Judging the 2020 Contenders: The Senators

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at governors.  Today, we turn to senators.

Senators may not have the nominating ability that Governors do, but they still have two important ways of displaying their judicial philosophies.  The first and most obvious is through their votes: senators show their judicial leanings by which nominees they support and oppose.  The second, and perhaps even more important, is through the judges they recommend to the White House.  Depending on the Administration, senators have been allowed to recommend district (and sometimes circuit) judges for nomination.  How senators have exercised this power relates directly to how they will exercise power as an executive.  Today, we will look at the current and former senators who may run for president, and their records on these two points.

Joe Biden

Perhaps no other senator (with the possible exception of the late Sen. Ted Kennedy) has had the level of influence over the federal bench that Biden has.  As the senator from Delaware for thirty six years, Biden shepherded eight district judges onto the District of Delaware, only one of which, Judge Gregory Sleet, was during a Democratic Administration.  Biden also supported the appointments of Delaware judges to the Third Circuit during the Reagan, H.W. Bush, Clinton, and W. Bush Administrations.  The home-state judges Biden supported, regardless of Administration, have generally been judicial moderates.  From Judge Walter Stapleton to Judge Thomas Ambro, they have avoided controversy and have established themselves as well-respected across the political spectrum.

On the flip side, Biden has exercised his blue slip privileges on occasion.  Late in the Bush Administration, Biden blocked the nomination of then-U.S. Attorney Colm Connolly to the district court.  As a result, Connolly was not confirmed despite support from Sen. Tom Carper, another Democrat.  (Carper nonetheless sponsored Connolly for a judgeship during the Trump Administration, and he was duly confirmed).

However, Biden’s real impact has been on the Senate Judiciary Committee.  Biden served as Chair of the Committee from 1987 to 1995, during which time he oversaw a whopping seven Supreme Court nominations.  Biden oversaw the failure of Judge Robert Bork’s nomination to the Supreme Court, as well as the confirmations of Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, all of whom he supported.  Biden was also Chair of the Committee during the confirmation hearings for Justice Clarence Thomas.  While Biden did not support Thomas, he nonetheless attracted strong criticism for failing to adequately investigate allegations of harassment and impropriety raised against Thomas and for buckling to political pressure from Republicans.  Biden also supported the nominations of Justices John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia, while opposing Chief Justices William Rehnquist and John Roberts, and Justice Samuel Alito, who were all confirmed.

Cory Booker

Cory Booker has served in the Senate since his election in 2013 to replace the late Sen. Frank Lautenberg.  As such, even as the junior senator from New Jersey, Booker has had a significant influence on judicial nominations for the state.  Booker was particularly active in pushing the nomination of Julien Neals, a member of his cabinet when Booker served as mayor of Newark.  Neals, nominated by Obama in 2015, was blocked from confirmation by Senate Majority Leader Mitch McConnell.  Booker has been actively pushing the nomination of Neals with the Trump Administration.

During the Trump Administration, Booker has been one of the most vocal opponents of the President’s judicial nominees, using his perch on the Senate Judiciary Committee to grill nominees on racial bias in the criminal justice system.  Booker strongly opposed both Justices Gorsuch and Kavanaugh, and has opposed 13 of Trump’s district court judges, and twenty five appellate judges.  In fact, Booker has supported just five Trump appellate nominees: Judge Jay Richardson for the Fourth Circuit; Judges Michael Scudder and Amy St. Eve for the Seventh Circuit; Judge Ralph Erickson for the Eighth Circuit; and Judge Mark Bennett for the Ninth Circuit.

Sherrod Brown

Brown has served as the U.S. Senator from Ohio since 2006, when he defeated Sen. Mike DeWine (now the Governor).  Since that day, Brown has overseen and supported seven nominations to the district courts in Ohio.  Early in his tenure, Brown supported President George W. Bush’s nomination of Judge Sara Lioi to serve on the U.S. District Court for the Northern District of Ohio.  During the Obama and Trump Administrations, Brown has established a bipartisan commission on judicial nominations with Senators John Voinovich and Rob Portman respectively.  The commission produced three confirmations during the Obama Administration: Judge Timothy Black to the Southern District of Ohio; and Judges Benita Pearson and Jeffrey Helmick to the Northern District.  All three judges have established left-of-center records on the bench.  During the Trump Administration, Brown has supported Trump nominees Pamela Barker, Sarah Morrison, and Matthew McFarland, who all emerged from the bipartisan commission, but opposed Sixth Circuit nominees Eric Murphy and Chad Readler, who did not.

Throughout his tenure, Brown supported almost all the judicial nominees that Presidents Bush and Obama put out, voting against just one, Judge Leslie Southwick for the U.S. Court of Appeals for the Fifth Circuit.  However, Brown has opposed 37 out of 59 Trump nominees brought up on a roll call vote, including both of Trump’s Supreme Court picks and 25 out of 30 appellate picks, supporting only Judges Richardson, Scudder, St. Eve, Erickson, and Bennett.

Hillary Clinton

Has there been a politician whose name is as ubiquitous as Hillary Clinton? Amid her resume of various political positions, it is easy to forget that Clinton served in the U.S. Senate, from 2000 to 2008, to be precise, when she represented New York.  During that period of time, Clinton generally deferred on nominations issues to Sen. Chuck Schumer, who negotiated judgeships with the Bush Administration.  Nevertheless, Clinton was not hesitant to vote against Bush nominees, voting against both Justices Roberts and Alito, for example.  Clinton also voted against Judges D. Brooks Smith, Dennis Shedd, Paul Cassell, Jay Bybee, Timothy Tymkovich, Jeffrey Sutton, Michael Chertoff, Deborah Cook, Victor Wolski, J. Leon Holmes, Diane Sykes, Priscilla Owen, Janice Rogers Brown, Thomas Griffith, William Pryor, Brett Kavanaugh, Jerome Holmes, and Leslie Southwick during her senate tenure.

Kirsten Gillibrand

New York Senator Kirsten Gillibrand had developed a relatively moderate record in the U.S. House before she was tapped to replace then-Senator Hillary Clinton in 2009.  Since that point, Gillibrand has developed a strongly liberal record on most issues, including judicial nominations.  Gillibrand has been a frequent opponent of Trump judicial nominees, for example, voting to reject all but four of his appellate picks (Scudder, St. Eve, Erickson, and Bennett) and, overall, rejecting 43 out of 59 nominees who received roll call votes (Interesingly, Gillibrand even opposed New York 2d Cir. nominee Richard Sullivan, who she nonetheless returned a blue slip on, and who fellow N.Y. Senator Chuck Schumer supported).

