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.

The Nominees Left Out

Updated on January 23, 2019 at 3:24 PM

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

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

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

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

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

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

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

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

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

Bending Blue Slips: Grassley’s Strategic Error

In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction.  In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties.  Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration.  This period covers three Democratic Administrations and three Republican Administrations (twenty years of each).  In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

  • U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • U.S. Magistrate Judge J. Rich Leonard – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Judge Helene White of the Michigan Court of Appeals – nominated in 1997 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • Jorge C. Rangel – nominated in 1997 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • North Carolina Appeals Court Judge James Wynn – nominated in 1999 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Enrique Moreno – nominated in 1999 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • Kathleen McCree Lewis – nominated in 1999 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • James Lyons – nominated in 1999 to the Tenth Circuit (blue slipped by Republican Sen. Wayne Allard)
  • U.S. District Judge Robert Cindrich – nominated in 2000 to the Third Circuit (blue slipped by Republican Sen. Rick Santorum)
  • Victoria Nourse – nominated in 2010 for the Seventh Circuit (blue slipped by Republican Sen. Ron Johnson)
  • Steven Six – nominated in 2011 for the Tenth Circuit (blue slips returned but blocked upon request by Republican Sens. Pat Roberts and Jerry Moran)
  • Myra Selby – nominated in 2016 for the Seventh Circuit (blue slipped by Republican Sen. Dan Coats)
  • U.S. District Judge Abdul Kallon – nominated in 2016 for the Eleventh Circuit (blue slipped by Republican Sens. Richard Shelby and Jeff Sessions)
  • Justice Lisabeth Hughes – nominated in 2016 for the Sixth Circuit (blue slipped by Republican Sen. Mitch McConnell)
  • Rebecca Ross Haywood – nominated in 2016 for the Third Circuit (blue slipped by Republican Sen. Pat Toomey)

During Republican Administrations:

  • Stuart Summit – nominated in 1987 to the Second Circuit (processed by Judiciary Committee but blocked upon request of Sen. Alphonse D’Amato)
  • Stephen Murphy – nominated in 2006 to the Sixth Circuit (blue slipped by Democratic Sens. Carl Levin and Debbie Stabenow but ultimately confirmed to the District Court)
  • Shalom Stone – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sens. Frank Lautenberg and Bob Menendez)
  • E. Duncan Getchell – nominated in 2007 to the Fourth Circuit (blue slipped by Republican Sen. John Warner and Democratic Sen. James Webb)
  • U.S. District Judge Gene Pratter – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sen. Bob Casey)
  • Rod Rosenstein – nominated in 2007 to the Fourth Circuit (blue slipped by Democratic Sens. Barbara Mikulski and Ben Cardin)
  • U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked.  While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators.  As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on.  During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states.  In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans.  In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals.  In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees.  Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed.  Of these, 35 were from states requiring blue-slips from Republican senators.  Of these 35…

  • Five were District Court Judges originally nominated by Republican Presidents: Judges Fred Parker, Marcus, Traxler, Sotomayor, & Williams.
  • Four were District Court Judges nominated by Democratic Presidents but with strongly conservative records on the trial court: Judges Cabranes, Murphy, Hull, & Rendell.
  • Two were directly recommended by Republican senators: Judges Silverman & Tallman.
  • Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed.  Of these, 26 were from states with Republican home-state senators.  Of these 26…

  • Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.
  • Three were State Court Judges/Officials nominated by Republican Governors: Judge Christen, Phillips, & McHugh.
  • One was recommended by Republican senators: Judge Higginson.
  • Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.
  • Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.
  • Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed.  Of these, 31 were in states that had Democratic home-state senators.  Of these 31:

  • Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.
  • None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).
  • One was recommended by a Democratic senator: Judge Helene White.
  • Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall?  Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench.  Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges.  In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration.  Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals.  In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.

 

Bending Blue Slips: What was the Need?

For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previous statements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).

Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy.  You can make arguments on either side.

Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:

  • Former Indiana Supreme Court Justice Myra Selby
  • U.S. District Court Judge Abdul Kallon
  • Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood
  • Kentucky Supreme Court Justice Lisabeth Hughes

Let’s instead focus on what I keep asking myself about Grassley’s announcement:

What was the Need?

I have yet to find the masses of Trump appellate nominees being blocked by blue slips.  Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit.  In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so.  As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips.  So, why the urgency?

Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators.  But, in his statement justifying his actions, Grassley made no mention of this.  Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.

I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate.  With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections.  Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.

At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.

 

The End of Blue Slips? Two Reasons To Be Skeptical

This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations.  Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.”  Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.”  Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.

First, consider the source of the statement.  As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration).  Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership.  So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview.  Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.

Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed.  The White House has studiously avoided nominating judges in states with Democratic Senators.  The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues).  Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).

So, if blue slips are not dead, why would McConnell declare it so.  I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip.  As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.

One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions.  As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have.  This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips.  For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration.  Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips.  In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips.  So far, the Trump Administration has 50 judicial nominees pending before the Senate.  Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon).  So, as such, why change the rules of a game you’re winning?  If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.

 

 

Nominations – Sept. 28, 2017

Today, the White House announced nine new judicial nominations (seven to lifetime appointments).  The new nominees are:

Barry Ashe, a New Orleans based civil litigator, has been nominated to the U.S. District Court for the Eastern District of Louisiana.

Daniel Domenico, the former Solicitor General of Colorado, has been nominated to the U.S. District Court for the District of Colorado.

Stuart Kyle Duncan, an appellate attorney and former counsel for the Becket Fund for Religious Liberty, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Judge Kurt Engelhardt, a federal district judge appointed by President George W. Bush, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

James Ho, a partner in the Dallas Office of Gibson Dunn, and the former Solicitor General of Texas, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Ryan T Holte, a professor at the University of Akron School of Law, has been nominated to the U.S. Court of Federal Claims.

Gregory E. Maggs, the Arthur Selwyn Miller Research Professor of Law at the George Washington University Law School, has been nominated to the U.S. Court of Appeals for the Armed Forces. (Full disclosure, Maggs taught me in law school, wrote several of my clerkship recommendations, and remains a mentor.)

Howard Nielson, a former Deputy Assistant Attorney General in the Department of Justice, has been nominated to the U.S. District Court for the District of Utah.

Justice Don Willett, currently serving on the Texas Supreme Court, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.