From Law.com

WASHINGTON — In a speech in Wisconsin in March, Hillary Clinton said something that even Donald Trump would agree with: “Whoever America elects this fall will help determine the future of the court for decades to come.”

She was talking about the U.S. Supreme Court, but the same is true for the federal judiciary as a whole, where the next president could inherit close to 100 vacancies. The courts have been a flashpoint in this election, more so than usual because of congressional gridlock on vacancies, the fight over the late Justice Antonin Scalia’s seat, and Trump’s invocation of the Supreme Court in trying to persuade moderate Republicans to support him.

Trump in May took the unusual step of releasing a list of 11 judges he would consider for the Supreme Court. He’s also been forthcoming about who he’s turning to for advice on the courts, offering a window into how judicial nominations would play out if he’s elected. Clinton hasn’t followed suit, but there’s a paper trail on her thinking about the federal bench going back to the 1990s.

Lawyers are paying attention to signals the candidates send about how they’ll fill judicial vacancies. One judge can shift how the majority of a particular court approaches business disputes, civil rights and other issues, said Theodore Boutrous Jr., co-leader of the litigation practice at Gibson, Dunn & Crutcher.

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“There are changes in the judiciary when you have a president for eight years, as we have for the last three presidents. All three of those presidents have had a significant impact on the judiciary. It is something we keep an eye on. It’s hard with the Supreme Court in its current state not to think about that,” Boutrous said.

Trump’s campaign counsel said in an interview that the campaign is considering lower court nominees as well as possible picks for the Supreme Court. Trump “tends to have a certain kind of person that he clicks with, usually high-energy, usually they’re not yes men, yes women,” said Don McGahn, a Washington-based partner at Jones Day. The judges on Trump’s Supreme Court list fit that mold, he said, and the same would go for the circuit courts.

Clinton has spoken generally about the courts as a campaign issue, but if she has nominees in mind, she has yet to share them. She pushed for progressive judges while her husband was president, and her voting record on judicial nominees in the U.S. Senate was solidly liberal—she even split with then-Sen. Barack Obama to oppose one of President George W. Bush’s contested nominees.

Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr and a Justice Department official under President Bill Clinton, said Hillary Clinton “will be among the most interested in the judiciary of any presidents we’ve had in the recent past,” citing her background as a lawyer. Obama faced criticism in his first term for moving slowly on court vacancies; Gorelick said she thought Clinton would be willing to spend political capital early on to push for nominees.

“She’s very, very interested the quality of the judiciary,” Gorelick said.

‘ALL THE RIGHT PEOPLE’
Despite the maverick image that Trump has cultivated on the campaign trail, he so far has tapped a traditional conservative brain trust to advise him on judicial nominations, turning to the Heritage Foundation and Federalist Society as well as Sen. Jeff Sessions, R-Alabama, a former U.S. attorney, and McGahn at Jones Day.

That’s a comfort to the Republican legal community.

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative group, said Trump was talking to “all of the right people” about judicial nominees. His Supreme Court candidates had records with “clear examples of showing a distinct constitutionalist philosophy and approach on the bench,” she said.

Through his connection to McGahn, Trump would have access to an all-star bench of conservative legal talent at Jones Day, including partners Michael Carvin, who argued against the Affordable Care Act, and Noel Francisco, who challenged Obama’s recess appointments to the National Labor Relations Board. Jones Day is known for hiring a large number of former Supreme Court clerks and clerks from lower courts, another network to consult for information on potential nominees.

One high-profile lawyer associated with Trump who hasn’t been involved in conversations about judicial nominees is New Jersey Gov. Chris Christie, according to a campaign official. Trump selected Christie, a former U.S. attorney, to lead his transition team. Lawyers from the Trump Organization also have not been involved, according to the campaign.

Trump has spoken publically about his ties to the Heritage Foundation and Federalist Society—something of an awkward pat on the back for those groups, as nonprofits can’t contribute directly to a campaign. After Trump said in March that Heritage was “working on” his list of Supreme Court candidates, the group clarified that it wasn’t preparing anything specifically for his campaign, according to Heritage legal scholar John Malcolm. But their influence is clear—Trump’s list included five names from an article Malcolm wrote about his top picks for the high court.

