Trump faces new decision on second most powerful court

With the successful confirmation of Brett Kavanaugh to the Supreme Court, legal minds are starting to buzz about who could replace him on the nation’s second most powerful court.

The D.C. Circuit Court of Appeals is known not only for the cases that reach it but also the career trajectory of those who sit on its bench. Supreme Court Chief Justice John Roberts, Justices Ruth Bader Ginsburg, Clarence Thomas and the late Justice Antonin Scalia all came from the appeals court.

Legal experts say the administration will be looking for someone steeped in administrative law and have floated Trump’s regulatory czar Neomi Rao as a viable option.

{mosads}“The D.C. Circuit has a docket that’s very heavy on administrative law and that’s an area Neomi has a lot of experience in,” said Joshua Blackman, an associate professor of law at the South Texas College of Law in Houston.

Rao serves as the administrator of the White House Office of Information and Regulatory Affairs (OIRA), which oversees federal agency rulemaking. She’s been effective in meeting Trump’s goal of cutting down the nation’s regulatory rulebook.

Rao, a former clerk for Thomas, worked as a professor at George Mason University’s Antonin Scalia Law School before she was confirmed in July 2017 by a 54-41 vote in the Senate.

The White House Office of Management and Budget did not respond to a request for comment when asked if Rao is being considered for or interested in the job.

The D.C. Circuit differs from other federal appeals courts in the types of cases it hears and the judges appointed to it.

Roberts wrote in a Virginia Law Review article in 2006 that the D.C. Circuit has the special responsibility of reviewing lawsuits challenging federal government actions and decisions.

“Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country,” retired D.C. Circuit Judge Patricia Wald wrote in an opinion piece for The Washington Post in 2013.

Last year, the court found the structure of the Consumer Financial Protection Bureau to be unconstitutional and stopped the administration from blocking an immigrant teen in federal custody from getting an abortion — a decision Kavanaugh disagreed with in a dissenting opinion. The court is now weighing a challenge to the Federal Communications Commission’s net neutrality rules.

For his first vacancy on the appeals court, Trump chose his own deputy assistant and deputy counsel Gregory Katsas. Legal experts say Trump could very well keep up that practice of picking nominees from within his own administration.  

“Whoever gets on is going to affect Trump’s efforts at deregulation,” said Chris Walker, an associate professor of law at Ohio State University Moritz College of Law.

In addition to Rao, Walker said Kate Comerford Todd and Kannon Shanmugam could be on the shortlist. Todd is the formerly senior vice president and chief counsel for the U.S. Chamber Litigation Center. Shanmugam is a partner at Williams & Connolly LLP, and has had a successful career as an appellate litigator.

Todd could not be reached for comment and Shanmugam did not respond to requests for comment Monday.

If Democrats retake the Senate, of course, it’s possible it could be tough for Trump to fill the vacancy.

“If it were to flip, it could be a seat that stays open for a really long time,” Walker told The Hill.  

Labor Secretary Alexander Acosta could also be in the running. Bloomberg Law reported that some people think Acosta has kept a low profile because he has one eye on the bench, but that a seat on the 11th Circuit in Acosta’s hometown of Miami might be more attainable.

In a statement, the Department of Labor forcefully denied that Acosta is vying to be on the court. 

“It is 100 percent, unequivocally not true,” the spokesperson said. “It should not even be printed.” 

Being a district court judge first is not a prerequisite. Experts say those selected for the court are typically career lawyers who have had held high level positions in politics or government.

“An awful lot of people go on to the circuit who have had positions in government or dealing with regulatory bodies, either serving on them, litigating cases before them, litigating cases against them or serving in academic positions,” said Ronald Cass, a former member of the American Bar Association standing committee on the federal judiciary, who served as a representative for the D.C. Circuit. “A variety of things will give the sort of familiarity with the docket that’s peculiar to the D.C. Circuit.”

Before Kavanaugh was appointed to the court by former President George W. Bush in 2006, he served as White House counsel and Bush’s staff secretary.

The court’s chief Judge, Merrick Garland, served as principal associate deputy Attorney General in the Department of Justice before he was nominated to the appeals court in 1997. Former President Obama nominated Garland to the Supreme Court in March 2016, but Republicans refused to hold a hearing or vote on his confirmation.

Trump is expected to appoint another conservative judge to replace Kavanaugh, so the nomination is unlikely to shift the ideological balance of the court — now stacked with Democratic appointees — to the right. Of the court’s 11 active judges, seven were nominated by Democratic presidents.

Because the court is located in D.C., Roberts said in 2006 there are no senators to enforce the locality requirements that are applicable as a practical matter in the other circuits.