Relating to home-state nominees, Gillibrand has generally deferred to Senator Chuck Schumer (now the Minority Leader), but has chosen a few nominees of her own to recommend during her tenure.  During the Obama Administration, Gillibrand recommended the following district court judges: Judges Joan Azrack and LeShann DeArcy Hall on the Eastern District of New York; Judges Ronnie Abrams, Valerie Caproni and Analisa Torres on the Southern District of New York.  All of Gillibrand’s recommendations to the bench have been women and have been confirmed with near-unanimous support.  The lone exception is Caproni who attracted criticism from both the left and the right for her tenure as General Counsel at the FBI (Caproni even attracted the opposition of Sen. Jeff Merkley, a Democrat).

Kamala Harris

Elected to the U.S. Senate in 2016 from California, Harris has the distinction of herself being considered a top candidate for the Supreme Court.  Harris currently serves on the Senate Judiciary Committee and has voted on 85 Trump judicial appointees in her two years in the Senate.  Of the 59 nominees who received roll call votes, Harris opposed 38 on the floor.  She has been a particularly strong opponent of Trump’s appellate nominees, supporting just five of them: Judge Ralph Erickson; Michael Scudder; Judge Amy St. Eve; Mark Bennett; and Julius Richardson.  She has also been a vigorous questioner of Trump nominees, winning notice for her pointed and often precise questioning.

On the nomination front, Harris has been part of negotiations with the Trump Administration over a package of California nominees to the Ninth Circuit and district courts, although she has taken a smaller role than senior senator Dianne Feinstein, who is also the Ranking Member on the Senate Judiciary Committee.  A prospective deal over the nominees fell apart in late 2018 and the Trump Administration nominated three conservative candidates to the Ninth Circuit.  With a new White House Counsel coming in, Harris and Feinstein are still trying to negotiate a package.

Additionally, before she was a senator, Harris served as Attorney General of California from 2011 to 2017.  During this time, Harris served on the Commission of Judicial Appointments, which reviews all gubernatorial appointments to the California Supreme Court and the courts of appeal.  During Harris’ tenure, the Commission approved a number of left-leaning judges to California courts, including Justices Goodwin Liu, Mariano-Florentino Cuellar, and Leondra Krueger.

John Kerry

A former Democratic presidential candidate and Secretary of State under President Obama, Kerry also served as U.S. Senator from Massachusetts from 1984 to 2013.  During his tenure, Kerry was primarily known for his expertise in international relations, as his senior senator, Sen. Ted Kennedy, primarily handled the judiciary issues for the state.  It was only after Kennedy’s death in 2009 that Kerry became the primary home-state senator on judiciary issues.  In that capacity, Kerry approved the selection of Denise Casper to serve on the U.S. District Court in Massachusetts (Casper had originally been selected by a Committee established by Kennedy).  Kerry also negotiated a nominations deal with Republican Sen. Scott Brown to fill two vacancies.  The deal would involve the nominations of U.S. Magistrate Judge Timothy Hillman, a Democrat, and Massachusetts Superior Court Judge Jeffrey Kinder, a Republican.  While Hillman was promptly nominated and confirmed, the Obama Administration refused to nominate Kinder, who eventually withdrew from consideration after Brown was defeated by Sen. Elizabeth Warren.

During his long tenure in the Senate, Kerry had the opportunity to vote on judges appointed by five different presidents (three Republican and two Democratic).  Kerry voted for most of them.  Nonetheless, Kerry voted against the Supreme Court nominations of Chief Justice William Rehnquist, Robert Bork, David Souter, Clarence Thomas, John Roberts, and Samuel Alito, while supporting Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Amy Klobuchar

Amy Klobuchar, who has served as U.S. Senator for Minnesota since 2006, has one of the more “moderate” records on judicial nominations among the current batch of Democratic senators.  Klobuchar has backed ten appellate nominees and all but eight district court picks.  In addition to the five that attracted the most Democratic votes, Klobuchar backed Judges Kevin Newsom and Elizabeth Branch to the 11th Circuit, Judge Joel Carson to the 10th Circuit, and Judge Kurt Engelhardt to the 5th Circuit.  Most notably, Klobuchar also supported Judge David Stras’ nomination to the 8th Circuit, a decision in which she was opposed by fellow Minnesota senators Al Franken and Tina Smith (Stras has since developed a strongly conservative record on the federal bench).

Regarding the nominations covering her home state, Klobuchar has shepherded four judicial nominations through the Senate.  Early in the Obama Administration, Klobuchar sponsored then-magistrate judge Susan Nelson to confirmation.  Later, she was able to leverage her relationships with Republican senators to secure the confirmation of Wilhemina Wright to the Minnesota District Court, even as many Republicans lined up against her, claiming that she had made negative comments about President Reagan.  During the Trump Administration, Klobuchar was able to shepherd through the unanimous confirmations of two moderate nominees, Judges Eric Tostrud (proposed by Rep. Eric Paulsen, a Republican), and Nancy Brasel (who Klobuchar herself pushed).

Jeff Merkley

Since his defeat of Sen. Gordon Smith in 2008, Merkley has been one of the most liberal voices in the U.S. Senate, including on judicial nominations.  During the Obama Administration, Merkley was one of the strongest supporters of Senate Majority Leader Harry Reid’s decision to end the filibuster on judicial nominees, a stance that conservatives brought up when Merkley led a 14-hour filibuster of Neil Gorsuch’s nomination in 2017.  However, Merkley’s outspokenness hasn’t led to the appointment of young liberals to the federal bench in Oregon.  During the Obama Administration, Merkley supported the renomination of Judge Marco Hernandez, a state judge originally tapped by President Bush, to fill a district court vacancy.  For two other vacancies, Merkley supported male judges in their 50s, Judges Michael Simon and Michael McShane.  During the Trump Administration, Merkley has supported Trump’s nomination of Karen Immergut, a former prosecutor who worked with Ken Starr in the 1990s.

On the flip side, Merkley successfully helped kill the 9th Circuit nomination of Ryan Bounds, who advanced through Committee over the opposition of Merkley and Sen. Ron Wyden.  Additionally, Merkley has strongly opposed most Trump judicial nominees, voting against 41 out of 59 on a roll call vote.

Bernie Sanders

One of two Independents in the Senate, Sanders has served as Senator from Vermont since 2006, and made a previous presidential run in 2016.  While Sanders’ view on judges did not get much airtime during 2016, he has since established himself as a frequent critic of Trump judges.  Sanders supported just 15 out of 59 judges on a roll call vote, one of the lowest support scores of any senator.  Sanders was the only senator to oppose the nomination of Judge Claria Horn Boom, an otherwise uncontroversial nominee in Kentucky.

