Thirteen Federal Judges President Trump May Elevate to the Court of Appeals in His Second Term

Last week, we looked at thirteen district court judges who would be strongly considered for elevation to the Court of Appeals under a prospective President Biden.  This week, we’ll look at thirteen district court judges who would be considered for elevation by President Trump if he is re-elected to a second term.  As we did last week, we’ll limit our pick to thirteen judges, one for each Court of Appeal.

Judge Trevor McFadden (D.D.C.)

Judge Trevor McFadden is not only the youngest member of the U.S. District Court for the District of Columbia (McFadden is only 42), but he is also the most conservative.  In his three years on the bench, McFadden has racked up a number of rulings in favor of the Trump Administration, including ruling that the House of Representatives lacks standing to enforce its appropriations in court and in delaying the House suit seeking the President’s tax returns.  McFadden’s bid for the D.C. Circuit would be hampered by the hundreds of qualified D.C. conservatives who’d want such a post, but if the Administration wants a district court judge, McFadden would be their expected pick.

Judge Lance Walker (D. Me.)

Maine Judge Lance Walker may seem like an idiosyncratic choice for the Trump Administration to elevate, given his past decisions against anti-abortion groups and his ruling that essentially singlehandedly ensured the ranked-choice election of Democrat Jared Golden.  However, Walker, who would be only 51 when Judge William Kayatta would become eligible for senior status in 2023, is also a longtime member of the National Rifle Association and the Federalist Society.  Given this and his bipartisan confirmation to the district court, Walker may well be an ideal choice for Trump for this left-leaning circuit.

Judge Rachel Kovner (E.D.N.Y.)

Judge Rachel Kovner certainly has the pedigree to sit on the Second Circuit, having clerked for Judge J. Harvie Wilkinson and for Justice Antonin Scalia.  Also considering that Kovner has argued 11 cases before the U.S. Supreme Court and was confirmed with an overwhelming 88-3 margin, it seems more a matter of when, rather than if, Judge Kovner will be elevated.  While the forty year old judge has time on her side, she is likely to be closely scrutinized in a second Trump Administration.

Judge William Stickman (W.D. Pa.)

There is a good chance that Chief Judge Brooks Smith on the Third Circuit will move to senior status upon the conclusion of his term as Chief Judge in 2021, and Judge Stickman, who would only be 42 then, will likely be one of the leading contenders to replace him.  Despite a conservative record, Stickman had the support of Democratic Sen. Bob Casey in his district court confirmation, although, as Judge Peter Phipps experienced, support on the district court level is not a guarantee of support for an appellate seat.

Judge Thomas Kleeh (S.D.W.V.)

The 46 year old Kleeh has largely avoided making waves in his two years on the federal bench.  Nonetheless, Kleeh, who has strong connections with the West Virginia legal community, would likely be first on the list if Judge Robert King moved to senior status in a second Trump term.

Judge Brantley Starr (N.D. Tex.)

Judge Brantley Starr, who was confirmed to the Northern District of Texas last year has already made a name for himself on controversial cases, ruling that the federal government couldn’t ban bump stocks without compensating individuals under the Takings Clause, and his background prompting a transgender plaintiff to ask the judge to recuse himself from her case.  The 41 year old Starr is primed for a Fifth Circuit appointment, potentially if the equally conservative and inflammatory Judge Edith Jones moves to senior status in a second Trump term.

Judge Hala Jarbou (W.D. Mich.)

We’re cheating slightly with this one as Judge Jarbou has not yet been confirmed to the federal bench, but a vote on her nomination has been teed up for September, and she will likely sail to confirmation.  With two Michigan judges on the Sixth Circuit eligible for senior status and a third set to become eligible next year, the 49-year-old Jarbou would make a readily confirmable nominee, even if the Administration faces a Democratic Senate.

Judge Martha Pacold (N.D. Ill.)

The 41 year old Judge Pacold, despite having clerked for Justice Clarence Thomas and having a conservative’s dream resume, was nearly unanimously confirmed by the U.S. Senate to the trial court.  While it is unclear if she would attract that level of support if elevated to the Seventh Circuit, she is likely to be considered the leading candidate to replace Judge Ilana Rovner if she retires in a second Trump term.

