, which requires lawyers to make reasonable arguments on behalf of their clients.  Others on both sides of the aisle, including Bogren himself, have pointed out the absurdity of the attacks on Bogren.  Rather than reiterate those points, I’ll focus on a unique irony.

Bogren’s nomination was the result of a detailed negotiation between the White House and Michigan’s Democratic senators.  The negotiations lasted over two years before they produced the nominations package of Bogren and Judge Stephanie Davis (nominated for the Eastern District of Michigan).  Now, Bogren’s withdrawal costs the White House half of their deal.  More specifically, it costs them the conservative half of the deal.

Bogren, derailed by Sen. Josh Hawley and other conservatives, was a member of both the Federalist Society and the Republican National Lawyers Association.  Furthermore, he has contributed solely to Republicans including Presidential candidates John McCain and John Kasich, and the Republican National Committee.  In contrast, almost every single Republican who objected to Bogren had no problem approving Davis, who conducted election protection for the Obama campaign and served on the transition committee of former Detroit mayor Dennis Archer.

This is not to say that Davis, who has an impressive resume, should be opposed.  Rather, it is to note the absurdity of judging a nominee’s entire career by three lines in a legal brief.  It is also telling that Bogren was opposed for defending a municipal government’s right not to support businesses who discriminate, and not for, in another case, representing the Bay View Association, a Methodist resort association, which barred a Jewish buyer from purchasing property.

In any case, Bogren is not likely to be forgotten.  Democrats are sure to chant his name as a talisman the next time Republicans complain that a Trump nominee is being judged on the basis of his advocacy rather than his ability.

 

Judging the 2020 Contenders – The Others

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at the 2020 candidates who have experience as governors and as senators.  Today we look at those who do not fall into either camp.  Obviously, it is difficult to build up a record on judicial matters if you have neither appointed judges nor voted on them.  Nevertheless, we look at the remaining contenders and their public stances (if any) on judicial matters.  Most, if not all, of the contenders in this category have not spoken out on judges and have a thin record on this front.

Stacey Abrams

Abrams, a Georgia state legislative leader who narrowly lost the 2018 gubernatorial election in the state, is, funnily enough, the sister of a federal judge, Judge Leslie Abrams of the U.S. District Court of the Middle District of Georgia.  Regarding other nominations, Abrams came out against the nomination of Thomas Farr in December, which ultimately fell short of a vote.

Michael Bloomberg

Former New York City mayor Michael Bloomberg is currently planning a run for President in 2020, either as a Democrat or as an Independent.  Unlike other candidates in this category, Bloomberg had the opportunity to appoint judges, namely, municipal judges to the New York City Criminal Court, Civil Court and the Family Court.  However, Bloomberg’s appointments to these courts have made few waves and do not reveal much about his judicial views.

Outside of his role as mayor, Bloomberg is primarily known for his advocacy on gun control, as well as his support for the New York stop and frisk policy.

Pete Buttigieg

South Bend Mayor Pete Buttigieg is the youngest candidate in the 2020 Presidential race, and is the only openly gay candidate.  However, Buttigieg’s largely local pedigree has left him little room to develop positions on judicial issues, and he has been silent on such issues since announcing.

Julian Castro

Julian Castro is the only Hispanic candidate who has currently announced a bid for President, and, with experience leading San Antonio, one of the Nation’s largest cities, and heading the Department of Housing and Urban Development, he has the experience in an executive role.

That being said, Castro has been virtually invisible on the issue of judges, with virtually no formal statements on the issue.

John Delaney

Former Maryland Congressman John Delaney was the first major Democrat to announce for the 2020 Presidential camapign.  Despite fairly detailed positions on many major issues, Delaney has largely been silent on judicial issues, with no mention of judicial nominations on his campaign site.

Tulsi Gabbard

Hawaii Congresswoman Tulsi Gabbard is, perhaps, one of the most polarizing candidates in the 2020 race. On one side, Gabbard is a member of the Congressional Progressive Caucus and was one of the strongest supporters for Sen. Bernie Sanders’ presidential campaign in 2016.  On the other, she has been criticized for her lack of support on LGBT issues, and her demagoguery on such issues in the past.

Particularly notoriously, Gabbard wrote an op-ed criticizing Democratic Senators (including fellow Presidential candidate Kamala Harris) for probing judicial nominee Brian Buescher over his membership in the Knights of Columbus, arguing that their questions constituted religious bias.  While Gabbard did note that she herself opposed Buscher’s nomination, her position nonetheless brought pushback from fellow Hawaii Democrats.

Richard Ojeda

The former West Virginia State Senator and unsuccessful Congressional candidate does not have a section on judges on his Presidential campaign website.

Beto O’Rourke

Former Congressman Beto O’Rourke ran a surprisingly strong Senate campaign in 2018, falling just narrowly short of Sen. Ted Cruz despite running in strongly Republican Texas.  During the campaign, O’Rourke opined on the pending Kavanaugh nomination, wishing that there had been more focus on Kavanaugh’s judicial positions during the confirmation battle.  O’Rourke has said little about Trump’s other judicial nominations, however, including many appointed to Texas courts.  Interestingly, O’Rourke’s strong campaign nonetheless propelled many Texas judicial candidates to victory, flipping many courts across the state to Democrats.

Tim Ryan

Ohio Rep. Tim Ryan has been planning a run for President since mid-2018, even as he led an aborted coup against House Speaker Nancy Pelosi.  While Ryan has made a name for himself as a Pelosi opponent, he has been largely invisible on the issue of judicial nominations, although he did issue a statement opposing the nomination of Brett Kavanaugh.

Eric Swalwell

Swalwell has served in the U.S. House since his election in 2012 and currently serves on the House Judiciary Committee (which, unlike its senate counterpart, has no role in judicial confirmations).  In 2018, Swalwell came out strongly against the nomination of Brett Kavanaugh to serve on the Supreme Court.