During his entire tenure in the Senate, Sanders has served as a junior senator, and, as such, judge decisions have been deferred to senior senator Patrick Leahy, who also chaired the Judiciary Committee between 2007 and 2014.  Leahy selected Judges Christina Reiss and Geoffrey Crawford to serve on the Vermont federal bench, and Sanders supported both.

Elizabeth Warren

The first serious candidate to announce her run for the Presidency, Warren is one of the most liberal members of the senate, and has stuck out strongly liberal positions throughout her tenure, including on judges.  She has supported the fewest number of Trump appellate judges of any Democrat in the Senate, voting for just three, Scudder, St. Eve, and Bennett.  In total, Warren supported just 14 out of 59 Trump judges on a roll call vote, the lowest support score of any senator.

Almost immediately after her 2012 election to the Senate, Warren became the senior senator for Massachusetts, as Sen. John Kerry became Secretary of State.  In this role, Warren led the effort to select Massachusetts judicial nominations for the Obama Administration.  Warren supervised the confirmations of four district court nominees, Judges Mark Mastroianni, Indira Talwani, Leo Sorokin, and Allison Boroughs, all of whom were mainstream liberals in their early 50s (Warren supported the nomination of the similarly credentialed Inga Bernstein in the 114th Congress but she was not confirmed).  Warren did not push for the appointment of young attorneys, liberal academics, or candidates who sought to reshape the law from the progressive side, instead focusing on lawyers with 30+ years of practice.  Warren’s tenure also coincided with the confirmation of Judge David Barron to the First Circuit.  While Barron is more typical of the young liberal judges that many progressives wanted Obama to nominate, Barron’s nomination came from the Administration, not from Warren.

Judging the 2020 Contenders: The Governors

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.  

We start our conversation by looking at the governors in contention for the 2020 Democratic nomination.

Perhaps no one has a more analogous record that can be applied to a President’s than a state governor’s.  In most states, governors make appointments to the state bench.  As such, a governor has tremendous influence over the direction of the state judiciary, should they choose to exercise it.  As such, let us look at the presidential contenders with gubernatorial experience and look at their record on judges.  (As always, the opinions are my own and can be disagreed with by reasonable people)

Steve Bullock

Bullock is the Governor of Montana, where he has served since 2013, and before which, he served as Attorney General of Montana from 2009 to 2013.  In Montana, Governors can fill interim judicial vacancies until the next general election.  Governors must select their picks from a list sent by a nominating commission, and the picks must be confirmed by the Montana State Senate.  Throughout Bullock’s tenure as Governor, the State Senate was controlled by the Republican Party.

In his tenure, Bullock has appointed two justices to the Montana Supreme Court, both of whom have been confirmed by wide bipartisan margins.  In 2014, Bullock appointed Jim Shea, then a workers’ compensation judge, to fill a vacancy opened by Justice Brian Morris’ elevation to the federal bench.  Shea was confirmed by a 41-9 vote by the Montana State Senate and won election to a full-term in 2016 unopposed.  In 2018, Bullock appointed district judge Ingrid Gustafson to replace Justice Mike Wheat.  Gustafson, who was considered for the federal bench in 2013, was confirmed and re-elected unopposed.  Both Shea and Gustafson are considered relatively mainstream judges.  Both justices were in the majority of a 5-2 decision that struck down a Montana program that permitted school vouchers to go to religious schools.  In 2017, Shea wrote a 4-3 opinion rejecting an argument that a sentence of 110 years in prison without the possibility of parole for a crime committed shortly before turning 18 was unconstitutional (Gustafson was not on the court at the time).  From this, one could extrapolate that Bullock would continue to appoint moderate liberals to the federal bench, rather than selecting bomb-throwers or liberal lions.

Andrew Cuomo

Andrew Cuomo currently serves as the Governor of New York, where he has led the state since 2011.  As Governor, Cuomo has had a huge impact on the judiciary, particularly on the New York Court of Appeals (despite its name, the highest court in the state).  Cuomo has named the seven judges currently serving on the court, as well as Judge Sheila Abdus-Salam, who served on the court until her untimely death in 2017.  Cuomo’s selections have been fairly diverse, with four of the eight being women, and four being judges of color.  Cuomo also appointed the first openly LGBTQ judge on the court, Judge Paul Feinman.  In fact, only one of Cuomo’s eight appointments has been a straight white male: Judge Eugene Fahey.

However, on the political front, Cuomo has undoubtedly been cautious.  Despite representing one of the most liberal states in the country, Cuomo has largely chosen moderate judges with relatively noncontroversial records, including selecting one Republican, Judge Michael Garcia.  On the flip side, Cuomo declined to reappoint Judge Victoria Graffeo, a Republican appointed by Gov. George Pataki, despite the Judge’s relatively mainstream jurisprudence and bipartisan support.  Furthermore, Cuomo’s appointees are relatively old, especially given New York’s mandatory judicial retirement at the age of 70.  The average age of a Cuomo appointee has been 57 at the time of appointment (compared to approximately 50 among Trump appointees).  Based on these appointments, look for a President Cuomo to prize diversity and experience over appointing young liberals.

John Hickenlooper

John Hickenlooper served as Governor of Colorado from 2011 to 2019.  The Colorado Governorship is particularly powerful when it comes to judicial appointments, as such appointments do not need to be confirmed by a legislative body (although recommendations do come from a judicial nominating commission).

As far as his appointments go, Hickenlooper’s record is mixed at best.  Hickenlooper has tapped five justices to the Colorado Supreme Court, having had an outsized impact on the court.  However, those appointments have not cemented a progressive majority on the court, largely because Hickenlooper has forfeited opportunities and named conservative candidates.  In his very first appointment to the Colorado Supreme Court, Hickenlooper appointed a Republican, Brian Boatwright, sidestepping two more liberal candidates, to replace the left-leaning Justice Alex Martinez.  Similarly, Hickenlooper’s last appointment to the court replaced the center-left Chief Justice Nancy Rice with Justice Carlos Samour, again choosing a former registered Republican over two more liberal candidates.  Interestingly, in making the selection, Hickenlooper felt the need to address criticism that Samour was “too conservative,” noting:

“[Samour is] a judge committed 100 percent to fairness and fidelity of the law.”

On the flip side, Hickenlooper had the opportunity to replace the strongly conservative Justice Allison Eid (tapped by Trump to the federal bench), and chose law professor Melissa Hart, considered the youngest and most liberal of the three candidates presented to him.  Nevertheless, looking at his record overall, Hickenlooper seems unmotivated by the ideology of his appointments.