Judge Sarah Pitlyk (E.D. Mo.)

If Judge William Duane Benton moves to senior status in a second Trump term, expect the shortlist for his seat to essentially consist of one candidate: Pitlyk.  The 43 year old Pitlyk, who squeaked to confirmation over bipartisan opposition, would be a dream candidate for conservatives, given her vocal support for Justice Brett Kavanaugh’s nomination and her strong anti-abortion record.

Judge Dominic Lanza (D. Ariz.)

It’s interesting that Lanza is a strong contender for the Ninth Circuit in a second Trump term given the fact that he was already rejected for a Ninth Circuit seat once by Trump.  The 44 year old jurist was originally recommended to be appointed to the Ninth Circuit by Sens. John McCain and Jeff Flake, only to be rejected by the Trump Administration, who were pushing Administration attorney James Burnham.  Ultimately, the Administration went with the Senators’ second choice, Judge Bridget Bade, and Lanza got a consolation appointment to the district court.  Now, Lanza, who was recently in the news for rejecting challenges to Arizona’s mail-in-ballot deadlines, will be closely watched for the Ninth Circuit if Judge Andrew Hurwitz moves to senior status in 2022.

Judge Patrick Wyrick (W.D. Okla.)

The 39-year-old Judge, who previously served on the Oklahoma Supreme Court, was previously the youngest nominee on President Trump’s Supreme Court shortlist.  Few believe that Wyrick will be tapped for the highest court without building a record on the Court of Appeals, and if an Oklahoma vacancy opens (neither of the 10th Circuit’s Oklahoma judges will be eligible to retire in the next four years), Wyrick’s name will be at the top of the list.

Judge Roy Altman (S.D. Fl.)

The 38 year old Altman was the youngest district court judge in the country when he was appointed in 2019, and, despite that youth, he sailed to confirmation by a 2-1 margin, a landslide among recent confirmation votes.  Altman will likely be strongly considered for a seat on the Eleventh Circuit if Judge Charles Wilson moves to senior status in a second Trump term, or if Judges Lagoa or Luck are elevated to the U.S. Supreme Court.

Judge Amos Mazzant (E.D. Tex.)

The Federal Circuit generally attracts less controversy than the other courts of appeals, which may be a reason for the Trump Administration to tap one of many young lawyers it has named to the Court of Federal Claims.  However, if it chooses an Article III appointee, Judge Amos Mazzant, who currently serves on the Eastern District of Texas, is a possible choice.  Judge Mazzant may have been named to the bench by President Obama, but he’s a strong conservative who was recommended by Sen. Ted Cruz.  Additionally, the 55-year-old Judge Mazzant has over a decade of experience on the patent heavy docket of the Eastern District of Texas, which would prepare him well for the Federal Circuit.

Thirteen Federal Judges the Next Democratic President May Elevate to the Court of Appeals

With the COVID-19 pandemic on everyone’s minds, judicial nominations have largely been on the backburner for the last few months.  While a few more district nominees will likely be processed in the next few months, it’s safe to say that the victor of the 2020 election will nonetheless have many judicial vacancies to fill in the next four years.

Since speculation is what this blog enjoys most, let’s think about potential candidates for the federal appellate bench under a Democratic President.  We’ll start by looking at federal district court judges who are poised for elevation to the appellate bench, and, for the sake of geographic diversity, we’ll limit our pick to thirteen judges, one for each Court of Appeal.  As such, here are 13 district judges who would be strongly considered for elevation if a Democrat was elected in 2021.

Judge Ketanji Jackson (D.D.C.)

Here’s my first prediction: Jackson will be the first Democratic nominee to the D.C. Circuit in 2021, potentially replacing Judge Judith Ann Wilson Rogers, another black woman.  Jackson, a clerk of Justice Breyer, has impressed enough to seriously be considered for a Supreme Court appointment in 2016.  At 49, Jackson has another 10 years or so of viability for a Supreme Court appointment, and it would not be surprising to have her be the first black woman on the court.

