Looking Beyond the Supreme Court – the Administration Reaches a Crucial Time on Judges

Barring the unexpected, Judge Ketanji Brown Jackson will be confirmed to the Supreme Court this week, capping a ten week nomination and confirmation process since Justice Stephen Breyer’s retirement announcement in late January. While the Administration would likely take a (deserved) victory lap over Jackson’s confirmation, the most crucial period for securing Biden’s judicial legacy begins after.

While the Biden Administration came into office with comparatively few judicial vacancies to fill, a rash of Democratic appointees moving to senior status has created an opportunity for the Administration to leave a substantial imprint on the lower courts. Jackson’s confirmation will leave 24 lower court nominees left before the Senate, while pales in comparison to the 108 pending judicial vacancies listed on the U.S. Courts website. The situation is even more significant, given that many confirmed vacancies, including those by Third Circuit Judge Thomas Ambro, Ninth Circuit Judges Andew Hurwitz, Margaret McKeown, and Sidney Runyan Thomas, and D.D.C. Judge Colleen Kollar-Kotelly, are not public on the site yet. As such, the administration has around 90 vacancies on the federal bench with no nominees pending. Given that, fourteen months into his Presidency, Biden has yet to send 90 judicial nominees to the Senate, the Administration will have to move fast to have any hope of filling a substantial number of these vacancies.

Consider that the Administration has failed to name a single lower court judge to the bench since Judge Stephanie Davis was tapped two months ago. This is likely because the White House is strategically choosing to hold lower court nominations, including those that may be controversial, in order to avoid muddying the waters for Jackson. This means that the Biden Administration’s 82 nominees submitted to the Senate so far are slightly lower than the 98 judges nominated by President Bush and the 87 nominated by President Trump. Biden is particularly behind on circuit court nominations, having nominated 20, while Trump had made 25 as of this point in his Presidency, while President Bush had nominated 31. Even President Obama, rightfully criticized for a slow pace on nominations, had named 18 appellate nominees by April 1 of the second year of his presidency. With the Senate having confirmed 15 judges, only five of the 24 appellate vacancies currently pending have a nominee.

On the confirmation side, the Biden Administration has run far ahead of its immediate predecessors. For example, the Biden Administration has seen 58 judges confirmed so far, and the Trump Administration only saw 29 judges at this point in its Presidency, while the Obama Administration only saw 19. However, both prior Administrations had run behind their predecessors. Both the Clinton and Bush Administrations, for example, had seen 45-50 judges confirmed by this point in their Presidency, just slightly behind the Biden Administration.

However, on average, a judicial nominee in the Biden Administration has taken 4 months from nomination to confirmation. This means that, in order to be confirmed before the August recess (after which many Democratic senators may be absent campaigning in their home states), nominees need to be sent to the Senate now. Additionally, any nominees sent will likely also run into the limited space in Senate Judiciary Committee hearings, which typically occur every two weeks and include 4-6 nominees each. All this makes the next month or two crucial for nominations. Any nominee nominated later than early May may not see confirmation this year.

To be fair, none of this to say that the Biden administration hasn’t had a significant impact on the federal judiciary. One could argue that, given the bare majority they control, Democrats have outperformed expectations. However, the Administration now faces both an opportunity and a ticking clock. Due to a large number of judges moving to senior status, Biden could easily outperform the 30 judges that Trump was able to confirm to the courts of appeals in his first two years. However, for the Biden Administration to cement its judicial legacy, it will need to urgently snap back onto the lower courts. The first step might be if large batch of nominees, including 5-6 appellate picks, hits the Senate after the Jackson confirmation this week.

Ten Questions Senators Should Ask Prospective Judicial Nominees

Nominations hearings are predictable.  Half the Senators on the Judiciary Committee fawn over the nominees, while the other half pepper them with hypotheticals and questions they know the nominee won’t answer.  For their part, the over-coached nominees avoid all but the softest of softballs, while firmly resisting any attempt to actually probe their thought processes.  As an interview process for a lifetime appointment, the nominations hearing rarely yields genuine insights.

This state of affairs cannot be blamed on one particular entity or party.  Rather, both parties have, over time, contributed to the current playing field, where all nominees need to do is to avoid ticking off the 50 senators they need to get confirmed.  As such, one wonders: how can this performative exercise be more useful?  How can a nominations hearing better illustrate a nominee’s temperament, philosophy, and ideology?

To that end, here are ten questions that, if asked and answered in good faith, can lend some authenticity to the process.  Now, nominees are mindful, of course, of their ethical obligations, and are unlikely to answer any questions regarding privileged communications or about contested matters they are likely to hear.  With that in mind, senators should ask:

What is a legal, political, social, or moral position you previously advocated for that you no longer believe to be correct?

This is a question that I’m surprised hasn’t been asked more to nominees.  Unlike hypothetical questions about future cases, nominees are generally free to say: “I argued X in this case. I lost. And I now realize that the judge got it right.”  Furthermore, getting an answer to this question establishes two important things: first, it affirms that the nominee is willing to acknowledge when they got things wrong and they’re willing to grow from their mistakes; and second, it establishes that they are not set in their views. They’re willing to grow and evolve, an important characteristic to inculcate in someone seeking a lifetime appointment.

When was the last time you changed your mind on a legal, political, or moral issue after a discussion with someone who holds a contrary position?

Federal judges, insulated by lifetime appointments, are constantly at risk of ossifying in their legal views, particularly if those views are never challenged in discussions or arguments.  However, there are many federal judges who maintain their intellectual curiosity even after joining the bench and who are willing to engage with critics and contrarians to better understand and shape their views.  The answer to this question demonstrates both that: 1. the nominee has an open mind and is willing to change their views when they’re wrong; and 2. they’re willing to engage with those they disagree with.

Name a Time in Which You were able to convince another person of the validity of your view/position after a discussion.

A corollary to the previous question, this question also has the benefit of reinforcing the nominee’s ability to persuade others of the positions they hold, particularly important in appellate nominees.

Name a policy/law/regulation that you oppose as a matter of policy but agree is constitutional under current precedent.

