End of an Era – Why It is Time to End the ABA’s Privileged Role in Judicial Nominations

In 1953, when President Dwight Eisenhower requested that the American Bar Association, the leading nonpartisan legal organization in the country, start vetting prospective judicial nominees before they were sent to the Senate, it was seen as a guarantee for an impartial and nonpartisan judiciary.  This tradition was followed for five decades by presidents of both political parties until President George W. Bush ended it in 2001. President Obama revived pre-nomination ABA vetting in 2009 and President Trump again ended it in 2017.  Regardless of whether President Trump is re-elected or if a President Biden is elected in 2020, there will be significant pressure on the President to revive this tradition.  For the sake of the judiciary and the country, he should refuse.

History of ABA and Judicial Nominations

As noted earlier, the ABA Standing Committee on the Federal Judiciary has been vetting judicial nominations since the invitation of President Eisenhower in 1953.  For most of this history, this process has been pre-nomination.  In other words, the prospective nominee is handed over to the ABA for interviews, vetting, and a final rating.  The ABA would then provide their rating to the White House, at which point a final decision would be made on whether to move forward on the nomination.

In 2001, President George W. Bush changed this tradition.  Instead of providing names before the nomination was official, Bush announced that the ABA would receive the names only after the nomination was public.  Bush’s decision was the culmination of decades of conservative grumbling about the ABA, manifested from the ABA’s decision to give low ratings to President Reagan’s nominations of Professors Richard Posner and Frank Easterbrook to the federal bench, and to rate Judge Robert Bork’s nomination for the Supreme Court as “qualified” rather than “well qualified.”  Nonetheless, even after the decision, the ABA continued rating judicial nominees and Senators generally refrained from action on a nomination until the ABA rating came in.

In 2009, President Obama restored the ABA’s pre-nomination vetting role.  However, this decision wasn’t without backlash of its own.  Liberals soon began to grumble that the ABA vetting process took too long and unduly slowed the nominations process.  More significantly, the rejection rate of President Obama’s nominees increased dramatically by the ABA, preventing the Administration from effectively filling vacancies.  Despite this tension, Obama did not reduce the ABA’s role.

In 2017, Trump again ended the ABA’s role in vetting nominees pre-nomination, and a number of nominees ratedNot Qualified” have been confirmed under Trump (although others have been rejected).

One consistent thread throughout the process has been the criticism of the ABA’s process for bias against conservatives.  However, looking at all the evidence, the bigger problem with the ABA’s ratings is not bias, but arbitrariness.

The “Arbitrariness” of ABA Evaluations

For any “objective” rating system to have credibility, it needs to be clear, understandable, and consistently applied.  The ABA’s rating system purports to be as such, but falls short of that standard.  The ABA claims to evaluate a nominee’s “professional competence, integrity, and judicial temperament” without taking into regard the nominee’s ideology.  However, in practice, questions of ideology frequently commingle into questions of temperament.  As a result, you have nominees like Leonard Grasz, who was poorly rated for a “lack of open-mindedness and freedom from bias.”  How does an evaluation into a nominee’s “bias” steer clear of an evaluation of their ideology?  The ABA doesn’t clarify.

More worryingly, even the “objective” portions of their criteria are often arbitrarily applied.  For example, the ABA purports to seek 12 years of legal work experience as a minimum guideline for judicial nominees.  However, this guideline is rarely straightforwardly applied.  Missouri judicial nominee Sarah Pitlyk received a “Not Qualified” rating based on a lack of requisite trial or litigation experience (Pitlyk was out of law school for 11 years at that point), but Alabama nominee Edmund LaCour received a “Qualified” rating despite only having around eight years of legal experience.  The ABA argued that Pitlyk had not tried any cases in court, but neither had Ninth Circuit nominee Daniel Bress, who nonetheless received a mixed “Qualified/Well Qualified” rating.  At a time when so few cases proceed to trial, how can trial experience be the primary indicator of judicial competency?

Again, how does one explain that Holly Lou Teeter, who fell a month short of the 12 year guideline, received a “Not Qualified” rating based on her lack of experience, while Taylor McNeel, who had the same level of experience when nominated, received a “Qualified” rating?  Similarly, how does nominee Justin Walker, who was rated “Not Qualified” for a federal trial court seat suddenly get rated “Well Qualified” for an appellate seat, with the only difference being three months on a trial court?

