What Can We Expect From the Early Batches of Biden Judges

Last week, we discussed the timing of judicial nominations from the new Administration, specifically, that they were unlikely to hit the Senate until March at the earliest.  Today, we’ll discuss who we can expect to see in that first batch.  As we discussed, district court nominees generally arise from home state senator recommendations, which, in many states, have yet to be submitted.  As such, it is likely that appellate nominees will come at a faster pace than district court nominees.  The Biden Administration came into office with two unfilled appellate vacancies.  Since then, an additional four vacancies have been announced.  As such, we could expect to see nominees for one to six appellate seats as part of the first batch.  Here’s who might be included:

D.C. Circuit – seat to be vacated by Judge Merrick Garland

Yes, technically there is no vacancy on the D.C. Circuit at the moment.  However, the consensus in Washington is that Judge Merrick Garland will be confirmed by the U.S. Attorney General in February, and, will (although he doesn’t have to) vacate his seat upon confirmation.  It’s also assumed that the expected nominee for this seat will be Judge Ketanji Brown Jackson.  The former Supreme Court clerk and public defender was confirmed unanimously to the U.S. District Court for the District of Columbia in 2013 and is a shortlister for a Supreme Court vacancy.  Given her profile, it would not have been surprising for the Administration to have been vetting her to replace Garland alongside Garland’s own vetting for Attorney General.  As such, barring something unexpected in the vetting process (or the judge declining to be considered), Judge Jackson’s nomination to the D.C. Circuit will likely be in the first batch of judicial nominees announced.

First Circuit – Puerto Rico seat

The lone judge from Puerto Rico on the First Circuit, Judge Juan Torruella, passed away on October 26, 2020.  The Trump Administration nominated U.S. District Judge Raul Arias-Marxuach for the vacancy in November, and, while Judge Arias-Marxuach was given a hearing, his nomination was never confirmed before the end of the Trump Administration.  While Senator Lindsey Graham has suggested that the Biden Administration renominate Judge Arias-Marxuach, it’s more likely that the Administration will choose their own candidate.  A strong contender would be the 40-year-old Margarita Mercado Echegeray, the former Solicitor General of Puerto Rico, and a former clerk to Torruella on the First Circuit.  Echegeray would not only be the first Hispanic woman on the First Circuit, but would be young enough to be a strong future Supreme Court contender.  The Administration may also strongly consider Chief Justice Maite Oronoz Rodriguez of the Puerto Rico Supreme Court, who would be the first openly gay judge on the First Circuit if confirmed.

Second Circuit – New York seats

Judge Robert Katzmann’s move to senior status on January 21, 2021, opened up a prized vacancy on the Second Circuit.  Judge Denny Chin’s move on June 1, 2021 will open a second.  Democrats have an embarrassment of riches when it comes to New York based appellate candidates, but, given the influence of Senate Majority Leader Chuck Schumer in the appointment, four candidates are likely be strongly considered:

  1. Judge Alison Nathan – The 48-year-old jurist was the youngest judge in the country when she was narrowly confirmed to the Southern District of New York in 2011.  Today, the former clerk to Justice John Paul Stevens would be, if confirmed, the first openly gay jurist on the Second Circuit.
  2. Judge J. Paul Oetken – The 55-year-old Oetken is, like Nathan, a judge on the Southern District of New York confirmed in 2011, and was, at the time of his confirmation, the first openly gay male judge confirmed to the federal bench.  Oetken also came to the bench with glowing credentials, including a clerkship with Justice Harry Blackmun.
  3. Judge Jesse Furman – The 48-year-old Furman joins Oetken and Nathan as a trio of young, credentialed attorneys recommended by Schumer to the Southern District in 2011.  Furman is also a Supreme Court clerk (Justice David Souter) and has the distinction of presiding over the challenges to the Census Citizenship question, where his injunction against the question was upheld by the U.S. Supreme Court.
  4. Caitlin Halligan – The 54-year-old Halligan was also, at Schumer’s recommendation, nominated to the federal bench by President Obama in 2010.  However, unlike the other nominees noted above, the former New York Solicitor General and clerk to Justice Stephen Breyer was filibustered by Republicans, and her nomination to the D.C. Circuit was never confirmed.  Now, with the judicial filibuster gone, Halligan has a second chance at an appellate seat.

Of course, all four candidates above have relatively conventional resumes for appellate nominees, and liberals may seek more dynamic candidates.  Two options are NYU Law Professor Melissa Murray, who testified against Justice Brett Kavanaugh’s nomination in 2018, and Director of the ACLU’s Voting Rights Project Dale Ho.  Both would attract strong Republican opposition, but have more unconventional backgrounds that might motivate liberals.  Furthermore, both in their early 40s, Ho and Murray could add a decade of judicial tenure over the previously mentioned candidates.

One wrinkle is that it isn’t perfectly clear if Katzmann’s seat should go to a New York nominee.  When the Second Circuit was enlarged to 13 seats in 1984, both new seats were filled by President Reagan with New York judges, assigning 9 judges to New York, 3 to Connecticut, and one to Vermont.  This ratio held until 1993, when Judge Thomas Meskill (from Connecticut) moved to senior status.  At the time, Hispanic groups were advocating for Connecticut District Judge Jose Cabranes to be nominated for the U.S. Supreme Court.  With Cabranes’ record on the bench being fairly conservative, Connecticut Senators instead pushed for Cabranes to replace Meskill on the Second Circuit.  However, President Clinton already had a candidate for the vacancy, his old law professor Guido Calabresi.  Seeking a compromise, and with the consent of New York Senator Daniel Moynihan, Clinton instead nominated Cabranes to replace Judge Richard Cardamone, filling a New York seat on the court, and shifting the ratio of judges on the Second Circuit.

In 1997, the Connecticut-based Jon Newman moved to senior status.  In seeking to replace Newman, the Clinton Administration vetted Connecticut Attorney General Richard Blumenthal, before the latter withdrew from consideration in favor of running for re-election.  Clinton then chose Robert Katzmann, a professor at Georgetown Law in Washington D.C.  After being confirmed, Katzmann set up his chambers in New York, restoring the 9-3 split that was disrupted by Cabranes’ confirmation.

However, the turf battle between the two states didn’t end there.  In 2000, Connecticut-based Judge Ralph Winter moved to senior status, and the Clinton Administration again prepped Blumenthal to fill the vacancy.  However, Clinton never made the nomination official, and the seat remained empty when the Bush Administration came to office.  President Bush, upon Schumer’s recommendation, chose a New York-based federal judge, Barrington Daniels Parker, to fill the vacancy.  Parker’s confirmation reduced Connecticut to just 2 seats on the Second Circuit.

Parker took senior status in 2009, and President Obama then restored the seat to Connecticut, appointing Yale General Counsel Susan Carney.  That restored the 9-3 ratio which holds to this day.

Now, with Katzmann’s move to senior status, it remains to be seen if Blumenthal, now a U.S. Senator from Connecticut, will push for the seat to be restored to Connecticut as the Carney seat was.  If he’s successful in that push, Connecticut Supreme Court Justice Raheem Mullins would be an attractive pick (despite a decade on the bench, Mullins is only 42).

Regardless of who the White House picks, however, the Administration is likely to move relatively quickly on a nominee, and it wouldn’t be surprising to see a Second Circuit nominee among the first batch.

