Notice & Comment

Evaluating the History of D.C. Circuit Judges Who Headed Agencies in Light of Judge J. Michelle Childs’s D.C. Circuit Nomination, by Eli Nachmany

Just before Christmas, President Joe Biden announced his intent to nominate Judge J. Michelle Childs to fill Judge David Tatel’s seat on the D.C. Circuit. Judge Childs, who has served as a judge on the U.S. District Court for the District of South Carolina since 2010, has had some fascinating experience at the state government level in South Carolina. Prior to her time on the bench, she was a Commissioner on the South Carolina Workers’ Compensation Commission and also served as Deputy Director of the Division of Labor at the South Carolina Department of Labor, Licensing, and Regulation.

Professor Anne Joseph O’Connell tweeted that the nomination was “[v]ery exciting” and asked, “What other DC Circuit judges headed a (federal or state) agency before joining the bench?” Professors Chris Walker and Aaron Nielson responded that the question might make for a good post on D.C. Circuit Review. I figured it would be a fun project to undertake.

I went through the Wikipedia pages of each of the 65 past and present judges who have served or are serving on the D.C. Circuit, so please forgive me if this post is missing anyone, but there are quite a few D.C. Circuit judges who have headed federal or state agencies prior to their time on the bench. Let me know in the comments below if I neglected to mention someone.

To start, one of the first judges on the D.C. Circuit—Judge Richard Henry Alvey—served as a delegate to the Maryland Constitutional Convention (not an agency, but quite an experience nonetheless). The first former “agency head” was probably Judge Charles Holland Duell, who was Commissioner of the U.S. Patent Office (the precursor to the U.S. Patent and Trademark Office).

Many former Assistant Attorneys General (“AAG”) of the U.S. Department of Justice (“DOJ”)—who lead divisions at DOJ—have gone on to serve on the D.C. Circuit. These include the following judges:

Judges James McPherson Proctor and George MacKinnon each served as a Special Assistant U.S. Attorney General.

A few former U.S. Attorneys have ascended to the D.C. Circuit, too. Judge Duncan Lawrence Groner was U.S. Attorney for the Eastern District of Virginia, Judge J. Skelly Wright was U.S. Attorney for the Eastern District of Louisiana, Judge MacKinnon was U.S. Attorney for the District of Minnesota, and Judge Wilkey was U.S. Attorney for the Southern District of Texas.

A few former Solicitors General—including Judges Charles Fahy, George Thomas Washington (in an acting capacity), and Robert Bork—went on to serve on the D.C. Circuit.

At the federal level, many D.C. Circuit judges headed up other offices or agencies before taking the bench. Judge Bazelon was Administrator of the DOJ’s Office of Alien Property. Judge Edward Allen Tamm served as Deputy Director of the Federal Bureau of Investigation. Judge Spottswood William Robinson III was a member of the U.S. Commission on Civil Rights. Judge Harry Edwards was Chairman of the Board of Directors of Amtrak, which the Supreme Court recently told us is “a governmental entity for purposes of the Constitution’s separation of powers provisions,” at least insofar as it issues certain metrics and standards in collaboration with the Federal Railroad Administration.

In addition to his time as Solicitor General, Judge Bork famously became Acting Attorney General for a few months after President Richard Nixon’s Saturday Night Massacre. Prior to his time as Assistant Attorney General, Justice Scalia was Chairman of the Administrative Conference of the United States. Judge Laurence Silberman also had an illustrious career before becoming a judge, spending time as Deputy Attorney General, Acting Attorney General, and Ambassador to Yugoslavia. And after serving as a U.S. Senator but before becoming a judge, James Buckley was President of Radio Free Europe/Radio Liberty (a government-funded entity).

