Notice & Comment

Confirm Bradley Garcia to the District of Columbia Circuit Bench, by Carl Tobias

Now that the United States Senate has reassembled for the 118th Congress after a brief hiatus, the upper chamber must promptly appoint President Joe Biden’s exceptional nominee Bradley Garcia to the United States Court of Appeals for the District of Columbia Circuit. The tribunal has become the second most important court in the United States, especially because the D.C. Circuit decides substantial numbers of appeals that challenge administrative regulations, which protect public health, safety, and welfare and can be very expensive to implement. Garcia, whom President Biden nominated on June 15, 2022, would bring considerable valuable expertise and could become the appeals court’s first Latino judge.[1] The nominee has excelled in the highest echelon of law for almost a dozen years, while he recently began leadership service in the prestigious Department of Justice (DOJ), Office of Legal Counsel (OLC), ascending to the critical role of Deputy Assistant Attorney General.[2] The slot that Garcia would fill has been vacant over plentiful months.[3] Thus, the chamber needs to expeditiously approve the well qualified, mainstream nominee.

This important appellate court opening arose in early June 2022, when D.C. Circuit Judge Judith Rogers announced that she clearly intended to assume the crucial position of senior jurist on September 1 after more than a quarter century of distinguished public service on the appeals court.[4] Rogers had admirably notified Biden previously that she planned on becoming a senior judge.[5]

The President’s White House Counsel Office, which Dana Remus headed, depended on a systematic process to suggest accomplished, moderate candidates for President Biden’s review.[6] The selection team dutifully assembled numerous very capable, mainstream aspirants whom they had canvassed for this appeals court’s prior vacancies and additional highly talented, moderate candidates. The office swiftly evaluated, interviewed, and recommended a few extremely qualified choices, notably Garcia.

When Biden duly tendered Garcia, the executive branch press release distinctly recounted the nominee’s striking professional qualifications. The White House declared that, before exceptional Office of Legal Counsel service, the nominee was an O’Melveny & Myers partner in the Supreme Court and Appellate Practice Group, working at the well regarded law firm for eight years.[7] The nominee had represented plentiful clients in over four dozen federal and state appeals courts, efficaciously arguing thirteen relatively complex appeals in the High Court and practically half of the United States Courts of Appeals. He served with much competence as a law clerk for Supreme Court Justice Elena Kagan and for D.C. Circuit Judge Thomas Griffith, who was a highly respected, collegial member of the tribunal.

Garcia comprises an ethical, intelligent, careful, and diverse nominee vis-à-vis ethnicity,[8] who possesses balanced judicial temperament. He captured a well qualified rating, which is the finest, by the American Bar Association Standing Committee on Federal Judiciary.[9] Garcia exhibited the stellar attributes recounted throughout this piece when the nominee testified in a mid-summer Judiciary Committee hearing, and Democratic panel members seemed pleased with his comprehensive, nuanced responses.[10] However, several GOP senators disdainfully pressed Garcia regarding his supposed dearth of experience, youth, and representation of pro bono clients during litigation respecting abortion, gun control, and many additional “culture war” issues.[11] For example, multiple Republican senators attempted to compare the astute nominee with D.C. Circuit member Justin Walker, former President Donald Trump’s rather analogously young D.C. Circuit nominee whom the GOP committee members asserted Democratic senators had criticized regarding his age.[12] Cruz also deprecatingly remarked: “looking over your clients, it’s actually impressive just how much of a left-wing advocate you’ve been.”[13]

During the next panel meeting conducted on September 15, the committee robustly deliberated about Garcia’s capabilities and reported the prospect on a narrow vote, because he constitutes an extraordinarily talented centrist.[14]Democratic and GOP senators’ perspectives closely mirrored ideas which they had previously enunciated at the nominee committee hearing. For instance, Senator Chuck Grassley (IA), the panel Ranking Member, specifically predicted that Garcia would encounter “trouble” in winning Grand Old Party support, because the nominee lacked sufficient experience.[15] Democrats, namely Chair Durbin, “praised Garcia’s record advocating in [courts of appeals, explicitly characterizing him as a compelling] accomplished litigator with impressive breadth and depth of experience.”[16]

In the 117th Congress’ end, the politicians lacked adequate time for confirming Garcia and Biden’s numerous remaining superbly qualified, moderate designees; therefore, the candidates’ nominations expired on January 3, 2023.[17]Accordingly, Biden cautiously renamed myriad well qualified, moderate nominees, including Garcia, then and numerous other similar candidates twenty days later.[18] On February 2, the panel dutifully reported dynamic nominee Garcia and many other highly qualified, centrist nominees.[19]

Related concepts distinctly illuminate why the Senate must promptly appoint Garcia. First, Judge Rogers’ court vacancy has now remained empty for nearly six months. Biden also deftly nominated candidate Garcia over eight months ago. Requiring that well qualified choices and nominees wait long times could unfairly force individuals to place their careers and lives on hold. This can be salient for Garcia, as he presently engages in copious vital DOJ duties. Third, the unfilled seat ostensibly leads Rogers and her tribunal colleagues to assume comparatively ample cases, although plenty of senior jurists discharge responsibility for considerably fewer appeals.[20] This judge has continued handling and deciding numerous cases, which actually permits the tribunal to keep speedily, economically, and fairly concluding massive appeals.[21] Litigants, counsel, and the public concomitantly are certainly indebted to the experienced jurist for her rigorous ongoing service. However, the delay and numbers of partisan controversies among senators which might have left Rogers’ vacancy open could be inequitable to the dedicated public servant who professionally earned a senior judgeship plentiful months ago.

