Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  To that end, we have summarized key cases in which Judge Barrett concurred or dissented from the majority on her panel.  We’ll then follow up with a post where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018), rev’d en banc, 911 F.3d 469 (7th Cir. 2018).   –This was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in anex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during theex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.  Barrett’s view was ultimately vindicated by the en banc Seventh Circuit, where the full court held in a 8-3 decision that, while the ex parte hearing was “constitutionally dubious,” it could not be reversed under the deferential standard that federal courts must apply when reviewing state court decisions.

Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019). –This was a collateral challenge to the defendant’s attempted murder conviction.  After his conviction, it came to light that the prosecutor had withheld evidence that the sole witness to identify the defendant had undergone hypnosis prior to trial to enhance his recollection of the incident.  On habeas review, the majority of the Seventh Circuit panel overturned the conviction, in an opinion by Judge William Bauer.  Bauer found that the evidence was required to be disclosed under the Supreme Court’s rulings inBrady v. MarylandandGiglio v. United States, and that the prosecutor’s case rested on the eyewitness testimony, making the disclosure essential.  Barrett dissented, arguing that, while the lack of disclosure did violate the defendant’s rights underBrady, the state court decisions refusing relief were not an unreasonable application of Supreme Court precedent, and, as such, there was no basis for the Seventh Circuit to grant relief.  

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019). –The question in this case was whether the petitioner’s conviction for “escape” qualified as a violent felony under the Armed Career Criminal Act.  Judge Michael Scudder wrote for the court in ruling that the conviction did not so qualify based on recent precedent narrowing the scope of the Act.  Barrett concurred, but wrote separately to argue that the court needs to simplify the caselaw addressing such petitions.

United States v. Rutherford, 810 Fed. App’x 464 (7th Cir. June 23, 2020). –This suit involved an appeal filed by an individual seeking resentencing under the First Step Act.  In an unpublished order, the Seventh Circuit exercised jurisdiction but affirmed the district court’s decision regarding the sentence.  Barrett dissented, arguing that the appeal was not timely, and, as such, the Seventh Circuit lacked jurisdiction over the appeal. 

United States v. Wilson, 963 F.3d 701 (7th Cir. 2020). –The question in this case was whether police had reasonable suspicion to stop and search the defendant based on a dispatch call description that did not match the defendant.  Judge Daniel Manion, writing for the court, found that the police had reasonable suspicion based on the totality of all the facts.  Barrett concurred, noting that, while the defendant “wasn’t even in the ballpark” when compared to the dispatch description, his flight from the police justified their subsequent stop and search under Supreme Court precedent. 

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. 2020) (en banc). –In this case, an 8-3 majority of the en banc Seventh Circuit held that the First Step Act could be applied to the benefit of a defendant who had committed his offense and was convicted before the Act’s passage, but had his sentence vacated and was resentenced after. Barrett authored a dissent joined by Judges Michael Brennan and Michael Scudder, arguing that the Act should not apply to the defendant because he was initially sentenced prior to the Act’s passage, and that the subsequent vacating of the sentence by the Seventh Circuit did not allow him to take advantage of the Act. 

Second Amendment

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). –This was a Second Amendment challenge to federal statutes that barred the plaintiff, who had been convicted of one count of mail fraud, from owning a gun as a felon.  Judge Joel Flaum, writing for the panel majority, rejected the challenge, finding that the Supreme Court had expressly noted the constitutionality of felon dispossession laws underD.C. v. HellerandMcDonald v. City of Chicago.  Judge Flaum then found that historical evidence regarding the scope of felon dispossession was inconclusive, and, applying intermediate scrutiny, upheld the laws. Barrett dissented, arguing that the history of gun rights showed that felons were traditionally only barred from holding weapons when there was evidence of their dangerousness.  As such, Barrett argued that a blanket ban on felons owning weapons violated the Second Amendment. 

Section 1983 Suits

McCottrell v. White, 933 F.3d 651 (7th Cir. 2019). –This case involved a 1983 suit for injuries brought by inmates in an Illinois prison who were injured after guards fired warning shots with a shotgun over a crowded prison hall.  Judge Ilana Rovner, writing for the panel majority, held that the injuries suffered by the inmates were sufficiently serious to potentially violate the Eighth Amendment, and that disputes of material facts between the parties needed to be resolved by a jury.  Barrett dissented, arguing that, as plaintiffs admitted that the guards were not intentionally trying to hit anyone with the shotgun, they could not prove that the guards acted “maliciously and sadistically” and, as such, could not recover. 

Williams v. Wexford Health Sources, Inc., 957 F.3d 828 (7th Cir. 2020). –The question in this case was whether, under Illinois law, a prisoner exhausted his administrative claims by filing an emergency petition in the prison system. Judge Diane Wood, writing for the panel, held that the prisoner had exhausted his remedies as he reasonably believed that filing the emergency procedure was necessary.  Barrett concurred, disagreeing that the inmate had exhausted his remedies, but arguing that the prison had failed to prove lack of exhaustion under their burden. 

