Maureen Ohlhausen – Nominee to the U.S. Court of Federal Claims

The Acting Chairwoman of the Federal Trade Commission (FTC),[1] Maureen Ohlhausen has worked in private FTC litigation, held a variety of posts at the FTC, and worked as a staff attorney and clerk in D.C.’s federal appeals court and the U.S. Court of Federal Claims.  She now is a nominee to that very court.


Ohlhausen graduated from the University of Virginia in 1984 with a B.A. in English, with distinction, and earned her J.D., with distinction, from the George Mason University School of Law in 1991.[2]  Upon graduating from law school, she clerked for the U.S. Court of Federal Claims, after which she clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit from 1994-1997.  Following her clerkships, she began a 12-year stint at the FTC, where she started as an attorney in the Office of the General Counsel and ultimately became Director of the Office of Policy Planning.[3]  In 2009, she was policy counsel at the Business Software Alliance, a private firm specializing in the software industry private firms centering on software and technology, and from late 2009-2012, she practiced law at FTC practice group, Wilkinson Barker Knauer, LLP, where she was a partner.[4]  Ohlhausen has served as an FTC commissioner since 2012, and President Trump designated her as the FTC’s acting chairwoman in 2017.[5]

History of the seat

President Trump has nominated Ohlhausen to sit as a judge on the U.S. Court of Federal Claims, a court of special jurisdiction that hears monetary claims against the U.S. government.[6]  Judges on the court serve for 15-year terms and are eligible for reappointment.[7]  The seat Ohlhausen was nominated for opened up on January 8, 2016, with Judge Lawrence Block’s move to senior status.  While five Obama nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[8]  No nominee was ever put forward for the Block seat.[9]

Legal Career & Views

Ohlhausen is a Republican and an outspoken critic of government regulation.[10]  A believer in free markets, Ohlhausen has frequently used the term “‘regulatory humility’ to describe her philosophy on federal policymaking.”[11]  She has also advocated deregulation of and limited governmental intervention in the marketplace, a philosophy she put into practice in nominating fellow prominent deregulation advocate Thomas Pahl to the FTC’s Bureau of Consumer Protection last year.[12]

For example, she opposes broad occupational licensure requirements (i.e., the governmental requirement of a license to pursue a particular profession or vocation).[13]  Indeed, as her “first major initiative as Acting Chairman, [Ohlhausen] formed the Economic Liberty Task Force to help” prevent or roll back “unnecessary or overbroad occupational licensing and to partner with state leaders and other stakeholders.”[14]  See also infra, “Speeches and Writings” for an expanded discussion of Ohlhausen’s views on this issue.

More controversially, Ohlhausen is an outspoken opponent of net neutrality laws, and instead believes that its ends can be achieved via antitrust enforcement.[15]  Under the Federal Communications Commission’s (FCC) 2015 net neutrality regulations, Internet service providers’ (ISPs) were prohibited from blocking or throttling internet traffic, and from charging websites and online services for faster, more reliable services.[16]  In late 2017, shortly before the FCC’s repeal of net neutrality and during Ohlhausen’s tenure as FTC chairwoman, the FCC and FTC entered into a memorandum of understanding whereby ISPs may promise consumers that they will follow net neutrality guidelines.  If they break this promise, the FTC has jurisdiction to punish them for deceiving consumers.  The FTC’s jurisdiction thus depends on ISPs voluntarily making, and then breaking, net neutrality promises to consumers.[17]  Opining on the memorandum, Ohlhausen reiterated the FTC’s “committ[ment] to ensuring that Internet service providers live up to the promises they make to consumers.”[18]

Speeches and Writings

By virtue of her position as acting chairwoman, Ohlhausen has publicly taken a number of positions regarding market entry, market deregulation, and the effects of regulation in terms of fairness to consumers.  The following samples some of her more recent speeches and writings.

Ohlhausen authored a 2016 journal article, Administrative Litigation at the FTC: Effective Tool for Developing the Law or Rubber Stamp?[19]  The article is the most comprehensive empirical study of the FTC’s “Part 3 process,” an administrative process that empowers the FTC to challenge alleged unfair or deceptive trade practices through administrative litigation.  If the FTC invokes this process and the respondent challenges the charges against it, the case is tried before an Administrative Law Judge, and then the FTC reviews the judge’s decision de novo.  In the past ten years, the FTC has never rejected an action that it previously authorized.  By analyzing the disposition of cases that go through the Part 3 process and the factors at play in the FTC’s charging decisions and subsequent affirmance, the article challenges Part 3 critics’ contention that the FTC’s review of its own charging decision is essentially a rubber stamp, concluding that the Part 3 process plays a crucial role in developing the law.

In May of 2017, Ohlhausen delivered a speech at a seminar covering the first 100 days of the Trump administration.  She explained three of the Trump administration’s priorities pertaining to the FTC: unleash job creation, correct federal government overreach in a number of areas, and reform federal regulatory processes and reduce burdensome regulation.[20]  She praised these efforts as aligning with the FTC’s efforts “to expand and strengthen our competition advocacy work,” “ prevent meaningful consumer harm, not [] redesign the economy as we see fit,” and “eliminate unnecessary and burdensome regulatory requirements that hurt our economy.”[21]

In July of 2017, Ohlhausen was the keynote speaker at an event hosted by The Heritage Foundation, a conservative think tank, where the topic was the promotion of regulatory reform for occupational licensing requirements.  During the speech, Ohlhausen argued that unnecessary occupational licensure requirements are “barriers to entry” that “harm[] workers, consumers, and the economy as a whole.”[22]  Unnecessary licensing requirements, she explained, are those where there are not information asymmetries between professionals and consumers, in non-technical fields, and those where consumers can “easily observe service quality.”[23]  For example, “in certain health care occupations, consumers could face serious risks if treated by unqualified individuals, yet find it difficult (or impossible) to assess quality of care at the time of delivery. In such circumstances, a license requirement might help improve public health and safety.”[24]  In contrast, licensing requirements in fields where “consumer risks are low or entirely speculative” are inappropriate.  She used the example of cosmetology: “A bad haircut or makeup application is markedly obvious to a consumer and to all of her friends. Bad haircuts or makeup applications quickly have consequences for the cosmetologist. The consumer risk is low and fleeting, but the excessive licensure requirement is not – it creates a large burden on those seeking to enter the workforce and limits competition.”[25]  More broadly, she explained that “licensure disproportionally affects those seeking to move up the lower and middle rungs of the economic ladder,” as it requires people to expend time and money on meeting often state-specific licensing requirements.[26]

In a December 2017 speech at Georgetown University, Ohlhausen explained her view that large, growing companies, such as Amazon or Google, do not unduly threaten competition and are not on track to becoming monopolies prohibited by antitrust law.  Companies’ occupying a big portion of the market at one time, she explained, does not erode free and open markets, and instead the touchstone of antitrust enforcement is the actual likely harm to consumers in an open market system.[27]  Monopolies, she explained, are acceptable as long as they gain consumers by merit, rather than anticompetitive practices short-circuiting their competition.  Even practices such as a company’s artificially lowering its prices to eliminate competition, then raising prices once it did so, are permissible because so long as the possibility of marketplace “entry remains, possible predation [of competitors] makes no economic sense.”[28]  In her concluding remarks, she described herself as neither “a champion of today’s leading Internet firms nor their foe,” and her and the FTC’s policy positions as ones “that [leading internet firms] sometimes love and sometimes hate.”[29]

Of her January 2018 nomination to the U.S. Court of Federal Claims, Ohlhausen stated: “I am honored that the President has expressed his intent to nominate me to be a judge on the U.S. Court of Federal Claims, one of the oldest federal courts in our nation. In the meantime, I will continue to serve at the Federal Trade Commission until a time when I may be so fortunate as to be confirmed to the Court of Federal Claims by the United States Senate.”[30]

FTC Administrative Decisions

Commissioner Ohlhausen has participated in over 1,000 administrative FTC decisions, including merits determinations of alleged FTC violations and policy guidance issued by the commission.[31]  The following highlights positions that Ohlhausen has taken within this administrative process evincing her focus on and prioritization of free markets via deregulation:

