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Biden Takes Time Weighing Next Pick for D.C. Circuit

Sept. 2, 2021, 8:46 AM

President Joe Biden has a second seat to fill on the federal appeals court in the District of Columbia with less pressure to select a nominee quickly, a number of names circulating in the legal community, and one group pushing for the first Hispanic member.

D.C. Circuit Judge David Tatel says he’ll step down once a replacement is appointed, which immediately lowers the temperature on the nomination to the court considered the second most-powerful in the country.

“My guess is they are thinking very long and hard about who they’re going to put there,” said John P. Collins, a professor at George Washington University who follows judicial nominations.

“For all the good President Obama did in increasing diversity with his picks, he really didn’t leave Joe Biden much of anyone on the courts of appeals as obvious prime-time Supreme Court candidates, and that’s what this seat could be,” Collins said.

The D.C. Circuit’s positioning to hear inter-agency disputes, national security issues, and other high-profile cases in the nation’s capital has made it a springboard to the Supreme Court.

Biden has had the luxury of filling two D.C. Circuit seats. Ketanji Brown Jackson was a front-runner from the start for a big judicial promotion when Biden picked her this spring to replace Merrick Garland, who left to become attorney general.

Such a favorite doesn’t appear to be in play this time, making it less clear who might replace Tatel, 79, who took Ruth Bader Ginsburg’s seat on the D.C. Circuit as a Bill Clinton appointee in 1994.

The White House didn’t comment on its search for a nominee.

Make History

One possible route Biden could go would be to appoint the first-ever Hispanic to the D.C. Circuit.

Biden has so far prioritized increasing diversity on the federal bench, filling his lists with “firsts,” such as the first Muslim federal judge, and the first Black judge to ever sit on the Federal Circuit.

Thomas A. Saenz, president and general counsel of Mexican American Legal Defense and Educational Fund, said the organization has urged Biden to appoint Latino or Latina to the D.C. Circuit.

The group has forwarded to the White House seven possible picks for the seat, Saenz said. He didn’t identify them in comments to Bloomberg Law but said the list was a mix of men and women, each with a connection to Washington. He also said the list didn’t include Big Law partners or federal prosecutors, in an effort to keep in line with the administration’s desire to increase professional diversity on the courts.

Saenz said Biden has made some “admirable” picks, including Myrna Pérez for the New York-based Second Circuit. But there has still been an overall lack of representation of Latino and Latinas in Biden’s judicial nominees, which is concerning because it is the largest minority group in the U.S., he said.

Possible Candidates

A number of names also are swirling around legal and judicial advocacy circles.

According to multiple groups and lawyers who spoke with Bloomberg Law, the White House is believed to be considering or to have considered consumer rights attorneys Deepak Gupta, a founder of boutique appellate firm Gupta Wessler, and Karla Gilbride, a senior attorney at Public Justice.

Gupta or Gilbride would likely please progressives, who have previously included them in lists of judicial nominees.

Gupta was included on a Supreme Court shortlist released by the progressive judicial advocacy group Demand Justice and Gilbride was included on a list of possible appeals court candidates from People’s Parity Project, a progressive group comprised of young lawyers and law students.

One lawyer familiar with the names making the rounds said exploring Gilbride as a nominee could be in part an effort to keep the representation of a judge who is blind on the circuit. Gilbride, like Tatel, is blind.

Other names the lawyers and advocacy groups mentioned as people for the White House to consider included:

  • Kelsi Brown Corkran, Supreme Court director of the Institute for Constitutional Advocacy and Protection at Georgetown Law;
  • Loren AliKhan, the solitictor general of the District of Columbia; and
  • Cate Stetson, a partner at Hogan Lovells.

Taking Time

Tatel’s decision to condition his semi-retirement upon the appointment of his successor and Biden’s search for a solicitor general could both play into the delay in the D.C. Circuit nomination.

The administration seems to be prioritizing filling vacant seats or those in which a judge has given a date for their retirement, likely in an effort to not leave courts shorthanded, Collins said.

Biden, for example, has nominated or confirmed judges to all three of the vacant seats on the Second Circuit—two of those picks were nominated to a seat that was already vacant and one was nominated to a seat that was about to become vacant.

There was also likely overlap between the candidates the White House was looking at for the solicitor general slot and the D.C. Circuit, Collins said. Now that Biden has nominated Elizabeth Prelogar to be solicitor general, the D.C. Circuit could be next, he said.

As far as who the nominee could be, Collins said, it’s anyone’s game.

“Most people who have guessed at who are likely candidates to fill seats have been wrong with this administration, which I think is a good thing because they’re thinking outside the traditional Big Law partner track,” he said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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