Bending Blue Slips: Grassley’s Strategic Error

In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction.  In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties.  Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration.  This period covers three Democratic Administrations and three Republican Administrations (twenty years of each).  In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

  • U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • U.S. Magistrate Judge J. Rich Leonard – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Judge Helene White of the Michigan Court of Appeals – nominated in 1997 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • Jorge C. Rangel – nominated in 1997 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • North Carolina Appeals Court Judge James Wynn – nominated in 1999 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Enrique Moreno – nominated in 1999 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • Kathleen McCree Lewis – nominated in 1999 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • James Lyons – nominated in 1999 to the Tenth Circuit (blue slipped by Republican Sen. Wayne Allard)
  • U.S. District Judge Robert Cindrich – nominated in 2000 to the Third Circuit (blue slipped by Republican Sen. Rick Santorum)
  • Victoria Nourse – nominated in 2010 for the Seventh Circuit (blue slipped by Republican Sen. Ron Johnson)
  • Steven Six – nominated in 2011 for the Tenth Circuit (blue slips returned but blocked upon request by Republican Sens. Pat Roberts and Jerry Moran)
  • Myra Selby – nominated in 2016 for the Seventh Circuit (blue slipped by Republican Sen. Dan Coats)
  • U.S. District Judge Abdul Kallon – nominated in 2016 for the Eleventh Circuit (blue slipped by Republican Sens. Richard Shelby and Jeff Sessions)
  • Justice Lisabeth Hughes – nominated in 2016 for the Sixth Circuit (blue slipped by Republican Sen. Mitch McConnell)
  • Rebecca Ross Haywood – nominated in 2016 for the Third Circuit (blue slipped by Republican Sen. Pat Toomey)

During Republican Administrations:

  • Stuart Summit – nominated in 1987 to the Second Circuit (processed by Judiciary Committee but blocked upon request of Sen. Alphonse D’Amato)
  • Stephen Murphy – nominated in 2006 to the Sixth Circuit (blue slipped by Democratic Sens. Carl Levin and Debbie Stabenow but ultimately confirmed to the District Court)
  • Shalom Stone – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sens. Frank Lautenberg and Bob Menendez)
  • E. Duncan Getchell – nominated in 2007 to the Fourth Circuit (blue slipped by Republican Sen. John Warner and Democratic Sen. James Webb)
  • U.S. District Judge Gene Pratter – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sen. Bob Casey)
  • Rod Rosenstein – nominated in 2007 to the Fourth Circuit (blue slipped by Democratic Sens. Barbara Mikulski and Ben Cardin)
  • U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked.  While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators.  As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on.  During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states.  In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans.  In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals.  In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees.  Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed.  Of these, 35 were from states requiring blue-slips from Republican senators.  Of these 35…

  • Five were District Court Judges originally nominated by Republican Presidents: Judges Fred Parker, Marcus, Traxler, Sotomayor, & Williams.
  • Four were District Court Judges nominated by Democratic Presidents but with strongly conservative records on the trial court: Judges Cabranes, Murphy, Hull, & Rendell.
  • Two were directly recommended by Republican senators: Judges Silverman & Tallman.
  • Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed.  Of these, 26 were from states with Republican home-state senators.  Of these 26…

  • Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.
  • Three were State Court Judges/Officials nominated by Republican Governors: Judge Christen, Phillips, & McHugh.
  • One was recommended by Republican senators: Judge Higginson.
  • Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.
  • Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.
  • Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed.  Of these, 31 were in states that had Democratic home-state senators.  Of these 31:

  • Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.
  • None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).
  • One was recommended by a Democratic senator: Judge Helene White.
  • Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall?  Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench.  Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges.  In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration.  Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals.  In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.

 

Bending Blue Slips: What was the Need?

For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previous statements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).

Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy.  You can make arguments on either side.

Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:

  • Former Indiana Supreme Court Justice Myra Selby
  • U.S. District Court Judge Abdul Kallon
  • Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood
  • Kentucky Supreme Court Justice Lisabeth Hughes

Let’s instead focus on what I keep asking myself about Grassley’s announcement:

What was the Need?

I have yet to find the masses of Trump appellate nominees being blocked by blue slips.  Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit.  In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so.  As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips.  So, why the urgency?

Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators.  But, in his statement justifying his actions, Grassley made no mention of this.  Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.

I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate.  With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections.  Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.

At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.