Judge Mary McElroy (D.R.I)

Judge Ojetta Rogeriee Thompson is eligible for senior status in 2021, and Judge McElroy would be the frontrunner to replace her.  This is particularly unusual given that McElroy is a Trump appointee.  However, McElroy’s Trump appointment is an anomaly.  She is a Democrat and her nomination was championed by Democratic Senator Sheldon Whitehouse.  Furthermore, McElroy’s long career as a public defender would bring a fresh perspective to the First Circuit, which is dominated by former prosecutors.

Judge Jesse Furman (S.D.N.Y.)

I feel fairly safe in saying that Furman will be at the top of Democratic lists for elevation to the Second Circuit given his role in the suit over the Census Citizenship question.  Throughout the complicated nature of the litigation, Furman maintained firm control of the proceedings, and his judgment was largely upheld by the Supreme Court.  Interestingly, Furman was the target of an oblique critique from Justice Thomas who suggested he was “predisposed to distrust” Trump.  Despite Justice Thomas’ broadside, a majority of the Supreme Court sided with Furman’s position on the Census Question.  At 47 years old, Furman is perfectly placed for elevation in 2021 or even in 2025, when he would only be 52 years old.

Judge Cathy Bissoon (W.D. Pa.)

When she was appointed in 2011, Judge Cathy Bissoon was both the first Hispanic and the first Indian American judge on the Western District of Pennsylvania.  Today, the 51-year-old judge is poised for elevation to the Third Circuit, which desperately needs more female judges, down to just two out of fourteen.

Judge George Hazel (D. Md.)

At 45 years old, Hazel is the youngest Democratic-appointed federal judge in the country, and was the youngest federal judge in the country between his appointment in 2014 and the appointment of Judge Trevor McFadden in 2017.  Hazel has made a name for himself by handling the Maryland case challenging the Census Citizenship question, where he ruled that the Trump Administration violated the law in adding the question to the Census.  Hazel would be only 45 in 2021 and would be poised to join the Fourth Circuit where both Judges Paul Niemeyer and Diana Gribbon Motz are eligible for senior status.

Judge Carlton Reeves (S.D. Miss.)

Perhaps no district court currently sitting has had the degree of significance as Carlton Reeves, who has issued landmark decisions on same-sex marriage, religious liberty, race, voting rights, qualified immunity and more.  While, at 56, Reeves is on the older end of eligible nominees, his name will be first on the list for any Mississippi vacancy on the Fifth Circuit, perhaps if Judge James Graves moves to senior status upon eligibility in 2022.

Judge Travis McDonough (E.D. Tenn.)

McDonough doesn’t have the controversial opinions that others on this list do, but as a young, noncontroversial judge, he is a prime candidate for a Tennessee seat on the U.S. Court of Appeals for the Sixth Circuit, including if Judge Bernice Donald moves to senior status.

Judge Andrea Wood (N.D. Ill.)

A Democrat hasn’t appointed a judge to the Seventh Circuit since Judge David Hamilton’s appointment in 2009, and the circuit is fairly lopsided as a result.  If and when the appointment comes, expect Judge Andrea Wood to be strongly considered.  The 47-year-old Wood has presided over a number of prominent cases in Chicago, including a class action against Bose Headphones, and has the intellectual rigor to hold her own in the notoriously academic court.

Judge Kristine Baker (E.D. Ark.)

The 49-year-old Baker has developed a bit of reputation from her Little Rock court as a judge willing to make hard decisions, even if they may fly against popular sentiment in her home-state.  For example, Baker relied on Supreme Court precedent to block a number of draconian anti-abortion measures in Arkansas from going into effect, a decision which prompted cries of judicial “activism.”  Setting the issues aside, Baker would be an ideal candidate if Judges Bobby Shepherd or Lavenski Smith moved to senior status.  Her status as a woman would also diversify one of the most male-dominated courts in the country (only two women have ever served on the Eighth Circuit).

Judge Vince Chhabria (N.D. Cal.)