In 2012, Ohlhausen dissented from the FTC’s decision to withdraw a 2003 policy statement that it would not pursue disgorgement (pursuit of monetary equitable relief) except in the clearest of cases of FTC violations.[32]  She criticized the commission’s proffered basis for rescinding the policy statement, that it “has chilled the pursuit of monetary remedies in the

years since [its] issuance,” as not based in empirical evidence to this effect.  She further criticized the commission’s stated view that, instead of the policy statement, the FTC “will rely instead upon existing law, which provides sufficient guidance on the use of monetary equitable remedies,” as a toothless statement that “ could be used to justify a decision to refrain from issuing any guidance whatsoever about how this agency will interpret and exercise its statutory authority on any issue.”[33]

Since that dissent, Ohlhausen has been vocal about her opposition to the decision to withdraw this policy statement in subsequent decisions, including those in which she concurred in the decision to pursue disgorgement.  In a 2015 decision, FTC v. Cephalon, Inc., the FTC found that Cephalon had engaged in anti-competitive conduct by paying four firms to refrain from selling generic versions of Cephalon’s patented drug for an extended period of time, thereby inhibiting competition and denying patients access to lower-cost versions of the drug.[34]  Ohlhausen agreed that disgorgement was appropriate, but because Cephalon’s conduct met the test laid out in the since-rescinded policy statement.  She noted in her concurrence, “the incentive to pursue monetary remedies more frequently, particularly in other cases without a clear violation, may cause the Commission to neglect its special mission to develop the antitrust laws through Part III litigation and other unique tools. That concern is only heightened now that we are counting disgorgement in the billions of dollars.”  She reiterated these concerns in her 2017 concurrence to In the Matter of Mallinckrodt ARD Inc., where the FTC found that a pharmaceutical company engaged in anticompetitive conduct by attempting to create a monopoly with respect to a particular drug.[35]  Ohlhausen expressed “concerns about [the] aspect of the remedy” for this conduct that required the company to pay over $100 million in disgorgement.  The case, Ohlhausen contended, should have been handled through the FTC’s administrative process rather than filed in federal court (a predicate for pursuing and obtaining the remedy of disgorgement).[36]

In 2013, the FTC filed a complaint against and conducted an investigation of Google, In the Matter of Google Inc., for its alleged anticompetitive practices relating to, inter alia, seeking to enjoin putative licensees of Google’s “standard essential patents” (patents required to comply with a technical standard, thereby encouraging adoption of a common platform among rival producers, which in turn fosters competition).  This, the FTC charged, violated Google’s duty to offer such patents on “fair, reasonable, and non-discriminatory terms.”[37]  The FTC and Google ultimately reached an agreement whereby Google agreed to not seek such injunctions, as well as remove restrictions on the use of its online search advertising platform that may have made it more difficult for advertisers to coordinate online advertising campaigns across multiple platforms.[38]  Ohlhausen criticized the portion of the decision related to these restrictions as not premised on a showing of actual harm to competitors in the form of increased costs or Google’s monopolization of the market, thus potentially discouraging innovation by needlessly punishing Google.[39]  “If our cases – particularly our standalone [unfair and anticompetitive practices] cases – are not anchored to competitive and ultimately consumer harm, then they are completely adrift. I am hopeful that the Commission will maintain its focus on competitive and consumer harm as it moves beyond this matter.”

Overall Assessment

Ohlhausen has a long, distinguished career in FTC-related private practice and the FTC itself.  While her economic knowledge and experience are unimpeachable, it is not clear that her expertise relates to the subject matter of lawsuits within the U.S. Court of Federal Claims’ jurisdiction — claims for money damages arising from the United States Constitution, federal statutes, executive regulations, or an express or implied in fact contract with the United States Government.[40]  However, the economy is not an esoteric subject and her knowledge base is not inapposite to the claims the court hears, she has served in an adjuratory capacity as an FTC commissioner, and she has substantial federal clerking experience, including on the Court of Federal Claims.  As such, Ohlhausen will likely be confirmed by the Senate.

[6] 28 U.S.C. §§171-72.

[8] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015,

[9] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016,





[31] Westlaw search conducted by author February 25, 2018.

[33] FTC v. Cephalon, Inc., Separate Statement of Commissioners Maureen K. Ohlhausen & Joshua D. Wright, at 3 (May 28, 2015), https://www

[35] In the Matter of Mallinckrodt ARD Inc., Concurring Statement of Maureen K. Ohlhausen, 2017 WL 395523 (Jan. 18, 2017).

[36] In the Matter of Mallinckrodt ARD Inc., Concurring Statement of Maureen K. Ohlhausen, 2017 WL 395523 (Jan. 18, 2017).

[40]  28 U.S.C. § 1491.

Unconfirmed: The Neverending Vacancy

When Judge Malcolm Howard took senior status on December 31, 2005, the 66-year-old Reagan appointee likely expected a successor to be appointed in a matter of months.  Today, over twelve years later, Howard’s seat on the U.S. District Court for the Eastern District of North Carolina is still vacant, the longest district court vacancy in U.S. history.[1]  The story of this vacancy spans three Administrations and three failed nominations, as well as involving the ugly specter of racism and politics in the “new south.”

Let us start off with two facts: first, the Eastern District of North Carolina, which covers 44 counties from Raleigh into the North Carolina coastline, has one of the highest percentage of black residents in the nation, with over 25% of the population being African American;[2] second, the Eastern District of North Carolina has never had a single African American judge.[3]  North Carolina’s relative paucity of African American federal judges relates partly back to Sen. Jesse Helms, the notoriously conservative senior senator from North Carolina.  Over his thirty year tenure, Helms oversaw the nominations of 15 district court judges and three appellate judges from North Carolina, only two of whom were black.  As such, by the time that Howard moved to senior status, many felt that the Eastern District of North Carolina was overdue for an African American judge.  However, President George W. Bush’s nominated Thomas Alvin Farr, a 52-year-old white private practice attorney from Raleigh.

Farr’s nomination came before a Democratic-controlled Senate on January 9, 2007, alongside the nominations of Thomas Schroeder, William Osteen Jr., and Martin Reidinger to fill three other North Carolina vacancies.[4]  The Senate confirmed Osteen and Reidinger on September 10, 2007, and confirmed Schroeder on December 14, 2007.  However, despite having the strong support of North Carolina senators Elizabeth Dole and Richard Burr, Farr received neither a hearing nor a vote.  In the 2008 elections, two simultaneous actions killed Farr’s hope of confirmation: first, Illinois Senator Barack Obama, a Democrat, was elected to be the new President of the United States; second, Dole was defeated for re-election by Democrat Kay Hagan.

Entering office with a new Democratic president, Hagan recommended three candidates to President Obama for the Howard seat: Superior Court Judges Allen Cobb and Quentin Sumner, and Assistant U.S. Attorney Jennifer May-Parker.[5]  Notably, two of the three candidates, Sumner and May-Parker, were African American.  On July 21, Burr wrote to Obama endorsing the candidacies of Cobb and May-Parker for the seat.[6]

However, despite the joint recommendations, the White House failed to put a nomination forward.  As his first term came to an end, Obama managed to place two North Carolina judges on the U.S. Court of Appeals for the Fourth Circuit, as well as two more on the District Courts.  And yet, the Administration failed to nominate anyone to the Eastern District.

Some speculated that the Administration had failed to nominate a candidate because it was looking for an African American nominee.[7]  Rep. G.K. Butterfield urged the White House to nominate an African American to the seat, noting that 26.5% of the residents under the Eastern District were black.[8]  For her part, Hagan refused to recommend any additional candidates to the White House.[9]

On June 20, 2013, four and a half years after he came to office, Obama finally submitted a nomination to the Howard seat, which had, by now, been vacant for seven and a half years.  The nominee was Jennifer May-Parker, the African American federal prosecutor recommended by Hagan and Burr in July 2009.[10]  However, despite his support for May-Parker in 2009, Burr refused to return a blue slip on the nomination.[11]  Burr declined to offer a reason for his blockade of May-Parker, but his intransigence prevented a hearing or a vote on May-Parker.  Furthermore, in the 2014 elections, Hagan lost re-election to Republican Thom Tillis.  Bowing to the political realities, the Obama Administration chose not to renominate Jennifer May-Parker in the Republican-controlled 114th Congress.

