Eli Richardson – Nominee to the U.S. District Court for the Middle District of Tennessee

Strictly speaking, judges are not agents of law enforcement.  Rather, they serve as neutral magistrates, balancing the playing field between the prosecution and the defense.  Nevertheless, several prominent judges have risen to the bench with law enforcement experience.  For the second time this year (after Trevor McFadden in June), President Trump has nominated a former law enforcement official to the federal bench: former FBI agent Eli Richardson.

Background

Eli Jeremy Richardson was born in 1967.  He attended Duke University, graduating with a Bachelors of Engineering degree in 1989.  Richardson went on to Vanderbilt Law School, overlapping slightly with another Trump judicial nominee, Claria Horn Boom.  At Vanderbilt, Richardson served as a member of the Vanderbilt Law Review and graduated Order of the Coif in 1992.

Upon graduation, Richardson moved to Grand Rapids, MI, working as an Associate at Warner, Norcross, & Judd, LLP.  In September 1993, Richardson moved to Atlanta to work as an Associate at Rogers & Hardin LLP.  After two years there, in 1995, Richardson moved into solo practice, founding Richardson & Associates in the Atlanta suburb of Conyers.

In 1998, Richardson left the practice of law, moving to Newark, NJ as a Special Agent in the Federal Bureau of Investigation (FBI).[1]  In that capacity, Richardson worked on public corruption and counter-terrorism.  In 2002, Richardson joined the U.S. Attorney’s Office in Newark as a federal prosecutor.

In 2004, Richardson moved to Nashville to be an Assistant U.S. Attorney in the Middle District of Tennessee.  He rose rapidly in the position, becoming Criminal Chief for the office in 2008.  Upon the election of President Barack Obama, Richardson left the U.S. Attorney’s Office and moved to the Department of Justice, moving to Belgrade, and working as a Resident Legal Advisor for Serbia, assisting Serbian judges, police, and prosecutors on rule of law issues.

In October 2010, Richardson moved back to Nashville to become a Member at Bass, Berry & Sims PLC.  While he has taken on additional roles over the years, including as an Adjunct Professor at Vanderbilt University, Richardson continues to serve as a Member as of his nomination to the federal bench.

History of the Seat

Richardson has been nominated for a vacancy on the U.S. District Court for the Middle District of Tennessee.  This vacancy opened on December 1, 2016, when Judge Todd Campbell retired from the bench.  Campbell, a former aide to Vice President Al Gore, was appointed to the federal bench at the relatively young age of 39, but retired at 60 due to an unnamed disability.[2]  As the vacancy came very late in the Obama Administration, no nominee was put forward to fill the vacancy.  Richardson was tapped by President Trump on  July 13, 2017, along with three other Tennessee nominees.[3]

Legal Experience

Richardson’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1992-1998, where he worked in private practice.  The second is from 2002-2010, where Richardson worked as a federal prosecutor and DOJ attorney.  The final is from 2010-2017, where Richardson worked at Bass Berry in Nashville.

Richardson’s first job out of school was working as an associate at Warner, Norcross & Judd, LLP. in Grand Rapids. After moving to Rogers & Hardin in Atlanta, Richardson began to handle more complex commercial litigation matters.  For example, Richardson was part of the legal team representing S.N. Patel in his fight for control of Alpha Investment Properties, a motel operation company.[4]  After forming his own practice, Richardson represented telemarketer Alfred Estfan in his unsuccessful defense against charges of violating the Federal Trade Commission Act.[5]  Richardson also defended Sunrise Carpet Industries against an action for excess premiums from its insurance company.[6]

As an AUSA in Newark, Richardson worked on many criminal matters, but emphasized terrorism-related cases.  After moving to Nashville, Richardson shifted focus to white collar crimes.  For example, Richardson helped prosecute Albert Ganier, the founder of Education Networks of America (ENA) for obstruction of justice and destruction of evidence.[7]  Richardson also prosecuted violent crimes[8] and firearm cases.[9]  In 2009, Richardson moved to the Department of Justice, serving as a legal advisor in Belgrade to Serbian lawyers, judges, and law enforcement.[10]

After returning to Nashville, Richardson joined the Compliance and Government Investigations practice group at Bass, Berry & Sims.  In that role, Richardson successfully defended Charles Wells, a cigarette supplier, against charges relating to the Racketeer Influenced and Corrupt Organizations Act (RICO).[11]  Richardson also represented David Miller in charges that he had made a false statement to a bank.[12]

Scholarship

Despite not being an academic, Richardson has written extensively on issues of criminal law, trial practice and attorney ethics.  Here are some themes from Richardson’s writings.

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment protects Americans against multiple punishments for the same offense.  For much of the 20th Century, double jeopardy was analyzed under the test set out by the Supreme Court in Blockburger v. United States.  In Blockburger, the Supreme Court held that a single act or transaction could violate multiple statutory provisions without implicating double jeopardy, as long as each separate offense required the proof of a different element.[13]  In 1990, the Supreme Court abrogated the Blockburger test in Grady v. Corbin, which held that the government could not prosecute an individual for an offense if an essential element of the crime charged constitutes an offense already prosecuted.[14]  Three years after Grady was decided, it was overruled by United States v. Dixon, which reimposed the Blockburger test.[15]

In 1992, between Grady and Dixon, Richardson published his law review note as a student, analyzing Grady and Blockburger.[16]  In the note, Richardson argues that Blockburger both underprotects and overprotects defendants.[17]  As such, Richardson argues that Grady should provoke a reform of Blockburger and a move away from its standard.[18]

In 1994, after the decision in Dixon, Richardson published an additional article criticizing the decision.[19]  Specifically, Richardson criticizes the Court for moving away from a “same offense” standard on double jeopardy:

“Simply put, the muddled state of double jeopardy jurisprudence is cause largely by the Supreme Court’s abandonment of what should be the anchor of the Court’s double jeopardy analysis: a requirement of same offenses.”[20]

Despite his criticism of Dixon, Richardson does not only argue that the Court is shortchanging criminal defendants.  Rather, he also argues that the Blockburger test confuses the difference between successive prosecutions and multiple punishments, and that, under the Double Jeopardy Clause, the former should be restricted more than the latter.[21]

Attorney Ethics

As a young lawyer in 1994, Richardson authored an article on the ethical obligations of attorneys.[22]  The article advocates a reform of the federal rules of attorney ethics, arguing that the current rules are cumbersome and that “lawyers cannot possibly determine what the applicable rules are, let alone determine whether or not they are in compliance.”[23]

In a more recent article co-authored with former federal judge Robert Echols, Richardson outlines best practices for white collar defense attorneys.[24]  Among other practice tips, Richardson urges defense attorneys not to lob ad hominem attacks against prosecutors.  Specifically, Richardson urges defense counsel to make charges of misconduct “where well-grounded and in the client’s best-interest”[25] but notes that unfair attacks may “be an uphill battle that ultimately damages counsel’s credibility.”[26]

Political Activity

Richardson does not have a particularly active political donation history.  His only contributions of record are two contributions, totalling $300 to the congressional campaign of Grant Starrett, a Republican who was challenging Rep. Scott DesJarlais in the Republican primary.[27]  The contributions were made months before Starrett’s campaign faced criticism over Islamophobic campaigning.[28]

Overall Assessment

For the most part, Trump’s district court nominees have not attracted much controversy.  As he has not represented any controversial clients, or taken any divisive stances, and as his legal writings are fairly anodyne, Richardson is unlikely to be any different.  If confirmed, Richardson will likely add another moderate conservative voice to the Tennessee federal bench.