Reproductive Rights

Planned Parenthood of Ind. & Ky. v. Box, 949 F.3d 997 (7th Cir. 2019) (en banc). –After a district court judge granted an injunction banning a series of Indiana restrictions on abortion clinics, and a 2-1 panel of the Seventh Circuit affirmed, the state soughten banc rehearing before the 11 judge court.  The court denied rehearing by a 6-5 margin.  While Barrett did not write her own dissent, she joined a dissent to denial ofen banc rehearing written by Judge Michael Kanne, who argued that the full court should have considered the scope of pre-enforcement challenges to state laws. 

Administrative Law

Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020). –This was a challenge to the Trump Administration’s “public charge” rule, which interpreted the Immigration and Nationality Act (“INA”) to deny admission to the U.S. or adjustment of status to any individual who receives certain cash and non-cash government benefits.  Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois granted an injunction against the regulation, and a divided panel of the Seventh Circuit denied to stay Judge Feinerman’s injunction.  Barrett dissented against the denial of stay.  After the Supreme Court stepped in and stayed the injunction, the Seventh Circuit affirmed Feinerman’s ruling striking down the regulation on the merits.  Barrett dissented again, arguing that the regulation is a reasonable interpretation of the INA’s ambiguity on defining a public charge. 

Justice Ruth Bader Ginsburg: trailblazing icon; civil rights veteran; judicial superstar; the Notorious RBG.  Justice Ginsburg was an institution in American law and popular culture, and it’s difficult to imagine a world, let alone a court, without her characteristic witty asides and sharp questions.  Given Justice Ginsburg’s current status as a liberal icon, it’s hard to believe that she was actually considered a conservative choice when President Clinton picked her for the Supreme Court in 1993, pushed by Sen. Orrin Hatch (R-UT) as a moderate consensus-builder.  Now, whether Justice Ginsburg shifted leftwards on the court or whether the court moved to the right depends on who you talk to, but Justice Ginsburg’s passing certainly leaves a void on the Supreme Court’s left flank.  Sadly, we, as a country, don’t have much time to mourn and reflect upon her life and legacy.  You see, the battle is coming.

“Hypocrisy” v. Politics

The last Supreme Court Justice to die on the Court was Justice Antonin Scalia.  The conservative powerhouse passed away on February 13, 2016, and Senate Majority Leader Mitch McConnell almost immediately declared that, because it was an election year, the Senate would not consider a nomination to fill the vacancy.  Surprising almost no one, McConnell now has vowed that the Senate will vote on President Trump’s nominee, even though this vacancy opened more than seven months later into the year than the vacancy from Justice Scalia, and though Americans are already voting to potentially replace President Trump.

Now, some have decried the hypocrisy of this, while others have defended his stance, following the principle that it is reasonable for a Senator to set different standards for members of your own party versus another party.

Regardless, McConnell has a thin needle to thread here.  As of this writing, already two Senate Republicans have come out in opposition to considering any nominee before the November elections, which means McConnell can afford only one more defection before he loses his leverage.  Now, some  argue that McConnell would not take such a firm stance if he did not have the votes to back it up.  However, those individuals would do well to look at Sen. John McCain’s defeat of the ACA Repeal in 2017 and the last-minute sinking of Ryan Bounds’ nomination to the Ninth Circuit in 2018.  The Majority Leader, masterful as he is, is not infallible.

Additionally, the timing of this vacancy is not great for Republicans.  We are now six weeks to November 3, election day.  No nominee has been confirmed within six weeks of announcement since Justice John Paul Stevens in 1975.  Simply put, there isn’t enough time.  The modern confirmation process (at least on the Supreme Court level) takes too long.

So, even if President Trump announces a nominee today, the vote on confirmation isn’t coming until the lame duck, at which point, either Trump has won re-election, which eases the pressure, or he has lost, which opens a new Pandora’s box.

The Front-Runners

Ever since her confirmation to the Seventh Circuit in 2017,Judge Amy Coney Barrett has been considered heir apparent to the Supreme Court.  It’s understandable why: Judge Barrett is well-credentialed, young (48), and very conservative.  She is rightly deemed the frontrunner to fill this vacancy.  She will also probably be the nominee.  President Trump, for all his mercurial temperament, has been fairly stolid in his Supreme Court choices, both times picking the conventional frontrunners over less conventional choices.  In any other year, one could confidently say that Judge Amy Coney Barrett will be the nominee.

However, this is an election year.  Specifically, it’s an election year in which the President has been consistently trailing his opponent in polls and one where he needs to use the nomination as a tool to upend the stability of the race.  As such, it would not surprise me to see the President turn to two more unconventional choices from his Supreme Court list.

One isJudge Barbara Lagoa from the Eleventh Circuit.  Lagoa wasspecifically identified by the President as a possible nominee for this seat, and has two major plus points going for her.  First, Lagoa is from Florida, a key swing state where the President needs to win in order to secure re-election.  Second, Lagoa is Hispanic (in fact, the only Hispanic nominee to the Court of Appeals made by President Trump).  In an election where Hispanics make up a key voting bloc, nominating Lagoa could be a key strategic move by the President to seek an advantage.

