Frontrunners Emerge for New Vacancy on Influential Appeals Court

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March 5, 2020

Conservatives are seizing the opportunity created by a vacancy on the U.S. Court of Appeals for the D.C. Circuit Thursday, culling a shortlist of prospective nominees for a panel frequently called the second most powerful court in the nation.

The frontrunners for the vacancy created by Judge Thomas B. Griffith’s retirement are acting associate attorney general Claire Murray, deputy White House counsel Kate Todd, and U.S. District Judge Justin Walker, according to sources who have worked on judicial confirmations for the Trump administration. Other candidates are also under consideration, and the situation remains fluid.

President Donald Trump’s stunning gauntlet of judicial confirmation successes will feature prominently in his reelection pitch. The D.C. Circuit nomination could mobilize conservatives in much the same way that Justice Brett Kavanaugh’s confirmation drove Republican energy in 2018. The vacancy also aligns with the Trump campaign's messaging on deregulation and reducing agency power, given the D.C. Circuit’s heavy diet of agency-law cases.

Murray is widely seen as a strong contender for the federal bench and commands admiration across the administration. Todd, a former chief counsel for the U.S. Chamber of Commerce Litigation Center, has coordinated the administration’s judicial nominations process since 2018.

Walker was a professor at the University of Louisville School of Law before his appointment to a Kentucky federal trial court in 2019. The judge is close to Senate Majority Leader Mitch McConnell, and his advocacy for Justice Brett Kavanaugh’s confirmation is especially appreciated among conservatives.

"Unless there is a Supreme Court vacancy, this will be the most contentious judicial confirmation fight before the November election," said Mike Davis of the Article III Project, an outside group that supports Trump’s judicial nominees.

The shortlist is not exhaustive, and several administration lawyers and private practitioners are also said to be in contention for Griffith's seat.

"President Trump has done a phenomenal job finding and credentialing a huge bench of potential D.C. Circuit nominees," Davis added.

The D.C. Circuit’s unique jurisdiction makes the court the primary venue for high stakes disputes over agency regulations and the separation of powers. The panel is also something of a farm team for the Supreme Court. Four of the nine justices served on the D.C. Circuit before their elevation to the High Court.

"The D.C. Circuit is so important, particularly in this era with important disputes over separation of powers, the role of government, and the growth of the administrative state," the Judicial Crisis Network’s Carrie Severino told the Washington Free Beacon.

The confirmation process will take approximately two months from the nomination to the final floor vote. Processing the nomination is sure to be a top priority for the Senate Judiciary Committee, which has consistently delivered appeals court nominees to the full Senate at a rapid clip.

As of this writing, there are only two vacancies on the federal appeals courts: the D.C. Circuit seat and a Mississippi seat on the Fifth U.S. Circuit Court of Appeals.

Approximately two dozen Republican-appointed appeals court judges are eligible for "senior status," a form of quasi-retirement that allows judges to leave active service while retaining the right to participate in cases. Davis urged those judges to follow Griffith’s lead and ensure their succession by a like-minded jurist.

President George W. Bush appointed Griffith to the bench, meaning a Trump-appointed successor would not change the ideological balance of the court. Democratic appointees currently have a seven to four majority on the D.C. Circuit.

Griffith made national news in February when he ruled that former White House counsel Don McGahn could defy a subpoena from House Democrats to testify before Congress. Griffith delivered the opinion for a divided three judge panel over a dissent from Judge Judith Rogers.

Griffith’s retirement is not without peril for the president. The last D.C. Circuit confirmation prompted an intramural fight among Republicans on the Senate Judiciary Committee, when Senators Ted Cruz (R., Texas) and Josh Hawley (R., Mo.) panned Judge Neomi Rao’s conservative bona fides.