[1] Eli J. Richardson, Linkedin Profile, https://www.linkedin.com/in/elirichardsonlawyer/ (last visited Sept. 14, 2017).

[2] Stacey Barchenger, Federal Judge to Retire From Bench in Nashville, Tennessean, Nov. 15, 2016, http://www.tennessean.com/story/news/2016/11/15/federal-judge-retire-bench-nashville/93932624/.

[3] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (on file at www.whitehouse.gov) (July 13, 2017).

[4] See Patel, et al. v. Alpha Investment Properties, Inc., et al., 458 S.E.2d 476 (Ga. 1995).

[5] Fed. Trade Comm’n v. Gem Merchandising Corp., 87 F.3d 466 (11th Cir. 1996).

[6] Home Ins. Inc. v. Sunrise Carpet Indus. Inc., 493 S.E.2d 641 (Ga. App. 1997).

[7] See United States v. Ganier, 468 F.3d 920 (6th Cir. 2006).

[8] See United States v. Jones, 2007 U.S. Dist. LEXIS 50030 (M.D. Tenn. July 10, 2007).

[9] See United States v. Hamblen, 239 Fed. Appx. 130 (6th Cir. 2007).

[10] Tennessee Bar Journal, Article: You Need to Know: People, 45 Tenn. B.J. 9 (March 2009).

[11] City of New York v. Chavez, et al., 944 F. Supp. 2d 260 (S.D.N.Y. 2013) (granting Wells’ motion for summary judgment on RICO claims).

[12] United States v. Miller, 734 F.3d 530 (6th Cir. 2013).

[13] Blockburger v. United States, 284 U.S. 299 (1932).

[14] Grady v. Corbin, 495 U.S. 508 (1990).

[15] United States v. Dixon, 509 U.S. 688 (1993).

[16] Eli J. Richardson, Matching Tests for Double Jeopardy Violations with Constitutional Interests, 45 Vand. L. Rev. 273 (Jan. 1992).

[17] Id. at 306 (noting that Blockburger underprotects defendants in successive prosecutions, but overprotects them in multiple punishments).

[18] Id. at 307.

[19] Eli J. Richardson, Eliminating Double-Talk From the Law of Double-Jeopardy, 22 Fla. St. U.L. Rev. 119 (Summer 1994).

[20] Id. at 143.

[21] See id. at 149.

[22] Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 Ga. L. Rev. 137 (Fall 1994).

[23] Id. at 140.

[24] Robert L. Echols and Eli J. Richardson, White-Collar Defense, 47 Tenn. B.J. 14 (Dec. 2011).

[25] Id. at 19.

[26] Id.

[27] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=eli+richardson (last visited Sept. 14).

[28] Scott Broden, Grant Starrett Mailer Attacking DesJarlais Also Offends Muslims, Daily News Journal, July 20, 2016, http://www.dnj.com/story/news/2016/07/20/mailer-attacking-desjarlais-also-offends-muslims/87264290/.

Justice Allison Eid – Nominee to the U.S. Court of Appeals for the Tenth Circuit

Allison Eid shares a similar background to another Trump judicial nominee, David Stras:  like Stras, Eid is a former academic; like Stras, she clerked for Justice Clarence Thomas; and like Stras, she serves on a state supreme court.  However, unlike Stras, whose nomination is currently stymied by the opposition of a home state senator, Eid has received the requisite sign-off from her home state senators, allowing her nomination to move forward.

Background

Eid was born Allison Hartwell in Seattle, Washington in 1965.  After getting a B.A. with distinction from Stanford University, Eid joined the staff of U.S. Secretary of Education William Bennett as a Special Advisor and Speechwriter.  At the end of the Reagan Administration, Eid joined the University of Chicago Law School, graduating with high honors in 1991.  After graduating, Eid clerked for the notoriously conservative Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit, and went on to clerk for Supreme Court Justice Clarence Thomas, clerking at the Supreme Court in a particularly notable year for clerks (prominent co-clerks include Justice Neil Gorsuch, Paul Clement, Prof. Eugene Volokh, and federal judges Brett Kavanaugh, Gary Feinerman, J. Paul Oetken, and Brian Morris).

In 1994, at the conclusion of her clerkship with Thomas, Eid joined Arnold & Porter, working as a litigator there for four years.  She left the firm in 1998, joining the University of Colorado Law School, teaching Torts, Constitutional Law, and Legislation.[1]

In 2005, Eid was tapped by Republican Attorney General John Suthers to be Colorado’s Solicitor General.[2]  Shortly after, Eid was one of three finalists for a vacancy on the U.S. Court of Appeals for the Tenth Circuit (eventually filled by Gorsuch).[3]  However, instead, Eid was instead nominated for a vacancy on the Colorado Supreme Court by Republican Governor Bill Owens.[4]

History of the Seat

Eid was tapped for a Colorado seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat was vacated by now-Justice Neil Gorsuch, who was elevated to the U.S. Supreme Court on April 9, 2017.

Like Gorsuch, Eid was also among the finalists for the Supreme Court vacancy left by Justice Antonin Scalia’s death.[5]

Political Activity

Colorado Supreme Court justices serve ten year terms, with retention elections marking the end of every term.  Since her appointment in 2006, Eid has come up for retention once (in 2008) and was retained with 75% of voters in support.[6]

Other than her time in judicial elections, Eid has minimal involvement with electoral politics.  She has made small contributions to former Republican senator Wayne Allard,[7] and to failed Republican congressional candidate Greg Walcher.[8]

Legal Career

While Eid has spent most of her legal career either as an academic or as a jurist, she has four years of experience in private practice working at Arnold & Porter.  Among her work there, Eid was part of the legal team defending investors who recovered profits from a Ponzi scheme.  Eid helped successfully defend the recovered profits against actions by bankruptcy trustees seeking “fictitious profits”.[9]

Jurisprudence

Eid has served on the Colorado Supreme Court for approximately eleven years.  As the Colorado Supreme Court has discretionary review, Eid hears appeals on issues of exceptional importance, as well as constitutional challenges, death penalty cases, and certain election law issues. During her tenure, Eid has carved out a pattern as the most conservative justice on the court, frequently voting in favor of narrow interpretations of criminal and civil protections.  Below are some patterns drawn from her jurisprudence.

