If she brings the same cunning to the Seventh Circuit as a judge that she did as an advocate, she’ll be a force to be reckoned with.
Last week, President Trump announced that he’d nominate Rebecca Taibleson to serve on the U.S. Court of Appeals for the Seventh Circuit, replacing Chief Judge Diane Sykes in Milwaukee. I have written before about Judge Sykes and also about how best to fill her seat. Taibleson is just what the doctor ordered and will make a fantastic addition to the Seventh Circuit.
Taibleson is obviously well credentialed — something the president tends to like. A graduate of Yale Law School, she clerked for then-Judge Brett Kavanaugh and Justice Scalia (during the Obamacare term). She then worked at Kirkland & Ellis — we both started at the same time, which is how I got to know her, as one of the other conservative associates — before becoming an assistant U.S. attorney in Milwaukee. While serving in that position for almost a decade, she spent a fair part of the last Trump administration on a detail to the Office of the Solicitor General. She also testified forcefully in favor of Kavanaugh during his confirmation process, while doing all the unglamorous work she could behind the scenes from Milwaukee. Beyond that, as Josh Blackman has noted, her dad was a staunch conservative at what’s now Antonin Scalia Law School.
As to the Seventh Circuit, the fact is that both Presidents Trump and Biden each radically altered its makeup. Trump replaced liberals Terry Evans and Ann Williams with conservatives Mike Brennan and Amy St. Eve, moderate-Republican John Tinder with conservatives Amy Barrett and then Tom Kirsch, and eccentric Richard Posner with moderate-Republican Mike Scudder. Things looked great for the Seventh going forward.
Then the Biden administration happened. Biden in his four years replaced conservative Joel Flaum with arch-liberal Candace Jackson-Akiwumi and liberals Diane Wood and Ilana Rovner with younger liberals John Lee and Nancy Maldonado. Thanks to the savvy of Senator Todd Young (R., Ind.), Biden replaced the formidable liberal David Hamilton with moderate-liberal Doris Pryor and arch-conservative Mike Kanne with moderate Josh Kolar.
The result is that on an eleven-judge court, five were appointed by Biden, four were appointed by Trump, and no more than around half of the court is either a down-the-line, dyed-in-the-wool liberal or conservative. Which means victory — both on panels and en banc — comes from building effective coalitions.
Taibleson is ideally situated to do that. For one thing, she will enter the court with tremendous goodwill among its reasonable members, as one of the best appellate advocates within the circuit, possessed of credentials that rival her genius future colleagues Frank Easterbrook and Mike Scudder.
In this respect, she looks a lot like Judge Eric Murphy on the Sixth Circuit in Ohio. Murphy, a Wilkinson and Kennedy clerk, was solicitor general of Ohio until his appointment. I recall hearing at the time even from liberals (I was in the Office of Legal Policy, shepherding Murphy’s confirmation) that he had set a new bar for appellate advocacy in that court. Murphy has gone on to be — according to a prominent academic study — one of the most productive and influential circuit judges in the country. Importantly, these lists also include St. Eve and Scudder of the Seventh Circuit. It stands to reason that a Murphy-like judge would be able to work productively with those two majority-makers of the en banc Seventh Circuit.
The fact is that, with Taibleson, this isn’t a theoretical ability to move the center of the Seventh Circuit to the right: She has already done it. In the case U.S. v. Royel Page, the government successfully prosecuted Mr. Page for conspiring to sell heroin. Importantly, the district judge overseeing the case was Mike Scudder, sitting by designation as a trial judge in Milwaukee. An all-liberal panel of the court of appeals, led by the arch-liberal Jackson-Akiwumi, reversed the conviction, saying that Scudder had erred by failing to instruct the jury that they could find Page was merely engaged in a buyer-seller activity of “distribution-level” heroin, not a conspiracy.
The case went en banc and Taibleson argued it. If you listen to the argument, you can tell that it wasn’t Taibleson versus Page’s lawyer; it was Taibleson versus Jackson-Akiwumi. Because Scudder was the judge below, he was recused, which meant that Taibleson needed to win over at least one of the moderate Biden judges (Pryor or Kolar) to win the case. She got them both. Furthermore, she got them both to agree that the en banc court needed to clarify two areas of the criminal law — buy-sell instructions and plain-error review — where the circuit had strayed from Supreme Court precedent to favor criminal litigants. The liberal rump was left fuming for 62 unreadable pages in dissent.
Query whether the panel in Royel Page thought it could “do a little justice” with Scudder recused. What it didn’t count on was that Taibleson, through persuasive force, would not just get the panel reversed — with or without Scudder — but also seize the opportunity to fix two areas of bad criminal law on the Seventh Circuit.
President Trump has said he wants “bold and fearless” judges. Taibleson’s unwavering support for Brett Kavanaugh showed just that. But he should also want effective judges. With Taibleson that’s not speculative. If she brings the same cunning to the Seventh Circuit as a judge that she did as an advocate, she’ll be a force to be reckoned with.