The Nominees Left Out

Updated on January 23, 2019 at 3:24 PM

When the 115th Congress adjourned, it sent 73 judicial nominees back to the President.  Yesterday, President Trump announced his intention to renominate 50 of them (as well as one nominee to the U.S. Court of Military Commission Review).  This leaves 23 nominees not on the initial list and still in limbo.  Zoe Tillman at Buzzfeed has a great rundown of the nominees sent back to the Senate.  Today, we look at the 23 who were not.

Out of the 23, 16 come from just three states: New York; California; and Illinois.  Each of these states has two Democratic Senators, and, more importantly, Senators with prominent positions in the Democratic Party.  As such, one could argue that the blocking of these renominations are intended to add pressure to Democrats during the government shutdown.  However, I would argue that the truth is more complicated.

Let’s start with California, which has two senators, Sen. Dianne Feinstein and Sen. Kamala Harris, on the Senate Judiciary Committee.  Both were strong opponents of Justice Brett Kavanaugh.  There were six California nominees pending that were not renominated: Patrick Bumatay, Dan Collins, and Kenneth Lee to the Ninth Circuit; and Stanley Blumenfeld, Jeremy Rosen, and  Mark Scarsi for the Central District of California.  This batch was submitted relatively late in 2018, and did not have the support of California’s home-state senators.  Since that point, White House Counsel Don McGahn has departed and has been replaced with Pat Cippolone, and, by all accounts, negotiations between the White House and California senators are back on.  As such, not renominating the California nominees can be seen as an optimistic sign.  Of course, some, if not all, of the six will ultimately make it to the bench, either as part of a package, or, if negotiations fail, individually.

The situation in New York is more complicated.  New York Senator Chuck Schumer leads the Senate Democratic Caucus and Senator Kirsten Gillibrand has presidential ambitions.  Nevertheless, they managed to work with the White House to put together a seven-judge package of nominees last year.  These nominees, including three Democrats and four Republicans, have not been renominated.  At the same time, the White House has renominated four other New York nominees: Judge Joseph Bianco and Michael Park for the Second Circuit; Thomas Marcelle for the Northern District of New York, and Philip Halpern for the Southern District of New York.  It is unclear why the White House has declined to put forward a group of nominees who were passed out of the Judiciary Committee with bipartisan support, although one can speculate that it is intended as a slight to Schumer.

Finally, we come to perhaps the most surprising omission, Illinois.  Illinois Sens. Dick Durbin and Tammy Duckworth established a productive relationship with the White House on judicial nominations, resulting in the smooth confirmations of Michael Scudder and Judge Amy St. Eve to the Seventh Circuit (the only appellate nominations during the Trump Administration to receive unanimous support).  They also put together a package of three district court nominees: conservatives Martha Pacold and Steven Seeger; and liberal Mary Rowland.  None of the three have been renominated.  Of course, given the number of vacancies on the federal bench in Illinois, it is possible that the three will be wrapped into a larger package of nominees.

Stepping away from these three states, you have an additional seven who have not been renominated.  Two of these, Mary McElroy of Rhode Island and Judge Stephanie Gallagher of Maryland, were nominees originally chosen by President Obama and renominated by President Trump with Democratic support.  I think the Administration is hoping, supported by a new Judiciary Chair, to renegotiate these picks and try to find nominees with more conservative records.  (The Trump Administration did renominate Judge John Milton Younge so it’s not that all Democratic picks were left off the list)

The remaining five are nominees who would likely face a difficult journey to confirmation.  This includes Jon Katchen, who withdrew his nomination late last year in the face of strong opposition from the Alaska Bar, Gordon Giampietro, who has been blue-slipped by Sen. Tammy Baldwin, and Thomas Farr, whose expected confirmation fizzled last year after opposition from Sen. Tim Scott.  Farr is perhaps the most notable of the three, as Sen. Thom Tillis has still been advocating for his renomination.  Regardless, withdrawing Farr is a no-brainer for the White House.  The sixty-four year old nominee can easily be replaced with a judge just as conservative and two decades younger.

The last two are the most interesting and surprising.  FTC Commissioner Maureen Ohlhausen was not renominated to the Court of Federal Claims.  While Ohlhausen did face strong Democratic opposition from the Senate Judiciary Committee, so did fellow nominee Ryan Holte (Holte was renominated).  As such, I’m inclined to think that Ohlhausen may have asked for her nomination to be withdrawn.  (UPDATE: An individual familiar with the judicial confirmation process has confirmed that Ohlhausen withdrew her nomination.)   Finally, there is John O’Connor, nominated to a district court seat in Oklahoma.  O’Connor was rated Unqualified by a unanimous panel of the American Bar Association, who cited his lackluster legal career, and noted ethical issues.  It is hard to believe that the ABA rating was the sole factor in blocking O’Connor given that other nominees have soldiered on past such a rating and been confirmed.  Given that the allegations against O’Connor were presumably examined during the White House vetting process, the lack of a renomination is surprising.

Overall, some, if not all, of these 23 picks, could still be renominated.  However, their exclusion from the initial list clearly makes a point: the Administration is continuing to move deliberately with regard to judicial nominations, and the area is still a priority for them.  As such, we’re in for an interesting Congress.

Judging the 2020 Contenders: The Senators

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at governors.  Today, we turn to senators.

Senators may not have the nominating ability that Governors do, but they still have two important ways of displaying their judicial philosophies.  The first and most obvious is through their votes: senators show their judicial leanings by which nominees they support and oppose.  The second, and perhaps even more important, is through the judges they recommend to the White House.  Depending on the Administration, senators have been allowed to recommend district (and sometimes circuit) judges for nomination.  How senators have exercised this power relates directly to how they will exercise power as an executive.  Today, we will look at the current and former senators who may run for president, and their records on these two points.

