Trump Returns to Red State Appeals Lawyers to Fill Judgeships

President Donald Trump returned to a favorite source of battle tested conservative lawyers to fill judicial vacancies in picking the first nominee of his second term: the ranks of state attorneys and solicitors general and their staff.

Tennessee state litigator Whitney Hermandorfer, who Trump plans to nominate for the US Court of Appeals for the Sixth Circuit, continues a trend from his first term of him turning to young lawyers on the front lines of issues critical to the conservative legal movement.

Roughly 17% of Trump’s appellate nominees had experience in a state solicitor general role, according to a Bloomberg Law analysis. Top appellate litigators who’ve defended the interests of Republican-controlled states in the realm of gun rights, abortion, immigration, transgender issues, and federal regulatory power generally, particularly under the Biden administration, will be among the most attractive candidates for trial and appellate seats as Trump looks to cement his judicial legacy with even more young, ideologically-committed conservatives.

“This administration wants people who have a track record of showing that they’re not afraid to take positions that are bold, that stick up for the Constitution even when it’s not popular, or when it’s contrary to what used to be the mainstream view of how law should be done,” said Benjamin Flowers, former Ohio solicitor general.

“And state solicitors general, just by virtue of the position, do have a lot of experience doing that,” Flowers said.

Reliable Pipeline

Hermandorfer, whose selection drew praise from conservatives of all stripes, fits the mold perfectly.

As director of strategic litigation in Tennessee’s Attorney General’s office, she has appeared before federal trial judges and appellate panels to defend the state’s near total ban on abortion in instances when life-threatening pregnancy complications arise. Hermandorfer also argued against a Biden Education Department Title IX rule aimed at strengthening protections for transgender students. She also clerked for three conservative jurists now sitting on the US Supreme Court.

“She is a brilliant lawyer who has bled on the battlefield of the conservative legal movement by defending children from abortionists and transgender activists,” said Robert Luther III, a former Trump White House lawyer who handled judicial nominations and founder of Constitutional Solutions PLLC.

Another state litigator who has made a name for himself is Scott Stewart, Mississippi’s solicitor general, who successfully argued before the Supreme Court in the landmark case Dobbs v. Jackson Women’s Health Organization that overturned the constitutional right to an abortion.

Stewart, a former Justice Clarence Thomas clerk, was appointed Mississippi’s solicitor general early 2021 before he made his high court debut that year to defend the state’s 15-week abortion ban. The 2008 Stanford Law grad was previously a lawyer in the Justice Department’s Office of Legal Counsel and the civil division under Trump, and a Gibson Dunn associate in Washington.

Other rising stars include Edmund LaCour, Alabama’s solicitor general, who defended the state’s ban on transgender medical care for youth known as “gender affirming care” and its “race neutral” congressional district map before the Supreme Court. He was previously nominated to the US District Court for the Middle District of Alabama but was blocked by then-Sen. Doug Jones (D-Ala.). The 2011 Yale Law grad was a partner at Kirkland & Ellis in Washington and a clerk for Judge William Pryor Jr. of the Eleventh Circuit.

Burgeoning Talent

State solicitors general, who typically answer to the state attorney general, are a relatively new phenomenon. Their proliferation in recent decades is intended to increase the quality of states’ advocacy at the Supreme Court and in other appeals courts.

Traditionally meant to protect state interests against federal encroachment, state solicitors general in recent administrations have also assumed more political roles as states controlled by the opposite party challenge the sitting president’s policies.

In Republican-led states, who’ve led the charge in investments to state SGs, the top appellate advocate post has been a training ground to prime up-and-coming conservative lawyers.

“It’s become kind of an area where really excellent, relatively younger appellate lawyers gain prominence and litigate appellate matters on behalf of their states,” said Michelle Kallan, former Virginia solicitor general and co-chair of Steptoe’s appeals and advocacy practice.

Trump put a similar premium on that experience in seeking out young conservatives for the bench in his first term. Alabama Solicitor General Andrew Brasher was confirmed to the Middle District of Alabama at just 38, before Trump elevated him to the Eleventh Circuit.

Trump Fifth Circuit appointees James Ho, Kyle Duncan, and Andrew Oldham all previously had state SG-related posts in Texas.

Challenges to the Biden administration mean Trump now has a pool of young conservative lawyers to choose from with experience litigating against the Democratic president’s policies or defending conservative interpretations of the law.

Trump will be relying on older, more moderate Republican-appointed judges to step aside and create more vacancies. He has 45 current open lifetime judgeships to fill, and 15 future vacancies. Six of those openings are on appellate courts.

“The conservative legal movement has been extremely effective at identifying people who are ideological true believers and getting them credentialed, getting them the attention of the White House, and getting them onto the bench,” said Carolyn Shapiro, former Illinois solicitor general and founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States.

“I don’t think there’s anything comparable to that sort of coordination on the other side,” she said.