Overall, a consistent thread looking at ABA ratings is that they vary significantly based on the circuit and the evaluator.  One nominee with ten years of legal experience may receive a “Well Qualified” rating, while another may only be rated “Qualified.”  The difference is never explained as the ABA only needs to explain its “Not Qualified” ratings.

The ABA and Female/Minority Judges

While the ABA has largely been criticized from the right, it is the left that arguably has more to lose from its evaluation process.  During the Obama Administration, the ABA’s rejection of the President’s nominees increased 3.5 times from the previous Bush Presidency, with many of the nominees being rejected being women or minorities.  For example, Nevada judicial nominee Gloria Navarro had been nominated after a mixed “Qualified/Not Qualified” rating based on her lack of prior judicial experience.  However, a few years earlier, fellow Nevada nominee Brian Sandoval, who also had no judicial experience, received a “Well Qualified/Qualified” rating.

The ABA’s poor ratings of women and minorities goes back decades, with the ABA kneecapping many female and minority nominees during the Carter Administration.  For example, the ABA strongly opposed Carter’s efforts to name Prof. Joan Krauskopf to the Eighth Circuit, arguing that she lacked judicial experience and was “too liberal.”  President Carter ended up filling the seat with a male judge who was younger than Prof. Krauskopf.  No women would be confirmed to the Eighth Circuit until sixteen years later when Judge Diana Murphy was appointed by President Clinton.

Similarly, the ABA strongly opposed President Richard Nixon when he proposed nominating California judge Mildred Lillie to the Supreme Court.  The Committee voted 11-1 to find Lillie, who had been an appellate judge for 14 years, “Unqualified” for a Supreme Court seat.  In contrast, Nixon’s replacement for Lillie, William Rehnquist, received the ABA’s highest rating despite never having served as a judge at all.

It’s Time to Move On

Given these controversies, it is obvious why the value of an ABA rating has deteriorated.  Where senators agree with the nominee’s philosophy, they tout the rating when it’s good and attack the ABA when it’s not.  When they don’t, the ABA suddenly becomes the “gold standard” for nominees.  There are other issues with ABA ratings that this post doesn’t even touch on, such as allegations that they fail to follow their own processes when evaluating certain nominees.

As a bottom line, there is no doubt that the ABA performs a valuable service in its evaluation of judicial nominations.  However, given the arbitrariness of its ratings, valid allegations that it discriminates against women, minorities, and non-litigators, and serious cracks in its credibility on the Hill, there is no longer much benefit to giving the ABA such a privileged position in the nomination process.  The ABA should instead be encouraged to contribute its evaluations as part of the judicial confirmation process, as dozens of other legal organizations do.  It is time to move on.

Edmund LaCour – Nominee to the U.S. District Court for the Middle District of Alabama

In 2019, when Alabama Solicitor General Andrew Brasher was confirmed to be a federal district court judge, a 34-year-old attorney named Edmund LaCour was tapped to replace him as Solicitor General.  Now, as Brasher has been confirmed to an appellate court, LaCour has been tapped again, this time to fill Brasher’s seat on the U.S. District Court.

Background

Edmund Gerald LaCour Jr. was born in 1985.  LaCour graduated summa cum laude from Birmingham-Southern College, received a Master of Arts from Trinity College Dublin and then a J.D. from Yale Law School.

Upon graduation, LaCour clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.  He then joined the Houston office of Baker Botts as an Associate.  In 2015, LaCour shifted to Bancroft PLLC, a boutique litigation firm dominated by conservatives, in Washington D.C. before moving, along with the bulk of the firm, to Kirkland & Ellis in 2016.

In 2019, LaCour was appointed by Steve Marshall, the Attorney General of Alabama, to be Solicitor General, replacing Andrew Brasher, who was confirmed to a seat on the U.S. District Court for the Middle District of Alabama.  LaCour currently serves in that capacity.

History of the Seat

LaCour has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened when Judge Andrew Brasher, who has already been confirmed by the Senate, took his seat on the Eleventh Circuit on June 30, 2020.  

