President Donald Trump has announced the names of 10 nominees he is putting forward to fill vacancies on federal courts around the country. Much like the list he released last year of potential Supreme Court candidates, these lower-court picks are all accomplished and respected legal figures. Unlike the SCOTUS list, however, this group features not only sitting judges, but also law professors and practicing attorneys.
This batch of lower-court nominees leans heavily in the direction of traditional legal conservatism. For instance, there is Michigan Supreme Court Justice Joan Larsen, who served in the Justice Department during the George W. Bush administration and who is known as a strong advocate of executive power and as a proponent of the use of presidential signing statements. Trump has nominated Larsen to the U.S. Court of Appeals for the 6th Circuit.
The list also features conservative advocates of judicial deference to government regulation. The distinguished Notre Dame law professor Amy Coney Barrett, for example, who Trump has nominated to the 7th Circuit, is a sharp critic of the libertarian legal movement's calls for greater judicial protection of economic liberty. Her writings include a defense of "deferential judicial review of run-of-the-mill legislation" on the grounds that such judicial deference "is consistent with the reality that the harm inflicted by the Supreme Court's erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute."
But it's not all judicial deference all the way down. For example, Trump's nominee to the U.S. Court of Federal Claims is Damien Schiff, a senior lawyer at the Pacific Legal Foundation, a public-interest law firm that routinely defends the rights of entrepreneurs and property owners. Schiff is a skilled litigator who is perhaps best known for arguing and winning the 2012 case of Sackett v. Environmental Protection Agency before the U.S. Supreme Court. At issue in that dispute was whether the EPA's use of "administrative compliance orders," which were basically government commands to property owners, should be subject to judicial review under the Fifth Amendment's Due Process Clause. The EPA lost 9-0. In contrast to Professor Barrett, Schiff has said that the federal courts should play a more aggressive role when it comes to policing the other branches and striking down economic regulations. He has written favorably about the idea that "there will be a legitimate and prominent role for considerations of economic liberty" at the Supreme Court.
Notably, this round of lower-court nominations does not address the two Texas vacancies that currently need to be filled on the U.S. Court of Appeals for the 5th Circuit. As Legal Times reported back in February, the Trump administration has been eying six candidates for those two spots. The most notable of the six is libertarian-minded Texas Supreme Court Justice Don Willett. Because Willett previously appeared on Trump's list of possible SCOTUS nominees, it would seem natural for Willett to get the nod to the 5th Circuit. But as Above the Law's David Lat has recently reported, Willett's chances may be in trouble due to the machinations of several Texas politicians, including Gov. Greg Abbott, who are backing different candidates. Apparently those machinations are still unfolding.
Here is the complete list of lower-court nominees announced yesterday by the Trump administration:
- Notre Dame law professor Amy Coney Barrett, nominated to the U.S. Court of Appeals for the 7th Circuit.
- Attorney John Bush, nominated to the U.S. Court of Appeals for the 6th Circuit.
- Attorney Dabney L. Friedrich, nominated to the U.S. District Court for the District of Columbia.
- Justice Joan Larsen of the Michigan Supreme Court, nominated to the U.S. Court of Appeals for the 6th Circuit.
- Magistrate Judge Terry F. Moorer of the U.S. District Court for the Middle District of Alabama, nominated to be a district judge on that court.
- Attorney Kevin Newsom, nominated to the U.S. Court of Appeals for the 11th Circuit.
- State Trial Judge David C. Nye of Idaho, nominated to the U.S. District Court for the District of Idaho.
- Scott L. Palk, currently assistant dean for students and assistant general counsel at the University of Oklahoma College of Law, nominated to the U.S. District Court for the Western District of Oklahoma.
- Attorney Damien Schiff, nominated to the U.S. Court of Federal Claims.
- Justice David Stras of the Minnesota Supreme Court, nominated to the U.S. Court of Appeals for the 8th Circuit.