The other isJudge Bridget Bade from the U.S. Court of Appeals for the Ninth Circuit. Although she is also on the President’s shortlist, Bade’s name doesn’t come up as often as Lagoa’s or Barrett’s.  However, Bade could neutralize a key ticking time bomb for the President.  Namely, in Arizona, appointed Sen. Martha McSally is consistently running behind Democratic candidate Mark Kelly in the polls.  If Kelly defeats McSally, he could, in theory, be appointed to replace her immediately (as this race is a special election), which would cut the GOP majority they’ll need to confirm a nominee.  Appointing Bade could put both Kelly and Sen. Kyrsten Sinema in a tricky position, as they’d have to stand against a popular judge from their own state.  Even if one of them flips to support Bade, that’d ease the path to confirmation quite significantly.

The Storm to Come

As noted above, regardless of who the nominee will be, the risks to moving forward on a nominee are great.  Gone are the days when Supreme Court  confirmations were largely intellectual exercises.  It is now a body sport where nothing less than total victory is celebrated.  Unfortunately, regardless of whoever wins this particular nomination fight, the country as a whole is likely to have lost.

One can only hope that advocates and senators avoid bombast and brinksmanship, set out clear lines of principle in nominations and confirmations that apply equally to nominees of either party, and take us back to a bipartisan and nonpartisan confirmation process.  Then again, I’m not holding my breath.  The era of RBG is truly over.

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, and the Senate has moved comparatively slowly on their nominations. With less than three months left in his current term, the President has caught up, putting forward a nominee for the final vacancy: Stephen Kubiatowski.

Background

Stephen Andrew Kubiatowski received his B.A. from Dartmouth College in 1988 and his J.D. from Columbia University School of Law in 1991.^[1]  After graduation, Kubiatowski clerked for Judge Michael Kanne for the U.S. Court of Appeals for the Seventh Circuit.^[2]

After his clerkship, Kubiatowski joined Mayer Brown as an Associate.  In 1995, he joined the Independent Counsel’s office for the Whitewater Investigation.^[3]  Two years later, he became a federal prosecutor with the U.S. Attorney’s Office for the Central District of Illinois.  In 2001, he moved to the U.S. Attorney’s Office for the Northern District of Illinois.^[4] 

In 2015, Kubiatowski became a Partner with Faegre Baker Daniels LLP.  He left a year later to be SVP and Deputy General Counsel with Kindred Healthcare, where he currently works.

History of the Seat

Kubiatowski has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Kubiatowski was nominated for will open up when Judge Margaret Sweeney’s term expires on October 24, 2020.

Legal Experience

While Kubiatowski started his career in private practice, he has spent the bulk of his career working for the federal government, primarily as a prosecutor.  For example, in that role, Kubiatowski worked as part of a task force targeting health care scams.^[5]

In other prosecutions, Kubiatowski prosecuted Richard Collins for defrauding investors of nearly $11 million, a prosecution in which Judge Suzanne Conlon rejected Kubiatowski’s request for a seven year sentence, instead imposing a ten year prison term.^[6]  Kubiatowski also prosecuted an Oak Brook couple for making furnishing out of illegally imported animal products,^[7] and Tomasz Soltys for assaulting a passenger and flight staff for refusing to let him leave an in-flight aircraft to smoke.^[8]

Kubiatowski has also been the defendant in a long-running lawsuit filed by Julio Villars, who was detained as a material witness in a drug trial based on Kubiatowski’s affidavit.^[9]  After numerous defective complaints, Judge Robert Dow permitted two counts against Kubiatowski to proceed for failure to comply with requirements for biweekly reports to the court during detention.^[10]  The suit ended in 2019 with a grant of summary judgment in Kubiatowski’s favor.^[11]

Overall Assessment

Given Kubiatowski’s long experience with litigation in government, he is likely to be deemed qualified for an appointment to the Court of Federal Claims.  If any issues arise, they may be related to his work in the Whitewater investigation or with the suit brought against him, but such issues will be unlikely to derail his confirmation (assuming that the Senate can find the floor time).

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, and the Senate has moved comparatively slowly on their nominations.  The nomination of Zachary Somers, who is a Senate staffer, may move faster, however.

Background

Zachary Noah Somers received a B.A.cum laude from Georgetown University and received a J.D. from Georgetown University Law Center in 2004.  After graduating, Somers clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.

After his clerkship, Somers joined the Washington D.C. Office of Marzulla Law, LLC, where he worked on takings and breach of contract claims.  He then became Counsel at the House Committee on the Judiciary, where he served for a decade.  

Chairman Lindsey Graham has hired Somers to be his Chief Investigative Counsel for the Senate Judiciary Committee, where Somers currently works. 

History of the Seat

Somers has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges are appointed for 15-year terms.  The seat Somers was nominated will open on October 23, 2020, with Judge Thomas Wheeler’s term coming to an end.