Seventh Circuit – Illinois seat

This Illinois seat on the Seventh Circuit opened on November 30, 2020, when Judge Joel Flaum moved to senior status.  Similar to New York, Democrats have many options when it comes to qualified appellate nominees in Illinois.  However, two judges on the Northern District of Illinois are likely to be strongly considered:

  1. Judge Gary Feinerman – The 55-year-old judge comes from an illustrious background.  He clerked for Justice Anthony Kennedy on the U.S. Supreme Court, and two of his co-clerks, Justices Neil Gorsuch and Brett Kavanaugh, now sit on the U.S. Supreme Court.  Feinerman, for his part, served as Illinois Solicitor General and a Partner at Sidley Austin before being appointed to the federal bench in 2010.
  2. Judge Andrea Wood – The 47-year-old Wood has served on the federal bench since 2013, when, at age 40, she was the youngest federal judge in the country.  As President Biden seeks to diversify candidates for the Supreme Court, Judge Wood would be a prime candidate to elevate.

Tenth Circuit – Colorado Seat

Judge Carlos Lucero’s move to senior status off of the Tenth Circuit was only made official today, and was announced just three days ago.  As such, it is unlikely that the White House would have a nominee ready for Lucero’s seat by March.  However, two Colorado Supreme Court Justices would make intriguing selections:

Justice Monica Marquez would be, if confirmed, the first openly gay judge on the Tenth Circuit.  The 51-year-old jurist has served on the Colorado Supreme Court since 2010 and has charted a relatively liberal path on the court.

Similarly the 50-year-old Justice Melissa Hart is also impeccably qualified, having clerked on the U.S. Supreme Court for Justice John Paul Stevens, and having replaced another SCOTUS clerk who was tapped for the Tenth Circuit, Judge Allison Eid, on the Colorado Supreme Court.

District Court

In addition to the above-mentioned appellate seats, the first batch of White House nominees is likely to include some nominees for vacancies in California, New York, Nevada, and Washington, likely renominating acceptable picks from the Obama and Trump Administrations.  The White House may specifically consider the following:

  • California
    • U.S. Magistrate Judge Steve Kim
    • San Diego Criminal Defense Attorney Knut Johnson
    • Jones Day Partner Shireen Matthews
  • Colorado
    • Wilmer Hale Partner Regina Rodriguez
  • District of Columbia (assuming Jackson is elevated, opening up her seat on the district court)
    • Latham & Watkins Partner Abid Qureshi, who would be, if confirmed the first Muslim Article III judge.
  • Nevada
    • University of Nevada-Las Vegas Professor Anne Rachel Traum
  • New York
    • Dechert Partner Hector Gonzalez
    • Gibson Dunn Partner Jennifer Rearden
  • Washington
    • King County Superior Court Judge Beth Andrus
    • King County Superior Court Judge J. Michael Diaz
    • AUSA Tessa Gorman
    • Perkins Coie Partner Kathleen O’Sullivan

The Timing of Judicial Nominations – When Can We Expect the First

We’re a week into the Biden Administration, and, so far, things are off to a slow start, at least on the confirmation front.  Unlike the relatively swift pace of confirmations that kicked off the Bush and Obama Administrations, the Senate has, thus far, confirmed just four nominations, matching the pace set under President Trump.  What has moved fast, in contrast, is the pace of judicial vacancies, as a total of 17 federal judges (1 circuit; 16 district) have either moved to senior status or announced their departures in the past week.  With the number of judicial vacancies growing rapidly, it’s worth asking when the White House will start nominating judges.

The process before a nominee is sent to the senate is fairly extensive.  For district court judges, it typically starts with a recommendation made by a home-state senator or representative.  Some senators will solicit applications through a public process, while others recommend based on references or pre-existing relationships.  The Biden Administration has instructed Democratic Senators to submit recommendations for existing vacancies by January 19.  While not many senators have met that deadline, it’s safe to say the White House has at least a few names to begin considering.

After the recommendation, the nominee is submitted to the Department of Justice for vetting, where the Office of Legal Policy reviews the nominee’s background, character, and experience.  This process can be lengthier or shorter depending on the nominee, but will typically take at least a few weeks.  Simultaneous to this process, the nominee will also undergo review by the Federal Bureau of Investigation.

If multiple candidates for a vacancy go through the vetting process, the White House must select who will be the primary candidate.  Assuming that no issues have arisen during the vetting process, the nominee can then be formally announced and submitted to the Senate.

One wrinkle is that most Administrations (barring only the second Bush and the Trump Administrations) would submit their nominees to the ABA for evaluation before sending the nominee to the Senate.  The Biden Administration, to my knowledge, has not made any announcement as to whether they will participate in the ABA pre-nomination vetting process.  If they do so, the ABA process can further delay a nomination being sent to the Senate.  Even if they don’t, the process is still likely to take a couple of months, at the fastest.

In other words, assuming senators have complied with the White House’s request and have submitted their recommendations by January 19, we can expect nominees coming out in March and April.

While this may seem like a long time, March is actually relatively fast for Presidents to nominate their first judges.  President Carter nominated his first district court judge on March 29th of his first year, and his first appellate nominee on August 16.  President Reagan’s first nominees hit the Senate on July 1st of his first year, and, while President George H.W. Bush renominated a few of his predecessor’s picks in February, he did not make his own nominations until August 4.  Similarly, President Clinton’s first lower court nominations were made on August 6 of his first year.  President George W. Bush got out his first nominees in May, while President Trump got his first appellate nominee, Judge Amul Thapar, to the Senate on March 21, 2017.  Surprisingly, despite criticism for the slowness of his nomination pace, President Obama got his first nominee to the Senate the fastest in modern history, nominating Judge David Hamilton to the Seventh Circuit on March 17, 2009.

Nonetheless, it’s possible that President Biden’s appellate nominees may be announced sooner, as the vetting process on them may have begun before January 19.  As such, depending on the vetting process, we may well see some nominees to the appellate seats as early as mid to late February.

To Renominate or Not to Renominate: A Question For Any Incoming President

At the end of 2020, as the 116th Congress came to an end, it sent back around thirty judicial nominations unconfirmed to President Trump.  Now, as the Biden Administration prepares to take office, it faces a critical question: how many of them, if any, should they renominate to the federal bench.

This is a question facing every incoming Administration, as the old one almost inevitably leaves some judicial nominees unconfirmed.  While putting forward nominees from the prior administration can help with judicial dealmaking and efficiency, it also risks upsetting the President’s base.  So far, no Administration has chosen to renominate all of their predecessor’s pending judges, instead making that determination on an ad hoc basis.

Johnson to Nixon

At the end of the Johnson Administration, for example, two Supreme Court nominees (Abe Fortas to be Chief Justice; and Homer Thornberry to be Associate Justice); one circuit court nominee (Barefoot Sanders for the D.C. Circuit); and three district court nominees (David Bress to District Court for the District of Columbia; Cecil Poole to the Northern District of California; William Byrne to the Central District of California) were left unconfirmed.  President Nixon chose not to renominate any of the Johnson holdovers at the outset of his Administration, instead picking the following:

  • Judge Warren Burger to be Chief Justice of the Supreme Court
  • George MacKinnon to the D.C. Circuit
  • Barrington Daniels Parker to the District Court for D.C.
  • Judge Gerald Levin to the Northern District of California
  • Judge David Williams to the Central District of California

However, in 1971, Nixon did choose to nominate Byrne to a different seat on the Central District of California, where he served until his death in 2006.