 

James C. Ho – Nominee to the U.S. Court of Appeals for the Fifth Circuit

As a well-respected appellate attorney, James C. Ho is a safe choice for the federal bench.  Furthermore, Ho, who has both a reputation as a solid conservative and impeccable academic credentials, would give the Trump Administration some badly needed diversity in their judicial ranks, as he would be the first Asian American on the Fifth Circuit, and only the third Taiwanese American federal judge.[1]

Background

Ho was born in Taiwan in 1973, immigrating to the U.S. a year later.  Ho received a B.A. with Honors in Public Policy from Stanford University in 1995, and went onto the University of Chicago Law School, graduating with High Honors in 1999.  After graduating, Ho clerked for Fifth Circuit Judge Jerry Edwin Smith, a noted conservative.

In 2001, Ho moved to Washington D.C. to work for the Civil Rights Division in the Department of Justice.  Ho later moved to the Office of Legal Counsel (OLC), working under Assistant Attorney General (and now federal judge) Jay Bybee.  In 2003, Ho was hired by newly elected Texas Senator John Cornyn to serve as his Chief Counsel.

In 2005, Ho was hired out of the Senate by Justice Clarence Thomas and served a one-year clerkship with the Justice.  After the clerkship concluded, Ho joined the law firm Gibson Dunn as an Associate.  Just two years later, Texas Attorney General Greg Abbott chose Ho to replace the departing Texas Solicitor General (and current U.S. Senator) Ted Cruz.

In 2010, Ho left the Texas Solicitor General’s Office to rejoin Gibson Dunn as a partner in their Dallas office.  Ho currently serves as the co-chair of the firm’s Appellate and Constitutional Law Practice Group.

History of the Seat

Ho has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on December 31, 2013 with Judge Carolyn Dineen King’s move to senior status.  King, an appointee of President Jimmy Carter, moved to senior status with three years left in the Obama Administration.  The Administration vetted Judge Marina Garcia Marmolejo, who Obama has previously tapped for the U.S. District Court for the Southern District of Texas, for the vacancy, but ultimately chose not to move forward with the nomination.[2]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The King vacancy, along with a second Texas vacancy opened by the retirement of Judge Emilio Garza, prompted a long negotiation involving Senators John Cornyn and Ted Cruz, as well as Texas Governor Greg Abbott, as the Trump Administration attempted to accommodate four candidates: Ho; Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[3]  Ho and Willett were ultimately nominated on September 28, 2017.[4]

Political Activity

Ho has been a generous donor to Republican candidates.  Cruz and Cornyn have been particular beneficiaries of his largesse, receiving $21806 and $7300 respectively.[5]  Additionally, Ho has contributed to $7600 to Cruz’s PAC, the Jobs, Growth, & Freedom Fund, and smaller contributions to Senators Chuck Grassley, Mike Lee, and Tom Cotton.

Legal Experience

While Ho is most celebrated as an appellate litigator, he spent the first five years of his legal career in government, working first for the Department of Justice, and then for Cornyn’s staff.  Notably, in February 2002, Ho drafted a memo to John Yoo, the Deputy Assistant Attorney General at OLC regarding the Interpretations of Article 3 of the Geneva Conventions.[6]  While the memo has not been made public, a section of it was cited by Yoo in his own memorandum claiming the legality of waterboarding and other interrogation tactics.[7]

During his initial stint as an associate at Gibson Dunn, Ho represented the American Civil Liberties Union (ACLU) , the Free Market Foundation, and the Texas Eagle Forum in successfully overturning restrictions on campaign money intended to influence the Texas House Speaker’s race.[8]

As Texas Solicitor General, Ho was tasked with representing the State of Texas in proceedings in state and federal court.  During his tenure, Ho argued one case at the U.S. Supreme Court, successfully arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not allow for suit against state officials in their private capacity.[9]  Ho also filed amicus briefs supporting the enforcement of the Second Amendment against municipalities in McDonald v. City of Chicago.[10]

Notably, as Solicitor General, Ho was also involved in the defense of the University of Texas’ affirmative action policies, challenged by conservatives who viewed them as discriminating against white applicants.[11]  Ho defended the affirmative action policies as “nuanced, student-by-student analysis.”[12]

After leaving the Texas Solicitor General’s office for Gibson Dunn, Ho took charge of their Appellate and Constitutional Law practice group.  In that capacity, Ho notably was part of the legal team defending the University of Texas’ admission policy at the U.S. Supreme Court.  The Supreme Court ultimately upheld the admission policy over charges that it constituted race-based discrimination, accepting Ho’s arguments.[13]

Speeches and Writings

Over the course of his legal career, Ho has both spoken and written on the law and the Constitution. Below are some of the key topics he has addressed.

