UPDATES & ANALYSIS
Trump Administration has three vacancies to fill on the Eighth Circuit
by Rox Laird | October 5, 2017
This article was original published in the Summer 2017 edition of the Bar Association of the United States Court of Appeals for the Eighth Circuit Newsletter, and is reprinted here with permission.
President Donald Trump is positioned to shape the federal circuit courts with 108 federal trial and appellate judgeships to fill when he entered office in January, twice the number when Barack Obama took office. And he shows every sign of moving aggressively to take advantage of this opportunity.
The president had as of Aug. 3 announced 44 nominations, including U.S. District Judge Ralph Erickson of the District of North Dakota, who would replace Judge Kermit Bye of North Dakota, and Minnesota Supreme Court Justice David Stras of the Minnesota Supreme Court, who would fill the vacancy created when Judge Diana Murphy of Minnesota took senior status last November. The White House on Aug. 3 announced the nomination of Omaha lawyer Steven Grasz to replace former Chief Judge William Jay Riley of Nebraska, who took senior status in June.
Presuming these three nominees are confirmed, President Trump will have appointed a third of the Eighth Circuit in his first six months in office. And, there could be three more vacancies during his first term, with Judges Roger Wollman and James Loken both already eligible to take senior status and with Duane Benton becoming eligible this year.
President Trump’s current and potential first-term appointment opportunities will not change the makeup of the court based on the party of the appointing presidents, however: Seven of the eight active judges on the circuit were appointed by GOP presidents, and six of those were appointed by either George H.W. Bush or George W. Bush. The court has just one Democratic appointee—Judge Jane Kelly of Cedar Rapids.
When the court was last at full strength, three of the eleven judges were appointed by Democrats. Comparing the active circuit-court judges by the appointing president’s party affiliation, the Eighth Circuit is the least balanced of all the circuit courts.
Chief Judge Lavenski Smith of Arkansas, appointed by President George W. Bush in 2002, is the court’s only African-American member, and Judge Kelly is the only woman member.
There was a chance that Kelly might have been joined on the court by another female Democratic appointee: Jennifer Klemetsrud Puhl of North Dakota was nominated by President Obama in 2016 to fill Judge Bye’s seat, but she never got a confirmation vote in the Senate and her nomination died in December at the close of the 114th Congress.
President Trump, on the other hand, is in the rare position to run the table with federal judicial appointments, at least early in this term.
First, the Republican-controlled Senate slowed the pace of judicial confirmations in Obama’s last year in office, which left the new president with those vacancies to fill along with new ones that have opened up since his inauguration. And, while Obama was criticized for being slow to make judicial appointments, Trump has in his first six months sent nominees to the Senate at three times the rate of the Obama White House.
Second, Republicans hold 52 seats in the Senate, which is enough to confirm federal circuit and district court judges without a single Democratic vote, thanks to a rules change by the Democrats in 2013 eliminating the 60 vote threshold for district- and circuit-court nominees.
For the Eighth Circuit, especially, there would seem to be no worries, what with Iowa’s Senator Chuck Grassley in the Senate Judiciary Committee chairman’s seat.
All of which should mean smooth sailing for Judge Erickson’s nomination in North Dakota, where both senators have issued supportive public statements about Trump’s nominee from that state.
Senator John Hoeven, in announcing his support for Erickson’s nomination, said “Judge Erickson has tremendous experience having served for 23 years in various judicial positions from his start as a Magistrate judge to his current position on the U.S. District Court. Throughout his career, he has upheld the rule of law and shown deep respect for the Constitution. We look forward to moving his nomination through the Senate.”
Senator Heidi Heitkamp said she, too, supports Erickson’s confirmation. “Judge Erickson has proven through his decades of experience, record of impartiality, and devotion to his work that he is a judicious and thoughtful lawyer who continues to follow the rule of law,” Heitkamp said in a June press release.
The same holds true for Grasz in Nebraska, where Senators Ben Sasse and Deb Fischer, who recommended Grasz for the Eighth Circuit vacancy, had high praise for his credentials and experience.
That is not the case in Minnesota, where Senators Amy Klobuchar and Al Franken—both Democrats and both members of the Senate Judiciary Committee—had solicited applications for the opening before the president announced Stras as his pick. Neither has so far committed, at least publicly, to supporting or opposing Stras.
Senator Franken said in a May press release: “Justice David Stras is a committed public servant whose tenure as a professor at the University of Minnesota underscores how much he cares about the law. I am concerned, however, by the fact that Judge Stras’ nomination is the product of a process that relied heavily on guidance from far-right Washington, DC-based special interest groups—rather than through a committee made up of a cross-section of Minnesota’s legal community. As President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit, I will be taking a close look at his record and his writings in the coming weeks to better understand how he thinks about the important matters before the federal courts today.”
Following Senate tradition, either Franken or Klobuchar could gum up the works for Stras if they were to refuse to submit a “blue slip” to the Judiciary Committee, a tradition in which senators indicate support for a nominee from their state by submitting a blue slip of paper to the committee. In the past, that gave home-state senators veto power over a president’s nominee, but Senator Grassley has hinted he may dispense with the blue-slip tradition for circuit-court nominees.
That would be a departure for Grassley, who has long defended the blue-slip tradition, and it would surprise University of Richmond Law Professor Carl Tobias, an expert on the federal judicial appointment process, who said “senators see that as the last piece of patronage.”
Justice David Stras
Stras is an associate justice on the Minnesota Supreme Court. He was appointed to the court by Gov. Tim Pawlenty in May 2010 and elected to a full six-year term in 2012.
Justice Stras is a graduate of the University of Kansas where he received his bachelor’s degree and a master of business administration. He received his law degree from the University of Kansas School of Law in 1999.
Stras clerked for Judge Melvin Brunetti of the U.S. Court of Appeals for the Ninth Circuit, for Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit, and for U.S. Supreme Court Justice Clarence Thomas.
Judge Ralph Erickson
Judge Ralph Erickson was appointed U.S. District Judge for the District of North Dakota by President George W. Bush in 2003. He was chief judge from 2009 to 2016.
Erickson earned a bachelor’s degree from Jamestown College in 1980 and a law degree from the University of North Dakota School of Law in 1984. He was in private practice for a decade, served as a magistrate, county, and state-court judge before joining the Eighth Circuit.
Grasz is senior counsel in the Omaha firm of Husch Blackwell, where he focuses on real estate, development and construction law. Before joining Husch Blackwell he was Nebraska’s chief deputy attorney general for 12 years. His appellate experience includes litigation before the U.S. Supreme Court, the Eighth Circuit, and the Nebraska Supreme Court.
Grasz earned a bachelor’s degree from the University of Nebraska-Lincoln in 1984 and a law degree from the University of Nebraska College of Law in 1989.
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