The 50-year-old Chhabria has already made a name for himself as a strongly liberal voice on an even-otherwise liberal bench, making notable rulings, including striking down a law that prohibited IMDB from posting the birthdates of actors, citing the First Amendment.  If elevated, Chhabria would be the first Indian American judge on the Ninth Circuit.

Judge Robert Shelby (D. Utah)

Shelby may seem like an unusual choice for a Democratic appellate appointee, given that he is, at least nominally, a Republican.  Nonetheless, Shelby has won plaudits in Utah for his fair rulings, including many that seem downright liberal.  For example, in 2013, Shelby made headlines by striking down Utah’s ban on same-sex marriage, despite the fact that almost no court in the country had adopted such a position.  Shelby’s prescience in reading the law would serve him well on the Tenth Circuit, particularly to replace Judge Scott Matheson (if he moves to senior status upon eligibility).

Judge Leslie Abrams Gardner (M.D. Ga.)

The sister of the famous Stacey Abrams, Judge Leslie Abrams Gardner made history as the first woman ever appointed to the Middle District of Georgia.  The 45-year-old Gardner is poised to potentially make history again as the first black woman appointed to the Eleventh Circuit (and potentially further to the Supreme Court).

Judge Lucy Koh (N.D. Cal.)

I’m cheating a bit by including Koh in here as she has already been a nominee, tapped late in the Obama Administration for the Ninth Circuit, but never confirmed.  Personally, however, Koh seems a better fit for the Federal Circuit.  Throughout the history of the Federal Circuit, only one district judge has ever served on the court (Judge Kate O’Malley).  Koh, who handled patent matters in private practice, and who became famous for presiding over Apple’s suits against Samsung over smartphones, has the expertise and the intellect to excel on this specialized court of appeals.

Want Proof that Democrats Are Playing A Losing Game on Judges: Look to the States

Take two candidates for the bench: a forty year old attorney who has spent their career as a legal bombthrower, marching in protests and writing strong-worded blog and twitter posts; and a sixty year old partner at a top law firm who has donated generously to their home state senator but has otherwise undeveloped legal views.  It may be a cliche to say that the former is more likely to get nomination under a Republican Administration while the latter is under a Democratic Administration, but it’s a cliche that’s borne out by experience.  Just look at what’s happening now in state judiciaries across the country.

So far, in 2020, 18 vacancies have opened up in state supreme courts where the justices are appointed by the state’s governor.  Of those 18 vacancies, just six were in states appointed by Republican Governors, while 12 were in states appointed by Democrats.  Given this structural advantage in reshaping the state bench, you’d expect Democratic Administrations to work closely with progressive groups in picking young, liberal jurists to rebalance the bench.  The reality, however, is that, from a combination of a lack of resources and a lack of interest, Democrats at the state level are getting lapped by their Republican counterparts on judges.

To start, Republicans have been much quicker in their appointments.  Georgia Governor Brian Kemp appointed Judge Carla Wong McMillian to the Supreme Court less than a month after Justice Robert Benham’s retirement.  Similarly, Alaska Governor Mike Dunleavy and Iowa Governor Kim Reynolds made their appointments within a month of the respective vacancies opening.  In contrast, Maine Supreme Court Justice Leigh Sauffley stepped off the Court on April 14, 2020.  Governor Janet Mills still has yet to make an appointment three months later.  Similarly, Connecticut Governor Ned Lamont waited more than two months after the retirement of Justice Richard Palmer to make his appointment, despite the fact that Justice Palmer was forced to retire due to age and the vacancy was predicted years in advance.

Even where they have made appointments, the nominees are remarkably different.  For example, Justice McMillian, appointed by Kemp, is only 46.  Dunleavy’s appointment of Dario Borghesan is only 40.  Justice Matthew McDermott, appointed to the Iowa Supreme Court by Reynolds, is only 42.  All three also have been active in conservative legal circles.