Birthright Citizenship

Ho is a strong proponent of “birthright citizenship”: the guarantee in the Fourteenth Amendment that all individuals born in the United States gain citizenship, regardless of the legal status of their parents.  In 2007, Ho testified before the Texas Legislature against HB 28, a bill that would strip state services from the children of illegal immigrants, arguing that the bill violates the Fourteenth Amendment.[14]  Furthermore, in a 2006 article, Ho sharply criticized proposals to change birthright citizenship for children of illegal immigrants, noting that “birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”[15]

International Law, War, and Terrorism

In 2003, Ho authored an article responding to critics of the U.S. War in Iraq.[16]  Specifically, Ho argued that critics were mistaken in focusing the legitimacy of the coalition efforts on the presence or absence of Weapons of Mass Destruction (WMDs).[17]  Rather, Ho argued:

“…self-defense justification does not turn on evidence of WMD, but rather on the reasonable expectations and fears of the United States and Coalition partners…”[18]

Additionally, Ho co-authored an article with his old boss John Yoo on international law and terrorism.  In the article, Ho and Yoo argued that the September 11th terrorist attacks and subsequent conflict with Al Qaeda qualifies as a “war” under international law.[19]  They went to argue that, despite this fact, Al Qaeda members are not entitled to “prisoner of war” status or the protections that come with it.[20]

Overall Assessment

Ho would bring a truly unusual background to the federal bench.  He would be one of a handful of naturalized citizens serving on the federal judiciary, as well as one of the few with legislative and executive experience.

However, for all the unique qualities Ho would bring to the bench, he is nonetheless a fairly traditional nomination.  As a former Supreme Court clerk with a long history of appellate advocacy, Ho’s qualifications for the bench are unquestionable.  Further, while Ho is a strong conservative, his willingness to defend affirmative action and birthright citizenship for all shows the ability to reject conservative orthodoxy when it conflicts with the law.

Ultimately, many Democrats may decide that a principled conservative like Ho is the best they can hope for from the Trump Administration.  As such, Ho shouldn’t face the level of confirmation opposition as his co-nominee Willett, and will likely be confirmed swiftly.


[1] Judges Raymond Chen and Theodore Chuang are both Taiwanese American.

[2] Debra Cassens Weiss, 5th Circuit Nominees May Include a GOP Judge, ABA Journal, Dec. 10, 2013, http://www.abajournal.com/news/article/5th_circuit_nominees_may_include_a_gop_judge.  

[3] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.  

[4] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.  

[6] Al Kamen, Gonzales Witness Under Their Noses, Wash. Post, Jan. 10, 2005.

[7] Alliance for Justice, AJC Nominee Snapshot: James Ho, https://www.afj.org/wp-content/uploads/2017/11/AFJ-Snapshot-Ho.pdf.  

[8] Laylan Copelin, Outside Cash Allowed in Speaker’s Race, Austin American Statesman, Feb. 27, 2008.

[9] Sossamon v. Texas, 563 U.S. 277 (2011).

[10] 561 U.S. 742 (2010).

[11] Ralph K.M. Haurwitz, Judge Struggles with UT Race Bias Lawsuit, Austin American Statesman, May 20, 2008.

[12] See id.

[13] See Fisher v. University of Texas, 579 U.S. __ (2016).

[14] Juan Castillo, Panels Ask: Can State Fix Border Problems, Austin American Statesman, Mar. 29, 2007.

[15] James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367 (Summer 2006).

[16] James C. Ho, International Law and the Liberation of Iraq, 8 Tex. Rev. Law & Pol. 79 (Fall 2003).

[17] Id. at 79-80.

[18] Id. at 83.

[19] James C. Ho, John Yoo, The New York University – University of Virginia Conference on Exploring the Limits of International Law: The Status of Terrorists, 44 Va. J. Int’l L. 207, 209 (Fall 2003).

[20] Id. at 217-18.

Justice Don Willett – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Perhaps no other Trump nominee has the level of pre-nomination buzz as Willett.  The gregarious Texas Supreme Court Justice is particularly famous for his presence on Twitter, calling himself the “tweeter laureate of Texas.”[1]  Furthermore, Willett has attracted attention for his economically libertarian judicial philosophy and his presence on then-candidate Trump’s Supreme Court shortlist.[2]  In any case, his strongly held and demonstrated legal philosophies are likely to draw both controversy and opposition, making for a challenging confirmation process.

