Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The West

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We finish with the states of the West.

Ninth Circuit

Court of Appeals

In terms of the number of judges on the court, the geographic area covered, and the population served, the Ninth Circuit Court of Appeals is the largest in the country. The whopping twenty-nine judgeship court has been the target of many attempts to break it up, ostensibly due to its liberal leanings. Whatever its previous leanings (the Ninth was never as liberal as critics alleged), the current court is fairly evenly divided between liberals and conservatives. The court currently has ten judges appointed by President Trump, nine Clinton appointees, seven Obama appointees, and three Bush appointees. While the court is currently full, four Clinton appointees, Susan Graber, Marsha Berzon, Richard Paez, and William Fletcher, have announced their intention to move to senior status upon confirmation of successors. Only Graber’s seat has a nominee, labor lawyer Jennifer Sung.

Additional vacancies are likely as eight other judges on the court are eligible for senior status: Clinton appointees Sidney Runyan Thomas, Margaret McKeown, Kim McLane Wardlaw, Ronald Gould, and Johnnie Rawlinson; and Bush appointees Consuelo Callahan, Milan Dale Smith, and Sandra Segal Ikuta. Additionally, Obama appointee Andrew Hurwitz will also become eligible for senior status next July. The most likely of these judges to take senior status is Chief Judge Thomas, who may make the move once he concludes his term as Chief on December 1. Of the Bush appointees, the moderate Smith, who will be eighty next year, is the most likely to take senior status.

Alaska

The District of Alaska has three active judgeships, currently filled by Chief Judge Timothy Burgess, a Bush appointee, Judge Sharon Gleason, an Obama appointee, and Judge Joshua Kindred, a Trump appointee. Of the three, only Burgess is eligible for senior status. He is, however, unlikely to move to senior status before his term as Chief ends in 2022.

Arizona

The District of Arizona is one of the most overworked courts in the country, with heavy caseloads. Luckily, after years of chronic vacancies, all judgeships on the court are currently full, with one Bush appointee, seven Obama appointees, and five Trump appointees serving. No vacancy is expected before 2024, when Chief Judge Murray Snow, and Judges Douglas Rayes and James Soto all become eligible for senior status. However, if Judge Andrew Hurwitz moves to senior status upon eligibility next year, Judge Rosemary Marquez may be selected to replace him, opening up a seat for Biden to fill.

California

The nation’s most populous state also has the most district court judgeships serving its population, sixty one, divided into four districts: the Central, Northern, Eastern, and Southern. Despite the high numbers, California’s district courts are, if anything, understaffed in proportion to their caseload. This is particularly true now, as the courts have a whopping 18 vacancies with an additional two set to open next year. California Senators Dianne Feinstein and Alex Padilla have each claimed to have sent recommendations to the White House, but it’s an open question when nominees will hit the senate.

The largest of the four districts is the Central, based in Los Angeles. Currently, the court is served by 22 active judges, eight appointed by Bush, seven by Obama, four by Trump, two by Clinton, and one by Reagan. There are also six vacancies, with the oldest going back to 2015. Additionally, a seventh vacancy will open in February 2022 when Judge Virginia Phillips moves to senior status. Of the remaining 21 judges, nine are eligible for senior status: Reagan appointee Stephen Wilson; Clinton appointee David Carter; Bush appointees Percy Anderson, John Walter, Gary Klausner, Dale Fischer, Otis Wright, and George Wu; and Obama appointee John Kronsdadt. This makes future vacancies on the court fairly likely.

While the Sacramento based Eastern District is, with six judgeships, the smallest in California, it is also severely overworked. This is particularly true as it is currently having only four active judges carry the burden as the remaining two seats are vacant. Unless judges are confirmed swiftly, the situation will get worse next year when Judge John Mendez takes senior status.

The Bay area based Northern District of California has eleven active judges serving, all appointees of President Obama. An additional three seats are vacant. While none of the active judges is eligible for senior status, two, Edward Davila and Edward Chen, will become eligible for senior status next year and may move then.

Finally, the San Diego based Southern District of California is the hardest hit of all the California courts when it comes to vacancies, as seven of the thirteen judgeships are vacant. Of the remaining six active judges, one, Judge Janis Sammartino, is eligible for senior status and could choose to make the move.

Hawaii

The four judgeship District of Hawaii does not currently have any vacancies and no new vacancies are expected, with the first judges to hit senior status eligibility doing so in 2024.

Idaho

One of only two states to be served by just two active judgeships, Idaho is currently at half-capacity with Judge B. Lynn Winmill’s move to senior status in August. Winmill gave plenty of notice of his intention to take senior status, and the Idaho Democratic Party recommended four candidates to replace Winmill in March: Idaho Falls attorney DeAnne Casperson; former U.S. Attorney Wendy Olson; and Boise attorneys Keely Duke and Deborah Ferguson. Idaho Senator Mike Crapo indicated that his office has had many “preliminary” conversations regarding the judgeship with the White House and that they are working to find a mutually agreeable nominee.

Montana

While none of the three active judges in the District of Montana, all Obama appointees, are eligible for senior status, Judge Dana Christensen becomes eligible for senior status in December and may choose to make the move at that time.

Nevada

The U.S. District Court for the District of Nevada has two vacancies among its seven judgeships, with the remaining five judges all appointed by President Obama and years from taking senior status. The two pending vacancies on the District Court, one in Reno and one in Las Vegas, are both over three years old. Nevada Senators set up judicial nomination commissions to fill the vacancies with application deadlines of February 28, 2021. Since then, there has been no public recommendations made and the White House has not yet sent any nominations to the Senate.