Joe Biden

Perhaps no other senator (with the possible exception of the late Sen. Ted Kennedy) has had the level of influence over the federal bench that Biden has.  As the senator from Delaware for thirty six years, Biden shepherded eight district judges onto the District of Delaware, only one of which, Judge Gregory Sleet, was during a Democratic Administration.  Biden also supported the appointments of Delaware judges to the Third Circuit during the Reagan, H.W. Bush, Clinton, and W. Bush Administrations.  The home-state judges Biden supported, regardless of Administration, have generally been judicial moderates.  From Judge Walter Stapleton to Judge Thomas Ambro, they have avoided controversy and have established themselves as well-respected across the political spectrum.

On the flip side, Biden has exercised his blue slip privileges on occasion.  Late in the Bush Administration, Biden blocked the nomination of then-U.S. Attorney Colm Connolly to the district court.  As a result, Connolly was not confirmed despite support from Sen. Tom Carper, another Democrat.  (Carper nonetheless sponsored Connolly for a judgeship during the Trump Administration, and he was duly confirmed).

However, Biden’s real impact has been on the Senate Judiciary Committee.  Biden served as Chair of the Committee from 1987 to 1995, during which time he oversaw a whopping seven Supreme Court nominations.  Biden oversaw the failure of Judge Robert Bork’s nomination to the Supreme Court, as well as the confirmations of Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, all of whom he supported.  Biden was also Chair of the Committee during the confirmation hearings for Justice Clarence Thomas.  While Biden did not support Thomas, he nonetheless attracted strong criticism for failing to adequately investigate allegations of harassment and impropriety raised against Thomas and for buckling to political pressure from Republicans.  Biden also supported the nominations of Justices John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia, while opposing Chief Justices William Rehnquist and John Roberts, and Justice Samuel Alito, who were all confirmed.

Cory Booker

Cory Booker has served in the Senate since his election in 2013 to replace the late Sen. Frank Lautenberg.  As such, even as the junior senator from New Jersey, Booker has had a significant influence on judicial nominations for the state.  Booker was particularly active in pushing the nomination of Julien Neals, a member of his cabinet when Booker served as mayor of Newark.  Neals, nominated by Obama in 2015, was blocked from confirmation by Senate Majority Leader Mitch McConnell.  Booker has been actively pushing the nomination of Neals with the Trump Administration.

During the Trump Administration, Booker has been one of the most vocal opponents of the President’s judicial nominees, using his perch on the Senate Judiciary Committee to grill nominees on racial bias in the criminal justice system.  Booker strongly opposed both Justices Gorsuch and Kavanaugh, and has opposed 13 of Trump’s district court judges, and twenty five appellate judges.  In fact, Booker has supported just five Trump appellate nominees: Judge Jay Richardson for the Fourth Circuit; Judges Michael Scudder and Amy St. Eve for the Seventh Circuit; Judge Ralph Erickson for the Eighth Circuit; and Judge Mark Bennett for the Ninth Circuit.

Sherrod Brown

Brown has served as the U.S. Senator from Ohio since 2006, when he defeated Sen. Mike DeWine (now the Governor).  Since that day, Brown has overseen and supported seven nominations to the district courts in Ohio.  Early in his tenure, Brown supported President George W. Bush’s nomination of Judge Sara Lioi to serve on the U.S. District Court for the Northern District of Ohio.  During the Obama and Trump Administrations, Brown has established a bipartisan commission on judicial nominations with Senators John Voinovich and Rob Portman respectively.  The commission produced three confirmations during the Obama Administration: Judge Timothy Black to the Southern District of Ohio; and Judges Benita Pearson and Jeffrey Helmick to the Northern District.  All three judges have established left-of-center records on the bench.  During the Trump Administration, Brown has supported Trump nominees Pamela Barker, Sarah Morrison, and Matthew McFarland, who all emerged from the bipartisan commission, but opposed Sixth Circuit nominees Eric Murphy and Chad Readler, who did not.

Throughout his tenure, Brown supported almost all the judicial nominees that Presidents Bush and Obama put out, voting against just one, Judge Leslie Southwick for the U.S. Court of Appeals for the Fifth Circuit.  However, Brown has opposed 37 out of 59 Trump nominees brought up on a roll call vote, including both of Trump’s Supreme Court picks and 25 out of 30 appellate picks, supporting only Judges Richardson, Scudder, St. Eve, Erickson, and Bennett.

Hillary Clinton

Has there been a politician whose name is as ubiquitous as Hillary Clinton? Amid her resume of various political positions, it is easy to forget that Clinton served in the U.S. Senate, from 2000 to 2008, to be precise, when she represented New York.  During that period of time, Clinton generally deferred on nominations issues to Sen. Chuck Schumer, who negotiated judgeships with the Bush Administration.  Nevertheless, Clinton was not hesitant to vote against Bush nominees, voting against both Justices Roberts and Alito, for example.  Clinton also voted against Judges D. Brooks Smith, Dennis Shedd, Paul Cassell, Jay Bybee, Timothy Tymkovich, Jeffrey Sutton, Michael Chertoff, Deborah Cook, Victor Wolski, J. Leon Holmes, Diane Sykes, Priscilla Owen, Janice Rogers Brown, Thomas Griffith, William Pryor, Brett Kavanaugh, Jerome Holmes, and Leslie Southwick during her senate tenure.

Kirsten Gillibrand

New York Senator Kirsten Gillibrand had developed a relatively moderate record in the U.S. House before she was tapped to replace then-Senator Hillary Clinton in 2009.  Since that point, Gillibrand has developed a strongly liberal record on most issues, including judicial nominations.  Gillibrand has been a frequent opponent of Trump judicial nominees, for example, voting to reject all but four of his appellate picks (Scudder, St. Eve, Erickson, and Bennett) and, overall, rejecting 43 out of 59 nominees who received roll call votes (Interesingly, Gillibrand even opposed New York 2d Cir. nominee Richard Sullivan, who she nonetheless returned a blue slip on, and who fellow N.Y. Senator Chuck Schumer supported).

