New Judicial Nominations – Sept. 7, 2017

Today, President Donald Trump announced the nominations of three circuit court nominees and thirteen district court nominees. The nominees are as follows:

Judge R. Stan Baker – a federal magistrate judge on the U.S. District Court for the Southern District of Georgia, Baker has been tapped to fill a vacancy on the same district.

Jeffrey Uhlman Beaverstock – a partner in a Mobile law firm, Beaverstock has been nominated to fill a vacancy on the U.S. District Court for the Southern District of Alabama.

Ryan Wesley Bounds – a federal prosecutor and former clerk to conservative Judge Diarmund O’Scannlain, Bounds has been nominated to fill O’Scannlain’s Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.

Judge Elizabeth Branch – a judge on the Georgia Court of Appeals, Branch has been nominated to fill the Georgia seat vacated by Judge Frank Hull on the U.S. Court of Appeals for the Eleventh Circuit.

John W. Broomes – a partner in an Overland Park based law firm, Broomes has been tapped for a vacancy on the U.S. District Court for the District of Kansas.

Judge Walter David Counts III – a federal magistrate, Counts has been nominated to a fill a vacancy on the U.S. District Court for the Western District of Texas.  He had been nominated to the same court by President Obama but was not confirmed.

Rebecca Grady Jennings – a Louisville law firm partner, Jennings has been tapped for a vacancy on the U.S. District Court for the Western District of Kentucky.

Matthew Kacsmaryk – Deputy General Counsel to the First Liberty Institute, Kacsmaryk has been nominated for the U.S. District Court for the Northern District of Texas.

Gregory Katsas – a Deputy White House Counsel and former clerk to Justice Clarence Thomas, Katsas has been nominated to fill a vacancy left by Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit.

Emily Coody Marks – a Montgomery law firm partner, Marks has been nominated to the U.S. District Court for the Middle District of Alabama.

Jeff Mateer – the first Assistant Attorney General of Texas, Mateer has been nominated for the U.S. District Court for the Eastern District of Texas.

Judge Terry F. Moorer – a federal magistrate judge, Moorer’s nomination was announced for the U.S. District Court for the Middle District of Alabama in May (but never submitted).  Moorer has instead been nominated for the U.S. District Court for the Southern District of Alabama.

Matthew Petersen – a Commissioner on the Federal Election Commission, Petersen has been nominated for the U.S. District Court for the District of Columbia.

Fernando Rodriguez – field office director in the Dominican Republic for International Justice Mission, Rodriguez has been nominated for the U.S. District Court for the Southern District of Texas.

Karen Gren Scholer – a principal at a Dallas law firm, Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  She had previously been nominated to fill a vacancy on the U.S. District Court for the Eastern District of Texas by President Obama.

Brett Talley – a Deputy Assistant Attorney General in the Office of Legal Policy at the Department of Justice, Talley has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Alabama.

 

Thoughts on the Sept. 6th Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee.  Here are my preliminary thoughts on the proceedings, which can be watched here.  (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER:  These are just my opinions.  Reasonable observers of the hearing can obviously disagree on any of these points.

  1. Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism.  Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.
  2. Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee.  Over the course of the hearing, it was clear why.  Larsen was poised and comfortably conversed with senators on several legal issues.  She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence.  She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there.  As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation.  Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.
  3. Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.”  Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism.  For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law.  However, much of the posturing was undone by two key missteps.  First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution.  Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge?  Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF).  When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF.  She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group.  It was an unnecessarily defensive performance and undermined her careful answers until that point.
  4. Franken Remains the Minority’s Best Questioner – In the last “big” hearing,  Franken helped lead the Democrat’s charge against John Bush and Damien Schiff.  This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed.  Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.
  5. Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all.  This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees.  He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so.  Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions.  Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round.  At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.

Racial Diversity on the Federal Bench: Have We Hit the High Water Mark?

Last week, we discussed the low percentage of women among Trump’s judicial nominees.  This week, we address an equally concerning phenomenon: the low percentage of racial minorities.  President Trump’s first few batches of judicial nominees have the lowest proportion of “nonwhite” judges since the Kennedy Administration.  This portends a dramatic drop in the percentage of minority judges in the federal judiciary.