After withdrawing May-Parker’s nomination in early 2015, Obama did not submit another nomination to the Howard seat until April 2016, when he nominated Patricia Timmons-Goodson, a member of the U.S. Commission on Civil Rights and a former North Carolina Supreme Court Justice.[12]  The nomination drew a sharp response from Burr who argued that Obama had broken an agreement that would have filled the vacancy, calling the nomination an “election season stunt.”[13]  Despite criticism within his home-state,[14] Burr stuck to his stance, blocking Timmons-Goodson for the rest of the Obama administration.  Notably, in a private meeting, Burr took credit for the “longest vacancy,” touting it as an example of his frustration of the Obama Administration’s goals.[15]  Overall, Burr weathered the criticism and won re-election.  Furthermore, the election of President Donald Trump in 2016 put an end to the Timmons-Goodson nomination.

With a new Republican president and two Republican senators, the stars seemed aligned for the swift confirmation of a nominee to the Howard seat.  Sure enough, on July 13, 2017, Trump renominated Farr, over ten years after his initial nomination by Bush.  However, since then, Farr’s second nomination has bogged down over criticism of his work defending voting restrictions in North Carolina, and his alleged role in illegal voter suppression while working on the Helms campaign in 1990.[16]  As a result, Farr’s nomination has twice passed through the Judiciary Committee on narrow party-line votes, and has still not been called up by Senate Majority Leader Mitch McConnell.

Furthermore, Farr’s confirmation on the floor isn’t assured.  With Sen. John McCain frequently absent for medical reasons, McConnell has only a narrow 50-49 margin on controversial votes.  With Democrats united against Farr, McConnell cannot afford any defections if he intends to confirm Farr.  Thus, with the NAACP and other groups lobbying moderate Republicans heavily,[17] the outcome is still uncertain.  And as such, the neverending vacancy goes on, still unfilled.

[1] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016,  

[2] See Ari Berman, He Defended North Carolina’s Voter Suppression Law. Now He’s Set to Become a Federal Judge There, Mother Jones, Oct. 18, 2017,

[3] See id.

[4] Archive of Federal Judicial Vacancies, (last visited March 11, 2018).

[5] WRAL, Hagan Looks to Split U.S. Attorney Job, Capitol Broadcasting Company, July 10, 2009,

[6] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at  

[7] Patrick Gannon, Race, Politics Keep Judge’s Seat Empty for 7 Years, Star News, Jan. 12, 2013,

[8] See id.

[9] See id.

[10] Press Release, Office of President Barack Obama, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at

[11] Jennifer Bendery and Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huff. Post, Jan. 8, 2014,  

[12] Press Release, Office of President Barack Obama, President Obama Nominates Eight to Serve on the United States District Courts (April 26, 2016) (on file at

[13] Press Release, Office of Sen. Richard Burr, Sen. Burr’s Statement on the White House’s Nomination for the Eastern District Judge (April 29, 2016) (on file at  

[14] CBC Editorial, Burr Needs to End Political Games, Back Timmons-Goodson Judicial Appointment,, Oct. 5, 2016,  

[15] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016,  

[16] See Alexander Nazaryan, President Trump is Rewarding a Lawyer Who Has Fought to Block the Black Vote with a Plum Federal Judgeship, Newsweek, Sept. 21, 2017,

[17] See Anne Blythe, Trump’s Pick on Bench is ‘Tantamount to Hitler Wreacking Havoc’ Among Jews, NAACP Leader Says, News & Observer, Mar. 5, 2018,

Dominic Lanza – Nominee for the U.S. District Court for the District of Arizona

Generally, when a well-respected U.S. Attorney makes calls on behalf of your nomination, it helps you stand apart from the crowd.  However, such calls may have cost Dominic Lanza a nod for the Ninth Circuit.  As such, a nomination to the U.S. District Court for the District of Arizona serves as Lanza’s consolation prize.


Dominic William Lanza was born in Seattle in 1976.  Lanza attended Dartmouth University, graduating summa cum laude in 1998.[1]  While in college, Lanza was a student athlete, playing football.  After graduation, Lanza spent a year in New York City working as a Sales and Trading Associate at the investment firm, D.E. Shaw & Associates.[2]

In 1999, Lanza matriculated at Harvard Law School, graduating cum laude in 2002.[3]  He then clerked for Judge Pamela Rymer on the U.S. Court of Appeals for the Ninth Circuit.  Following his clerkship, Lanza joined the Los Angeles Office of Gibson Dunn as an associate.[4]

In 2008, Lanza joined the U.S. Attorney’s Office for the District of Arizona as an Assistant U.S. Attorney.[5]  In 2012, Lanza was promoted to be Chief of the Financial Crimes and Public Integrity Section, and in 2015, became the Chief Assistant U.S. Attorney.[6]  Lanza serves in that capacity today.

History of the Seat

Lanza has been nominated to the U.S. District Court for the District of Arizona, to a seat vacated on September 1, 2016, by Judge Susan Ritchie Bolton’s move to senior status.  However, this was not the seat that Lanza was originally recommended for.  In April 2017, Lanza was recommended by Arizona senators John McCain and Jeff Flake, both Republicans, to fill an Arizona vacancy on the U.S. Court of Appeals for the Ninth Circuit, a seat vacated on October 11, 2016, by Judge Barry Silverman.[7]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[8]

Furthermore, Lanza’s mentor, former U.S. Attorney Paul Charlton, proved to be a liability as well.[9]  The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[10]  Allegedly, one source close to the vetting process noted: “That Lanza dude is toast.”[11]  As such, no action was taken on Lanza’s nomination for several months after his name was submitted to the White House.  Finally, the Administration nominated Lanza to the District Court on January 24, 2018.

Political Activity & Memberships

Lanza has not been particularly active in the political sphere.  He has two donations on record: $250 respectively to former Sen. Jon Kyl (R-AZ) and Sen. Tom Cotton (R-AR).[12]

Lanza has been a member of the Arizona Republican Lawyers’ Association from 2011 to the present.[13]  He has also been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 2015.[14]

Legal Experience

Lanza has spent the first six years of his legal career in private practice, working at Gibson Dunn in their constitutional and appellate law practice.  He then spent the next ten years of his career as a federal prosecutor in Arizona.

Private Practice

From 2002 to 2008, Lanza worked as an associate in the Los Angeles office of Gibson Dunn.[15]  In the constitutional and appellate law practice at the firm, Lanza handled a number of product liability lawsuits, including seeking constitutional defenses to punitive damage awards.[16]  While at the firm, Lanza also served as associate trial counsel in six cases.[17]

At the firm, Lanza participated in a number of appeals seeking to reduce or eliminate large awards of punitive damages awarded against corporations.  In one case, Lanza was part of the legal team that successfully reversed a $28 billion punitive damage award against the tobacco company Phillip Morris.[18]  In another case, Lanza and his fellow attorneys successfully reversed a $10 million punitive damage award against Ford automobiles for concealing vehicle histories.[19]

U.S. Attorney’s Office

From 2008, Lanza has served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Arizona, and has served as the Chief Assistant U.S. Attorney since 2015.  In this role, Lanza handles many of the administrative matters in the U.S. Attorney’s Office and serves as an advisor to the U.S. Attorney.[20]  As an AUSA, Lanza has tried seven cases as lead or co-counsel.[21]

Among the cases Lanza has worked on, the most famous is likely that of Jared Lee Loughner, the Tucson mass shooter who murdered six people, including Chief U.S. District Judge John Roll, and injured 13 others, including then Congresswoman Gabrielle Giffords, in 2011.[22]  In the case, Lanza managed to secure an emergency order from the court keeping the government’s investigative materials secret in response to media inquiries.[23]

In addition to his trial work, Lanza has also argued 11 cases before the Ninth Circuit and has handled several appeals including government appeals and defending convictions.[24]  In one unusual case, Lanza was charged with defending the shackling of defendants in Arizona federal court, notwithstanding a Ninth Circuit decision indicating that such shackling was unconstitutional.[25]  While the Ninth Circuit had held in United States v. Sanchez-Gomez that defendants cannot be placed in shackles without individualized determinations from the district court,[26] the court placed the mandate on hold pending a writ of certiorari.[27]  With the mandate placed on hold, many Arizona federal judges (and the government) argued that the Ninth Circuit decision was not binding.[28]  However, the Ninth Circuit granted a mandamus petition requiring the unshackling of defendants, noting that the lack of issuance of the mandate does not prevent the Ninth Circuit decision from being binding.[29]


Lanza has not been a prolific writer, having only three major articles to his name: two that he authored as a student, and one that he wrote as a lawyer.  Nevertheless, all three pieces yield insights into Lanza’s legal philosophy and his future leanings as a judge.

