President Biden has now made his fiftieth round of judicial nominees. The two circuit nominees stand out.
First, in January 2024, Judge Jane Branstetter Stranch of the Sixth Circuit announced that she would take senior status on the confirmation of her successor. Now, Biden has nominated Karla M. Campbell to fill Stranch’s seat. Campbell spent her entire career at the Nashville firm formerly known as Branstetter, Stranch & Jennings, PLLC. If those names look familiar, it should. Jane Branstetter also started her career at that firm, where her father, Cecil D. Branstetter, was a founding partner. And Jane’s husband, James Stranch, also worked at that firm. And wouldn’t you know it, Campbell was Judge Stranch’s first law clerk on the Court of Appeals. It is very much a family affair! Did Judge Stranch have any say in picking her replacement? We know that the President nominated Judge Gibbons’s former law clerk to replace her. As a general rule, I would offer a rebuttable presumption: whenever a Judge is replaced by a former law clerk, there were some backroom dealings.
Second, in November 2023, Judge William Kayatta of the First Circuit announced his intention to take senior status on October 31, 2024 (just before the election!), or upon the confirmation of his successor, whichever happens sooner. Kayatta, who was confirmed in 2012, has only been in the seat for about twelve years–a fairly short tenure on the court of appeals. He was nominated at the not-so-young age of 58, so quickly hit the Rule of 80. Twelve years ago, Kayatta filled the Maine seat of Judge Kermit Lipez. Who did President Biden nominate to fill Kayatta’s seat? Julia M. Lipez on the Maine Superior Court. And if that name sounds familiar, it should. Julia Lipez is the daughter of Kermit Lipez.
I imagine that any father would be very proud that his daughter was nominated as a federal judge. But did the father have any role to play in the selection of his child for the court? I’ve seen what parents do to get their kids into elite kindergardens. I imagine a similar treatment would apply to the federal judiciary. Obviously, it was Judge Kayatta’s decision to take senior status. But I the longtime judge in the circuit probably had some sway, and could have suggested to Kayatta, and the powers that be in Maine, that his daughter would be a good fit. I would offer another similar rebuttable presumption: when a federal judge is appointed to a court on which a close relative sits, there were some backroom dealings. Another family affair.
It should be easy enough for the First Circuit to avoid putting the Lipezs on the same panel. And the senior-status Kermit would generally not sit on the en banc court, but if Kermit is on a panel for a case that goes en banc, he would be entitled to sit on the same court as his daughter. Then again, the First Circuit, which has zero active status Republican appointees, will probably never go en because it is about ideologically diverse as Senator Whitehouse’s private beach club in Newport.
What about the federal nepotism statute, you might ask? Doesn’t federal law prohibit appointing a father-and-daughter to the same federal court? The Office of Legal Counsel construed the statute to not apply to judicial nominations, to avoid any constitutional doubts of whether the statute was unconstitutional. Thus William A. Fletcher could serve on the Ninth Circuit along with his mother, Betty Fletcher. There have been other relatives on the same federal court. Learned Hand and his cousin Augustus Hand both served on the Second Circuit. Morris Arnold and Richard Arnold both served on the Eighth Circuit. Diana Motz serves on the Fourth Circuit, while her husband serves on the District of Maryland.
I am working on an article now to deal with judges who time their senior status to hand-pick their successors. It is unseemly, and I think it happens more often than we know.
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