Trump’s Four New Appellate Nominees Could Show Course Change

President Donald Trump’s latest list of nominees to the federal bench could indicate a greater emphasis on qualifications and filling vacancies in blue states, scholars told Bloomberg Law.

The nominees, especially at the appellate level, “look well qualified” and seem “fairly traditional,” Carl W. Tobias, a professor at the University of Richmond School of Law, Va., who focuses on judicial nominations, told Bloomberg Law by telephone Feb. 12.

“I would say this is a solid group of nominees” who “have, for the most part, significant experience with the law and are especially distinguished by their clerkships and other activities demonstrating the hard-core conservative views that are also important to the administration,” Michael J. Gerhardt, a professor at the University of North Carolina School of Law, Chapel Hill, N.C., who has written about judicial nominations, told Bloomberg Law by email.

Trump announced four federal appellate court nominations and five at the district court level in a press release Feb. 12.

Two of the nominees are women.

The appellate nominees are:

• Mark J. Bennett, who was nominated to the U.S. Court of Appeals for the Ninth Circuit, is a director at the law firm of Starn O’Toole Marcus & Fisher, Honolulu, and was Hawai’i’s attorney general for almost eight years;

• Andrew S. Oldham, who was nominated to the Fifth Circuit, is currently the general counsel to Texas Gov. Greg Abbott (R) and clerked for U.S. Supreme Court Justice Samuel A. Alito Jr. and District of Columbia Circuit Judge David B. Sentelle; • Michael Y. Scudder Jr., who was nominated to the Seventh Circuit, is a partner at Skadden, Arps, Slate, Meagher & Flom LLP, Chicago; and

• District Judge Amy J. St. Eve, who was nominated to the Seventh Circuit, has been a judge for the U.S. District Court for the Northern District of Illinois since 2002.

They seem to “survive the red face test” based on a simple look at their resumes, but it’s possible that there are red flags that haven’t yet appeared, Charles Gardner Geyh, a professor at Indiana University law school, Bloomington, Ind., who writes about the judiciary, told Bloomberg Law by telephone.

We may not find out whether they are “ideological zealots” or have experienced disciplinary actions against them until the American Bar Association conducts its ratings process, Geyh said.

Change of Course?

The nominations could show that the Trump administration is placing a greater emphasis on qualifications than it did with previous nominees who failed due to a lack of experience, Geyh said.

Trump has an “anti-elitist” philosophy that can lead to nominees who lack traditional qualifications, Geyh said.
“Maybe this is what we will see in the future—more mainstream candidates,” he said.

Tobias said the new list of nominees could indicate another change: a greater focus on filling vacancies in blue states with Democratic senators.

The list includes nominees from three blue states that each have two democratic senators: Illinois, Minnesota, and Hawai’i.

“That’s some progress,” Tobias, who has criticized the administration for not focusing more on filling blue state vacancies, said.

Timing Questions

The nominations show that the “Trump train, if you will, is chugging along” despite controversies like the ongoing investigation into potential ties between Trump’s presidential campaign and Russia, Tobias said.

But the candidates could face a long trip to getting confirmed given the current backlog of nominees and the amount of time required by Senate rules, Tobias said.

There are currently 50 nominations pending for 146 federal judicial vacancies.

Nominations must get through “30 hours of post-debate time” after cloture is invoked, Tobias said.

Senate Majority Leader Mitch McConnell (R-Ky.) isn’t “willing to give up” that much floor time for each nominee right now, and “I don’t think that’s going to change,” Tobias said.

The amount of time it takes to get a nominee confirmed has gone into “hyperdrive” in the last few administrations “on both sides” of the political aisle, Geyh said.

But until it’s clear to Republicans that the Senate will stay in their hands, they have a “real incentive” to push through as many nominees as possible in advance of the 2018 midterm elections, he said.