Ford to Carter

For his part, after the resignation of Nixon, President Ford largely maintained the same nominees.  However, after his own loss in 1976, Ford had two appellate nominees and eight district court nominees pending before the U.S. Senate.  President Carter chose not to renominate any of the ten.  However, he did later nominate Richard Bilby, who Ford had unsuccessfully put up for a Ninth Circuit seat, for the District of Arizona, where he served until his death in 1998.

Carter to Reagan

At the end of the Carter Administration, the Senate left four appellate nominees and twelve district court nominees pending.  On January 1, 1981, Carter appointed one of the pending nominees, Judge Walter Heen, to the District of Hawaii using a recess appointment.  For his part, President Reagan declined to renominate Heen, letting his appointment expire at the end of the year.  He did, however, renominate two other judges:

  • I. Leo Glasser for the Eastern District of New York
  • John Sprizzo for the Southern District of New York

Reagan to Bush

Perhaps because it was a transition between two Presidents of the same party, President George H.W. Bush was more open to renominating his predecessor’s nominees.  At the end of his term, President Reagan left seven appellate nominees pending:

  • Judith Richards Hope for the D.C. Circuit
  • Stuart Summit for the Second Circuit
  • Jacques Wiener for the Fifth Circuit
  • Ferdinand Francis Fernandez for the Ninth Circuit
  • Pamela Rymer for the Ninth Circuit
  • Guy Hurlbutt for the Ninth Circuit
  • Susan Leibeler for the Federal Circuit

Bush chose to renominate three of the seven (Wiener; Fernandez; and Rymer), who were all confirmed.  To fill the other seats, Bush chose Clarence Thomas, John Walker, Thomas Nelson, and Jay Plager respectively.

Reagan also left ten district court nominees pending:

  • Howard Levitt for the Eastern District of New York
  • James McGregor for the Western District of Pennsylvania
  • Adriane Dudley for the Virgin Islands
  • Marvin Garbis for the District of Maryland
  • Shannon Mason for the Eastern District of Virginia
  • Melinda Harmon for the Southern District of Texas
  • Robert Bonner for the Central District of California
  • Vaughn Walker for the Northern District of California
  • William Erickson for the District of Colorado
  • Donald Abram for the District of Colorado

Of those ten, Bush chose to renominate five (Garbis; Dudley; Harmon; Bonner; Walker).  All of them except for Dudley were confirmed.   For the other seats, Bush nominated the following:

  • Carol Amon for the Eastern District of New York
  • Donald Lee for the Western District of Pennsylvania
  • Rebecca Beach Smith for the Eastern District of Virginia
  • Daniel Sparr for the District of Colorado
  • Edward Nottingham for the District o Colorado

Bush also chose to renominate McGregor to a different seat on the Western District of Pennsylvania in 1990, where he was ultimately blocked by conservative opposition.

Bush to Clinton

At the conclusion of the Bush Administration, ten appellate nominees and forty two district court nominees were left unconfirmed, a significantly higher number than previous Administrations.  Of these fifty two nominees, President Clinton renominated none of the appellate nominees and just two of the district court nominees.

  • David Trager for the Eastern District of New York
  • Joanna Seybert for the Eastern District of New York

However, later in the Administration, Clinton nominated an additional two nominees from the leftover list to different seats.

  • George O’Toole for the District of Massachusetts
  • Richard Casey for the Southern District of New York

Of the remaining forty eight nominees not renominated under Clinton, thirteen were renominated for federal judgeships by President George W. Bush.

  • John Roberts for the D.C. Circuit (subsequently elevated to the Supreme Court)
  • Franklin Van Antwerpen for the Third Circuit
  • Jay Waldman for the Third Circuit (passed away before the Senate could act on the nomination)
  • Terrence Boyle for the Fourth Circuit (never confirmed)
  • Carlos Bea for the Ninth Circuit (Bea had been unsuccessfully nominated to the Northern District of California by H.W. Bush)
  • William Quarles for the District of Maryland
  • Leonard Davis for the Eastern District of Texas
  • Andrew Hanen for the Southern District of Texas
  • Percy Anderson for the Central District of California
  • John Walter for the Central District of California
  • Larry Hicks for the District of Nevada
  • Ronald Leighton for the Western District of Washington
  • James Payne for the Northern District of Oklahoma (jointly with the Eastern and Western Districts)

Clinton to Bush

Similar to George H.W. Bush before him, President Clinton faced an opposition Senate through his final term, and thus, a number of his appellate and district court nominees were left unconfirmed at the end of his term.  Specifically, the Senate did not process seventeen appellate nominees and twenty four district court nominees before the end of the 106th Congress.  In response, President Clinton appointed one of his appellate nominees, Roger Gregory to the Fourth Circuit in a recess appointment.

For his part, George W. Bush renominated three of Clinton’s appointments.  Specifically, Bush renominated:

  • Judge Roger Gregory for the Fourth Circuit
  • Judge Legrome Davis for the Eastern District of Pennsylvania
  • Judge David Cercone for the Western District of Pennsylvania

Additionally, later in his tenure, President Bush renominated an additional two stalled Clinton appellate nominees as part of an agreement with Democrats:

  • Judge Helene White for the Sixth Circuit
  • Judge Christine Arguello for the Tenth Circuit (nominated to the District of Colorado)

Bush to Obama

At the end of the Bush Administration, the Senate left ten appellate and twenty district court nominees unconfirmed.  Of the thirty pending nominees, President Obama renominated just one: Marco Hernandez for the District of Oregon.

However, later in his Administration, Obama nominated another two of the stalled Bush nominees to the federal bench:

  • Judge John Tharp for the Northern District of Illinois
  • William Jung for the Middle District of Florida (never confirmed)

Incidentally, Obama also renominated three stalled Clinton appointees:

  • Judge Andre Davis for the Fourth Circuit
  • Judge James Wynn for the Fourth Circuit
  • Judge Dolly Gee for the Central District of California

Obama to Trump

Due to a dramatic slowdown of confirmations in the last two years of his Presidency, President Obama saw 59 judicial nominees left pending before the Senate, more than any other President in recent history.  This list included one nominee to the U.S. Supreme Court, seven to the courts of appeal, and forty four nominees to the district courts.

Over the course of his term, President Trump renominated sixteen of these nominees, more than any other president in the last fifty years.  Specifically, he renominated:

  • Judge Mary McElroy for the District of Rhode Island
  • Judge Gary Brown for the Eastern District of New York
  • Diane Gujarati for the Eastern District of New York
  • Judge John Milton Younge for the Eastern District of Pennsylvania
  • Judge Susan Paradise Baxter for the Western District of Pennsylvania
  • Judge Marilyn Horan for the Western District of Pennsylvania
  • Judge Robert Colville for the Western District of Pennsylvania
  • Judge Stephanie Gallagher for the District of Maryland
  • Donald Coggins for the District of South Carolina
  • Karen Gren Scholer for the Northern District of Texas (previously nominated to the Eastern District)
  • James Hendrix for the Northern District of Texas
  • Walter Counts for the Western District of Texas
  • David Nye for the District of Idaho
  • Kathleen O’Sullivan for the Western District of Washington (announced but withdrawn before confirmation)
  • Scott Palk for the Western District of Oklahoma
  • William Jung for the Middle District of Florida

Trump also renominated four nominees who stalled under President Bush (not including Jung who is accounted for above).

