The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last weekend Beltway pundits may have proclaimed the White House was off the rails, but the Trump judicial nomination train remains on track. The White House announced its eleventh set of judicial nominees on Monday. As we've come to expect, the Administration put forward an impressive list of jurists, led by four noteworthy picks for appellate courts, including several who are guaranteed bipartisan support.
The latest appellate nominees are Andy Oldham (Fifth Circuit), Michael Scudder (Seventh Circuit), Amy St. Eve (Seventh Circuit) and Mark Bennett (Ninth Circuit). In addition, Trump nominated John Nalbandian (Sixth CIrcuit) and Joel Carson (Tenth Circuit) in January and December, respectively.
Oldham currently serves as General Counsel for Texas Governor Greg Abbott, and previously worked in the Texas Solicitor General's office, the Justice Department Office of Legal Counsel, and in private practice in Washington, DC. He clerked for Justice Samuel Alito on the Supreme Court and Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit. His nomination is no surprise, as he is razor sharp and had been among those considered for prior Texas vacancies on the Fifth Circuit. Of this week's nominees, he's also the one most likely to end up on a future Supreme Court short list.
Two of this week's nominees are for Illinois seats on the Seventh Circuit. Scudder is a White House and Justice Department veteran who is now a partner at Skadden Arps. He clerked for Justice Anthony Kennedy and has taught at both the Northwestern Pritzker and University of Chicago law schools. St. Eve is a federal district court judge in the Northern District of Illinois and former Whitewater prosecutor. She, too, has taught at Northwestern. Bennett is the former Hawaii Attorney General and a former Assistant U.S. Attorney who has taught at the University of Hawai'i at Manoa.
Although news stories tend to suggest the White House refuses to consult with Senators about potential judicial picks, this week's nominations tell quite a different story. All of the appellate nominations announced this week enjoy the support of their home-state Senators, including those from states with deep-blue delegations.
While Senator Mazie Hirono (D-HI) has led the attack against some of Trump's judicial nominees in the Senate Judiciary Committee, she joined Senator Brian Schatz (D-HI) in praising Bennett as a "well-qualified" pick for the Ninth Circuit. Perhaps more surprising is the statement released by Senators Dick Durbin (D-IL) and Tammy Duckworth (D-IL) praising the Trump Administration's Seventh Court picks:
We are pleased that the President has nominated Judge St. Eve and Mr. Scudder. They both have the experience, integrity, and judgment that we look for in federal judges, and we expect them to serve with distinction on the Seventh Circuit. We appreciate the Administration's willingness to work with us and with our nonpartisan screening committee to reach consensus on nominees who will serve the people of Illinois well. We look forward to guiding these nominations through the Senate.
The latest set of nominations illustrates that the Administration is more than willing to consult with home-state Senators before making judicial picks, even for appellate courts. All that's necessary is for Senators to negotiate in good faith. They also suggest that insofar as vacant seats on some courts languish without nominees, it's unlikely due to a lack of effort by the White House Counsel's office.
If Senators Hirono, Schatz, Durbin, and Duckworth could come to terms with the White House on potential appellate nominees, what's stopping Senate delegations from states with other longstanding vacancies? There are several vacancies on the U.S. Court of Appeals for the Ninth Circuit which have been declared "judicial emergencies"—including one seat that has been vacant for over two years—and yet the California Senators seem completely unwilling to cut a deal.
Judge Alice Batchelder of the U.S. Court of Appeals for the Sixth Circuit announced her intention to take senior status upon the confirmation of her successor and there's still no nominee for her position. Judge Batchelder sits in Ohio, and there's no lack of highly qualified potential nominees the White House would readily put forward with Senator Rob Portman's enthusiastic support. Senator Sherrod Brown (D-OH), on the other hand, appears to have been wholly uncooperative. It's as if he (and some of his Democratic colleagues) are looking for ways to make Senate Judiciary Committee Chairman Charles Grassley (R-IA) ignore their blue slips.
Even with this week's announcement, there remain quite a few seats to fill. As of this week there are 146 vacancies on federal courts, which accounts for approximately 16 percent of the federal bench. An additional thirty seats are classified as "future vacancies," as the judges in these seats have announced their intent to retire on a date certain or upon the confirmation of their successor. Seventeen of the current vacancies are on federal appellate courts, as are seven of the future vacancies. Not including those announced Monday, there are 50 pending nominations, including seven for appellate seats. Although the Senate has sought to expedite the confirmation process, the nomination pipeline remains full. (Information on vacancies and pending nominees may be found here.)
The Trump Administration has made judicial nominations a priority. With a few notable exceptions, it has succeeded in putting forward highly qualified nominees. At the same time, it has shown a willingness to work with home state Senators in selecting nominees. Yet I doubt this cooperative posture will last forever. Where home state Senators are unwilling to engage in good faith consultation with the Administration, I expect the White House will evenutally proceed on its own—and given the current make-up of the Senate, these nominees will get confirmed, with or without home state support.