“The list was as available to Bernie Sanders as it was to Donald Trump,” said Malcolm, referencing Clinton’s rival in the Democratic primaries. “There were not communications between me and anyone in the Trump campaign.”

If Clinton is elected, observers say to look for a familiar constellation of Beltway insiders to advise her on judicial nominations. Caroline Fredrickson, president of the American Constitution Society, a liberal lawyers group, said she expected Clinton campaign chairman John Podesta—Bill Clinton’s former chief of staff who was also a counselor to President Obama—to play a significant role in advising Clinton on judicial nominations.

“She obviously has lived in the White House and has been through this process before, so I think there are people who are close to her who have also had a history of engagement in the … judge selection process,” Fredrickson said.

The Clinton campaign did not respond to multiple requests for comment, nor did campaign general counsel Marc Elias, a partner at Perkins Coie.

LONG PAPER TRAIL
McGahn identified three characteristics of the judges on Trump’s list of potential SCOTUS picks that would also apply to Trump’s overall approach to choosing judges: geographic and law school diversity, no personal friends of Trump or his advisers, and no “stealth” candidates whose judicial philosophy is unknown. The list included six federal judges and five state court judges.

Trump was criticized earlier this year for questioning the impartiality of U.S. District Judge Gonzalo Curiel in San Diego, who is presiding over a civil fraud case against the now-defunct Trump University. Curiel’s parents emigrated from Mexico—the judge was born in Indiana—and Trump, in remarks that were denounced even by members of his own party, cited Curiel’s background in complaining about being treated unfairly in the case.

Asked whether Trump’s comments about Curiel reflected the candidate’s thinking about judicial nominees, McGahn deferred to a statement that Trump released in June about the controversy. Trump said he believed he raised legitimate questions about Curiel’s impartiality, but “I do not feel that one’s heritage makes them incapable of being impartial.”

Absent a list like Trump’s, Clinton’s past experience with judicial nominations offers insight into the types of nominees she might pick.

In the 1990s, Legal Times reported that Clinton advocated for judicial nominees, including Diane Wood, a former law professor and Justice Department attorney, who was confirmed to the U.S. Court of Appeals for the Seventh Circuit in 1995; Susan Graber, a former Oregon state judge and college and law school classmate of Clinton’s, who was confirmed to the Ninth Circuit in 1998; and Rosemary Barkett, a former state judge in Florida confirmed to the Eleventh Circuit in 1994, who has since retired.

Wood, Graber and Barkett are “extraordinarily qualified, very admirable judges who have been discussed frequently as possible Supreme Court nominees,” Fredrickson said.

In the Senate, Clinton joined with other Democrats to vote through uncontroversial judicial nominees under President George W. Bush. The few times she was confronted with politically divisive picks, Clinton voted “no,” ending up in the minority.

She and Obama split on one contested nominee under Bush, Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit. Obama voted yes, and Clinton joined with 23 other Democrats to vote no.

She opposed the nominations of Chief Justice John Roberts Jr. and Samuel Alito Jr. to the Supreme Court. And Clinton was the lone “no” vote in 2003 against Michael Chertoff’s nomination to the Third Circuit; Chertoff had been involved in the Whitewater investigation.

Nan Aron, president of Alliance for Justice, a liberal advocacy group, said Clinton has expressed an interest in judges “who understand the effect their decisions have on everyday people.” That could mean more nominees with legal services, legislative or other government-service experience. Aron also said Clinton would focus on diversity, a priority for the Obama administration.

“I would expect continuity along those lines,” Aron said.

Whoever wins will take office with a large number of vacancies to fill. There are 96 federal court vacancies, and the Senate historically has confirmed few judges in the final months of an election year. Interest groups on both sides are gearing up to push the next president to act quickly on filling Scalia’s seat if it’s still empty and the dozens of lower court vacancies.

“We’re working to ensure that whoever the next president is has a better understanding of how to work on the judicial vacancy issue in a more efficient way,” Fredrickson said.


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