Trump reshapes the lower federal courts with little progressive scrutiny

With controversy seemingly engulfing the Trump administration on a daily basis, it is noteworthy that the president earlier this month announced a second substantial slate of lower federal court judicial nominees.

With many vacancies across the lower federal courts, the White House had promised to propound nominees on a regular basis. The fact that this new slate comes just a few weeks after the last slate suggests that the administration is ready to live up to this commitment.

Indeed, with a Supreme Court Justice and a federal court of appeals judge already confirmed, the judicial nomination process may be the area in which the administration is functioning at a high level, in spite of the distractions of the day.

This slate of judges confirms three aspects of the president’s strategy for selecting judges for the federal courts that the previous slate suggested. 

{mosads}First, President Donald Trump has once again nominated a judge who was on the list of 21 potential Supreme Court nominees generated during the presidential campaign. The president has nominated Justice Allison Eid (currently a Justice on the Colorado Supreme Court) to the United States Court of Appeals for the Tenth Circuit to fill the seat vacated by Justice Neil Gorsuch upon his ascension to the United States Supreme Court.

Justice Eid is the fourth person from the 21-person list to be nominated to a position on a federal court of appeals: The president previously nominated Judge Amul Thapar to the United States Court of Appeals for the Sixth Circuit (a position to which he since has been confirmed), Michigan Supreme Court Justice Joan Larsen also to the Sixth Circuit, and Minnesota Supreme Court Justice David Stras to the United States Court of Appeals for the Eighth Circuit.

The continued return to the list shows the continued influence of the Federalist Society and Heritage Foundation — conservative/libertarian think-tanks that were instrumental in helping the Trump campaign to assemble the list.

It also suggests that the president may be placing judges on the federal courts of appeals — the federal courts that lie directly below the Supreme Court — in anticipation of nominating one of them should another Supreme Court seat open up.

Second, many Trump nominees to the courts of appeals have experience clerking for Republican-appointed Supreme Court Justices. Justice Eid served as a judicial law clerk to U.S. Supreme Court Justice Clarence Thomas, as did prior Trump nominee Justice Stras.

Stephanos Bibas, a law professor at the University of Pennsylvania whom President Donald Trump has indicated he will nominate to the U.S. Court of Appeals for the Third Circuit, clerked for Justice Anthony Kennedy (as did Justice Gorsuch). (Some have argued that the president’s selection of Justice Gorsuch for the Supreme Court was in part aimed to assuage concerns Justice Kennedy might have about Trump selecting his successor; if so, perhaps the nomination of Professor Bibas would be another step in that direction.)

Also from the last batch of nominees, Notre Dame Law Professor Amy Coney Barrett clerked for Justice Antonin Scalia.

Third, several Trump judicial nominees have ties to prior Republican administrations. Before law school, Justice Eid served as a special assistant and speechwriter to William Bennett, then serving as President Ronald Reagan’s Secretary of Education. Trevor McFadden, one of three Trump nominees to the federal district court in Washington, D.C., worked in the Justice Department during the George W. Bush’s presidency.

Another D.C. federal district court nominee — Dabney Friederich — worked as counsel to President George W. Bush (and Justice Larsen, in the last round of nominations, worked in the Bush administration Office of Legal Counsel).

Finally, Trump’s nominee for the U.S. Court of Appeals for the Eighth Circuit — Judge Ralph Erickson, currently a federal district judge in North Dakota — was appointed to the federal district court by President George W. Bush, much as Judge Thapar, elevated to the Sixth Circuit by Trump, was originally appointed as a district court judge by the second Bush.

Among Trump’s nominees are also those with ties to powerful Republican Senators: Two of the three D.C. federal district court nominees — Friederich and Timothy Kelly — have worked in the offices of senior Republican Senators.

Amanda Meredith, nominated to the (non-Article III) U.S. Court of Appeals for Veterans Claims has worked as a lawyer for two Republican Senators and for a Republican-led Senate committee. It is common for presidents to nominate individuals with ties to the Senate and powerful Senators, given the Senate’s role in approving of the president’s’ nominees.

Next, this round of nominees continues the remarkable trend of Trump to turn to the legal academy to fill judicial vacancies. 

The last round saw Trump nominate to the federal courts of appeals three individuals with experience as legal academics: Professor Barrett of the University of Notre Dame, Justice Stras who was on the law faculty of the University of Minnesota, and Justice Larsen, with experience on the faculty at the University of Michigan.

This round of nominations would add University of Pennsylvania Law School Professor Bibas and Stetson University Law School Professor Michael Allen (nominated to the Court of Appeals for Veterans Claims); beyond that, Justice Eid served on the University of Colorado law faculty before serving on the Colorado Supreme Court. One has to go back to the Reagan presidency to find an administration so committed to naming legal academics to the federal courts.

A final point involves Trump’s nominees to the United States Court of Federal Claims. This little-known non-Article III court hears claims by private actors against the federal government for monetary damages, with a large part of its docket dedicated to claims for “Takings” of private property.

While the Court of Federal Claims, and nominees to it, generally attract little attention, Trump’s two nominees to the court thus far suggest an effort to increase the likely success of Takings claims against the government and thus to augment the protection of private property rights against government infringement.

Last month, the president nominated Damien Schiff, who has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm that has argued in favor of a broad understanding of compensable Takings. 

The president’s new nominee to the court, Stephen Schwartz, has similar experience.

Before entering private practice, Mr. Schwartz served as counsel to Cause of Action, a public interest law firm that professes its “advoca[cy] for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”

This slate of nominees further reveals, and confirms, the president’s strategy to reshape the federal judiciary. It is noteworthy, moreover, that the Trump administration has established a pattern of nominating numerous judicial nominees, with excellent legal credentials, to fill court vacancies. 

That it has been able to do this amidst the controversies raging around the administration is a testament to those handling the judicial nomination process. 

Perhaps other parts of the administration should take notice of, and learn a lesson from, this Trump administration success story.

Jonathan Nash is the Robert Howell Hall Professor of Law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on twitter at @JonathanRNash.

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