Editor’s note: This article is part of The American Lawyer’s State of Litigation special section, along with a review of the year in class action law.
In the Trump administration’s continued effort to remake the federal judiciary, one constituency appears to be finding good fortune: law firm partners.
For the last two years, President Donald Trump’s vaunted judicial nominations machine has drawn heavily from law firms, plucking conservative attorneys from elite, white-shoe practices for lifetime appointments to the judicial bench.
The White House, as of early November, has nominated or announced plans to nominate 42 people to the federal courts of appeals. About 16 of those nominees, roughly 38 percent, have come directly from law firms, according to the analysis, edging out the 15 circuit court picks whom the Trump administration has recruited from other federal, state or local judgeships. Fewer nominees have come from public-sector jobs, academia or other roles, such as in-house lawyers.
Trump has pulled appeals court picks from state courts, elevating the likes of Texas Supreme Court Justice Don Willett to the Fifth Circuit, and Georgia’s Lisa Branch and Britt Grant to the Eleventh Circuit, and even federal prosecutors. He’s also appointed well-known names in academia, such as Notre Dame law professor Amy Coney Barrett to the Seventh Circuit and the University of Pennsylvania’s Stephanos Bibas to the Third Circuit.
But private lawyers, particularly those from top firms, feature prominently in his nominations. The Trump administration’s October announcement of judicial nominees included attorneys who hail from Jenner & Block; Munger, Tolles & Olson; and Consovoy McCarthy Park.
The American Lawyer analyzed the Trump administration’s judicial nominees to Article I and Article III courts through the end of October, including withdrawn bids and the White House’s announced nominations that have not formally been sent to the Senate. To collect data on nominees’ past jobs, The American Lawyer examined nominees’ biographies, Senate questionnaires when available, and publicly available information.
So far, the Trump administration’s recruitment of private lawyers for federal appeals courts represent an uptick from his recent predecessors. The White House did not respond to requests for comment on judicial nominations.
Presidents Barack Obama, Bill Clinton and George W. Bush, for example, drew between 16 percent and 25 percent of their federal appeals court nominations from the ranks of private lawyers, according to data provided by Brookings Institution fellow Russell Wheeler, who tracks nominations. But they also sought to elevate more lower court and state judges to appeals courts. Of Obama’s 68 nominees to appeals courts, 31 came from judgeships, while around half of Clinton and Bush’s appeals court picks were also judges.
It’s not clear if there’s a particular rhyme or reason to the Trump administration’s early emphasis on law firm partners. It’s well known that the administration has prioritized picking young, conservative lawyers—especially textualists and originalists—for the powerful courts of appeals. The Trump administration’s chief architect on nominations was White House counsel Don McGahn, who left his post in October.
Michael McGinley, a Dechert partner who previously worked on judicial nominations at the Trump White House, says he is surprised by the early lead for private lawyers. The nominations search included discussions with various parties, including culling nominee recommendations from senators.
“The approach we took was that we treated the interviews very seriously, so that someone who came in and nailed the interview, even if they were otherwise unknown to us going in, had a very good chance of getting nominated,” McGinley says.
One litigator, A. Marvin Quattlebaum of Nelson Mullins Riley & Scarborough, so impressed White House lawyers in his interview for a South Carolina district court seat, for which he was confirmed, that he eventually was elevated to the Fourth Circuit, McGinley says.
The White House legal shop was similarly impressed by Bridget Bade, an Arizona federal magistrate judge who interviewed with the White House and landed a Ninth Circuit nomination.
“When you can have a diverse set of backgrounds, all other things being equal, that’s a good thing,” McGinley says. “But we focused pretty heavily on merits, so maybe that does skew things a bit.”
That most of Trump’s circuit court nominees are academically qualified or well credentialed is difficult to dispute. Many have held government positions or prestigious Supreme Court clerkships. A handful of alumni of the Justice Department’s Office of Legal Counsel have been nominated to the appellate level, including Michael Park of Consovoy McCarthy Park, whom the White House intends to place on the Second Circuit.
The Obama administration also emphasized “experiential diversity,” or finding nominees who came from a variety of job experiences, on top of racial and gender diversity. It was important that the administration “paid attention to” finding judges who would reflect the parties who came before them, former Obama White House counsel Neil Eggleston, now at Kirkland & Ellis, says.
