The Wall Street Journal and Buzzfeed are both reporting that Judge Janice Rogers Brown will retire from active service on the U.S. Court of Appeals for the D.C. Circuit. This decision will create a vacancy on the 11-member court and an opportunity for President Trump to nominate someone to this important court.
Brown has sat on the D.C. Circuit for a dozen years, after serving on the California Supreme Court and in state government. Brown was first nominated to the D.C. Circuit by President George W. Bush in 2003, though she was not confirmed until 2005 due to active opposition from Senate Democrats (including a filibuster of her nomination). Here, for instance, is then-Sen. Barack Obama’s speech against her confirmation.
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.
Though neither story specifies, it is assumed that Brown will take senior status. If so, Brown could continue to participate in three-judge panels and hear cases (and would be able to decide how large or small of a caseload she would like to have).
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.