Conservative View of Tort Remedies

A former torts professor, Eid has worked on the bench to narrow avenues for tort remedies, including limiting liability,[10] reading affirmative defenses broadly,[11] and expanding immunity.[12]  In one case, for example, Eid dissented from a majority opinion that expanded the “attractive nuisance” doctrine to cover all children in Colorado.[13]

In another case, the Colorado Supreme Court eliminated the “sudden emergency doctrine”: a common law defense for defendants whose negligence was borne from responding to a “sudden emergency.”[14]  In dissent, Eid noted:

“[The sudden emergency doctrine] simply repeats the standard negligence formulation that the jury is to determine whether the defendant’s conduct was reasonable under the circumstances, including circumstances that would amount to a sudden emergency…”[15]

Narrow Interpretation of Criminal Procedural Protections

Eid also takes a conservative view of criminal procedural protections, interpreting the Fourth, Fifth, and Sixth Amendments and their protections narrowly, and frequently voting against motions to suppress.

For example, in one case, Eid joined a dissent by Justice Nathan Coats arguing that revoking a defendant’s probation for refusing to answer questions posed to him did not violate his Fifth Amendment rights.[16]  In another dissent, Eid argues that threatening a defendant with deportation to Iraq does not render his subsequent statements involuntary.[17]

Similarly, Eid has also generally voted against defendants who have argued for Fourth Amendment relief based on unreasonable searches and seizures.[18]  For example, in one case, Eid was the lone dissenter arguing that a warrantless search of a cell-phone did not violate a defendant’s Fourth Amendment rights as the defendant had abandoned the cell-phone.[19]

Unwillingness to Consider Legislative History

Similar to Justices Scalia and Thomas, Eid refuses to consider legislative history in analyzing the meaning of statutes.[20]

For example, in one case, Eid notes:

“I join the majority opinion because I agree that under the plain language of section 10-4-110.5(1), C.R.S. (2007), Granite State’s late notice resulted in a forty-five-day extension of the old policy, but not in a full-term renewal. See maj. op. at 14. I write separately to note that I would not resort to an examination of the statute’s legislative history.”[21]

Reversals

The Colorado Supreme Court, on which Eid serves, is the final authority on the interpretation of the Colorado Constitution and statutes.  As such, the only decisions of the Colorado Supreme Court that can be appealed to the U.S. Supreme Court are interpretations of the U.S. Constitution or federal law.

During Eid’s eleven year tenure on the bench, only a handful of Colorado Supreme Court cases have made it up to the Supreme Court.  We have outlined the key cases below.

Air Wisconsin Airlines Corp. v. Hoeper was a defamation action brought by a pilot based on statements to the TSA by airline employees questioning his mental stability.  After the jury returned a verdict for the plaintiff, the Colorado Court of Appeals affirmed.  The Colorado Supreme Court also affirmed the verdict in a 4-3 decision, holding that the airline employees were not immunized by Congress for their remarks.[22]  Eid concurred in part and dissented in part, joined by two colleagues, arguing that the airline and its employees were immune from the defamation action under the Aviation and Transportation Security Act (ATSA), and furthermore, that the statements made were not materially false.[23]  The Supreme Court granted certiorari and reversed the Colorado Supreme Court.  Writing for a six justice majority, Justice Sotomayor agreed with Eid’s dissent that the challenged statements were not materially false, and that, in any case, the airline was immunized under the ATSA.[24]  Justice Scalia, joined by Justices Thomas and Kagan, concurred with the opinion, agreeing with the reversal but noting that the material falsity of the challenged statements is a factual issue best left to the lower courts.[25]

Pena-Rodriguez v. Colorado involved the question of whether racial animus on the part of a juror permitted a trial judge to grant a new trial.  One of the jurors in the panel that convicted Pena-Rodriguez expressed anti-Hispanic sentiments during the jury deliberations.  After the trial court denied a motion for a new trial, and the Colorado Court of Appeals affirmed, the Colorado Supreme Court held on a 4-3 vote that the Colorado Rule of Evidence 606(b) barred inquiry into racist juror statements, and that such statements did not violate Pena-Rodriguez’s Sixth Amendment right to a fair trial.[26]  Eid joined a dissent by Justice Monica Marquez, which argued that inquiries into racially biased statements by jurors were permitted when they compromised a defendant’s Sixth Amendment rights.[27]  The U.S. Supreme Court, in a 5-3 vote agreed.  Writing for the majority, Justice Kennedy found that, where there is compelling evidence that racial animus motivated a jury decision, the Sixth Amendment requires examination.[28]

Nelson v. Colorado was a challenge to a Colorado statute that required defendants whose convictions have been reversed or vacated to prove their actual innocence by clear and convicing evidence before they could get a refund of the court costs, fees, and restitution paid.  The Colorado Supreme Court, in a 5-1 decision, with Eid in the majority, held that the statute was constitutional.[29]  In dissent, Justice Richard Hood noted that keeping money paid by a defendant who was legally innocent was a violation of the Due Process Clause.[30]  In a 7-1 decision, the U.S. Supreme Court agreed.  Writing for the majority, Justice Ginsburg found that the Colorado Statute violated the Fourteenth Amendment’s guarantee of due process.[31]  Only Justice Thomas, in a lone dissent, sided with the majority (and Eid).[32]

Scholarship

During her time as a law professor, Eid has written many articles discussing salient law and policy issues.  We have outlined the main topics of her writings below, along with the themes on each topic.

Federalism

Eid has written extensively on constitutional structure, specifically on federalism.  Specifically, Eid has analyzed New Federalism, the re-invogaration of federal structure and states rights by the Rehnquist Court.  Eid defends New Federalism against critiques that it is too formalistic, arguing that the Court’s decisions striking down broad federal schemes recognize the value of federalism.[33]  In another article, Eid argues that formalism in constitutional interpretation helps to “counteract the Justices’ inherent tendency to nationalism.”[34]

Similarly, Eid also argues for a limited role for the federal government in other contexts.  In one article, she disputes the argument that the Property Clause of the U.S. Constitution gives the federal government broad authority to regulate environmental policy.[35]  In another, she notes that the Supremacy Clause is not a “repository of congressional power” but rather a mere conflict-of-laws provision.[36]

Tort Reform

As a former torts professor, Eid has written and spoken repeatedly on tort law, usually in support of conservative tort reform.

