Jonathan Adler comments at the Washington Post‘s “Volokh Conspiracy” blog about the latest potential high-profile judicial vacancy.
[Janice Rogers] Brown has been a distinctive voice on the D.C. Circuit, and has authored numerous provocative and attention-getting opinions. These include her recent opinion lamenting the lack of meaningful political oversight of drone strikes, an opinion raising doubts about rational basis review of economic regulations, and a dissent arguing that the Recovery Act does not preclude suits by Federal National Mortgage Association and Federal Home Loan Mortgage Corporation shareholders against the Federal Housing Finance Agency. …
… Speculation is already beginning about who might be tapped to succeed Brown on the U.S. Court of Appeals for the D.C. Circuit. Ohio State’s Chris Walker identifies four potential nominees: Associate Attorney General Rachel Brand, University of Minnesota law professor Kristin Hickman, Kate Todd of the U.S. Chamber of Commerce, and Office of Information and Regulatory Affairs administrator nominee Neomi Rao (who is likely to be confirmed next week).
Another possibility is for Trump to use the D.C. Circuit opening to break the apparent logjam over nominations to the U.S. Court of Appeals for the 5th Circuit. As I understand the current state of play, there are three strong, highly qualified nominees for two “Texas seats” on the 5th Circuit, each with their own base of support: District Court Judge Reed O’Connor, Texas Supreme Court Justice Don Willett, and Andy Oldham, a deputy general counsel to Texas Governor Greg Abbott. Picking one of these jurists for the D.C. Circuit would enable Trump to place all three on the federal bench. For what it’s worth, there is precedent for this sort of thing. Then-District Court Judge David Sentelle, for example, was nominated to the D.C. Circuit because there was not a seat available on the U.S. Court of Appeals for the 4th Circuit.