The wisdom of a particular law and policy is often equated with its constitutionality.  While there are exceptions (eg. Justice Thomas’ concurrence in Lawrence criticizing the Texas ban on sodomy while finding it constitutional), it is increasingly rare for a judge to find that a policy they find strongly objectionable is not barred by the Constitution or caselaw.  Asking this question will demonstrate that a nominee can parse the difference.

The issue with the question, of course, is that it requires the nominee to make a statement acknowledging the constitutionality of a hypothetical law, which may be barred where a future challenge to that law may come before the judge.  However, as long as the question is focused on relatively uncontroversial areas of law, the nominee may be able to permissibly answer.

Name a policy/law/regulation that you support as a matter of policy but agree is unconstitutional under current precedent.

This is arguably an even harder question to answer than the previous one.  It would require a nominee to acknowledge the current structure of limited government set out in the constitution and note that it prevents, for better or for worse, the government from meaningfully intervening in many problems.  It is nonetheless important that a nominee is able to acknowledge this fact.

What is one thing you would seek to change about the court you’re about to join?

From reforms to PACER to cameras in the courtroom, the movement to democratize access to the federal court system is growing.  An answer to this question should show that the nominee is willing to recognize the shortcomings of the court systems they are seeking to join, to rethink old orthodoxy, and to challenge the status quo in service of justice.

What have you done so far to give back to your community as a lawyer?  What will you do as a judge?

The federal bench has been rightly criticized for setting itself apart from the communities it serves.  As such, nominees who demonstrate a connection with their communities, whether it’s through pro bono service, volunteer work, or other forms of engagement are particularly valuable.  Answering this question would also lead the nominee to demonstrate their willingness to continue such acts as a judge.

What is a bias/prejudice that you currently struggle with?  How do you work to overcome that prejudice?

This is an important question and one that’s asked too little.  While acknowledging any bias or prejudice is widely seen as career suicide, the bottom line is that human beings almost innately carry biases and prejudices with them, and it is only by acknowledging and working against them that one can overcome those prejudices.  Such prejudices do not have to be based on race, gender, or such immutable characteristics.  One could, for example, carry a bias against working moms, against city-dwellers, against west-coast rap fans, against those cheering the Red Sox, or against any identifiable group.  It is particularly important for judicial nominees to acknowledge their biases and work to overcome them given the power and influence they are seeking to take on.

What is a quality you have seen in a judge that you would seek NOT to emulate on the bench?

As awkward as it may be for nominees seeking a judicial position to acknowledge, judges are human.  They are sometimes short-tempered, and often wrong.  A nominee needs to be able to recognize that judges do err and that it is just as important to learn from the mistakes of others as it is to learn from one’s own mistakes.

What is the Biggest Mistake You Have Made in Your Career?  How Would You Seek to Avoid It on the Bench?

And finally, a question that encapsulates the others asked before. One that requires the nominee to demonstrate introspection, forethought, self-awareness, open-mindedness, and a willingness to get things wrong.  Like it or not, all lawyers make mistakes.  The best among us learn and grow from them and it is essential that our judges do as well.

With the nominations hearing of Judge Ketanji Jackson beginning today, it will be interesting to see if the hearings follow the predictable patterns laid out over the past two decades.  If any of the above questions are asked and answered in good faith, however, it will yield significant insight into Judge Jackson’s approach to the bench and the kind of justice she would be.

Judicial Nominations 2021 – Year in Review

The first year of the Biden Administration has drawn to a close.  As a former Senate Judiciary Committee Chair, President Biden could be said to have been particularly attuned to the importance of judicial nominations, and this bears out in the numbers.  This Administration has outpaced other recent Administrations in both nominations and confirmations (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Biden submitted 73 nominees to Article III courts, more than any other modern president.  Comparatively, President Trump submitted 69 judicial nominations in his first year, President Obama submitted 34, President George W. Bush submitted 61, President Clinton submitted 47, President George H.W. Bush submitted 23, and President Reagan submitted 44.  Biden has particularly outpaced other Presidents on District Court nominees, having submitted 55, more than any other President.

Comparatively, the 18 appellate nominees submitted by Biden are slightly lower than both Trump (19) and W. Bush (25).  However, this can be explained by the number of vacancies each of the prior presidents inherited.  President W. Bush inherited 26 appellate vacancies, while President Trump inherited 17.  In comparison, President Biden inherited only two vacancies, making his pace even more impressive.

Confirmations

In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court.  This outpaces every President since Reagan who saw 41 judges confirmed (one Supreme Court, 8 appellate, and 32 district).  In terms of appellate confirmations, Biden’s 11 falls short only of Trump’s 12.

Furthermore, Biden saw confirmation of 55% of judicial nominees submitted in his first year.  This marks the first significant uptick in first year confirmation percentage in modern history, as this has been dropping since Reagan.  To compare: please see the percentages of other Presidents below:

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Additionally, President Biden has, despite having to navigate a 50-50 Senate, not seen a single judicial nominee defeated or blocked yet.  In comparison, the Trump Administration had lost three nominees in their first year: Jeff Mateer; Matthew Petersen; and Brett Talley.  This record is largely due to the caucus willing to stick together on judicial nominees.  Not a single Biden judge has attracted any Democratic opposition.

President Biden’s success on nominations is despite the nominees having drawn more GOP opposition than the nominees of any previous President.  Out of the 11 appellate nominees confirmed, only one attracted more than four votes from across the aisle (Tiffany Cunningham) and four attracted no minority votes at all (Eunice Lee, Myrna Perez, Lucy Koh, and Jennifer Sung).  In comparison, despite drawing more opposition than any prior president, President Trump had more than four votes across the aisle for three nominees (Kevin Newsom, Ralph Erickson, and Joan Larsen).

Diversity

The Biden Administration has prioritized choosing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations.  They have also sought out nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys.  Both focuses are reflected in the nominees put forward.

So far, Biden has nominated thirteen women to the court of appeals, and a whopping forty-one women on the district level, making 74% of his judicial nominations women.  In comparison, 23% of Trump’s judicial nominees in his first year were women, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Biden’s confirmations has surged the number of women on the U.S. Court of Appeals from 59 to 64, moving the court of appeals from 33.3% female to 36.6% female.