In a 2001 symposium talk, Eid speaks approvingly of tort reform measures imposed in Colorado, including limitations on joint and several liability, and caps on punitive damages.[37]  In her law review note as a student, Eid spoke in support of expanded immunity to federal civil rights actions (specifically 1983 suits) for private parties.[38]  Specifically, she notes that opening public and private parties to civil rights liability could cause them to be “deterred by undue fear of frivolous litigation.”[39]

Overall Assessment

Eid is an ideal judicial candidate from a conservative perspective.  She has a conservative pedigree (having clerked for Smith and Thomas) and a conservative record of jurisprudence.  Furthermore, her writings on federalism and tort reform should draw support from those favoring a more right-wing judiciary.

As such, Eid will likely trigger strong opposition from Senate Democrats.  They will likely argue that her judicial record shows an unwillingness to defend the rights of civil plaintiffs and criminal defendants, and will paint her as a clone of her mentor Justice Thomas.  For Senate Republicans, these same qualities will be argued to be a positive.  As Republicans still maintain a majority in the U.S. Senate (and as Democratic Colorado Senator Michael Bennet has returned his blue slip on Eid), there is little Democrats can do to stop her nomination.

As such, Eid is likely to bring a strong voice for limits on government power, and restrictions on tort liability to the Tenth Circuit.  Democrats can take some comfort from the fact that Eid’s departure will permit Democratic Governor John Hickenlooper to make another appointment to the Colorado Supreme Court, reshaping it in a more liberal direction.


[1] Colorado Judicial Branch, Biography of Justice Allison Eid, https://www.courts.state.co.us/Bio.cfm?Employee_ID=70.

[2] Press Release, University of Colorado Law School, Allison Eid is new Colorado Solicitor General (July 30, 2005) (on file at http://lawweb.colorado.edu/news/showArticle.jsp?id=91).  

[3] Alicia Caldwell, Colorado Trio Eyed for U.S. Appeals Post, The Denver Post, Jan. 10, 2006, http://www.denverpost.com/2006/01/10/colorado-trio-eyed-for-u-s-appeals-bench/.  

[4] AP, Owens Names Solicitor General to Supreme Court, Denver ABC 7, Feb. 15, 2006, http://www.thedenverchannel.com/news/owens-names-solicitor-general-to-supreme-court.

[5] Jill Colvin,Trump’s Supreme Court List Underscores Election’s Importance, The Associated Press, May 19, 2017, https://web.archive.org/web/20160519104509/http://hosted.ap.org/dynamic/stories/U/US_GOP_2016_TRUMP_SUPREME_COURT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-05-18-14-08-40.  

[6] Colorado Supreme Court 2008 General Election Results, http://data.denverpost.com/election/results/supreme-court/2008/.

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=allison+hartwell (last visited Sept. 18, 2017).

[9] See Sender v. Simon, 84 F.3d 1299 (10th Cir. 1996).

[10] See, e.g., Fleury v. IntraWest Winter Park Oper., 372 P.3d 349 (Colo. 2016) (finding that an in-bound avalanche was included among the “risks of skiing” for liability purposes).  

[11] See, e.g., Hesse v. McClintic, 176 P.3d 759 (Colo. 2008) (finding sufficient evidence to submit comparative negligence instruction to jury).  

[12] See, e.g., Burnett v. Colorado Dep’t of Nat. Res., 346 P.3d 1005 (Colo. 2016) (Eid, J., concurring) (finding that the plain text of the Colorado Governmental Immunity Act prevents tort relief from injury caused by tree limb).  

[13] S.W. v. Towers Boat Club, 315 P.3d 1257 (Colo. 2013) (Eid, J., dissenting).

[14] Bedor v. Johnson, 292 P.3d 924 (Colo. 2013).

[15] See id. at 931 (Eid, J., dissenting).

[16] In re People v. Roberson, 377 P.3d 1039, 1049 (Colo. 2016) (Coats, J., dissenting).  

[17] People v. Ramadon, 314 P.3d 836, 845 (Colo. 2013) (Eid, J., dissenting).

[18] See People v. Cox, 2017 Colo. LEXIS 88; People v. Fuerst, 302 P.3d 253 (Colo. 2013) (Hobbs, J., concurring in the judgment); People v. Arapu, 283 P.3d 680 (Colo. 2012); People v. McCarty, 229 P.3d 1041, 1046 (Colo. 2010) (Eid, J., dissenting). But see People v. Herrera, 357 P.3d 1227 (Colo. 2015) (affirming trial court suppression order).

[19] People v. Schutter, 249 P.3d 1123, 1126 (Colo. 2011) (Eid, J., dissenting).  

[20] See Burnett v. Colorado Dep’t of Nat. Res., 346 P.3d 1005 (Colo. 2016) (Eid, J., concurring).

[21] Granite State Ins. Co. v. Ken Caryl Ranch Master Assoc., 183 P.3d 563, 568 (Colo. 2008) (Eid, J., concurring).

[22] Air Wisconsin Airlines Corp. v. Hoeper, 320 P.3d 830 (Colo. 2012).  

[23] Id. at 842 (Eid, J., concurring in part and dissenting in part).

[24] Air Wisconsin Airlines Corp. v. Hoeper, 134 S.Ct. 852, 858 (2014). 

[25] See id. at 867 (Scalia, J., concurring in part and dissenting in part).

[26] State v. Pena-Rodriguez, 350 P.3d 287, 289 (Colo. 2015).  

[27] Id. at 293-94 (Marquez, J., dissenting).  

[28] Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017).  

[29] State v. Nelson, 362 P.3d 1070 (Colo. 2015).  

[30] Id. at 1079 (Hood, J., dissenting).

[31] Nelson v. Colorado, 137 S.Ct. 1249, 1254 (2017).

[32] Id. at 1263 (Thomas, J., dissenting).  

[33] Allison H. Eid, Federalism and Formalism, 11 Wm. & Mary Bill of Rts. J. 1191 (April 2003).

[34] Allison H. Eid, Judge White and the Exercise of Judicial Power: Justice White’s Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism, and Judicial Restraint, 74 U. Colo. L. Rev. 1629, 1634 (Fall 2003).

[35] Allison H. Eid, Constitutional Conflicts on Public Lands: The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241 (Fall 2004).

[36] Allison H. Eid, Pre-emption and the Federalism Five, 37 Rutgers L. J. 1, 38 (Fall 2005).

[37] Allison H. Eid, Symposium: Panel Four: Tort  Law in the Federal System: An Exchange on Constitutional and Policy Considerations, 31 Seton Hall L. Rev. 740 (2001).

[38] Allison Hartwell Eid, Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (Fall 1990).

[39] See id. at 1351.

Judge William Ray II – Nominee to the U.S. District Court for the Northern District of Georgia

Federal judges are often called upon to interpret laws and legislative history, and bring meaning to legislative ambiguities. So, it can be argued that the system benefits from judges with legislative experience.  As such, Judge William Ray, who has served as a legislator, a trial judge, and an appellate judge, brings a diverse set of experiences to the bench.

