Unconfirmed: Fred Gray

Judicial confirmation is a business.  Over the last thirty years, a cottage industry of interest groups, nonprofits, and lobbying agencies have formed to support and oppose judicial candidates.  Behind the rhetoric on both sides, it is sometimes easy to forget that nominees are people: people who are frequently forgotten once their nominations are blocked or defeated.   “Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.  On this Martin Luther King Day, where better to start this series than with one of King’s fellow civil rights leaders, whose rejection for the federal bench was laced with allegations of racism and prejudice: Fred Gray.

When Jimmy Carter was elected Governor of Georgia in 1970, Fred Gray was already one of the most famous civil rights attorneys in the nation.  A native Alabamian, Gray was born in Montgomery in 1930, and grew up in a segregated city.  While attending an all-black school, Gray worked as a “boy preacher”, ministering to interracial crowds throughout his youth.[1]  After graduating from the Alabama State College for Negroes in 1951, Gray found himself barred from admission at an Alabama law school due to his race.  Nevertheless, Gray attended Case Western Reserve School of Law in Ohio, getting a J.D. in 1954, and returning to Montgomery shortly thereafter to fight segregation.

Back in Montgomery, Gray represented Rosa Parks and the Rev. Martin Luther King Jr. in litigation stemming from the Montgomery Bus Boycott in 1955, as well as serving as lead counsel in Browder v. Gayle, which desegregated city buses nationwide.[2]  Gray also represented King in his tax evasion case, securing an acquittal from an all-white jury.[3]  Gray also successfully argued that Alabama State students who were expelled for participating in student sit-ins had their due-process rights violated, and successfully filed to protect marchers seeking to march from Selma to Montgomery in 1965.[4]

Furthermore, Gray also argued on behalf of African Americans at the Supreme Court in Gomillion v. Lightfoot.[5]  Among his other accomplishments, Gray was the leading attorney in successfully desegregating the University of Alabama and Auburn University, despite the opposition of politicians including Gov. George Wallace.[6]  In one of his most notable cases, Gray represented the African American victims of the Tuskegee Syphilis Study.[7]  Finally, in 1970, Gray was the first African American elected to the Alabama legislature, alongside Thomas Reed.[8]

When Carter was elected president in 1976, he and Attorney General Griffin Bell met with Coretta Scott King and assured her of their commitment to place qualified African American judges on the federal bench.[9]  In 1979, Gray was one of five candidates considered by Carter and Bell for the U.S. Court of Appeals for the Fifth Circuit.[10]  Despite his commitment to King, and Gray’s strong backing from Alabama African American groups, Bell declined to recommend King for the seat, ranking him fifth out of the five candidates being considered.[11]  The nomination and the seat instead went to the candidate ranked fourth, a white lawyer named Robert Vance.[12]

Instead, in 1979, Gray was recommended by Alabama Senators Howell Heflin and Donald Stewart (both Democrats) for a seat on the U.S. District Court for the Middle District of Alabama.[13]  However, despite the recommendation, the Carter Administration sat on Gray’s nomination for several months, allegedly due to Bell’s opposition.[14]  It took the personal intervention of Alabama African American power broker Joe Reed to break the impasse and allow Gray to be nominated officially in January 1980.[15]

Unfortunately for Gray, more obstacles stood ahead.  Citing Gray’s alleged misconduct on a bond issue as Tuskegee City Attorney, the American Bar Association (ABA) rated Gray “unqualified” for a federal judgeship.[16]  Additionally, Sen. Edward Kennedy, Chairman of the Senate Judiciary Committee, was challenging Carter in the Democratic Presidential Primary and believed that Gray’s nomination was intended to “buy” black votes in the Alabama Democratic primary.[17]  This gave him little incentive to disregard the ABA rating and move ahead on Gray’s nomination.

In response to the ABA rating, the National Bar Association, which is predominantly African American, stepped in to rate Gray and fellow black nominee U.W. Clemon, rating them “very well qualified.”[18]  In May 1980, Gray finally came before the Senate Judiciary Committee, sitting through a marathon 12-hour hearing.[19]  At the hearing, Gray’s supporters, including Clarence Mitchell from the Leadership Conference on Civil Rights, argued that the ABA’s opposition to the nomination was tinged by racism.[20]  In response, the ABA, represented by San Francisco attorney Robert D. Raven, fought back, noting:

“Do you think we want to find black judges unqualified?  Do you think we’re fools?”[21]

Ultimately, the hearing did not result in further action on Gray’s nomination.  In August 1980, Heflin withdrew his support for Gray.[22]  Facing certain defeat, Gray withdrew his nomination.[23]  In Gray’s place, Carter nominated an African American attorney in private practice in Montgomery, Myron Thompson.[24]  Despite Thompson being only thirty-three years old, he received a “qualified” rating from the ABA and was confirmed on September 26, 1980.[25]

Looking back on Gray’s short-lived judicial nomination, it is difficult to take race out of the equation.  Even if one accepts that the ABA’s rating was not based on Gray’s race (and there were many, even in 1980, who did not), it is hard to accept the conclusion that Gray, given his distinguished career, was unqualified for the federal bench where a thirty three year old attorney was not.  Nevertheless, while Gray was not able to take the bench, he broke barriers nonetheless.  In 2001, Gray became the first black president of the Alabama Bar and continues to be a civil rights leader today.[26]  Ultimately, Gray remaining unconfirmed in no way diminishes his significant legal achievements or his stature in the legal community.


[1] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

[2] Sheldon Goldman, Picking Federal Judges 266 (Yale University Press 1997).

[3] See Key, supra n.1.

[4] See id.

[5] 364 U.S. 339.

[6] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

[7] See id.

[8] See id.

[9] Sheldon Goldman, Picking Federal Judges 266 (Yale University Press 1997).

[10] See id. at 272.

[11] See id.

[12] Id.

[14] See id.

[16] See id.

[17] See id.

[18] See McFadden, supra n.13.

[19] See Babcock, supra n.11.

[20] See id.

[21] See id.

[22] Sheldon Goldman, Picking Federal Judges 267 (Yale University Press 1997).

[23] See id.

[24] See id.

[25] See id.

[26] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

Barry Ashe – Nominee for the U.S. District Court for the Eastern District of Louisiana

A member of the conservative Federalist Society, Barry Ashe is President Trump’s first nominee to the New Orleans based Eastern District of Louisiana.

Background

Barry Weldon Ashe was born in 1956 in New Orleans, LA.  Ashe attended Tulane University, graduating summa cum laude in 1978.[1]  Ashe then joined the U.S. Navy, serving for three years.  In 1981, Ashe left the Navy to join Tulane University Law School, graduating in 1984 magna cum laude.