Background

Donny Ray Willett was born in Dallas, TX in 1966.  Willett attended Baylor University, graduating with a B.B.A. in 1988.  After graduating, Willett spent a year in Waco, TX, working as an LSAT instructor, a tutor, and a waiter at Steak and Ale Restaurant.  In 1989, Willett joined Duke University School of Law, getting a J.D. with Honors, and a M.A. in 1992.

After graduating, Willett clerked for the senior Judge Jerre Stockton Williams on the U.S. Court of Appeals for the Fifth Circuit, and then joined the Austin office of Haynes & Boone, LLP.

In 1996, Willett joined the Office of then-Governor George W. Bush as the Director of Research and Special Projects.  After Bush’s election to the Presidency, Willett served on the transition team, and moved to Washington D.C. to serve as Special Assistant to the President.

In 2002, Willett was tapped to be Deputy Assistant Attorney General at the Office of Legal Policy at the Department of Justice, handling both Justice policy and vetting judicial nominations. After a year there, Willett was hired by Texas Attorney General Greg Abbott to be the Deputy Attorney General for Legal Counsel.

In 2005, Willett was appointed by Governor Rick Perry to the Texas Supreme Court, filling a vacancy left by Priscilla Owen’s move to the Fifth Circuit.  He was narrowly elected to a full term in 2006, prevailing by a 51-45% margin over Democrat Bill Moody.  He was re-elected comfortably in 2012 and continues to serve on the Court.

History of the Seat

Willett has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on August 1, 2012 with Judge Emilio Garza’s retirement.  The Administration vetted Judge Xavier Rodriguez, a moderate Republican nominated to the U.S. District Court for the Western District of Texas by Bush, for the vacancy.[3]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The Garza vacancy, along with a second Texas vacancy opened by the retirement of Judge Carolyn Dineen king, prompted a long negotiation involving Senators John Cornyn and Ted Cruz, as well as Texas Governor Greg Abbott, as the Trump Administration attempted to accommodate four candidates: Willett; former Texas Solicitor General James Ho; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[4]  Willett and Ho were ultimately nominated on September 28, 2017.[5]

Political Activity

Willett serves as a Republican on the Texas Supreme Court (Texas judges are elected in partisan elections).  While initially appointed to the Court, Willett has campaigned for election to six-year terms on the court twice, winning with 51% in 2006, and 79% in 2012.

In his 2012 campaign, Willett ran numerous campaigns ads, championing descriptions of himself as “the judicial remedy to Obamacare,” and describing his efforts to keep the Ten Commandments on display.  Willett also unveiled endorsements from Abbott and the controversial Texas Lt. Gov. Dan Patrick.

Legal Career

With the exception of a short stint litigating at Haynes and Boone, Willett has spent virtually his entire pre-bench legal career in policy.  Willett began this stint as a policy advisor to then-Governor George W. Bush.  When Bush ran in the 2000 Presidential Election, Willett joined the campaign as a policy advisor, responsible for coordinating policy outreach to various interest groups and advocacy organizations.  After Bush’s election, Willett served on the transition team.

In 2001, Willett was hired by Bush to be Special Adviser to the President.  In this role, Willett sat on the Domestic Policy Council, as well as heading Bush’s Office of Faith-Based and Community Initiatives.  In 2002, Willett moved to the Department of Justice, heading the Office of Legal Policy.  In that capacity, Willett helped vet federal judicial nominees, as well as developing the PROTECT Act.

In 2003, Willett was hired by Abbott to be Deputy Attorney General for Legal Counsel.  In this capacity, Willett advised Abbott on various legal issues affecting the State of Texas.  Additionally, Willett, along with Cruz, filed an amicus brief at the Supreme Court opposing a suit arguing that the words “under god” in the Pledge of Allegiance violated the Establishment Clause of the U.S. Constitution.[6]  Willett also assisted in leading the State of Texas’ successful defense of its Ten Commandments monument at the U.S. Supreme Court.[7]

Jurisprudence

Willett has served on the Texas Supreme Court for more than twelve years.  The Texas Supreme Court has an exclusively civil docket, and as such, it has been on civil matters that Willett has developed a record.  Willett’s jurisprudence emphasizes limitations on the state’s police power, broad views of economic liberty and property rights.

