President Biden Names Two Circuit-Court Nominees Just before Christmas

President Joe Biden speaks about the country’s fight against the coronavirus disease at the White House in Washington, D.C., December 21, 2021.
(Kevin Lamarque/Reuters)

On Thursday, the Biden administration announced two more nominees to federal appellate courts: Judge J. Michelle Childs for the D.C. Circuit and Nancy Gbana Abudu for the Eleventh Circuit. These are two very notable nominations, though for different reasons.

Judge Childs is being nominated to replace Judge David Tatel, who announced his decision to take senior status on the confirmation of his successor back in February. Yes, you read that right. It took the White House ten months to settle on a nominee for the D.C. Circuit, even though there are no home-state senators with which the White House had to negotiate. There was apparently lots of jockeying for the seat, which many had thought might go to progressive attorney Deepak Gupta. It is also worth noting that while Judge Childs has substantial judicial experience, she does not appear to have much of a background in federal administrative law, which makes this an interesting choice.

The Abudu nomination is significant in a different respect. If there is a circuit-court nomination that may fail in the 50-50 Senate, this could be it. Abudu will be a controversial nomination because she works at the Southern Poverty Law Center, which has been quite rash in labeling conservative organizations to be “hate groups,” including fairly mainstream conservative Christian organizations. This, plus her work with the ACLU, may cause one or more Democratic senators to defect. So, even though Abudu’s nomination is supported by both Georgia Senators, she may have rough sledding.

With these nominations, there are 13 remaining circuit-court vacancies that President Biden has the opportunity to fill, including a Tenth Circuit seat that has been open since March. For more on current and potential vacancies for Biden to fill, see this Volokh Conspiracy post. As I explain there, the window for the Biden administration to influence the composition of the federal courts may be closing.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.