Jay Inslee

Jay Inslee currently serves as Governor of Washington state, where he has led an ambitiously liberal agenda.  As Governor, Inslee can fill judicial vacancies that open midterm, and Inslee has filled one vacancy on the Washington Supreme Court, as well as 12 on the Courts of Appeal.  Inslee’s sole appointee to the Washington Supreme Court, Justice Mary Yu, was the first LGBTQ-American, the first Latina, and the first Asian American on the Washington Supreme Court.  Yu had also achieved the distinction of being the first judge to preside over same-sex marriage ceremonies in Washington state.  Yu has been a firmly liberal voice on the court, joining opinions striking down the death penalty, holding the state liable for the welfare of children in foster care, and finding that juveniles cannot be sentenced to life in prison without parole.  As such, Inslee, more than any other governor, can claim to have pushed his state bench in a progressive direction.

Terry McAuliffe

Former DNC Chair Terry McAuliffe served as Governor of Virginia from 2013 to 2017.  Unlike in most states, Virginia gives the state legislature the power to appoint judges, with governors having the power only to fill interim vacancies.  Nevertheless, McAuliffe’s tenure coincided with a brutal fight with legislative Republicans over one such interim appointment.

In 2015, Justice Leroy Millette announced that he would move to senior status, opening up his seat.  After consulting with Delegate Dave Albo, a Northern Virginia Republican, McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court as an interim candidate.  However, Republican leaders in the Assembly argued that they were cut out of the nomination process, and refused to process Roush at all, instead choosing their own candidate, Court of Appeals Judge Rossie Alston.  For his part, McAuliffe cited Albo’s endorsement of Roush and argued that Republican leaders were rejecting a qualified candidate.  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.  With neither candidate elected after the interim appointment expired, McAuliffe renominated Roush to another interim term.  Meanwhile, Watkins retired and was replaced by Sen. Glen Sturtevant, a fellow Republican.  However, Republican plans to confirm Alston were again stymied by Sturtevant’s opposition and the reneging of support by two African American Democrats.  Meanwhile, McAuliffe rejected a compromise in which Roush would be appointed to the Virginia Court of Appeals to replace Alston.

Ultimately, realizing that Alston lacked majority support in the Senate, Republicans replaced him with Court of Appeals Judge Steven McCullough, who was easily confirmed. The entire saga is hardly a display of McAuliffe’s mastery of judicial politics.  Given McAuliffe’s ultimate defeat in the fight, progressives may wonder if he can be trusted to maneuver judicial nominations from the White House.

Judicial Nominations 2018 – Year in Review

2018 is at an end.  One of the most active years in judicial nominations in recent memory ended with a whimper, as a singular blockade by outgoing Sen. Jeff Flake delayed all judicial confirmations.  As we look forward to the new Congress in 2019, it’s worth looking back at the previous year to see how the judicial landscape has evolved.

Nominations and Confirmations

This year, the Senate confirmed one supreme court justice, 18 appellate judges and 47 district court judges.  Adding in the one supreme court, 12 appellate, and six district court judges confirmed in 2017, the 115th Congress has racked up a total of 85 Article III judicial confirmations.  In comparison, President Obama saw 60 confirmations in his first Congress, President Bush saw 100, and President Clinton saw 126.

While an overall look at confirmations doesn’t look very impressive, where this Administration stands out is in appellate confirmations.  So far, Trump has seen 30 appellate confirmations.  In comparison, Clinton and Obama took their entire first terms to have 30 appellate judges confirmed, and President Bush took until December of his third year to reach his 30th confirmation.  Plus, with another 15 appellate vacancies still pending, Trump looks likely to cross 40 or even 50 appellate confirmations before the end of his first term.  Particularly impressively, only two of the current pending vacancies are still waiting on nominees, one of which opened just last month.

Failed Nominations

That being said, the Trump Administration has also seen an unusually large number of failed nominees.  In the past two years, the Trump Administration has seen seven nominees withdrawn or stalled due to lack of majority support: Ninth Circuit nominee Ryan Bounds; district nominees Brett Talley, Jeff Mateer, Matthew Petersen, Thomas Farr; and Court of Federal Claims nominees Damien Schiff and Steven Schwartz (I’m not including nominees who had home state senatorial trouble such as Jon Katchen or Gordon Giempietro).  This is particularly remarkable because the Trump Administration was facing a Senate controlled by his own party and unencumbered by the filibuster.

Another way to look at it is that the Trump Administration essentially faced at least 2 negative votes on each of the above nominees.  In comparison, throughout the entire Obama Administration, only 15 nominees drew even a single negative vote from Democrats, and only six drew 2 or more: appellate nominees Cornelia Pillard and Pamela Harris and district judges Gerald McHugh, Edward Smith, Victor Bolden, and Joseph Leeson (Smith and Leeson drew opposition from the left).  The entire Bush Administration saw just six nominees draw same party opposition: Justice Sam Alito; appellate judges Roger Gregory, Priscilla Owen, and Helene White; and district judges J. Leon Holmes and Janet Neff (three of those judges were Democrats).  The Clinton Administration saw just one nominee attract same party opposition: Judge Brian Stewart (a Republican named upon the insistence of Sen. Orrin Hatch).  In other words, in two years, the Trump Administration has drawn at least two Republican no votes on more nominees than the Clinton and Bush Administrations combined and more than the Obama Administration drew in its entire tenure.

A Vacancy Crisis?

One of the most forgotten parts of the judicial confirmation news cycle is the sheer number of judicial vacancies currently pending.  As of December 31, 2018, 144 of the 890 Article I and Article III judgeships are vacant, approximately one in six.  In comparison, approximately 10% of judgeships were vacant in 2016 when the Washington Post reported on the alarming judicial vacancy rate.  As such, objectively, our federal courts are overstretched.

That being said, not all judicial vacancies are created equal.  The Trump Administration and the Republican Senate have focused their attention on filling vacancies on the court of appeals, frequently replacing judges who have not yet left their seats.  However, the court of appeals are not where the judges are most needed.  Rather, it is trial level courts that are stretched particularly thin.  For example, five out of twelve judgeships on the Northern District of Texas are currently vacant with only one nominee pending.  Similarly, the Central District of California currently has a quarter of its 28 judgeships open, while the Southern District of California is expecting its fifth vacancy (out of 13 judgeships) to open next year.  The situation in the District of North Dakota is even more dire, with the only judge on the court scheduled to retire next year, and no nominees pending to either of the two pending vacancies.