Global Warming

In 2018, Dominic Lanza co-authored an article with Gibson Dunn partner Theodore Boutrous criticizing the use “public nuisance” suits seeking to combat global warming.[30]  The article, written around the time that Boutrous was defending automakers sued by California for contributing to global warming,[31] argues that tort litigation seeking to combat global warming “represent a naked and wholly improper attempt to override [legislative] policy judgments.”[32]  The article also argues that federal common law does not allow for nuisance suits based on global warming.[33]  It instead suggests that the role of federal courts should be to review regulatory efforts to combat global warming under the framework of Massachusetts v. EPA, not to allow tort claims based on the effects of climate change.[34]

Race-Based Redistricting

As a law student, Lanza authored an article discussing recent Supreme Court jurisprudence on race-based redistricting.[35]  The article discusses the Supreme Court decisions in Shaw v. Reno and Hunt v. Cromartie, where the Supreme Court upheld North Carolina’s majority-minority 12th District.[36]  Lanza argues that Justice Breyer’s majority opinion in Cromartie is inconsistent with the prior decisions in Shaw I and Shaw II.[37]  Specifically, Lanza argues that Cromartie fails to place meaningful limitations on the legislature’s use of race in redistricting, noting that the Court has “radically reduced the scrutiny applied to legislative districting decisions.”[38]  Instead, Lanza notes:

“If a majority of the Court wishes to overturn Shaw II, it should do so explicitly.”[39]

Race-Based Challenges to Athletic Eligibility Requirements

In this article, Lanza analyzes recent Third Circuit decision in Cureton v. NCAA, holding that minimum standardized test score requirements for student athletes did not violate Title VI of the Civil Rights Act of 1964.[40]  Cureton involved a challenge to the NCAA requirements, which the plaintiffs argue disproportionately affected racial minorities.[41]  Lanza notes that, in dismissing the plaintiffs’ challenge, the Third Circuit did not address the merits of the claim, instead ruling that Title VI did not apply to the NCAA.[42]  Nevertheless, Lanza argues that the NCAA requirements should pass muster even if one accepts the disparate impact theory the plaintiffs have advanced, noting:

“Thus, because Proposition 16’s test score requirement is essential in advancing the laudable goal of safeguarding academic integrity, and because no equivalent, less discriminatory alternatives exist, the preferences of standardized-test critics must necessarily be subordinated.”[43]

Overall Assessment

Lanza’s background as a federal prosecutor, his membership in the Federalist Society and Republican groups, and his legal writings all suggest a conservative political orientation.  However, they do not necessarily reflect a discernable judicial philosophy.  In his articles on global warming and on Title VI, Lanza suggests that judges should steer well clear of making decisions with policy ramifications, an implicit endorsement of judicial restraint.  However, in his article on race-based redistricting, Lanza criticizes the Supreme Court for giving legislatures “hyper-deference,” suggesting an endorsement of an active role for judges, even in “political” spheres such as redistricting.  As such, Lanza’s judicial philosophy is difficult to discern.

Regardless, Lanza’s breadth of legal experience in both criminal and civil law is clear.  Furthermore, while the Trump Administration may have viewed it as a negative, Lanza’s association with Paul Charlton, who is well-respected in Arizona legal circles, will likely be a net positive in the confirmation process.

Overall, there is nothing politically disqualifying in Lanza’s background.  He will likely be confirmed in due course and will add a conservative voice to the Arizona trial bench.

[1] Sen. Comm. on the Judiciary, 115th Cong., Dominic W. Lanza: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. at 1.

[4] See id.

[5] See id. at 2.

[6] See id.

[7] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[8] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[9] See Jeremy Duda, Being Judged by the Company You Keep, Yellow Sheet Report, May 12, 2017.

[10] See id.

[11] See id.

[13] See Lanza, supra n. 1 at 5.

[14] See id.

[15] See id. at 2.

[16] See id. at 12.

[17] See id. at 13-14.

[18] See Bullock v. Phillip Morris USA, Inc., 159 Cal. App. 4th 655 (2008).

[19] But see Johnson et al. v. Ford Motor Company, 113 P.3d 82 (Cal. 2005) (reversing and remanding California Court of Appeals ruling eliminating punitive damages).

[20] See Lanza, supra n. 1 at 12-13.

[21] See id. at 14.

[22] See United States v. Loughner, CR 11-187-TUC-LAB (D. Ariz.).

[23] See id. 

[24] Compare United States v. Rodman, 776 F.3d 638 (9th Cir. 2015) (affirming defendant’s conviction) to United States v. Aguilar-Reyes, 653 F.3d 1053 (9th Cir. 2011) (reversing sentence on government appeal).

[25] In re Zermeno Gomez, 868 F.3d 1048 (9th Cir. 2017).

[26] See 859 F.3d 649, 661 (9th Cir. 2017) (en banc).

[27] See Zermeno Gomez, supra n. 25 at 1050.

[28] See id. at 1051.

[29] See id. at 1053.

[30] Theodore J. Boutrous Jr. and Dominic Lanza, Global Warming Tort Litigation: The Real “Public Nuisance”, 35 Ecology L. Currents 80 (2008).

[31] See Abigail Goldman, He’s a Hired Gun of the Highest Caliber, Los Angeles Times, June 24, 2007,  

[32] See Boutrous, supra n. 29 at 86.

[33] See id. at 87.

[34] See id. at 88.

[35] Dominic Lanza, Leading Cases, Voting Rights – Race-Based Redistricting, 115 Harv. L. Rev. 386 (2001).

[36] See id. (citing 526 U.S. 541 (1999)).

[37] Id. at 393.

[38] See id. at 396.

[39] Id.

[40] Dominic W. Lanza, Recent Cases, Title VI – Third Circuit Upholds Viability of Standardized Test Scores as a Component of Freshman Athletic Eligibility Requirements, 114 Harv. L. Rev. 947 (2001).

[41] See Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999), rev’ing 37 F. Supp. 2d 687 (E.D. Pa. 1999).

[42] See Lanza, supra n. 32 at 951.

[43] See id. at 953.

John Nalbandian – Nominee for the U.S. Court of Appeals for the Sixth Circuit

So far, the Trump Administration has moved relatively quickly to fill vacancies on the Court of Appeals.  However, the nomination of John Nalbandian to the Sixth Circuit was seemingly finalized in supernatural speed, coming just two days after Judge John Rogers announced his intent to move to senior status.  This speed is a sign that Nalbandian was being vetted before the vacancy was announced, potentially for the Ohio seat vacated by Judge Alice Batchelder.


John Baylor Nalbandian was born in 1969 in Fort Ord, California.[1]  After getting a B.S. magna cum laude from the University of Pennsylvania and a J.D. from the University of Virginia Law School, Nalbandian clerked for Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.[2]  After his clerkship, Nalbandian joined the Washington D.C. office of Jones Day.

In 2000, Nalbandian moved from Jones Day to the Cincinnati office of Taft Stettinius & Hollister LLP.[3]  He became a partner there in 2004 and continues to serve in that capacity today.