Furthermore, approximately three out of four Biden nominees are lawyers of color, compared to less than 10% of President Trump’s first year nominees.

Age

Biden’s judicial nominees have been compared to those of President Trump in terms of their youth, but, as noted earlier, President Trump’s nominees, at least in his first year, were not significantly younger than those of previous presidents, with an average age of 49.5 for appellate nominees and 52.5 for district court nominees.  So far, President Biden’s appellate nominees have an average age of 48.7, while his district court nominees have an average age of 49.8, making them slightly younger than those of previous presidents, but not significantly so.

Overall Assessment

Looking at the empirical evidence, it is clear the Biden Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  They have also prioritized confirmations, moving judges through the process faster than prior presidents.  Nonetheless, this success must come with the caveat that Biden is the first President since Carter to have a Senate controlled by his party by the end of his first year, while also avoiding a Supreme Court confirmation.  Overall, while gaps remain, the Biden Administration’s success on judges reinforces the significance of the tenuous 50-seat majority that Senate Democrats hold, and the significant influence of each senator in maintaining that majority.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The West

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We finish with the states of the West.

Ninth Circuit

Court of Appeals

In terms of the number of judges on the court, the geographic area covered, and the population served, the Ninth Circuit Court of Appeals is the largest in the country. The whopping twenty-nine judgeship court has been the target of many attempts to break it up, ostensibly due to its liberal leanings. Whatever its previous leanings (the Ninth was never as liberal as critics alleged), the current court is fairly evenly divided between liberals and conservatives. The court currently has ten judges appointed by President Trump, nine Clinton appointees, seven Obama appointees, and three Bush appointees. While the court is currently full, four Clinton appointees, Susan Graber, Marsha Berzon, Richard Paez, and William Fletcher, have announced their intention to move to senior status upon confirmation of successors. Only Graber’s seat has a nominee, labor lawyer Jennifer Sung.

Additional vacancies are likely as eight other judges on the court are eligible for senior status: Clinton appointees Sidney Runyan Thomas, Margaret McKeown, Kim McLane Wardlaw, Ronald Gould, and Johnnie Rawlinson; and Bush appointees Consuelo Callahan, Milan Dale Smith, and Sandra Segal Ikuta. Additionally, Obama appointee Andrew Hurwitz will also become eligible for senior status next July. The most likely of these judges to take senior status is Chief Judge Thomas, who may make the move once he concludes his term as Chief on December 1. Of the Bush appointees, the moderate Smith, who will be eighty next year, is the most likely to take senior status.

Alaska

The District of Alaska has three active judgeships, currently filled by Chief Judge Timothy Burgess, a Bush appointee, Judge Sharon Gleason, an Obama appointee, and Judge Joshua Kindred, a Trump appointee. Of the three, only Burgess is eligible for senior status. He is, however, unlikely to move to senior status before his term as Chief ends in 2022.

Arizona

The District of Arizona is one of the most overworked courts in the country, with heavy caseloads. Luckily, after years of chronic vacancies, all judgeships on the court are currently full, with one Bush appointee, seven Obama appointees, and five Trump appointees serving. No vacancy is expected before 2024, when Chief Judge Murray Snow, and Judges Douglas Rayes and James Soto all become eligible for senior status. However, if Judge Andrew Hurwitz moves to senior status upon eligibility next year, Judge Rosemary Marquez may be selected to replace him, opening up a seat for Biden to fill.

California

The nation’s most populous state also has the most district court judgeships serving its population, sixty one, divided into four districts: the Central, Northern, Eastern, and Southern. Despite the high numbers, California’s district courts are, if anything, understaffed in proportion to their caseload. This is particularly true now, as the courts have a whopping 18 vacancies with an additional two set to open next year. California Senators Dianne Feinstein and Alex Padilla have each claimed to have sent recommendations to the White House, but it’s an open question when nominees will hit the senate.

The largest of the four districts is the Central, based in Los Angeles. Currently, the court is served by 22 active judges, eight appointed by Bush, seven by Obama, four by Trump, two by Clinton, and one by Reagan. There are also six vacancies, with the oldest going back to 2015. Additionally, a seventh vacancy will open in February 2022 when Judge Virginia Phillips moves to senior status. Of the remaining 21 judges, nine are eligible for senior status: Reagan appointee Stephen Wilson; Clinton appointee David Carter; Bush appointees Percy Anderson, John Walter, Gary Klausner, Dale Fischer, Otis Wright, and George Wu; and Obama appointee John Kronsdadt. This makes future vacancies on the court fairly likely.

While the Sacramento based Eastern District is, with six judgeships, the smallest in California, it is also severely overworked. This is particularly true as it is currently having only four active judges carry the burden as the remaining two seats are vacant. Unless judges are confirmed swiftly, the situation will get worse next year when Judge John Mendez takes senior status.

The Bay area based Northern District of California has eleven active judges serving, all appointees of President Obama. An additional three seats are vacant. While none of the active judges is eligible for senior status, two, Edward Davila and Edward Chen, will become eligible for senior status next year and may move then.

Finally, the San Diego based Southern District of California is the hardest hit of all the California courts when it comes to vacancies, as seven of the thirteen judgeships are vacant. Of the remaining six active judges, one, Judge Janis Sammartino, is eligible for senior status and could choose to make the move.

Hawaii

The four judgeship District of Hawaii does not currently have any vacancies and no new vacancies are expected, with the first judges to hit senior status eligibility doing so in 2024.

Idaho

One of only two states to be served by just two active judgeships, Idaho is currently at half-capacity with Judge B. Lynn Winmill’s move to senior status in August. Winmill gave plenty of notice of his intention to take senior status, and the Idaho Democratic Party recommended four candidates to replace Winmill in March: Idaho Falls attorney DeAnne Casperson; former U.S. Attorney Wendy Olson; and Boise attorneys Keely Duke and Deborah Ferguson. Idaho Senator Mike Crapo indicated that his office has had many “preliminary” conversations regarding the judgeship with the White House and that they are working to find a mutually agreeable nominee.