In comparison, look at the judges appointed by Democratic Governors this year.  Gov. Jay Inslee’s appointees to the Washington Supreme Court were both in their 50s: Justice Raquel Montoya Lewis is 53, and Justice Helen Whitener is 55.  And they’re the young ones.  Justice Gordon Moore, appointed by Gov. Tim Walz to the Minnesota Supreme Court, is 57.  Justice Catherine Connors, appointed by Mills in Maine, is 61.  And Justice Andrew Horton, another Mills appointee, is seventy-one years old.  Similarly, in Connecticut, Lamont has chosen Judge Christine Keller for the Supreme Court, a particularly myopic appointment, given that the 67-year-old jurist will be required to step off the Supreme Court in three years, just in time for Lamont’s successor to replace her.

Even where Democratic Governors have sought to make bolder appointments, they’ve been stymied by conservative opposition and a lack of liberal support.  Take the case of Carl Folsom III, a forty-year-old Assistant Federal Public Defender who was tapped for the Kansas Court of Appeals by Gov. Laura Kelly.  Folsom’s nomination was rejected by the Kansas Senate, where opponents disingenuously argued that Folsom was a poor choice because he had represented an accused child molester.  Setting aside the fact that opponents should really be objecting to our Founding Fathers for codifying the Sixth Amendment, Folsom was a public defender and, as such, unable to select his clients.  Yet, as his nomination went down, there was virtually no outcry outside of Kansas.

This past week, the Democratic Party announced that it would be revising its party platform, adding a plank calling for “structural changes” to the judiciary.  Despite the vagueness of the change, it induced paroxyms of joy in many liberals, thrilled that Democrats were finally showing up to the gun fight with something more than a blade.  However, structural changes are meaningless if political actors lack the will to take advantage of them.  And watching Democrats let opportunity after opportunity to reshape the bench go by this year doesn’t raise confidence as to their performance next year.  Despite the occasional bright spot (e.g. the appointment of Justice Fabiana Pierre Lewis to the New Jersey Supreme Court by Gov. Phil Murphy), Democrats have overlooked opportunities to reshape state appellate courts with young liberals.  Liberals can only hope that a prospective President Biden doesn’t continue this pattern.

 

Judicial Nominations 2019 – Year in Review

2019 was one hell of a year for judicial confirmations.  Freed from the time-consuming schedule of a Supreme Court nomination, the Senate plowed through over 100 judicial confirmations, dramatically reshaping both the courts of appeals and district courts.  

Nominations and Confirmations

This year, the Senate confirmed 20 appellate judges and 80 district court judges (as well as two judges to the Court of International trade).  As such, President Trump has had 187 confirmations as of the third year of his presidency.  In comparison, President Obama saw 124 confirmations by the end of the third year of his presidency, President Bush saw 168, and President Clinton saw 175.

Failed Nominations

The expanded Republican majority in the Senate from the 2018 elections and the frequent absences of Democratic senators running for President have allowed Republicans to push through many nominees on narrow party-line votes.  As such, the Administration has been relatively successful at pushing through its nominees, even controversial ones.

Nonetheless, a handful of Trump nominees have been blocked from confirmation in 2019.  Namely, judicial nominees John O’Connor and Maureen Ohlhausen were not renominated at the beginning of the 116th Congress.  Furthermore, the nomination of Michael Bogren to the Western District of Michigan was withdrawn in the face of Republican opposition (similar opposition has stalled the nomination of Judge Halil Ozerden to the Fifth Circuit).  Additionally, Judge Thomas Marcelle, nominated for the U.S. District Court for the Northern District of New York, withdrew due to failure to get blue slips from Sen. Kirsten Gillibrand.

Demographics of Confirmed Nominees

Let’s take a look at demographics of the 102 confirmed Trump appointees this year.

Age

In the past Congress, the average age of Trump’s appointees ranged between 50-51, in line with previous presidents.  This Congress, the average age of the Trump appointees is slightly younger at 49 years of age, which is still not too far from the presidential average.

The oldest Trump appointee tapped for the federal bench this year is Judge John Milton Younge, a Democrat who was first nominated to the federal bench by President Obama but blocked by Republicans.  Younge was 64 when confirmed.  The youngest was Judge Allison Rushing, who was just 36 when she was confirmed to the Fourth Circuit.