Legal Experience

While LaCour started his career at Baker Botts working on relatively straightforward criminal and civil matters,[1] he has spent the latter part of his career working on litigation on conservative causes.  For example, at the boutique firm Bancroft PLLC, LaCour represented a Christian organization at NC State in seeking to enjoin a University requirement that they obtain a permit before soliciting students.[2][3]  Judge James Dever ended up enjoining the policy,[4] which prompted NC State to rewrite it.[5]  LaCour also represented Republican organizations seeking to set aside anti pay-to-play rules made by the Securities and Exchange Commission,[6] and sued to strike down registration fees on firearms in California.[7]  On a less controversial front, while at Kirkland, LaCour represented business owner in a landmark litigation seeking to narrowly interpret bankruptcy rulings made by the Supreme Court.[8] 

Since 2019, LaCour has served as Solicitor General of Alabama, in which capacity he has defended Alabama laws and convictions before state and federal courts.  While, at the time of his appointment, LaCour attracted some criticism for alleged ties to Russia,[9] such criticism has not resurfaced.

Among his defenses of Alabama laws, LaCour defended the state ethics laws against challenges that it was too vague,[10] and defended the state’s minimum wage law from a racial discrimination challenge.[11] 

On the flip side, LaCour has also used the Solicitor General’s office offensively, challenging laws and federal regulations.  For example, LaCour led a 21-state brief before the U.S. Supreme Court challenging Maryland gun regulations.[12]  He also led an amicus effort to support Texas’ efforts to limit reproductive health procedures during the Covid-19 pandemic.[13]

Political Activity

LaCour has frequently given to Republican committees and candidates.[14]  Among the recipients of his largesse are Sens. Ted Cruz and Josh Hawley, both of whom serve on the Senate Judiciary Committee, and West Virginia Attorney General Patrick Morrissey, who unsuccessfully ran for U.S. Senate in 2018.[15]

Overall Assessment

While LaCour is only 35 years old, he has racked up many accomplishments in his short career, including a significant amount of litigation experience.  However, much of his litigation has been in service of conservative causes, which will likely make him very controversial as a nominee.  As such, the key barrier for LaCour will be obtaining a blue slip from Democratic Senator Doug Jones.  If LaCour can do so, his nomination will likely be processed this year.  If not, LaCour will have to hope for a Trump re-election.


[1] See, e.g., Rogers v. United States, 561 F. App’x 440 (6th Cir. Mar. 31, 2014).

[2] See Press Release, Alliance Defending Freedom, Student Group Sues NC State for Requiring Permits for Any, All Speech, Apr. 26, 2016.

[3] See also Emery Dalesio, Christian Groups Challenge NC University’s Speech Permits, A.P. State & Local, June 2, 2016.

[4] Grace Christian Life v. Woodson, 2016 U.S. Dist. LEXIS 73376, 5:16-CV-202-D (E.D.N.C. June 4, 2016) (Dever, J.).

[5] See Press Release, Alliance Defending Freedom, NC State Revises Speech Policy After Losing Court Battle With Student Group, July 19, 2016.

[6] See Jack Casey, Why Republican State Committees Say Revised Rule G-37 Is Unconstitutional, Bondbuyer.com, May 18, 2016.  See also Tenn. Republican Party v. SEC, 863 F.3d 507 (6th Cir. 2017).

[7] Bauer v. Becerra, 858 F.3d 1216 (9th Cir. 2017).

[8] See Stephanie Gleason, District Court Affirms Narrowness of Stern v. Marshall, The Deal Pipeline, Sept. 26, 2018.

[9] See, e.g., Legal Schnauzer, Edmund LaCour Jr., Alabama’s New Solicitor General, Has Worked For Two Law Firms With Ties to Russia And Has Represented Gazprom, a Major Russian Energy Firm, Legal Schnauzer, May 22, 2019.

[10] See Kim Chandler, Former Alabama Speaker Asks Court to Overturn Conviction, A.P. State & Local, June 5, 2019.

[11] Press Release, Office of Attorney General Steve Marshall, Alabama A.G. Marshall Announced 11th U.S. Circuit Court of Appeals Victory for State of Alabama in Minimum-Wage Lawsuit, Dec. 13, 2019.

[12] See Steve Lash, ‘Shall Issue’ States Back Supreme Court Challenge to Md. Handgun Law, The Daily Record, Dec. 4, 2019.

[13] Kevin Stawicki, Justices Urged to Wade into Texas’ COVID Abortion Ban Fight, Law360, Apr. 13, 2020, https://www.law360.com/articles/1262858/justices-urged-to-wade-into-texas-covid-abortion-ban-fight.