  • Thomas Marcelle for the Northern District of New York (never confirmed)
  • Colm Connolly for the District of Delaware
  • Thomas Farr for the Eastern District of North Carolina (never confirmed)
  • David Novak for the Eastern District of Virginia

Trump to Biden

President Trump leaves office with twenty six unconfirmed judicial nominees, including one appellate nominee (Judge Raul Arias-Marxuach to the First Circuit); and 21 district court nominees.  These nominees are largely focused on two states: New York, which has six pending nominees; and California, which has ten.  Outside those two states, the remaining five unconfirmed district court picks are:

  • Judge Barbara Jongbloed for the District of Connecticut
  • Jennifer Togliatti for the District of Nevada
  • Fred Federici for the District of New Mexico
  • Brenda Saiz for the District of New Mexico
  • Edmund LaCour for the Middle District of Alabama

Of those five, three: Federici, Saiz, and LaCour, were blocked by Democratic home state senators, and, as such, would be unlikely to be renominated in a Biden Administration.  Jongbloed is a Democrat chosen by Senators Blumenthal and Murphy who cleared the Judiciary Committee unanimously before stalling on the floor.  However, she’s also 61 years old and relatively middle-of-the-road.  Without a Republican Administration, it is more likely that the Senators push for a younger candidate rather than seeking to renominate Jongbloed.  This leaves Togliatti as the most likely contender in this group for renomination.

In addition, the New York and California groups are packages that include a number of Democrats, who could all potentially be renominated.  This includes:

  • Jennifer Rearden for the Southern District of New York
  • Hector Gonzalez for the Eastern District of New York
  • Judge Steve Kim for the Central District of California
  • Judge Sandy Leal for the Central District of California
  • Knut Johnson for the Southern District of California
  • Shireen Matthews for the Southern District of California

In addition, Biden may look to the thirty five Obama nominees who were not renominated by Trump.  Of those, many are likely too old to be considered for nomination today, but the following could be considered for current vacancies:

  • Inga Bernstein for the District of Massachusetts (Bernstein turns 60 this year so she may be passed over for a younger candidate)
  • Julien Neals for the District of New Jersey (will almost certainly be renominated)
  • Anne Traum for the District of Nevada (will likely be renominated)
  • Beth Andrus, Kathleen O’Sullivan, and J. Michael Diaz for the Western District of Washington (will likely be renominated)
  • Regina Rodriguez for the District of Colorado

Additionally, the following could be considered for renomination if vacancies open:

  • Rebecca Ross Haywood for the Third Circuit
  • Judge Lucy Koh for the Ninth Circuit or the Federal Circuit
  • Stephanie Finley for the Western District of Louisiana
  • Judge E. Scott Frost for the Northern District of Texas
  • Judge Irma Ramirez for the Northern District of Texas
  • Edward Stanton for the Western District of Tennessee
  • Clare Connors for the District of Hawaii
  • Judge Suzanne Mitchell for the Western District of Oklahoma
  • Judge Patricia Barksdale for the Middle District of Florida
  • Judge Philip Lammens for the Northern or the Middle Districts of Florida

As a bottom line, every President since Nixon has renominated at least one of their predecessor’s failed nominees for the federal bench.  As such, it would not be surprising to see at least a few unconfirmed nominees from the past two Administrations put forward again by President Biden.

Senior Status Upon Confirmation: The Way of the Future?

A century ago, Congress, responding to a changing legal landscape, fundamentally altered the operation of the federal judiciary by implementing “senior status,” allowing judges to continue working on a reduced caseload instead of retiring.  Since then, judges have used senior status extensively.  However, over the last thirty years or so, moves to senior status have become increasingly strategic, with judges timing their moves to allow like-minded successors to be confirmed.  This has culminated, in the last four years, with the widespread use of a formerly rare maneuver, taking senior status upon confirmation of your successor.  With a new Administration approaching, it is worth looking at the history of senior status, strategic retirements, and the likelihood that “senior status upon confirmation” will likely be the new normal.

What is Senior Status

Before 1919, federal judges were permitted to retire at age seventy, as long as they had at least ten years of service, after which they would maintain a pension for the rest of their life.  However, under the new system created by Congress, judges could, instead of retiring, move to senior status, which allowed them to continue to work and hear cases, but nonetheless open up a vacancy for the President to fill. 

On October 6, 1919, Judge John Wesley Warrington on the U.S. Court of Appeals for the Sixth Circuit became the first judge in U.S. history to take senior status, a position he maintained until his death on May 26, 1921.   In the century after Judge Warrington’s move, senior status has become the norm for federal judges, and it’s easy to see why.  A judge’s move to senior status essentially adds a judge to a court, as a new judge can now be appointed while the old still hears cases.  Senior judges have proven to be a boon for the federal judiciary, continuing to hear and move cases along even as caseloads expand and proposals for new judgeships stagnate.  Senior status also carries benefits for the judge themselves.  Unlike judges who retire from the bench, senior judges continue to be eligible for cost-of-living increases.  Additionally, they retain significantly more flexibility over their dockets, allowing them to travel and to focus on cases that are more interesting to them.    

Eligibility for Senior Status

At the time that the senior status system was created, a judge became eligible for senior status after ten years of service, if he or she was over the age of seventy.  In 1954, this requirement was revised to the “Rule of 80.”  Under this rule, any judge over the age of sixty five becomes eligible for senior status once their age + their tenure equals or exceeds 80.  In other words, a judge appointed at 50 (or younger) becomes eligible for senior status at age 65.  Similarly, a judge appointed at 55 becomes eligible at age 67.5 (when 67.5 + 12.5 years of service = 80).  However, there is a requirement of ten years of service on the federal bench for a judge to become eligible for senior status.  As such, a judge appointed at age 64 wouldn’t become eligible at age 72 but rather at 74, once the ten year minimum is satisfied.  Like every rule, there are exceptions, and judges can take senior status early if justified by health concerns or because of a certified disability.  

Strategic Retirements and Senior Status Upon Confirmation

Given the caseload benefits of adding an extra judge, many jurisdictions have an informal policy that judges will take senior status immediately upon eligibility.  (In 2013, Judge Richard Kopf of the District of Nebraska confirmed that his district had such a policy.)  However, many other judges, particularly appellate judges, do tend to be more “strategic” with their moves to senior status, timing their moves to allow like-minded successors. 

Of course, such strategic considerations are not a recent development.  Justice Thurgood Marshall famously resisted retirement through the 1980s, waiting for a Democratic Administration that came too late to replace him.  However, strategic retirements have grown increasingly more common in the last decade with the use of a formerly-rare tool, senior status upon confirmation.

Taking senior status upon confirmation is a relatively straightforward concept.  Instead of announcing a date on which he or she would vacate their seat, a judge declares their intention to take senior status contingent upon the confirmation of a successor.  This  prevents a vacancy from opening until a replacement was approved.  Now, where a judge wishes to retire, this mechanism makes sense, as it reduces the disruption from a court losing a judge without gaining a replacement.  However, a judge on senior status can easily maintain their full caseload and avoid disruption, and, as such, this mechanism has a different purpose: ensuring that the current President is able to appoint their successor.  If a judge announces that they will take senior status upon confirmation and their President of choice is unable to appoint a replacement before the end of their term, the judge can (at least in theory) withdraw their intention and hold the seat without leaving a vacancy for the new President.