After graduation, Ashe clerked for Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit.[2]  After completing his clerkship with King, Ashe joined the New Orleans office of Stone Pigman Walther Wittmann LLC as an Associate.  Ashe became a Member at the firm in 1991 and serves in that capacity today.

Ashe has served on the Executive Committee of the New Orleans Chapter of the Federalist Society since 2006.

History of the Seat

Ashe has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Ivan Lemelle’s move to senior status on June 29, 2015.  On February 4, 2016, Obama nominated federal public defender Claude Kelly to fill the vacancy.[3]  Kelly, a Republican, had the support of Louisiana Senators David Vitter and Bill Cassidy.[4]

Kelly received a hearing before the Senate Judiciary Committee on May 18, 2016, and was approved without objection on June 16.  However, Kelly’s nomination never received a floor vote due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.

Shortly after the election of President Donald Trump, Ashe reached out to Cassidy and Louisiana Senator John Kennedy (who replaced Vitter) to express his interest in a federal judgeship.[5]  In 2017, Kennedy recommended Ashe to the White House for the vacancy.[6]

After interviews with the White House Counsel’s Office and the Department of Justice, Ashe was officially nominated on September 28, 2017.[7]

Legal Experience

Ashe has spent his entire legal career at the firm of Stone Pigman Walther Wittmann LLC.  At the firm, Ashe primarily works in commercial and appellate litigation representing financial institutions, pharmaceutical companies, and oil, gas, & chemical industries.[8]

In one of his most notable cases, Ashe represented the Tangipahoa Parish Board of Education in a suit defending an evolution disclaimer adopted by the Board.[9]  The disclaimer, required to be read to students before presenting evolution, declared that the teaching of the scientific theory of evolution in class was not meant as an endorsement and should not be taken to dissuade or influence the Biblical view of creation.[10]  The disclaimer was struck down by both Judge Marcel Livaudais on the Eastern District of Louisiana and the Fifth Circuit as violating the Establishment Clause of the First Amendment.[11]

In another notable case, Ashe argued on behalf of the Louisiana Attorney Discipline Board in favor of the constitutionality of restrictions on attorney advertising.[12]  While the Fifth Circuit upheld many of the challenged rules, it struck down restrictions on portraying judges or juries in advertisements and restrictions on the font size and speed of disclaimers.[13]

Writings

In 2000, Ashe authored an article titled “Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere.”[14]  In the article, Ashe argues that “the Fifth Circuit is waging a war against religion in the public sphere.”[15]  Looking at the Fifth Circuit’s decisions in five areas: public funding of parochial education; prayer at high school football games; disclaimers involving evolution; “clergy in schools” counseling program; use of school buildings for religious activities, Ashe concludes that the Fifth Circuit’s ruling in favor of a separation of church and state “evinces the court’s hostility towards religion.”[16]

Political Activity

Ashe has been a frequent donor to Louisiana Republicans, including Vitter, Cassidy, Kennedy, Rep. Steve Scalise, and former Governor Bobby Jindal.[17]  In contrast, Ashe has only donated to one Democrat: Public Service Commissioner Foster Campbell.[18]

Overall Assessment

Members of both parties will likely agree that Ashe, who has over thirty years of legal experience, is professionally qualified to serve as a trial judge.  They may differ however based on his ideology and willingness to follow precedent.

Specifically, Ashe will likely be questioned as to whether he continues to maintain that the Fifth Circuit is waging a “war on religion.”  Furthermore, he is likely to be asked if he can continue to follow Fifth Circuit precedent that he disagrees with (as he will be bound to do as a district court judge).  If Ashe is able to sufficiently answer those concerns, he will likely be confirmed easily.


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

[2] See id. at 2.

[3] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (February 4, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615.

[5] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 30.

[6] Tyler Bridges, 42-Parish Area of Western Louisiana Suffers From Vacant Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.  

[7] Press Release, White House, President Donald J. Trump Announces Eighth Wave of Judicial Candidates (September 28, 2017) (on file at www.whitehouse.gov/the-press-office).  

[8] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 15.

[9] See Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999).

[10] Id. at 341.

[11] Id. at 348.

[12] See Public Citizen, Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011).

[13] See id.

[14] Barry W. Ashe, Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere, 46 Loy. L. Rev. 973 (Winter 2000).

[15] Id. at 976.

[16] Id. at 1027.

[18] Id.

Judge Kurt Engelhardt – Nominee for the U.S. Court of Appeals for the Fifth Circuit

When Kurt Engelhardt was tapped for the federal bench in 2001, the young conservative looked poised for a swift elevation to the Fifth Circuit, and potentially even further.  Unfortunately, no Louisiana vacancy arose during the Bush Presidency and the election of Barack Obama foreclosed further opportunities.  With the election of Donald Trump, Engelhardt is getting an opportunity for elevation sixteen years after his initial court appointment.

Background

Kurt Damian Engelhardt was born in New Orleans on April 21, 1960.  Engelhardt attended the American Academy of Dramatic Arts and the University of New Orleans before graduating from Louisiana State University in 1982.  After graduating, Engelhardt joined Louisiana State University Law School, getting a J.D. in 1985.

After graduating, Engelhardt completed a two-year clerkship with Judge Charles Grisbaum on the Louisiana Fifth Circuit Court of Appeal, and then joined the Metairie office of Little & Metzger, APLC.  In 1992, Engelhardt joined Hailey, McNamara, Hall, Larman, & Papale, L.L.P. as an Associate.  In 1998, Engelhardt became a Partner at the firm.

On September 4, 2001, Engelhardt, then only 41, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Eastern District of Louisiana vacated by Judge Morey Sear.  Engelhardt’s nomination was championed by then-U.S. Representative David Vitter, who was a close friend.[1]  Engelhardt was confirmed unanimously by the Senate on December 11, 2001.  He became Chief Judge for the Eastern District in 2015 and serves in that capacity today.

History of the Seat

Engelhardt has been nominated for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on with Judge Edith Brown Clement’s announcement of her intent to take senior status upon confirmation of her successor.  Due to the nature of Clement’s announcement, the vacancy will not open until Engelhardt is confirmed.

In February and March 2017, Engelhardt conducted meetings with all the members of Louisiana’s congressional delegation other than Democratic Representative Cedric Richmond.[2]  In May 2017, Engelhardt interviewed with a judicial selection committee set up by Sen. Bill Cassidy (R-LA).[3]  In June 2017, Engelhardt interviewed with the White House Counsel’s Office, and was nominated on October 5, 2017.