[15] See id.

Thompson Dietz – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, with three of the nominees withdrawing before confirmation.  The latest nominee is New Jersey lawyer Thompson Dietz.

Background

The 40-year-old Thompson Michael Dietz graduated from Clemson University in 2001 and received a J.D. from Tulane University Law School in 2005.[1] 

After graduating law school, Dietz worked as a Senior Contracts Representative at the aerospace and defense company General Dynamics.[2] In 2011, Dietz joined CohnReznick LLP as Associate Counsel, where he has worked ever since.  

History of the Seat

Dietz has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Dietz was nominated for opened up on July 13, 2018, with the retirement of Judge Victor Wolski.

Legal Experience

Dietz’s specialty is government contracts law.  He started his career at the defense contracting company General Dynamics, where he worked on negotiating and managing government contracts.[3] 

Since 2011, Dietz has worked at CohnReznick LLP, an accounting, tax, and advisory firm, serving as lead counsel in the firm’s government and public sector group.[4]  Dietz also worked on data privacy issues with the law.[5]  Dietz’s career at the firm seems to have focused on regulatory and compliance issues, rather than litigation.

Overall Assessment

Dietz does not have a paper trail of controversial issues, and his government contracts practice is well within the wheelhouse of the Court of Federal Claims.  While he may face questions for having a career focusing on regulatory compliance rather than litigation, Dietz should be able to avoid major issues in confirmation.


[1] Charles Toutant, Trump Nominates New Jersey In-House Lawyer at CohnReznick to Federal Claims Court, Law.com, June 15, 2020, https://www.law.com/njlawjournal/2020/06/15/trump-nominates-new-jersey-in-house-lawyer-at-cohnreznick-to-federal-claims-court/.

[2] Id.

[3] See id.

[4]  See id.

[5] Id.

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.

Taylor McNeel – Nominee to the U.S. District Court for the Southern District of Mississippi

After Judge Cory Wilson’s district court nomination was upgraded to the Court of Appeals, Biloxi attorney Taylor McNeel has been nominated to fill a vacancy on the U.S. District Court for the Southern District of Mississippi.

Background

Taylor Brantley McNeel was born in or around 1983.  After getting a B.B.A. cum laude from the University of Mississippi, McNeel received his J.D. from the University of Mississippi Law School in 2008.  McNeel has spent his entire legal career at the firm of Brunini, Grantham, Grower & Hewes, PLLC in Biloxi Mississippi, where he currently serves as a Member.

History of the Seat

McNeel has been nominated for a vacancy on the U.S. District Court for the Southern District of Mississippi.  This seat opened on March 23, 2018, when Judge Louis Guirola took senior status.  The White House had previously nominated Mississippi Court of Appeals Judge Cory Wilson to this seat, but withdrew Wilson and nominated him for the Fifth Circuit, to which he was confirmed.  McNeel was then nominated on July 2, 2020.

Legal Experience

McNeel has spent his entire legal career at the firm of Brunini, Grantham, Grower & Hewes, PLLC in Biloxi Mississippi, where he currently serves as a Member.  At the firm, McNeel has handled both bench and jury trials in federal and state court, as well as appeals in the Mississippi Supreme Court and the Mississippi Court of Appeals, and the U.S. Court of Appeals for the Fifth Circuit.  For example, McNeel represented golf courses seeking to successfully dismiss an antitrust suit brought against them.  See Gulf Coast Hotel-Motel Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F. Supp. 3d 500 (S.D. Miss. 2011).  

On the state court side, McNeel convinced the Mississippi Court of Appeals to successfully dismiss charges against a casino he represented for allegedly giving food poisoning to patrons.  See McGinty v. Grand Casinos of Miss., Inc. – Biloxi, 245 So. 3d 555 (Miss. App. 2014). An appeal on the issue was later denied by the Supreme Court of Mississippi.  McGinty v. Grand Casinos of Miss., Inc. – Biloxi, 245 So. 3d 444 (Miss. 2018).

Overall Assessment

Despite McNeel’s youth, he has extensive litigation experience practicing before Mississippi’s state and federal courts.  While McNeel’s path to confirmation is complicated by the closing window of judicial confirmations, given the Republican majority, McNeel is favored for confirmation.  

 

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.