Relating to home-state nominees, Gillibrand has generally deferred to Senator Chuck Schumer (now the Minority Leader), but has chosen a few nominees of her own to recommend during her tenure.  During the Obama Administration, Gillibrand recommended the following district court judges: Judges Joan Azrack and LeShann DeArcy Hall on the Eastern District of New York; Judges Ronnie Abrams, Valerie Caproni and Analisa Torres on the Southern District of New York.  All of Gillibrand’s recommendations to the bench have been women and have been confirmed with near-unanimous support.  The lone exception is Caproni who attracted criticism from both the left and the right for her tenure as General Counsel at the FBI (Caproni even attracted the opposition of Sen. Jeff Merkley, a Democrat).

Kamala Harris

Elected to the U.S. Senate in 2016 from California, Harris has the distinction of herself being considered a top candidate for the Supreme Court.  Harris currently serves on the Senate Judiciary Committee and has voted on 85 Trump judicial appointees in her two years in the Senate.  Of the 59 nominees who received roll call votes, Harris opposed 38 on the floor.  She has been a particularly strong opponent of Trump’s appellate nominees, supporting just five of them: Judge Ralph Erickson; Michael Scudder; Judge Amy St. Eve; Mark Bennett; and Julius Richardson.  She has also been a vigorous questioner of Trump nominees, winning notice for her pointed and often precise questioning.

On the nomination front, Harris has been part of negotiations with the Trump Administration over a package of California nominees to the Ninth Circuit and district courts, although she has taken a smaller role than senior senator Dianne Feinstein, who is also the Ranking Member on the Senate Judiciary Committee.  A prospective deal over the nominees fell apart in late 2018 and the Trump Administration nominated three conservative candidates to the Ninth Circuit.  With a new White House Counsel coming in, Harris and Feinstein are still trying to negotiate a package.

Additionally, before she was a senator, Harris served as Attorney General of California from 2011 to 2017.  During this time, Harris served on the Commission of Judicial Appointments, which reviews all gubernatorial appointments to the California Supreme Court and the courts of appeal.  During Harris’ tenure, the Commission approved a number of left-leaning judges to California courts, including Justices Goodwin Liu, Mariano-Florentino Cuellar, and Leondra Krueger.

John Kerry

A former Democratic presidential candidate and Secretary of State under President Obama, Kerry also served as U.S. Senator from Massachusetts from 1984 to 2013.  During his tenure, Kerry was primarily known for his expertise in international relations, as his senior senator, Sen. Ted Kennedy, primarily handled the judiciary issues for the state.  It was only after Kennedy’s death in 2009 that Kerry became the primary home-state senator on judiciary issues.  In that capacity, Kerry approved the selection of Denise Casper to serve on the U.S. District Court in Massachusetts (Casper had originally been selected by a Committee established by Kennedy).  Kerry also negotiated a nominations deal with Republican Sen. Scott Brown to fill two vacancies.  The deal would involve the nominations of U.S. Magistrate Judge Timothy Hillman, a Democrat, and Massachusetts Superior Court Judge Jeffrey Kinder, a Republican.  While Hillman was promptly nominated and confirmed, the Obama Administration refused to nominate Kinder, who eventually withdrew from consideration after Brown was defeated by Sen. Elizabeth Warren.

During his long tenure in the Senate, Kerry had the opportunity to vote on judges appointed by five different presidents (three Republican and two Democratic).  Kerry voted for most of them.  Nonetheless, Kerry voted against the Supreme Court nominations of Chief Justice William Rehnquist, Robert Bork, David Souter, Clarence Thomas, John Roberts, and Samuel Alito, while supporting Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Amy Klobuchar

Amy Klobuchar, who has served as U.S. Senator for Minnesota since 2006, has one of the more “moderate” records on judicial nominations among the current batch of Democratic senators.  Klobuchar has backed ten appellate nominees and all but eight district court picks.  In addition to the five that attracted the most Democratic votes, Klobuchar backed Judges Kevin Newsom and Elizabeth Branch to the 11th Circuit, Judge Joel Carson to the 10th Circuit, and Judge Kurt Engelhardt to the 5th Circuit.  Most notably, Klobuchar also supported Judge David Stras’ nomination to the 8th Circuit, a decision in which she was opposed by fellow Minnesota senators Al Franken and Tina Smith (Stras has since developed a strongly conservative record on the federal bench).

Regarding the nominations covering her home state, Klobuchar has shepherded four judicial nominations through the Senate.  Early in the Obama Administration, Klobuchar sponsored then-magistrate judge Susan Nelson to confirmation.  Later, she was able to leverage her relationships with Republican senators to secure the confirmation of Wilhemina Wright to the Minnesota District Court, even as many Republicans lined up against her, claiming that she had made negative comments about President Reagan.  During the Trump Administration, Klobuchar was able to shepherd through the unanimous confirmations of two moderate nominees, Judges Eric Tostrud (proposed by Rep. Eric Paulsen, a Republican), and Nancy Brasel (who Klobuchar herself pushed).

Jeff Merkley

Since his defeat of Sen. Gordon Smith in 2008, Merkley has been one of the most liberal voices in the U.S. Senate, including on judicial nominations.  During the Obama Administration, Merkley was one of the strongest supporters of Senate Majority Leader Harry Reid’s decision to end the filibuster on judicial nominees, a stance that conservatives brought up when Merkley led a 14-hour filibuster of Neil Gorsuch’s nomination in 2017.  However, Merkley’s outspokenness hasn’t led to the appointment of young liberals to the federal bench in Oregon.  During the Obama Administration, Merkley supported the renomination of Judge Marco Hernandez, a state judge originally tapped by President Bush, to fill a district court vacancy.  For two other vacancies, Merkley supported male judges in their 50s, Judges Michael Simon and Michael McShane.  During the Trump Administration, Merkley has supported Trump’s nomination of Karen Immergut, a former prosecutor who worked with Ken Starr in the 1990s.