Montana

While none of the three active judges in the District of Montana, all Obama appointees, are eligible for senior status, Judge Dana Christensen becomes eligible for senior status in December and may choose to make the move at that time.

Nevada

The U.S. District Court for the District of Nevada has two vacancies among its seven judgeships, with the remaining five judges all appointed by President Obama and years from taking senior status. The two pending vacancies on the District Court, one in Reno and one in Las Vegas, are both over three years old. Nevada Senators set up judicial nomination commissions to fill the vacancies with application deadlines of February 28, 2021. Since then, there has been no public recommendations made and the White House has not yet sent any nominations to the Senate.

Oregon

The U.S. District Court for the District of Oregon has six active judgeships: three Obama appointees, and one appointee each from Clinton, Bush, and Trump. The Court will have a vacancy open on December 27 of this year when Bush appointed Judge Michael Mosman takes senior status. Clinton appointee Ann Aiken is also eligible for senior status but has made no indication that she intends to take it. So far, there has not been any word on recommendations by Oregon Senators to replace Mosman.

Washington

After an agreement over judicial nominations fell apart during the Trump Administration, Washington’s district courts saw no confirmation over the last four years. As a result, the Western District of Washington now has five vacancies out of seven active judgeships, with one future vacancy set to open on the Eastern District. So far, nominees have been submitted to the Senate for three vacancies on the Western District, and for the lone Eastern District vacancy. All three Western District nominees are awaiting final Senate votes, with Judge David Estudillo being teed up for confirmation in September. So far, there is no timeline on nominees for the remaining two vacancies.

Additionally, the two active judges remaining on the Western District: Judges Richard Jones and Ricardo Martinez, are also eligible for senior status, so additional vacancies may open as the current ones are filled.

Tenth Circuit

Court of Appeals

The Tenth Circuit, based in Denver, is considered a moderate court, evenly divided between five Republican and five Democrat appointed judges, with two vacancies. The Senate is poised to confirm public defender Veronica Rossman to fill a Colorado vacancy on the court in September. The other vacancy, based in Kansas, is still without a nominee.

Of the remaining judges on the court, only Judge Harris Hartz, appointed by President George W. Bush, is eligible for senior status. While Chief Judge Timothy Tymkovich, another Bush appointee, will reach eligibility for senior status in November, he is unlikely to take senior status without serving out his term as Chief in 2022. Additionally, Judge Scott Matheson, an Obama appointee, becomes eligible for senior status at the end of 2022, and may also make the move.

Colorado

The seven judgeship District of Colorado is undergoing a significant transformation, with Biden already having appointed Judge Regina Rodriguez to the court, and having nominated Charlotte Sweeney for a second vacancy. A third vacancy is set to open in 2022 when Judge Christine Arguello moves to senior status. The only other vacancy that could open this Congress could occur when Judge William Martinez reaches eligibility for senior status at the end of 2022.

Kansas

The District of Kansas currently has all six judgeships filled, although Judge Julie Robinson, a George W. Bush appointee, is set to take senior status on January 14, 2022. So far, there has been no public application period or recommendation noted for Robinson’s seat. Judge Eric Melgren, another Bush appointee, also reaches eligibility in 2022 but has so far made no indications of taking senior status.

New Mexico

The seven-judgeship District of New Mexico is one of the busiest courts in the country. The Court currently has two vacancies, with a third set to open with Judge Martha Vazquez’s move to senior status next year. New Mexico Senators Martin Heinrich and Ben Ray Lujan submitted nominees to fill the two existing vacancies in January 2021, but so far the White House has only nominated one nominee: Margaret Strickland. Strickland is currently the longest pending judicial nominee waiting on the Senate floor, and, although Majority Leader Schumer filed cloture on three pending nominees before the August recess, he skipped over Strickland.

The situation could potentially become worse as Judge James Browning is also eligible for senior status, although he has not indicated that he will take it. If Browning and Vazquez vacate their seats, this could leave the District of New Mexico with less than half of its allotted judgeships full.

Oklahoma

The Oklahoma District Courts currently have one vacancy, from Judge John Dowdell’s early move to senior status earlier this year. So far, no public process has started to replace Dowdell.

Utah

The five judgeship District of Utah, composed of three Obama appointees and two Trump appointees, will see a vacancy open next year when Judge David Nuffer takes senior status. So far, there is no public replacement process for Judge Nuffer.

Wyoming

The three-judge District of Wyoming already has a vacancy pending, as Judge Nancy Freudenthal has announced her intention to take senior status on June 1, 2022. As Wyoming has no Democrats in the Congressional delegation, the White House will have to work with Republican Senators John Barrasso and Cynthia Lummis. During the Obama Administration, Barrasso endorsed and supported Fredeunthal and Chief Judge Scott Skavdahl, but it’s unclear if a similar accommodation would be reached today. Additionally, Judge Alan Johnson, who is 82, and is one of the few actively serving Reagan appointees, may also take senior status, opening up a second vacancy and potentially opening the door to a one-for-one deal.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The South

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. This week, we focus on the South.

Fifth Circuit

Court of Appeals

The Fifth Circuit Court of Appeals is arguably the most conservative court of appeals in the country. Many of the conservative legal movement’s most outspoken jurists, from Judge Edith Jones to Judge James Ho, sit on this court. The Fifth Circuit includes six nominees appointed by President Trump, four appointed by President Bush, three by President Obama, and two each by Presidents Reagan and Clinton. Of the judges, six are currently eligible for senior status: Reagan appointees Jones and Jerry Smith, Clinton appointees Carl Stewart and James Dennis, and Bush appointees Priscilla Owen and Leslie Southwick. Of the six, only Dennis, the Fifth Circuit’s oldest active judge and one of the few liberal voices on the court, has announced a move to senior status. So far, no nominee has been announced to replace Dennis.

The other judges on the court, with the exception of Stewart and potentially Southwick, are unlikely to take senior status anytime soon. Another of the court’s liberals, Judge James Graves of Mississippi, hits eligibility for senior status next year and may take so at that time.