Race

Trump’s judicial confirmations continue to be overwhelmingly white, although the ratio has improved significantly since the previous congress.  Twenty of the 100 judges confirmed this Congress were non-white: seven Asian; six Hispanic; and seven African American judges respectively.

Gender

Of the 100 nominees confirmed this year, 26 are female: 5 appellate appointees and 21 district court appointees.  These numbers (26% female) are slightly better than the previous congress, where the appointees were around 22% female.  However, they still are lower than the 42% female figure President Obama managed to hit.

LGBTQ Identity

This year, the Senate confirmed two nominees who identify as members of the LGBTQ community: Judge Mary Rowland to the U.S. District Court for the Northern District of Illinois; and Patrick Bumatay to the U.S. Court of Appeals for the Ninth Circuit.

Looking Ahead

Largely due to rules changes muscled through by the enlarged Republican majority, President Trump has succeeded in dramatically reshaping the federal bench in 2019.  However, his success has reduced the number of nominees who would be expected to be confirmed next year.  When the Senate recessed, it left just five pending judicial nominees on the Senate floor.  Nonetheless, while all of Washington will spend much time absorbed in an impeachment fight next year, the senate will likely continue its processing of judicial nominees.

Initial Thoughts on the Demand Justice Shortlist

On May 19, 2016, then candidate Donald Trump unveiled a list of thirteen judges, pledging only to appoint candidates to the Supreme Court from that list.  The intent of the list was to shore up flagging conservative support for the candidate, and it worked.  The list, along with Senate Majority Leader Mitch McConnell’s refusal to fill the vacancy created by Justice Antonin Scalia’s death, meant that the Supreme Court was a key issue in the 2016 Presidential election, and conservative judicial voters carried Trump to a narrow victory.

So far, no Democratic presidential candidate has taken a page from Trump’s playbook and released their own list, but liberal judicial group Demand Justice has taken up that mantle, releasing a list of 32 lawyers, law professors, and judges for appointment to the Supreme Court.  The list has attracted both praise and criticism, including from those who have argued that the list is not even close to a plausible Democratic shortlist.  However, Demand Justice is not running for President.  Where Trump’s list was intended to convince conservatives that he can be trusted to appoint “safe” picks, Demand Justice’s shortlist is seeking something different: to remind progressives that there are alternatives to the traditional appellate hunting grounds for court appointments.  In that sense, the list has been successful.

That being said, let’s break down the names further.

Demographic Diversity

Demographic diversity was obviously important to Demand Justice’s compilers, as the list reflects nominees from across the racial and ethnic spectrum.  The list is majority female and majority POC.  In fact, there is only one cisgender straight white male on the list: Philadelphia D.A. Larry Krasner.  Rather than being a coincidence, this is likely a deliberate effort on Demand Justice’s part to craft a list that is more diverse than the names typically considered.

Geographic Diversity

Let us look at the home states of the last five Democratic nominees to the Supreme Court: Ginsburg (N.Y./D.C.); Breyer (Mass.); Sotomayor (N.Y.); Kagan (Mass./D.C.); Garland (D.C.).  In fact, the last Democratic SCOTUS nominee who was not from New York, D.C., or Massachusetts was Homer Thornberry in 1968, and the last successful appointment not from one of these three states/districts was Arthur Goldberg in 1962 (and even he was serving as a cabinet official in D.C. before his appointment).  Unfortunately, the Demand Justice list is also heavy with nominees from these three states, although you can also add California, which hosts a fair number of shortlisters.  Leaving out these four states, you have Krasner from Pennsylvania; Judge Jane Kelly from Iowa; Judge Carlton Reeves from Mississippi; Judge Richard Boulware from Nevada; and Justice Anita Earls from North Carolina.

Educational Diversity

Much has been made of the Harvard-Yale duopoly on the Supreme Court, and this list is unlikely to change that too much.  Of the 32 names on that list, 19 are alumni of either Harvard or Yale (or in some cases, both).  Of those who are not, only ONE attended a non-top 20 law school (ACLU attorney Brigitte Amiri, who attended Northeastern Law).