In 2010, upon the recommendation of Senate Republican Leader Mitch McConnell (R-KY), Nalbandian was appointed by President Obama to serve on the board of directors of the State Justice Institute (SJI), a nonprofit organization focused on improving resources for judges and court staff.[4]  Nalbandian continues to serve as a director.

History of the Seat

Nalbandian has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in January 2018 with Judge John Rogers’ announcement that he would move to senior status upon confirmation of his successor.  However, Nalbandian had been under consideration for a federal judgeship as far back as November 2016, when he first began talking to McConnell about a judicial appointment.[5]  While he interviewed with McConnell in January 2017, he wasn’t contacted by the White House until September (approximately when Judge Alice Batchelder announced her move to senior status in an Ohio seat).  Nalbandian interviewed with the White House and the Department of Justice in October 2017, and was nominated on January 24, 2018.

Political Activity

Nalbandian is a Republican and has a long history with the Kentucky Republican party, including serving as the Party’s General Counsel between 2010 and 2016, and serving as a Delegate to the 2016 Republican National Convention.[6]  Nalbandian also advised and volunteered on the campaigns of several Kentucky Republicans including those of McConnell, Sen. Rand Paul, Rep. Andy Barr, Rep. James Comer, and former State Senate President David Williams.[7]

Nalbandian has also been an active donor to Republicans, having given almost $15000 over the last thirteen years.[8]  Barr has been a particular beneficiary of the donations, having received $3250 of the donations.[9]  Nalbandian has also donated to other Republicans including Senators Todd Young and Tom Cotton.[10]

Nalbandian has been active in the Federalist Society for the past twenty seven years, including serving as President of the Cincinnati Lawyers Chapter from 2000 to 2008, and serving as an Advisory Board Member from 2010 to the present.[11]

Legal Experience

Nalbandian has practiced law for around twenty five years, cutting his teeth by representing a habeas petitioner as a law student at the University of Virginia.[12]  In his time at Jones Day and at Taft Stettinius, Nalbandian has specialized in appellate practice, representing businesses on commercial, environmental, labor, and other matters.[13]  For example, Nalbandian helped defend the brand name manufacturers of Percocet in a series of class-action lawsuits borne out of injuries caused by the drug.[14]  Throughout his career, Nalbandian has handled a vast array of cases.  We summarize some of them below:

Criminal Defense

Nalbandian has developed a thriving criminal defense practice, working on many white collar criminal defense matters.[19]  Notably, he has also represented capital and habeas defendants pro bono.  For example, Nalbandian represented an Ohio death penalty petitioner in seeking a new sentencing hearing.[20]  In challenging the death penalty sentence, Nalbandian successfully argued that the petitioner did not receive the effective assistance of his counsel at the penalty phase of his trial, leading to the Sixth Circuit reversing the death penalty on a 2-1 vote.[21]

Environmental Pollution & Toxic Torts

Nalbandian has represented many businesses in suits over environmental pollution or toxic torts, typically seeking to shield the business from penalties or civil damages.  In one suit, Nalbandian represented a steel company seeking to reverse damages assigned to plaintiffs based on “fugitive dust” that had migrated to the plaintiffs’ properties.[15]  However, Nalbandian has also represented plaintiffs in contamination and toxic tort actions, in one case, suing on behalf of plaintiffs who had consumed contaminated water in West Virginia.[16]

Local Government

Throughout his career, Nalbandian has also occasionally represented municipalities in zoning and other such suits.[17]  In one of his more prominent cases, Nalbandian represented Northern Ohio municipalities in an unsuccessful challenge to the regional stormwater management program implemented by the Sewer District.[18]

Election Law

As part of his election law practice, Nalbandian represented Hamilton County Judge John Williams in a contentious election challenge.[22]  In the 2010 elections, Williams was challenged by Democrat Tracie Hunter, and was certified as the winner with a narrow lead in the final vote count.  However, Hunter challenged the results, arguing that 849 provisional ballots were erroneously thrown out due to poll worker error.[23]  When outgoing Ohio Secretary of State Jennifer Brunner, a Democrat, stepped in to offer guidance in reviewing the 849 disputed ballots, Nalbandian sued on Williams’ behalf, successfully getting the Republican-dominated Ohio Supreme Court to step in and block Brunner’s guidance.[24]

In response to the Ohio Supreme Court’s intervention, Hunter filed a federal suit, and U.S. District Judge Susan Dlott granted a preliminary injunction in Hunter’s favor to count the disputed ballots.[25]  When Nalbandian appealed, a divided panel of the Sixth Circuit affirmed the injunction,[26] and with the recounting of 149 additional ballots, Hunter was declared the winner of the election.

Academic Judgment

In one of his more unusual cases, Nalbandian represented the Case Western Reserve University in seeking to revoke a medical school diploma given to one of its students.[27]  The plaintiff in the case, Amir Al-Dabagh, had fulfilled all the academic requirements for a medical degree.[28]  However, the Medical School declined to give him a degree, citing numerous “professionalism” violations, including incurring a DUI in North Carolina.[29]  Al-Dabagh filed suit, arguing that the failure to give him a medical degree violated its state law duties of fair dealing and good faith, and U.S. District Judge James Gwin ruled in his favor.[30]  However, Nalbandian filed an appeal and was able to convince the Sixth Circuit to reverse the ruling.  Writing for the court, Judge Jeffrey Sutton found that the Medical School’s decision not to award the degree based on “professionalism” was an “academic judgment” that could not be second-guessed by the court.[31]

Overall Assessment

Kentucky nominees to the Sixth Circuit have not had the smoothest confirmations under Trump, with both Judges Thapar and Bush being confirmed by narrow partisan margins.  While Nalbandian has already been unanimously confirmed by the senate once, this does not necessarily portend an easy confirmation for him this time around.  The State Justice Institute, while important, focuses on education rather than shaping law or policy.  As such, it is unlikely that Democrats, who were willing to confirm Nalbandian to the SJI, will be equally accommodating when the prize is a lifetime appointment one step below the supreme court.

Furthermore, Nalbandian is active in the Federalist Society, and the conservative legal organization has become a a bete noire for Senate Democrats.  As such, it is likely that Nalbandian will see significantly more opposition to this nomination than he did eight years ago.

That being said, unlike the previous two nominees to the Sixth Circuit from Kentucky, Nalbandian lacks both a judicial paper trail and a bevy of controversial statements that can be mined for opposition research.  Furthermore, unlike most Trump nominees, Nalbandian has worked with diversity-based legal organizations, including as an active member of the Greater Cincinnati Minority Counsel Program  and the National Asian Pacific American Bar Association.  His active role in the Asian American legal community and his pro bono work should also deflect criticism.

Overall, while Nalbandian may not see the unanimous support he received eight years ago, he will likely be confirmed with a bipartisan majority.  His expected confirmation will make him the second Asian Pacific American on the Sixth Circuit, and will help secure the court’s conservative majority.

[1] Sen. Comm. on the Judiciary, 115th Cong., John Nalbandian: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] See The Salt Lake Tribune, Utah Court Official Appointed by Obama to National Board, The Salt Lake Tribune, July 1, 2010.

[5] See Nalbandian, supra n. 1 at 25.

[6] See id. at 11.

[7] See id. at 11-12.

[9] See id.

[10] See id.

[11] See Nalbandian, supra n. 1 at 4.

[12] In re: Burnley, 998 F.2d 1 (4th Cir. 1992).

[13] See Nalbandian, supra n. 1 at 13.

[14] See Germain et al. v. Teva Pharmaceuticals USA Inc., 756 F.3d 917 (6th Cir. 2014).

[15] Ellis et al. v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004).

[16] See Rhodes et al. v. E.I. Du Pont De Nemours & Co., 636 F.3d 88 (4th Cir. 2011).

[17] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[18] See Northeast Ohio Regional Sewer Dist. v. Bath Twnship, 44 N.E.3d 246 (Ohio 2015).

[19] See, e.g., United States v. Romanini, 502 Fed. Appx. 503 (6th Cir. 2012).

[20] See Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003).