Background

William McCrary Ray II was born in Macon, GA in 1963 to a family of active Democrats (Ray’s uncle was U.S. Rep. Richard Ray).[1]  Ray’s father, a farmer, was tragically murdered in a dispute with neighbors when Ray was 13.[2]  Ray went on to the University of Georgia, graduating in 1985 with a Bachelor of Business degree, and obtaining a Masters in Business the next year.  Ray continued on to UGA Law School graduating cum laude in 1990.

After graduating, Ray joined the Lawrenceville law firm Andersen, Davidson & Tate as an Associate working in civil litigation and family law.  In 1995, he became a partner at the firm.

In 1996, Ray won election to the Georgia State Senate with 69% of the vote, representing the 48th Senate District.[3]  He served in the State Senate for six years, serving on the Judiciary, Special Judiciary, Rules, Appropriations, Natural Resources, and Transportation Committees.  During his tenure, Ray helped pass Heidi’s law, which tightened penalties for repeat DUI offenders.[4]  In an interview, Ray noted that his experience with tragedy from his father’s murder spurred a commitment to victim’s rights, and made him a “proponent of capital punishment.”[5]

In 2002, Ray was appointed by Democratic Governor Roy Barnes to serve on the Gwinnett County Superior Court.[6]  Ray served in that capacity until 2012, when Republican Governor Nathan Deal elevated Ray to the Georgia Court of Appeals.[7]  Ray currently serves as a judge on that court.

History of the Seat

The seat Ray has been nominated for opened on March 31, 2017, with Judge Harold Lloyd Murphy’s move to senior status.[8]  Ray was nominated for the vacancy on July 13, 2017.[9]

Jurisprudence – Trial Judge

Ray spent approximately ten years as a trial judge in Gwinnett County, and another five years as an appellate judge.  As a trial judge, Ray served as presiding judge of the Gwinnett County drug treatment court, a program he helped found that allows drug offenders to have their convictions stricken.[10]

In 2006, Ray was drawn into a controversy involving budget cutbacks for indigent representation.  In response to rapidly depleting funds, the Georgia public defender council cut payments to private attorneys in capital cases from $125 an hour to $95 an hour.[11]  In response, Ray ordered state officials into his courtroom and probed the state’s obligation to pay for indigent defense.[12]  Further, he ordered the chief of the public defender council to turn over payment information for another expensive death penalty case, directly conflicting with an order from Judge Hilton Fuller to keep that information secret.[13]  The controversy resulted in a temporary halt on all capital cases as the state funding system ran out of money.[14]

Among other cases, Ray presided over the initial motions in the trial of Lisa Ann Taylor, the “Mansion Madam” who allegedly ran a house of prostitution in an exclusive Atlanta community.[15]  He also presided over the guilty plea of basketball star Al-Farouq Aminu, who had shot a woman with a BB gun.[16]  Ray sentenced Aminu to three years of probation, allowing him to attend college while on probation.[17]

Jurisprudence – Court of Appeals

During his five years on the Georgia Court of Appeals, Ray has established a conservative record on criminal issues.  Notably, Ray has voted to affirm criminal convictions against both procedural[18] and substantive[19] challenges.  For example, on Fourth Amendment challenges, Ray has upheld denials of motions to suppress,[20] and reversed grants of motion to suppress based on police misconduct.[21]  In one case, the trial court found that officers did not have probable cause to conduct a blood test on a driver suspected of driving under the influence.  Ray wrote for a 4-3 majority in reversing the decision.[22]  In dissent, Judge M. Yvette Miller argued that the majority failed to apply the proper level of deference to factual findings made by the trial court.[23]

In another decision, Ray wrote for a 5-2 majority in holding that a warrant application to obtain images of child pornography was supported by probable cause.[24]  The Georgia Supreme Court unanimously reversed Ray’s decision in an opinion by Judge Harold Melton, finding that the affidavit supporting the warrant application was “rife with issues.”[25]

On civil matters, Ray’s record is more mixed.  While he has shown a willingness to rule against plaintiffs,[26] he has also, on occasion ruled in their favor.[27]  Overall, Ray’s civil record does not suggest an undue bias towards either party in civil matters.

Political Activity

As noted above, Ray served as a Republican State Senator in Georgia for six years.  His only contribution of record is from 1996, when he gave Republican Clinton M. Day $500.[28]

Overall Assessment

Ray is a judicial conservative.  As such, he is far from an ideal candidate for the federal bench, as far as Senate Democrats are concerned.  That being said, it is to be expected that a Republican Administration will nominate conservative judges.  While Ray’s record is conservative, there are no smoking guns in his record to rally opposition around.  As such, Ray should expect a relatively smooth confirmation process, and Northern Georgia residents should expect a conservative addition to the federal bench.


[1] Greg Land, Federal Bench Nominee William Ray Hailed for Fairness, ‘Farm Boy Work Ethic’, Daily Report, July 17, 2017, http://www.dailyreportonline.com/id=1202793213784/Federal-Bench-Nominee-William-Ray-Hailed-for-Fairness-FarmBoy-Work-Ethic?slreturn=20170809211213.

[2] Id.

[3] Lucy Soto, Special Section; Election ‘96: Georgia; Democrats Keep Control But GOP Gains, Atlanta Journal & Const., Nov. 6, 1996.

[4] See Land, supra n. 1.

[5] Doug Nurse, Legislator Spurred by Early Tragedy; Crime Victims Close to his Heart, Atlanta Journal & Const., Mar. 6, 1999.

[6] See Land, supra n. 1.

[7] Id.

[8] R. Robin McDonald, Approaching 90, Judge Harold Murphy to Take Senior Status, Daily Report, Jan. 6, 2017, http://www.dailyreportonline.com/id=1202776272180/Approaching-90-Judge-Harold-Murphy-To-Take-Senior-Status.

[9] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[10] George Chidi, Drug Offenders Get Second Chance, Atlanta Journal Const., Oct. 20, 2006.

[11] Bill Rankin, Lawyers for the Poor Get Pay Cut, Atlanta Journal Const., Dec. 2, 2006.

[12] George Chidi, Tight Budget Hits Capital Trials, Atlanta Journal Const., Dec. 6, 2006.

[13] Rhonda Cook, Nichols Case Stirs Judicial Standoff; One Judge Wants Financial Records that Another Sealed, Atlanta Journal Const., Feb. 27, 2007.

[14] Scott Freeman, Brian Nichols and Georgia’s Indigent Defense Crisis, Creative Loafing, Feb. 27, 2008, http://www.creativeloafing.com/news/article/13026778/brian-nichols-and-georgias-indigent-defense-crisis.

[15] George Chidi, Sex Advice from ‘Mansion Madam’, Atlanta Journal Const., Aug. 14, 2007.

