First Trump Judicial Pick of New Term Confirmed to Sixth Circuit

Whitney Hermandorfer, a litigator in Tennessee’s attorney general’s office and Donald Trump’s first judicial nominee of his second term, won confirmation to a federal appeals court in Nashville.

The Republican-led Senate voted, 46-42, along party lines on Monday to send Hermandorfer to the US Court of Appeals for the Sixth Circuit, which covers Tennessee, Ohio, Kentucky, and Michigan. She replaces Judge Jane Branstetter Stranch, a Barack Obama appointee who announced plans last year to assume partial retirement upon the confirmation of her successor.

Trump has so far made four appellate picks this term after appointing 54 judges to circuit courts in his quest to reshape the bench with younger conservatives during his first presidency.

Hermandorfer directs the strategic litigation unit for the Tennessee attorney general’s office, where she’s been on the forefront of issues critical to the conservative legal movement for one of the most active states in litigation against Biden administration policies.

She’s defended the state’s near total ban on abortion, and argued against a Biden Education Department Title IX rule that interpreted anti-sex discrimination language to encompass protections for transgender students.

She was also involved in Tennessee’s case to defend its prohibition on certain medical treatments for transgender children in US v. Skrmetti—which the Supreme Court upheld two weeks after Hermandorfer’s confirmation hearing.

And she signed Tennessee’s amicus brief in support of Trump’s petition regarding his birthright citizenship executive order and against the power of district judges to issue universal injunctions, after three federal court rulings blocked the initiative nationwide. The high court’s conservative majority later ruled that judges couldn’t issue such nationwide orders.

When asked at her confirmation hearing if the executive branch is required to follow court orders, she said that a judgment issued by a court “absolutely binds the parties.” She responded to later questioning that “if the Supreme Court issues an order at the end of the appellate review process, that order is to be followed as to the parties in the case,” a seeming nod to the debate over the constitutionality of universal injunctions.

Lawyers who’ve worked with Hermandorfer praised her leadership in multi-state coalitions handling sprawling litigation, and her ability to craft strategy for high stakes cases against Biden policies.

“Whitney is the best of the best,” Tennessee solicitor general Matthew Rice, who argued the Skrmetti case at the high court and has worked alongside her since she joined the attorney general’s office, said over email.

“And even with unparalleled credentials, Whitney carries herself with uncommon humility and a sincere care for others. She’s exactly the type of person that, as a country, we should want serving on the federal bench,” he said.

State Litigator

In between stints at Williams & Connolly, Hermandorfer clerked for judges at every level of the federal system, including three of the conservative jurists now sitting on the Supreme Court: Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh while he was on the DC Circuit.

Born in Florida, she later returned to Tennessee, where she was raised, to join its attorney general’s office. There, she was tapped to lead a new strategic litigation unit formed during Biden’s presidency to pursue and defend the state’s interests against what it saw as federal encroachment.

“It is tough to lead a unit of people and to give them direction and to find a right purpose, especially when working so closely with an established team like the solicitor general division,” said Eric Wessan, Iowa’s solicitor general.

During the Biden administration, Hermandorfer led a multi-state effort to block the US Department of Health and Human Services from enforcing its view that Section 1557 of the Affordable Care Act entitles people to civil rights protections over their gender identity or sexual orientation.

The states argued that the Biden-era provision is unconstitutional and violates the Administrative Procedure Act. They secured an initial nationwide pause on the rule, and the Trump administration is expected to withdraw it.

Trent McCotter, a Boyden Gray partner who represented Florida’s own challenge, said he often sought Hermandorfer’s advice on strategy and questions regarding the most “in the weeds” administrative issues because “she had come across, obviously, a lot of them,” he said.

“When you represent a state, especially when it’s a state that is suing the federal administration quite a bit, you quickly become an expert on those sorts of really intricate issues,” said McCotter, who was previously an assistant US attorney in the Eastern District of Virginia and a Justice Department attorney.

Experience Criticism

Senate Democrats seized on Hermandorfer’s youth and argued that the 2015 George Washington Law grad’s experience was insufficient for appellate appointment. In her late 30s, she would be one of the youngest circuit judges.

Hermandorfer said she’s been involved in over 100 appellate cases but has only argued before four appeals panels.

Recent presidents, including Trump and Joe Biden, have favored younger judges to better cement their judicial legacies. The practice has been criticized as opening the bench for less experienced—and sometimes less vetted—people to secure lifetime positions.

Allies of Hermandorfer characterized the criticism against her as hypocritical.

“I didn’t see many of the people leveling those criticisms level them at young judges nominated in the last administration, among people that have been in the practice of law for the amount of time that she has,” Wessan said.