[21] See Frazier v. Huffman, 343 F.3d 780, 801 (6th Cir. 2003).

[22] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[23] See id. at 226.

[24] The State ex rel. Painter et al. v. Brunner, 941 N.E.2d 782 (Ohio 2011).

[25] See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-00820-Dlott, 2010 U.S. Dist. LEXIS 128434 (S.D. Ohio, Nov. 22, 2010).

[26] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[27] See Al-Dabagh v. Case Western Reserve University, 777 F.3d 355 (6th Cir. 2015).

[28] See id. at 358.

[29] See id.

[30] See id. at 358-59.

[31] See id. at 360.

Gordon Giampietro – Nominee for the U.S. District Court for the Eastern District of Wisconsin

Last year, Gordon Giampietro was nominated by President Trump to be a federal judge upon the recommendation of Wisconsin’s U.S. Senators, indicating a comfortable nomination.  As such, when news broke of controversial statements made by Giampietro in interviews and online comments and of allegations that the statements were not properly disclosed in the nomination process, many felt that this latest controversy had derailed his nomination.  However, even without the reported statements, Giampietro’s record shows involvement in several political flashpoints, suggesting that his confirmation was always unlikely to be smooth.


Gordon Peter Giampietro was born on October 19, 1965, in Washington D.C.  Giampietro spent much of his formative years in D.C., attending The Catholic University of America and The Catholic University Columbus School of Law, getting his J.D. in 1992 with a Comparative and International Law Certificate.  In between his undergraduate education and law school, Giampietro worked at The Connecticut Avenue Club Hotel as the Assistant Manager.[1]  After graduating law school, Giampietro moved to Wisconsin to clerk for Judge Rudolph Randa on the U.S. District Court for the Eastern District of Wisconsin, serving as the newly appointed conservative’s first law clerk.[2]

After his clerkship, Giampietro joined the Milwaukee Office of Michael, Best & Friedrich LLP as a Litigation Associate.[3]  In 2000, he was named a Litigation Partner at the firm.  In 2002, Giampietro left the firm to join the U.S. Department of Justice Criminal Division, serving as an Assistant U.S. Attorney in the Eastern District of Wisconsin.[4]  Additionally, in 2007, Giampietro became the Bankruptcy Fraud Coordinator for the Office.  In 2010, Giampietro gave up that position and became the Criminal Health Care Fraud Coordinator and Deputy Elections Officer.[5]

In 2015, Giampietro left the government to join the Northwestern Mutual Life Insurance Company as Assistant General Counsel.[6]  He serves in that role today.

History of the Seat

Giampietro has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on February 5, 2016, by Judge Rudolph Randa (for whom Giampietro had clerked).  Interestingly, Randa had expressed his interest in moving to senior status back in 2007, and the Bush Administration had nominated state judge Timothy Dugan to replace him.[7]  However, Dugan was never confirmed by the then-Democratic senate, and, after the election of President Obama, Randa reversed his desire to go on senior status.

In February 2017, Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively, announced the renewal of their bipartisan Judicial Nominating Commission.  Giampietro submitted an application to the Committee on May 30th.[8]  He interviewed with the Committee in July and his name, alongside three others, was submitted to the White House in August 2017.[9]  After interviews with the White House Counsel’s Office and the Department of Justice, Giampietro was nominated on December 20, 2017.

Legal Experience

Excluding his time as a clerk, Giampietro has split his career between working as a federal prosecutor and working in private practice.

Private Practice

In his first position out of his clerkship, Giampietro managed corporate litigation as an associate and a partner at Michael Best.[10]  Notably, Giampietro was able to dismiss a tort action brought by the estate of a worker killed by a vertical boring mill, by successfully arguing, as a matter of first impression, that Wisconsin law did not permit suits against brokers of second hand industrial equipment.[11]

In addition to his corporate work, Giampietro also participated in more controversial cases.  For example, Giampietro represented the Republican leaders in the Wisconsin House and Senate in the lawsuit over Wisconsin’s legislative districts.[12]  Giampietro also represented the Metropolitan Milwaukee Association of Commerce in an unsuccessful challenge to a Milwaukee labor ordinance requiring county contractors to sign “labor peace agreements” with unions.[13]

However, Giampietro’s most politically charged case was his representation of Munir Hamdan, a grocery store owner seeking the right to carry a concealed weapon to protect his store.[14]  Hamdan was charged with carrying a concealed weapon in violation of Wisconsin law, but his conviction was reversed in a 5-2 vote of the Wisconsin Supreme Court, who held that Hamdan’s conviction violated the Right to Bear Arms in the Wisconsin Constitution.[15]

Department of Justice

From 2002 to 2015, Giampietro worked as a prosecutor at the Department of Justice through the U.S. Attorney’s Office for the Eastern District of Wisconsin.  In this role, Giampietro handled the prosecutions of both violent offenders and white collar criminals.[16]  Notably, Giampietro prosecuted Kimberly Prude, a convicted felon, for casting a ballot in the 2004 elections.[17]  Prude had cast a ballot while on supervised release from a forgery conviction.[18]  Upon discovering that she was ineligible to vote, Prude contacted the Election Commission and attempted to withdraw her ballot only to be told “not to worry about it.”[19]  Despite the fact that she herself had reported the mistake and had attempted to withdraw the ballot, Prude was nonetheless prosecuted and convicted of voter fraud.[20]  During the trial, Prude was not permitted to present witnesses to testify as to her efforts to withdraw her ballot, while the government was allowed to testify on the subject.[21]  On appeal, the Seventh Circuit agreed that Judge Rudolph Randa had erred in his evidentiary rulings but found that the errors did not require reversal under “plain error” review.[22]

Giampietro was also central to a conflict between the U.S. Attorney’s Office and federal judge J.P. Stadtmueller.  In 2008, Giampietro was prosecuting Rashid Salahuddin for being a felon in possession of a firearm, a case that had, at the time, been pending for three years.[23]  On October 9, 2008, Stadtmueller, who was overseeing the case, called U.S. Attorney Steven Biskupic and Federal Defender Daniel Stiller into his chambers for a meeting without the court reporter present.[24]  At the meeting, Stadtmueller expressed concern as to the length and litigation costs in the case and suggested that the parties resolve the issue without further litigation.[25]  In response to this meeting, the U.S. Attorney’s Office filed a motion for Stadtmueller to recuse himself from the case, alleging bias against Giampietro and the U.S. Attorney’s Office.[26]  Stadtmueller, a former U.S. Attorney, declined to recuse himself and granted motions to suppress in the defendant’s favor.[27]  Giampietro appealed the recusal motion to the Seventh Circuit, who forced Stadtmueller off the case, citing that Stadtmueller “suggested that the case was an embarrassment to the justice system and an inefficient allocation of taxpayer resources” in his remarks.[28]  The removal prompted Stadtmueller to take the unprecedented step of declining all future criminal cases, suggesting that the U.S. Attorney’s Office was using recusal to engage in “judge shopping.”[29]

Writings, Interviews, and Expressed Views

Over his career, Giampietro has occasionally commented on issues of law and policy, both in writing, and through interviews and speeches.