Louisiana

Louisiana has three judicial districts: the Eastern; Middle; and Western. The twenty-two active judgeships across the three courts are all currently filled, although one will open on the Western District when Judge Elizabeth Erny Foote takes senior status in January 2022. No nominee has been put forward to replace Foote and Biden may seek to work with Louisiana Senators with a package of nominees to include U.S. Attorney picks and Dennis’ replacement.

Additional vacancies are likely, particularly on the Eastern District. Of the twelve active judges on the Eastern District, six are currently eligible for senior status: Martin Feldman, Sarah Vance, Eldon Fallon, Carl Barbier, Jay Zainey, and Lance Africk. Of the six, Feldman and Fallon, who are both over eighty, are judges to watch. Additionally, Chief Judge Maurice Hicks on the Western District, who will have to step down as Chief next year, is another possibility for senior status.

Mississippi

While Mississippi currently has no judicial vacancies, additional retirements are possible. Out of the nine active judges in Mississippi, three are eligible for senior status: Judges Michael Mills and Sharion Aycock on the Northern District; and Judge Henry Wingate on the Southern District. While no other judge reaches eligibility before 2028, Judge Carlton Reeves for the Southern District may be considered for elevation if either Southwick or Graves moves to senior status on the Fifth Circuit.

Texas

Texas’ four judicial districts entered the Trump Administration with eleven judicial vacancies, and, as a result of a flood of new confirmations, are almost entirely full. There is only one current judicial vacancy in Texas: on the Western District from the death of Judge Philip Martinez. Additionally, one future vacancy is expected next year when Judge Vanessa Gilmore moves to senior status in the Southern District. So far, there has not been any public movement in Texas towards recommendations to fill the vacancies.

Additional vacancies are likely as a number of judges are eligible for senior status. Currently, the possibilities include: Marcia Crone on the Eastern District; Sam Lindsay, Barbara Lynn, James Kinkeade and Jane Boyle on the Northern District; Lee Rosenthal, Ricardo Hinojosa, Lynn Hughes, Keith Ellison, and Andrew Crane on the Southern District; and Orlando Luis Garcia, Samuel Biery, Earl Yeakel, Kathleen Cardone, and Frank Montalvo on the Western District. Furthermore, next year, Judge David Godbey on the Northern District will reach eligibility for senior status.

Eleventh Circuit

Court of Appeals

The Atlanta based Eleventh Circuit, despite a more equitable party division, has a reputation almost as conservative as its neighbor to the West. An influx of Trump and Obama appointees (75% of the court has served less than ten years) leaves few judges who are eligible for senior status. One of the two judges who are, Judge Beverly Martin, is retiring in September. So far, there has been no nominee to replace Martin, who is one of the court’s few liberals. Judge Charles Wilson, the other judge eligible for senior status, is another liberal, ensuring that the conservative tilt of the court is unlikely to change anytime soon.

Alabama

All the states under the Eleventh Circuit are divided into a Northern, Middle, and Southern District. In Alabama’s case, the three courts together have fourteen judgeships: eight Trump appointees; three Bush appointees; two Obama appointees; and one vacancy. The lone vacancy is on the Middle District, vacated by Judge Andrew Brasher’s elevation to the Eleventh Circuit. Trump nominated Solicitor General Edmund LaCour to fill this seat, but LaCour was blocked by Sen. Doug Jones, and the vacancy is still pending. So far, there has been no nominee to fill this vacancy.

Additional vacancies are unlikely as no judge is eligible for senior status until Judge Scott Coogler reaches it in 2024.

Florida

Between the Northern, Middle, and Southern Districts of Florida, there are thirty seven judgeships, and two vacancies. The two currently pending vacancies are both on the Southern District of Florida. As Florida has two Republican Senators, Sen. Marcio Rubio and Florida’s Democratic House Delegation set up rival nominations commissions for the vacancies. Rubio recommended attorneys David Leibowitz and Detra Shaw-Wilder to fill the vacancies in July. The Democratic JNC also recommended Shaw-Wilder alongside state court Judges Samantha Feuer, Ayana Harris, and Miguel De La O, federal magistrate Shaniek Maynard, and federal public defender Michael Caruso. Having been recommended by both committees, it is likely that Shaw-Wilder will be nominated. However, it is unclear who the second nominee will be.

Additional vacancies are possible. Out of the thirty five active judges serving, seven are currently eligible for senior status: H.W. Bush appointees Steven Merryday and Michael Moore, Clinton appointees William Dimitrouleas and Donald Middlebrooks; and Bush appointees Timothy Corrigan, Marcia Cooke, and Jose Martinez.

Georgia

The Northern, Middle, and Southern Districts of Georgia have a total of eighteen judgeships: six appointees each of Presidents Obama and Trump; and four appointees of President Bush. There are also two vacancies on the Northern District of Georgia. Georgia Senators Raphael Warnock and Jon Ossoff began soliciting nominees for the vacancies early this year, with an application deadline of March 17, 2021. While no names have become public, it is likely that recommendations have already made their way to the White House. Additional vacancies are unlikely before 2023, unless Judge Leslie Abrams is tapped for the Eleventh Circuit to replace Martin.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. Last week, we covered the states in the Northeast. We move on to the Atlantic Coast.

Third Circuit

Court of Appeals

The fourteen judgeship Third Circuit, covering the states of Delaware, New Jersey, and Pennsylvania, has ping-ponged between narrow majorities of Republican-appointed and Democrat-appointed judges over the last two decades. Nonetheless, it has maintained a reputation for collegiality and moderation. Currently, the court has four judges appointed each by Presidents Bush, Obama, and Trump and two judges appointed by President Clinton. The Court has one vacancy for President Biden to fill, to be vacated by Clinton-appointee Theodore McKee upon confirmation of his successor. With McKee’s announcement coming just a couple of weeks ago, a nomination will likely not be made until October or November at the earliest.

Other than McKee, two judges are currently eligible for senior status. Chief Judge D. Brooks Smith, a moderate appointed by President Bush, has been a federal judge since 1988, has been eligible for senior status since 2016, has announced his selection as Penn State Law’s jurist in residence, and will end his tenure as Chief on December 4, 2021 (his 70th birthday). All of these signs suggest that Smith will either take senior status or retire upon the conclusion of his term as Chief, but this is, by no means, guaranteed. The other eligible judge is Clinton-appointee Thomas Ambro, who has made no indications that he plans to vacate his Delaware-based seat.