Political Activity

Engelhardt was active in the Louisiana Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as Vice President of the Jefferson Parish Young Republicans.[4]  Engelhardt was particularly active in Vitter’s campaign serving as Chairman of his state legislative campaign committee and as Treasurer during Vitter’s congressional bids.[5]  Engelhardt has also donated to Vitter’s campaign, including a $1000 a few months before Engelhardt was nominated to the federal bench.[6]

Legal Career

After his clerkship, Engelhardt’s initial position was with Little & Metzger, APLC, where he worked in commercial litigation, handling contracts, business litigation, and bankruptcy.[7]  Among the cases he handled there, Engelhardt represented plaintiffs in a contract dispute who alleged material misrepresentations during the execution of the purchase contract.[8]

In 1992, Engelhardt joined the Hailey McNamara law firm.  There, Engelhardt continued a focus on commercial litigation, representing insurance companies, federal contractors, and shipyards.  While Engelhardt initially practiced only in the Eastern District of Louisiana, his practice eventually grew to envelop state court matters as well.[9]

Jurisprudence

Engelhardt has served as a judge on the U.S. District Court for the Eastern District of Louisiana for the last sixteen years.  In this role, Engelhardt has presided over hundreds or criminal and civil cases, including seventy six that have gone to verdict or judgment.[10]  We have summarized some of Engelhardt’s most significant cases below.

Danziger Bridge

In perhaps his most famous case, Engelhardt presided over the trials of New Orleans police officers charged in the “Danziger Bridge Incident”, where officers shot and killed unarmed storm survivors during Hurricane Katrina.[11]  In one of the trials, Engelhardt declared a mistrial based on the federal prosecutor’s mentioning “the name of a man who was beaten to death” in an unrelated case.[12]  In 2012, Engelhardt sentenced four of the officers to 38 to 65 years in prison for the shootings, while sentencing a fifth officer to five years for covering up the shootings.[13]  In sentencing the officers, Engelhardt criticized the prosecution for their reliance on cooperating witnesses and mandatory minimum sentences, indicating that he would likely have offered far lower sentences.[14]

A few months after the sentencing, news broke that key prosecutors in the U.S. Attorney’s office had engaged in a series of anonymous posts at news sites about defendants they were charging.[15]  In response to the news, the Danziger defendants moved for a new trial while prosecutors argued that there was no evidence that the anonymous posts had affected the verdicts.  In 2013, Engelhardt granted the motion for a new trial, noting:

“Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole.”[16]

Engelhardt’s ruling drew criticism from the Washington Post Editorial Board, who called his reasoning “unconvincing in the extreme.”[17]

In 2016, Engelhardt accepted guilty pleas from the five Danziger defendants, speaking out at the sentencing against the Department of Justice and the conduct of then Assistant Attorney General Tom Perez, who Engelhardt argued, had covered up prosecutorial misconduct in the case.[18]

British Petroleum (Rainey)

Engelhardt presided over the trial of David Rainey, a vice president at British Petroleum who was charged with lying to investigators in the aftermath of the Deepwater Horizon oil spill.[19]  Before trial, Engelhardt dismissed the lead count of the indictment: obstruction of Congress, only to see the dismissal overturned by the Fifth Circuit.[20]  Nevertheless, Engelhardt dismissed the count again on the first day of trial.[21]

The jury ultimately acquitted Rainey of the remaining counts of lying to investigators.[22]  In dismissing the jury, Engelhardt noted that he “agree[d] with the verdict.”[23]

FEMA Trailer Formaldehyde Litigation

Engelhardt presided over a part of a multidistrict lawsuit brought against FEMA, trailer manufacturers, and contractors for providing trailers contaminated with formaldehyde after Hurricanes Katrina and Rita.[24]  Early in the case, Engelhardt held that the hundreds of claims could not be considered a class action due to the uniqueness of each plaintiff’s situation.[25]  The claims ultimately ended in a settlement.

Overall Assessment

With sixteen years on the bench, Engelhardt has a long record of jurisprudence demonstrating a conservative judicial philosophy.  As such, one can conclude that Engelhardt would maintain a conservative voice on the Fifth Circuit, similar to Judge Clement, whom he would replace.

Depending on your perspective, Engelhardt’s conduct in the Danziger and Rainey trials are either a demonstration of those conservative values, or a deviation from them.  Some could argue that, in those cases, Engelhardt stood up to overzealous prosecutors and maintained the rule of law.  Others can counter that Engelhardt further denied justice to minorities by going out of his way to accommodate police officers and corporate defendants.

Ultimately, given Engelhardt’s mostly uncontroversial tenure on the District Court, he is likely to move through the confirmation process smoothly, and maintain the conservative majority on the Fifth Circuit.


[1] Stephanie Grace, ‘Fascinating Prospect’ David Vitter, President Obama Might Find Common Ground on New Orleans Judge, The Advocate, July 22, 2015, http://www.theadvocate.com/baton_rouge/opinion/stephanie_grace/article_017dafb2-2692-5a5b-a6fc-2b4763ed5aaf.html.  

[2] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 69-70.

[3] See id. at 70.

[4] See id. at 51-52.

[5] Id. at 51.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kurt+engelhardt&order=desc&sort=D (last visited Jan. 7, 2017).

[7] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53.

[8] See Ins. Underwriters Ltd. v. Oxford Mgmt., Inc., No. 87-13771 (La Civ. Dist. Ct.).

[9] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53-54.

[10] Id. at 17.

[11] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[12] Mistrial for Officer in Katrina Bridge Shootings Inquiry, Charleston Gazette, Jan. 28, 2012.

[13] Bloomberg News, Ex-cops Get Prison for Katrina Slayings, Windsor Star, Apr. 5, 2012.

[14] Campbell Robertson, Five Ex-Officers Sentenced in Katrina Shootings, N.Y. Times, Apr. 5, 2012.

[15] Editorial Desk, Perfidious Prosecutors, N.Y. Times, Dec. 3, 2012.

[16] United States v. Bowen, 969 F. Supp. 2d 546, 627 (E.D. La. 2013).

[17] Editorial Board, Injustice Restored, Wash. Post, Sept. 22, 2013.

[18] Denis Slattery, Interior Boss Ripped in Cop Katrina Slays, N.Y. Daily News, Apr. 24, 2016.

[19] See United States v. Rainey, No. 12-cr-291 (E.D. La.).

[20] Brian M. Heberlig, Congressional Gamesmanship Leads to an Acquittal in Deepwater Horizon Case, United States v. David Rainey: A Case Study, 20 Berkeley J. Crim. L. 260 (Fall 2015).  See also United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

[21] See id.

[22] Former BP Executive Found Not Guilty of Making False Statement Over Oil Spill, thespec.com, June 5, 2015.

[23] Id.