Expressed Political Views in Interviews

On February 2015, 2018, Zoe Tillman at Buzzfeed broke the story that Giampietro had, in his writings and interviews, made “disparaging comments about diversity, same-sex relationships, and birth control.”[30]  Specifically, in a 2015 radio interview, Giampietro stated that it was “irrefutable” that children were best-raised by heterosexual couples and that same-sex relationships were troubled.[31]  In other comments, Giampietro referred to the birth control pill as an “assault on nature” and suggested that diversity was “code for relaxed standards.”[32]  In response to the story, Baldwin indicated that the statements had not been disclosed to the Evaluation Commission and that they “raise serious questions about whether this nominee would be able to serve as a fair and impartial judge.”[33]

In response, Giampietro wrote to Baldwin privately arguing that the article “reads like an attack on my Catholic faith.”[34]  Additionally, five Wisconsin based Catholic bishops wrote to Baldwin arguing that Giampietro was “not receiving a fair hearing because of his Catholic faith.”[35]  Furthermore, members of the Evaluation Commission disagreed as to the significance of the undisclosed statements, with Republican member Rick Esenberg arguing that the statements were irrelevant while Democratic member Barbara Quindel indicating that the Commission would not have recommended Giampietro if they had known about the statements.[36]

“Moral Force” of Judicial Decisions

In 2003, the Wisconsin Supreme Court, in a 4-3 decision, upheld a $3.5 million punitive damages award against an insurance company, finding as a matter of law, that the insurance company had acted in bad faith in failing to inform the insured of a mutual mistake in the insurance contract.[37]  The decision was criticized by some attorneys, including many conservatives.[38]  In response to the criticism, George Burnett, President of the Wisconsin Bar, authored a President’s Message urging members of the Bar to defend the Court against “political attacks.”  In response, Giampietro wrote a response, arguing that Burnett overstepped in arguing that Courts rule by “moral force.”[39]  He noted that “[w]hen the judicial branch abandons ‘the idea of law,’ it forfeits the right to claim that its decisions are imbued with a ‘moral force.’”[40]  In response, Burnett countered that Giampietro’s piece misinterpreted his own and noted that “when one ascribes political motives as a substitute for a legal critique of judicial decisions, one undermines public confidence in our judiciary.”[41]

Political Activity & Memberships

On May 22, 2017, Giampietro donated $1000 to Sen. Ron Johnson.[42]  The contributions were made approximately a week before Giampietro applied for a federal judgeship with Johnson and Baldwin’s Selection Committee.

Giampietro has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 1989, serving as the President of the Milwaukee Chapter between 1995 and 1997.[43]

Overall Assessment

It is undeniable that Giampietro is an exceptional lawyer, with significant experience in both civil and criminal law.  As such, it is unlikely that critics of the nomination will raise substantive objections to his qualifications.  Instead, they may object to Giampietro’s temperament and impartiality, relying on the statements reported on by Buzzfeed, his membership in the Federalist Society, his involvement in politically charged cases including the Hamdan case, and, potentially, his conduct in the Prude and Salahuddin cases.

In contrast, Giampietro’s supporters are likely to try a tactic that worked well for then-nominee Amy Coney Barrett in 2017: accusing Giampietro’s critics of anti-Catholic bias.  They will argue, as Giampietro already has, that his views on LGBT relationships and birth control are integral to his faith and that attacking those views is tantamount to imposing a religious test for federal judges.

Ultimately, the Constitution forbids a religious test for public office, and, additionally, public opinion stands strongly by that principle.  As such, to disqualify Giampietro, critics will have to make an additional point in their case, that Giampietro would be unable to set aside his views (religious or otherwise) to rule based on the law and precedent.  The future of Giampietro’s nomination ultimately depends on whether Sen. Baldwin is convinced on this point.

[1] Sen. Comm. on the Judiciary, 115th Cong., Gordon Giampietro: Questionnaire for Judicial Nominees 2.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Giampietro had applied to fill that vacancy but was not selected.

[8] See id. at 28.

[9] See id.

[10] See id. at 12.

[11] See Geboy v. TRL, Inc., 976 F. Supp. 1202 (E.D. Wis. 1997), aff’d, 159 F.3d 993 (7th Cir. 1998).

[12] See Arrington v. Elections Bd., 173 F. Supp. 2d 856 (E.D. Wis. 2001).

[13] See Metropolitan Milwaukee Assoc. Of Commerce v. Milwaukee Cnty., 201 F. Supp. 2d 942 (E.D. Wis. 2002).

[14] See State of Wisconsin v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

[15] See id. at 478 (concluding that the right to keep and bear arms is at an apex when protecting a home or a business).

[16] See Giampietro, supra n. 1 at 11.

[17] See United States v. Prude, 489 F.3d 873 (7th Cir. 2007).

[18] See id. at 875.

[19] Id.

[20] See id. at 876.

[21] See id. at 878-81.

[22] See id. at 881.

[23] See In re: United States of America, 572 F.3d 301, 305 (7th Cir. 2009).

[24] See id. 

[25] See id.

[26] See id. at 305-06.

[27] See United States v. Salahuddin, 607 F. Supp. 2d 930 (E.D. Wis. 2009), motion for reconsideration denied, 608 F. Supp. 2d 1061 (E.D. Wis. 2009).

[28] In re: United States of America, 572 F.3d 301, 311 (7th Cir. 2009).

[29] John Diedrich, U.S. Judge Stadtmueller Not Taking New Criminal Cases, Milwaukee Journal Sentinel, Aug. 23, 2009,  

[30] Zoe Tillman, One of Trump’s Judicial Nominees Once Wrote That Diversity is “Code for Relaxed Standards”, BuzzFeed News, Feb. 15, 2018,  

[31] See id.

[32] See id. (citing Giampietro’s comments).

[33] See id. (quoting Sen. Tammy Baldwin’s spokesperson).

[34] Bill Glauber and Daniel Bice, Catholic Bishops Call on Tammy Baldwin Not to Block Judicial Nomination of Gordon Giampietro, Milwaukee Journal Sentinel, Feb. 27, 2018,

[35] See id. (quoting Letter from The Bishops of the State of Wisconsin to Sen. Tammy Baldwin (Feb. 20, 2018)).

[36] See id.

[37] See Trinity Evangelical v. Tower Ins. Co., 661 N.W.2d 789 (Wis. 2003).

[38] See, e.g., Robert J. Dreps & Katherine Stadler, Insurance Bad Faith: Failure to Reform Policy Based on Agent Error May Constitute Bad Faith as a Matter of Law, Godfrey & Kahn S.C. Blog, May 28, 2003, (describing decision as “puzzling” and “at odds” with Supreme Court precedent).

[39] Gordon P. Giampietro, Ruling by Moral Force?, Wis. Lawyer (Feb. 2004),  

[40] See id.

[41] See George Burnett, Response to Ruling by Moral Force?, Wis. Lawyer (Feb. 2004),

[42] Center for Responsive Politics, (last visited Feb. 25, 2018).

[43] See id. at 4.

Jill Otake – Nominee for the U.S. District Court for the District of Hawaii

Jill Otake, the federal prosecutor nominated by Trump to a district court seat in Hawaii, is an unusual nominee for two reasons.  First, the Trump Administration has foregone appointing a Republican and has instead chosen a candidate recommended by Hawaii’s Democratic senators to a Democratic President.  Second, while Otake is a native of Hawaii, she has spent almost all of her legal career practicing, not in her home state, but in Washington.


Jill Aiko Otake was born in Honolulu on October 3, 1973.  Otake received her B.S. cum laude from Georgetown University in 1995 and her J.D. from the University of Washington School of Law in 1998.[1]  After graduating, Otake joined the King County Prosecuting Attorney’s Office, serving as a prosecutor in the metro Seattle area.

In 2001, Otake returned to Hawaii to clerk for Justice Simeon Acoba on the Hawaii Supreme Court.[2]  She returned to the King County Prosecuting Attorney’s Office after her clerkship.  In 2005, Otake became a federal prosecutor with the U.S. Attorney’s Office for the Western District of Washington, working as an Assistant United States Attorney (AUSA).  In 2011, Otake became the Deputy Supervisor of the Terrorism and Violent Crimes Unit and in 2013, she became the Co-Supervisor for the General Crimes Unit.[3]

In 2014, Otake moved to the U.S. Attorney’s Office for the District of Hawaii.[4]  In 2016, she was named Deputy Chief of the Special Crimes Section and, since 2017, she has served as Acting Chief of the Section.[5]

History of the Seat

Otake has been nominated for a vacancy on the U.S. District Court for the District of Hawaii.  This seat opened when Judge Susan Oki Mollway moved to senior status on November 6, 2015.  In May 2015, Otake interviewed with a Commission formed by Hawaii Senators Mazie Hirono and Brian Schatz, both Democrats.[6]  After interviews with Hirono and Schatz, Otake was one of three candidates recommended by the senators to the Obama Administration.[7]  However, the Obama Administration chose to nominate Clare Connors, another recommended candidate, on September 8, 2015.[8]  While Connors received a hearing in January 2016, and was unanimously approved by the Senate Judiciary Committee in April, she never received a floor vote.

