The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Trump administration is adding more names to the already impressive list of federal judicial nominees pending in the Senate. Most notably, the administration tapped four accomplished attorneys for open seats on the U.S Court of Appeals for the 5th Circuit, in addition to putting additional candidates for other courts.
The highest-profile appointments are likely the two from Texas: Justice Don R. Willett and James Ho. There have been two Lone Star State vacancies on the 5th Circuit since the start of the administration, and substantial speculation about who among several highly qualified potential nominees would get the nod. At last, the wrangling is over, and the picks have been made.
Willett is no stranger to #appellatetwitter, as he has a highly popular Twitter account. He has also attracted notice for his libertarian-leaning legal opinions, most notably one in which he adopted a more stringent form of rational basis scrutiny to strike down state cosmetology licensing regulations as applied to eyebrow threading. He was also on the short list of potential Supreme Court nominees then-candidate Trump released during the campaign.
Willett's Twitter use may raise some eyebrows, if only because he's almost certainly the first federal appellate court nominee with such an active and high-profile social media presence, yet there's hardly anything on his feed that would seem objectionable. Most of his posts consist of witticisms and historical curiosities. He may not have always tweeted favorably about then-candidate Trump during the Republican primary, but insofar as he was critical of Trump back then, his nomination only speaks to the caliber and seriousness of this administration's judicial selection process, that any such tweets were considered far less important than the nominee's qualifications.
Ho is a partner at Gibson Dunn in Dallas. A former law clerk to Justice Clarence Thomas, he previously worked for Sen. John Cornyn (R-Tex.) and served as Texas solicitor general. He's also the author of this nice little piece on birthright citizenship and the original understanding of the 14th Amendment. I also believe Ho would be the first Asian American judge on the 5th Circuit once confirmed. Ho is a naturalized citizen who was born in Taiwan.
The other two 5th Circuit picks are from Louisiana: Judge Kurt Engelhardt and Kyle Duncan, one of which fills an open seat just created by Judge Edith Brown Clement's decision to take senior status upon the confirmation of her replacement.
Engelhardt is currently the chief judge of the United States District Court for the Eastern District of Louisiana, a court he joined in 2001 as an appointee of President George W. Bush.
Duncan is a principal at Schaerr Duncan LLP, having previously served as solicitor general for Louisiana and general counsel for the Becket Fund for Religious Liberty. As his resume might suggest, Duncan has been heavily involved in high-profile religious liberty cases. Among other things, Duncan was counsel of record in Hobby Lobby v. Burwell. More recently, he represented the Gloucester County school board in G.G. v. Gloucester County.
I suspect progressive activist groups—the same groups that have attacked sterling nominees such as Professors Amy Coney Barrett and Stephanos Bibas—will object that Duncan has worked on the "wrong" side of high-profile disputes involving the intersection of religious liberties and non-discrimination law. To my mind, such high-profile work only speaks to Duncan's qualifications for the bench and would say the same about equivalent work for progressive causes.
It is inevitable that talented appellate lawyers will represent potentially controversial clients in high-profile cases, and this often means representing clients with which the attorney may or may not agree. Such cases can be particularly challenging and thus particularly rewarding, personally and professionally. That Duncan has worked on such cases should be a plus, not a disqualification, and this should be so whether those clients are perceived as advancing "conservative" or "liberal" causes, the Alliance Defense Fund or the ACLU. What matters is the attorney's professional conduct in handling such cases and the nominee's capability of setting aside his or her personal preferences from the bench.
Among the Trump administration's other nominees today are two law professors, continuing the administration's notable (and, frankly, pleasantly surprising) pattern of selecting accomplished academics for the federal bench. Today's academics-turned-nominees are intellectual property specialist Ryan Holte of the University of Akron School of Law, tapped for the U.S. Court of Claims, and Gregory Maggs of the George Washington University School of Law, tapped for the U.S. Court of Appeals for the Armed Forces. As a fellow academic (though not one in line for any such appointment), I must say I am quite pleased by the Trump administration's willingness to look to the academy to fill the federal bench.
With these nominations, the administration continues its established practice of announcing judicial nominees at regular intervals. This keeps the pipeline full and maintains pressure on the Senate to confirm qualified nominees. These nominees, as those before, continue to be highly qualified. Overall, the Trump administration's nominees compare favorably with those of any administration in recent memory. As someone who has been quite critical of the president, I did not expect to see such high-quality judicial nominees—but high-quality they continue to be.
UPDATE: In addition to those discussed above, the Administration also named three district court nominees: Daniel Domenico for the District of Colorado, Barry Ashe for the Eastern District of Louisiana, and Howard C. Nielson, Jr. for the District of Utah.