The Volokh Conspiracy

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Volokh Conspiracy

Trump Picks Judges - Round 12

President Trump may have a hard time hiring defense attorneys, but he knows how to pick judge pickers.


There are few constants in the Trump White House. Judicial nominations may be it. The Trump Administration has put forward judicial nominees at a steady rate, ensuring that the confirmation queue remains filled as the Senate votes to confirm. Even more notably, with a few high profile exceptions, the Trump Administration's judicial nominees have been quite strong -- surprisingly so.

Today the Trump Administration announced its twelfth slate of judicial nominations, and it is a strong list, including three nominees to federal appellate courts.

Topping today's list of nominees is Justice Britt Grant of the Georgia Supreme Court who will be nominated to the U.S. Court of Appeals for the Eleventh Circuit. Justice Grant is a Bush Administration and former state Solicitor General, who was also identified last November as a potential Supreme Court nominee.

The White House named two nominees for the U.S. Court of Appeals for the Third Circuit, Pittsburgh-based attorney David Porter and former Christie Administration attorney Paul Matey. Porter and Matey are nominated for Pennsylvania and New Jersey seats, respectively. I know David Porter, and expect he will make an excellent judge.

Today's list also include 16 district court nominations. Most notably, the Administration will nominated Justice Patrick Wyrick of the Oklahoma Supreme Court to a federal district court. Justice Wyrick, like Justice Grant, is a former state Solicitor General and was also listed as a potential Supreme Court nominee last fall. Justice Grant and Wyrick are not alone. The Administration is also nominating Alabama Solicitor General Andrew Brasher and former Florida Solicitor General Allen Winsor to district courts in their respective states.

Closer to home (my home, that is), the Trump Administration finally moved to fill some of Ohio's six federal court openings, tapping Judge Pamela Barker and Ohio Bureau of Workers Compensation CEO Sarah Morrison for seatss on the federal courts for the Northern and Southern Districts. With these nominations there remain two additional district court openings (one in each district), and two openings on the U.S. Court of Appeals for the Sixth Circuit (to replace Judges Alice Batchelder and Deborah Cook). I look forward to seeing nominations for at least some of these spots in the near future.

The Administration also tapped Covington & BUrling partner Emin Toro for the U.S. Tax Court today (an excellent pick!), but there are still no nominees for the U.S. Court of International Trade. Given the importance of trade to the Administration's policy agenda, this latter omission is striking.

For a full list of current and future court vacancies, check out this website maintained by the Administrative Office of the U.S. Courts.

NEXT: What Would William Howard Taft Do About Facebook?

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  1. I wonder why there's this disparate dichotomy between the President Trump who (apparently) makes sound decisions on judicial nominations and the clueless, maniac President Trump who tweets, fires people, leaves slots unfilled, and generally pisses off allies and partners.

    1. Unlike his predecessor, he doesn't seem to have much sense of stewardship for the country, and only cares to be remembered as a winner.

      1. Obama had a sense of "stewardship" for the country? Yeah, maybe in turning into a European style social democracy. Not for America.

        1. I'm sure you meant, ". . . European style social democracy. . . " in a perjorative sense but, having lived and traveled in (mostly western) Europe for 24 years, I can ensure you that economically, politically, and culturally the Europeans are doing pretty good.

          And NO I don't mean 'better' than the US.

          It's just that I don't understand where you're getting this negative vibe about Europe from.

          1. A society that makes it illegal to own guns, that puts people in jail for offending Muslims, homosexuals, blacks or whomever else, and that celebrates transgender perversion is not a society to look up to.

    2. Because he doesn't care. So he has completely delegated this to other people.

      This is the one area where you have bog-standard GOP functionaries appointing bog-standard GOP picks in positions that the GOP Senate wants to confirm.

      To the extent that this hasn't happened (for example, when McGahn may have tried to elevate friends to judicial positions) it has been a mess.

    3. He doesn't particularly care plus he knows that judicial vacancies is one of the few things keeping reluctant Trump voting Republicans from outright revolt.

  2. Actually, its the one thing that he has delegated and ignores except to sign off on. So sane focused people are doing the vetting and creating the list. It has nothing to do with President Trump except for his signature on the document.

    1. The least you can say is that he delegated to the right people. Which is more than the last several Republican Presidents did.

  3. Demonstrating that far from being a brilliant dealmaker, Trump is a complete political naif. The GOP establishment wants nothing of Trump's policies and wants only one thing from him - judges. Trump could care less about judges (except the ones that happen to be sitting in cases concerning him.) A real dealmaker would parsimoniously hand out judicial appointmets in return for actual concessions by the GOP establishment.