Oregon

The U.S. District Court for the District of Oregon has six active judgeships: three Obama appointees, and one appointee each from Clinton, Bush, and Trump. The Court will have a vacancy open on December 27 of this year when Bush appointed Judge Michael Mosman takes senior status. Clinton appointee Ann Aiken is also eligible for senior status but has made no indication that she intends to take it. So far, there has not been any word on recommendations by Oregon Senators to replace Mosman.

Washington

After an agreement over judicial nominations fell apart during the Trump Administration, Washington’s district courts saw no confirmation over the last four years. As a result, the Western District of Washington now has five vacancies out of seven active judgeships, with one future vacancy set to open on the Eastern District. So far, nominees have been submitted to the Senate for three vacancies on the Western District, and for the lone Eastern District vacancy. All three Western District nominees are awaiting final Senate votes, with Judge David Estudillo being teed up for confirmation in September. So far, there is no timeline on nominees for the remaining two vacancies.

Additionally, the two active judges remaining on the Western District: Judges Richard Jones and Ricardo Martinez, are also eligible for senior status, so additional vacancies may open as the current ones are filled.

Tenth Circuit

Court of Appeals

The Tenth Circuit, based in Denver, is considered a moderate court, evenly divided between five Republican and five Democrat appointed judges, with two vacancies. The Senate is poised to confirm public defender Veronica Rossman to fill a Colorado vacancy on the court in September. The other vacancy, based in Kansas, is still without a nominee.

Of the remaining judges on the court, only Judge Harris Hartz, appointed by President George W. Bush, is eligible for senior status. While Chief Judge Timothy Tymkovich, another Bush appointee, will reach eligibility for senior status in November, he is unlikely to take senior status without serving out his term as Chief in 2022. Additionally, Judge Scott Matheson, an Obama appointee, becomes eligible for senior status at the end of 2022, and may also make the move.

Colorado

The seven judgeship District of Colorado is undergoing a significant transformation, with Biden already having appointed Judge Regina Rodriguez to the court, and having nominated Charlotte Sweeney for a second vacancy. A third vacancy is set to open in 2022 when Judge Christine Arguello moves to senior status. The only other vacancy that could open this Congress could occur when Judge William Martinez reaches eligibility for senior status at the end of 2022.

Kansas

The District of Kansas currently has all six judgeships filled, although Judge Julie Robinson, a George W. Bush appointee, is set to take senior status on January 14, 2022. So far, there has been no public application period or recommendation noted for Robinson’s seat. Judge Eric Melgren, another Bush appointee, also reaches eligibility in 2022 but has so far made no indications of taking senior status.

New Mexico

The seven-judgeship District of New Mexico is one of the busiest courts in the country. The Court currently has two vacancies, with a third set to open with Judge Martha Vazquez’s move to senior status next year. New Mexico Senators Martin Heinrich and Ben Ray Lujan submitted nominees to fill the two existing vacancies in January 2021, but so far the White House has only nominated one nominee: Margaret Strickland. Strickland is currently the longest pending judicial nominee waiting on the Senate floor, and, although Majority Leader Schumer filed cloture on three pending nominees before the August recess, he skipped over Strickland.

The situation could potentially become worse as Judge James Browning is also eligible for senior status, although he has not indicated that he will take it. If Browning and Vazquez vacate their seats, this could leave the District of New Mexico with less than half of its allotted judgeships full.

Oklahoma

The Oklahoma District Courts currently have one vacancy, from Judge John Dowdell’s early move to senior status earlier this year. So far, no public process has started to replace Dowdell.

Utah

The five judgeship District of Utah, composed of three Obama appointees and two Trump appointees, will see a vacancy open next year when Judge David Nuffer takes senior status. So far, there is no public replacement process for Judge Nuffer.

Wyoming

The three-judge District of Wyoming already has a vacancy pending, as Judge Nancy Freudenthal has announced her intention to take senior status on June 1, 2022. As Wyoming has no Democrats in the Congressional delegation, the White House will have to work with Republican Senators John Barrasso and Cynthia Lummis. During the Obama Administration, Barrasso endorsed and supported Fredeunthal and Chief Judge Scott Skavdahl, but it’s unclear if a similar accommodation would be reached today. Additionally, Judge Alan Johnson, who is 82, and is one of the few actively serving Reagan appointees, may also take senior status, opening up a second vacancy and potentially opening the door to a one-for-one deal.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The South

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. This week, we focus on the South.

Fifth Circuit

Court of Appeals

The Fifth Circuit Court of Appeals is arguably the most conservative court of appeals in the country. Many of the conservative legal movement’s most outspoken jurists, from Judge Edith Jones to Judge James Ho, sit on this court. The Fifth Circuit includes six nominees appointed by President Trump, four appointed by President Bush, three by President Obama, and two each by Presidents Reagan and Clinton. Of the judges, six are currently eligible for senior status: Reagan appointees Jones and Jerry Smith, Clinton appointees Carl Stewart and James Dennis, and Bush appointees Priscilla Owen and Leslie Southwick. Of the six, only Dennis, the Fifth Circuit’s oldest active judge and one of the few liberal voices on the court, has announced a move to senior status. So far, no nominee has been announced to replace Dennis.

The other judges on the court, with the exception of Stewart and potentially Southwick, are unlikely to take senior status anytime soon. Another of the court’s liberals, Judge James Graves of Mississippi, hits eligibility for senior status next year and may take so at that time.

Louisiana

Louisiana has three judicial districts: the Eastern; Middle; and Western. The twenty-two active judgeships across the three courts are all currently filled, although one will open on the Western District when Judge Elizabeth Erny Foote takes senior status in January 2022. No nominee has been put forward to replace Foote and Biden may seek to work with Louisiana Senators with a package of nominees to include U.S. Attorney picks and Dennis’ replacement.