[24] See In re FEMA Trailer Formaldehyde Prod. Liab. Litig., MDL No. 07-1873 (E.D. La.).

[25] Class Action Denied in FEMA Trailer Suit, Wash. Post, Dec. 30, 2008.

Howard Nielson – Nominee for the U.S. District Court for the District of Utah

A conservative Washington D.C. based attorney, Howard Nielson’s ties to Utah, where he grew up and where his father served as a state legislator and congressman, have secured him a nomination for the federal bench.  However, Nielson will find his confirmation complicated by his participation in many hot-button cases, including his role in defending California Proposition 8.

Background

Howard Curtis Nielson Jr. was born in 1968 in Provo, UT.  Nielson’s father (also named Howard C. Nielson) was a professor at Brigham Young University who went on to serve in the U.S. House of Representatives as a Republican between 1983 and 1990.[1]  Nielson Jr. attended Brigham Young University, graduating summa cum laude in 1992.  He went on to spend two years at Kobe University in Japan as a Mombusho Scholar.[2]

In 1994, Nielson joined the University of Chicago Law School, where he served as articles editor at the University of Chicago Law Review.  Nielson graduated Order of the Coif in 1997, and clerked for the conservative luminary Judge J. Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit.[3]  After completing his clerkship with Luttig, Nielson was hired by Supreme Court Justice Anthony Kennedy to clerk for him, joining other notable clerks that year including civil rights litigator Jeffrey Fisher, law professor Noah Feldman, Seventh Circuit Judge Amy Coney Barrett, and University of Georgia Law School Dean Bo Rutledge.

After his clerkship, Nielson joined the Washington D.C. Office of Jones Day as an Associate.[4]  After the election of President Bush, Nielson moved to the Department of Justice as Special Assistant to Deputy Attorney General Larry Thompson.[5]  He later became Counsel to Attorney General John Ashcroft and in 2003, became Deputy Assistant Attorney General in the Office of Legal Counsel, serving under then-head Jack Goldsmith.[6]

In 2005, Nielson left the Department of Justice to join the conservative law firm Cooper & Kirk as Of Counsel.  Nielson was made a Partner in 2010 and continues to serve in that capacity.  In addition to his work at Cooper & Kirk, Nielson also served as a Legal Consultant to The Boeing Company[7] between 2008 and 2014.  Nielson also taught at the J. Reuben Clark Law School at Brigham Young University between 2007 and 2014.

History of the Seat

Nielson has been nominated for a vacancy on the U.S. District Court for the District of Utah.  This seat was opened by Judge Ted Stewart’s move to senior status on September 1, 2014.  On December 16, 2015, Obama nominated former Centreville mayor Ronald G. Russell to fill the vacancy.[8]  Russell, a Republican, had the support of Utah Senators Orrin Hatch and Mike Lee.[9]

Russell received a hearing before the Senate Judiciary Committee on April 20, 2016, and was approved without objection on May 19.  However, Russell’ nomination stalled on the floor due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell, and Democratic objections to expediting Russell’s nomination without confirming longer-pending Democrats.  Without floor action, Russell’s nomination was returned unconfirmed on January 3, 2017.

Shortly after the election of President Donald Trump, Lee reached out to Nielson to gauge his interest in a judicial appointment.[10]  In April 2017, Nielson interviewed with Hatch and was recommended by him as part of a slate of candidates to the White House.[11]

After interviews with the White House Counsel’s Office and the Department of Justice, Nielson was officially nominated on September 28, 2017.[12]

Legal Experience

Nielson began his legal career with clerkships at the U.S. Court of Appeals for the Fourth Circuit and the U.S. Supreme Court.  After the clerkships, Nielson spent two years in the Issues and Appeals Practice Group at Jones Day.  At Jones Day, Nielson primarily represented corporations in commercial litigation matters.[13]  However, he also represented the Michigan government in dismissing a suit charging the failure to provide adequate screening, diagnosis, and treatment services for Michigan children under Medicaid.[14]

Office of Legal Counsel

From 2003 to 2005, Nielson worked at the Office of Legal Counsel (OLC), which advises the Attorney General and the U.S. Government as to the legality of its actions and initiatives.  Nielson’s tenure at OLC coincided with a tumultuous time at the agency including the initial withdrawal of the Bybee memo and torture memos, the resignation of OLC head Jack Goldsmith, and the reinstatement of the Bybee memo by acting head Daniel Levin.[15]

Cooper and Kirk

In 2005, Nielson joined the Washington D.C. Office of Cooper & Kirk, a firm founded by Republican luminary Charles J. Cooper.  In his twelve years at the firm, Nielson has participated in many cases representing conservative causes.

In perhaps his most notable case, Nielson joined Cooper in defending Proposition 8 (“Prop 8”), the California voter initiative that restricted marriage to opposite-sex couples.  As defense counsel in the case, Nielson developed the arguments in defense of the Proposition, citing a state interest in the longstanding definition of marriage, and arguing that opposite-sex couples provide an optimal child-rearing environment.[16]  Nielson notably motioned (unsuccessfully) for the recusal of Judge Vaughn Walker from the case, noting that Walker was a “practicing homosexual” who could theoretically benefit from the expansion of same-sex marriage.[17]  During the subsequent trial, Nielson cross-examined Columbia professor Ilan Meyer, challenging his argument that Prop 8 causes stress to LGBT minorities.[18]  Nielson also challenged the conclusions of UC Davis Professor Gregory Herek, who argued that same-sex attraction is immutable.[19]  Instead, Nielson “attempted to show that gay [sic] and lesbians opt for their sexual preference at different points in their lives.”[20]  Nielson also argued, by citing a 1935 paper by Sigmund Freud, that homosexuals could change their sexual orientation through therapy.[21]

In addition to the Prop 8 case, Nielson has been involved in many other hot-button cases.  In King v. Burwell, the challenge to subsidies on state-run exchanges under the Affordable Care Act, Nielson represented a team of conservative lawmakers including Sen. Ted Cruz as amici.[22]  Nielson was also involved, as amicus, in challenging enforcement actions taken by the Consumer Financial Protection Bureau,[23] and served as part of the legal team on a successful challenge to D.C.’s restrictions on obtaining handgun permits.[24]  Nielson also represented Harvey Lembo, a resident in Maine affordable housing, who sought to avoid eviction for keeping a firearm at his residence for self-defense.[25]  Finally, Nielson represented Safe Streets Alliance in their challenge to Amendment 64, a Colorado ballot initiative decriminalizing marijuana.[26]