Legal Experience

Somers started his legal career clerking and then worked in litigation at Marzulla Law, LLC., a boutique law firm.  For example, while at the firm, Somers helped litigate a lawsuit involving a challenge to the federal government’s grant of federal trust to 6.9 acres of Indian land.^[1]

For the last decade, Somers has been working on Capitol Hill, working as a Counsel for the House Committee for the Judiciary, and then for the Senate Committee on the Judiciary.  In the latter role, Somers led the Committee’s investigations of the Roger Stone arrest,^[2] and of Secretary of State Hillary Clinton’s use of private email servers.^[3]

Writings

In 2003 and 2004, Somers served as Editor in Chief for the Georgetown Journal of Law and Public Policy.  As Editor in Chief, Somers authored a preface to the Winter 2004 edition arguing that the journal should maintain itself as a forum for conservative thought and writings.^[4] 

In another article in the same issue, Somers criticized the Supreme Court’s decision inEverson v. Bd. of Educ. that erected a wall of separation between church and state, arguing that such an interpretation violated the original understanding of the First Amendment.^[5]  Instead, Somers argued for a return to the original understanding of the First Amendment, which limited the Establishment Clause to the federal government, and permitted state governments to involve themselves more closely in religious activities.^[6]

Overall Assessment

Generally, senate staffers who are nominated for the bench are given a certain amount of deference, as they have worked closely with colleagues who need to approve their confirmation.  Somers should benefit from such deference.  While Somers is sure to attract opposition for his role in Senate investigations and for his writings, he will nonetheless likely be expedited through the process and be confirmed by the end of the year.

Hector Gonzalez is a well-experienced litigator whose strong Democratic party ties should win him support from Senators Chuck Schumer and Kirsten Gillibrand.  However, given the short window for confirmation left in the Senate calendar, Gonzalez is an underdog for confirmation.

Background

The 57-year-old Gonzalez got his B.S. from Manhattan College in 1985 and then attended the University of Pennsylvania Law School, graduating in 1988.^[1] 

After graduation, Gonzalez started as an associate at Rogers & Wells and then joined the Manhattan District Attorney’s Office as an Assistant District Attorney in 1990.  Gonzalez then shifted over to federal prosecution in 1994, working his way to Chief of the Narcotics Unit at the U.S. Attorney’s Office of the Southern District of New York.^[2] 

In 1999, Gonzalez became a Partner at Mayer Brown and moved to Dechert LLP in 2011, where he currently works and chairs the Global Litigation Practice.^[3] 

In 2014, Gonzalez was recommended for a seat on the New York Court of Appeals (which ,despite its name, is New York’s highest court), but Judge Eugene Fahey was appointed instead.^[4]

History of the Seat

Gonzalez has been nominated for a seat on the U.S. District Court for the Eastern District of New York to the seat vacated by Judge Brian Cogan on June 12, 2020.

Legal Career

While Gonzalez started his career as a firm associate, his first major position was as an Assistant U.S. Attorney for the Southern District of New York.  In the U.S. Attorney’s Office, Gonzalez rose to be Chief of the Narcotics Unit, practicing both at the trial level and the Second Circuit.  In 1999, Gonzalez moved to Mayer Brown Rowe & Maw LLP.  At Mayer Brown, Gonzalez notably was one of the lead attorneys represented telecommunications companies in the landmarkBell Atlantic v. Twomblycase, which tightened pleading requirements for plaintiffs in the federal government.^[5]

Since 2011, Gonzalez has been a Partner with Dechert LLP.  While at the firm, Gonzalez represented the Takata Corporation in investigations of airbag inflator ruptures.^[6]  He also represented the Bank of New York Mellon in a series of investigations and litigation.^[7]

Political Activity

Gonzalez’s political history is strongly Democratic.  Over the course of his career, Gonzalez has given to President Obama, Hillary Clinton, Sen. Kirsten Gillibrand, a number of New York house members, and Montana Governor Steve Bullock.^[8]

Civilian Complaint Review Board

In 2002, Gonzalez was named by New York City Mayor Michael Bloomberg to be Chairman of the Civilian Complaint Review Board, an independent agency that investigates police misconduct.^[9]  Gonzalez’s tenure almost immediately was bogged in controversy when a whistleblower claimed that the agency ignored racial discrimination and was biased towards police.^[10]  As Chairman, Gonzalez pushed back against strip searching practices in the NYPD, recommending new training on the issue.^[11]  Additionally, Gonzalez led the Board as it charged a deputy chief with misconduct for ordering the arrest of a protester at the 2004 Republican National Convention.^[12]  The action, and related statements, drew sharp criticism from NYPD Commissioner Raymond Kelly, who argued that the Department had been careful in its policing.^[13]  He also paradoxically was criticized for not doing enough to reign in the Police Department.^[14]

Overall Assessment

Gonzalez’s record overall is fairly liberal, and his nomination by the Trump Administration is likely a nod to New York’s Democratic senators.  Nonetheless, given the short window of confirmation left this year, Senate Republicans are unlikely to prioritize Gonzalez’s nomination.  Additionally, Gonzalez is likely to face questions about his tenure supervising police misconduct issues with the NYPD, particularly given the recent focus on the role of policing in society.

Given these factors, Gonzalez is unlikely to be confirmed this year, although he may be renominated next year by a re-elected Trump Administration or by a President Biden.

