Bench Memos

Law & the Courts

Trump to Get Another D.C. Circuit Vacancy to Fill

President Trump talks to reporters as he stands with Republican Senate leaders on Capitol Hill, January 9, 2019. (Jim Young/Reuters)

Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit has announced his plan to retire from the court on September 1. Although he is eligible to take senior status, it appears he plans to retire altogether.

Judge Griffith’s retirement will give President Trump a third opportunity to appoint a judge to the D.C. Circuit. (He previously appointed Greg Katsas and Neomi Rao.) Although September is late in the year, the administration has enough advance notice to have a nominee ready to go in time to fill the spot before the end of the year, either before or after the election. Given the importance of the D.C. Circuit, there is no question Senate majority leader Mitch McConnell will make filling this seat a top priority.

Who will the nominee be? It’s an excellent question. There is a wealth of highly qualified lawyers, jurists, and academics from which the administration could draw this pick. Those likely to be considered for the seat include deputy White House counsels Kate Todd and Patrick Philbin, Paul Weiss partner Kannon Shanmugam, Steven Engel at the Office of Legal Counsel, and solicitor general Noel Francisco.

Some other names that might end up in the mix would include D.C. District Court judge Carl Nichols, ambassador Chris Landau, Labor Department solicitor Kate O’Scannlain, and former associate attorney general Rachel Brand.

Some academics who could get a look (should the administration want to go in that direction), include UVA’s Aditya Bamzai, Minnesota’s Kristin Hickman, GMU’s Jennifer Mascott, and BYU’s Aaron Nielson. 

As you can see, there’s a deep bench for this spot, so if the administration moves quickly, it has the opportunity to place another excellent nominee on this important appellate court.

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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