As reflected by the upcoming return of the travel ban to the U.S. Supreme Court, the success of President Donald Trump in advancing his agenda depends in significant part upon the federal judiciary — and the identity of its members. This explains why, despite all the Sturm und Drang at the White House, the Trump Administration continues to move forward diligently on judicial nominations. Many of President Trump’s initiatives might get stuck in Congress, struck down by courts, or undone by his successor — but his appointees to the federal bench, appointed for life, will be around for a long, long time (especially given the administration’s focus on youth when selecting nominees).
The administration continues to stay the course on judicial appointments. Earlier this month, President Trump renominated 21 judicial picks whose nominations automatically lapsed at the end of 2017.
And Republican Senators continue to do their part as well. Congress has been focused this week on averting a government shutdown, but that hasn’t stopped the Senate from making progress on nominations. Yesterday the Senate Judiciary Committee approved 17 of Trump’s judicial nominees, sending them to the Senate floor for confirmation votes.
Of the 17 nominees, eight were approved on 11-10, party-line votes, with only two winning unanimous support. Three of the nominees are up for appellate- or circuit-court seats, and the other 14 are for trial-
or district-court seats. (You can see the names of the 17 on the SJC website, with “January 18, 2018” next to their names.)
When will we see floor votes for the SJC-approved nominees? It could take a while. As I previously explained, when discussing the sorry state of Justice Department nominations, the Senate Democrats are invoking procedural rules that require 30 hours of “debate” on every nominee. There’s often no actual debate, but this does require the passage of Senate floor time — so it could actually take weeks to get all 17 confirmed (despite Senate Majority Leader Mitch McConnell’s effort to prioritize and fast-track judicial nominations).
Could this change? Quite possibly. If Republicans get fed up with the slow progress, they could invoke the “nuclear option,” just as the Democrats did regarding the judicial filibuster, and abolish or amend the 30-hour rule by majority vote. I predict that changes will be made at some point, unless the Democrats relent; otherwise it will take years to get all of Trump’s nominees confirmed. (One possible reform, suggested by Senator James Lankford (R-Okla.), would reduce the required debate to two hours for district-court nominees, but leave the 30 hours in place for circuit-court nominees.)
In light of the new year and recent activity, now is a good time for me to revisit judicial nominations. I haven’t written in any depth about the subject since last September, before my paternity leave and job change here at Above the Law, even though the subject is near and dear to my heart.
Today I’m going to conduct a round-up of nomination news in the different judicial circuits up through and including the Fifth Circuit. Next week I will cover the remaining circuits. This time around, in a departure from my past practice, I will include discussion of interesting district-court as well as circuit-court news.
As of this writing, there have been 23 judicial confirmations during the Trump Administration — which gives President Trump the record for the most federal appellate judges confirmed in the first year of a presidency. There are 145 current judicial vacancies, with 43 nominees pending, and 26 future judicial vacancies, with one nominee pending. (When the vacancy date for a future vacancy is listed as “TBD,” that generally means the sitting judge has announced her intention to retire upon confirmation of a successor, which makes that “future” vacancy really the same as a current vacancy.)
As you read through this round-up, here are some useful links that you should keep on hand for ready reference:
Now, on to the circuits. If you have additional information or tips, please email me (subject line: “Judicial Nominations”). I’m especially interested in information about the Sixth through Eleventh Circuits, which I will write about in a separate story next week, but of course I welcome comments and corrections about any of the discussion appearing below.
After the November confirmation of former Deputy White House Counsel Gregory Katsas as the newest member of this extremely powerful and prestigious court, there are no new openings on this bench.
As for the (also very important and influential) District Court, there is currently one opening: the seat formerly held by Chief Judge Richard Roberts, who retired in the wake of rape allegations back in March 2016 (well before the current national reckoning over sexual misconduct by powerful men). Judges Timothy Kelly, Trevor McFadden, and Dabney Langhorne Friedrich were confirmed to the D.D.C. in late 2017.
There are currently no openings on the Federal Circuit.
There are no vacancies on this smallest of the circuit courts (with just six judgeships), but there are five open district-court seats — two in Massachusetts, one in Maine, one in Puerto Rico, one in Rhode Island — and no nominees for them yet.
For the two vacancies on the Second Circuit, both seats in New York, the White House has sent four names to Senators Chuck Schumer and Kirsten Gillibrand: Judge Richard Sullivan (S.D.N.Y.); Matthew McGill, a partner at the law firm Gibson, Dunn & Crutcher in Washington; Nicholas Quinn Rosenkranz, a professor at Georgetown University Law Center; and Michael Park, a partner at the law firm Consovoy McCarthy Park in New York.
Who has the edge for the two seats? I’m hearing Judge Sullivan and Professor Rosenkranz are the most likely picks, but please let me know if I’m wrong.
As for the district courts within the Second Circuit, there are ten vacancies, in the Eastern District of New York (4), the Southern District of New York (3), the Northern District of New York (1), the Western District of New York (1), and the District of Connecticut (1). Only the Connecticut seat has an official nominee (Judge Kari A. Dooley of the Connecticut Superior Court), but the White House floated several names to the New York senators last summer as well. I wouldn’t expect much movement anytime soon, though, given the blueness of the states at issue.
Professor Stephanos Bibas of Penn Law is now Judge Stephanos Bibas of the Third Circuit, as of November 2, 2017. Two vacancies remain, the seats of Judges D. Michael Fisher (Pennsylvania) and Julio M. Fuentes (New Jersey), and neither has a nominee.
There are a slew of current and future district-court openings throughout the circuit, a grand total of 19: the District of Delaware (2), the District of New Jersey (5), the Eastern District of Pennsylvania (4), the Middle District of Pennsylvania (1), and the Western District of Pennsylvania (7). Only five of these seats have nominees.
For Delaware, the nominees are Colm Connolly, former U.S. Attorney and current Morgan Lewis partner, and Maryellen Noreika, an IP litigation partner at Morris Nichols. For one of the Eastern District seats, the nominee is Judge Chad F. Kenney, currently on the Court of Common Pleas (Pennsylvania’s state trial court). For two of the Western District seats, the nominees are Judge Susan Paradise Baxter, currently a Magistrate Judge for the District, and Judge Marilyn Jean Horan, also on the Court of Common Pleas.
Fun fact: several of these folks have been judicial nominees before. Colm Connolly was nominated by President George W. Bush, while Judges Baxter and Horan were nominated by President Obama. As sitting judges previously nominated under the administration of the other party, Baxter and Horan should have easy confirmations.
Now, on to the other courts….
(Flip to the next page to read about the remaining circuits.)Be Sociable, Share!