Experiential Diversity

Here’s where this list differs the most from Trump’s.  Every single candidate on Trump’s shortlist was a judge (either on state or federal court).  In contrast, the majority of Demand Justice’s list has no judicial experience.  Only two serve on the U.S. Court of Appeals (Judges Jane Kelly and Nina Pillard), while another two serve as U.S. District Court Judges (Judges Richard Boulware and Carlton Reeves).  Four serve on State Supreme Courts (Justices Liu, Cuellar, and Krueger from the California Supreme Court and Justice Earls on the North Carolina Supreme Court).  The remaining twenty four (75%) have no judicial experience.

Rather, the list is heavy with law professors, civil rights lawyers, and even includes three elected officials (one of whom, Rep. Katie Porter, was a former academic).  The list does include a fair number of former clerks.  Nine on the list clerked on the U.S. Supreme Court including:

  • 3 Blackmun clerks (Michelle Alexander; Pam Karlan; Cecillia Wang)
  • 1 Stevens clerk (Leondra Kruger)
  • 1 O’Connor clerk (James Forman)
  • 2 Ginsburg clerks (Goodwin Liu; M. Elizabeth Magill)
  • 1 Breyer clerk (Timothy Wu)
  • 1 Sotomayor clerk (Melissa Murray)

Age and Youth

One factor that Republican Administrations tend to prize in their appointments is youth, generally selecting nominees in their 40s and early 50s, while Democrats tend to choose older judges with more experience.  While there are a handful of younger picks on the list, for the most part, the Demand Justice continues the pattern of older Supreme Court picks.

By mid-2021, which is the earliest that a Democrat can expect to fill a Supreme Court vacancy, seven members on the list would be sixty or above (Becerra; Earls; Karlan; Krasner; Minter; Pillard; Stevenson).  If we go to 2025, seventeen fall into that category.

Overall Analysis

Between the age issue and the judicial experience issue, one can see why some would criticize this list as being unrealistic.  However, as noted above, Demand Justice is not making appointments.  Its goal here is to push the conversation about Democrats towards nominating progressives for the bench, and it has done so here.

Furthermore, not everyone on Trump’s own lists was a plausible Supreme Court choice (did anyone realistically believe that Trump would appoint Michigan Supreme Court Justice Robert Young to the Supreme Court).  Rather, for many, placement on the list was intended to raise their profile before an expected lower federal appointment.  It is for this reason that so many names on the list found their way onto the federal bench.  Similarly, don’t be surprised if a President Warren or Sanders or Biden appoints Dale Ho to the Second Circuit; or Deepak Gupta to the D.C. Circuit; or Katie Porter to the Ninth Circuit.  As such, the greatest impact of this list may well be on the courts of appeals.

 

The Irony of Michael Bogren’s Defeat

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

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

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

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

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

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

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

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

 

Judging the 2020 Contenders – The Others

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

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

Stacey Abrams

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

Michael Bloomberg

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

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

Pete Buttigieg

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

Julian Castro

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

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

John Delaney

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

Tulsi Gabbard

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

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

Richard Ojeda

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

Beto O’Rourke

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

Tim Ryan

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

Eric Swalwell

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

The Nominees Left Out

Updated on January 23, 2019 at 3:24 PM

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

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

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

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

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

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

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

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

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

Judging the 2020 Contenders: The Senators

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

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

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

Joe Biden

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

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

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

Cory Booker

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

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

Sherrod Brown

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

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

Hillary Clinton

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

Kirsten Gillibrand

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

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

Kamala Harris

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

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

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

John Kerry

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

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

Amy Klobuchar

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

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

Jeff Merkley

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

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

Bernie Sanders

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

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

Elizabeth Warren

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

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

Judging the 2020 Contenders: The Governors

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

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

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

Steve Bullock

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

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

Andrew Cuomo

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

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

John Hickenlooper

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

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

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

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

Jay Inslee

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

Terry McAuliffe

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

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

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