[16] Curtis Bunn, Hoops Star to Plead Guilty; Aminu Likely to Receive Probation, Atlanta Journal Const., Aug. 7, 2008.

[17] Andria Simmons, Ex-Norcross Star Can Attend College While on Probation, Atlanta Journal Const., Aug. 8, 2008.

[18] See, e.g., Jackson v. State, 782 S.E.2d 691 (Ga. App. 2016) (affirming denial of motion to suppress); State v. Fedrick, 763 S.E.2d 739 (Ga. App. 2014) (rev’ing grant of motion to suppress); Talton v. State, 749 S.E.2d 18 (Ga. App. 2013) (D knowingly waived right to jury trial).

[19] See, e.g., Fitzpatrick v. State, 793 S.E.2d 446 (Ga. App. 2016); Pippen v. State, 791 S.E.2d 795 (Ga. App. 2016); State v. Reid, 770 S.E.2d 665 (Ga. App. 2015) (rev’d grant of new trial); Harris v. State, 767 S.E.2d 747 (Ga. App. 2014).

[20] See Jackson v. State, 782 S.E.2d 691 (Ga. App. 2016); Shirley v. State, 765 S.E.2d 491 (Ga. App. 2014). But see Nichols v. State, 783 S.E.2d 918 (Ga. App. 2016) (rev’ing denial of motion to suppress).

[21] See State v. Wallace, 791 S.E.2d 187 (Ga. App. 2016); State v. Hasson, 778 S.E.2d 15 (Ga. App. 2015); State v. Fedrick, 763 S.E.2d 739 (Ga. App. 2014). But see State v. Camp, 782 S.E.2d 819 (Ga. App. 2016) (affirming grant of motion to suppress).

[22] State v. Hughes, 750 S.E.2d 789 (Ga. App. 2013).

[23] See id. at 793.

[24] Shirley v. State, 765 S.E.2d 491 (Ga. App. 2014).

[25] Shirley v. State, 777 S.E.2d 444, 446 (Ga. 2015).

[26] See, e.g., I.A. Group, Ltd. Co. et al. v. RmNandco, Inc., 784 S.E.2d 823 (Ga. App. 2016) (rev’g judgment to plaintiff); Moore-Waters et al. v. Met-Test, LLC., 782 S.E.2d 848 (Ga. App. 2016) (rev’ing grant of default judgment to plaintiff); Martin et al. v. Hansen, 755 S.E.2d 892 (Ga. App. 2014) (rev’ing denial of summary judgment to defendant); Askew et al. v. Rogers, 755 S.E.2d 836 (Ga. App. 2014) (rev’ing grant of summary judgment to plaintiff); Security Real Estate Servs. Inc. v. First Bank of Dalton, 752 S.E.2d 127 (Ga. App. 2013) (rev’ing denial of summary judgment to defendant).

[27] See, e.g., Teston et al. v. Southcore Constr. Inc., 783 S.E.2d 921 (Ga. App. 2016) (rev’ing grant of default judgment to defendant); Gomez v. Innocent et al., 746 S.E.2d 645 (Ga. App. 2013) (rev’ing grant of summary judgment to defendant); Deberry v. Johnson et al., 747 S.E.2d 886 (Ga. App. 2013) (rev’ing grant of summary judgment to defendant).

[28] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=william+ray&cycle=&state=GA&zip=&employ=&cand= (last visited Sept. 10, 2017).  

New Judicial Nominations – Sept. 7, 2017

Today, President Donald Trump announced the nominations of three circuit court nominees and thirteen district court nominees. The nominees are as follows:

Judge R. Stan Baker – a federal magistrate judge on the U.S. District Court for the Southern District of Georgia, Baker has been tapped to fill a vacancy on the same district.

Jeffrey Uhlman Beaverstock – a partner in a Mobile law firm, Beaverstock has been nominated to fill a vacancy on the U.S. District Court for the Southern District of Alabama.

Ryan Wesley Bounds – a federal prosecutor and former clerk to conservative Judge Diarmund O’Scannlain, Bounds has been nominated to fill O’Scannlain’s Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.

Judge Elizabeth Branch – a judge on the Georgia Court of Appeals, Branch has been nominated to fill the Georgia seat vacated by Judge Frank Hull on the U.S. Court of Appeals for the Eleventh Circuit.

John W. Broomes – a partner in an Overland Park based law firm, Broomes has been tapped for a vacancy on the U.S. District Court for the District of Kansas.

Judge Walter David Counts III – a federal magistrate, Counts has been nominated to a fill a vacancy on the U.S. District Court for the Western District of Texas.  He had been nominated to the same court by President Obama but was not confirmed.

Rebecca Grady Jennings – a Louisville law firm partner, Jennings has been tapped for a vacancy on the U.S. District Court for the Western District of Kentucky.

Matthew Kacsmaryk – Deputy General Counsel to the First Liberty Institute, Kacsmaryk has been nominated for the U.S. District Court for the Northern District of Texas.

Gregory Katsas – a Deputy White House Counsel and former clerk to Justice Clarence Thomas, Katsas has been nominated to fill a vacancy left by Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit.

Emily Coody Marks – a Montgomery law firm partner, Marks has been nominated to the U.S. District Court for the Middle District of Alabama.

Jeff Mateer – the first Assistant Attorney General of Texas, Mateer has been nominated for the U.S. District Court for the Eastern District of Texas.

Judge Terry F. Moorer – a federal magistrate judge, Moorer’s nomination was announced for the U.S. District Court for the Middle District of Alabama in May (but never submitted).  Moorer has instead been nominated for the U.S. District Court for the Southern District of Alabama.

Matthew Petersen – a Commissioner on the Federal Election Commission, Petersen has been nominated for the U.S. District Court for the District of Columbia.

Fernando Rodriguez – field office director in the Dominican Republic for International Justice Mission, Rodriguez has been nominated for the U.S. District Court for the Southern District of Texas.

Karen Gren Scholer – a principal at a Dallas law firm, Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  She had previously been nominated to fill a vacancy on the U.S. District Court for the Eastern District of Texas by President Obama.

Brett Talley – a Deputy Assistant Attorney General in the Office of Legal Policy at the Department of Justice, Talley has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Alabama.

 

Donald Coggins – Nominee to the U.S. District Court for the District of South Carolina

The J. Waites Waring Judicial Center in Charleston, SC

When the 114th Congress adjourned, it left 59 Obama nominees unconfirmed.  Among his first batch of District Court nominees on May 8, 2017, President Trump renominated two names from that group: David Nye, and Scott Palk.  On August 3, 2017, Trump renominated a third: Donald C. Coggins Jr.

Background

Donald Cecil Coggins Jr. was born on July 17, 1959 in Spartanburg, SC.  Coggins attended Clemson University, graduating with a Bachelor of Arts degree in 1981.  He went on to the University of South Carolina School of Law, graduating in 1984.