Judge James Arguelles – Nominee to the U.S. District Court for the Eastern District of California

The Eastern District of California is one of the most heavily overworked courts in the country.  The Court has not been expanded in decades, even as caseloads explode, and has relied heavily on senior judges to carry the burden.  As such, judges on the court are expected to take senior status immediately upon eligibility to bring in reinforcements.  The court currently has two such vacancies, with commercial lawyer Dirk Paloutzian nominated to one seat, and Sacramento Superior Court Judge James Arguelles nominated for the other.

Background

The 54-year-old Arguelles has a long history with the military, having received his B.Sc. from the United States Naval Academy and a Master of Strategic Studies from the United States Army War College before he received a J.D. in 1996 from Harvard Law School.  He then clerked for Judge Marilyn Huff on the U.S. District Court for the Southern District of California for a year, before joining Gibson, Dunn, & Crutcher as an Associate.[1]

In 2000, Arguelles became a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of California.[2]  In 2005, Arguelles joined Stevens, O’Connell & Jacobs as a Partner.  He held that post until he was appointed by Gov. Arnold Schwarzenegger to be a Superior Court judge in 2010.[3]

History of the Seat

Arguelles has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on February 2, 2020 by Judge Lawrence O’Neill.  Arguelles’s nomination was announced on June 8, 2020, although he was not officially nominated until June 18, 2020.

Legal Experience

Arguelles started his legal career at the firm of Gibson, Dunn, & Crutcher, before spending five years as a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of California.  As a prosecutor, Arguelles worked on a variety of criminal matters, with a focus on white collar and fraud cases.  For example, Arguelles prosecuted Wayne Anderson and Richard Marks for money laundering as part of their firm Anderson Ark & Associates.[4]  Arguelles also prosecuted Sacramento Water District Manager Dewight Kramer on charges of defrauding the U.S. government through, among other activities, destroying county water records.[5]

From 2005 to 2010, Arguelles was a Partner at Stevens, O’Connell & Jacobs.  Among the more notable cases he has handled with the firm, Arguelles represented Whirlpool Corporation in defending against a class action suit alleging excessive heat and damage from the self-cleaning system in Whirlpool Appliances.[6]  Arguelles was able to successfully have the suit dismissed for failure to state a claim.[7]

Jurisprudence

Since 2010, Arguelles has served as a judge on the Sacramento Superior Court.  In this role, he presides over trial court matters in criminal, civil, family, and other state law matters.  In his time on the bench, Arguelles has handled a number of high profile cases.  For example, Arguelles ordered the life sentence of Zavion Johnson set aside after new evidence cast doubt on the testimony from Johnson’s initial trial showing that his baby daughter died from “shaken baby” syndrome.[9] 

More recently, Arguelles oversaw the pretrial release hearing of Raymond John Garcia, who was arrested for “looting” in the aftermath of Black Lives Matter protests in the Sacramento area.[10]  The D.A. opposed Garcia’s release, arguing that Garcia represented a threat as he was on parole from an attempted murder conviction.[11]  However, Arguelles granted the pretrial release, noting the many letters of community support offered for Garcia.[12]

Overall Assessment

As a Republican judge in an increasingly Democratic state, Arguelles’ career advancement largely depends upon federal appointment.  Arguelles’ nomination probably means that California’s Democratic senators have, at least preliminarily, signed off on the nomination.  His path to confirmation depends on his ability to keep their support.


[1] Press Release, Office of Gov. Arnold Schwarzenegger, Gov. Schwarzenegger Appoints James Arguelles to Sacramento County Superior Court, Oct. 18, 2010 (available at Targeted News Service).

[2] Id.

[3] Id.

[4] See Denny Walsh, Two Californians Guilty of Money Laundering, Sacramento Bee, June 1, 2002.

[5] David Richie, Two Former Sacramento, Calif., Water Officials Face Fraud, Tax Charges, Sacramento Bee, Oct. 10, 2003.

[6] See Saaremets v. Whirlpool Corp., 2010 U.S. Dist. LEXIS 261 (E.D. Cal. Mar. 18, 2010).

[7] See id. at *26.

[8] See id.

[9] See Don Thompson, California Shaken Baby Conviction Set Aside After 15 Years, A.P., Dec. 8, 2017.

