The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The President Nominates Circuit Judges, Not Senators
Circuit seats belong to the circuit, and not to the state.
There has been a momentous shift in the relationship between the President and the Senate, and most people have missed it.
Let's start with the Eighth Circuit. The Trump Administration interviewed Justice Cody Hiland, but determined he was not up to the task of being a circuit judge, so they offered him a federal district court seat as a consolation prize. Hiland shot back at the White House Counsel and refused the seat. He even wanted to rub it in Trump's face. The White House made a stellar nomination with Judge Lee Rudofsky. Hiland then told an entire room of law students about his experience as a lesson that should be learned. But Hiland had a friend in a high place. Senator Boozman of Arkansas lobbied Senator Tillis of North Carolina and Senator Cornyn of Texas to block Judge Rudofsky.
Apparently there were some discussions between the President and Boozman, and the President folded. Maybe Trump determined that he needed as many judges confirmed before January, so the identity of the judge didn't matter. Maybe Trump didn't want to create more problems with his caucus. Maybe Trump just didn't care. Who knows? Trump withdrew Rudofsky and nominated Hiland. There is no guarantee that Hiland gets a hearing and makes it through the process. We are so late in the game. And frankly, I wouldn't blame some of the other conservative senators from the Eighth Circuit for putting Hiland through the paces at the hearing. It's not clear to me he'll be able to answer all the questions. But regardless of what happens, Senator Boozman won and President Trump lost.
Now, onto my home, the Fifth Circuit. It is painfully clear there was some sort of deal between Judge Southwick and Senator Wicker. In no universe would the White House have picked Todd Butler without that deal. I've yet to hear anyone provide me a single shred of evidence that he is conservative beyond saying "All southern lawyers are conservative. Plus he's a Christian." What about Nathan Johnson and James Talarico? Moreover, Southwick announced on September 29 that he would Senior Status, making it virtually impossible for another nominee to be selected.
Yesterday, I watched Butler's confirmation hearing with interest. He received a few softballs from Senator Grassley, a very warm welcome from Senator Kennedy, and some surprisingly nice questions from Senator Booker about representing police officers. Butler did not seem to understand departmentalism and mis-cited Mabury v. Madison. His answers were not particularly articulate--roughly on par with his oral argument before the Supreme Court. There was no depth or curiosity conveyed. I actually think Butler tripped up on Senator Blumenthal's questions about January 6 and the election, but it didn't matter. He sailed through. Members of the conservative legal movement have raised doubts about Butler. But there were no tough questions asked by Senators Cruz, Lee, Hawley, Schmidt, or others. Only they know why they stayed out. Senator Wicker prevailed, and the President lost.
Then there is the bizarre situation in Oklahoma. Someone yesterday asked me if I knew what Senator Armstrong was doing. My response was, "Who is Senator Armstrong?" He is the temporary senator appointed to fill Senator Mullins's seat. As Mike Fragoso relays, Armstrong is blocking the nomination of Zach West to the District Court in Oklahoma. This is all about some sort of squabble between West and defeated-AG Drummond. Armstrong returned a blue slip but is now trying to take it back. That's not how things work. If Armstrong prevails here, the President will lose.
Circuit seats belong to the circuit, and not to the state. It bothers me that "home state" senators introduce circuit court nominees. That pageantry reinforces the wrong message. Hiland's seat does not belong to Arkansas and Butler's seat does not belong to Mississippi.
Unfortunately, Trump's surrender here has created a terrible precedent. Should the Republicans ever again return to power, I would hope this entire process is reconsidered. Circuit court nominees should be treated as "at large" seats. Senators can make recommendations, but they cannot dictate who is picked. Worse, judges (like Southwick) should not be allowed to make these deals. We should not tolerate incentive structure where motivated actors can control who represents an entire circuit. Maybe the better approach is to start consulting with all the Senators in a given circuit on possible picks, and then pick the best athlete.