Additional vacancies are likely, particularly on the Eastern District. Of the twelve active judges on the Eastern District, six are currently eligible for senior status: Martin Feldman, Sarah Vance, Eldon Fallon, Carl Barbier, Jay Zainey, and Lance Africk. Of the six, Feldman and Fallon, who are both over eighty, are judges to watch. Additionally, Chief Judge Maurice Hicks on the Western District, who will have to step down as Chief next year, is another possibility for senior status.

Mississippi

While Mississippi currently has no judicial vacancies, additional retirements are possible. Out of the nine active judges in Mississippi, three are eligible for senior status: Judges Michael Mills and Sharion Aycock on the Northern District; and Judge Henry Wingate on the Southern District. While no other judge reaches eligibility before 2028, Judge Carlton Reeves for the Southern District may be considered for elevation if either Southwick or Graves moves to senior status on the Fifth Circuit.

Texas

Texas’ four judicial districts entered the Trump Administration with eleven judicial vacancies, and, as a result of a flood of new confirmations, are almost entirely full. There is only one current judicial vacancy in Texas: on the Western District from the death of Judge Philip Martinez. Additionally, one future vacancy is expected next year when Judge Vanessa Gilmore moves to senior status in the Southern District. So far, there has not been any public movement in Texas towards recommendations to fill the vacancies.

Additional vacancies are likely as a number of judges are eligible for senior status. Currently, the possibilities include: Marcia Crone on the Eastern District; Sam Lindsay, Barbara Lynn, James Kinkeade and Jane Boyle on the Northern District; Lee Rosenthal, Ricardo Hinojosa, Lynn Hughes, Keith Ellison, and Andrew Crane on the Southern District; and Orlando Luis Garcia, Samuel Biery, Earl Yeakel, Kathleen Cardone, and Frank Montalvo on the Western District. Furthermore, next year, Judge David Godbey on the Northern District will reach eligibility for senior status.

Eleventh Circuit

Court of Appeals

The Atlanta based Eleventh Circuit, despite a more equitable party division, has a reputation almost as conservative as its neighbor to the West. An influx of Trump and Obama appointees (75% of the court has served less than ten years) leaves few judges who are eligible for senior status. One of the two judges who are, Judge Beverly Martin, is retiring in September. So far, there has been no nominee to replace Martin, who is one of the court’s few liberals. Judge Charles Wilson, the other judge eligible for senior status, is another liberal, ensuring that the conservative tilt of the court is unlikely to change anytime soon.

Alabama

All the states under the Eleventh Circuit are divided into a Northern, Middle, and Southern District. In Alabama’s case, the three courts together have fourteen judgeships: eight Trump appointees; three Bush appointees; two Obama appointees; and one vacancy. The lone vacancy is on the Middle District, vacated by Judge Andrew Brasher’s elevation to the Eleventh Circuit. Trump nominated Solicitor General Edmund LaCour to fill this seat, but LaCour was blocked by Sen. Doug Jones, and the vacancy is still pending. So far, there has been no nominee to fill this vacancy.

Additional vacancies are unlikely as no judge is eligible for senior status until Judge Scott Coogler reaches it in 2024.

Florida

Between the Northern, Middle, and Southern Districts of Florida, there are thirty seven judgeships, and two vacancies. The two currently pending vacancies are both on the Southern District of Florida. As Florida has two Republican Senators, Sen. Marcio Rubio and Florida’s Democratic House Delegation set up rival nominations commissions for the vacancies. Rubio recommended attorneys David Leibowitz and Detra Shaw-Wilder to fill the vacancies in July. The Democratic JNC also recommended Shaw-Wilder alongside state court Judges Samantha Feuer, Ayana Harris, and Miguel De La O, federal magistrate Shaniek Maynard, and federal public defender Michael Caruso. Having been recommended by both committees, it is likely that Shaw-Wilder will be nominated. However, it is unclear who the second nominee will be.

Additional vacancies are possible. Out of the thirty five active judges serving, seven are currently eligible for senior status: H.W. Bush appointees Steven Merryday and Michael Moore, Clinton appointees William Dimitrouleas and Donald Middlebrooks; and Bush appointees Timothy Corrigan, Marcia Cooke, and Jose Martinez.

Georgia

The Northern, Middle, and Southern Districts of Georgia have a total of eighteen judgeships: six appointees each of Presidents Obama and Trump; and four appointees of President Bush. There are also two vacancies on the Northern District of Georgia. Georgia Senators Raphael Warnock and Jon Ossoff began soliciting nominees for the vacancies early this year, with an application deadline of March 17, 2021. While no names have become public, it is likely that recommendations have already made their way to the White House. Additional vacancies are unlikely before 2023, unless Judge Leslie Abrams is tapped for the Eleventh Circuit to replace Martin.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Midwest

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We turn now to the Midwest.

Sixth Circuit

Court of Appeals

The Cincinnati based Sixth Circuit Court of Appeals serves the states of Kentucky, Michigan, Ohio, and Tennessee. The sixteen member court has been the site of notable squabbles between the judges, including allegations of judicial misconduct. Today, while the court has eleven Republican appointees and five Democratic appointees, the conservative-liberal divide is a closer nine to six, with Judge Julia Smith Gibbons occasionally voting with both blocs.

The Sixth Circuit also has a dramatic age divide between the conservative and the liberal wings. Of the six “liberal” judges on the court, four are already eligible for senior status. Additionally, a fifth, Judge Helene White, becomes eligible this year, while the sixth, Judge Jane Stranch, becomes eligible next year. In contrast, only two judges outside the liberal bloc are eligible for senior status, Gibbons and Judge Richard Griffin.

Despite the number of liberal judges who are eligible for senior status, there has not been an exodus in the Biden Administration. So far, no Sixth Circuit judge has officially announced their intention to take senior status or retire. Judge Bernice Donald, an Obama appointee who has been eligible for senior status since 2016, reportedly announced her move to take senior status in a letter to clerks in May. However, to date, no official announcement of the vacancy has been posted on the U.S. Courts website, and it is not unprecedented for a judge who initially decides to take senior status to subsequently change their mind.