[14] SeeCCRB: Dead Board Walking, NYPD Confidential, Sept. 18, 2006,http://nypdconfidential.com/print/2006p/060918p.html. 

For the last few weeks, we have been looking atpotentialnominees for the Court of Appeals.  Previously, welooked at  state court judges who may be potential appellate nominees under President Trump.  This time, we’ll look at potential Democratic appellate nominees from the state bench.

D.C. Circuit – Judge Corinne Beckwith

While there are dozens of qualified Democrats waiting for appointment to the D.C. Circuit in a potential Biden Administration, don’t sleep on Judge Corinne Beckwith of the D.C. Court of Appeals.  Judge Beckwith, who is 57, has impeccable credentials, having clerked for Judge Richard Cudahy on the Seventh Circuit and Justice John Paul Stevens on the U.S. Supreme Court.  Furthermore, unlike most Supreme Court clerks, Beckwith has spent her entire legal career as a public defender, serving at the Public Defender Service for the District of Columbia until her appointment to the bench in 2011.  As Democrats seek to diversify the career pools that lead to the bench, Beckwith may well be a judge they turn to.

First Circuit – Judge Melissa Long

Judge Ojetta Rogeriee Thompson has been a trailblazer on the bench, having been the first African American woman on the Rhode Island Superior Court and on the First Circuit.  If she takes senior status upon reaching eligibility next year, the frontrunner may be Judge Melissa Long, who has followed Judge Thompson’s example.  The 49-year-old Long, who is currently under consideration for an appointment to the Rhode Island Supreme Court, was Deputy Secretary of State before being appointed by Governor Gina Raimondo to the Rhode Island Superior Court.

Second Circuit – Justice Raheem Mullins

The 42-year-old Mullins, who serves on the Connecticut Supreme Court, has already been a judge for eight years, in which time he has established himself as a fair and reasoned jurist with opinions in key areas of law.  For example, Mullins wrote for the Connecticut Supreme Court in ordering the release of police records regarding Adam Lanza, the shooter in the Sandy Hook shooting of 2012.  Mullins has already been toutedhere as a prospective Supreme Court nominee, but he would also be a compelling nominee to the Second Circuit to replace Judges Jose Cabranes, Susan Carney, or Robert Katzmann.

Third Circuit – Justice Tamika Montgomery Reeves

While recently confirmed New Jersey Supreme Court Justice Fabiana Pierre-Lewis is an obvious choice for the Third Circuit, one that is mentioned far less often is Delaware Supreme Court Justice Tamika Montgomery-Reeves.  Montgomery-Reeves is, at 39, younger than Pierre-Lewis, and already has five years of judicial experience.  Furthermore, she has already made history as the first African-American on the Delaware Supreme Court, and could continue the trend by being the first African-American woman on the Third Circuit.

Fourth Circuit – Judge Christopher Brook

Judge James Wynn, who is eligible for senior status in 2022, has established a reputation as one of the most liberal judges on the Fourth Circuit.  In choosing to replace him, the Biden Administration may well turn to Judge Christopher Brook, who serves on the North Carolina Court of Appeals.  Brook, who is 41 years old, formerly served as the Legal Director of the state affiliate of the American Civil Liberties Union, and his civil rights background would be consistent with the recent calls for candidates from unconventional backgrounds.

Fifth Circuit – Judge Chari Kelly

The 2018 elections left Democrats with an embarrassment of riches when it comes to appellate judges across Texas.  Many of the newly elected judges are young and diverse and would be strong contenders of the Fifth Circuit or the U.S. District Courts.  One name to consider is that of Judge Chari Kelly, who serves on the Austin based Third District Court of Appeals.  Kelly, who is in her early forties, is a veteran and former Travis County prosecutor who was previously named prosecutor of the year by Mothers Against Drunk Driving.  Kelly would make a viable candidate for the Fifth Circuit if a vacancy opened.

Sixth Circuit – Judge Camille McMullen

Judge Camille McMullen may only be 49 years old, but she’s already had twelve years of experience as an appellate judge, allowing her to hit the ground running if she’s chosen to replace Judges Bernice Donald, Julia Smith Gibbons, or Jane Stranch.  Judge McMullen was a federal prosecutor for years before being appointed to the Tennessee Court of Criminal Appeals in 2008 by Governor Phil Bredesen.  As Biden has indicated that he seeks to replenish the bench of African American jurists on the Court of Appeals, McMullen seems like a promising choice.

Seventh Circuit – Judge Rachel Graham

In June 2019, Governor Tony Evers made his first judicial appointment, picking 43-year-old Rachel Graham to serve on the Wisconsin Court of Appeals.  Judge Graham was then re-elected unopposed in 2020 and currently serves on the appellate bench.  The Wisconsin native would be one of the first choices if Judge Diane Sykes vacates her seat in a Biden Administration.

Eighth Circuit – Justice Courtney Hudson

Justice Courtney Hudson may only be 47 years old but she already has a decade of experience on the Arkansas Supreme Court.  With the Eighth Circuit desperately short of female judges, Hudson could be first on the list of candidates considered if Judges Bobby Shepherd or Lavenski Smith took senior status.