Ron Klain, a judicial nominations veteran in the Clinton White House, says the emphasis thus far on corporate lawyers, over those with more judicial experience, is “very different” from previous administrations.
“You’re going to find people who are probably more sympathetic to corporate interests, the kinds of interests of their clients, who may be less wedded in the kind of restrained norms of prior judicial service,” Klain says. For judges who come from the bench and have been elevated to the appeals courts, “presumably they come with a certain kind of acculturation and judicial decision-making, and a certain adherence to judicial norms that perhaps people straight out of practice don’t have that same background or same perspective,” he says.
Ultimately, if the trend continues, the profile of Trump’s judicial nominees will reflect McGahn’s influence on judicial nominations, according to Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst who closely follows federal judicial appointments.
“He’s been fashioning the judiciary more in terms of his image, which Trump has gladly accepted, and that’s traditional, conservative, blue-ribbon, white-shoe law firm lawyers,” he says.
Indeed, many of Trump’s court picks have journeyed through Jones Day, even if they didn’t join the bench directly from the firm, mirroring the White House counsel’s office that recruits and vets these nominees. McGahn was once a partner at the firm, as were a number of White House lawyers. Trump’s first D.C. Circuit appointee is Greg Katsas, who joined the bench after a stint as Trump’s deputy counsel and, before that, was a top Jones Day partner.
And as Goldman points out, all of Trump’s confirmed appointees to appeals courts are current or former members of the Federalist Society, the conservative network of lawyers whose vice president, Leonard Leo, has had an outsize influence in the U.S. Supreme Court nominations process.
At the district court level, Trump’s nominations as of October reflect a similar gravitation toward law firm partners, although they appear to fall more in line with his predecessors. Among the 114 names Trump has nominated to these trial court seats, including four names who withdrew their bids, 44 district court nominees have come from law firms of varying sizes. About 39 nominees came from other judgeships; 26 served on state or local courts; 11 were nominated while serving as federal magistrate judges; and two were bankruptcy judges. Senators and judicial selection commissions often have more of a role in helping nominations at the district court level.
While over one-third of Trump’s total judicial nominees skip directly from a law firm to the bench, Big Law’s influence becomes more apparent when considering where Trump’s nominees have worked over the course of their careers.
Jones Day dominates the field, with 11 former or current lawyers named to the federal bench. About seven of Trump’s judicial nominees have made pit stops at Covington & Burling, the Washington, D.C.-based firm that houses ex-Obama administration Attorney General Eric Holder. Richard Hertling, a top lobbyist and of counsel at Covington since 2013, was nominated to a seat on the Court of Federal Claims, an Article I court whose judges, unlike Article III courts, serve 15-year terms. Emin Toro, another firm partner, is up for a seat on the U.S. Tax Court, also under Article I.
Bibas, of the Third Circuit, and the Eleventh Circuit’s Kevin Newsom are both former associates at the firm. Other district court picks who came from Covington include Jeremy Kernodle, confirmed by the Senate to a court in Texas; Joshua Wolson, who has been nominated to a judgeship in Pennsylvania; and Karin Immergut, who was picked for a seat in Oregon.
Kirkland & Ellis has contributed four current or former lawyers to Trump’s judicial nominees, including newly appointed Supreme Court Justice Brett Kavanaugh, who was a partner there from 1997 to 1998 and from 1999 to 2001. Gibson, Dunn & Crutcher can also count four of its current or former lawyers as Trump court appointees. James Ho, now seated on the Fifth Circuit, worked in the firm’s Dallas office as one of its top appellate litigators, and was Texas’ solicitor general.
Four nominees can also boast about their time at Kellogg, Hansen, Todd, Figel & Frederick—including Justice Neil Gorsuch, who was an associate and partner at the firm between 1995 and 2005.
The following firms have hosted at least three Trump administration judicial nominees: Sidley Austin, Baker Botts, and Barnes & Thornburg. A larger number of firms have at least two current or former lawyers nominated or confirmed to federal judgeships, including Perkins Coie; King & Spalding; Wachtell, Lipton, Rosen & Katz; Kutak Rock; and Washington, D.C. boutique Schaerr Duncan, now named Schaerr Jaffe.