Furthermore, two more judges become eligible for senior status next year. Bush appointee Kent Jordan, based in Delaware, becomes eligible for senior status on October 24, 2022, and may choose to vacate his seat at that time. Obama appointee Joseph Greenaway has been a federal judge since 1996 and may choose to vacate his New Jersey based seat upon eligibility on November 16, 2022. Either way, it would not be surprising if an additional vacancy opened on the Third Circuit before the end of the 117th Congress.

Delaware

In theory, the district court in the President’s home state is unlikely to see any vacancies this Congress. However, both Judges Leonard Stark and Maryellen Noreika have been proposed as nominees to the Federal Circuit, and both could also be considered for the Third Circuit if Ambro or Jordan moved to senior status. If either or both are nominated, the resulting vacancies could allow Biden to expand his impact on the local district court.

New Jersey

Due to a standoff between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no judges were appointed to the District of New Jersey in the last four years. As a result, when Biden came into office, six out of the seventeen judgeships on the court were vacant. Since then, Biden has filled two of the vacancies, with Judges Julien Neals and Zahid Quraishi. Two more nominees, Christine O’Hearn and Judge Karen Williams, are currently pending on the Senate floor, while two vacancies, both in Newark, remain without nominees.

Of the eleven active judges on the court, only one, Chief Judge Freda Wolfson, is eligible for senior status, although Judge Noel Hillman will hit eligibility on December 22 of this year. Wolfson, a Democrat appointed to the Court by President Bush, may choose to serve out her term as Chief (in 2024), while Hillman, another Bush appointee, has made no announcements about taking senior status.

Pennsylvania

Pennsylvania is divided into three district courts: the Eastern District, based in Philadelphia; the Western District, based in Pittsburgh; and the Middle District, based in Harrisburg. Traditionally, Pennsylvania senators divided judicial nominations on a 3-1 ratio, with the White House appointing one judge of the opposing party for three of their own party. Examples of cross-party appointments include Judges Yvette Kane and R. Barclay Surrick under President Clinton; Judges Legrome Davis, Timothy Savage, David Cercone, and C. Darnell Jones under Bush; Judges Matthew Brann, Jeffrey Schmehl, Edward Smith, and Jerry Pappert under Obama; and Judges Susan Baxter, Robert Colville, and John Milton Younge under Trump. This tradition is expected to continue under Biden.

Currently, there are four vacancies on the Eastern District, and one vacancy on the Middle District. Pennsylvania Senators Bob Casey, a Democrat, and Pat Toomey, a Republican, opened applications for the Eastern District in January 2021 with a February 8 application deadline. They similarly opened applications for the Middle District vacancy in June 2021 with an application deadline of July 8, 2021. In the past, Casey and Toomey refrained from making their recommendations public, and, as such, no names are expected to come to light until announced by the White House.

In addition to the current vacancies, a number of judges are eligible for senior status. Specifically, Chief Judge Juan Sanchez, and Judges Cynthia Rufe, Gene Pratter, and Paul Diamond on the Eastern District are currently eligible to take senior status. Additionally, in October, Judge Robert Mariani on the Middle District becomes eligible for senior status. Judge Christopher Conner of the Middle District also reaches eligibility on October 25, 2022. In contrast, the Western District is unlikely to see any vacancies open this Congress, as the earliest any judge reaches eligibility is in 2024.

Fourth Circuit

Court of Appeals

The Fourth Circuit Court of Appeals used to have a reputation as one of the most conservative courts in the country. However, after President Obama named seven judges to the court in his two terms, the Court underwent an ideological transformation. Today, the Court frequently divides into a 9-6 liberal-conservative divide in en banc votes. The Fourth Circuit currently is composed of Judge J. Harvie Wilkinson, a Reagan appointee; Judge Paul Niemeyer, a George H.W. Bush appointee; Judges Diana Motz, Robert King, and Roger Gregory, Clinton appointees (although Gregory was confirmed as a George W. Bush appointee, he was recess appointed to the Court by President Clinton); Judge Steven Agee, a George W. Bush appointee; Judges Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris, Obama appointees; and Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing, Trump appointees.

Of the 15 judges on the court, eight are currently eligible for senior status, and a ninth becomes eligible next year. However, despite this, only one vacancy has been announced so far on the court, with Keenan taking senior status on August 31, 2021. Biden has already nominated Virginia Solicitor General Toby Heytens to replace Keenan. After a smooth confirmation hearing, Heytens is expected to reach the Senate floor in September, with a final confirmation vote by the end of October. Given the sheer number of Fourth Circuit judges who are eligible for senior status, it would not be surprising to see an additional vacancy or two open up before the end of the 117th Congress.

Maryland

The U.S. District Court for the District of Maryland has already undergone a change in the current Administration, as Biden has named two judges to the court: Lydia Griggsby and Deborah Boardman. In addition, the ten judgeship court has a third vacancy that awaits a nomination: with Judge Ellen Lipton Hollander taking senior status upon confirmation of a successor. A fourth vacancy could potentially open next year as Judge Paul Grimm becomes eligible for senior status on December 6, 2022.

North Carolina

While the three judicial districts that cover North Carolina (the Eastern, Middle, and Western) do not currently have any vacancies, two judges are eligible for senior status, Judge Terrence Boyle on the Eastern District, an appointee of President Reagan, and Judge Max Cogburn, an appointee of President Obama. As such, there remains the possibility that additional vacancies may open in North Carolina this Congress.

South Carolina

The U.S. District Court for the District of South Carolina currently lacks judicial vacancies and only has one judge eligible for senior status, George H.W. Bush appointee David Norton. However, a vacancy may also open next year if Judge Juliana Michele Childs is elevated to the Fourth Circuit or if Judge Richard Gergel takes senior status upon reaching eligibility.

