Bench Memos

Law & the Courts

Here Come the Judges?

As of May 1, there are 129 federal court vacancies, including 20 on the federal appellate courts. 17 more vacancies are pending. This presents Trump with a substantial opportunity.

As of May 1, President Trump had made only one nomination to a lower federal court: Judge Amul Thapar to an open seat on the U.S. Court of Appeals for the Sixth Circuit. The Senate Judiciary Committee held a hearing on Thapar’s nomination last week, and it appears he will be quickly confirmed.

According to David Lat, the Trump Administration is preparing to announce a group of additional nominations to federal appellate courts later this month. Further, as Lat reports here and here, the list of nominees is incredibly promising. Most of the names under discussion are highly qualified individuals who would make principled and effective jurists.

As Lat notes, anyone on a lower court or state court on Trump’s Supreme Court short list is almost a shoo-in for an appellate nomination, provided there’s an applicable vacancy. This would suggest good news for state supreme court justices like Minnesota’s David Stras (Eighth Circuit), Allison Eid (Tenth Circuit), and Texas’ Don Willett.  It also suggests that Michigan’s Joan Larsen is the front runner for the Michigan spot on the U.S. Court of Appeals for the Sixth Circuit created by Judge David McKeague’s announcement that he will take senior status when his replacement is confirmed.

Lat also identifies some other promising potential nominees, such as Notre Dame law Professor Amy Comey Barrett (Seventh Circuit), former Texas Solicitor General James Ho (Fifth Circuit), and former Alabama Solicitor General Kevin Newsom (Eleventh Circuit), as well as some individuals he expects to come under consideration when new vacancies arise (such as West Virginia Solicitor General Elbert Lin (Fourth Circuit) and Idaho attorney Ryan Nelson (Ninth Circuit)).

Lat’s reporting is consistent wth my understanding, though (as he notes) we won’t know what President Trump is going to do until he actually does it. While I might prefer some of the folks Lat mentions to others, the overall list of possible nominees is incredibly encouraging.

One wrinkle: In some cases, the path to confirmation is relatively easy because the relevant states have two GOP Senators. In others, however, the Trump Administration will have to consider whether Democratic Senators will return blue slips on principled conservative nominees. Then again, as Lat reports, “My sources say the Republicans will have no qualms about going nuclear on blue slips if they feel the Democrats are abusing them.” Stay tuned.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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