    Smart Trump (yeah I know) would have traded Gorsuch for his wall and a three week recess to stock up his administration with Trumpists. Each slate of lower court judges would be traded for something. Such as a new AG. But the idiot gives McConnell his judges for free. Why would McConnell give him anything back, if he's already getting his judges for nothing ?

    1. As to the last point, I suggested early on that Trump accept Garland in return for "x," which a Trump supporter deemed a totally stupid idea. But, as you say, it would have been pretty smart & he could have defended it with his argument during the campaign that he was a "deal maker" that means Trump would actually have to give something up in the process.

      He still would have had lots of lower court picks. And, a Justice Garland might even help convince Kennedy (who Trump has a back channel too -- see, e.g., Politico's article "Trump's hidden back channel to Justice Kennedy: Their kids") to retire sooner than later. And, it would have been a sign of good faith that could lead a few more conservative Democrats to accept some of Trump's (Republican) legislation and other things.

      I think lower court judges are worth a lot less here though if Democrats were given one per court of appeals or something, it could have helped somewhat.

      1. I don't believe I did say that accepting Garland would have been a smart move. It would have been crazy with a GOP Senate majority and a campaign promise to appoint only from a specific list. I said Trump would have been smart to delay nominating Gorsuch until the GOP leadership had agreed to give him something valuable in return. Think what he could have got from them if he'd waited until they'd lost the Alabama seat !
        They'd have been panic stricken.

        1. And I mean crazy even by Trump standards.

          1. ......I suggested early on that Trump accept Garland in return for "x," which a Trump supporter deemed a totally stupid idea. But, as you say, it would have been pretty smart.....

            So "as you say" was intended in a purely decorative sense ?

            1. Trump's picks should be celebrated by conservatives (the backward and intolerant strains of conservatism, especially), but not by libertarians, liberals, or moderates.

              He's installing standard-issue right-wingers curated by the Federalist-Heritage-Olin-NRA academic-judicial operation.

              1. So tell me, Arthur L. Rapist, did you mean for those words to come out in that order or did they just fall out that way by accident?

    2. The problem is McConnell is part of the liberal swamp, and wouldn't have wanted Gorsuch. I'm sure he'd rather have someone like Kennedy or Roberts.

      1. I don't understand what any conservative could possibly have against Roberts.
        Yes, he bent over backwards to preserve Obamacare; but that was legislation that can be repealed tomorrow.
        What else do you have to say in support of your vituperation?

        1. Well I don't have particularly strong feelings about Roberts - he's clearly better than five of the other Justices. But "he bent over backwards to preserve Obamacare; but that was legislation that can be repealed tomorrow" is hardly a recommendation for a judge that conservatives might get enthusiastic about. It's not the "Obamacare" bit that a conservative would automatically object to - conservative judges are supposed to follow wherever the law leads them, without preconceptions as to the desirability of the outcome. It's the "bent over backwards" - which indicates that Roberts is a political judge, rather than a judicial one. It shows that he has little idea of how to pursue his alleged desire to restore the Supreme Court as a respected impartial caller of balls and strikes, rather than a political policymaker deciding on the best interests of the people. You don't get to burnish a reputation as Mr I'm Just The Umpire by bending over backwards to help the home team pitcher. Or the other pitcher. You don't bend over backwards at all. And purely as a matter of legal precedent, Roberts' judgement was horrible - there's nothing in the Constitution about bending over backwards to give statutes saving constructions. Congress can do what it likes if we can think of the tiniest colorable bit of sophistry that its enactment could possibly be argued to maybe be nearly within its powers. Ugh !

          1. Yes. This ^

        2. But it's not legislation that can be repealed tomorrow, except in a theoretical sense.

          It's an entitlement program, and entitlement programs are basically immortal once they get going. Republicans couldn't repeal it while Obama was in the White house, and by the time Obama was going to be out it would be too late.

          Striking it down as unconstitutional was basically the only shot at killing it, and all it required was for Roberts to NOT bend over backwards to preserve it. And he failed at that.

  4. I love how commentators are pointing out how Trump outsourced this....DUH! Unless you elect a law professor to the office, EVERY president oursources this. Furthermore, Trump is trusting the Federalist Society more than DC insiders (who have already done him dirty) so it's no surprise he's getting better "originalist" picks.

    1. It's a matter of degree -- others before Trump had more input and involvement in the process (so goes the argument). On some other issue, Trump is more concerned to be involved with a power to veto.

      1. And that involvement just led to a worse result.

    2. Don't let loki read that. Illusions are a fragile thing.

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