According to the Congressional Research Service (CRS), as of August 1, President Trump has nominated only one non-white judge to the federal bench: Judge Amul Thapar. (The nominees submitted on August 3d were not analyzed but are also overwhelmingly white).  This means that under 4% of Trump’s nominees have been racial minorities.  In comparison, 36% of President Obama’s judicial nominees were racial minorities.

Traditionally, Democratic presidents have been more sensitive to racial diversity in federal judicial appointments.  Presidents Carter, Clinton, and Obama all emphasized diversity when selecting federal judges, and racial minorities achieved key milestones in the federal judiciary during their presidencies.  Nevertheless, Republican presidents in the modern era, including Presidents Reagan, George H.W. Bush, and George W. Bush, all produced a group of judicial nominees more diverse than those of President Trump.  In fact, even Presidents Nixon and Ford had a slightly higher percentage of nonwhite nominees than President Trump.

According to CRS, minority judges are seeing the first sustained decline of their numbers from the peak they reached in early 2015.  Much of the decline is due to the Republican Senate’s refusal to confirm President Obama’s judicial nominees in the 114th Congress, and cannot be blamed on President Trump.  Nevertheless, unless this Administration makes an affirmative commitment to racial diversity, they will oversee a federal bench with far fewer minority judges.

It is still early and the Trump Administration can rectify this problem.  They can demonstrate a commitment to judicial diversity by identifying and nominating qualified minority candidates to the federal bench.  Such an effort does not have to be at the expense of ideology, as many judicial conservatives on the federal bench are of minority background, include Judges Janice Rogers Brown and Jerome Holmes.  The Administration can identify similar candidates, such as Arizona Supreme Court Justice John Lopez and U.S. District Court Judges Diane Humetawa and Marco Hernandez, and elevate them to the federal court of appeals.

With the end of the August recess, a new wave of nominees is expected next week.  The new nominations will either confirm the trend noted above, or mitigate it.

P.S. Special Thanks to Glenn Sugameli of Judging the Environment for linking me to the CRS data on diversity in judicial nominations.

 

Where are the Women: The Alarming Gender Gap Among Trump’s Judges

During the 2012 Presidential campaign, Republican candidate Mitt Romney was mocked for declaring that he had “binders full of women” ready to appoint to federal positions.  The phrase, while awkward, signaled Romney’s commitment to gender diversity in his appointments.  In contrast, President Trump’s appointments, from his US Attorneys to his executive appointments, have been overwhelmingly male.  This pattern is evident in his judicial appointments.

As of August 23, 2017, President Trump has named 36 nominees to Article III courts: 11 to the U.S. Court of Appeals; 24 to the U.S. District Courts; and Justice Neil Gorsuch to the U.S. Supreme Court.  Out of these 36 nominees, only seven are women.  In contrast, by August 2009, President Obama had nominated only 17 nominees, but had named just as many women: seven, including Justice Sonia Sotomayor to the U.S. Supreme Court.

Comparatively, only 19% of President Trump’s judicial nominations are women, a lower percentage than the last three presidents, and comparable with the nominations made by President George H.W. Bush.  The ratio is particularly skewed in nominations to the U.S. District Courts.  Only four out of 24 District Court nominations have gone to women.

Out of the seven female nominees, three replace departing female judges and four replace male judges.  In contrast, six of the male nominees put forward replace female judges.  In other words, with the confirmation of these nominees, for the first time since the Eisenhower Administration, the overall number of active female judges would go down.

It is still early, and the Trump Administration could pick up the pace and appoint more women to the federal bench.  However, the tea leaves are not promising.  Rather, the nominees the Administration have in the works are also, generally, male:

  • DC Circuit – While the Administration was looking at four well-qualified female candidates to fill the vacancy left by Judge Janice Rogers Brown’s retirement, the expected nominee, Deputy White House Counsel Greg Katsas, is male.
  • Second Circuit – The Administration has pitched four candidates to New York Senators Chuck Schumer and Kirsten Gillibrand to fill two 2nd circuit vacancies: all four candidates are male.
  • Third Circuit – The Administration is preparing to nominate Paul Matey to fill one of two vacancies without a nominee.  For the other vacancy, the Administration is mulling David Porter.  Both candidates are male.
  • Fifth Circuit – The Administration is weighing four male candidates for two vacancies on the court.
  • Seventh Circuit – The White House has interviewed three men to replace Judge Ann Claire Williams.
  • Ninth Circuit – The leading candidates for vacancies in Arizona, California, and Oregon are all men.
  • Tenth Circuit – Three male attorneys are being considered for the New Mexico seat vacated by Judge Paul Kelly.
  • Eleventh Circuit – The list of candidates being considered for the vacancy by Judge Frank Hull (a woman), is mostly male, but does include female Georgia Supreme Court Justice Britt Grant.