Judges Douglas Ginsburg and Neomi Rao each served as the Administrator of the White House Office of Information and Regulatory Affairs—an influential office in the Office of Management and Budget whose work is familiar to many JREG readers—before becoming circuit judges. Justice Clarence Thomas was Chairman of the Equal Employment Opportunity Commission. Judge Tatel led the Office of Civil Rights at what was the U.S. Department of Health, Education and Welfare. Justice Brett Kavanaugh was White House Staff Secretary. Judge Katsas was Deputy White House Counsel. And the newest member of the D.C. Circuit, Judge Ketanji Brown Jackson, was a Vice Chair and Commissioner on the U.S. Sentencing Commission.

This write-up does not include general counsels or solicitors of agencies or offices, such as Judges E. Barrett Prettyman (Bureau of Internal Revenue), Fahy (National Labor Relations Board), Harold Leventhal (Office of Price Administration), and Silberman (U.S. Department of Labor) were. Nor does it include undersecretaries or assistant secretaries, like Judge Silberman (Undersecretary of Labor), Judge Buckley (Undersecretary of State), and Justice Thomas (Assistant Secretary of Education for Civil Rights). And there could be a whole separate post for those D.C. Circuit judges who were federal or state legislators or judges at one time.

A slew of D.C. Circuit judges were high-ranking state officials prior to their time on the bench, too. Judge Van Orsdel was Attorney General of Wyoming, and Judge Constantine Joseph Smyth was Attorney General of Nebraska. Judge Justin Miller was an attorney and executive officer for the California State Commission on Immigration and Housing. Judge Arnold led the City of Laramie, Wyoming, as its mayor. Judge Prettyman served as corporation counsel for Washington, D.C., as did Judge Judith Rogers (who held a few roles in the D.C. government).

Judge Wilbur Kingsbury Miller was a member of the Public Service Commission of the State of Kentucky, and Judge John Danaher was Secretary of State of Connecticut and a member of the Connecticut Board of Finance and Control (to say nothing of his tenure as a U.S. Senator from the state). Chief Justice Burger served on the Minnesota Governor’s Interracial Commission and was deeply involved in community affairs in St. Paul, Minnesota as a young lawyer.

Justice Thomas was Assistant Attorney General of Missouri early in his career. Judge Karen Henderson, like Judge Childs, served in the South Carolina state government, rising to the position of Deputy Attorney General. And Judge Janice Rogers Brown held numerous jobs in the California state government, including Deputy Attorney General; Deputy Secretary and General Counsel of the California Business, Transportation, and Housing Agency; and Legal Affairs Secretary to Governor Pete Wilson.

It is also worth mentioning that Judge Childs, unlike many D.C. Circuit nominees, has not spent a significant portion of her career in Washington, D.C. Instead, it appears her nomination was driven in part by the support of an influential member of Congress—in this instance, U.S. House Majority Whip Jim Clyburn (a Democrat from South Carolina), who was crucial to President Biden’s victory in the key South Carolina presidential primary in 2020.

This story is somewhat similar to the nominations of Judges David Sentelle and Justin Walker. Influential U.S. Senator Jesse Helms, a Republican from North Carolina, pushed the nomination of Judge Sentelle to the D.C. Circuit during the presidency of Ronald Reagan (as did Senator James Broyhill, a fellow Republican from North Carolina). Judge Sentelle was a North Carolina lawyer and judge who had graduated from the University of North Carolina’s law school.

Moreover, Judge Justin Walker was a judge on the U.S. District Court for the Western District of Kentucky before President Donald Trump tapped him for the D.C. Circuit. Although Judge Walker had spent some time in Washington, D.C. and had assisted the Trump administration in its efforts to get then-Judge Brett Kavanaugh confirmed to the Supreme Court, he had returned to Kentucky to teach law and serve as a district court judge before getting the D.C. Circuit nod. But Senate Majority Leader Mitch McConnell, a Republican from Kentucky, had long known Judge Walker and strongly supported his nomination to the D.C. Circuit.

It remains to be seen what will happen with Judge Childs’s nomination, but if she is ultimately confirmed, she would join a court that has welcomed many other former state and federal agency leaders to its ranks.

Eli Nachmany is a third-year law student at Harvard Law School, where he serves as Editor-in-Chief of the Harvard Journal of Law & Public Policy.

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