On the flip side, Merkley successfully helped kill the 9th Circuit nomination of Ryan Bounds, who advanced through Committee over the opposition of Merkley and Sen. Ron Wyden.  Additionally, Merkley has strongly opposed most Trump judicial nominees, voting against 41 out of 59 on a roll call vote.

Bernie Sanders

One of two Independents in the Senate, Sanders has served as Senator from Vermont since 2006, and made a previous presidential run in 2016.  While Sanders’ view on judges did not get much airtime during 2016, he has since established himself as a frequent critic of Trump judges.  Sanders supported just 15 out of 59 judges on a roll call vote, one of the lowest support scores of any senator.  Sanders was the only senator to oppose the nomination of Judge Claria Horn Boom, an otherwise uncontroversial nominee in Kentucky.

During his entire tenure in the Senate, Sanders has served as a junior senator, and, as such, judge decisions have been deferred to senior senator Patrick Leahy, who also chaired the Judiciary Committee between 2007 and 2014.  Leahy selected Judges Christina Reiss and Geoffrey Crawford to serve on the Vermont federal bench, and Sanders supported both.

Elizabeth Warren

The first serious candidate to announce her run for the Presidency, Warren is one of the most liberal members of the senate, and has stuck out strongly liberal positions throughout her tenure, including on judges.  She has supported the fewest number of Trump appellate judges of any Democrat in the Senate, voting for just three, Scudder, St. Eve, and Bennett.  In total, Warren supported just 14 out of 59 Trump judges on a roll call vote, the lowest support score of any senator.

Almost immediately after her 2012 election to the Senate, Warren became the senior senator for Massachusetts, as Sen. John Kerry became Secretary of State.  In this role, Warren led the effort to select Massachusetts judicial nominations for the Obama Administration.  Warren supervised the confirmations of four district court nominees, Judges Mark Mastroianni, Indira Talwani, Leo Sorokin, and Allison Boroughs, all of whom were mainstream liberals in their early 50s (Warren supported the nomination of the similarly credentialed Inga Bernstein in the 114th Congress but she was not confirmed).  Warren did not push for the appointment of young attorneys, liberal academics, or candidates who sought to reshape the law from the progressive side, instead focusing on lawyers with 30+ years of practice.  Warren’s tenure also coincided with the confirmation of Judge David Barron to the First Circuit.  While Barron is more typical of the young liberal judges that many progressives wanted Obama to nominate, Barron’s nomination came from the Administration, not from Warren.

Judging the 2020 Contenders: The Governors

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.  

We start our conversation by looking at the governors in contention for the 2020 Democratic nomination.

Perhaps no one has a more analogous record that can be applied to a President’s than a state governor’s.  In most states, governors make appointments to the state bench.  As such, a governor has tremendous influence over the direction of the state judiciary, should they choose to exercise it.  As such, let us look at the presidential contenders with gubernatorial experience and look at their record on judges.  (As always, the opinions are my own and can be disagreed with by reasonable people)

Steve Bullock

Bullock is the Governor of Montana, where he has served since 2013, and before which, he served as Attorney General of Montana from 2009 to 2013.  In Montana, Governors can fill interim judicial vacancies until the next general election.  Governors must select their picks from a list sent by a nominating commission, and the picks must be confirmed by the Montana State Senate.  Throughout Bullock’s tenure as Governor, the State Senate was controlled by the Republican Party.

In his tenure, Bullock has appointed two justices to the Montana Supreme Court, both of whom have been confirmed by wide bipartisan margins.  In 2014, Bullock appointed Jim Shea, then a workers’ compensation judge, to fill a vacancy opened by Justice Brian Morris’ elevation to the federal bench.  Shea was confirmed by a 41-9 vote by the Montana State Senate and won election to a full-term in 2016 unopposed.  In 2018, Bullock appointed district judge Ingrid Gustafson to replace Justice Mike Wheat.  Gustafson, who was considered for the federal bench in 2013, was confirmed and re-elected unopposed.  Both Shea and Gustafson are considered relatively mainstream judges.  Both justices were in the majority of a 5-2 decision that struck down a Montana program that permitted school vouchers to go to religious schools.  In 2017, Shea wrote a 4-3 opinion rejecting an argument that a sentence of 110 years in prison without the possibility of parole for a crime committed shortly before turning 18 was unconstitutional (Gustafson was not on the court at the time).  From this, one could extrapolate that Bullock would continue to appoint moderate liberals to the federal bench, rather than selecting bomb-throwers or liberal lions.

Andrew Cuomo

Andrew Cuomo currently serves as the Governor of New York, where he has led the state since 2011.  As Governor, Cuomo has had a huge impact on the judiciary, particularly on the New York Court of Appeals (despite its name, the highest court in the state).  Cuomo has named the seven judges currently serving on the court, as well as Judge Sheila Abdus-Salam, who served on the court until her untimely death in 2017.  Cuomo’s selections have been fairly diverse, with four of the eight being women, and four being judges of color.  Cuomo also appointed the first openly LGBTQ judge on the court, Judge Paul Feinman.  In fact, only one of Cuomo’s eight appointments has been a straight white male: Judge Eugene Fahey.