At any rate, even without Donald, three Clinton appointees on the court have been eligible for senior status for the better part of a decade, and one or more of them could take senior status before the end of the Congress, as could Gibbons, White, or Stranch. The only eligible judge unlikely to take senior status under Biden is the staunchly conservative Griffin.

Kentucky

The Eastern and Western Districts of Kentucky are served by ten active judges, four appointed by George W. Bush, two by Obama, and four by Trump. Currently, only Judge Karen Caldwell of the Eastern District of Kentucky is eligible for senior status, although Chief Judge Danny Reeves becomes eligible on August 1, 2022. Neither is expected to take senior status in the near future.

Michigan

Michigan is divided into two judicial districts: the Eastern and Western. The Eastern District, based in Detroit and composed of 15 active judgeships, currently has two vacancies, vacated by Judge Victoria Roberts on February 24 and by Judge David Lawson on August 6. Biden has nominated Oakland County Judge Shalina Kumar to replace Roberts and Michigan Senators are currently accepting applications to replace Lawson, with a deadline of September 2. The four judgeship Western District has one vacancy, opened by Judge Janet Neff’s move to senior status March 1. Michigan Court of Appeals Judge Jane Beckering has been nominated to replace Neff. Both nominees have received a hearing before the Senate Judiciary Committee.

Additional vacancies may also be possible. Judges Denise Hood, Paul Borman, and Thomas Ludington on the Eastern District and Judge Paul Maloney on the Western District are already eligible for senior status. Additionally, Judges Sean Cox, Mark Goldsmith, and Gershwin Drain will become eligible for senior status before the end of the 117th Congress.

Ohio

Bisected into two judicial districts, Ohio federal trial courts are poised for a significant turnover. The eleven judgeship Northern District of Ohio currently has three vacancies. Ohio Senator Sherrod Brown gathered applications to fill the vacancies in February with an application deadline on March 16. So far, no recommendations have been made public and no nominations have been announced. Additionally, Chief Judge Patricia Gaughan and Judge John Adams are eligible for senior status although both have disclaimed any interest in taking it.

The Southern District has no current vacancies but Chief Judge Algernon Marbley and Judge Judge Edward Sargus are already eligible for senior status, while Judge Michael Watson will reach eligibility on November 7 and Judge Timothy Black will hit the threshold in 2022. One or more of these jurists may move to senior status before the end of the 117th Congress.

Tennessee

The citizens of Tennessee are served by three judicial districts: the Eastern, Middle, and Western Districts. None of the three districts currently have any vacancies, although there are several judges who are eligible for senior status who may take senior status before the end of 2022: Judge Thomas Varlan on the Eastern District; Judge Aleta Trauger on the Middle District; and Judges Stanley Anderson and John Fowlkes on the Western District. Additionally, Chief Judge Travis McDonough on the Eastern District is a possibility to be elevated to the Sixth Circuit to replace Donald, which would allow Biden to replace him in turn.

Seventh Circuit

Court of Appeals

The Chicago based Seventh Circuit Court of Appeals is home to many of the federal judiciary’s intellectual heavyweights. Despite having an 8-3 Republican appointee majority, the court is generally considered to be more moderate than conservative. Biden has already named one judge to the Seventh Circuit, Judge Candace Jackson-Akiwumi. He may have the opportunity to name others as four of the court’s eleven judges are eligible for senior status: Judges Frank Easterbrook, Michael Kanne, Ilana Rovner, and Diane Wood. Additionally, two more judges reach eligibility next year, Chief Judge Diane Sykes, and Judge David Hamilton. While Easterbrook and Sykes are unlikely to move to senior status in the near future, any of the other four could choose to vacate their seats before the end of the 117th Congress.

Illinois

Represented by Senate Judiciary Committee Chairman Richard Durbin, Illinois saw seats filled fairly quickly under the previous few Administrations and largely avoided the lingering vacancies that plagued other states. Currently, there is no vacancy on any of the Illinois District Courts and only one future vacancy is teed up, from Northern District Judge Matthew Kennelly’s move to senior status in October. Additional vacancies, however, are possible, as Judge Sue Myerscough on the Central District and Judges Rebecca Pallmeyer and Charles Norgle on the Northern District are eligible for senior status.

Indiana

Indiana is served by the Northern District and the Southern District, each with five active judgeships. Currently, there is one judgeship vacant in the Northern District, created by Judge Theresa Springmann’s move to senior status in January. There is also a future vacancy scheduled in the Southern District when Judge Richard Young moves to senior status upon confirmation of a successor. While Indiana’s Republican Senators accepted applications to replace Springmann in 2019, no nomination has been made as of yet. However, President Biden named U.S. Attorneys to both of Indiana’s judicial districts as part of his first batch of nominees, suggesting that judicial nominees may also be in the offing.

Wisconsin

Divided into the five judgeship Eastern District and the two judgeship Western District, Wisconsin currently has one judicial vacancy, vacated by Judge William Griesbach’s move to senior status on December 31, 2019. So far, no nomination has been put forward to replace Griesbach, although Wisconsin Senators Tammy Baldwin and Ron Johnson recommended four candidates to fill the vacancy in June: state court judges Tammy Jo Hock, William Pocan, and Thomas Walsh, and federal public defender Krista Halla-Valdes. Given the recommendations, a nominee is likely in the Fall.

Additional vacancies may also be possible. Both Judges Joseph Stadtmueller and Lynn Adelman are eligible for senior status and may choose to make the move this Congress.