Perhaps because such a move could be seen as blatantly partisan, taking senior status upon confirmation has been fairly rare for much of the 20th century.  In 1968, Chief Justice Earl Warren announced his retirement from the Supreme Court contingent upon the appointment of a successor.  However, President Lyndon Johnson’s nomination of Justice Abe Fortas failed and the Republican Richard Nixon was elected instead.  According to historian Ed Cray, Warren considered withdrawing his retirement after Nixon’s election, but decided against it, feeling that the move would be seen as “a crass admission that he was resigning for political reasons.”  

Similarly, on the lower court level, taking senior status upon confirmation was practically unheard of until the second Bush Administration.  In 2003, Judge John Louis Coffey of the U.S. Court of Appeals for the Seventh Circuit, an appointee of President Reagan, was the first judge, reflected on the U.S. Courts website, to announce a move to senior status upon confirmation of his successor.  In September 2003, Judge Emory Widener of the U.S. Court of Appeals for the Fourth Circuit, who previously announced that he would take senior status on September 30, modified his status to reflect a move to senior status upon confirmation of his successor (DOD attorney William J. Haynes, nominated on September 29, 2003).  The next month, Judge James Graham on the U.S. District Court for the Southern District of Ohio, who had previously announced that he would take senior status on May 1, 2004, changed his status to taking senior status upon confirmation of his successor.  

For their part, this strategy had mixed results.  Both Graham and Coffey took senior status in 2004, upon the confirmations of Judges Michael Watson and Diane Sykes respectively.  However, Haynes was blocked from confirmation for four years by the opposition of Senate Democrats and Sen. Lindsay Graham.  Widener, facing ill health, finally took senior status unconditionally on July 17, 2007, and passed away two months later.  His seat was ultimately filled by President Obama with Judge Barbara Keenan.

Taking senior status upon confirmation did not resurface until June 2007, when Judge Daniel Manion, another conservative Reagan appointee on the Seventh Circuit, announced that he would move to senior status upon confirmation of his successor.  The next month, Judge Rudolph Randa on the U.S. District Court for the Eastern District of Wisconsin announced his intention to take senior status upon confirmation.  By the end of the Bush Administration, two other judges had announced a move to senior status contingent upon confirmation: Judge John Shabaz on the U.S. District Court for the Western District of Wisconsin; and Judge Garr King of the U.S. District Court for the District of Oregon.  For their parts, Manion was replaced by Bush appointee Daniel Tinder, but the Senate did not confirm Bush’s nominees to replace Randa, Shabaz, or King.  Upon the election of President Barack Obama in 2008, Randa did what Warren had not forty years earlier, and withdrew his decision to take senior status, essentially acknowledging that he did not want a Democrat to replace him.  In contrast, both Shabaz and King moved to senior status unconditionally in 2009, and President Obama replaced both judges. 

Taking senior status upon confirmation was sporadically (if rarely) used under President Obama, with five judges taking that route: Judge Barbara Crabb on the U.S. District Court for the Western District of Wisconsin; Judge Lawrence Piersol on the U.S. District Court for the District of South Dakota; Judge Frederick Motz on the U.S. District Court for the District of Maryland; Judge Claudia Wilken on the U.S. District Court for the Northern District of California; Judge Gary Fenner on the U.S. District Court for the Western District of Missouri.  All had their successors appointed by President Obama.  Notably, not a single appellate judge who took senior status under President Obama chose to do so contingent upon the confirmation of their successor.  As such, a number of Democratic appointees who took senior status late in the Obama Administration left their seats open for President Trump to fill.

In contrast, the “senior status upon confirmation” phenomenon exploded under President Trump.  In his first year alone, President Trump saw five judges announce moves to senior status contingent upon confirmation: Judge Edith Brown Clement on the Fifth Circuit; Judges David McKeague and Alice Batchelder on the Sixth Circuit; Judge Paul Kelly on the Tenth Circuit; and Judge Frank Hull on the Eleventh Circuit.  In 2018, five more joined the list: Judge Allyson Kay Duncan on the Fourth Circuit; Judge Edward Prado on the Fifth Circuit; Judges John Rogers and Deborah Cook on the Sixth Circuit; and Judge Roger Wollman on the Eighth Circuit.  In 2019, you had four: Judge Carlos Bea on the Ninth Circuit; and Judges Gerald Tjoflat, Stanley Markus, and Ed Carnes on the Eleventh Circuit.  In other words, there were more judges taking senior status upon confirmation under President Trump than had been in the entire history of America before then. 

What explains the flood of such announcements under President Trump?  For one, the White House has been proactive about contacting and pushing judges to take senior status in an effort to open vacancies.  Judge Michael Kanne on the Seventh Circuit described a call from the White House, where they promised to appoint one of his former clerks, Solicitor General Tom Fisher, if Kanne moved to senior status.  Kanne agreed and announced his intention.  However, the White House did not nominate Fisher, due to opposition from Vice President Pence, and Kanne withdrew his intent.  The 82 year old judge still serves on the Seventh Circuit.  It is possible that taking senior status upon confirmation allowed the judges to maintain some degree of control over their successors.

Senior Status Strategies Under President Biden 

After 54 appointments to the U.S. Court of Appeals, one could think that President Trump has emptied the bench of older Republican appointees, but that’s not true.  There remain twenty-six Republican appointed appellate judges who are eligible for senior status (an additional seven will become eligible over the next four years).  Nonetheless, a disproportionate share of judges likely to take senior status are expected to be Democratic appointees, making the next four years likely the first in over three decades to have more Democratic appointees leave the bench than Republican ones.  There are currently thirty-six Democratic appellate appointees eligible for senior status, and an additional thirteen that will become eligible over the next four years.  As such, if the Democratic appointees take senior status in the traditional manner and Republicans avoid confirming replacements, this would have the effect of making the bench significantly more conservative.

As a result, one could expect Democratic appointees to follow the precedent of the Trump years and take senior status only upon confirmation of their successors.  For those who are strategically inclined, this would disincentivize holding the vacancies open indefinitely and ensure that, while nominees remain pending, their circuits wouldn’t miss the judges’ voices on en banc issues.  Given that many judges are already mulling “strategic” moves to senior status, it wouldn’t be surprising to see many left-of-center jurists making their moves to senior status conditional over the next four years.  

 

The Shortlist of Four

A few quixotic election challenges notwithstanding, the 2020 Presidential election is over, and, barring anything unexpected, President-elect Joe Biden will be picking Supreme Court justices, likely in conjunction with a Republican controlled Senate.  Given the prospect of divided government, and our new President’s moderate instincts, a choice for the next Supreme Court nominee is likely to come down to a select group: a shortlist of four, to be precise.  It is my prediction that, if a Supreme Court vacancy opens during the 117th Congress, one of these four jurists will be selected.

Judge Ketanji Brown Jackson – U.S. District Court for the District of Columbia

President Biden has promised to appoint the first African American woman to the U.S. Supreme Court, and, Jackson, who currently serves as a trial court judge in Washington D.C. is bound to be high on the list.  The fact that Jackson ranks so highly on Supreme Court lists despite not being an appellate judge speaks to her experience and regard in progressive legal circles.