Ninth Circuit – Judge Gabriel Sanchez

When looking at state court judges for elevation, one obviously has to consider the four young Democrats serving on the California Supreme Court.  However, an appointment to the Ninth Circuit could arguably be a demotion for these justices, and more viable options could be drawn from the California courts of appeal.  Consider, for example, Judge Gabriel Sanchez of the First District Court of Appeal.  Sanchez is well-qualified for an appellate seat, having graduated from Yale Law School, clerked on the Ninth Circuit, and having practiced law at Munger Tolles & Olson and the California Attorney General’s Office.  Furthermore, Sanchez, who was the first latino judge on the First District Court of Appeal, is only 44 and could serve decades if tapped for the Ninth Circuit.

Tenth Circuit – Justice Monica Marquez

Judge Carlos Lucero is 80 years old, and has been eligible for senior status from 2008.  As such, it would not be surprising to have him take senior status in the next four years, and, if elected, expect the Biden Administration to strongly consider Justice Monica Marquez of the Colorado Supreme Court.  The 51 year old Marquez was the first Latina and the first LGBTQ judge on the Colorado Supreme Court when she was appointed in 2010.  Since then, she has established a strongly liberal record on the high court, and would be an ideal Democratic pick for the Tenth Circuit.

Eleventh Circuit – Judge Ken Hodges

The 54-year-old Hodges is a rarity, a Democrat elected statewide in Georgia.  The Peach State native was elected to the Georgia Court of Appeals with 70% of the vote in 2018, an impressive showing for someone without a statewide profile.  While Hodges does have his share of controversies, if Democrats take the Senate, they would be no longer limited by blue slips for appellate positions, and Hodges could be a contender for the Eleventh Circuit.

Kathryn Kimball Mizelle has the distinction of being the youngest federal judicial nominee since Alex Kozinski was tapped to the U.S. Claims Court in 1982.  Despite sterling academic credentials, senators may question if Mizelle, who has spent only four years in practice, has the experience to serve as a federal judge.

Background

Mizelle, born Kathryn Kimball, graduatedsumma cum laude from Covenant College in 2009 and then from the the University of Florida Levin College of Law in 2012, graduating top of her class.^[1]  After graduating, Mizelle clerked for Judge James Moody on the U.S. District Court for the Middle District of Florida and then for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.^[2]

After her clerkships, Mizelle joined the U.S. Department of Justice Tax Division, while also serving as a year as a Special Assistant U.S. Attorney in the Eastern District of Virginia.^[3]  In 2017, Mizelle left to serve as Counsel to Assistant Attorney General Rachel Brand and then to clerk for Judge Gregory Katsas on the U.S. Court of Appeals for the D.C. Circuit.^[4]  She followed it up with a clerkship with Justice Clarence Thomas on the U.S. Supreme Court.

Since 2019, Mizelle has served as an Associate in the Washington D.C. and Miami offices of Jones Day.

History of the Seat

While Mizelle’s nomination has not been formally submitted to the Senate yet, she is expected to be nominated for the seat vacated on July 12, 2020, when Judge Virginia Hernandez Covington moved to senior status.

Legal Experience

Eight years out of law school, Mizelle has spent approximately half her legal career as a law clerk, assisting federal judges on the district, appellate, and supreme court level.  The remaining four years of legal experience Mizelle has includes her time at the Tax Division of the Department of Justice, the U.S. Attorney’s Office, the Assistant Attorney General’s Office, and at Jones Day.  On the course of this time, Mizelle has tried two jury trials to verdict.^[5]

Most of this litigation experience is from Mizelle’s year as a Special Assistant U.S. Attorney.  For example, during this time, Mizelle was one of the attorneys who handled a drug distribution prosecution.^[6]  She was also lead attorney on the prosecution of Dujuan Thomas for conspiracy to distribute cocaine.^[7]

Speeches

A member of the Federalist Society, Mizelle spoke on her clerkship with Justice Thomas at the 2020 Florida Chapters Conference of the Society.^[8]  In her speech, Mizelle spoke approvingly of Justice Thomas’ jurisprudence and described him as the “greatest living American.”^[9]  Mizelle also suggested that descriptions of Justice Thomas as a “bloodthirsty originalist” was complimentary.^[10]

More controversially, Mizelle noted, in an offhand comment, that she believed that “paper money” was unconstitutional under the Coinage Power.^[11]  This view, popular in fringe conservative circles, is explicitly contravened by the Supreme Court’s decisions inKnox v. Lee^[12] andParker v. Davis, which have affirmed the constitutionality of paper money.

Overall Assessment

Mizelle is undoubtedly very intelligent, with excellent academic credentials.  However, senators may reasonably question whether a 33 year old attorney who has only practiced law for four years has the requisite level of experience to serve in a lifetime appointment on the bench.  Additionally, Mizelle is likely to draw questions about her views on the constitutionality of paper money, and critics may argue that her views are out of the legal mainstream.  Given her youth, relative lack of experience, brief window to confirmation, and controversial statements, Mizelle is likely to have a tough confirmation.  Nonetheless, if Republicans stick together and prioritize the nomination, they may squeeze it through before the end of the year.