[10] See Anna Okada, Alleged Looter During Sacramento Police Brutality Protests Wins Pretrial Release After Outpouring of Community Support, Davis Vanguard, June 15, 2020, https://www.davisvanguard.org/2020/06/alleged-looter-during-sacramento-police-brutality-protests-wins-pretrial-release-after-outpouring-of-community-support/.  

[11] See id.

[12] See id.

Brenda Saiz – Nominee to the U.S. District Court for the District of New Mexico

Transportation attorney Brenda Saiz, who has spent virtually her entire life as a noncontroversial, apolitical litigator, has been nominated to join the federal bench in New Mexico.

Background

Brenda Saiz spent her educational years in New Mexico, getting a B.A. in English from the University of New Mexico in 1993 and a J.D. from the University of New Mexico Law School in 2003.[1]

Saiz has spent virtually her entire legal career at the firm of Rodey, Dickason, Sloan, Akin, & Robb, P.A., where she currently works as a Director.

History of the Seat

Saiz has been nominated for a seat on the U.S. District Court for the District of New Mexico.  This seat opened on July 1, 2019, when Judge Judith Herrera moved to senior status.  

Legal Career

Saiz has primarily spent her career as a transportation law attorney.[2]  Among her most notable cases, Saiz represented FedEx transport in a wrongful death suit brought as a result of a catastrophic accident in which a FedEx tractor-trailer struck the plaintiff’s vehicle.[3]  A jury awarded $165 million to the plaintiffs after a trial, and the verdict was upheld by the New Mexico Court of Appeals.[4] 

Saiz has also handled some non-transportation related matters.  For example, Saiz represented attorney Dennis Montoya, who was suspended from legal practice for one year by the New Mexico Supreme Court for repeated violations of the Rules of Professional Responsibility.[5]

Public Statements

Saiz has relatively few public statements that she has made on the law.  As a law student, Saiz authored an article discussing the New Mexico Court of Appeals case in Wallis v. Smith, which held that unintentionally fathering a child due to a misrepresentation regarding use of birth control is not actionable under the law.[6]  In the article, Saiz noted that many courts refused to create tort actions from the use or lack thereof of birth control because such actions would infringe upon the right to privacy recognized in the U.S. Constitution.[7]  Saiz endorsed the decision noting that it was supported by the “overriding interests of the child and the right to privacy.”[8]

Overall Assessment

As a relatively apolitical candidate for the bench, Saiz can be considered a fairly mainstream nominee.  Saiz has been relatively reticent in their legal career, and her few public statements, indicating support for the right of privacy in the Constitution, are unlikely to be sources of liberal opposition.  As such, assuming Republicans don’t oppose her, Saiz’s biggest obstacle to confirmation is the calendar rather than anything in her background


[1] Brenda M. Saiz, Rodey Law, https://www.rodey.com/attorney-profile.aspx?rlaid=9dfd465b-cd89-49f3-8767-33c0044443c6 (last visited Aug. 5, 2020).

[2] John Kingston, New Mexico Trucking Attorney Nominated for Seat on Federal Bench, Freight Waves, May 29, 2020, https://www.freightwaves.com/news/new-mexico-trucking-attorney-nominated-for-seat-on-federal-bench.

[3] Morga v. FedEx Ground Package Sys., 420 P.3d 586, 590 (N.M. App. 2018).

[4] Id. at 596.

[5] See In re Montoya, 150 N.M. 731 (2011).

[6] Brenda Saiz, Tort Liability When Fraudulent Misrepresentation Regarding Birth Control Results in the Birth of a Healthy Child – Wallis v. Smith, 32 N.M. L. Rev. 549 (Summer 2002).

[7] See id. at 557.

[8] Id. at 565.

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.

 

Fred Federici – Nominee to the U.S. District Court for the District of New Mexico

The federal courts along the U.S.-Mexico border are among the most overworked in the country.  This Las Cruces-based judgeship in the U.S. District Court for the District of New Mexico has been vacant since 2018, after an attempt to fill it in 2019 failed.  Now, the White House is trying again with apolitical attorney Fred Federici.

Background

Fred Joseph Federici III was born in Raleigh, North Carolina in 1965.  Federici attended the College of William and Mary,, graduating in 1988.[1]  He moved immediately to the University of Virginia School of Law, getting his J.D. in 1991.

After graduation, Federici spent four year with the Washington D.C. office of Venable, Baetjer, Howard & Civiletti.  In 1995, Federici became a federal prosecutor in New Mexico, where he has served since.[2]  He has served as First Assistant (the second in command role) in the office since 2018.  

