First Appellate Nominations by Presidents
Whitney Hermandorfer and her predecessors
President Trump recently announced that he would nominate Whitney Hermandorfer to a Sixth Circuit seat in Tennessee. Hermandorfer is Trump’s first appellate pick. Her selection provides occasion to survey first appellate picks by other presidents and to see what lessons they might provide. Especially as the judicial-confirmation wars have escalated, a White House will see a president’s first appellate pick as an opportunity to send a message.
A president is of course constrained in various ways in who his first pick might be. Most obviously, he will be looking to fill an existing vacancy—or, as in Hermandorfer’s case, a seat in which the incumbent has declared an intention to retire (a so-called “future vacancy”), usually either on a particular date or on confirmation of the incumbent’s successor. Before the blue-slip privilege over appellate nominees was demoted in late 2017, a president would especially want to make sure that home-state senators were supportive.
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Proceeding backwards in time, let’s take a look at the first appellate picks of presidents over the past few decades.
Joe Biden made his first three appellate nominations on the same day (April 19, 2021): Ketanji Brown Jackson to the D.C. Circuit, Candace Jackson-Awikumi to the Seventh Circuit, and Tiffany P. Cunningham to the Federal Circuit. It was no coincidence that all three of his nominees were African American women. Biden had a deep commitment to diversity in his judicial picks and especially to selection of black female candidates.
It’s remarkable to contemplate that over the course of his eight years in office Barack Obama nominated only three African American women to appellate seats (and succeeded in appointing only two). Biden matched Obama with his first slate of nominees, and he ended up appointing 13 African American women to appellate seats—a remarkable 29% of his total of 45 appellate appointees. That percentage is all the more amazing when you consider that black women account for only two to three percent of lawyers, with the numbers surely lower among the age cohort considered suitable for nomination.
Biden’s initial slate presaged his commitment, upon the news in January 2022 of Justice Stephen Breyer’s intention to retire, to select a black woman to replace Breyer. And his elevation of Ketanji Brown Jackson from the district court to the D.C. Circuit also burnished her credentials for his nomination of her to the Supreme Court.
In his first term, Donald Trump nominated Amul Thapar to a Sixth Circuit seat in Kentucky on March 21, 2017, a full six weeks before he made any other lower-court nominations. Trump’s first judicial nomination overall was of Neil Gorsuch to Antonin Scalia’s vacancy on the Supreme Court, and that nomination was still pending when Trump nominated Thapar. Senate majority leader Mitch McConnell was of course from Kentucky, and the early nomination of Thapar surely helped facilitate a good working relationship between the White House and McConnell on judicial nominations.
Thapar was promptly confirmed and became the first of the 54 appellate judges Trump appointed. He also became a promising candidate for a Supreme Court appointment in Trump’s first term, and he may well be a leading candidate if a Supreme Court vacancy arises in Trump’s second term.
Barack Obama’s first appellate nominee was David Hamilton to a Seventh Circuit seat in Indiana. Obama seems to have thought that picking a white guy from Indiana would enable him to pretend that Hamilton was a moderate, and the New York Times eagerly complied with the ruse. In reality, Hamilton had been a board member of the Indiana ACLU, and his record as a district judge included an extraordinary seven-year-long series of rulings that obstructed Indiana’s implementation of its law providing for informed consent on abortion and that ended up earning him a scolding from a Seventh Circuit panel.
George W. Bush made an extraordinary splash with his May 2001 White House ceremony in which he announced eleven appellate nominees, eight men and three women with “diverse backgrounds” and “sterling credentials.” Bush extended an olive branch to Senate Democrats by including in the group two liberal judges (Roger Gregory and Barrington Parker Jr.), both African American, whom Clinton had appointed. (Clinton recess-appointed Gregory to the Fourth Circuit, and he appointed Parker to a district court.) But Bush’s effort to foster a new era of good feelings collapsed very quickly fifteen days later when Senator Jim Jeffords of Vermont announced that he was leaving the Republican party and would caucus with the Democrats, thus shifting control of the Senate into their hands.
When Bill Clinton made his first lower-court picks three days after the Senate confirmed his nomination of Ruth Bader Ginsburg to the Supreme Court, he pledged to “change the face of the Federal courts.” Two of the three appellate nominees he announced that day were white males, but the third was Sixth Circuit nominee Martha Craig Daughtrey, the first woman to serve on the Tennessee supreme court.
Clinton was of course eager to use the diversity mantra to provide cover for liberal picks, and, as we have seen (see last section of this post), Daughtrey had plenty in her three years as a Tennessee supreme court justice to signal that she was very problematic. Just the previous year, in an opinion issued weeks before the U.S. Supreme Court was (wrongly) expected to overturn Roe v. Wade, Daughtrey had written an opinion, replete with frolics and detours, that extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. That case involved a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic, and Daughtrey had relied on skimpy psychotherapy articles to invent a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood. The transparent reason for her meanderings was to ensure a right to abortion under the Tennessee constitution in the event that the Supreme Court overturned Roe.
George H.W. Bush’s single term as president followed directly on his service as vice president during Ronald Reagan’s two terms, so it’s not surprising that one of his simultaneous first two appellate selections was Pamela Rymer, whom Reagan had previously nominated to fill the Ninth Circuit seat vacated by Anthony Kennedy. The other, also to the Ninth Circuit, was Ferdinand Fernandez. (As it happens, I played a role in the American Bar Association’s rating of Fernandez as Well Qualified, as the ABA committee’s Ninth Circuit member, charged with leading the review of Fernandez’s record, solicited my assistance in doing so.)
Ronald Reagan’s first appellate pick would appear to be a testament to the clout of Strom Thurmond, the new chairman of the Senate Judiciary Committee. Two weeks after he nominated Sandra Day O’Connor to the Supreme Court, Reagan nominated Robert F. Chapman to a Fourth Circuit seat in Thurmond’s South Carolina. With Thurmond’s assistance, the Senate confirmed Chapman’s nomination five days before it confirmed O’Connor’s.
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There has been a lot of noise that MAGA folks aren’t content with the sort of judicial candidates that we traditional legal conservatives favor and that Trump appointed in his first term. But Trump’s selection of Hermandorfer—for the same seat, as it happens, that Daughtrey held from 1993 to 2009—has won seemingly universal support from the right side of the political spectrum.
Like so many of Trump’s first-term appellate picks, Hermandorfer has stellar credentials. Among other things, she clerked for then-D.C. Circuit judge Brett Kavanaugh and for both Justice Samuel Alito and Justice Amy Coney Barrett, and she practiced law with an elite law firm in D.C. In her current capacity as director of the strategic litigation unit in the Tennessee attorney general’s office, Hermandorfer has committed her talents to important conservative legal causes: fighting, for example, against gender ideology and against regulations promoting abortion. She has earned effusive praise from those who have worked with her. Just shy of turning 38, Hermandorfer has a long judicial career ahead of her.
I hope very much that Trump’s selection of Whitney Hermandorfer signals the high quality of judicial nominees that he will strive to pick in his second term.