However, on the political front, Cuomo has undoubtedly been cautious.  Despite representing one of the most liberal states in the country, Cuomo has largely chosen moderate judges with relatively noncontroversial records, including selecting one Republican, Judge Michael Garcia.  On the flip side, Cuomo declined to reappoint Judge Victoria Graffeo, a Republican appointed by Gov. George Pataki, despite the Judge’s relatively mainstream jurisprudence and bipartisan support.  Furthermore, Cuomo’s appointees are relatively old, especially given New York’s mandatory judicial retirement at the age of 70.  The average age of a Cuomo appointee has been 57 at the time of appointment (compared to approximately 50 among Trump appointees).  Based on these appointments, look for a President Cuomo to prize diversity and experience over appointing young liberals.

John Hickenlooper

John Hickenlooper served as Governor of Colorado from 2011 to 2019.  The Colorado Governorship is particularly powerful when it comes to judicial appointments, as such appointments do not need to be confirmed by a legislative body (although recommendations do come from a judicial nominating commission).

As far as his appointments go, Hickenlooper’s record is mixed at best.  Hickenlooper has tapped five justices to the Colorado Supreme Court, having had an outsized impact on the court.  However, those appointments have not cemented a progressive majority on the court, largely because Hickenlooper has forfeited opportunities and named conservative candidates.  In his very first appointment to the Colorado Supreme Court, Hickenlooper appointed a Republican, Brian Boatwright, sidestepping two more liberal candidates, to replace the left-leaning Justice Alex Martinez.  Similarly, Hickenlooper’s last appointment to the court replaced the center-left Chief Justice Nancy Rice with Justice Carlos Samour, again choosing a former registered Republican over two more liberal candidates.  Interestingly, in making the selection, Hickenlooper felt the need to address criticism that Samour was “too conservative,” noting:

“[Samour is] a judge committed 100 percent to fairness and fidelity of the law.”

On the flip side, Hickenlooper had the opportunity to replace the strongly conservative Justice Allison Eid (tapped by Trump to the federal bench), and chose law professor Melissa Hart, considered the youngest and most liberal of the three candidates presented to him.  Nevertheless, looking at his record overall, Hickenlooper seems unmotivated by the ideology of his appointments.

Jay Inslee

Jay Inslee currently serves as Governor of Washington state, where he has led an ambitiously liberal agenda.  As Governor, Inslee can fill judicial vacancies that open midterm, and Inslee has filled one vacancy on the Washington Supreme Court, as well as 12 on the Courts of Appeal.  Inslee’s sole appointee to the Washington Supreme Court, Justice Mary Yu, was the first LGBTQ-American, the first Latina, and the first Asian American on the Washington Supreme Court.  Yu had also achieved the distinction of being the first judge to preside over same-sex marriage ceremonies in Washington state.  Yu has been a firmly liberal voice on the court, joining opinions striking down the death penalty, holding the state liable for the welfare of children in foster care, and finding that juveniles cannot be sentenced to life in prison without parole.  As such, Inslee, more than any other governor, can claim to have pushed his state bench in a progressive direction.

Terry McAuliffe

Former DNC Chair Terry McAuliffe served as Governor of Virginia from 2013 to 2017.  Unlike in most states, Virginia gives the state legislature the power to appoint judges, with governors having the power only to fill interim vacancies.  Nevertheless, McAuliffe’s tenure coincided with a brutal fight with legislative Republicans over one such interim appointment.

In 2015, Justice Leroy Millette announced that he would move to senior status, opening up his seat.  After consulting with Delegate Dave Albo, a Northern Virginia Republican, McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court as an interim candidate.  However, Republican leaders in the Assembly argued that they were cut out of the nomination process, and refused to process Roush at all, instead choosing their own candidate, Court of Appeals Judge Rossie Alston.  For his part, McAuliffe cited Albo’s endorsement of Roush and argued that Republican leaders were rejecting a qualified candidate.  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.  With neither candidate elected after the interim appointment expired, McAuliffe renominated Roush to another interim term.  Meanwhile, Watkins retired and was replaced by Sen. Glen Sturtevant, a fellow Republican.  However, Republican plans to confirm Alston were again stymied by Sturtevant’s opposition and the reneging of support by two African American Democrats.  Meanwhile, McAuliffe rejected a compromise in which Roush would be appointed to the Virginia Court of Appeals to replace Alston.

Ultimately, realizing that Alston lacked majority support in the Senate, Republicans replaced him with Court of Appeals Judge Steven McCullough, who was easily confirmed. The entire saga is hardly a display of McAuliffe’s mastery of judicial politics.  Given McAuliffe’s ultimate defeat in the fight, progressives may wonder if he can be trusted to maneuver judicial nominations from the White House.

Judicial Nominations 2018 – Year in Review

2018 is at an end.  One of the most active years in judicial nominations in recent memory ended with a whimper, as a singular blockade by outgoing Sen. Jeff Flake delayed all judicial confirmations.  As we look forward to the new Congress in 2019, it’s worth looking back at the previous year to see how the judicial landscape has evolved.

Nominations and Confirmations

This year, the Senate confirmed one supreme court justice, 18 appellate judges and 47 district court judges.  Adding in the one supreme court, 12 appellate, and six district court judges confirmed in 2017, the 115th Congress has racked up a total of 85 Article III judicial confirmations.  In comparison, President Obama saw 60 confirmations in his first Congress, President Bush saw 100, and President Clinton saw 126.

While an overall look at confirmations doesn’t look very impressive, where this Administration stands out is in appellate confirmations.  So far, Trump has seen 30 appellate confirmations.  In comparison, Clinton and Obama took their entire first terms to have 30 appellate judges confirmed, and President Bush took until December of his third year to reach his 30th confirmation.  Plus, with another 15 appellate vacancies still pending, Trump looks likely to cross 40 or even 50 appellate confirmations before the end of his first term.  Particularly impressively, only two of the current pending vacancies are still waiting on nominees, one of which opened just last month.