Eighth Circuit

Court of Appeals

With ten judges appointed by Republican Presidents and only one appointed by a Democratic President, the Eighth Circuit is widely considered one of the most conservative courts in the country. This effect is magnified by the senior judges on the court, the vast majority of whom are also deeply conservative. If there is a bright side for liberals, it is that the lone Democratic-appointee on the court, Judge Jane Kelly, is also one of the court’s younger judges. The Eighth Circuit is currently the only court of appeals that has not had a vacancy open during the Biden Administration. If one opens, it’ll likely be due to the moves of Judges James Loken, William Benton, or Bobby Shepherd, who are the only judges currently eligible for senior status.

Arkansas

Arkansas, divided into the Eastern and Western Districts, has eight trial judgeships in total. Currently, those judgeships are filled by six appointees of President Obama, one of President George W. Bush, and one of President Trump. The only judgeship set to open this Congress is Judge Paul K. Holmes’ seat on the Western District of Arkansas, which is set to open on November 10. While Holmes gave plenty of warning, announcing his move on December 1, 2020, no nominee has been put forward by the White House. This is likely because the White House has been unable to reach an agreement with Arkansas Senators John Boozman and Tom Cotton. While, during the Obama Administration, Boozman supported and returned blue slips for five District Court nominees, including Holmes, Cotton has yet to approve any Arkansas nominee from a Democratic President. As such, it remains to be seen if a nominee can be put forward to fill the vacancy.

Iowa

The judges on the Northern and Southern Districts of Iowa are comparatively young, with four out of five being under the sixty (and two under the age of fifty). The lone exception is Judge John Jarvey who has announced his intention to retire on March 18, 2022. Given Iowa Senator Chuck Grassley’s role as Ranking Member of the Senate Judiciary Committee, the White House is likely to consult with him on Jarvey’s replacement. So far, no recommendations have been made public.

Minnesota

The U.S. District Court for the District of Minnesota has one vacancy, created when Judge Joan Ericksen moved to senior status on October 15, 2019. Senators Amy Klobuchar and Tina Smith sent a shortlist of candidates to fill the vacancy to the White House in early January but no nomination has been officially submitted yet. To compound the issue, additional vacancies may soon open as Chief Judge John Tunheim, who is eligible for senior status, steps down as Chief next year and as Judge Susan Nelson hits eligibility later this year.

Missouri

The Eastern and Western Districts of Missouri share an interesting quirk: they have sixteen active judgeships between them but only fourteen active judges. This is because two of the judges, Judge Rodney Sippel and Judge Brian Wimes, sit on both the Eastern and Western Districts. Counting each judge only once, the Districts are composed of eight Obama appointees, three Trump appointees, two Bush appointees, and one Clinton appointee. While there are no current vacancies, Sippel and Judge Henry Autrey are both eligible for senior status.

Nebraska

While currently without a vacancy, the District of Nebraska has an informal policy of judges moving to senior status as soon as they hit eligibility in order to best handle the caseload. The first judge to hit that eligibility threshold is Judge John Gerrard, who will hit it by the end of 2022.

North Dakota

With the two judgeships in North Dakota having been filled recently by President Trump, it’s extremely unlikely that either will open this Congress.

South Dakota

The three judgeship District of South Dakota is currently composed of two appointees of President Obama and one of President Clinton. It is set to have a vacancy open on October 1 when Judge Jeffrey Viken moves to senior status. In addition to Viken, Judge Karen Schreier became eligible for senior status on July 29 and may make the move as well. In April 2021, South Dakota Democratic Party Chairman Randy Seiler submitted three names to fill the vacancy: former Congresswoman Stephanie Herseth Sandlin; Cheyenne River Sioux Tribe Attorney General Tracey Zephier; and federal prosecutor Sarah Collins. A few weeks later, Herseth Sandlin took her name out of consideration. No nominee has been named to replace Viken yet.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. Last week, we covered the states in the Northeast. We move on to the Atlantic Coast.

Third Circuit

Court of Appeals

The fourteen judgeship Third Circuit, covering the states of Delaware, New Jersey, and Pennsylvania, has ping-ponged between narrow majorities of Republican-appointed and Democrat-appointed judges over the last two decades. Nonetheless, it has maintained a reputation for collegiality and moderation. Currently, the court has four judges appointed each by Presidents Bush, Obama, and Trump and two judges appointed by President Clinton. The Court has one vacancy for President Biden to fill, to be vacated by Clinton-appointee Theodore McKee upon confirmation of his successor. With McKee’s announcement coming just a couple of weeks ago, a nomination will likely not be made until October or November at the earliest.

Other than McKee, two judges are currently eligible for senior status. Chief Judge D. Brooks Smith, a moderate appointed by President Bush, has been a federal judge since 1988, has been eligible for senior status since 2016, has announced his selection as Penn State Law’s jurist in residence, and will end his tenure as Chief on December 4, 2021 (his 70th birthday). All of these signs suggest that Smith will either take senior status or retire upon the conclusion of his term as Chief, but this is, by no means, guaranteed. The other eligible judge is Clinton-appointee Thomas Ambro, who has made no indications that he plans to vacate his Delaware-based seat.

Furthermore, two more judges become eligible for senior status next year. Bush appointee Kent Jordan, based in Delaware, becomes eligible for senior status on October 24, 2022, and may choose to vacate his seat at that time. Obama appointee Joseph Greenaway has been a federal judge since 1996 and may choose to vacate his New Jersey based seat upon eligibility on November 16, 2022. Either way, it would not be surprising if an additional vacancy opened on the Third Circuit before the end of the 117th Congress.

Delaware

In theory, the district court in the President’s home state is unlikely to see any vacancies this Congress. However, both Judges Leonard Stark and Maryellen Noreika have been proposed as nominees to the Federal Circuit, and both could also be considered for the Third Circuit if Ambro or Jordan moved to senior status. If either or both are nominated, the resulting vacancies could allow Biden to expand his impact on the local district court.