David C. Woll has already had his nomination to a senate confirmed position fail before the Republican Senate.  Now, Woll faces a tricky path to confirmation through Democratic Senators Chuck Schumer and Kirsten Gillibrand.

Background

David Carey Woll Jr. received a B.A. from the University of Maryland and a J.D. from the University of Virginia School of Law.^[1]  Woll then joined the Securities & Exchange Commission as a Senior Counsel before becoming an Assistant U.S. Attorney for the District of Columbia.^[2]

Woll then became a federal prosecutor in Brooklyn, focusing on financial and white collar crimes.^[3]  In 2013, Woll was selected by Governor Chris Christie to handle disaster relief in the aftermath of Hurricane Sandy.^[4] 

Since 2018, Woll has served as Principal Deputy Assistant Secretary for the Office of Community Planning and Development at the Department of Housing and Urban Development.  On August 1, 2019, Woll was nominated by President Trump to be Assistant Secretary for the Department of Housing and Urban Development.  While his nomination was approved on a 16-9 vote by the Senate Banking, Housing, and Urban Development Committee, his nomination never received a vote on the Senate floor and was withdrawn by the Administration on March 18, 2020.

History of the Seat

Woll has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  While the seat to which he will be nominated has not been specified, it will either be the vacancy that opened with Judge Dora Irizarry’s move to senior status on January 26, 2020 or the seat vacated by Judge Brian Cogan on June 12, 2020.

Legal Experience

Woll started his legal career at the Securities and Exchange Commission, where he worked as Senior Counsel.^[5]  There, he handled a case against a securities boiler room that was targeting elderly investors.^[6]  Then, as an Assistant U.S. Attorney in the District of Columbia, Woll prosecuted violent and sex crimes.^[7] 

In 2007, Woll was one of the attorneys hired by DOJ attorney Monica Goodling as part of an improper politicized hiring process she conducted.^[8]  Woll was asked during his interview whether he had ever “cheated on his wife.”^[9]  Woll would become a federal prosecutor in Brooklyn, handling white collar and financial prosecutions.

Since 2018, Woll has served as Principal Deputy Assistant Secretary for the Office of Community Planning and Development at the Department of Housing and Urban Development.  However, Woll’s tenure at HUD was criticized by Sen. Sherrod Brown for not being responsive to Congress and for failing to provide timely aid to Puerto Rico after Hurricane Maria.^[10]  Brown also criticized Woll’s office for releasing a proposed rule that would weaken anti-discrimination provisions in housing for LGBTQ individuals.^[11]  Woll’s reluctance to release funds to Puerto Rico was also criticized by members of the House of Representatives.^[12]  In testimony before the House, Woll admitted that he had failed to comply with a Congressional deadline for releasing hurricane relief.^[13]

Political Activity

Woll is a Republican, and all his political contributions of record have been to Republicans, including a contribution to President Trump’s re-election in 2020 and to John McCain in 2008.^[14] 

Overall Assessment

The odds are stacked against Woll’s confirmation to the district court.  First, there are only four months left for Senate action on the nomination.  Second, the controversies regarding Woll’s views on LGBT protections in federal housing, and regarding his failure to comply with congressional deadlines on Puerto Rico relief make him a very controversial nominee.  As Woll has been nominated to the district court, his nomination can be blocked through blue slips, and it’s unlikely that New York’s senators will return their blue slips on the nomination.

For the last few weeks, we have been looking at potential nominees for the Court of Appeals in the next four years.  Previously, we looked atfederaldistrict court judges.  This time, we’ll look to another potential source of federal judges, the state courts.  As always, we’ll look at one prospective nominee for each geographically based court of appeal.

D.C. Circuit – Justice Sarah Hawkins Warren

There’s nothing requiring a nominee to the D.C. Circuit to come from D.C.  After all, President George W. Bush picked California Supreme Court Justice Janice Rogers Brown for a seat on the D.C. Circuit.  With the D.C. Court of Appeals lacking any viable conservatives to elevate, it wouldn’t be surprising to see President Trump look to other courts for conservatives to mine.  And Warren, who currently serves on the Georgia Supreme Court, is an appealing pick.  Not only is she young, at only 39, but Warren has close connections to D.C., having clerked for Judge Richard Leon on the U.S. District Court for the District of Columbia, and having been a Partner at the Washington D.C. office of Kirkland & Ellis.

First Circuit – Justice Patrick Donovan

The First Circuit is the only one of the twelve geographic circuits that Trump has yet to name a nominee to.  The sole New Hampshire member of the court, Chief Judge Jeffrey Howard, becomes eligible for senior status this year and may well take it in the next four years.  If he does, Justice Patrick Donovan of the New Hampshire Supreme Court is likely to be strongly considered.  Donovan has strong credentials, including working for the New Hampshire House of Representatives, and will have a champion in Governor Chris Sununu.  Furthermore, the Justice, while conservative, is unlikely to attract strong opposition from the state’s Democratic senators.

