Judge Gibbons's Replacement By Her Former Clerk Would "Flip" The Sixth Circuit

Gibbons declined to take senior status during the Trump years, but will now be replaced by her former law clerk.

The Sixth Circuit, where I clerked more than a decade ago, has sixteen active judgeships. At present, there are four nominees from President George W. Bush (Sutton, Gibbons, Griffin, Kethledge) and six nominees from President Trump (Thapar, Bush, Larsen, Nalbandian, Readler, Murphy). And there are two nominees from President Clinton (Moore and Clay), one from President Obama (Stranch), and three from President Biden (Davis, Mathis, Bloomekatz).

One might think that an en banc court with ten appointees from Republican Presidents and six appointees from Democratic Presidents would consistently lean to the right. But not so. To command a majority on this even-numbered court, you need nine votes. And in recent years, finding those nine votes has been tougher and tougher. For starters, Chief Judge Sutton has long taken the policy that en banc review should be used sparingly, as the Supreme Court can correct errors. Maybe that policy made some sense a decade ago, but with the Supreme Court taking fewer and fewer cases, and circuit splits festering, the en banc/certiorari calculus should be rejiggered. (Sutton may have departed from that policy, at least in part).

Making the math even tougher is that two of the W. Bush appointees have voted more and more with the Court's liberals: Judge Richard Alan Griffin from Michigan and Judge Julia Smith Gibbons from Tennessee. One such case from 2021 was the OSHA Vaccine mandate case. The en banc court split 8-8, with Judges Griffith and Gibbons declining to join Judge Sutton's dissental. In reality, what looks like a 10-6 court on paper is probably closer to a 9-7 or 8-8 court in practice.

Whatever the split is now, it is poised to change. In August 2023, Judge Gibbons announced that she would assume senior status "upon confirmation of [her] successor." In recent years, it has been very rare for a circuit judge to be voluntarily replaced by a President of the opposite party–the so-called "flipped" seat. Judge Gibbons, who was appointed as a district court judge in 1983 at the age of 32, has been eligible for senior status since 2015 or so. But she chose not to take senior status during the four years of the Trump presidency. I have been reliably informed that she did not want President Trump nominating her replacement.

On March 20, 2024, nearly seven months after Gibbons's letter, President Biden announced his intent to nominate Kevin Ritz, the U.S. Attorney for the Western District of Tennessee, to replace Judge Gibbons.

Ritz, a white man, is unlike most of Biden's circuit nominees. Indeed, his other three appointees to the Sixth Circuit were a black woman, a black man, and a white woman. Why would Biden make such a undiverse pick? Perhaps the most salient line on Ritz's biography is that he clerked for Judge Gibbons in 2004.

It is not difficult to speculate that Ritz may have been selected to induce Judge Gibbons to take senior status. This sort of understanding is common enough. There were many rumors that Justice Kennedy was encouraged to retire, with the knowledge that he would be replaced by one of his clerks, namely Justice Brett Kavanaugh. Ditto for Justice Breyer, who was replaced by his former clerk, Justice Ketanji Brown Jackson. On the Ninth Circuit, Judge Johnnie Rawlinson told the Biden administration that she could be "persuaded" to take senior status if one of her former clerks to replace her. (Rawlinson has not yet taken senior status.) On the Seventh Circuit, Judge Michael Kanne withdrew his senior status announcement when President Trump did not nominate his former clerk. (Kanne died in 2022 and was replaced by a Biden nominee.) On the Ninth Circuit, Judge Diarmud O'Scannlain was almost replaced by former-clerk Ryan Bounds, but after his nomination faltered, he was replaced by another clerk, Danielle Forest (formerly Hunsaker). On the Eighth Circuit, Judge Roger Leland Wollman was replaced by his former clerk, Jonathan A. Kobes. I'm sure there are more judges who were replaced by their former clerks that I'm forgetting, but these recent selections are fresh in my mind.

For those curious, the Office of Legal Counsel found that the federal nepotism statute cannot be used to constrain the President's appointment power of federal judges. This issue arose after President Clinton nominated Judge William Fletcher to sit on the Ninth Circuit along with his mother, Judge Betty Fletcher. I think there could be other neutral reforms to constrain judges hand-picking their successors, which I'll address for another time.

I'll let Tennessee politicos speculate about whatever backroom deals led to Ritz's appointment. I have been reliably informed that Ritz will not receive blue slips from the two Republican Senators in Tennessee. For present purposes, it is enough to state the Gibbons's replacement with Ritz would effectively flip the en banc court from a nominally conservative circuit to a evenly-balanced, if not left-leaning circuit. Litigants who may have otherwise found the Sixth Circuit favorable will now look to greener (redder?) pastures, such as the Fifth Circuit. There are consequences here that stretch far beyond Judge Gibbons and any potential desire to be replaced by her former law clerk. We are getting close to the end of President Biden's first term. The Ritz nomination, along with the Mangi which would flip the Third Circuit, will come down to the wire.