After graduating, Coggins returned to Spartanburg, joining Cummings and Smith as an associate.  Two years later, Coggins was made partner in the firm, which was renamed Cummings, Smith and Coggins.

In 1993, Coggins became a partner in Smith and Coggins, Attorneys at Law.  After six years, Coggins founded the firm Harrison, White, Smith & Coggins, P.C. as a Shareholder.  He became the Managing Shareholder at the firm in 2010, and served in that capacity until 2013.  Coggins currently continues as a Shareholder there.

History of the Seat

Coggins has been nominated for a vacancy on the U.S. District Court for the District of South Carolina.  This seat was opened by Judge Joseph Fletcher Anderson’s move to senior status on November 16, 2014.  Coggins’ name was first floated for this vacancy in early 2015, when news broke that Sen. Lindsey Graham (R-SC) was urging the Obama Administration to nominate Coggins.[1]  Obama ultimately nominated Coggins and South Carolina Supreme Court Justice Donald Beatty to fill two vacancies on February 25, 2016.[2]

While Beatty did not get the support of Graham or Sen. Tim Scott (R-SC), Coggins did.[3]  Coggins received a hearing before the Senate Judiciary Committee on June 21, 2016, and was approved without objection on July 14.  However, Coggins’ nomination stalled on the floor due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.  Without floor action, it was returned unconfirmed on January 3, 2017.

Coggins was renominated on August 3, 2017 by President Trump, with the support of Graham and Scott.[4]

Legal Experience

Coggins has spent virtually his entire legal career in Spartanburg, practicing a primarily civil litigation practice focused on representing plaintiffs in personal injury, product liability, and professional negligence cases.  In these fields, Coggins has secured large awards for his clients.  In 2001, Coggins secured a $1.35 million verdict in a Family and Medical Leave Act case, a record at the time.[5]

In 2007, Coggins was hired by South Carolina Attorney General Henry McMaster (now the Governor) to represent the State in an Unfair Trade Practices Act case against a pharmaceutical company.[6]  After a two week trial, Coggins helped secure a landmark $327 million award,[7] although it was reduced to $124 million by the South Carolina Supreme Court.[8]

Additionally, in 2014, Coggins helped secure the largest medical malpractice award ever obtained in Upstate South Carolina.[9]  The $2 million verdict was the result of the doctor’s failure to adequately diagnose and treat the patient’s mesenteric ischemia (a medical condition in which the small intestine fails to get sufficient blood flow).[10]

In addition to his work as a litigator, Coggins also serves as a member of the South Carolina Commission on Lawyer Conduct.  In this capacity, Coggins has overseen formal charges of misconduct against South Carolina attorneys, including making recommendations to the South Carolina Supreme Court.

Political Activity

Coggins has a history of supporting candidates of both political parties, making his own political leanings hard to discern.  On one side, Coggins’ firm is Republican-leaning, and his candidacy was championed by Graham, a Republican.[11]  Additionally, Coggins has frequently supported Graham, including donating almost $15000.[12]  Coggins has also supported other Republicans, donating $5100 to Scott, $3000 to former Governor David Beasley, and $3200 to Rep. Trey Gowdy.[13]

On the other hand, Coggins has been a strong supporter of President Obama, volunteering on his behalf in the 2008 primary, and donating almost $7500 to his campaigns.[14]  Coggins has also donated to other Democrats, including Rep. Jim Clyburn, senate candidates Inez Tenenbaum and Vic Rawl, and house candidate Preston Brittain.[15]  Coggins also donated $1000 to the Democratic National Committee in 2008.[16]

Overall Assessment

Coggins is the first Trump nominee whose legal career has primarily been as a plaintiff’s attorney.  Coggins’ experience handling complex cases with large verdicts and complicated settlements will serve him well as a federal trial judge.  Furthermore, Coggins will benefit from his bipartisan history of support.  Given his nomination by Presidents Obama and Trump, as well as his support from Republicans, including Graham and Scott, and Democrats, including Rep. Jim Clyburn, Coggins should sail through the confirmation process.


[1] John Monk, Three Candidates Emerging for Two S.C. Federal Judgeships, The Herald, Jan. 2, 2015, http://www.heraldonline.com/news/local/article12319307.html.

[2] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (February 25, 2016) (on file at https://obamawhitehouse.archives.gov).  

[3] John Monk, Beatty’s Nomination to be a SC Federal Judge is Stalled, The Herald, July 24, 2016, http://www.heraldonline.com/news/local/article91640322.html.  

[4] Press Release, Sen. Lindsey Graham, Joint Statement from Senators Lindsey Graham and Tim Scott on Judicial Nominations (August 4, 2017) (on file at www.lgraham.senate.gov).

[5] Bellsey v. Betras Plastics, Inc. and Betras, No. 7:00-3882-13 (D.S.C. 2001) (Judge G. Ross Anderson).

[6] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[7] South Carolina ex rel. Wilson v. Ortho-McNeil-Janssen Pharms., Inc., No. 07-CP-42-1438, 2011 WL 2185861 (S.C. Com. Pl. June 3, 2011).

[8] State v. Ortho-McNeil-Janssen Pharms., Inc., 777 S.E.2d 176 (S.C. 2015), cert. denied, 136 S. Ct. 824 (2016).

[9] Easler v. Spartanburg Reg. Health Serv. Dist. Inc., No. 2011-CP-42-2840 (Spartanburg Cty. Ct. Com. Pl. 2015).

[10] See id.

[11] See Monk, supra n. 1.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

Thoughts on the Sept. 6th Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee.  Here are my preliminary thoughts on the proceedings, which can be watched here.  (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER:  These are just my opinions.  Reasonable observers of the hearing can obviously disagree on any of these points.

  1. Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism.  Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.
  2. Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee.  Over the course of the hearing, it was clear why.  Larsen was poised and comfortably conversed with senators on several legal issues.  She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence.  She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there.  As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation.  Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.
  3. Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.”  Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism.  For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law.  However, much of the posturing was undone by two key missteps.  First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution.  Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge?  Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF).  When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF.  She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group.  It was an unnecessarily defensive performance and undermined her careful answers until that point.
  4. Franken Remains the Minority’s Best Questioner – In the last “big” hearing,  Franken helped lead the Democrat’s charge against John Bush and Damien Schiff.  This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed.  Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.
  5. Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all.  This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees.  He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so.  Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions.  Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round.  At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.

“Chip” Campbell – Nominee to the U.S. District Court for the Middle District of Tennessee

As federal judges are often selected by home state senators, and senators tend to choose nominees they have a connection to, partners of the same law firm are occasionally nominated to the same court.  In 2013, for example, two partners at the California law firm, Munger, Tolles & Olson, were chosen to fill vacancies on the Ninth Circuit.  However, it is more unusual for two partners to be simultaneously nominated for judgeships in different states.  The midwestern law firm Frost, Brown, & Todd LLC. achieved this when Nashville partner William L. “Chip” Campbell was tapped for a judgeship a month after Lexington partner Claria Horn Boom.