Second Circuit – Justice Karen Carroll

How many judicial conservatives are there in Vermont?  The White House will have to consider this if Judge Peter Hall takes senior status in a second Trump term.  Among its candidates, the White House will have to seriously consider Vermont Supreme Court Justice Karen Carroll.  The 56-year-old jurist was Republican Governor Phil Scott’s first appointment to the court and would be the first woman from Vermont on the Second Circuit.

Third Circuit – Judge P. Kevin Brobson

The 49-year-old Brobson, who currently serves on the Commonwealth Court of Pennsylvania, made the news in 2017 fordeclining to strike down Pennsylvania’s congressional maps as being gerrymandered.  Brobson’s ruling (which was lateroverturned), alongside the fact that he has spoken at Federalist Society events, and his strong reputation in thePennsylvania Bar, may make him an attractive conservative choice for a Pennsylvania seat on the Third Circuit.

Fourth Circuit – Judge Richard Dietz

The 43 year old Dietz has the trifecta of strong conservative bona fides, good Republican connections, and excellent academic credentials (having been first in his class at Wake Forest Law).  Dietz, who serves on the North Carolina Court of Appeals, will be strongly considered by the Trump Administration if Judge James Wynn moves to senior status in 2022.

Fifth Circuit – Justice Jimmy Blacklock

There are many conservatives who would be salivating for a seat on the Fifth Circuit under a second Trump term.  A strong contender would be Texas Supreme Court Justice Jimmy Blacklock.  The strongly conservative jurist started his career at the Department of Justice and has close connections to Gov. Greg Abbott, a strong Trump surrogate and supporter (Blacklock was the longtime General Counsel for Abbott).  It doesn’t hurt that, at forty, Blacklock could spend decades on the bench.

Sixth Circuit – Justice Elizabeth Clement

The 43 year old Clement had a long history with the Michigan Republican Party when she was appointed to the Michigan Supreme Court to replace Judge Joan Larsen in 2017.  Nonetheless, she soon attracted fire from conservatives for voting to permit an Independent Redistricting referendum to go on the Michigan ballot.  Despite being booed at the state convention, Clement retained the nomination of the Michigan Republican Party and was comfortably re-elected in 2018, the only Republican to win statewide in Michigan that year.  Despite the hand-wringing over that decision, Clement’s record on the Court is generally conservative, while Michigan’s Democratic Senators may sign off on her elevation to allow Gov. Gretchen Whitmer to replace her.

Seventh Circuit – Justice Brian Hagedorn

If Judge Diane Sykes took senior status in 2022 under a Trump Administration, Hagedorn would be the favorite to fill the vacancy.  The 42-year-old jurist has a strongly conservative background, while also establishing a reputation as aprincipled jurist on the Wisconsin Supreme Court, occasionally dissenting from the more aggressive views of his colleagues.  Hagedorn’s quieter form of conservatism is also less likely to draw opposition than the more vocal views of his colleague, Justice Rebecca Bradley, who may be a rival for the appointment.

Eighth Circuit – Justice Jonathan Papik

In 2017, Papik narrowly missed out on an appointment to the Eighth Circuit when the White House chose Leonard Grasz instead of him.  Nonetheless, Papik found himself appointed to the Nebraska Supreme Court in 2018, despite being only 36 years old at the time.  Papik, who clerked for Justice Neil Gorsuch (on the Court of Appeals) will be closely considered for an Eighth Circuit vacancy, and, while Grasz is not expected to leave the court anytime soon, if he does under Trump, expect Papik to be the nominee.

Ninth Circuit – Judge Jerome Tao

Here’s where it gets interesting.  Judge Jerome Tao is, at least nominally, a Democrat who started his career working for former Senator Harry Reid.  Nonetheless, the judge was appointed to the Nevada Court of Appeals by Republican Governor Brian Sandoval, ran afiercely conservative campaign for the Nevada Supreme Court in 2018 (unsuccessfully), and recently made the news for a concurringopinion decrying deference to administrative agencies.  The Trump Administration’s judge-pickers care deeply about administrative law, and, if Judge Johnnie Rawlinson takes senior status, expect Tao to be strongly considered.

Tenth Circuit – Justice Thomas Lee

Judge Scott Matheson will be eligible for senior status in 2022, and, if he chooses to take it under a Trump Administration, Justice Thomas Lee from the Utah Supreme Court will be a strong contender to replace him.  Lee is already on Trump’s radar, with a place on his Supreme Court shortlist, as well as being the brother of Sen. Mike Lee.  The only knock against Lee is his age (he will be 58 in 2022).  Nonetheless, he will likely have right of first refusal for the position, given his credentials (clerked for Judge J. Harvie Wilkinson and Justice Clarence Thomas) and his connections.

Eleventh Circuit – Justice Nels Petersen

Another former Georgia Solicitor General, like Warren and Eleventh Circuit JudgeBritt Grant, Petersen would be a safe pick if Judge Beverly Martin’s seat opened in a second Trump term.  The 42 year old jurist has established a solidly conservative profile on the Georgia Supreme Court.