The Administration and its supporters will argue that this doesn’t matter.  As long as the nominees put forward are qualified, their gender is irrelevant.

While this is true on the individual level, such an argument is based around the erroneous assumption that the only way a female candidate would be chosen over a male one is due to emphasis on diversity.  This is patently false.  Women make up approximately 35% of the legal profession, and this percentage is increasing sharply. Furthermore, the federal bench (the elite of the judiciary) is already one third female.   As such, producing a pool of nominees that is only 19% female suggests an inability to consider qualified female nominees, rather than a slavish devotion to quality.

Since FDR was in office, every single administration appointed a greater percentage of women to the federal bench than the previous administration of their party.  Unless corrective measures are take, the Trump Administration looks set to break that trend.

Update – I wanted to address a reader inquiry.  The reader in question wanted to know why the relevant barometer for comparison was the percentage of women in the legal profession, rather than the percentage of women in organizations like the Federalist Society, from where Trump draws his appointees.  Three responses.

First, federal judges primarily serve the rule of law and the general public.  As such, it is particularly important that the public maintain faith in the judiciary.  Numerous studies have shown that when female or minority judges are left off the bench, that both the quality and perception of justice suffer.  As such, you judge the diversity of federal judges based on those appearing in court before them.

Second, the Federalist Society does not constitute the entirety of conservative lawyers.  While the membership of the Federalist Society may be predominantly white and male, there are other sources of conservative women.  Furthermore, District Court appointments, where the gender gap is particularly bad, generally do not come from the Federalist Society.  In most cases, the male nominees being chosen are themselves not members of the Federalist Society.  As such, it is difficult to believe that Federalist Society membership is the basis on which female judges are being ignored.

Third and most importantly, the pool of conservative attorneys that Trump is drawing upon for his nominees is essentially the same as the pool tapped by past Republican Presidents.  Over ten years ago, despite women making up only about 25% of the legal community, President Bush managed to have women constitute 22% of his appointees.  Twenty five years ago, President George H.W. Bush essentially matched Trump’s current 19% despite working with a female legal population that was substantially lower than what Trump has now.  When these past presidents, whose nominees were equally conservative, could maintain parity between the percentage of women in their appointments and the percentage of women in the legal community, there is no reason why President Trump cannot do so.

New Judicial Nominations – Aug. 3, 2017

Today, the White House submitted another two nominees to the U.S. Court of Appeals and six nominees to the U.S. District Courts.  The nominees are:

Michael B. Brennan – a partner at the Milwaukee law firm Gass Weber Mullins LLC. has been nominated for a Wisconsin seat on the Seventh Circuit.

Donald C. Coggins – an attorney in private practice in Spartanburg, Coggins has been nominated for the U.S. District Court for the District of South Carolina.  Coggins had previously been nominated to this court by President Obama.

Judge Terry A. Doughty – a state court judge, Doughty has been nominated for the U.S. District Court for the Western District of Louisiana.

L. Steven Grasz – the senior counsel at Husch Blackwell LLP. has been nominated for a Nebraska seat on the Eighth Circuit.

Michael J. Huneau – a Lafayette attorney in private practice, Juneau has been nominated for the U.S. District Court for the Western District of Louisiana.

A. Marvin Quattlebaum – an attorney in private practice in Greenville, Quattlebaum has been nominated for the U.S. District Court for the District of South Carolina.

Holly Lou Teeter – a federal prosecutor, Teeter has been nominated for the U.S. District Court for the District of Kansas.

Judge Robert E. Weir – a federal magistrate judge, Weird has been nominated for the U.S. District Court for the Eastern District of Kentucky.

 

Eleven New Nominations to the District Court Announced

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

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

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

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

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

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

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

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

 

Four Nominees Advance to Senate Floor

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

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