Perhaps nowhere is the vacancy crisis more apparent than in the Court of Federal Claims.  This specialized court has a limited docket and non-lifetime appointments, an ideal venue for bipartisan agreements on nominees.  However, the Court currently has less than 1/3 occupancy, with only five out of sixteen judgeships filled.  Much of the blame for this can go to Sen. Tom Cotton, who singlehandedly blocked five uncontroversial Obama nominees to this court during the 114th Congress.  However, even since that point, the court hasn’t seen a single confirmation even as vacancies continue to pile up.  Additionally, rather than choosing uncontroversial nominees, the Trump Administration has chosen lawyers with political backgrounds or little experience practicing before the specialized court, leaving little room for bipartisan agreement.

As such, despite remarkable success on the confirmation front, the Trump Administration has barely made a dent in reducing judicial vacancies as a whole.

Demographics of Confirmed Nominees

Let’s take a look at demographics of the 85 confirmed Trump appointees.

Age

I noted last year that, despite press reporting on the supposed youth of Trump nominees, they are largely similar in age to those of previous presidents.  With a larger pool of nominees to look at now, that conclusion largely holds up.  The average birth year of Trump’s judicial nominees is 1967, making their average age 51 years, fairly comparable to the average birth years of the previous few presidents.  Additionally, Trump’s appellate judges, also alleged to be significantly younger than those of previous presidents, come out to an average age of 50, hardly unusual.

The oldest Trump appointee tapped for the federal bench is Judge Mark Bennett, who was nominated and confirmed to the 9th Circuit at age 65.  The youngest is Judge Holly Lou Teeter on the U.S. District Court for the District of Kansas, who is just 39 years old.

Race

As noted earlier, the vast majority of Trump’s appointees are white.  Only seven of the 85 judges confirmed this Congress were non-white: five Asian; one Hispanic; and one African American judge respectively.

Gender

This blog has previously criticized the gender diversity (or lack thereof) of Trump appointees.  Unfortunately, the situation has not improved.  Only 20 of the 85 confirmed judges are female.  The numbers are even worse among appellate nominees, where only 6 out of 30 judges are female.  Both numbers are lower than those seen in the last three presidents.

What is particularly alarming is that the gender ratio on the federal judiciary, which significantly narrowed under President Obama, is now backsliding.  Over the last two years, 29 female federal judges have left active status, meaning that there are now nine fewer female judges on the federal bench than there were when Trump took office.

Looking Ahead

When the Senate recessed, it left 73 judicial nominees unconfirmed.  Most, if not all, of these nominees will be renominated in January, giving the Senate a significant number of nominees to work through.  As such, many of the nomination fights that were deferred from this year will take place next year, this time, with Republicans having a slightly wider majority on judge votes.  As such, it is likely that many controversial picks who were not confirmed this year will be approved next year, including Matthew Kacsmaryk and Howard Nielson.

However, with incoming Senate Judiciary Committee Chairman Lindsay Graham announcing his intent to continue the blue slip policy of his predecessor, the White House cannot push through its picks for district court vacancies.  As such, achieving a meaningful reduction in the number of judicial vacancies will require cooperation between the White House and senators of both parties to select judges everyone can get behind.  We can only hope that such cooperation occurs and produces mainstream judges committed to the rule of law.

Judge John Milton Younge – Nominee for the U.S. District Court for the Eastern District of Pennsylvania

When Judge John Milton Younge was nominated to the federal bench by President Obama, Senate Judiciary Committee Chairman Chuck Grassley killed the nomination by refusing to give it a final Committee vote.  With Younge renominated by President Trump, Grassley appears to have dropped his opposition and scheduled the vote, making it significantly more likely that Younge will be confirmed.

Background

A native of Philadelphia, John Milton Younge was born there in 1955.  He attended Boston University, graduating in 1977 and then getting a J.D. from Howard University School of Law in 1981.[1]

After graduation, Younge worked as a solo practitioner for three years and then joined the Philadelphia Redevelopment Authority as a Staff Attorney.[2]  He moved up through the ranks of the organization, becoming General Counsel in 1990 and Deputy Executive Director in 1991.[3]

In 1996, Younge ran for and won a seat on the Pennsylvania Court of Common Pleas as a Democrat.[4]  He has served in that position ever since.  Younge made two unsuccessful runs for the Superior Court, losing elections in 2007 and 2009 to Republican candidates.

History of the Seat

Younge has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on November 18, 2013, when Judge Mary McLaughlin moved to senior status.  Younge, who had applied for a judgeship with Pennsylvania Sens. Bob Casey and Pat Toomey back in 2011, was nominated on July 30, 2015.[5]  Younge received a hearing before the Senate Judiciary Committee on December 9, 2015, but never received a vote to move to the floor.  In blocking Younge, Chairman Chuck Grassley cited Younge seeking the endorsement of Planned Parenthood during his judicial campaigns.[6]  As such, Younge was never confirmed and the seat remained open throughout the Obama Presidency.

In early 2017, Casey and Toomey asked the White House to renominate Younge for the position.[7]  Younge was initially interviewed by the White House in April 2017, but then sat in limbo for a year before the vetting process began.[8]  President Trump announced Younge’s nomination to the vacancy on July 17, 2018.

Jurisprudence

From 1996, Younge has served as a Judge on the Philadelphia County Court of Common Pleas, which are the primary trial courts in Pennsylvania.  As a Judge, Younge presided over cases in civil and criminal matters, as well as domestic relations, juvenile, and family law matters.  Over the last twenty two years, Younge has presided over approximately 2300 cases.[9]

Among his more notable cases, Younge presided over a settlement between victims of gun violence and WalMart in relation to charges that WalMart negligently sold ammunition.[10]  Younge also presided over the settlement of claims arising from the sex abuse of Sean McIlmail by a priest at the Philadelphia Archdiocese.[11]

Over his twenty two years on the bench, Younge’s rulings have been reversed by higher courts twenty times.  Of these reversals, the most significant is in Zenak v. Police Athletic League City of Philadelphia.[12]  In that case, Younge allowed whistleblower claims brought by a police officer to proceed in a jury action against the City.[13]  The Pennsylvania Commonwealth Court reversed the decision, finding that the claims needed to statutorily be decided by a judge, not a jury.[14]

Political Activity

Younge has been involved with the Philadelphia Democratic Party since 1984, when he served on the Ward Executive Committee for the Party.[15]  Younge won election to the bench as a Democrat and ran twice unsuccessfully as a Democrat for the Pennsylvania Superior Court.

Overall Assessment

While the Trump Administration has renominated a fair number of Obama judicial nominees, Younge is a particularly unusual choice for renomination.  This is because, unlike the other picks renominated, Younge was actively opposed by Judiciary Committee Chairman Chuck Grassley.  As such, Younge could potentially not be considered a mainstream choice and could attract strong opposition from Republican senators.