Writings

Two of Nielson’s writings may be brought up during his confirmation hearing.  While at Cooper & Kirk, Nielson joined a letter to the editor alongside eight other former OLC employees defending the actions of Steven Bradbury, who was then serving as the acting head of OLC.[27]  At the time, Bradbury was criticized for failing to maintain the professionalism of OLC and deferring to the legal pronouncements coming from the White House.  Nielson’s letter pushed back against that perception, arguing that Bradbury was “a careful lawyer of unimpeachable integrity and sound judgment.”[28]

As a law student, Nielson authored a law review article on the First Amendment protections offered to recklessly false statements made by public employees.[29]  The article argues that any recklessly false statements of fact made by public employees should not be protected under the First Amendment.[30]  In order to avoid a chilling effect on free speech, Nielson endorses proving the reckless falsity of a statement by “clear and convincing” evidence.[31]

Political Activity

Nielson has a long and active history of advocacy in the Utah Republican Party, going back to the 1980s when he campaigned alongside his father.[32]  As an adult, Nielson was a County and State Delegate for the Utah Republican Party, as well as a member of the Party’s Central Committee.[33]  Nielson also worked with Mitt Romney’s Presidential Campaigns in 2008 and 2012, advising them on justice related issues.[34]

Additionally, Nielson has supported Republicans financially, including contributions to the RNC, the NRCC, and the NRSC.[35]  Additionally, Nielson has donated to the campaigns of Trump, Hatch, Lee, and Sen. Ted Cruz (R-TX).[36]

Overall Assessment

In a recent release, LGBT rights organization Lambda Legal claimed that a third of Trump’s judicial nominees have anti-LGBT records.[37]  Regardless of whether you agree with that conclusion, Nielson’s nomination will likely be used to buttress it.  Specifically, Nielson has already drawn criticism for moving for Walker’s recusal in the Prop 8 case.[38]  He is likely to draw additional criticism for his reliance, as Prop 8 counsel, on studies from the 1930s to suggest that LGBT individuals can change their sexual orientation.  Overall, opponents will likely argue that Nielson’s record in the Prop 8 case reflects an anti-LGBT bias.

Opponents will likely also attack Nielson based on his participation in the King case, as well as his fight against gun regulations in the Wrenn and Lembo cases.  His push in the latter case to require an affordable housing unit to accommodate gun possession may also draw criticism from property rights activists.

In response, Nielson’s supporters will likely argue that his advocacy in the Prop 8 case was made on behalf of his client and pursuant to his ethical responsibilities to be a zealous representative.  They may also argue, as some did with the Barrett nomination, that criticizing Nielson’s opposition to same-sex marriage is an attack on his faith.

Overall, Nielson has a narrow margin in the Senate.  To avoid the fate of other failed nominees, he will need to demonstrate that he can separate his advocacy as an attorney from his behavior as a judge.  If he does so, his nomination should be able to unite Republicans and be confirmed.


[1] William E. Schmidt, 5 States Re-Elect Incumbents, N.Y. Times, Nov. 4, 1982.

[2] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] White House Counsel Don McGahn, who handles the selection of judicial nominees, is also a Jones Day alumnus.

[5] See id. at 2.

[6] Id.

[7] The General Counsel of Boeing at the time was Luttig, Nielson’s old boss.

[8] Press Release, White House, President Obama Nominates Four to Serve on the United States District Court (December 16, 2015) (on file at https://obamawhitehouse.archives.gov).  

[9] Press Release, Office of Senator Orrin Hatch, Hatch Applauds Nomination of Ronald G. Russell to U.S. District Court (December 17, 2015) (on file at https://www.hatch.senate.gov/public/index.cfm/2015/12/hatch-applauds-nomination-of-ronald-g-russell-to-u-s-district-court).

[10] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 43.

[11] Id. at 44.

[12] Press Release, White House, President Donald J. Trump Announces Eighth Wave of Judicial Candidates (September 28, 2017) (on file at www.whitehouse.gov/the-press-office).  

[13] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 26.

[14] See Westside Mothers, et al. v. Haveman et al., 133 F. Supp. 2d 549 (E.D. Mich. 2001).

[15] Jeffrey Rosen, Conscience of a Conservative, N.Y. Times, Sept. 9, 2007, http://www.nytimes.com/2007/09/09/magazine/09rosen.html.  

[16] See Perry v. Schwarzenegger, No. C 09-2292 VRW, 2009 U.S. Dist. LEXIS 555594 (N.D. Cal. June 30, 2009).

[17] Christianna Silva, Trump Judicial Nominee Howard Nielson: Gay Judges Shouldn’t Hear LGBT Cases, Towleroad, Jan. 5, 2018, http://www.towleroad.com/2018/01/howard-nielson/.  

[18] See Howard Mintz, Prop. 8 Trial Day 4: Live Coverage From the Courtroom, Contra Costa Times, Jan. 14, 2010.

[19] See Howard Mintz, Prop 8 Trial Sees Joust Over Whether Homosexuality is a Product of Choice or Nature, Inland Valley Daily Bulletin, Jan. 22, 2010.

[20] See id.

[21] See Howard Mintz, Prop 8 Trial Day 9: Live Coverage From the Courtroom, San Jose Mercury News, Jan. 22, 2010.

[22] See King v. Burwell, 759 F.3d 358 (4th Cir. 2014).

[23] Consumer Financial Protection Bureau v. Gordon, 819 F.3d 1179 (9th Cir. 2016).

[24] Wrenn v. Dist. of Columbia, 864 F.3d 650 (D.C. Cir. 2017).

[25] Stephen Betts, Rockland Man Told He Couldn’t Have Gun in Apartment Says He Suffered Emotional Damage, Bangor Daily News, April 19, 2016.

[26] Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).

[27] John C. Eisenberg and Howard C. Nielson, In Defense of the Office of Legal Counsel, Wash. Post, Oct. 12, 2007.

[28] See id.

[29] Howard C. Nielson Jr., Recklessly False Statements in the Public-Employment Context, 63 U. Chi. L. Rev. 1277 (Summer 1996).

[30] Id. at 1279.

[31] Id. at 1307.

[32] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 24.

[33] See id.

[34] Id. at 23-24.

[36] Id.

[37] Lydia Wheeler, Advocacy Group: Nearly a Third of Trump Judicial Nominees are Anti-LGBT, The Hill, Dec. 20, 2017, http://thehill.com/regulation/court-battles/365784-advocacy-group-nearly-a-third-of-trump-judicial-nominees-are-anti.  

[38] Christianna Silva, Trump Judicial Nominee Howard Nielson: Gay Judges Shouldn’t Hear LGBT Cases, Towleroad, Jan. 5, 2018, http://www.towleroad.com/2018/01/howard-nielson/.  

