The Renominations, and the Not-so-Fortunate

Today, the White House renominated many of the judicial nominees left over from last year's session, almost 3 weeks after the 116th Congress began.

Out of the 70 Article III and 8 Article I nominations returned to the president, we saw 51 renominations, a considerable drop in number from the end of last year.

I will note that an absence on today's list does not bar any of the missing nominees from being renominated in the near future, but since they weren't submitted to the Senate today for any number of reasons, those issues would have to be cleared up to ensure a successful resolution to the confirmation process.

Those missing (whom I discuss in more detail in past posts linked above) include former district court nominees Thomas Farr, Gordon Giampietro, Jon Katchen, and John M. O'Connor, and former Court of Federal Claims nominee Maureen Ohlhausen. These failed nominees sum up to 5, but there are still 22 nominees left to make up the difference between the 78 lapsed and 51 renominated.

All four Tax Court nominees were not renominated today, but I'm not aware of any issues with their nominations, leading me to believe that they'll arrive in a future announcement.

The other Article III nominees missing from the renominations list caused me to raise a few questions. First, their names and which political party recommended them, in parentheses (if Republican, either the White House or a state's Republican Members of Congress chose the nominee; if Democratic, the state's Democratic senators chose):

• 6 nominees from California: 
• 9th Circuit candidates Patrick Bumatay (R), Daniel Collins (R), and Kenneth Lee (R)
• Central District candidates Stanley Blumenfeld (R), Jeremy B. Rosen (R), and Mark S. Scarsi (R)
• 3 nominees from Illinois:
• Northern District candidates Martha Pacold (R), Mary Rowland (D), and Steven Seeger (R)
• 1 nominee from Maryland:
• Stephanie Gallagher (D)
• 7 nominees from New York:
• Eastern District candidates Gary Brown (D), Diane Gujarati (D), Eric Komitee (R), and Rachel Kovner (R)
• Southern District candidates Lewis Liman (D) and Mary Vyskocil (R)
• Western District candidate John Sinatra (R)
• 1 nominee from Rhode Island:
• Mary S. McElroy (D)

So it's evident that the White House didn't just refrain from renominating all Democrats pending from last year, as some Republicans also didn't make the cut. The common thread here is that all of those nominees are from states with 2 Democratic senators (i.e. possible blue slip issues). Meanwhile, nominees from Oregon and Virginia were renominated, likely because they were both administration choices. Personally, I don't think that any of the lapsed nominees from either Illinois, Maryland, or Rhode Island had blue slip issues (they all made it through committee last year), and thus, I don't have a reasonable explanation for why the White House didn't send them to the Senate again, unless they want to see Republican nominees from last year confirmed first before these candidates are added to the queue.

The New York batch is more questionable, as a batch of nominees from late last year involving 2 district court nominees for the state was renominated, but these 7 weren't. The 7 picks are a package deal between the White House and Sens. Chuck Schumer and Kirsten Gillibrand, so if any one nominee falls out of favor with any interested party, then all get put on hiatus. The more likely candidates to be holding up the bunch are Lewis Liman or John Sinatra, as they are the only nominees from the state who saw opposition in committee. There's also a distinct possibility that none of the nominees had any issues at all, but the White House is effectively using them as a bargaining chip to encourage the senators to play ball and return blue slips on the two 2nd Circuit candidates from the state (Judge Joseph Bianco and attorney Michael Park), who were both renominated today. I think the latter explanation is slightly more probable.

As for California, which is always the elephant in the room, there are quite a few possible explanations for why the nominees weren't given a renewed chance to make the bench. All of these nominations faced opposition from the California senators last year, and there are a few possible explanations for what could be happening to them. To begin with, the administration could be acquiescing to the senators' demands for new court of appeals nominees that they are willing to support and will nominate more acceptable candidates (from the Democrats' perspective) in the future. A move like this would generate serious opposition from the conservative legal network, and would seriously damper White House Counsel Pat Cipollone's credibility with the movement right as he earnestly begins his job. The other more main possibility is that the California senators are negotiating district court nominees of their own to join the Republican picks, much like what's happened in New York over the last two years, and the court of appeals nominees are being held back as some sort of bargaining chip. At this point in time, there are already 13 guaranteed district court vacancies in the state before the 2020 elections, and that number is only going to up. We've yet to see whether the White House cares more about those seats, or the possibility of making the 9th Circuit the most conservative it's been since Jimmy Carter appointed numerous judges to the court.

As of the writing of this post, 3 senators have already officially announced their presidential campaigns, and I'll go out on a limb and say that it's doubtful that any of these candidates will negotiate in any sort of good faith with the White House on judicial nominations (why work with the very administration you're running to unseat from office?). Nominees from those states may slow to a trickle, and eventually none at all, far before the height of campaign season.

As for more fortunate candidates, Court of Military Commission Review nominee Lisa Schenck was renominated, and I expect her eventual confirmation to be smooth, as past nominees to the court have had few speedbumps getting through the Senate. The two renominated Court of Federal Claims nominees will not see as smooth of a path to the bench, as they had more criticism from Judiciary Committee Democrats during hearings and in Questions for the Record.

All Article III nominees not listed in this post were also included in the White House's announcement, and their confirmations will likely occur in the next few months, with individual times varying based on what step of the process they are in.