Jackson came to the bench with stellar legal credentials, with a B.A. and J.D. from Harvard University, and clerkships with First Circuit Judge Bruce Selya, and Supreme Court Justice Stephen Breyer.  Jackson then worked as a federal public defender and as an appellate litigator at Morrison & Foerster, filing a number of pro bono amicus briefs on criminal justice issues at the U.S. Supreme Court.

In 2009, President Obama nominated Jackson to serve on the U.S. Sentencing Commission, and she was unanimously confirmed by the Senate in 2010.  She was subsequently nominated and then unanimously confirmed again for the U.S. District Court for the District of Columbia in 2013.

In 2016, Jackson was one of five candidates closely considered by President Obama for appointment to replace Justice Antonin Scalia.  While she was not chosen, many assumed that she would be next in line for a seat on the D.C. Circuit if Judge Merrick Garland was confirmed to the Supreme Court.

While serving as a trial court judge, Jackson has made her mark with a series of bold decisions.  For example, in 2019, Jackson enjoined the Department of Homeland Security’s rule that expanded fast-track deportations without immigration hearings.  Similarly, in a suit seeking to compel testimony before the U.S. House from former White House Counsel Don McGahn, Jackson ruled that McGahn could be required to testify.  Jackson’s ruling was initially reversed by a 2-1 panel of the D.C. Circuit, but was ultimately affirmed by a 7-2 en banc decision of the full court.  This is not to say that Jackson has been a reflexive vote against the Trump Administration.  She sided with the Administration in holding that conservation groups couldn’t maintain a legal action against the building of a border wall on the basis of environmental impact.

As a whole, Jackson’s experience in indigent criminal defense and on sentencing issues, along with her experience with complex legal issues on the bench, would make her a compelling candidate for the Biden Administration, particularly in replacing Justice Breyer.

Justice Leondra Kruger: California Supreme Court.

The only shortlister who is not a federal judge, Justice Leondra Kruger is also, at 44, the youngest serious candidate for the Supreme Court.  Despite her age, Kruger is widely respected as an appellate litigator, has impressed on the California Supreme Court, and is a very real contender for a spot on the high court.

An L.A. native, Kruger received a B.A. magna cum laude from Harvard University and a J.D. from Yale Law School.  She then clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the U.S. Supreme Court.  After a couple of years as an Associate at Wilmer Hale, Kruger joined the U.S. Solicitor General’s Office, spending six years there and arguing 12 cases before the U.S. Supreme Court.  She then moved to the Department of Justice Office of Legal Counsel in 2013.

In November 2014, California Governor Jerry Brown appointed Kruger to the California Supreme Court, replacing Justice Joyce Kennard, where she, along with fellow Brown nominees Goodwin Liu, Tino Cuellar, and Joshua Groban, have shaped a liberal revival on the Court.

This is not to say that Kruger has been predictable or outcome-driven.  Rather, she has been described as an incrementalist and swing vote.  She has voted with the court’s conservatives far more often than Liu or Cuellar and has generally proved moderate in her judging.  Nonetheless, Kruger has also been willing to speak boldly when the law requires it.  This year, she wrote for a unanimous court in reversing a death sentence for convicted murderer Scott Peterson, finding that the trial court violated Supreme Court precedent in its jury selection.  Similarly, in 2019, Kruger wrote for the Court in reversing the death sentence of a white supremacist based on prejudicial comments raised by the prosecutor.  Again, every justice concurred with Justice Kruger’s opinion.

As a whole, despite her youth, Kruger is unquestionably qualified for the Supreme Court, and could prove an intriguing choice for an Administration eager to make history by naming the first African American woman to the Supreme Court.

Judge Srikanth “Sri” Srinivasan – U.S. Court of Appeals for the D.C. Circuit

There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated.  During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background.  While Srinivasan is not a Black woman, he may nonetheless be an appealing choice for confirmation in a Republican Senate, particularly if President Biden needs to replace a more conservative justice.

Born in India, Srinivasan moved with his family to Lawrence, Kansas, when he was four years old.  Srinivasan received a B.A., M.B.A., and J.D. from Stanford University and clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Sandra Day O’Connor on the U.S. Supreme Court.

After his clerkships, Srinivasan practiced as an appellate litigator at O’Melveny & Myers, and also served in the Office of the Solicitor General for five years under President George W. Bush.  In 2011, Srinivasan was appointed to be Principal Deputy Solicitor General, ultimately arguing 25 cases before the U.S. Supreme Court over the course of his career.

In 2010, Srinivasan was vetted for a seat on the D.C. Circuit by President Obama, but Obama backed away due to liberal opposition and chose New York Solicitor General Caitlin Halligan for the vacancy (Halligan was ultimately filibustered for the Court by Republicans).  For his part, Srinivasan was nominated in 2012 to a different seat and confirmed in 2013 with unanimous support from the Senate.  During his confirmation, Srinivasan received rave reviews from prominent conservatives, who praised him as “highly respected.”

On the D.C. Circuit, Srinivasan has largely served as a center-left voice, pushing the once-conservative court to the left.  He has generally been more deferential to agency rulemaking, upholding labor regulations that guaranteed overtime and minimum wage to home health care workers. More recently, Srinivasan joined the majority of the en banc court in holding that former White House Counsel Don McGahn could be compelled to testify by the U.S. House, and joined the majority in dismissing Michael Flynn’s petition for mandamus seeking dismissal of charges against him.

In 2016, Srinivasan was one of three finalists for the Supreme Court nomination that ultimately went to Judge Merrick Garland.  Today, Srinivasan remains a worthy contender for the Court.  Additionally, like Kruger or Jackson, Srinivasan would also make history on the court, as  the first Asian American, Indian American, and Hindu American on the Supreme Court.

Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit

When Paul Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so.  Luckily for Watford, enough Republicans broke from the pack  to allow him to clear the then-60 vote cloture threshhold and be confirmed.  Today, the 53-year-old judge, who was nipped at the post for a Supreme Court nomination in 2016, would be strongly considered for a vacancy, particularly if Justice Clarence Thomas chooses to step down.

A California native, Watford received a B.A. from U.C. Berkley and a J.D. from U.C.L.A. School of Law before clerking for Judge Alex Kozinski on the Ninth Circuit and Justice Ruth Bader Ginsburg on the Supreme Court.  After his clerkships, Watford worked as a federal prosecutor in Los Angeles and then served as an L.A. Partner at Munger Tolles & Olson for ten years before President Obama tapped him for the federal bench.  At the time of his nomination, Watford won rave reviews from California Republicans, who described him as non-ideological and “very moderate.”  Nonetheless, Republicans quickly lined up to oppose Watford, complaining that Watford has assisted in a legal challenge to Arizona’s strict immigration law (the law was ultimately blocked by the U.S. Supreme Court).  Nonetheless, nine Republicans broke ranks and pushed Watford past a filibuster and onto the bench.  (Of the nine, three, Senators Collins, Graham, and Murkowski, will still be in the Senate in 2021).

In 2016, when Justice Antonin Scalia died, Watford was the third of President Obama’s shortlist for the appointment (with Judge Merrick Garland getting the appointment).

