The new vacancy on the Eighth Circuit is more important than it seems. The court is the most lopsidedly Republican court in the country, with ten active judges nominated by Republicans and only one Democrat, Jane Kelly. That said, you don’t hear about it much. The Fifth Circuit is constantly pushing the bounds of judicial conservatism — to the apparent annoyance of the Supreme Court. The Sixth Circuit does the same but, it seems, with less hostility from above. The Third Circuit is increasingly making a name for itself with its rare combination of strong Trump judges and sane Biden judges. The sprawling “mighty Eighth” should be at the top of that list, but it just isn’t.
It’s a court whose membership has been broadly stable over time. Many of its Republicans going back to the Reagan administration came from a “prairie Republicanism” that wasn’t all that ideological, unlike stalwarts of the time such as Jerry Smith, Edith Jones, and Diarmuid O’Scannlain. At the same time, it included outsized liberal lions like Diana Murphy, Kermit Bye, and (Bill Clinton’s supposed SCOTUS preference) Richard Arnold. As a result it has a lot of ossified bad precedent for a 10–1 Republican court.
Some of that history has been challenged since the arrival of the Trump judges. Minnesota’s David Stras, has largely led this charge. A Thomas clerk, law professor, and in his early 40s when appointed with a busted blue slip, Stras is an archetypical Trump judge. Some of the other judges from the first Trump administration pushed boundaries as well. Steven Grasz in Nebraska was the first ABA “not qualified” nominee, due most likely to the enemies he made in the liberal bar when he was Nebraska’s hard-charging attorney general. South Dakota’s Jonathan Kobes got that same ABA badge of honor because, while we were able to find him — a Harvard-educated circuit clerk in South Dakota — we found him working for Senator Mike Rounds and not doing Perry Mason work on grain-elevator fires.
The Trump judges this time around have been cast from similar molds. Justin Smith in Missouri was a mastermind behind his state’s high-quality conservative litigation in recent years who went on to represent the president at Solicitor General John Sauer’s old firm. Daniel Traynor in North Dakota was a staunch (and aggressive) defender of the Constitution on the district court for the six years since Trump put him there. It’s a safe bet that both will be willing and able to do the work needed to bring the Eighth Circuit in line with contemporary conservative jurisprudence.
That makes five Trump judges ready to take the Eighth Circuit where it should be. Opposed to them are the lone liberal, Kelly, who — to the public annoyance of Senator Eric Schmitt — seems to be everywhere, and the Republican Chief Judge Steven Colloton — both of Iowa. Colloton, a Rehnquist clerk with significant D.C. legal experience and time on a Trump SCOTUS list, has increasingly become a centrist antagonist to the likes of Stras and the other Trump judges. For example, he recently dissented from the denial of en banc review (6–5) in a Stras opinion involving bond hearings for aliens, and dissented in an en banc review of Missouri’s unconstitutional lobbying restrictions. Stras, on the other hand, has frequently dissented from Colloton opinions involving the Second Amendment.
The latest vacancy on the Eighth Circuit basically comes down to whether the Trump-judge faction of the Eighth Circuit, intent on making it great again, will have a stable en banc majority of the court, or whether the court’s liberal-moderate alliance will be able to preserve the Clinton-era caselaw going forward.
It seems that the field for the seat is probably Nicholas Bronni, Lee Rudofsky, and Cody Hiland.
- Nicholas Bronni (b. 1982 or 1983) — An associate justice of the Arkansas Supreme Court, Bronni was previously the Arkansas solicitor general. He went to the University of Michigan for law school (magna cum laude) and clerked for Jay Bybee on the Ninth Circuit. He worked at Gibson, Dunn & Crutcher and was an appellate lawyer at the Securities and Exchange Commission.
- Lee Rudofsky (b. 1979) — A district judge for the Eastern District of Arkansas, Rudofsky was also solicitor general of Arkansas. He went to the Harvard Law School and clerked for Judge Andrew Kleinfeld of the Ninth Circuit. He worked at Kirkland & Ellis, Walmart, and as deputy general counsel to the Romney campaign in 2012. His decision that there’s no private right of action under the Voting Rights Act was upheld by the Eighth Circuit and probably cost Mark Elias millions.
- Cody Hiland (b. 1972) — An associate justice of the Arkansas Supreme Court, Hiland was U.S. Attorney for the Eastern District of Arkansas and chairman of the Arkansas GOP. A graduate of the University of Arkansas (William H. Bowen), he was the elected prosecutor for Arkansas’s 20th Judicial District including Faulkner, Van Buren, and Searcy Counties. He practiced law in Faulkner County, and was a staff attorney with the Arkansas Public Service Commission and program director for the Arkansas Transitional Employment Board.
If the rumors are right, it’s up to the president to figure out which of these picks will allow him to fully transform the Eighth Circuit into the staunchly conservative court it ought to be.