The United States Law Week

Trump Drops Obama Picks, N.Y., Calif. Names From Judges List (1)

Jan. 23, 2019, 6:19 PMUpdated: Jan. 23, 2019, 11:45 PM

In its new list of judicial nominees, the White House dropped at least five names previously put forward by Barack Obama when he was president as well as a number of appellate and district court nominees from California, New York, and Illinois, all Democratic strongholds.

The White House didn’t immediately return a request for comment or offer an explanation for its decision-making around the renomination package sent to the Senate Jan. 23.

But the omission of certain names affiliated with Democrats or Blue states could indicate a backlash by the Republican administration against certain figures or simply reflect the state of fierce partisan discord in Washington, Carl W. Tobias, University of Richmond School of Law professor, told Bloomberg Law.

President Donald Trump has been tangling most recently with Senate Minority Leader Chuck Schumer of New York and House Speaker Nancy Pelosi of California over the high-stakes government shutdown driven by the standoff over White House demands for billions in border wall funding.

Or it might suggest that a renegotiation of some nominee packages between the White House and Democrats is underway, or that the administration is reconsidering its options now that Republicans have expanded their majority in the Senate, which must confirm judicial appointments, Tobias said.

Notably, the list of 51 names includes White House budget office official Neomi Rao to fill the seat on the U.S. Court of Appeals for the District of Columbia Circuit vacated by now-U.S. Supreme Court Justice Brett Kavanaugh.

Twenty-three appellate and district court names previously put forward by Trump were left off the list this time, but some or all could always resurface.

The list didn’t include the following five previous Obama picks, four of whom are women:

  • Stephanie Gallagher, nominated to the District of Maryland;
  • Diane Gujarati, nominated to the Eastern District of New York;
  • Mary E. McElroy, nominated to the District of Rhode Island;
  • Gary R. Brown, nominated to the Eastern District of New York; and
  • Kathleen M. O’Sullivan, whose nomination to the U.S. District Court for the Western District of Washington was announced by the White House last year but never submitted to the Senate.

Several nominees to district courts in New York also weren’t included, in addition to Gujarati and Brown:

  • Eric Komitee, nominated to the Eastern District of New York;
  • Rachel Kovner, nominated to the Eastern District of New York;
  • Mary Kay Vyskocil, nominated to the Southern District of New York; and
  • John Sinatra, nominated to the Western District of New York.

Several federal appellate court and district nominees from California also weren’t included.

But Sen. Dianne Feinstein of California, the top Democrat on the Judiciary Committee, is “having constructive conversations with the White House on judicial vacancies,” a spokesperson for her told Bloomberg Law.

Three nominees to the U.S. Court of Appeals for the Ninth Circuit from California left off the list were:

All three of Trump’s unconfirmed nominees to the Central District of California also weren’t included:

  • Stanley Blumenfeld;
  • Jeremy Rosen; and
  • Mark C. Scarsi.

Similarly, three unconfirmed nominees to the Northern District of Illinois weren’t included:

  • Martha M. Pacold;
  • Mary M. Rowland; and
  • Steven C. Seeger.

Bipartisan Picks Not Included

It’s interesting that most of the names not included were from states with two Democratic senators, and that many of those were part of bipartisan package deals, Tobias said.

The Illinois district court nominees were lauded by both of that state’s Democratic senators, who said they resulted from a bipartisan process with the White House, for example.

And Schumer applauded Sinatra’s nomination as part of a bipartisan process.

Another scholar cautioned against making assumptions about the White House’s intentions based on the list.

“I wouldn’t be surprised” to see another list that renominates additional candidates soon, said Russell R. Wheeler, a professor at American University law school in Washington, and a visiting fellow at the Brookings Institution who focuses on U.S. judicial systems.

It’s “hard to figure anything out” about this White House, Wheeler said.

(updated throughout with scholar comments and context)

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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