James Sweeney – Nominee for the U.S. District Court for the Southern District of Indiana

A white collar criminal defense attorney and commercial civil litigator from Indianapolis, James Sweeney has been tapped for the federal bench in Indiana’s Southern District, one of Trump’s first district court nominees in a state with a Democratic senator.

Background

A native Hoosier, James Russell Sweeney III was born in Indianapolis in 1961.  In 1979, Sweeney joined the U.S. Naval Academy, graduating with a B.S. in 1983.  He then joined the U.S. Marine Corps as an Officer of Marines, as well as earning certificates of completion from East China Normal University, The Basic School, Naval Flight Officer School, U.S. Air Force Electronic Warfare School, U.S. Navy/Marine Corps EA-6B Fleet Replacement Squadron Training, U.S. Air Force Squadron Officer School, U.S. Marine Corps Amphibious Warfare School, Weapons and Tactics Instructor Course, and the NATO Joint Service Advance Electronic Warfare Staff Officer Course.[1]

In 1993, Sweeney matriculated at Notre Dame Law School, graduating in 1996 magna cum laude.  After graduation, Sweeney clerked for Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana,[2] and then for Judge James Ryan on the U.S. Court of Appeals for the Sixth Circuit.  After his clerkships, Sweeney joined Barnes & Thornburg LLP’s Indianapolis office as an Associate.  In 2005, he was named a Partner and continues to serve in that capacity today.

History of the Seat

Sweeney has been nominated to the U.S. District Court for the Southern District of Indiana, to a seat vacated by Judge Sarah Evans Barker on June 30, 2014.  On January 12, 2016, President Obama nominated Winfield Ong, the Criminal Division Chief in the Office of the U.S. Attorney for the Southern District of Indiana, to fill the vacancy.[3]  Ong, who had the support of Democratic Senator Joe Donnelly and Republican Senator Dan Coats,[4] received a hearing before the Senate Judiciary Committee on May 18 and was approved by the Committee unanimously on June 16.[5]  Unfortunately, Ong’s nomination was blocked from a floor vote by Senate Majority Leader Mitch McConnell, and the vacancy was left unfilled at the end of the Obama Presidency.

In March 2017, Sweeney submitted an application for the vacancy to Sen. Todd Young (R-IN), who replaced Coats.[6]  After interviewing with Young’s staff and with Young, Sweeney was recommended to the White House in late April.[7]  Sweeney interviewed with the White House and the Department of Justice in early May and then with Donnelly’s staff in late June.[8]  Trump formally nominated Sweney on Nov. 1, 2017.

Legal Experience

Sweeney has spent his entire post-clerkship legal career at the firm of Barnes & Thornburg, LLP, handling a mix of commercial litigation, criminal defense, and intellectual property cases.   Sweeney’s time was split approximately evenly between federal court proceedings and administrative actions, as well as between civil and criminal cases.[9]

Among the most notable civil case he handled, Sweeney represented the surviving members and families of the crew of the USS Pueblo, the research ship attacked by North Korean forces in 1968.[10]  Sweeney served as lead plaintiff’s counsel in the case, which ultimately led to a $65 million judgment against the Government of North Korea.[11]  In another case, Sweeney represented Burlington Coat Factory in defending against an infringement action based on a patent on a child’s safety seat buckle.[12]

On the criminal side, Sweeney primarily worked on white collar defense.[13]  Notably, Sweeney represented William Matthews, a former Executive Vice President at Blackwater Worldwide (now Academi), a defense contractring company.[14]  Matthews, along with four other officials, was charged in 2010 after federal officers discovered 22 weapons that had been purchased in violation of federal firearm laws.[15]  However, Sweeney and other defense counsel argued that the purchases had been made at the direction of the Central Intelligence Agency (CIA).[16]  Ultimately, Matthews ended up pleading to a misdemeanor charge with time served, avoiding the felony violations he had initially been charged with.[17]  The sentence drew criticism from investigative journalist Marcy Wheeler, who described the deal as “an undeserved and inexplicable sweetheart misdemeanor plea.” and suggested that the deal had been a product of “graymail.”[18]

Political Activity

Sweeney, a Republican, has served as a delegate to the Indiana State Republican Convention and as a Marion County Precinct Judge.[19]  The vast majority of Sweeney’s contributions are directed to fellow Republicans.[20]  For example, Sweeney has given to many Indiana Republicans including Coats, Young, former senator Richard Lugar, Gov. Eric Holcomb and Representatives Luke Messer, Todd Rokita, Larry Buschon, and Susan Brooks.[21]  All in all, since 2003, Sweeney has given more than $87000 to Republican candidates, organizations, and PACs, including almost $20000 to Young.[22]

Sweeney has also made a few contributions to Indiana Democrats, including a $1000 contribution to Donnelly, $250 to former senator Evan Bayh, and $250 to House candidate Scott Reske.[23]  Interestingly, in each of the above examples, Sweeney also donated to the Democrat’s Republican opponent.

Overall Assessment

As a well-credential federal litigator, Sweeney has a fairly typical background for a judicial nominee.  Furthermore, he does not have a record of controversial statements or blog posts similar to those that have brought down other nominees.

Senators who ultimately vote against Sweeney will likely do so for one of two reasons.  First, they may cite the criticisms made by Wheeler regarding his representation of Matthews.  Second, they may balk at his extensive political contributions, making criticisms similar to those made against Obama appointee John McConnell in 2010.[24]  Ultimately, both arguments have easy counters.  First, supporters can argue that, as a criminal defense attorney, Sweeney has the ethical responsibility to engage in zealous representation.  As such, barring any unethical conduct on his part, it would be unfair to hold his representation of an unpopular client against him.  Second, supporters can note that engaging in political contributions is a form of First Amendment activity.  Barring a quid pro quo, punishing a nominee for making too many contributions would be akin to punishing a nominee for writing too many editorials or engaging in too many protests.

Overall, it is likely that Sweeney will see a smooth confirmation.  After all, if Sweeney comes before the Senate Judiciary Committee, it’ll be because Donnelly has returned a blue slip on his behalf.  In such a case, Sweeney will have at least one Democrat in his corner.


[1] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 1-2.

[2] Tinder was later elevated to the U.S. Court of Appeals for the Seventh Circuit.

[3] Press Release, White House, President Obama Nominates Winfield D. Ong to Serve on the United States District Court for the Southern District of Indiana (Jan. 12, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] Press Release, Office of Sen. Joe Donnelly, Donnelly and Coats Pleased Senate Judiciary Committee Will Hold Hearing on U.S. District Court Nominee Winfield Ong (May 16, 2016) (on file at https://www.donnelly.senate.gov/newsroom/press/).

[5] Michael Macagnone, Senate Panel Advances 4 Federal Judges, Hints at Floor Votes, Law 360, June 16, 2016, https://www.law360.com/articles/807489/senate-panel-advances-4-federal-judges-hints-at-floor-votes.

