Louisiana’s John Kennedy Plays Gatekeeper on Fifth Circuit Pick

President Donald Trump’s nominee for a seat on the influential Fifth Circuit may come down to Sen. John Kennedy (R-La.).

Frontrunners for the seat include Louisiana solicitor general J. Benjamin Aguiñaga, who clerked for Justice Samuel Alito and has argued four cases before the Supreme Court and Anna St. John, who was confirmed to the Eastern District of Louisiana earlier this year, after Kennedy backed her for that judgeship, according to Mike Fragoso, ex-chief counsel to former Senate Majority Leader Mitch McConnell (R-Ky.).

James Baehr, the Trump-appointed general counsel for the Department of Veterans Affairs, is another obvious contender, Fragoso said.

The White House faces a narrow window to announce a nominee as time runs out for the Senate to confirm judges before the midterm elections in November.

In making its pick, the White House will have to take into account the preferences of Kennedy, whose seat on the Judiciary Committee gives him the ability to sink a nominee.

“He takes these questions about who should be judges in his state extraordinarily seriously,” said Fragoso, now a partner with Torridon Law. “If the White House does not adequately take Senator Kennedy’s preferences into consideration, this could go off the rails.”

Kennedy told Bloomberg Law earlier this month he had thoughts on who should be nominated, but declined to provide additional comment. His office didn’t return a request for comment.

A White House spokesperson didn’t immediately respond to a request for comment.

During Trump’s first term, Kennedy opposed several district court picks who he viewed as unqualified for the posts, leading the White House to withdraw their nominations. All three of the candidates have long legal resumes, but Kennedy’s concerns haven’t been limited to experience.

During a June confirmation hearing, Kennedy chastised Daniel Traynor, Trump’s pick for the US Court of Appeals for the Eighth Circuit, for his decision to sign a letter pledging not to hire law clerks from Columbia University over its handling of Israel-Hamas war protests.

Kennedy spoke in support of St. John at her February hearing before the Senate Judiciary Committee.

“She’s a real student of the law, not all lawyers are,” Kennedy said in introducing her at the hearing. “That’s the kind of person we want on the federal bench and that’s really why I recommended her to the president.”

Conservative Credentials

Aguiñaga in April notched a win at the Supreme Court, as the conservative majority ruled in Louisiana’s favor in severely narrowing Section 2 of the Voting Rights Act.

Louisiana in April also lost a different case at the Supreme Court, as the justices ruled 8-0 that Chevron Corp. could move to federal court a lawsuit over its alleged role in the erosion of the state’s coastal wetlands. The justices have yet to rule in a third case Aguiñaga argued this term, against a Rastafarian inmate’s bid to sue a government official in his individual capacity for alleged violations of a religious rights law.

He’s also a regular presence before the New Orleans-based federal appeals court, where he’s successfully defended state laws like one requiring the display of the Ten Commandments in public classrooms. And he’s clerked for two of the Fifth Circuit’s current members, one of them at the Supreme Court of Texas.

Aguiñaga after graduating law school served on fellow Judiciary Committee member Sen. Ted Cruz’s (R-Texas) staff. When asked whether he’d support Aguiñaga’s nomination, Cruz said he didn’t know the solicitor general personally, but expected Kennedy to have “a major voice in choosing the appropriate nominee.”

If nominated and confirmed, Aguiñaga would fill the seat currently held by Judge Kurt Engelhardt, who told the White House on June 9 that he’d take senior status, a form of semi-retirement for judges.

Fifth Circuit Makeup

Trump appointed six judges to the Fifth Circuit during his first term. While the new appointee won’t make a major difference in the court’s composition among the active judges, Engelhardt will still hear cases as a senior judge.

John Greil, a law professor at the University of Texas in Austin who clerked on the Fifth Circuit, said Engelhardt was a reliable conservative on the court.

But he said that Engelhardt was less publicly active in full court proceedings, compared to other Trump appointees on the court who often write separately when the en banc court declines to rehear cases or issues opinions.

“If they’re replaced with a judge who does want to be much more active in pushing for en banc, I think that’s where you will see a difference,” Greil said.

Josh Hammer, a conservative commentator who clerked for Judge James Ho on the Fifth Circuit, said he got to know Aguiñaga when they both lived in Houston. Aguiñaga was clerking at the time for Fifth Circuit Judge Edith Jones, who’s based out of the south Texas city.

“I think it would be a tremendous coup, frankly, for the state of Louisiana and for the entire Fifth Circuit to get him on the bench there,” Hammer said.