In April 2017, Otake was contacted by the Trump Administration to gauge her interest in a federal judgeship.[9]  After interviewing with the White House Counsel’s Office and the Department of Justice, Otake was formally nominated on December 20, 2017.  Otake has the strong support of Hirono and Schatz.[10]

Legal Experience

Otake has spent her entire legal career as a prosecutor, working on the state level between 1998 and 2005, and on the federal level since 2005.[11]  Over the course of her career, Otake tried approximately 40 cases to verdict, including as lead counsel in approximately 15.[12]  As a state prosecutor, Otake not only handled criminal trials, but also worked in a supervisory capacity over other prosecutors.[13]

As a federal prosecutor in Washington, Otake initially worked in the General Crimes Unit but later joined the Terrorism and Violent Crimes Unit, becoming a Deputy Supervisor in 2011 under U.S. Attorney Jenny Durkan.[14]  While there, Otake helped prosecute members of the Sovereign Assemblies, an anti-government group that had set up its own law enforcement arm and worked to commit tax fraud in an effort to cheat the U.S. Government.[15]

After moving to Hawaii in 2014, Otake handled a variety of cases, including civil rights violations, firearms offenses, and human trafficking.[16]  Early in her tenure, Otake led the prosecution of eighteen members of a prison gang engaged in violence, smuggling, and fraud.[17]  She also prosecuted a prison guard who had assisted in smuggling methamphetamines into correctional facilities.[18]

Overall Assessment

Nominated by Trump and supported by her Democratic home state senators, Otake should sail to confirmation.  While questions can be raised as to Otake’s ties to the Hawaii legal community (she had practiced there for approximately a year before applying for a federal judgeship), with Hawaii senators on board, it is unlikely that others will raise them.

On the bench, Otake is likely to be familiar with the intricacies of sentencing and criminal law, given her long tenure as a prosecutor.  While she lacks the commensurate civil experience, focusing one’s legal career on either criminal or civil law has not barred previous nominees, and, as such, should not disqualify Otake.  As such, Hawaii should expect Otake on the bench this year, restoring a full bench.

[1] Sen. Comm. on the Judiciary, 115th Cong., Jill Otake: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 26-27.

[7] Shiwani Johnson, Former Hawaii Attorney General Among 3 Nominees for U.S. District Court Opening in Honolulu, Pacific Business News, June 17, 2015,  

[8] Press Release, White House, President Obama Nominates Three to Serve on the United States District Courts, Sept. 8, 2015 (on file at

[9] See Otake, supra n. 1 at 27.

[10] Press Release, Office of Sen. Mazie Hirono, Hirono & Schatz Announce Nomination of Jill Otake to U.S. District Court, Dec. 20, 2017 (on file at

[11] See Otake, supra n.1 at 1-2.

[12] See id. at 18.

[13] See id. at 17.

[14] Id.

[15] See United States v. Jarlik-Bell, et al., No. CR11-5407RBL (W.D. Wash. Aug. 10, 2011).

[16] See Otake, supra n. 1 at 17.

[17] See, e.g., United States v. Esera, et al., Nos. CR13-860LEK (D. Haw. Sept. 12, 2013).

[18] See United States v. Damas, et al., No. CR14-177JMS (D. Haw. Feb. 5, 2014).

Judge Kari Dooley – Nominee for the U.S. District Court for the District of Connecticut

Republican Kari Anne Dooley, a judge for Connecticut’s Superior Court (trial court) since 2004, has been nominated for a seat on the U.S. District Court for the District of Connecticut.[1]  Before becoming a judge, she worked in private practice as well as serving for 12 years as an Assistant U.S. Attorney for the District of Connecticut.[2]


Dooley, 54, was born in New York City on May 9, 1963.  She earned her B.A. in psychology from Cornell University in 1985 and her J.D. (cum laude) from the University of Connecticut School of Law in 1988.[3]  After graduating law school, she began her career in civil litigation and criminal defense at Whitman & Ransom (now Whitman Breed) in Greenwich, Connecticut.[4]  A mother of two, in 1992, Dooley moved to the public sector as an Assistant U.S. Attorney, staying in the office for twelve years.[5]  She served as counsel to the U.S. Attorney in 2004 until starting as a state court judge.[6]  She currently sits on Connecticut’s Superior Court in Waterbury and hears cases on the complex litigation docket.[7]  Dooley was nominated at the recommendation of Connecticut’s two democratic senators.[8]

History of the Seat

Dooley was nominated to a vacancy on the U.S. District Court for the District of Connecticut on December 20, 2017.  The vacancy opened on January 1, 2017, with Judge Roberty Chatigny’s move to senior status.

In May 2017, Dooley applied for the judgeship with Connecticut Senators Richard Blumenthal and Chris Murphy, both Democrats.  They recommended Dooley to the White House in August 2017.  Trump officially nominated Dooley on December 20, 2017.

Legal Career

While counsel to the U.S. Attorney, Dooley served as the Child Exploitation and Obscenity coordinator.[9]  Dooley has been involved in a number of high-profile prosecutions involving white collar fraud and child sex crimes.  She was involved in the 1993 prosecution of Stew Leonard, patriarch of the eponymous Connecticut grocery store, for $17.1 million in tax fraud.  He was sentenced to 52 months in federal prison.  She also aided in the 1997 prosecution of his son, Tom Leonard, who pleaded guilty to two counts of filing false tax returns.[10]  She worked with the child victims of the 2001 prosecution of Waterbury, Connecticut’s Mayor Philip Giordano, who was sentenced to 37 years for using his influence and political position to systematically sexually assault children.[11]  Connecticut U.S. Attorney Kevin O’Connor described her work interviewing the children victims as “masterful[].”[12]  In 2002, she brought 24 federal charges against Martin Frankel stemming from swindling small insurance companies in a scam that caused at least $200 million in losses.[13] In 2004, she prosecuted Danbury, Connecticut lawyer Bernabe “Bernie” Diaz for having sex with and receiving pornography of his girlfriend’s underage daughter.[14]

Dooley by all accounts has a reputation for being fair and a talented lawyer.  Counsel for criminal defendant Diaz, see supra, stated that Dooley “always struck [him] as being fair even though she’s a U.S. Attorney,” and “someone who knows their way around a courtroom.”[15]  Connecticut’s U.S. Attorney Kevin O’Connor has praised Dooley’s ability to work with child victims and her “demonstrated … commitment to the pursuit of justice,” and has decried her as “an immensely talented lawyer.”[16]  The state’s senators echoed these sentiments in their public statement lauding her for having “earned the deep respect of her colleagues and peers”[17]


Dooley has not presided over any published cases, and has participated in 12 unpublished cases, which address a range of criminal and civil issues.[18]  As Dooley puts it, her “judicial responsibilities have included presiding over a variety of criminal, civil, housing and juvenile matters,” and “[s]ince 2012, [she] ha[s] been assigned to the Complex Litigation Docket in Waterbury, Connecticut.”[19]

Connecticut senators Richard Blumenthal and Chris Murphy, in a statement released following Dooley’s nomination, described her as having “a well-deserved reputation for her tireless work ethic, a high standard of integrity, and an admirable judicial temperament.”[20]


While research has not revealed publications or speeches by Dooley, Dooley commented on her 2004 nomination to a seat on Connecticut’s state trial court, calling it “a real privilege,” and stating that she “look[ed] forward to staying in public service.”[21]

Overall Assessment

Dooley’s long tenure as a federal prosecutor and state court judge, as well as her glowing reputation among her legal community, make her a consensus candidate for the vacancy.  Although research has revealed relatively little about Dooley, the unanimously positive endorsements she has received for her work both as a lawyer and as a judge suggest an even-handed and thoughtful approach, which should, logically speaking, translate to an apolitical approach as well.

[18] Westlaw search conducted by author, January 21, 2018.

[19], input “Kari Dooley” in search, first result.