However, even in the (slightly) more Republican senate of 2019, it is still likely that Younge gets confirmed.  Assuming all Democrats support Younge, he only needs three Republican votes to be confirmed.  One of those votes will undoubtedly come from Sen. Toomey, who pushed for his renomination.  Sens. Collins and Murkowski will likely provide the other two.  In addition, there are probably a fair number of Republicans who do not wish to see a Trump nominee fail on their watch.

Nevertheless, Younge will likely attract more opposition than most other Trump nominees, and does face a non-zero chance of being blocked by conservative opposition.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 65.

[6] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominees Fail to Advance, The Daily Signal, Jan. 29, 2016, https://www.dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[7] See Younge, supra n. 1 at 65.

[8] Id.

[9] See Younge, supra n. 1 at 32.

[10] Peter Hall, Wal-Mart, Victims’ Families Settle, The Morning Call, Apr. 7, 2017.  

[11] Craig R. McCoy, In Largest Reported Payout Yet, Philadelphia Archdiocese Settles Abuse Suit, June 25, 2018.

[12] 132 A.3d 541 (Pa. Cmnwlth 2016).

[13] See id. 

[14] Id.

[15] See Younge, supra n. 1 at 58.

Judge J.P. Boulee – Nominee for the U.S. District Court for the Northern District of Georgia

Jones Day has generally been referred to as President Trump’s favorite law firm, given that they represented his campaign and many veterans have found spots in the Administration.  Additionally, a lot of Trump judicial nominees have Jones Day DNA.  J.P. Boulee, a state court judge tapped for the federal bench in Georgia is also a Jones Day alum.

Background

Jean-Paul Boulee was born in Kankakee, IL in 1971.  Boulee graduated magna cum laude from Washington & Lee University with a Bachelor of Arts degree, and continued on to UGA Law School graduating cum laude in 1996.[1]

After graduating, Boulee clerked for Judge Orinda Evans on the U.S. District Court for the Northern District of Georgia.  He then became a Judge Advocate with the U.S. Army, working for four years.

In 2001, Boulee joined the Atlanta Office of Jones Day as an Associate.[2]  He became a Partner in 2006.[3]  In 2015, Boulee was appointed by Republican Governor Nathan Deal to serve on the DeKalb County Superior Court to replace Judge Cynthia Becker.[4]  Boulee currently serves as a judge on that court.

In 2018, Boulee applied to fill vacancies on the Georgia Supreme Court created by Justice Britt Grant’s elevation to the Eleventh Circuit and Justice Harris Hines’ retirement.[5]  However, he withdrew his name upon nomination to the federal bench, and Sarah Hawkins Warren and Charlie Bethel were selected instead.

History of the Seat

The seat Boulee has been nominated for opened on July 1, 2018, with Judge William Duffey’s retirement.  In January 2018, Boulee applied for the vacancy with a Screening Committee set up by Georgia senators.  After interviewing with the Committee and the senators, Boulee was recommended to the White House in late March.  Boulee was nominated by the White House on August 28, 2018.

Legal Career

Boulee spent approximately fourteen years at the Atlanta office of Jones Day.  At the firm, Boulee focused on corporate, commercial litigation, and white collar defense.  Boulee also served in the JAG Corps of the U.S. Army, handling court-martials, both as a prosecutor and as a defense counsel.  As part of this latter duty, Boulee helped acquit a single mother accused of burning her child with a curling iron by explaining that the mother (who could not afford her heating bills) was using the iron under a blanket to help keep her son warm.[6]

Notably, while at Jones Day, Boulee represented Wilbur Ross (now the Secretary of Commerce) in a class action and derivative shareholder lawsuit challenging the merger of the International Textile Group and Safety Components International.[7]  Boulee worked on case strategy and the development of defense expert testimony for the case, which ultimately settled on the eve of trial.[8]

Jurisprudence

Boulee has served on the DeKalb County Superior Court since 2015, during which time, he presided over thirty-three jury trials, including twenty capital felonies.[9]  Notably, Boulee presided over the case of DeKalb County police officer Robert Olsen, who fatally shot Anthony Hill, an Afghanistan war veteran, who was “unarmed, unclothed and under severe mental duress.”[10]  Hill, who was African American, suffered from bipolar disorder, was nude and had his hands up when he was shot.[11]  While the officer argued that he had fired in self-defense, after Hill did not comply with instructions not to advance, Boulee declined to dismiss the murder charges, noting that the officer’s accounts had been inconsistent and that there was no evidence suggesting that Hill posed a threat of death or serious bodily harm to the officer.[12]

In his three years on the bench, Boulee has been reversed twice.[14]  In the first, Boulee was reversed for failing to grant a motion for a new trial to a defendant whose attorney had failed to request a relevant jury charge (Boulee found that the defendant had failed to show that the error had prejudiced him).[15]  In the second, Boulee was reversed for holding that a plaintiff’s voluntary dismissal without prejudice in response to a procedural defect barred the subsequent filing under the doctrine of res judicata.[16]

Political Activity

Boulee has been active with the Republican Party, maintaining membership in the Georgia Republican Party, the Republican National Lawyers Association, and other Republican groups until his ascension to the bench.[17]

Overall Assessment

Boulee’s record, both as an attorney and on the bench, reads as that of a moderate conservative.  However, it does not suggest that he is judicial activist or an extremist. To his credit, on a politically charged and sensitive case involving a police shooting, Boulee rejected the officer’s plea of self-defense where the evidence failed to support it.

As such, Boulee is unlikely to be a nominee that draws much partisan fire and will likely be confirmed early next year.


[1] Sen. Comm. on the Judiciary, 115th Cong., J.P. Boulee: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] See Mark Niesse, 2 DeKalb Judges Appointed By Gov. Deal, Atlanta Journal Constitution, May 12, 2015, https://www.ajc.com/news/local-govt–politics/dekalb-judges-appointed-gov-deal/FtMIOvcgZT0TXqpk6M0KVL/.  

[5] Nick Watson, Judge Deal Withdraws Name From Ga. Supreme Court Consideration, The Times, Gainesville Ga., Aug. 2, 2018.

[6] United States v. Boelter (1st Jud. Cir.).

[7] In re Int’l Textile Grp., Inc., Inc. Merger Litig., C.A. No. 2009-CP-23-3346 (S.C. Ct. Common Pleas). 

[8] See Boulee, supra n.1 at 45.

[9] Id. at 19-20.

[10] Christian Boone, AJC Digging Deeper Police Shooting; Case Shows Challenge of Prosecuting Police, Atlanta Journal-Constitution, May 18, 2018.

[11] See id.