Economic Liberty

Willett’s most famous opinion is likely his concurrence in Patel v. Texas Department of Licensing & Regulation, where he lays out his views on economic rights protected under the Constitution.  Patel involved a challenge to Texas’ licensing scheme for eyebrow threaders.[8]  The Texas Supreme Court upheld the challenge, holding that Texas’ licensing scheme was “so burdensome as to be oppressive” under the Texas Constitution.[9]  In concurrence, Willett, joined by Justices Debra Lehrmann and John DeVine, wrote:

“Self-ownership, the right to put your body and mind to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.”[10]

Willett went on to detail the history of Texas licensing programs, finally noting:

“…the Texas occupational licensure regime…[forces] many lower-income Texans to face a choice: submit to illogical bureaucracy or operate an illegal business?”[11]

Finally, Willett rejects what he terms “judicial passivity” deeming it “incompatible with individual liberty and constitutionally limited government.”[12]

In response, Chief Justice Nathan Hecht, himself a Republican, accused the majority of twisting the law to favor their own policy preferences, noting:

“Result is an inapt tool for shaping principle; it’s supposed to work the other way around.”[13]

Freedom of Speech

In Service Employees International Union 5 v. Professional Janitorial Services of Houston, Inc., Willett dissented from the Texas Supreme Court’s refusal to hear an appeal from a lower court ruling holding that professional websites that do not have the “primary business” of reporting the news do not qualify for the protections offered to “electronic media” under Texas law.[14]  In his dissent, Willett urged the Court to take the case and clarify the protections offered to blogs and other nontraditional news sources, noting:

“I doubt the Framers intended that First Amendment protections were meant solely for the institutional press and ‘professional’ journalists.”[15]

Tort & Discrimination Actions

In several cases, Willett has sided with defendants against plaintiffs alleging tort and discrimination claims.[16]  For example, in Mission Consolidated Independent School District v. Garcia, Willett held that an employee could not make a prima facie case of age discrimination where they had been replaced with an employee who was older than them.[17]  In dissent, Chief Justice Wallace Jefferson wrote:

“That Garcia did not establish the elements of a prima facie case means only that a court will not presume discrimination — it does not mean Garcia cannot possibly prevail. By equating the two inquiries, the Court dismisses Garcia’s claims prematurely and forces her to prove her case to establish jurisdiction.”[18]

Property Rights

In El Ali v. Texas, Willett dissented from the Texas Supreme Court’s refusal to hear a due process challenge to Texas’ civil forfeiture law.[19]  In his dissent, Willett argued that the law infringes on property owners’ rights by requiring them to prove their innocence to recover forfeited property.[20]

Tweets

In addition to his legal philosophy, Willett is known for his active presence on the social media platform Twitter.  Under the handle @JusticeWillett, Willett has tweeted on various subjects including sports, history, and politics.  Willett’s tweets have been described as “humorous,”[21] and “entertaining.”[22]

Notably, Willett issued a series of tweets mocking then-candidate Donald Trump in 2016, including satirizing Trump’s referral to Hillary Clinton as “low-energy” and his insistence that Mexico would pay for a U.S.-Mexico border wall.[23]  In fact, some commentators suggested that Willett’s slow path to the bench was the result of his anti-Trump tweets.[24]

Willett has reportedly agreed to stop tweeting as a condition of his nomination.[25]

Overall Assessment

Willett’s nomination has already drawn buzz from conservative and libertarian groups, as well as fierce opposition from civil rights groups and liberal interest organizations.  This is largely because, with Willett, what you see is what you get.  Willett has a demonstrated record as a strongly conservative jurist, and is likely to establish an equally conservative profile on the federal bench.

For critics looking to make a case against Willett, they will likely argue that his concurrence in Patel shows a tendency to reject judicial restraint, and embrace activism from the bench.  It is possible, although unlikely, that some Republicans, who favor the Bork model of judicial restraint, may see this as a reason to vote against Willett.

Nevertheless, one key distinction must be noted.  On the Texas Supreme Court, Willett sat as one of the primary arbiters of Texas law.  On the Fifth Circuit, Willett is bound not only by the U.S. Supreme Court, but also by prior circuit precedent.  As such, Willett will have far less opportunity to shape a Lochnerian revolution from the appellate bench.

Overall, Willett is likely to have a similar profile on the bench to the now retired Judge Janice Rogers Brown, another former state supreme court justice appointed to the federal court of appeals.  Like Brown, Willett is likely to be an advocate of “judicial engagement” from the bench.  However, Willett’s ultimate success in this endeavor will be limited by the limited role of the federal judiciary.  If Willett is ever nominated for the Supreme Court, however, all bets are off.