On the Ninth Circuit, Watford has forged a moderate path, serving as a swing vote on the closely divided court.  For example, in 2019, Watford sided with conservative judge Diarmund O’Scannlain in upholding the Trump Administration’s “Remain in Mexico” policy regarding asylum applicants (with Judge William Fletcher dissenting).  Similarly, in 2017, Watford broke in dissent from two Democratic appointees on the Ninth Circuit in affirming a district court order to the Government to provide a broad array of documents relating to the rescinding of DACA.  Watford’s position was ultimately upheld unanimously by the Supreme Court.

That’s not to say that Watford is conservative.  In 2018, he joined Judge Michelle Friedland’s opinion holding that a Catholic school teacher could bring an employment discrimination case against his employer without being bound under the “ministerial exception.”  Similarly, Watford authored a 7-4 en banc decision of the Ninth Circuit holding that the Fourth Amendment bars a Los Angeles regulation requiring hotels to retain guest records (the ruling was upheld 5-4 by the Supreme Court).

Given his stellar credentials, moderate reputation, and respect among the conservative legal community, Watford would be an intriguing choice for the Biden Administration.

Overall, if a Supreme Court vacancy opens over the next two years with a Republican Senate overseeing the confirmation, I expect Biden to choose one of these four jurists. Each are impeccably credentialed, experienced, and moderate enough to draw some Republican support.

Twelve State Court Judges the Next Democratic President May Elevate to the Court of Appeals

For the last few weeks, we have been looking at potential nominees for the Court of Appeals.  Previously, we looked at  state court judges who may be potential appellate nominees under President Trump.  This time, we’ll look at potential Democratic appellate nominees from the state bench.

D.C. Circuit – Judge Corinne Beckwith

While there are dozens of qualified Democrats waiting for appointment to the D.C. Circuit in a potential Biden Administration, don’t sleep on Judge Corinne Beckwith of the D.C. Court of Appeals.  Judge Beckwith, who is 57, has impeccable credentials, having clerked for Judge Richard Cudahy on the Seventh Circuit and Justice John Paul Stevens on the U.S. Supreme Court.  Furthermore, unlike most Supreme Court clerks, Beckwith has spent her entire legal career as a public defender, serving at the Public Defender Service for the District of Columbia until her appointment to the bench in 2011.  As Democrats seek to diversify the career pools that lead to the bench, Beckwith may well be a judge they turn to.

First Circuit – Judge Melissa Long

Judge Ojetta Rogeriee Thompson has been a trailblazer on the bench, having been the first African American woman on the Rhode Island Superior Court and on the First Circuit.  If she takes senior status upon reaching eligibility next year, the frontrunner may be Judge Melissa Long, who has followed Judge Thompson’s example.  The 49-year-old Long, who is currently under consideration for an appointment to the Rhode Island Supreme Court, was Deputy Secretary of State before being appointed by Governor Gina Raimondo to the Rhode Island Superior Court.

Second Circuit – Justice Raheem Mullins

The 42-year-old Mullins, who serves on the Connecticut Supreme Court, has already been a judge for eight years, in which time he has established himself as a fair and reasoned jurist with opinions in key areas of law.  For example, Mullins wrote for the Connecticut Supreme Court in ordering the release of police records regarding Adam Lanza, the shooter in the Sandy Hook shooting of 2012.  Mullins has already been touted here as a prospective Supreme Court nominee, but he would also be a compelling nominee to the Second Circuit to replace Judges Jose Cabranes, Susan Carney, or Robert Katzmann.

Third Circuit – Justice Tamika Montgomery Reeves

While recently confirmed New Jersey Supreme Court Justice Fabiana Pierre-Lewis is an obvious choice for the Third Circuit, one that is mentioned far less often is Delaware Supreme Court Justice Tamika Montgomery-Reeves.  Montgomery-Reeves is, at 39, younger than Pierre-Lewis, and already has five years of judicial experience.  Furthermore, she has already made history as the first African-American on the Delaware Supreme Court, and could continue the trend by being the first African-American woman on the Third Circuit.

Fourth Circuit – Judge Christopher Brook

Judge James Wynn, who is eligible for senior status in 2022, has established a reputation as one of the most liberal judges on the Fourth Circuit.  In choosing to replace him, the Biden Administration may well turn to Judge Christopher Brook, who serves on the North Carolina Court of Appeals.  Brook, who is 41 years old, formerly served as the Legal Director of the state affiliate of the American Civil Liberties Union, and his civil rights background would be consistent with the recent calls for candidates from unconventional backgrounds.

Fifth Circuit – Judge Chari Kelly

The 2018 elections left Democrats with an embarrassment of riches when it comes to appellate judges across Texas.  Many of the newly elected judges are young and diverse and would be strong contenders of the Fifth Circuit or the U.S. District Courts.  One name to consider is that of Judge Chari Kelly, who serves on the Austin based Third District Court of Appeals.  Kelly, who is in her early forties, is a veteran and former Travis County prosecutor who was previously named prosecutor of the year by Mothers Against Drunk Driving.  Kelly would make a viable candidate for the Fifth Circuit if a vacancy opened.

Sixth Circuit – Judge Camille McMullen

Judge Camille McMullen may only be 49 years old, but she’s already had twelve years of experience as an appellate judge, allowing her to hit the ground running if she’s chosen to replace Judges Bernice Donald, Julia Smith Gibbons, or Jane Stranch.  Judge McMullen was a federal prosecutor for years before being appointed to the Tennessee Court of Criminal Appeals in 2008 by Governor Phil Bredesen.  As Biden has indicated that he seeks to replenish the bench of African American jurists on the Court of Appeals, McMullen seems like a promising choice.

Seventh Circuit – Judge Rachel Graham

In June 2019, Governor Tony Evers made his first judicial appointment, picking 43-year-old Rachel Graham to serve on the Wisconsin Court of Appeals.  Judge Graham was then re-elected unopposed in 2020 and currently serves on the appellate bench.  The Wisconsin native would be one of the first choices if Judge Diane Sykes vacates her seat in a Biden Administration.

Eighth Circuit – Justice Courtney Hudson

Justice Courtney Hudson may only be 47 years old but she already has a decade of experience on the Arkansas Supreme Court.  With the Eighth Circuit desperately short of female judges, Hudson could be first on the list of candidates considered if Judges Bobby Shepherd or Lavenski Smith took senior status.

Ninth Circuit – Judge Gabriel Sanchez

When looking at state court judges for elevation, one obviously has to consider the four young Democrats serving on the California Supreme Court.  However, an appointment to the Ninth Circuit could arguably be a demotion for these justices, and more viable options could be drawn from the California courts of appeal.  Consider, for example, Judge Gabriel Sanchez of the First District Court of Appeal.  Sanchez is well-qualified for an appellate seat, having graduated from Yale Law School, clerked on the Ninth Circuit, and having practiced law at Munger Tolles & Olson and the California Attorney General’s Office.  Furthermore, Sanchez, who was the first latino judge on the First District Court of Appeal, is only 44 and could serve decades if tapped for the Ninth Circuit.

Tenth Circuit – Justice Monica Marquez

Judge Carlos Lucero is 80 years old, and has been eligible for senior status from 2008.  As such, it would not be surprising to have him take senior status in the next four years, and, if elected, expect the Biden Administration to strongly consider Justice Monica Marquez of the Colorado Supreme Court.  The 51 year old Marquez was the first Latina and the first LGBTQ judge on the Colorado Supreme Court when she was appointed in 2010.  Since then, she has established a strongly liberal record on the high court, and would be an ideal Democratic pick for the Tenth Circuit.