New Jersey

Due to a standoff between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no judges were appointed to the District of New Jersey in the last four years. As a result, when Biden came into office, six out of the seventeen judgeships on the court were vacant. Since then, Biden has filled two of the vacancies, with Judges Julien Neals and Zahid Quraishi. Two more nominees, Christine O’Hearn and Judge Karen Williams, are currently pending on the Senate floor, while two vacancies, both in Newark, remain without nominees.

Of the eleven active judges on the court, only one, Chief Judge Freda Wolfson, is eligible for senior status, although Judge Noel Hillman will hit eligibility on December 22 of this year. Wolfson, a Democrat appointed to the Court by President Bush, may choose to serve out her term as Chief (in 2024), while Hillman, another Bush appointee, has made no announcements about taking senior status.

Pennsylvania

Pennsylvania is divided into three district courts: the Eastern District, based in Philadelphia; the Western District, based in Pittsburgh; and the Middle District, based in Harrisburg. Traditionally, Pennsylvania senators divided judicial nominations on a 3-1 ratio, with the White House appointing one judge of the opposing party for three of their own party. Examples of cross-party appointments include Judges Yvette Kane and R. Barclay Surrick under President Clinton; Judges Legrome Davis, Timothy Savage, David Cercone, and C. Darnell Jones under Bush; Judges Matthew Brann, Jeffrey Schmehl, Edward Smith, and Jerry Pappert under Obama; and Judges Susan Baxter, Robert Colville, and John Milton Younge under Trump. This tradition is expected to continue under Biden.

Currently, there are four vacancies on the Eastern District, and one vacancy on the Middle District. Pennsylvania Senators Bob Casey, a Democrat, and Pat Toomey, a Republican, opened applications for the Eastern District in January 2021 with a February 8 application deadline. They similarly opened applications for the Middle District vacancy in June 2021 with an application deadline of July 8, 2021. In the past, Casey and Toomey refrained from making their recommendations public, and, as such, no names are expected to come to light until announced by the White House.

In addition to the current vacancies, a number of judges are eligible for senior status. Specifically, Chief Judge Juan Sanchez, and Judges Cynthia Rufe, Gene Pratter, and Paul Diamond on the Eastern District are currently eligible to take senior status. Additionally, in October, Judge Robert Mariani on the Middle District becomes eligible for senior status. Judge Christopher Conner of the Middle District also reaches eligibility on October 25, 2022. In contrast, the Western District is unlikely to see any vacancies open this Congress, as the earliest any judge reaches eligibility is in 2024.

Fourth Circuit

Court of Appeals

The Fourth Circuit Court of Appeals used to have a reputation as one of the most conservative courts in the country. However, after President Obama named seven judges to the court in his two terms, the Court underwent an ideological transformation. Today, the Court frequently divides into a 9-6 liberal-conservative divide in en banc votes. The Fourth Circuit currently is composed of Judge J. Harvie Wilkinson, a Reagan appointee; Judge Paul Niemeyer, a George H.W. Bush appointee; Judges Diana Motz, Robert King, and Roger Gregory, Clinton appointees (although Gregory was confirmed as a George W. Bush appointee, he was recess appointed to the Court by President Clinton); Judge Steven Agee, a George W. Bush appointee; Judges Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris, Obama appointees; and Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing, Trump appointees.

Of the 15 judges on the court, eight are currently eligible for senior status, and a ninth becomes eligible next year. However, despite this, only one vacancy has been announced so far on the court, with Keenan taking senior status on August 31, 2021. Biden has already nominated Virginia Solicitor General Toby Heytens to replace Keenan. After a smooth confirmation hearing, Heytens is expected to reach the Senate floor in September, with a final confirmation vote by the end of October. Given the sheer number of Fourth Circuit judges who are eligible for senior status, it would not be surprising to see an additional vacancy or two open up before the end of the 117th Congress.

Maryland

The U.S. District Court for the District of Maryland has already undergone a change in the current Administration, as Biden has named two judges to the court: Lydia Griggsby and Deborah Boardman. In addition, the ten judgeship court has a third vacancy that awaits a nomination: with Judge Ellen Lipton Hollander taking senior status upon confirmation of a successor. A fourth vacancy could potentially open next year as Judge Paul Grimm becomes eligible for senior status on December 6, 2022.

North Carolina

While the three judicial districts that cover North Carolina (the Eastern, Middle, and Western) do not currently have any vacancies, two judges are eligible for senior status, Judge Terrence Boyle on the Eastern District, an appointee of President Reagan, and Judge Max Cogburn, an appointee of President Obama. As such, there remains the possibility that additional vacancies may open in North Carolina this Congress.

South Carolina

The U.S. District Court for the District of South Carolina currently lacks judicial vacancies and only has one judge eligible for senior status, George H.W. Bush appointee David Norton. However, a vacancy may also open next year if Judge Juliana Michele Childs is elevated to the Fourth Circuit or if Judge Richard Gergel takes senior status upon reaching eligibility.

Virginia

Divided between the Eastern and Western Districts, Virginia is served by 15 active judgeships. Currently, Virginia has three Clinton appointees, one Bush appointee, five Obama appointees, and four Trump appointees, with the remaining two judgeships vacant. Thanks to swift recommendations made by Virginia Senators, both vacancies have nominees: federal prosecutor Patricia Giles; and Magistrate Judge Michael Nachmanoff. However, an additional two vacancies are scheduled to open later year, when Judges James Jones and John Gibney move to senior status. Earlier this month, Senators Mark Warner and Tim Kaine recommended U.S. Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott as prospective nominees to replace Jones on the Western District. Warner and Kaine also accepted applications to fill Gibney’s seat with a deadline of July 19, but no recommendations have been made yet.