[1] Alex Pappas, Trump Taps ‘Tweeter Laureate of Texas’ Willett for Federal Appeals Court, Fox News, Sept. 28, 2017, http://www.foxnews.com/politics/2017/09/28/trump-taps-tweeter-laureate-texas-willett-for-federal-appeals-court.html.  

[2] Eric Benson, Don Willett’s Quiet Revolution, Texas Observer, Nov. 17, 2016, https://www.texasobserver.org/don-willett-trump-supreme-court/.  

[3] Debra Cassens Weiss, 5th Circuit Nominees May Include a GOP Judge, ABA Journal, Dec. 10, 2013, http://www.abajournal.com/news/article/5th_circuit_nominees_may_include_a_gop_judge.  

[4] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.  

[5] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.  

[6] Brief for the State of Texas, et al. as Amicus Curiae supporting Petitioner, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

[7] Van Orden v. Perry, 545 U.S. 677 (2005).

[8] See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69 (2015).

[9] See id. at 88.

[10] See id. at 92 (Willett, J., concurring).

[11] Id. at 108.

[12] Id. at 137.

[13] Id. at 145 (Hecht, C.J., dissenting).

[14] See 481 S.W.3d 210 (Tex. 2014) (Willett, J., dissenting from denial of pet.).

[15] Id. at 213.

[16] See Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014); Mission Consolidated Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012); Waffle House Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010).

[17] Mission Consolidated Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 643 (Tex. 2012)

[18] Id. at 644 (Jefferson, C.J., dissenting).

[19] See El Ali v. Texas, 428 S.W.3d 824 (Tex. ) (Eid, J., concurring).

[20] Id. at 828-29.

[21] Greg Price, Trump Administration Tells Justice Dan [sic] Willett to Shut Down His Twitter, Ignoring the President’s Tweets, Newsweek, Oct. 20, 2017, http://www.newsweek.com/trump-twitter-judge-shut-down-689554.

[22] Ken Herman, Twitter Silence From Texas Tweeter Laureate, Austin American Statesman, Oct. 13, 2017, http://www.mystatesman.com/news/opinion/herman-twitter-silence-from-texas-tweeter-laureate/tSDVSBXRZ25hR3RHuCA4II/.

[23] Bobby Blanchard, 9 Times Texas Supreme Court Justice Don Willett Dissed Donald Trump on Twitter, The Dallas Morning News, May 2016, https://www.dallasnews.com/news/politics/2016/05/18/9-times-texas-supreme-court-justice-don-willett-threw-shade-at-donald-trump-on-twitter.

[24] See, e.g., Dianna Wray, Is Don Willett Being Kept From the Federal Bench Because of His Trump Tweets, Houston Press, June 20, 2017, http://www.houstonpress.com/news/is-texas-supreme-court-justice-don-willett-not-on-the-fifth-circuit-us-court-of-appeals-because-of-donald-trump-9529982.  

[25] See Price, supra n. 21.

John Broomes – Nominee to the U.S. District Court for the District of Kansas

John Broomes, a corporate lawyer based in Wichita, brings a diverse background to the bench, having worked in the U.S. Navy, as an engineer, and as a manager at Koch Industries before changing careers to become a lawyer.  This experience makes Broomes an unusual choice for a judicial nominee.

Background

John Wesley Broomes was born in New Orleans in 1969.  Broomes attended the University of Texas at Austin, graduating with a B.S. in Petroleum Engineering in 1991.  Upon graduation, Broomes joined the U.S. Navy as a Lieutenant and Submarine Officer.  After serving for five years, Broomes moved to Wichita, Kansas to be an Engineer and Ranch Supervisor at Castle Rock Ranch, Inc.

In 1997, Broomes left Castle Rock Ranch to move to the communications company Omnipoint Communications, Inc. as a Project Manager.  He left the position that same year to Koch Industries, Inc., working as a Project Manager.  In 2000, Broomes was elevated to be a Laboratory Manager.

In 2000, Broomes left Koch Industries, Inc. to attend Washburn University School of Law in Topeka.  After graduating, Broomes served as a Law Clerk to U.S. Magistrate Judge Donald Bostwick on the U.S. District Court for the District of Kansas, and then to U.S. District Judge Monti Belot on the same court.

In 2007, Broomes joined the Wichita office of the Hinkle Law Firm LLC. as an Associate.  In 2010, Broomes was elevated to be a Partner at the office, where he currently works.