Virginia

Divided between the Eastern and Western Districts, Virginia is served by 15 active judgeships. Currently, Virginia has three Clinton appointees, one Bush appointee, five Obama appointees, and four Trump appointees, with the remaining two judgeships vacant. Thanks to swift recommendations made by Virginia Senators, both vacancies have nominees: federal prosecutor Patricia Giles; and Magistrate Judge Michael Nachmanoff. However, an additional two vacancies are scheduled to open later year, when Judges James Jones and John Gibney move to senior status. Earlier this month, Senators Mark Warner and Tim Kaine recommended U.S. Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott as prospective nominees to replace Jones on the Western District. Warner and Kaine also accepted applications to fill Gibney’s seat with a deadline of July 19, but no recommendations have been made yet.

Additional vacancies are also possible, as Judges Leonie Brinkema and Raymond Jackson on the Eastern District are eligible for senior status.

West Virginia

Despite being a small state, West Virginia is covered by two judicial districts, the Northern and Southern. Between them, the two districts have two judges appointed each by Presidents Clinton, Bush, Obama, and Trump. Of those judges, Judges Joseph Goodwin and Robert Chambers, the two Clinton appointees, and Judge John Bailey, a Bush appointee, are currently eligible for senior status. Additionally, Judge Irene Berger, an Obama appointee, joins them in eligibility next year. Given that fact, it would not be surprising if one or more vacancies opened in West Virginia before the end of the 117th Congress.

D.C. Circuit

Court of Appeals

The oft-described “second highest court in the country”, the D.C. Circuit is considered by many to be the first among equals in the federal Courts of Appeal. As currently composed, the Court has eleven active judges, four appointed by President Obama, three by President Trump, two by President Clinton, and one each by Presidents George H.W. Bush and Biden. While Biden has already named Judge Ketanji Brown Jackson to replace now-Attorney General Merrick Garland, he has a second vacancy to fill. Judge David Tatel, who has served on the court since 1994, announced in February his intent to take senior status upon the confirmation of a successor. So far, no nominee has been put forward to replace Tatel, unusual given that the D.C. Circuit does not require negotiating with home state senators before making a nomination.

Other than Tatel, two judges on the D.C. Circuit are currently eligible for senior status: Bush appointee Karen Henderson; and Clinton appointee Judith Ann Wilson Rogers. Both have been eligible for years and have declined to make the move under Presidents of both parties. While either could take senior status this Congress, it would not be surprising to see both continue to be active for a few more years.

Additionally, there is always the possibility that, if a vacancy opens on the U.S. Supreme Court, Jackson is elevated and Biden gains the opportunity to fill her seat and maintain the court’s narrow liberal majority.

District of Columbia

The U.S. District Court for the District of Columbia is the sole trial court that feeds into the D.C. Circuit. It is also a court of many firsts: the first Article III trial court to have a female judge, and the first Article III trial court to have an African American judge. Today, the 15-member court has two vacancies, both with pending nominees on the Senate floor: D.C. Superior Court Judge Florence Pan; and civil rights attorney Jia Cobb. Of the remaining judges on the court, only one, Judge Colleen Kollar-Kotelly, is eligible for senior status. Barring any moves on her part, additional vacancies are unlikely.

Federal Circuit

Court of Appeals

The Federal Circuit is the newest kid of the block in terms of federal courts, having only been created in 1982. Unlike other federal courts of appeal, which hear appeals from geographic areas, the Federal Circuit is specialized by subject matter, hearing patent cases, as well as appeals from a variety of Article I and Article III tribunals. It is also the only circuit not to see a vacancy during the Trump Administration. However, so far, only eight months into the Biden Administration, it has already seen two. The first, opened by Judge Evan Wallach’s move to senior status in May, has already been filled by Judge Tiffany Cunningham. The second will open next March when Judge Kate O’Malley, an Obama appointee like Wallach, will retire. No nominee has been named for the second vacancy so far.

There is significant potential for additional turnover on the Federal Circuit. Setting aside O’Malley, another four judges on the Circuit are eligible for senior status: Judges Pauline Newman, Alan Lourie, Timothy Dyk, and Sharon Prost. Three of the four are over eighty years old, with one, Judge Newman, being 94 (and the oldest active judge on the Federal Courts of Appeal). Furthermore, Judge Jimmie Reyna, an Obama appointee, becomes eligible for senior status next year, creating another potential vacancy. To be fair, it is unlikely that all of these seats will open. However, the last time that the Federal Circuit had so many judges poised for senior status eligibility, in the late 2000s, then President Obama named seven judges to the Court. For his part, Biden already has the opportunity to name two and will likely get at least one more vacancy before the end of the 117th Congress.

Court of International Trade

The United States Court of International Trade adjudicates civil actions arising from customs and trade laws, and its cases feed into the Federal Circuit on appeal. The Court is composed of nine judges, and, by statute, no more than five of those can be of the same political party. As a result, Presidents frequently make cross-party appointments to avoid violating this threshold. Currently, the court has four Obama appointees, three Trump appointees, and two vacancies. There are currently two-cross party judges on the court: Obama appointee Jennifer Choe-Groves; and Trump appointee Timothy Reif. Thus, Biden cannot fill both vacancies on the court with Democrats. Of the judges serving on the bench, none is close to eligibility for senior status, which makes it unlikely that additional vacancies will open on the Court in the next year.

Court of Federal Claims

After years of chronic shortages, a surge of confirmations late in the Trump Presidency brought the Court of Federal Claims down to just three vacancies by the time Biden was sworn in. Since then, a fourth vacancy has opened with Judge Lydia Griggsby’s confirmation to the District of Maryland. Of the four vacancies, two have nominees: Armando Bonilla and Carolyn Lerner. With an overwhelming majority of the court having been appointed over the last two years, no new vacancies are expected on the court after the current ons are filled.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Northeast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We start with the states in the Northeast.

First Circuit

Court of Appeals

With just six active judgeships, the First Circuit is the smallest court of appeals in the nation, and the only geographically based appellate court that President Trump did not name a single judge to. The First Circuit tends to cycle between periods of significant turnover and periods of relative stability. For example, President George H.W. Bush named four judges to the court in four years in office. President Clinton then named two over eight years and President George W. Bush named just one in his eight. President Obama then replaced half the court in his two terms, followed by President Trump who named none.

