Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, July 23, 2018

Circuit Court Confirmation News

Last week was a big one for circuit court confirmations.  First, Andrew Oldham, one of President Trump's nominees to the Fifth Circuit, was confirmed by the Senate.  I was personally thrilled with this news.  Andy was one of my classmates at Harvard, and I cannot think of a nicer person.  He is kind, genuine, friendly, and very smart.  His personality actually reminds me a lot of Justice Elena Kagan, although I suspect that the two of them might disagree on substantive issues.  Andy is the fifth Trump nominee confirmed to the Fifth Circuit.  The two other circuits with a high number of Trump confirmations are the Sixth and Seventh with four judges each.  You can see all of President Trump's judicial confirmations here.

In addition to Andy's confirmation, four other appellate court nominees made it out of the Judiciary Committee.  A few weeks ago I wrote about Senator Flake's decision to hold up judicial nominees over President Trump's tariff policy.  Apparently, now that the Senate has voted on the tariff issue, Senator Flake is removing his automatic hold.

Finally, Ninth Circuit nominee Ryan Bounds was set to be confirmed by the Senate on July 19.  However, his nomination was suddenly withdrawn after it became clear that he didn't have the votes for confirmation.  The opposition to Bounds stemmed in part from 20 year old college writings that he has expressed regret over. Last Friday, ran a story on what we can learn from the failed nomination.  I found their observations to be interesting.

First, "it only takes one."  With Senator McCain out, the Republicans hold a razor thin margin in the Senate.  If one senator decides to not support a nominee, then that nomination will fail.

The second and third points in the article both address more cooperation between the White House and the home state senators, even if they are Democrats. This is a touchy topic and one that comes up with nominations whenever the President and home state senators are of different parties. According to the article,

When the nomination was initially announced last year, Oregon’s two Democratic U.S. senators—Ron Wyden and Jeff Merkley—refused to sign off on his nomination since he wasn’t vetted through their bipartisan selection committee. In February, after the senator’s committee convened, they included Bounds on a list of four candidates ranked the highest to the White House.

But shortly thereafter a liberal interest group surfaced opinion pieces Bounds wrote while an undergraduate at Stanford University—article in which Bounds criticized “race-focused” campus groups and urged the school to adopt a “beyond a reasonable doubt” approach to campus sexual assault.

Citing the lack of disclosure and the content of the writings, Wyden and Merkley urged the White House not to move forward with his nomination. The senators said that five of the seven members of their vetting committee said they would not have approved Bounds as a nominee had the writings been handed over.

In Bounds's defense, he has explained that the Oregon senators never asked for his college writings and that he provided those writings to the Senate Judiciary Committee.

As the article points out, there are 6 (soon to be 7) vacancies on the Ninth Circuit.  So far, only one nominee has been confirmed.  President Trump has the potential to make a huge impact on the Ninth Circuit, but he will likely have to work with Democrat senators in blue states to get it done.

In the interest of full disclosure, I was sorry to hear the news about Ryan's nomination being withdrawn. I worked with Ryan in the Office of Legal Policy over a decade ago, and I found him to be fair and kind to all people.  I will watch with interest who the White House nominates for the seat.

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