Failed Nominations

That being said, the Trump Administration has also seen an unusually large number of failed nominees.  In the past two years, the Trump Administration has seen seven nominees withdrawn or stalled due to lack of majority support: Ninth Circuit nominee Ryan Bounds; district nominees Brett Talley, Jeff Mateer, Matthew Petersen, Thomas Farr; and Court of Federal Claims nominees Damien Schiff and Steven Schwartz (I’m not including nominees who had home state senatorial trouble such as Jon Katchen or Gordon Giempietro).  This is particularly remarkable because the Trump Administration was facing a Senate controlled by his own party and unencumbered by the filibuster.

Another way to look at it is that the Trump Administration essentially faced at least 2 negative votes on each of the above nominees.  In comparison, throughout the entire Obama Administration, only 15 nominees drew even a single negative vote from Democrats, and only six drew 2 or more: appellate nominees Cornelia Pillard and Pamela Harris and district judges Gerald McHugh, Edward Smith, Victor Bolden, and Joseph Leeson (Smith and Leeson drew opposition from the left).  The entire Bush Administration saw just six nominees draw same party opposition: Justice Sam Alito; appellate judges Roger Gregory, Priscilla Owen, and Helene White; and district judges J. Leon Holmes and Janet Neff (three of those judges were Democrats).  The Clinton Administration saw just one nominee attract same party opposition: Judge Brian Stewart (a Republican named upon the insistence of Sen. Orrin Hatch).  In other words, in two years, the Trump Administration has drawn at least two Republican no votes on more nominees than the Clinton and Bush Administrations combined and more than the Obama Administration drew in its entire tenure.

A Vacancy Crisis?

One of the most forgotten parts of the judicial confirmation news cycle is the sheer number of judicial vacancies currently pending.  As of December 31, 2018, 144 of the 890 Article I and Article III judgeships are vacant, approximately one in six.  In comparison, approximately 10% of judgeships were vacant in 2016 when the Washington Post reported on the alarming judicial vacancy rate.  As such, objectively, our federal courts are overstretched.

That being said, not all judicial vacancies are created equal.  The Trump Administration and the Republican Senate have focused their attention on filling vacancies on the court of appeals, frequently replacing judges who have not yet left their seats.  However, the court of appeals are not where the judges are most needed.  Rather, it is trial level courts that are stretched particularly thin.  For example, five out of twelve judgeships on the Northern District of Texas are currently vacant with only one nominee pending.  Similarly, the Central District of California currently has a quarter of its 28 judgeships open, while the Southern District of California is expecting its fifth vacancy (out of 13 judgeships) to open next year.  The situation in the District of North Dakota is even more dire, with the only judge on the court scheduled to retire next year, and no nominees pending to either of the two pending vacancies.

Perhaps nowhere is the vacancy crisis more apparent than in the Court of Federal Claims.  This specialized court has a limited docket and non-lifetime appointments, an ideal venue for bipartisan agreements on nominees.  However, the Court currently has less than 1/3 occupancy, with only five out of sixteen judgeships filled.  Much of the blame for this can go to Sen. Tom Cotton, who singlehandedly blocked five uncontroversial Obama nominees to this court during the 114th Congress.  However, even since that point, the court hasn’t seen a single confirmation even as vacancies continue to pile up.  Additionally, rather than choosing uncontroversial nominees, the Trump Administration has chosen lawyers with political backgrounds or little experience practicing before the specialized court, leaving little room for bipartisan agreement.

As such, despite remarkable success on the confirmation front, the Trump Administration has barely made a dent in reducing judicial vacancies as a whole.

Demographics of Confirmed Nominees

Let’s take a look at demographics of the 85 confirmed Trump appointees.

Age

I noted last year that, despite press reporting on the supposed youth of Trump nominees, they are largely similar in age to those of previous presidents.  With a larger pool of nominees to look at now, that conclusion largely holds up.  The average birth year of Trump’s judicial nominees is 1967, making their average age 51 years, fairly comparable to the average birth years of the previous few presidents.  Additionally, Trump’s appellate judges, also alleged to be significantly younger than those of previous presidents, come out to an average age of 50, hardly unusual.

The oldest Trump appointee tapped for the federal bench is Judge Mark Bennett, who was nominated and confirmed to the 9th Circuit at age 65.  The youngest is Judge Holly Lou Teeter on the U.S. District Court for the District of Kansas, who is just 39 years old.

Race

As noted earlier, the vast majority of Trump’s appointees are white.  Only seven of the 85 judges confirmed this Congress were non-white: five Asian; one Hispanic; and one African American judge respectively.

Gender

This blog has previously criticized the gender diversity (or lack thereof) of Trump appointees.  Unfortunately, the situation has not improved.  Only 20 of the 85 confirmed judges are female.  The numbers are even worse among appellate nominees, where only 6 out of 30 judges are female.  Both numbers are lower than those seen in the last three presidents.

What is particularly alarming is that the gender ratio on the federal judiciary, which significantly narrowed under President Obama, is now backsliding.  Over the last two years, 29 female federal judges have left active status, meaning that there are now nine fewer female judges on the federal bench than there were when Trump took office.

Looking Ahead

When the Senate recessed, it left 73 judicial nominees unconfirmed.  Most, if not all, of these nominees will be renominated in January, giving the Senate a significant number of nominees to work through.  As such, many of the nomination fights that were deferred from this year will take place next year, this time, with Republicans having a slightly wider majority on judge votes.  As such, it is likely that many controversial picks who were not confirmed this year will be approved next year, including Matthew Kacsmaryk and Howard Nielson.

However, with incoming Senate Judiciary Committee Chairman Lindsay Graham announcing his intent to continue the blue slip policy of his predecessor, the White House cannot push through its picks for district court vacancies.  As such, achieving a meaningful reduction in the number of judicial vacancies will require cooperation between the White House and senators of both parties to select judges everyone can get behind.  We can only hope that such cooperation occurs and produces mainstream judges committed to the rule of law.

