Two vacancies pending in Virginia’s federal courts

A pair of U.S. District Court judges are taking senior status later this year, creating additional Virginia federal judgeships to be filled by President Joe Biden.

Judge James P. Jones of the Western District of Virginia and Judge John A. Gibney Jr. of the Eastern District of Virginia both have announced that they are taking senior status.

Jones, who was appointed by President Bill Clinton in 1996, is the longest-tenured judge on the Western District court. He announced his intention to take senior status on Feb. 4, effective Aug. 30.

Gibney has served on the Eastern District court since being appointed by President Barack Obama in 2010. Gibney announced his intention to take senior status on June 2 and will assume senior status on Nov. 1.

Western District

With Jones’ decision to take senior status going into effect on Aug. 30, the Western District will likely be down to three full-time judges in the short term. Jones will join U.S. District Judge Norman K. Moon as a senior judge on the court.

Carl Tobias, a professor at the University of Richmond law school who tracks the judicial nomination process, said the vacancy could provide an opening for the White House to make the Western District court more diverse.

“The Western District has never had a Black Article III judge, or any person of color, on the district bench. There are very few districts around the country that are left that have not had anyone of color on the bench. So that could be important for the White House,” Tobias said. He added that the White House has previously asked senators to “be especially sensitive to diversity issues” in making recommendations for open judgeships.

In April, the Virginia State Bar released a list of 15 applicants for Jones’ judgeship that the bar will evaluate. One of the listed applicants, Solicitor General Toby J. Heytens, has since been nominated by Biden for a seat on the 4th U.S. Circuit Court of Appeals.

The last Western District judgeship to open was in 2017, when Judge Glen E. Conrad took senior status. U.S. Senators Mark Warner and Tim Kaine recommended Magistrate Judge Robert S. Ballou and Scott County Circuit Judge John C. Kilgore for the bench, but neither nomination advanced. Then-U.S. Attorney Thomas Cullen was confirmed for the seat in September 2020.

Ballou is listed among applicants for Jones’ seat and was previously ranked by the bar as highly qualified. Kilgore is not on the list of applicants.

The remaining nominees for Jones’ seat include judges, public defenders and private practice attorneys.

Eastern District

When Gibney takes senior status in November, he will be the sixth judge in the Eastern District to either retire from active service or take senior status since 2017.

“It’s really a generational switch or change that you’re going to see with that many turning over in such a short period,” Tobias said. “It will be a different kind of court by having that many new judges participating. So it will be interesting to watch.”

Warner and Kaine are accepting applicants for the open position presently. Tobias said there will be a lot of interest in the position and “no shortage of strong people” that will apply.

Tobias added that typically, the person who replaces an outgoing judge is someone practicing or holding a judgeship in the division represented by that judge. Since Gibney serves in the Richmond Division, Tobias anticipates Gibney’s replacement will be based in Richmond or one of the surrounding counties.

Gibney’s seat will be the third judgeship filled in the Eastern District by Biden. On June 30, Biden formally announced his nominations of Patricia Tolliver Giles and Judge Michael S. Nachmanoff to fill the two vacancies present in the Eastern District. Both candidates were recommended by Warner and Kaine to replace Judge Liam O’Grady, who took senior status in 2020. The second vacancy opened when Judge Anthony Trenga took senior status on June 1.

Giles is currently an Assistant U.S. Attorney in the Eastern District, where she has spent her entire professional career. Nachmanoff has served as a U.S. magistrate judge in the Eastern District since 2015 after serving in the federal public defender’s office for 13 years.

Ensuring a diverse bench will likely also be at play in nominations for the Eastern District. According to the White House, Giles would become the second woman of color to ever serve on the federal bench in Virginia if confirmed.

“[Giles and Nachmanoff] in certain different ways satisfy the diversity criteria that the White House has expressed interest in. I would expect you might see fairly diverse candidates [for Gibney’s seat] in terms of experience and other considerations,” Tobias said.

Heytens, Giles and Nachmanoff have yet to be confirmed by the U.S. Senate.