History of the Seat

Broomes has been nominated for a vacancy on the U.S. District Court for the District of Kansas.  This vacancy opened when Judge J. Thomas Marten moved to senior status on May 1, 2017, a move that had been announced a year in advance.[1]

In December 2016, Broomes expressed his interest in a federal judgeship with Kansas Senators Pat Roberts and Jerry Moran.  After interviews with Roberts and Moran, Broomes’ name was submitted to the White House.  Broomes interviewed with the White House Counsel’s Office and the Department of Justice on May 19, 2017.  He was officially nominated on September 7, 2017.

Political Activity

Broomes, a Republican, has donated both time and money to other Republicans running for office.  Broomes discloses in his Senate Judiciary Questionnaire that he serves as Republican Precinct Committeeman for Payne Township, a position he has held since 2010.  Furthermore, Broomes has served on the campaign committee of Kansas Republican Dennis Hedke.  Broomes has also donated to former Republican Congressmen Mike Pompeo and Todd Tiahrt, as well as the Presidential campaigns of Mitt Romney in 2012, and Ted Cruz in 2016.[2]

Legal Experience

Other than his experience as a law clerk on the federal bench, Broomes’ primary legal experience is his ten years of practice at the Hinkle Law Firm.  In this capacity, Broomes serves as an outside legal adviser for many large businesses, advising them on both transactional and litigation matters.  Among the matters he has litigated, Broomes has taken on a number of complex cases involving the oil and gas industry, including a class action involving royalties,[3] oil and gas lease disputes,[4] and leasehold interests.[5]

In one case, Broomes was named as a defendant in a fraudulent misrepresentation case involving his conduct as litigation counsel.  Specifically, Broomes and the Hinkle Law Firm were sued by Paul Atkins, the defendant in a breach of contract case filed by Broomes, who argued that Broomes’ submissions of exhibits in the breach of contract action constituted “fraud upon the court.”[6]  The actions were ultimately dismissed by the federal trial judge and affirmed by the Tenth Circuit.[7]

Writings

Both as a student and as an attorney, Broomes has written and published several legal articles.  Most of these focus on natural resources, oil and gas rights, and resource rights.  However, two of Broomes’ earlier articles address more controversial subjects, namely the interpretation of statutory language in the Clean Water Act, and the rights of terrorism suspects at Guantanamo Bay.

Legislative History and the Clean Water Act

In 2001, Broomes released a Comment in the Washburn Law Journal titled “Navigating in Isolated Waters: Section 404 of the Clean Water Act Revisited.”[8]  The piece discusses the then-recent Supreme Court decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, which limited section 404 of the Clean Water Act from regulating isolated, intrastate waters.[9]  In the article, Broomes disagrees with Chief Justice Rehnquist’s majority opinion in its finding that the plain text of the section compelled the limitation.  Instead, Broomes notes that “the provision’s clarity arises not from the plain text of the statute, but from its legislative history.”[10]  Broomes goes on to criticize the majority’s reliance on the plain meaning of the statute as “[approaching] the case with a rather cavalier tone.”[11]

Instead, Broomes finds support for the majority’s reading from the Clean Water Act’s legislative history, noting:

“Furthermore, the legislative history of the 1977 Amendments shows overwhelming disapproval of the jurisdictional position taken by the Corps.”[12]

He notes that this legislative history is the “richest source of support” for the majority’s holding, and by failing to rely on it, the majority “undermines the credibility of its opinion and positions this case for overruling as an aberration.”[13]

Rights for Terrorism Suspects

As a law student, Broomes published an article in the Washburn Law Journal titled “Maintaining Honor in Troubled Times: Defining the Rights of Terrorism Suspects Detained in Cuba.”[14]  The article endorses trying terrorism suspects detained at Guantanamo Bay in federal courts.[15]  Specifically, Broomes acknowledges the limited application of Fourth, Fifth, and Sixth Amendment protections outside the domestic criminal context, but nonetheless endorses the rights of prisoners to seek writs of habeas corpus in federal courts,[16] noting:

“…the federal judiciary must properly fulfill its responsibility to review these detentions and military trials through the writ of habeas corpus.”[17]

The U.S. Supreme Court endorsed the right of terrorism suspects to seek the writ of habeas corpus in federal court in 2008.[18]

Overall Assessment

As a Republican tapped for the federal bench by a Republican President, it can be surmised that Broomes will be a judicial conservative.  However, Broomes’ writings suggest a willingness to stray from conservative legal ideology.  First, Broomes’ article on Solid Waste Agency suggests a willingness to embrace legislative history, in contrast with the well-outlined positions of Justice Clarence Thomas and the late Justice Antonin Scalia, who disfavored it.  Furthermore, Broomes’ endorsement of habeas rights for Guantanamo detainees takes the position favored by the Supreme Court majority in Boumediene, and not the one embraced by the Court’s conservative bloc.  While these writings are from very early in Broomes’ legal career, and while his views may have evolved from that point, they suggest a moderate conservative outlook on the bench.  As such, Broomes should not expect much opposition in the confirmation process.