In 2010, Federici was one of 11 candidates interviewed by New Mexico’s Democratic Senators for consideration to be U.S. Attorney for the District of New Mexico in the Obama Administration.[3]  However, Federici’s colleague Kenneth Gonzalez was nominated for the position instead.  Gonzalez later went on to become a federal district judge for the District of New Mexico.

In 2017, Federici was recommended by Udall and Heinrich to be U.S. Attorney for the District of New Mexico, but John C. Anderson was nominated instead.

History of the Seat

Federici has been nominated for a seat on the U.S. District Court for the District of New Mexico.  This seat opened on July 25, 2018, when Judge Robert Brack moved to senior status.  In May 2018, New Mexico’s Democratic Senators sent four candidates for the vacancy to the White House.[4]  In June 2019, the White House nominated Judge Kevin Sweazea, a U.S. Magistrate Judge in the District of New Mexico, to fill the vacancy.  However, by November, the Senators had withdrawn their support for Judge Sweazea’s candidacy, and he withdrew his name from consideration.[5]

In June 2019, Federici reached out to New Mexico Senators Tom Udall and Martin Heinrich to express his interest in a federal judgeship.[6]  In April 2020, Udall and Heinrich jointly recommended Federici’s name to the White House for the judgeship.[7]  Federici interviewed with the White House on April 8 2020 and was selected as a nominee on April 23, 2020.[8]  Federici was nominated on June 18, 2020.

Legal Career

Federici started his legal career as an Associate at Venable, Baetjer, Howard & Civiletti, where he practiced civil litigation.  However, the vast majority of his career has been as a federal prosecutor.  At the U.S. Attorney’s Office for the District of New Mexico, Federici worked on a variety of criminal cases, including drug, white collar, and national security cases.[9]  Over his career, Federici has tried twelve cases before a jury.

In his most notable prosecution, Federici led the case against Los Alamos scientist Pedro Mascheroni, who had offered to build nuclear bombs for Venezuela.[10]  Mascheroni ended up pleading guilty to passing classified information to a federal agent posing as a Venezuelan official.[11] 

In another notable cases, Federici prosecuted Jamie Estrada, the former campaign manager of New Mexico Governor Susana Martinez, for hacking into and stealing the Governor’s emails.[12]  Estrada received a nine-month sentence for the offense.[13] 

Overall Assessment

Strongly considered for nomination under both the Obama and Trump Administrations, Federici appears to be a fairly mainstream choice for the bench. However, as we are already in August of an election year, it remains unclear whether the Senate will process Federici’s nomination in the time it has left.


[1] Sen. Comm. on the Judiciary, 116th Cong., Fred J. Federici: Questionnaire for Judicial Nominees 1.

[2] See SANTA FE, Governor Appoints Federici to Seventh District, Associated Press State & Local Wire, Feb. 23, 2001.

[3] See Joe Monahan, NM Senators Refuse to Release Names of US Attorney Candidates, New Mexico Politics with Joe Monahan, Jan. 21, 2010, http://joemonahansnewmexico.blogspot.com/2010/01/nm-senators-refuse-to-release-names-of.html.  

[4] See Press Release, Office of Sen. Tom Udall, Udall, Heinrich, Pearce Recommend Candidates to Fill Two Vacancies on U.S. District Court (May 2, 2018).

[5] See Mike Gallagher, Judge Kevin Sweazea Withdraws Name From Consideration for Federal Job in Las Cruces, Las Cruces Sun News, Nov. 1, 2019, https://www.lcsun-news.com/story/news/local/new-mexico/2019/11/01/judge-kevin-sweazea-withdraws-name-consideration-federal-job/2496662001/.  

[6] See Federici, supra n. 1 at 20.

[7] See id.

[8] Id. at 20-21.

[9] See id. at 10.

[10] See Russell Contreras, Tape: Scientist Offers to Build Nuke Bomb Targeting New York, A.P. State & Local, Jan. 29, 2015.

[11] United States v. Mascheroni, et al., 612 F. App’x 504 (10th Cir. June 1, 2015).

[12] Rob Nikolewski, Miffed Aide Who Hacked into NM Governor’s Emails Gets 9-Month Sentence, New Mexico Watchdog, Oct. 9, 2014.

[13] See id.