[6] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 37.

[7] Id.

[8] Id.

[9] See id. at 19-20.

[10] Massie v. Gov’t of Democratic People’s Republic of Korea, 592 F. Supp. 2d 57 (D.D.C. 2008).

[11] Rebecca Berfanger, Justice a Long Time Coming; Lawyers Win $65 Million for Tortured Crew, The Indiana Lawyer, Jan. 21, 2009.

[12] Galbreath v. Burlington Coat Factory Warehouse of Arundel, Inc., No. 1:03-cv-0555 (D. Md. Dec. 22, 2003).

[13] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 20.

[14] United States v. Jackson, Case No. 2:10-cr-00008-FL (E.D.N.C. Feb. 21, 2013) (case dismissed pursuant to plea agreement).

[15] James Risen and Mark Mazzetti, Case Ends Against Ex-Blackwater Officials, N.Y. Times, Feb. 21, 2013, http://www.nytimes.com/2013/02/22/us/case-ends-against-five-ex-blackwater-officials.html.  

[16] See id.

[17] Id.

[18] Marcy Wheeler, DOJ Gives Blackwater a Whitewash on Felony Charges, Emptywheel, Feb. 21, 2013, https://www.emptywheel.net/2013/02/21/doj-gives-blackwater-a-whitewash-on-felony-charges/.

[19] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 17.

[21] See id.

[22] Id.

[23] Id.

[24] John O’Brien, Obama’s Judicial Picks Sent Back to Senate, Legal News Line, Sept. 15, 2010, https://legalnewsline.com/stories/510523503-obama-s-judicial-picks-sent-back-to-senate.  

Judge Robert Wier – Nominee to the U.S. District Court for the Eastern District of Kentucky

As the senior senator from Kentucky and the most powerful Republican in the Senate, Senate Majority Leader Mitch McConnell has had tremendous influence over the federal bench of his home state.  Since 1985, McConnell has recommended numerous judges to the federal bench, almost all of them conservative and very young.  While the average age of appointees to the federal bench is 50-52, the ten Kentucky judges appointed by Republican presidents since McConnell joined the senate have an average age of just 43.  At 50, U.S. Magistrate Judge Robert Wier is a more conventional nominee than McConnell’s usual recommendations.

Background

Robert Earl Wier was born in Harlan, KY in 1967.  After getting a B.A. with High Distinction from the University of Kentucky in 1989, Wier stayed and received a J.D. with High Distinction from the University of Kentucky Law School in 1992.  After his graduation, Wier served as a law clerk to Sixth Circuit Judge Eugene Siler.

In 1993, Wier joined the Lexington Law Firm Stoll, Keenon & Park LLP. as an associate.  Two years later, he co-founded the firm Ransdall & Wier, PLLC. as a partner.  After ten years at the firm, in 2006, Wier was tapped to be a U.S. Magistrate Judge for the U.S. District Court for the Eastern District of Kentucky.  He currently serves in that capacity.

In 2006, Wier contacted McConnell to express his interest in a federal judicial appointment.[1]  The appointment ultimately went to then-U.S. Attorney (and current Sixth Circuit Judge) Amul Thapar.

History of the Seat

Wier has been nominated for a vacancy on the U.S. District Court for the Eastern District of Kentucky.  This seat opened on May 25, 2017, when Judge Amul Thapar was elevated to the U.S. Court of Appeals for the Sixth Circuit.  Wier had maintained contact with McConnell and Senator Rand Paul through the Obama Administration regarding Kentucky federal judicial vacancies.[2]  He interviewed with McConnell’s staff in late 2016 and with McConnell in early 2017.  Wier interviewed with the White House and Department of Justice on Feb. 23, 2017.[3]  He was nominated on August 3, 2017.

Legal Experience

Wier has practiced as an attorney in two different positions.  First, after finishing his clerkship, Wier worked at Stoll, Keenon & Park, LLP. as an associate in their commercial litigation group.  In this position, which he held for two years, Wier represented businesses in pre-trial matters.  Second, from 1996 to 2006, Wier worked at Ransdall & Wier, P.C., a firm he founded and managed.

At Ransdall & Wier, P.C., Wier represented both businesses and individuals in commercial and employment cases.[4]  Among his more notable cases, Wier represented a plaintiff in establishing a cause of action for negligent hiring in Kentucky.[5]

Jurisprudence

Wier has served as a U.S. Magistrate Judge since 2006.  In this capacity, Wier has handled approximately 400 misdemeanor and civil cases that have proceeded to judgment, including approximately 200 jury trials.[6]  Among the more prominent cases that Wier has handled, he presided over the first extradition proceeding based on war crimes charges in the Eastern District of Kentucky,[7] and the discovery proceedings over a massive gender discrimination case brought against Wal-Mart.[8]  In another notable case, Wier found that compelling an Amish defendant to pose for a photograph in violation of his religious beliefs would violate the Religious Freedom Restoration Act (RFRA).[9]

Reversals

In his Senate Judiciary Questionnaire, Wier notes ten cases where his recommendations or rulings were reversed by the district court or by the U.S. Court of Appeals for the Sixth Circuit.[10]  Among these cases, the more substantive reversals generally fall into two categories: motions to suppress evidence under the Fourth Amendment; and motions for resentencing under 28 U.S.C. §2255.

Motions to Suppress

Wier has been reversed by the Sixth Circuit twice on motions to suppress.  In one case, upon Wier’s recommendation, Judge Danny Reeves denied a defendant’s motion to suppress cocaine and a firearm found in the passenger compartment of his vehicle.[11]  The Sixth Circuit, in a unanimous opinion by Judge Raymond Kethledge, reversed, finding that the Supreme Court’s intervening decision in Arizona v. Gant rendered the search unconstitutional.[12]  In another case, Reeves denied a motion to suppress, relying on Wier’s finding that the good-faith exception prevented suppression of child pornography found through a search lacking probable cause.[13]  The Sixth Circuit, in an opinion by Judge Alice Batchelder, reversed, finding that the good-faith exception did not apply.[14]

§2255 Motions

§2255 of Title 28 of the U.S. Code allows prisoners to collaterally challenge sentences that violate the Constitution, statutes, or are improperly decided.  Of the many §2255 rulings that Wier has made, a handful have been rejected by a district judge or the Sixth Circuit.  Notably, the Sixth Circuit reversed Reeves’ denial, upon Wier’s recommendation, of a §2255 motion involving interrelated sentences.[15]  In another case, Wier recommended that a prisoner originally sentenced under the Armed Career Criminal Act be resentenced, only to have his recommended rejected by Reeves.[16]

Political Activity

Wier has a relatively limited political history.  In 1997, Wier donated $200 to the Jonathan Scott Miller, a Democrat running for Kentucky State Treasurer (Miller was ultimately elected and served until 2007 as Treasurer).[19]  In 2003 and 2004, Wier served as Treasurer on the Campaign of former Kentucky State Senator Tim Philpot, a Republican, who was running to retain his appointed seat on the Fayette County Circuit Court.[20][21]

Overall Assessment

Overall, Wier is unlikely to attract major opposition.  He has a fairly non-controversial record of jurisprudence, and a long tenure as a U.S. Magistrate Judge.  Furthermore, he has a powerful advocate on his side.  No Kentycky judge recommended by McConnell has ever lost a vote for confirmation.  The streak is unlikely to end with Wier.