[12] See Christian Boone, AJC Continuing Coverage Police Shooting; Ex-Cop Will Stand Trial For Shooting Unarmed Veteran, Aug. 17, 2018.

[13] See id. at 793.

[14] See Burns v. State, 803 S.E.2d 79 (Ga. Ct. App. 2017); Wentz v. Emory Healthcare, Inc., No. A18A0908, 2018 WL 4403345 (Ga. Ct. App. Sept. 17, 2018).

[15] Burns v. State, 803 S.E.2d 79 (Ga. Ct. App. 2017).

[16] Wentz v. Emory Healthcare, Inc., No. A18A0908, 2018 WL 4403345 (Ga. Ct. App. Sept. 17, 2018).

[17] See Boulee, supra n. 1 at 38.

Judge Bridget Bade – Nominee to the U.S. Court of Appeals for the Ninth Circuit

A federal magistrate judge for the District of Arizona, Bade was selected to serve on the Ninth Circuit after the White House rejected the top candidate suggested by Arizona senators and two candidates the White House considered never made it to nomination.  As a “compromise” candidate, Bade is likely to see a smooth confirmation.

Background

An Arizona native, Bade was born Bridget Ann Shelton in Phoenix in 1965.  Bade received a B.A. summa cum laude from Arizona State University in 1987 and a J.D. from the Sandra Day O’Connor College of Law at Arizona State University in 1990.[1]  After graduating from law school, Bade clerked for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit and then joined the Department of Justice in the Environmental Torts Litigation Section of the Civil Division.[2]

In 1995, Bade returned to Arizona to be a Shareholder at Beshears Wallwork Bellamy in Phoenix (the firm would later merge with Steptoe and Johnson).[3]  Eleven years later, she moved to become a federal prosecutor with the U.S. Attorney’s Office for the District of Arizona.[4]

In 2012, Chief Judge Roslyn Silver selected Bade to be a U.S. Magistrate Judge on the U.S. District Court for the District of Arizona.  Bade serves on that court currently.

History of the Seat

Bade has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on October 11, 2016 when Judge Barry Silverman moved to senior status.  With the vacancy opening three weeks before the 2016 Presidential election, President Obama made no nomination to fill the vacancy.

In April 2017, Arizona senators John McCain and Jeff Flake, both Republicans, recommended Assistant U.S. Attorney Dominic Lanza to fill the vacancy, alongside Bade and Arizona Supreme Court Justice Ann Scott Timmer as secondary choices.[5]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[6]

The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on former U.S. Attorney Paul Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[7]  Instead, Lanza was nominated and confirmed to a district court seat.

As for the Ninth Circuit vacancy, the White House vetted but declined to nominate Langhofer, as well as their next choice, DOJ Attorney (and White House Counsel alum) James Burnham.[8]  Finally, in April 2018, over a year after her name was originally sent to the White House, Bade was interviewed to fill the vacancy.[9]  She was nominated on August 27, 2018.

Political Activity

Bade has a fairly limited political history, having hosted a political reception for Mike Bailey, a Republican candidate for Maricopa County Attorney in 2004.[10]  Additionally, Bade gave a $250 contribution to Sen. Jon Kyl, a Republican, in 2006.[11]

Unlike most of Trump’s appellate nominees, Bade does not appear to be a member of the Federalist Society for Law and Policy.[12]

Legal Experience

Before joining the bench, Bade worked both in private practice and as a government attorney.  In this role, Bade handled primarily civil and appellate law.  Over the course of her career, Bade has tried three bench trials in federal court and two state court jury trials.[13]  Early in her career, Bade was part of a legal team defending the United States against a class action alleging that leaks from a defense facility had contaminated their groundwater.[14]

Notably, Bade handled two catastrophic tort suits against the U.S. Border Patrol, involving injuries suffered from passengers in vehicles crossing the border as they attempted to evade Border Patrol agents.[15]  Bade was able to successfully settle both cases and received a commendation from the Border Patrol from her work on the matters.

Jurisprudence

Bade has spent the last six years serving as U.S. Magistrate Judge in the District of Arizona.  In this role, Bade presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues.  In her six years, Bade has presided over three bench trials and one jury trial.[16]  The lone jury trial that Bade has presided over involved a personal injury suit arising from an automobile accident.[17]

Notably, Bade ruled that an Arizona Supreme Court rule that required attorneys seeking admission in Arizona to have reciprocal admission for Arizona attorneys was valid under the Dormant Commerce Clause and the First Amendment.[18]

In her time as a judge, Bade has had her reports and recommendations rejected by district judges in six cases.[19]  In an additional six cases, Bade’s reports and recommendations have been partially rejected by district judges.[20]  Furthermore, in four cases, Bade’s rulings were reversed on appeal.[21]

Overall Assessment

Bade may not have been the Administration’s first choice for the Ninth Circuit, but she may nonetheless prove to be the right one.  As a (relatively) older nominee with judicial experience, Bade is unlikely to attract the lightning rod of opposition that Langhofer or Burnham could have.  In fact, had it not been for her home-state senator’s blockade on judicial confirmations, it is likely that Bade would have been confirmed before the end of the year.

That being said, Bade may still ultimately draw negative votes in both committee and on the floor as her hearing was held over a recess, with no Democrats present.  Despite that factor, however, Bade is likely to be confirmed early next year (assuming that Senator-elect Kyrsten Sinema raises no objections).


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

[2] Id. at 2.

[3] Id.

[4] Id.

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

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

[7] See id.

[8] Betsy Woodruff, Alleged Mueller Witness James Burnham Is On Trump’s Judicial Wish List, Daily Beast, Oct. 8, 2017, https://www.thedailybeast.com/alleged-mueller-witness-james-burnham-is-on-trumps-judicial-wish-list.  

[9] See Bade, supra n. 1 at 64.

[10] See id. at 44-45.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=bridget+bade&cycle=&state=&zip=&employ=&cand= (last visited Nov. 15, 2018).  

[12] See Bade, supra n. 1 at 4-6 (listing her professional affiliations).

[13] See id. at 47.

[14] See Bates v. Tenco Services, Inc., et al., CV 87-1313-SB (D.S.C.).

[15] Castillejos v. United States, CV 08-1645-DKD (D. Ariz.); Lopez-Sauceda v. United States, CV 07-2267-DGC (D. Ariz.).

[16] See Bade, supra n.1 at 23.

[17] Valejo v. Grietl, et al., Case No. CV-13-01687-PHX-BSB (D. Ariz.).

[18] Nat’l Assoc. for the Advancement of Multijurisdictional Practice v. Berch, 973 F. Supp. 2d 1082 (D. Ariz. 2013), aff’d, 773 F.3d 1037 (9th Cir. 2014), cert. denied, 135 S. Ct. 2374 (2015).