When the new Congress began after the holiday recess, Majority Leader Chuck Schumer (NY) needed to immediately proffer a floor debate and chamber vote, which appointed Bradley Garcia to the D.C. Circuit vacancy that has remained open. His distinguished record means that the accomplished nominee deserves swift confirmation, and Garcia’s consummate abilities will enable the court of appeals to continue promptly, inexpensively, and fairly resolving the tribunal’s substantial case load. 

Carl Tobias is the Williams Chair in Law, University of Richmond School of Law. Professor Tobias wishes to thank Margaret Sanner, Carley Ruival, Jane Baber, Katie Lehnen, and Jamie Wood for their valuable substantive and stylistic recommendations, the University of Richmond Law Library Staff, especially Paul Birch, Joyce Janto, and Alex Hutchings, for their excellent research, Yale Journal on Regulation Notice & Comment Editor Jacob Wirz for his excellent editorial efforts, Leslee Stone for her excellent processing, as well as Russell Williams and the Hunton Andrews Kurth Summer Grant Endowment Fund for their generous, continuing support. The author assumes responsibility for any errors that remain in this piece.

[1] White House, Office of the Press Secretary, President Biden Names Nineteenth Round of Judicial Nominees, June 15, 2022; Rachel Weiner, Biden Nominee Would Be First Latino On Federal Appeals Court In D.C., Wash. Post, June 15, 2022. 

[2] For Garcia’s qualifications, see sources cited supra note 1. For the critical responsibilities that the Department of Justice Office of Legal Counsel discharges, see Bob Bauer & Jack Goldsmith, After Trump 138,142 (2020); Harold Koh, A World Without Torture, 43 Colum. J. Transnat’l. L. 641, 645 (2005); see also Brad Kutner, Bench Report,, July 21, 2022 (suggesting that Garcia’s endeavors at OLC would enable him to felicitously resolve separation of powers appeals that the D.C. Circuit addresses). 

[3] See Admin. Office of the United States Courts, Vacancies in the Federal Judiciary, Current Vacancies (2023).

[4] See Nate Raymond, D.CCircuit’s Rogers to Take Senior StatusGiving Biden New Vacancy, Reuters, June 3, 2022; Rachel Weiner, Biden Gets Fourth Pick On D.C. Circuit As Judge Rogers Goes Senior, Wash. Post, June 3, 2022; Avalon Zoppo, D.C. Circuit Judge Judith Rogers to Take Senior Status,, June 3, 2022; see also sources cited supra note 1.

[5] See Judicial Vacancies, supra note 3; see also sources cited supra note 4.  

[6] I rely here and in the remainder of this paragraph and below on Carl Tobias, The D.C. Circuit As a National Court, 48 U. Miami L. Rev.159 (1993); Weiner, supra note 4; see also Christopher Banks, Judicial Politics In the D.C. Circuit (1999).

[7] I rely here and in the remainder of this paragraph and below on Press Release, supra note 1, and sources cited supra note 4.

[8] See sources cited supra notes 1 & 4. See generally Carl Tobias, Justifying Diversity in the Federal Judiciary, 106 Nw. U. L. Rev. Colloquy 283 (2012). But see Mexican American Legal Defense Fund, Statement on the Biden Administration’s Failure to Address Historical Latino Exclusion in Judicial Nominations, May 25, 2022; David Savage, Latinos Don’t See Themselves Fully Reflected in Biden’s Judicial Picks, L.A. Times, Aug. 30, 2022. 

[9] A substantial majority of the ABA Standing Committee rated the nominee well qualified; a minority rated Garcia qualified. One member abstained. Ratings of Art. III Judicial Nominees : 117th Cong., American Bar Association, Standing Comm. On The Federal Judiciary (2022). Numerous Democratic and Republican senators consider the Standing Committee ratings to be the “gold standard,” particularly when the committee assigns strong ratings to individuals whom Presidents of their parties nominate. 

[10] Judiciary Committee Chair Senator Dick Durbin (IL) strongly lauded the nominee by quoting from a letter submitted by D.C. Circuit Judge Thomas Griffith for whom Garcia clerked. Griffith praised Garcia’s “genial manner and temperament that will suit him well on a court that cannot play its critical role without collegiality.” Madison Alder, D.C. Circuit Nominee’s O’Melveny Work Draws Republican Focus, Bloomberg, July 27, 2022; S. Judiciary Comm., Hearing on Nominees, July 27, 2022.