New Fronts in the Judicial War: Will Progressives Adopt the Conservative Model on State Courts and Solicitors General?

The 2018 elections have come and gone, with both sides finding something to smile about in the results.  For Republicans, the reinforced Senate majority ensures that Trump can continue to fill federal vacancies with conservatives.  However, all is not lost for Democrats.  Rather, they can adopt the successful model used by conservatives during the Obama Administration and use the states to advance progressive jurisprudence.  Both state court appointments and solicitor general appointments have generally been used effectively by Republicans to build a bench of conservative judges and legal leaders.  With electoral victories on the state level, it remains to be seen if progressives will catch up on these fronts.

State Courts

Let’s throw out a hypothetical.  Imagine we are back in 2017: President Trump has just been elected with a Republican Senate.  Let’s say that Justice Anthony Kennedy announces his retirement in March 2017, announcing that he will retire in September of that year, giving the President six months in which to appoint his successor.  It is a golden opportunity for Republicans to take a solid majority on the Supreme Court.  However, instead of nominating Brett Kavanaugh, the Trump Administration nominates no one.  The months tick down, one by one, and no nomination comes forward from the Trump Administration.  September 2017 comes by, the Justice steps down, and still no nomination has come.  The Supreme Court is forced into a 4-4 split, and important decisions are deadlocked.  And still, no nominee is put forward.  Now imagine we are in the present day and the Court is still split 4-4, with no nomination coming from the Administration and no explanation.

This hypothetical may seem absurd, but it is exactly what is currently happening in California, where Gov. Jerry Brown has essentially forfeited a golden opportunity to reshape the California Supreme Court, letting the court’s swing seat remain vacant for well over a year for no reason at all.

State Supreme Courts, which interpret state laws and constitutional provisions, are immensely powerful.  In fact, many of their decisions are unreviewable, even by the Supreme Court.  As such, it is remarkable to see the lack of attention given their way by progressives.  Alongside Brown’s failure to make an appointment to the California Supreme Court, Colorado Gov. Hickenlooper appointed two Republicans to the Colorado Supreme Court, resulting in the partisan balance on the court actually becoming more conservative during his tenure as Governor.  Similarly, in New York, Gov. Andrew Cuomo has largely avoided appointing outspoken liberals to the New York Court of Appeals, instead choosing moderates and conservatives including Judge Michael Garcia, a Republican who previously served as U.S. Attorney under President Bush.  In Connecticut, Gov. Dannel Malloy’s nominee to be Chief Justice of the Connecticut Supreme Court was rejected by the Democratic Senate after moderate Democrats defected.

In contrast, Republican Governors have used their appointment power effectively to choose young conservatives for the state benches.  Gov. Pete Ricketts, for example, tapped Justice Jonathan Papik, only 36, to the Nebraska Supreme Court in 2018.  Similarly, Gov. Nathan Deal in Georgia has appointed a bevy of young conservatives, Justices Nels Petersen, Britt Grant (now on the 11th Cir.), Sarah Hawkins Warren, and Charlie Bethel.  From Texas to Ohio to Indiana, Republican Governors have cemented conservative majorities on the high court through their appointments.

Now that the 2018 elections has resulted in the largest increase in new Democratic Governors since 1986, progressives have a strong opportunity to reshape the bench in many states.  With the vacancy on the California Supreme Court still pending, it provides an early sign of how seriously they will take this challenge.

Solicitors General

The 2018 election also saw Democrats taking control of the majority of state attorney general’s offices in the country.  Attorneys general are important not just because of their investigative and prosecutorial powers, but because they are able to, through their appointment of state solicitors general, shape the legal landscape of their states.

State solicitors general are the leading appellate advocate for their states, shaping and directing arguments before state and federal courts.  So far, most solicitors general are appointed by the attorney general.  Most Republican attorneys general have taken this opportunity and chosen young conservatives and future legal pioneers.  For example, Alabama Solicitor General Andrew Brasher is only 37, Florida Solicitor General Amit Agarwal is 42, Georgia Solicitor General Andrew Pinson is around 32, and Oklahoma Solicitor General Mithun Mansinghani is only 31 (and was just 29 when he was selected as Solicitor General).  In comparison, Democratic attorneys general have selected senior attorneys already established in their career.  For example, New York Solicitor General Barbara Underwood is 74, California Solicitor General Edward DuMont is 57, and Connecticut Solicitor General Jane Rosenberg is around 60 (an exception to this is Washington Solicitor General Noah Purcell, who is 38).

While the level of experience that Underwood, DuMont, and Rosenberg bring is undeniable, choosing younger solicitors general makes more sense from a movement perspective.  First, it helps season young attorneys early in their career.  Second, it builds a pipeline of potential judicial candidates.  The Trump Administration has been very effective at tapping current and former state solicitors general for the federal bench, building the next generation of conservative legal leaders.

Ohio Gubernatorial candidate Richard Cordray was a politician who understood this well, having himself served as Ohio Solicitor General in his early 30s.  As Attorney General, Cordray tapped Benjamin Mizer to serve as Ohio Solicitor General.  Mizer, who was only 31 at the time of his appointment, went on to serve the Obama Administration as Principal Deputy Assistant Attorney General for the Civil Division, and is poised to be a Sixth Circuit and Supreme Court candidate under a Democratic Administration.

So far, newly elected New York Attorney General Tish James has chosen to reappoint Underwood to serve as Solicitor General.  It’ll be interesting to see if other Attorneys General will follow James’ lead or Cordray’s.

Overall, despite the attention it gets, the federal bench is not the only front that legal conservatives and progressives fight over.  Even as the federal bench shifts under the weight of Trump appointees, state benches can provide a countervailing force.  As such, they are an important front to observe in the coming months.