Eleventh Circuit – Judge Ken Hodges

The 54-year-old Hodges is a rarity, a Democrat elected statewide in Georgia.  The Peach State native was elected to the Georgia Court of Appeals with 70% of the vote in 2018, an impressive showing for someone without a statewide profile.  While Hodges does have his share of controversies, if Democrats take the Senate, they would be no longer limited by blue slips for appellate positions, and Hodges could be a contender for the Eleventh Circuit.

Twelve State Court Judges President Trump May Elevate to the Court of Appeals in His Second Term

For the last few weeks, we have been looking at potential nominees for the Court of Appeals in the next four years.  Previously, we looked at federal district court judges.  This time, we’ll look to another potential source of federal judges, the state courts.  As always, we’ll look at one prospective nominee for each geographically based court of appeal.

D.C. Circuit – Justice Sarah Hawkins Warren

There’s nothing requiring a nominee to the D.C. Circuit to come from D.C.  After all, President George W. Bush picked California Supreme Court Justice Janice Rogers Brown for a seat on the D.C. Circuit.  With the D.C. Court of Appeals lacking any viable conservatives to elevate, it wouldn’t be surprising to see President Trump look to other courts for conservatives to mine.  And Warren, who currently serves on the Georgia Supreme Court, is an appealing pick.  Not only is she young, at only 39, but Warren has close connections to D.C., having clerked for Judge Richard Leon on the U.S. District Court for the District of Columbia, and having been a Partner at the Washington D.C. office of Kirkland & Ellis.

First Circuit – Justice Patrick Donovan

The First Circuit is the only one of the twelve geographic circuits that Trump has yet to name a nominee to.  The sole New Hampshire member of the court, Chief Judge Jeffrey Howard, becomes eligible for senior status this year and may well take it in the next four years.  If he does, Justice Patrick Donovan of the New Hampshire Supreme Court is likely to be strongly considered.  Donovan has strong credentials, including working for the New Hampshire House of Representatives, and will have a champion in Governor Chris Sununu.  Furthermore, the Justice, while conservative, is unlikely to attract strong opposition from the state’s Democratic senators.

Second Circuit – Justice Karen Carroll

How many judicial conservatives are there in Vermont?  The White House will have to consider this if Judge Peter Hall takes senior status in a second Trump term.  Among its candidates, the White House will have to seriously consider Vermont Supreme Court Justice Karen Carroll.  The 56-year-old jurist was Republican Governor Phil Scott’s first appointment to the court and would be the first woman from Vermont on the Second Circuit.

Third Circuit – Judge P. Kevin Brobson

The 49-year-old Brobson, who currently serves on the Commonwealth Court of Pennsylvania, made the news in 2017 for declining to strike down Pennsylvania’s congressional maps as being gerrymandered.  Brobson’s ruling (which was later overturned), alongside the fact that he has spoken at Federalist Society events, and his strong reputation in the Pennsylvania Bar, may make him an attractive conservative choice for a Pennsylvania seat on the Third Circuit.

Fourth Circuit – Judge Richard Dietz

The 43 year old Dietz has the trifecta of strong conservative bona fides, good Republican connections, and excellent academic credentials (having been first in his class at Wake Forest Law).  Dietz, who serves on the North Carolina Court of Appeals, will be strongly considered by the Trump Administration if Judge James Wynn moves to senior status in 2022.

Fifth Circuit – Justice Jimmy Blacklock

There are many conservatives who would be salivating for a seat on the Fifth Circuit under a second Trump term.  A strong contender would be Texas Supreme Court Justice Jimmy Blacklock.  The strongly conservative jurist started his career at the Department of Justice and has close connections to Gov. Greg Abbott, a strong Trump surrogate and supporter (Blacklock was the longtime General Counsel for Abbott).  It doesn’t hurt that, at forty, Blacklock could spend decades on the bench.

Sixth Circuit – Justice Elizabeth Clement

The 43 year old Clement had a long history with the Michigan Republican Party when she was appointed to the Michigan Supreme Court to replace Judge Joan Larsen in 2017.  Nonetheless, she soon attracted fire from conservatives for voting to permit an Independent Redistricting referendum to go on the Michigan ballot.  Despite being booed at the state convention, Clement retained the nomination of the Michigan Republican Party and was comfortably re-elected in 2018, the only Republican to win statewide in Michigan that year.  Despite the hand-wringing over that decision, Clement’s record on the Court is generally conservative, while Michigan’s Democratic Senators may sign off on her elevation to allow Gov. Gretchen Whitmer to replace her.

Seventh Circuit – Justice Brian Hagedorn

If Judge Diane Sykes took senior status in 2022 under a Trump Administration, Hagedorn would be the favorite to fill the vacancy.  The 42-year-old jurist has a strongly conservative background, while also establishing a reputation as a principled jurist on the Wisconsin Supreme Court, occasionally dissenting from the more aggressive views of his colleagues.  Hagedorn’s quieter form of conservatism is also less likely to draw opposition than the more vocal views of his colleague, Justice Rebecca Bradley, who may be a rival for the appointment.

Eighth Circuit – Justice Jonathan Papik

In 2017, Papik narrowly missed out on an appointment to the Eighth Circuit when the White House chose Leonard Grasz instead of him.  Nonetheless, Papik found himself appointed to the Nebraska Supreme Court in 2018, despite being only 36 years old at the time.  Papik, who clerked for Justice Neil Gorsuch (on the Court of Appeals) will be closely considered for an Eighth Circuit vacancy, and, while Grasz is not expected to leave the court anytime soon, if he does under Trump, expect Papik to be the nominee.

Ninth Circuit – Judge Jerome Tao

Here’s where it gets interesting.  Judge Jerome Tao is, at least nominally, a Democrat who started his career working for former Senator Harry Reid.  Nonetheless, the judge was appointed to the Nevada Court of Appeals by Republican Governor Brian Sandoval, ran a fiercely conservative campaign for the Nevada Supreme Court in 2018 (unsuccessfully), and recently made the news for a concurring opinion decrying deference to administrative agencies.  The Trump Administration’s judge-pickers care deeply about administrative law, and, if Judge Johnnie Rawlinson takes senior status, expect Tao to be strongly considered.

Tenth Circuit – Justice Thomas Lee

Judge Scott Matheson will be eligible for senior status in 2022, and, if he chooses to take it under a Trump Administration, Justice Thomas Lee from the Utah Supreme Court will be a strong contender to replace him.  Lee is already on Trump’s radar, with a place on his Supreme Court shortlist, as well as being the brother of Sen. Mike Lee.  The only knock against Lee is his age (he will be 58 in 2022).  Nonetheless, he will likely have right of first refusal for the position, given his credentials (clerked for Judge J. Harvie Wilkinson and Justice Clarence Thomas) and his connections.

Eleventh Circuit – Justice Nels Petersen

Another former Georgia Solicitor General, like Warren and Eleventh Circuit Judge Britt Grant, Petersen would be a safe pick if Judge Beverly Martin’s seat opened in a second Trump term.  The 42 year old jurist has established a solidly conservative profile on the Georgia Supreme Court.

 

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.

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.