Today, the court has five active judges: one appointed by Clinton; one by Bush; and three by Obama. A sixth judgeship, vacated by the death of Judge Juan Torruella last year is currently vacant, with a nominee, U.S. District Judge Gustavo Gelpi, waiting for a final confirmation vote on the Senate floor. However, a second vacancy is already teed up as the Rhode Island based Judge Ojetta Rogeriee Thompson is taking senior status on December 31, 2021. Rhode Island senators have already set up a selection process with the deadline set on August 4. This timeline could yield a new nominee by October 2021 and potentially even a confirmation by the end of the year.

More vacancies are possible this Congress. Judge Sandra Lea Lynch, appointed by President Clinton, has been eligible for senior status since 2011. Chief Judge Jeffrey Howard, the sole Republican appointee on the court, is also eligible for senior status but will likely stay active until his term as Chief concludes next year. However, even if neither moves to senior status, Biden will still have a chance to replace a third of the court.

Maine

The three judgeship District of Maine is unlikely to see much turnover this Congress, as the first judge to hit eligibility for senior status, Chief Judge Jon Levy, won’t hit it until 2024. His colleagues Nancy Torresen and Lance Walker have much longer to wait: until 2025 and 2037 respectively.

Massachusetts

The 13-judgeship District of Massachusetts is currently three judges short, with a nominee, Judge Angel Kelley, pending to the oldest vacancy. Kelley’s nomination was the product of a January 2021 convening of a Bipartisan Advisory Committee by Massachusetts Senators Elizabeth Warren and Ed Markey. The Committee was reconvened in March to produce nominees to replace Judge William Young, who was leaving active status. Presumably, the Committee has recommended candidates to fill the remaining vacancies on the court, which means that nominees may be forthcoming in the Fall.

Of the remaining ten active judges on the court, four are already eligible for senior status and a fifth, Judge Timothy Hillman, becomes eligible next year. As such, it is possible that more vacancies could open before the end of this Congress.

New Hampshire

The District of New Hampshire currently has one vacancy, opened by Judge Paul Barbadoro’s move to senior status on March 1. So far, there has not been a public announcement from New Hampshire’s senators on the selection process, and no nomination has been made.

Puerto Rico (not technically in the Northeast but covered under the First Circuit)

The District of Puerto Rico currently has one vacancy out of seven judgeships, but two others are poised to come open. Judge Gustavo Gelpi has been named to the First Circuit and is pending confirmation, and Judge Francisco Besosa has announced his intent to take senior status on January 1, 2022. The resulting three nominations, when they come, will encompass the largest turnover on the court since 2006 when Gelpi and Besosa were appointed. The third appointee from 2006, Judge Aida Delgado-Colon, is also eligible from senior status. If she so moved, Biden would have an opportunity to name a majority of judges on the court.

Rhode Island

Like it’s counterpart in Maine, the District Court for the District of Rhode Island has three judgeships, all of whom are not eligible for senior status this Congress. As such, no vacancies are expected this Congress unless Judge Mary McElroy, a longtime public defender and Democrat named to the court by Trump, is picked to replace Thompson on the First Circuit.

Second Circuit

Court of Appeals

The Second Circuit, based in New York, is one of the most prestigious court of appeals in the federal system. The Court, which has two vacancies, is closely divided ideologically. The active judges on the court are split 7-4 in favor of the court’s conservative wing, but this is mitigated by the senior judges, who sit frequently and include many prominent liberals. Biden has already named Judge Eunice Lee to the court and both the pending vacancies have nominees: voting rights attorney Myrna Perez and Vermont Supreme Court Justice Beth Robinson.

Setting aside Lee, the active judges on the Second Circuit include five appointees of President Trump (who are all years away from senior status), Chief Judge Debra Livingston (who is expected to serve out her term as Chief until 2027); and Obama appointee Raymond Lohier (who doesn’t hit eligibility until 2030). While it would be tempting to consider Judges Jose Cabranes and Rosemary Pooler, the last remaining of nine judges appointed to the Court by Bill Clinton, as likely moves to senior status, the judges (both octagenarians) have resisted senior status for years despite being eligible to do so. A more likely candidate to move to senior status is Obama-appointee Judge Susan Carney, who hits eligibility in September 2021.

Connecticut

The District of Connecticut currently has three vacancies out of eight judgeships. However, unlike most other states, all of Connecticut’s vacancies have nominees: U.S. Magistrate Judge Sarah Merriam; state judge Omar Williams; and federal prosecutor Sarala Nagala. The expected confirmation of the three this Fall would restore the court to a full complement of eight. However, Chief Judge Stefan Underhill is also eligible for senior status and may take it, creating an opportunity for a fourth appointment (It’s just as likely that Underhill serves out his term as Chief, which ends in 2025).

New York

One of only three states to be divided into four federal judicial districts, New York is currently bogged with a number of judicial vacancies. During the Obama Administration, Senators Chuck Schumer and Kirsten Gillibrand split up making recommendations to fill vacancies and each publicized names as they were sent to the White House. So far, Schumer has only made one district court recommendation public: voting rights attorney Dale Ho for the Southern District of New York (Ho has yet to be nominated).

Meanwhile, vacancies remain, with only the Western District of New York having a full complement of active judges. The Southern District of New York, one of the busiest courts in the country, is short four judges, with two of the vacancies dating back to 2018. The Eastern District of New York, despite having around half as many judgeships as its neighbor, also has four vacancies. The Northern District has only one vacancy, but, dating back to 2016, it’s one of the oldest vacancies in the nation.

Additionally, more vacancies may open in the coming year. Currently, three judges are eligible for senior status but have held off: Judge John Koeltl; Judge David Hurd; and Judge William Kuntz. Next year, three more become eligible: Judges Kiyo Matsumoto; Roslyn Mauskopf; and Glenn Suddaby.

Vermont

Vermont is one of only three states in the country to be served by only two district court judges (Idaho and North Dakota being the others). With both of Vermont’s judges a few years from eligibility for retirement, it is unlikely that any vacancies will open on the district court this Congress.

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.