Additional vacancies are also possible, as Judges Leonie Brinkema and Raymond Jackson on the Eastern District are eligible for senior status.

West Virginia

Despite being a small state, West Virginia is covered by two judicial districts, the Northern and Southern. Between them, the two districts have two judges appointed each by Presidents Clinton, Bush, Obama, and Trump. Of those judges, Judges Joseph Goodwin and Robert Chambers, the two Clinton appointees, and Judge John Bailey, a Bush appointee, are currently eligible for senior status. Additionally, Judge Irene Berger, an Obama appointee, joins them in eligibility next year. Given that fact, it would not be surprising if one or more vacancies opened in West Virginia before the end of the 117th Congress.

D.C. Circuit

Court of Appeals

The oft-described “second highest court in the country”, the D.C. Circuit is considered by many to be the first among equals in the federal Courts of Appeal. As currently composed, the Court has eleven active judges, four appointed by President Obama, three by President Trump, two by President Clinton, and one each by Presidents George H.W. Bush and Biden. While Biden has already named Judge Ketanji Brown Jackson to replace now-Attorney General Merrick Garland, he has a second vacancy to fill. Judge David Tatel, who has served on the court since 1994, announced in February his intent to take senior status upon the confirmation of a successor. So far, no nominee has been put forward to replace Tatel, unusual given that the D.C. Circuit does not require negotiating with home state senators before making a nomination.

Other than Tatel, two judges on the D.C. Circuit are currently eligible for senior status: Bush appointee Karen Henderson; and Clinton appointee Judith Ann Wilson Rogers. Both have been eligible for years and have declined to make the move under Presidents of both parties. While either could take senior status this Congress, it would not be surprising to see both continue to be active for a few more years.

Additionally, there is always the possibility that, if a vacancy opens on the U.S. Supreme Court, Jackson is elevated and Biden gains the opportunity to fill her seat and maintain the court’s narrow liberal majority.

District of Columbia

The U.S. District Court for the District of Columbia is the sole trial court that feeds into the D.C. Circuit. It is also a court of many firsts: the first Article III trial court to have a female judge, and the first Article III trial court to have an African American judge. Today, the 15-member court has two vacancies, both with pending nominees on the Senate floor: D.C. Superior Court Judge Florence Pan; and civil rights attorney Jia Cobb. Of the remaining judges on the court, only one, Judge Colleen Kollar-Kotelly, is eligible for senior status. Barring any moves on her part, additional vacancies are unlikely.

Federal Circuit

Court of Appeals

The Federal Circuit is the newest kid of the block in terms of federal courts, having only been created in 1982. Unlike other federal courts of appeal, which hear appeals from geographic areas, the Federal Circuit is specialized by subject matter, hearing patent cases, as well as appeals from a variety of Article I and Article III tribunals. It is also the only circuit not to see a vacancy during the Trump Administration. However, so far, only eight months into the Biden Administration, it has already seen two. The first, opened by Judge Evan Wallach’s move to senior status in May, has already been filled by Judge Tiffany Cunningham. The second will open next March when Judge Kate O’Malley, an Obama appointee like Wallach, will retire. No nominee has been named for the second vacancy so far.

There is significant potential for additional turnover on the Federal Circuit. Setting aside O’Malley, another four judges on the Circuit are eligible for senior status: Judges Pauline Newman, Alan Lourie, Timothy Dyk, and Sharon Prost. Three of the four are over eighty years old, with one, Judge Newman, being 94 (and the oldest active judge on the Federal Courts of Appeal). Furthermore, Judge Jimmie Reyna, an Obama appointee, becomes eligible for senior status next year, creating another potential vacancy. To be fair, it is unlikely that all of these seats will open. However, the last time that the Federal Circuit had so many judges poised for senior status eligibility, in the late 2000s, then President Obama named seven judges to the Court. For his part, Biden already has the opportunity to name two and will likely get at least one more vacancy before the end of the 117th Congress.

Court of International Trade

The United States Court of International Trade adjudicates civil actions arising from customs and trade laws, and its cases feed into the Federal Circuit on appeal. The Court is composed of nine judges, and, by statute, no more than five of those can be of the same political party. As a result, Presidents frequently make cross-party appointments to avoid violating this threshold. Currently, the court has four Obama appointees, three Trump appointees, and two vacancies. There are currently two-cross party judges on the court: Obama appointee Jennifer Choe-Groves; and Trump appointee Timothy Reif. Thus, Biden cannot fill both vacancies on the court with Democrats. Of the judges serving on the bench, none is close to eligibility for senior status, which makes it unlikely that additional vacancies will open on the Court in the next year.

Court of Federal Claims

After years of chronic shortages, a surge of confirmations late in the Trump Presidency brought the Court of Federal Claims down to just three vacancies by the time Biden was sworn in. Since then, a fourth vacancy has opened with Judge Lydia Griggsby’s confirmation to the District of Maryland. Of the four vacancies, two have nominees: Armando Bonilla and Carolyn Lerner. With an overwhelming majority of the court having been appointed over the last two years, no new vacancies are expected on the court after the current ons are filled.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Northeast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We start with the states in the Northeast.

First Circuit

Court of Appeals

With just six active judgeships, the First Circuit is the smallest court of appeals in the nation, and the only geographically based appellate court that President Trump did not name a single judge to. The First Circuit tends to cycle between periods of significant turnover and periods of relative stability. For example, President George H.W. Bush named four judges to the court in four years in office. President Clinton then named two over eight years and President George W. Bush named just one in his eight. President Obama then replaced half the court in his two terms, followed by President Trump who named none.