[1] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 46.

[2] See id.

[3] See id.

[4] See id. at 35-36.

[5] Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky. App. 1998).

[6] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 9-10.

[7] United States v. Basic, No. 5:11-MJ-05002-REW, 2012 WL 3067466 (E.D. Ky. July 27, 2012).

[8] EEOC v. Wal-Mart Stores, Inc., No. 6:01-CV-339-KKC.

[9] United States v. Girod, 159 F. Supp. 3d 773, 784 (E.D. Ky. 2015).

[10] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 27-28.

[11] United States v. Lopez, No. 6:06-120-DCR, 2006 WL 3827468 (E.D. Ky Dec. 27, 2006).

[12] United States v. Lopez, 567 F.3d 755 (6th Cir. 2009).

[13] United States v. Hodson, No. 6:06-CR-117-DCR (E.D. Ky Dec. 13, 2006).

[14] U.S. v. Hodson, 543 F.3d 286 (6th Cir. 2008).

[15] Maxwell v. United States, 617 F. App’x 470 (6th Cir. 2015).

[16] United States v. Potter, No. 7:03-21-DCR, 2016 WL 6135433 (E.D. Ky Oct. 20, 2016).

[17] Id.

[18] Id.

[19] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=robert+wier&order=desc&sort=D (last visited Jan. 1, 2018).

[20] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 46.

[21] Philpot, a social conservative, later came under fire for anti-same sex marriage comments that some interpreted to be homophobic.  See Andrew Wolfson, Family Judge: Gay Marriage Like “Jumbo Shrimp”, Louisville Courier Journal, Sept. 21, 2016, https://www.courier-journal.com/story/news/local/2016/09/21/family-judge-gay-marriage-like-jumbo-shrimp/90729048/.  

Judicial Nominations 2017 – Year in Review

Percentage of Nominees Confirmed in 1st Year of Presidency

As 2017 draws to a close, let us look back at the Trump Administration’s push to fill judicial vacancies, and compare the numbers from his first year to those of the past few presidents (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Trump submitted 69 nominees to Article III courts, more than any other modern president.  Compare the following:

Nominations

Nominations sent to the Senate in 1st Year of Presidency

As seen from the table above, Trump has submitted more district court nominees in the first year of his presidency than any of the last five presidents.  He also submitted more court of appeals nominees than any president other than George W. Bush.  While this is partially a function of a higher number of vacancies that Trump inherited at the beginning of his term, it is nonetheless a testament to the focus on judges by White House Counsel Don McGahn and his team.

Confirmations

In 2017, the Senate confirmed 19 of Trump’s nominees: Supreme Court Justice Neil Gorsuch; 12 judges to the U.S. Court of Appeals, and 6 to the U.S. District Courts.

Confirmations

Nominees Confirmed in 1st Year of Presidency

As seen from the chart, while Trump has had more appellate nominees confirmed than the other modern presidents, he has also had the fewest district court nominees confirmed.  This is largely the result of Senate Majority Leader Mitch McConnell’s prioritizing of appellate nominees when calling a vote.  In general, McConnell has largely ignored district court nominees, focusing on quick votes on the appellate picks.

This prioritization means that, as a whole, Trump has seen a smaller percentage of his judicial nominees confirmed than any of the last five presidents.

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Of the 69 nominees sent to the senate this year, three have already been (informally) withdrawn by the Administration: Jeff Mateer; Matthew Petersen; and Brett Talley.  This is unusual for two reasons: first, as of this point in their presidencies, none of the past five presidents had withdrawn a single nominee; and second, in general, this represents a higher percentage of “nominee failure” than previous presidents.

In comparison, out of all the nominations made in their first year, Presidents Reagan, and George H.W. Bush saw every single nominee confirmed.  Presidents Clinton and Obama each submitted one nomination in their first year that was ultimately not confirmed: Theodore Klein to the U.S. District Court for the Southern District of Florida; and Louis Butler to the U.S. District Court for the Western District of Wisconsin.  While President George W. Bush had to eventually withdraw four of his first year nominees: Terrence Boyle; Miguel Estrada; Charles Pickering; and Henry Saad, all of these nominees were blocked either through home-state opposition, or through the filibuster.  As such, the defeat of three nominees in a post-filibuster universe is particularly notable.

Diversity

I wrote earlier in the year that the Trump’s administration’s nominees have been relatively less diverse than those of previous presidents.  At the time of that post, Trump had nominated 36 federal judges.  Looking at all 69 of his appointments, it is important to re-evaluate the picture:

Trump has nominated four women to the courts of appeals, and twelve women to the district courts.  As such, 23% of Trump’s judicial nominees are women.  In comparison, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Trump has nominated one African American nominee: Judge Terry Moorer, one Hispanic nominee: Fernando Rodriguez; and four Asian American nominees: Judge Amul Thapar; Judge James Ho; Karen Gren Scholer; and Jill Otake.  As such, 9% of Trump’s judicial nominees are lawyers of color.

Age

While Trump nominees have drawn some criticism for their youth and inexperience, overall, their ages are not significantly different than those of prior appointees.

Trump’s appellate nominees so far have an average age of 49.5, while his district court nominees have an average age of 52.5.  As noted earlier, this is comparable to the ages of Bush, Clinton, and Obama nominees.

Overall Assessment

Reviewing his first year in office,  many observers agree that judicial appointments constituted an area of success for President Trump.  Looking at the empirical evidence, it is clear the Trump Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  However, when it comes to confirmations, they still lag behind other recent presidents.

Furthermore, the data suggests that declarations of a “flood” of young conservatives reaching the bench are hyperbole.  As noted above, on average, Trump’s nominees are comparable in age to those of other recent presidents.  Furthermore, McConnell’s focus on appellate confirmations has caused district confirmations to lag.  As such, the district courts, where a significant portion of American caselaw is decided, remain, as of yet, untouched by Trump.