The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Virginia Senators Recommend Three People For Fourth Circuit. President Biden Picks The White Guy.

The Senators recommended a black woman (60), a white woman (58), and a white man (45).


In May, Virginia Senators Mark Warner and Tim Kaine recommended three people for a vacant Fourth Circuit seat.

The first recommendation was Virginia Solicitor General Toby Heytens. Heytens served as a professor at the University of Virginia, clerked for RBG, and was a Bristow fellow. He is a 45-year old white man.

The second recommendation was Judge Hannah Lauck of the Eastern District of Virginia. She had previously served as a Magistrate Judge, and was an AUSA. She is a 58-year old white woman.

The third recommendation was Judge Arenda Wright Allen of the Eastern District of Virginia. She is a 60-year old black woman. I first became aware of Judge Wright Allen in February 2014. In her haste to declare Virginia's marriage law unconstitutional on Valentine's Day, she confused the Declaration of Independence and the Constitution. My post was picked up by the national media, including ABC and the Wall Street Journal. Judge Wright Allen promptly revised the opinion. Later, Judge Wright Allen presided over the Gavin Grimm litigation.

At the time, I found these three recommendations intriguing. The Senators recommended a black woman who proved her liberal bona fides. But she was on the wrong side of 60. Judge Lauck is the same age as Judge Wright Allen, and she is white. Then there is Haytens. He is white. And by all accounts, is straight. But he is on the right side of 50. He was a scholar at a top law school. He clerked for RBG. He litigates before the Supreme Court. It seemed to me that Warner and Kaine saved face by picking a diverse slate, but really wanted Biden to pick Haytens.

And so Biden did. For the first time, Biden picked a white man for a circuit court position.

As things stand today, we still have no SG nominee. Moreover, as best as I can recall, President Biden has not nominated any judges for states with two Republican Senators.