President Donald Trump nominated Arkansas Supreme Court Justice James Cody Hiland to the U.S. Court of Appeals for the Eighth Circuit on Tuesday and withdrew his nomination of federal District Judge Lee Rudofsky for the same seat. Both nominations were for the position of Judge Bobby E. Shepherd, whom the White House listed as retiring.

The Nov. 10 switch gives Trump a new candidate for an Arkansas seat on the federal appeals court with weeks left before Democrats take control of the Senate in January. It also shows how two senators from the president’s own party can shape a judicial nomination before it reaches the full Senate. Arkansas Republicans John Boozman and Tom Cotton favored Hiland over Rudofsky, Reuters and Bloomberg Law reported.

Why the White House changed nominees

Rudofsky had already cleared one step in the process. His nomination reached the Senate on Sept. 14, and the Judiciary Committee lists a Sept. 30 hearing. The White House withdrew his nomination before he secured confirmation. The hearing was for Rudofsky; Hiland’s nomination starts a separate review for the same seat.

Trump appointed Rudofsky to the U.S. District Court for the Eastern District of Arkansas in 2019. Rudofsky said after the withdrawal that he saw no practical path to confirmation without support from his home-state senators. Boozman defended the Senate’s role in vetting nominees and said senators from a nominee’s state should have a meaningful say in the selection, according to Reuters. The withdrawal leaves Rudofsky in his district court job; it did not remove him from the federal bench.

The episode illustrates the difference between a formal veto and influence over a nomination. The Judiciary Committee solicits views from a judicial nominee’s home-state senators through a practice known as the blue slip. Chairman Chuck Grassley has described a policy under which a negative response does not necessarily bar consideration of an appeals court nominee, provided the White House consulted both senators. Rudofsky’s assessment shows why a nominee can still need both senators’ backing in practice.

Hiland’s record in Arkansas

Hiland brings experience as a state judge and federal prosecutor. He served as U.S. attorney for the Eastern District of Arkansas during Trump’s first term, after serving as a local prosecutor. Gov. Sarah Huckabee Sanders appointed him to a vacancy on the state Supreme Court in 2023, and he won election to a full term in March, the Arkansas Advocate reported. His court biography also lists work in private practice.

Hiland told an Arkansas law school audience in August that he had expected the appeals court nomination then, but was offered a federal district judgeship instead and turned it down, Reuters reported. His move to the federal bench would therefore be directly to the appellate court, if the Senate confirms him.

Hiland was previously chairman of the Republican Party of Arkansas. On the state court, he wrote an opinion striking down a law that changed which courts could hear constitutional challenges, the Arkansas Advocate reported. His current job and the position Trump has nominated him for are in different judicial systems: the Arkansas Supreme Court is the state’s highest court, while the Eighth Circuit reviews federal cases from several states.

One seat on a seven-state court

Shepherd’s successor would sit on a regional court that hears appeals from federal district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. It hears arguments in St. Louis and St. Paul. Though the vacancy is tied to an Arkansas judge, the person confirmed to fill it would hear cases from across the circuit.

Federal appeals judges generally sit in panels of three. They review how lower courts applied the law rather than holding a new trial. Published circuit precedent binds federal district courts within that circuit, so a judge confirmed now could help decide cases whose effects outlast the Senate majority that voted on the nomination. The nominee’s prior state court work provides a record for senators to examine, but does not establish how he would rule in any future federal appeal.

What the Senate must still do

Hiland needs Senate confirmation. The usual path runs through committee review and then to the Senate floor. The Senate’s history of judicial nominations notes that debate on lower-court nominees can be ended by a simple majority, a threshold in place since 2013. That means Republicans do not need 60 votes to move an appeals court nominee past that step, but the Senate still needs time to consider the nomination and enough votes to confirm it.

Republicans retain control of the chamber through the current Congress. If Hiland is neither confirmed nor rejected before the session ends, the Senate rules generally require the president to submit the nomination again for a later session to consider it. At that point, Democrats would control the Senate’s agenda. Tuesday’s announcement changed the candidate, while leaving the question of whether this Senate will fill the seat unresolved.