The Volokh Conspiracy

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Here come Trump's judges: President to put forward more strong judicial nominees


President Trump surprised some of his critics (including me) by sticking to his pledge to nominate a highly qualified Supreme Court justice from the list he circulated prior to the election. He followed up his nomination of Neil Gorsuch with the nomination of Judge Amal Thupar to the U.S. Court of Appeals for the 6th Circuit. Thapar's nomination has cleared the Senate Judiciary Committee and his confirmation should follow shortly.

Monday, according to Adam Liptak in the New York Times, Trump will announce 10 more judicial nominees to lower courts. The nominees make up an impressive list of highly respected jurists, attorneys and legal thinkers. Those of us who doubted Trump would take judicial nominations seriously may have some crow to eat. Especially when one looks at the names to be announced for appellate court vacancies, this is as strong a list of nominees as one could hope for.

Among the nominees to be announced tomorrow are two state supreme court justices Trump had identified as potential U.S. Supreme Court nominees: Justice Joan Larsen of Michigan and Justice David Stras of Minnesota, who are to be nominated to open seats on the U.S. Courts of Appeals for the 6th and 8th Circuits, respectively. It's quite clear why the president would nominate these two jurists to appellate courts. If they were sufficiently qualified to make his Supreme Court shortlist, they're clearly qualified for circuit courts. (One could say the same for Texas Supreme Court Justice Don Willett, given there are two vacancies on the U.S. Court of Appeals for the 5th Circuit, but there are reports he might get squeezed out due to local political considerations, i.e. he's neither Sen. John Cornyn's (R) nor Gov. Greg Abbott's (R) favored nominee. Were that to happen, it would be a shame.)

Trump's other appellate nominees are equally impressive: attorneys Kevin Newsom for the U.S. Court of Appeals for the 11th Circuit, John Bush for the U.S. Court of Appeals for the 6th Circuit and perhaps most notably Notre Dame law professor Amy Coney Barrett for the U.S. Court of Appeals for the 7th Circuit.

Newsom clerked for Supreme Court Justice David Souter, served as the solicitor general of Alabama and wrote a well-regarded article for the Yale Law Journal, "Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases."

Barrett clerked for Supreme Court Justice Antonin Scalia, served for six years on the Advisory Committee for the Federal Rules of Appellate Procedure and has an impressive scholarly record.

Bush is an accomplished litigator and president of the Louisville Lawyers' Chapter of the Federalist Society. He served on the Sixth Circuit's Advisory Committee on Rules from 2012 to 2015.

In addition to the appellate nominees noted above, Trump is poised to nominate Damien Schiff of the Pacific Legal Foundation to the U.S. Court of Federal Claims. Among other things, Schiff successfully argued Sackett v. U.S. Environmental Protection Agency before the U.S. Supreme Court. Trump will also name several district court nominees. From the Times report:

Dabney L. Friedrich, until recently a member of the United States Sentencing Commission, to the Federal District Court for the District of Columbia; Magistrate Judge Terry F. Moorer of the Federal District Court in Montgomery, Ala., to be a district judge there; David C. Nye, a state judge in Idaho, to the Federal District Court there; and Scott L. Palk, an official at the University of Oklahoma College of Law, to the Federal District Court in Oklahoma City.

[UPDATE: I should have noted that both Nye and Palk were originally nominated by President Obama, likely with the support of their home state Senators.]

Additional nominees are likely to follow in the weeks ahead—after all, there are lots of vacancies to fill. Based on those to be made this week, it's something to look forward to.