We seem to be approaching the end of this season of Trump appellate nominees. Let’s see where things stand in terms of the kinds of people being picked.
Trump has nominated eleven people to serve on the courts of appeals.
- Of these only one (Becca Taibleson) went to Harvard, Yale, or Stanford (Yale, in her case).
- Six (55 percent) went to “T14” (top 14) schools.
- Nine (82 percent) graduated with high honors, while four (36 percent) were top of their class.
- Seven of them (64 percent) were on law review.
- Six (55 percent) clerked for the Supreme Court.
- Nine (82 percent) clerked for a court of appeals (Justin Smith and Mack Traynor being the only exceptions, and Traynor clerked for the North Dakota Supreme Court).
- Nine (82 percent) had “BigLaw” experience.
- All but the Second Circuit’s Matt Schwartz (91 percent) have what could be termed “political” experience.
In other words, the earlier trend has continued. Trump has been picking nominees who have excellent — but not “elite” — credentials. They’re the sort of people who have all the tells of natural legal aptitude (superlative law school performance and competitive early-career jobs like prestigious clerkships and experience in BigLaw). They also have some indication of political acumen (whether that’s work in a Trump administration, a state attorney general’s office, or activity in state-level Republican politics).
How does this compare to Trump 45?
All told, this first crop of eleven isn’t too different from the last time around with Donald Trump.
Last time around, among the first eleven picks:
- Four (36 percent) attended Harvard, Yale, or Stanford, and eight (73 percent) attended a T14 school.
- Four (36 percent) were high honors, six (55 percent) were on law review, and one (Amy Barrett) was top of class, so somewhat less academic excellence.
- Six (55 percent) were SCOTUS clerks, and nine (82 percent) clerked on the court of appeals, which tracks the current batch.
- Eight of them (73 percent) had political experience, and the same number had BigLaw experience.
There are slight differences in that the current crop is markedly less elite than last time but somewhat more political and academically superior.
How does this compare to Biden?
The differences compared to Biden’s first eleven can be stark. (The Judiciary Committee doesn’t keep all these questionnaires online so it’s pieced together.)
- Six (55 percent) of the Biden nominees were HYS (four having gone to Yale), and nine (82 percent) were T14.
- Only two (18 percent), Beth Robinson and Toby Heytens, received high honors, and four of them (36 percent) seem to have been on law review.
- Two (18 percent) clerked for SCOTUS, while eight (73 percent) clerked on the court of appeals.
- Five (45 percent) were public defenders, two (18 percent) apiece were employee-side plaintiff lawyers or blue-state government officials, and one worked for the Brennan Center while the other worked for Senate Democrats.
- In spite of left-wing harping against BigLaw, eight (73 percent) of them spent time in those salt mines.
You therefore see more of a commitment to elite credentialing but a relative dearth of academic achievement. Again, the high honors and SCOTUS numbers are stark. You also have a universal commitment to indicia of a progressive mindset.
How does this all compare to the filibuster era?
A common refrain is that we should bring back the filibuster because it forced “moderate” picks. Leaving aside that the judicial filibuster was a historical aberration, let’s look at what the first eleven confirmed picks looked like for Barack Obama and George W. Bush along these same metrics (with the caveat that, the further back you go, the harder it can be to track this down).
Obama:
- Two (18 percent) attended HYS, and five (45 percent) attended a T14 school.
- Two (18 percent) were high honors, two (18 percent) were on law review, and one (Gerard Lynch) was top of class.
- One (Gerard Lynch) was a SCOTUS clerk, and three (27 percent) clerked on the court of appeals.
- Only a few seem to have had political or BigLaw experience, but a staggering ten (91 percent) had prior judicial experience.
George W. Bush (excluding Democratic picks):
- Three (27 percent) attended HYS, and five (45 percent) attended a T14 school.
- Three (27 percent) were high honors, and two (18 percent) were on law review.
- There were no SCOTUS clerks, and four (36 percent) clerked on the court of appeals.
- Eight (73 percent) had prior judicial experience, while almost none had spent time in BigLaw.
Did the existence of the filibuster require “moderate” picks? I’m not sure. It sure seems to have required picks that were — with some notable exceptions — consistently lacking in the standard indicia of native aptitude (excellent law school performance and competitive clerkships and early-career work). At the same time, prior judicial experience was strongly favored. This seems to have applied both to Obama and Bush.
What does this mean going forward?
There’s still a vacancy pending in the Fifth Circuit in Louisiana and — who knows? — maybe one or two more will still pop up. This analysis of the Trump 47 judges confirms my recent speculation that the three front-runners for the Louisiana seat are probably Ben Aguiñaga, Anna St. John, and James Baehr.
- Ben Aguiñaga — attended LSU (don’t know his record); clerked for SCOTUS (Alito) and the Fifth Circuit (Edith Jones); has political experience (Trump DOJ and solicitor general of Louisiana); spent time at Jones Day.
- Anna St. John — attended Columbia Law, where she was a James Kent scholar (high honors); clerked for the Fifth Circuit (Rhesa Barksdale); has political experience (did election-day operations for Senator Kennedy); spent time at Covington & Burling.
- James Baehr — attended the University of Virginia (don’t know his record); clerked on the Fifth Circuit (Edith Clement); has political experience (Trump 45 domestic policy council; current general counsel of the Department of Veterans Affairs); spent time at Skadden.
As I have said repeatedly, this is Senator Kennedy’s call in the end, but if those three are in the field, any of them would fit in perfectly with the current administration’s approach to circuit judges. I’d expect something similar with any last-minute vacancies.