[11] Alder, supra note 10; Mike Scarcella, Biden D.C. Circuit Nominee36Defends Experience, Reuters, July 27, 2022; Rachel Weiner, Republicans Press D.C. Circuit Nominee On AgePro Bono Work, Wash. Post, July 27, 2022; Avalon Zoppo, D.C. Circuit Nominee’s Young Age and Experience Fuel GOP Criticism,, July 27, 2022. 

[12] Republican Senator Ted Cruz (TX) and Senator John Kennedy (LA) articulated these contentions. However, Garcia responded that most of  the nominee’s “work was representing Fortune 500 companies [and] he had a track record of ‘working productively with clients and attorneys regardless of partisan affiliation.’” Hearingsupra note 10; see Durbin statements, infra note 16; Alder, supra note 10; see also other three sources cited supra note 11.

[13] Hearingsupra note 10; see Alder, supra note 10; see also other three sources cited supra note 11; Garcia response, supra note 12.

[14] Republican member Senator Lindsey Graham (SC) voted pass regarding Garcia, which permitted the committee to report the nominee. S. Judiciary Comm., Exec. Business Mtg., Sept. 15, 2022; see James Arkin, Senate Panel Advances D.C. Circuit Pick,; Nate Raymond, U.S. Senate Confirms 2nd Circuit Judge ; Panel Advances Five Nominees, Reuters, Sept. 15, 2022; see sources cited supra note 11.

For recent criticisms from Carrie Severino, the President of the Judicial Crisis Network, a conservative lobbying organization, and certain Republican senators of Graham’s propensity to favor Biden judicial nominees and frequently supply the decisive vote and the senator’s response that “elections have consequences,” see Alex Bolton, Graham Under Fire for Voting for Biden Judicial Nominees, The Hill, Feb. 7, 2023; Alex Bolton, Lindsey Graham in GOP Hot Seat for Speedy Judicial Nominees, The Hill, Feb. 17, 2023; Sara Dorn, Lindsey Graham Helps Biden Outpace Trump’s Judicial Nominees – And Some Republicans are Pushing for a Slowdown,, Feb. 17, 2023. 

[15] Grassley spoke before the committee voted. Exec. Business Mtg., supra note 14; see Raymond, supra note 14.

[16] See Arkin, supra note 14. See generally Exec. Business Mtg., supra note 14 (statements of Judiciary Committee Chair Durbin). 

[17] 169 Cong. Rec. S29 (daily ed. Jan. 3, 2023). Senate Rule XXXI (2023) mandates that all of the President’s judicial and executive branch nominations expire and be returned to the White House at the conclusion of each Congress. See Madison Alder, Dozens of Biden Judicial Nominations Returning to White House, Bloomberg, Dec 23, 2022.

[18] Biden renominated Garcia and numerous additional highly qualified, mainstream nominees the identical day that the Senate returned them. 169 Cong. Rec. S26 (daily ed. Jan. 3, 2023); see White House, Office of the Press Secretary, Nominations Sent to the Senate, Jan. 3, 2023; Ken Thomas, Biden Renominates His Picks for Judicial and Diplomatic Posts, Wall Street J., Jan. 3, 2023. 

For the nominees whom President Biden renominated twenty days thereafter, see White House, Office of the Press Secretary, Nominations Sent to the Senate, Jan. 23, 2023; see also 169 Cong. Rec. S59 (daily ed. Jan 23, 2023); Madison Alder, Two Biden Judge Picks Aren’t Renamed By White House, Bloomberg, Jan. 23, 2023.  

[19] Garcia captured approval on an 11-9 bipartisan report with no discussion of the nominee’s qualifications. S. Judiciary Comm., Exec. Business Mtg., Feb. 2, 2023. On February 9, ten additional well qualified, mainstream district nominees earned bipartisan committee approval; however, four appellate court and ten district court nominees whom most Republican senators apparently deemed relatively controversial received 11-10 party-line reports. See id., Feb. 9, 2023; see also James Arkin, Senate Judiciary Committee Advances 24 Judge Nominations,, Feb. 9, 2023; Tiana Headley, Biden Eleventh Circuit Pick Advances Out of Senate Judiciary, Bloomberg, Feb. 9, 2023; Brad Kutner, Blue Slips Debated24 Nominees Voted on at Senate Judiciary Executive Meeting,, Feb. 9, 2023; Nate Raymond & Mike Scarcella, 24 Biden Judicial Nominees Advance to Senate Vote, Reuters, Feb. 10, 2023. 

[20] See Ryan Scott & David Stras, Are Senior Judges Unconstitutional ?, 92 Cornell L. Rev. 453 (2007). See generally Xiao Wang, The Old Hand Problem, 107 Minn. L. Rev. 971 (2023). 

[21] See Fed. R. Civ. P. 1 (2022); see also Patrick Johnston, Problems in Raising Prayers to the Level of Rules The Example of Federal Rule of Civil Procedure 1, 75 B.U. L. Rev. 1325 (1995).

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