[19] Pouncey v. Maricopa Cnty. Sheriff’s Off., No. CV-17-723-PHX-JAT (BSB) (D. Ariz. Sept. 11, 2017); Dominguez-Rojas v. United States, No. CV-16-2179-PHX-SRB (BSB), (D. Ariz. Apr. 25, 2017); Brinkman v. Ryan, 2016 WL 7474014 (D. Ariz. Dec. 27, 2016); Grant v. United States, 2016 WL 6327762 (D. Ariz. Oct. 31, 2016); Muktadir v. Donahue, No. CV-15-2009-PHX-ROS (BSB), 2017 WL 4349390 (D. Ariz. Mar. 31, 2016); Gibson v. Sternes, No. CV-14-8156-PHX-DLR (BSB) (D. Ariz. May 1, 2015).  

[20] Amaral v. Ryan, No. CV-16-594-PHX-JAT (BSB), 2017 WL 6463052 (D. Ariz. Dec. 19, 2017); Flowers v. O’Neil, No. CV-15-2670-PHX-JAT (BSB), 2017 WL 6276367 (D. Ariz. Dec. 11, 2017); Hiland v. Ryan, No. CV-13-8110-PHX-PGR (BSB), 2017 WL 3953945 (D. Ariz. June 29, 2015); Bosquez v. Ryan, No. CV-13-1714-PHX-PGR (BSB), (D. Ariz. Mar. 10, 2015); Equal Employment Opportunity Comm’n v. Recession Proof, No. CV-11-1355-PHX-BSB, 2013 WL 6327994 (D. Ariz. Dec. 5, 2013); Olmos v. Ryan, No. CV-11-344-PHX-GMS (BSB)(D. Ariz. June 24, 2013).

[21] Velasco v. United States, No. CV-15-1389-PHX-NVW (BSB), 2018 WL 947667 (9th Cir. Feb. 5, 2018; Colter v. Berryhill, 685 F. App’x 616 (9th Cir. 2017); Miller v. Parties, No. CV-16-1427-PHX-DGC (BSB), 2017 WL 6210796 (9th Cir. July 27, 2017); Baxla v. Colvin, 671 F. App’x 477 (9th Cir. 2016)

Judge Thomas Barber – Nominee for the U.S. District Court for the Middle District of Florida

A well-respected state court judge in Florida, Judge Thomas Barber is a fairly uncontroversial choice for the federal bench.

Background

Thomas Patrick Barber was born on December 1, 1966 in Pittsburgh, Pennsylvania.  Barber graduated from the University of Florida in 1989 and from the University of Pennsylvania Law School in 1992.[1]  After graduating, Barber joined the Tampa office of Carlton Fields P.A. as an Associate.

In 1997, Barber became a state prosecutor at the State’s Attorney’s Office, and, after two years, became an Assistant Statewide Prosecutor with the Florida Attorney General’s Office.[2]  In 2000, Barber moved back to Carlton Fields, becoming a Partner in 2002.[3]

In 2004, Barber was appointed to be a County Court Judge for the Thirteenth Judicial Circuit.[4]  He was elevated to be a Circuit Judge in 2008.  He still holds the judgeship.

History of the Seat

Barber has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 29, 2017, when Judge James Whittemore moved to senior status.

Barber was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio.[5]  Barber was formally nominated on May 7, 2018.

Legal Experience

Barber has spent his entire pre-bench career either at the firm of Carlton Fields or as a state prosecutor.  Over the course of his career, Barber has tried approximately seventy cases, including approximately twenty jury trials.[6]

Among the highlights of his career, Barber helped prosecute the leaders of a theft ring that stole baby formula from Florida drug stores for resale in Texas.[7]  The case, which ended with a 76-month prison sentence for the ringleader, revealed links between the operation and the funding for the 1993 terrorist attacks at the World Trade Center.[8]  In other matters, Barber represented a whistleblower who uncovered numerous improprieties at the Florida Department of Health & Rehabilitative Services[9] and represented a family in supporting an elderly patient’s right not to receive skin graft procedures in accordance with her living will.[10]

Judicial Experience

Barber served as a County Judge in Florida from 2004 to 2008 and has served as a Circuit Judge since 2008.  In this role, Barber handles civil cases involving more than $15000 and felony prosecutions.  Over the course of his career, Barber has handled approximately 700 cases.[11]  Among his more prominent cases, Barber ruled that the new Florida “stand your ground” law could not apply to cases currently pending when the law passed.[12]

Over the course of his judicial career, Barber has been reversed approximately thirteen times.  For example, Barber was reversed in two cases for granting motions to dismiss on behalf of criminal defendants.[13]

In one notable case, Barber granted a motion to suppress evidence, finding that the warrant was based on information based on an officer’s nonconsensual entry into a backyard.[14]  The Florida Court of Appeals for the Second District reversed, finding that the affidavit supporting the warrant still met the probable cause requirement without the officer’s personal observations.[15]

Overall Assessment

Looking at Barber’s record overall, senators are unlikely to find his nomination controversial.  His judicial record reflects a relatively low rate of reversal and does not suggest a bias towards either prosecutors and defendants.

However, Barber was among a group of nominees who received his hearing during the October recess, when Democrats were not present.  As such, unless Barber is given a second hearing, he may get some votes against him from Democrats who are protesting their lack of input in the confirmation process.  Barber may also receive questions regarding his ruling limiting the scope of Florida’s “stand your ground” law and for his work representing an elderly woman’s “right to die.”

Nevertheless, Barber faces a strong likelihood of a bipartisan support next year, and will likely be confirmed in due course.

 


[1] Sen. Comm. on the Judiciary, 114th Cong., Thomas P. Barber: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 46.

[6] See id. at 36.

[7] William R. Levesque, 3 Receive Probation in Baby Formula Theft Ring, St. Petersburg Times, Aug. 25, 1999.

[8] See Barber, supra n. 1 at 37.

[9] See Irven v. Dep’t of Health & Rehab. Servs., Case No. GC-G-95-2652 (Fla. Cir. Ct. 1997).

[10] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[11] See Barber, supra n. 1 at 14. 

[12] State v. Smith, 16-CF-007477 (Fla. Cir. Ct. 2017).

[13] See State v. Ramirez, 198 So.3d 52 (Fla. App. 2d. 2015); State v. Codore, 59 So.3d 1200 (Fla. App. 2d. 2011).

[14] State v. Rodriguez, 56 So. 3d 848 (Fla. Ct. App. 2d. 2011).

[15] See id.