Today, the court has five active judges: one appointed by Clinton; one by Bush; and three by Obama. A sixth judgeship, vacated by the death of Judge Juan Torruella last year is currently vacant, with a nominee, U.S. District Judge Gustavo Gelpi, waiting for a final confirmation vote on the Senate floor. However, a second vacancy is already teed up as the Rhode Island based Judge Ojetta Rogeriee Thompson is taking senior status on December 31, 2021. Rhode Island senators have already set up a selection process with the deadline set on August 4. This timeline could yield a new nominee by October 2021 and potentially even a confirmation by the end of the year.

More vacancies are possible this Congress. Judge Sandra Lea Lynch, appointed by President Clinton, has been eligible for senior status since 2011. Chief Judge Jeffrey Howard, the sole Republican appointee on the court, is also eligible for senior status but will likely stay active until his term as Chief concludes next year. However, even if neither moves to senior status, Biden will still have a chance to replace a third of the court.

Maine

The three judgeship District of Maine is unlikely to see much turnover this Congress, as the first judge to hit eligibility for senior status, Chief Judge Jon Levy, won’t hit it until 2024. His colleagues Nancy Torresen and Lance Walker have much longer to wait: until 2025 and 2037 respectively.

Massachusetts

The 13-judgeship District of Massachusetts is currently three judges short, with a nominee, Judge Angel Kelley, pending to the oldest vacancy. Kelley’s nomination was the product of a January 2021 convening of a Bipartisan Advisory Committee by Massachusetts Senators Elizabeth Warren and Ed Markey. The Committee was reconvened in March to produce nominees to replace Judge William Young, who was leaving active status. Presumably, the Committee has recommended candidates to fill the remaining vacancies on the court, which means that nominees may be forthcoming in the Fall.

Of the remaining ten active judges on the court, four are already eligible for senior status and a fifth, Judge Timothy Hillman, becomes eligible next year. As such, it is possible that more vacancies could open before the end of this Congress.

New Hampshire

The District of New Hampshire currently has one vacancy, opened by Judge Paul Barbadoro’s move to senior status on March 1. So far, there has not been a public announcement from New Hampshire’s senators on the selection process, and no nomination has been made.

Puerto Rico (not technically in the Northeast but covered under the First Circuit)

The District of Puerto Rico currently has one vacancy out of seven judgeships, but two others are poised to come open. Judge Gustavo Gelpi has been named to the First Circuit and is pending confirmation, and Judge Francisco Besosa has announced his intent to take senior status on January 1, 2022. The resulting three nominations, when they come, will encompass the largest turnover on the court since 2006 when Gelpi and Besosa were appointed. The third appointee from 2006, Judge Aida Delgado-Colon, is also eligible from senior status. If she so moved, Biden would have an opportunity to name a majority of judges on the court.

Rhode Island

Like it’s counterpart in Maine, the District Court for the District of Rhode Island has three judgeships, all of whom are not eligible for senior status this Congress. As such, no vacancies are expected this Congress unless Judge Mary McElroy, a longtime public defender and Democrat named to the court by Trump, is picked to replace Thompson on the First Circuit.

Second Circuit

Court of Appeals

The Second Circuit, based in New York, is one of the most prestigious court of appeals in the federal system. The Court, which has two vacancies, is closely divided ideologically. The active judges on the court are split 7-4 in favor of the court’s conservative wing, but this is mitigated by the senior judges, who sit frequently and include many prominent liberals. Biden has already named Judge Eunice Lee to the court and both the pending vacancies have nominees: voting rights attorney Myrna Perez and Vermont Supreme Court Justice Beth Robinson.

Setting aside Lee, the active judges on the Second Circuit include five appointees of President Trump (who are all years away from senior status), Chief Judge Debra Livingston (who is expected to serve out her term as Chief until 2027); and Obama appointee Raymond Lohier (who doesn’t hit eligibility until 2030). While it would be tempting to consider Judges Jose Cabranes and Rosemary Pooler, the last remaining of nine judges appointed to the Court by Bill Clinton, as likely moves to senior status, the judges (both octagenarians) have resisted senior status for years despite being eligible to do so. A more likely candidate to move to senior status is Obama-appointee Judge Susan Carney, who hits eligibility in September 2021.

Connecticut

The District of Connecticut currently has three vacancies out of eight judgeships. However, unlike most other states, all of Connecticut’s vacancies have nominees: U.S. Magistrate Judge Sarah Merriam; state judge Omar Williams; and federal prosecutor Sarala Nagala. The expected confirmation of the three this Fall would restore the court to a full complement of eight. However, Chief Judge Stefan Underhill is also eligible for senior status and may take it, creating an opportunity for a fourth appointment (It’s just as likely that Underhill serves out his term as Chief, which ends in 2025).

New York

One of only three states to be divided into four federal judicial districts, New York is currently bogged with a number of judicial vacancies. During the Obama Administration, Senators Chuck Schumer and Kirsten Gillibrand split up making recommendations to fill vacancies and each publicized names as they were sent to the White House. So far, Schumer has only made one district court recommendation public: voting rights attorney Dale Ho for the Southern District of New York (Ho has yet to be nominated).

Meanwhile, vacancies remain, with only the Western District of New York having a full complement of active judges. The Southern District of New York, one of the busiest courts in the country, is short four judges, with two of the vacancies dating back to 2018. The Eastern District of New York, despite having around half as many judgeships as its neighbor, also has four vacancies. The Northern District has only one vacancy, but, dating back to 2016, it’s one of the oldest vacancies in the nation.

Additionally, more vacancies may open in the coming year. Currently, three judges are eligible for senior status but have held off: Judge John Koeltl; Judge David Hurd; and Judge William Kuntz. Next year, three more become eligible: Judges Kiyo Matsumoto; Roslyn Mauskopf; and Glenn Suddaby.

Vermont

Vermont is one of only three states in the country to be served by only two district court judges (Idaho and North Dakota being the others). With both of Vermont’s judges a few years from eligibility for retirement, it is unlikely that any vacancies will open on the district court this Congress.

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.