Background

William Lynn Campbell, Jr., professionally known as Chip, was born in 1969 in Nashville, TN.  After getting a Bachelor of Science from the United States Naval Academy in 1991, Campbell joined the United States Marine Corps, serving for seven years.  In 1998, Campbell left the Marine Corps to attend the University of Alabama Law School.  Campbell served as Editor-in-Chief of the Alabama Law Review and graduated magna cum laude in 2001.

After graduating, Campbell joined the Birmingham office of Maynard, Cooper, & Gale, P.C.  In 2003, Campbell left Maynard, moving to Nashville, and joining Riley, Warnock, & Jacobsen, PLC. as an associate.  Campbell became a member at Riley Warnock in 2010.[1]

In 2011, Campbell moved to the Nashville Office of Frost, Brown, & Todd LLC. as a partner.  He currently practices in the firm’s business litigation practice.  He was nominated for a seat on the federal bench on July 13, 2017.

History of the Seat

Campbell has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Tennessee.  This vacancy opened on April 15, 2017, when Judge Kevin Sharp left the bench.  Sharp, an Obama appointee, was only 54, but resigned his judgeship based on his dissatisfaction with mandatory minimum sentencing laws, arguing that he could not continue to impose unjust sentences.[2]

For his part, Campbell expressed his interest in a district court appointment in November 2016, shortly after the election of President Trump.  From November 2016 to March 2017, Campbell communicated with the staff of Sens. Lamar Alexander and Bob Corker.  Campbell met with the White House Counsel’s Office on March 28, 2017.  His nomination was officially submitted to the Senate on July 13, 2017.[3]

Legal Experience

Campbell began his legal career in Alabama, litigating labor, tort, and employment cases.  Notably, Campbell was on the legal team defending a coal company against tort claims filed by the widow of a worker killed in a mining accident.[4]

After moving to Nashville to work at Riley Warnock, Campbell changed his focus to business litigation, representing corporations in contract, tort, intellectual property, and regulatory actions. He served as associate counsel in a copyright infringement suit against a karaoke company.[5]  He also successfully defended a check verification company against a Fair Credit Reporting Act lawsuit.[6]

In 2011, Campbell moved to Frost Brown Todd as a partner.  In that capacity, Campbell handled class actions, antitrust, and fraud claims. He also represented the City of Chattanooga in a lawsuit challenging the city’s telecommunications regulations.[7]

Scholarship

Since his student days, Campbell has analyzed statutes, policy and jurisprudence in scholarly articles.  As a law student at the University of Alabama, Campbell published a student note titled “Moving Against the Tide: An Analysis of Home School Regulation in Alabama.”[8]  In the note, Campbell analyzed the regulation of homeschooling through the lens of constitutional rights.  Specifically, Campbell concluded that, under Supreme Court, there is no fundamental constitutional right to an education, although the Supreme Court has recognized a parent’s fundamental right to direct their child’s education.[9]  Campbell went on to criticize Alabama’s disparate treatment of homeschooling depending on whether the home school program is affiliated with a church or not.[10]  He recommended that the state relax its certification standards for home school teachers, instead focusing on educational outcomes through student testing.[11]

As a young lawyer at Maynard, Campbell authored an article explaining Alabama statutes governing co-employee liability for workplace injuries.[12]  In the article, Campbell explained that Alabama treats co-employee liability extremely narrowly and that “co-employee claims are generally difficult for plaintiffs to win.”[13]

One unusual topic of Campbell’s more recent writings is drones.  Specifically, Campbell has written extensively on the potential use and regulation of commercial drones.[14]  In these articles, Campbell generally argues for the greater use of drones, noting their potential for medical and police uses.[15]  Campbell also dismisses privacy concerns raised due to the extensive use of drones, noting that there is no “reasonable expectation of privacy in areas that are visible from the air.”[16]

Campbell also maintains a Twitter account.  This account generally focuses on articles and commentary on drone usage and regulations.

Overall Assessment

Generally, district court nominees don’t draw opposition unless they have a history of activism, a controversial paper trail, or serious ethical issues.  Campbell has none of these.  His apolitical background and lack of a judicial paper trail should keep most critics off his back.  Campbell may draw some criticism for his writings on drone technology, but such criticism is unlikely to overcome his strong academic credentials and balanced legal experience.  Even the American Bar Association agrees, rating Campbell “Well Qualified” for a federal judgeship.


[1] The Alabama Lawyer, Department: About Members, Among Firms, 71 Ala. Law. 251 (May 2010).

[2] Stacey Barchender, Why Federal Judge Kevin Sharp Left the Bench in Nashville, Tennessean, Apr. 17, 2017, http://www.tennessean.com/story/news/2017/04/17/why-federal-judge-kevin-sharp-left-bench-nashville/100419782/.  

[3] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (on file at www.whitehouse.gov) (July 13, 2017).

[4] Ex Parte Walter Indus. Inc., 879 So.2d 547 (Ala. 2003).

[5] Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007).

[6] Holmes v. TeleCheck Intern. Inc., No. 3:05-0633 (M.D. Tenn.) (Judge Campbell).

[7] Zayo Group LLC. v. The City of Chattanooga, No. 1:16-cv-00466 (E.D. Tenn.) (Judge Reeves).

[8] William L. Campbell, Jr., Moving Against the Tide: An Analysis of Home School Regulation in Alabama, 52 Ala. L. Rev. 649 (Winter 2001).

[9] See id. at 652-54.

[10] See id. at 658-59.

[11] Id. at 672.

[12] William L. Campbell Jr., Kevin W. Patton, Alabama Code § 25-5-11: A Narrow Cause of Action Against Co-Employees, 64 Ala. Law. 38 (January 2003).  

[13] Id. at 47-48.

[14] See, e.g., Chip Campbell, What is All the Buzz About Drones, Linkedin Pulse, Jan. 29, 2016, https://www.linkedin.com/pulse/what-all-buzz-drones-chip-campbell?trk=mp-reader-card.

[15] See Chip Campbell, Where Can Drones Do Some Good (And Gain Community Acceptance)?, Linkedin Pulse, Feb. 16, 2016, https://www.linkedin.com/pulse/where-can-drones-do-some-good-gain-community-chip-campbell?trk=mp-reader-card.

[16] Chip Campbell, Does Drone Technology Present New Threats to Privacy, Linkedin Pulse, March 17, 2016, https://www.linkedin.com/pulse/does-drone-technology-present-new-threats-privacy-chip-campbell?trk=prof-post.