[1] Press Release, Kansas Bar Association, Hon. J. Thomas Marten Announces Decision to Take Senior Status (June 8, 2016) (on file at https://www.ksbar.org/news/292977/Hon.-J.-Thomas-Marten-Announces-Decision-to-Take-Senior-Status.htm).

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=john+broomes (last visited Nov. 12, 2017).

[3] Wallace B. Roderick Irrevocable Trust v. XTO Energy, Inc., Case No. 08-cv-01330, 2016 WL 4039641 (D. Kan. July 28, 2016).

[4] Hall Penderosa, LLC. v. Petrohawk Properties, L.P., 90 So. 3d 512 (La. Ct. App. 2012).

[5] Perionnet v. Matador Res. Co., 144 So. 3d 791 (La. 2013).

[6] See Atkins v. Heavy Petroleum Partners, LLC., 635 Fed. Appx. 483, 485-86 (10th Cir. 2015).

[7] See id. at 484.

[8] John W. Broomes, Navigating in Isolated Waters: Section 404 of the Clean Water Act Revisited, 41 Washburn L.J. 209 (Fall 2001).

[9] 531 U.S. 159 (2001).

[10] Broomes, supra n. 9 at 223.

[11] Id.

[12] Id. at 229.

[13] Id. 

[14] John W. Broomes, Maintaining Honor in Troubled Times: Defining the Rights of Terrorism Suspects Detained in Cuba, 42 Washburn L.J. 107 (Fall 2002).

[15] See id. at 108.

[16] Id. at 131-33.

[17] Id. at 140.

[18] Boumediene v. Bush, 553 U.S. 723 (2008).

Rebecca Grady Jennings – Nominee to the U.S. District Court for the Western District of Kentucky

A Louisville based civil litigator, Rebecca Grady Jennings is on track to become the first woman exclusively appointed to the U.S. District Court for the Western District of Kentucky. (Judge Jennifer Coffman was appointed to a joint seat serving both the Western and the Eastern Districts of Kentucky.  However, Coffman was a Lexington attorney in the Eastern District prior to her appointment).  While Jennings is very young (not even 40), she is unlikely to draw significant opposition due to her mainstream background.

Background

Jennings was born Rebecca Christine Grady in Wilmington, DE in 1978.  Jennings attended Emory University, along with a stint studying abroad at Oxford, graduating in 1999.  Upon graduation, Jennings attended American University Washington College of Law, graduating in 2002.

Jennings then clerked for Judge William Haynes on the U.S. District Court for the Middle District of Tennessee. After her clerkship, Jennings joined the Louisville Kentucky office of Middleton Reutlinger PSC as an Associate.  Jennings was elevated to be a Director in 2009, and has served as Chair of the Litigation Department since 2014.

History of the Seat

Jennings has been nominated for a seat on the U.S. District Court for the Western District of Kentucky.  This seat opened on April 1, 2014, when Judge John G. Heyburn moved to senior status.  While the seat opened in President Obama’s second term, the Obama Administration and Kentucky Senators Mitch McConnell and Rand Paul were unable to reach an agreement on a nominee to fill the vacancy.  As such, no nomination was put forward by the Obama Administration.

Jennings received a call from Paul’s office indicating her consideration for a federal judgeship in April 2017.  After interviews with Paul and McConnell, Jennings’ name was recommended to the White House.  Jennings interviewed with the White House and the Department of Justice in May, and her nomination was officially put forward on September 7, 2017.

Political Activity

While Jennings has never held public office, she has donated occasionally to Republicans.[1]  Among her donations, Jennings gave $1000 to the senatorial campaign of Trey Grayson, $1000 to McConnell, and $1000 to the Republican Party of Kentucky.

Legal Experience

After her clerkship on the U.S. District Court for the Middle District of Tennessee, Jennings has spent the rest of her legal career at the same firm: the Louisville law firm Middleton Reutlinger, serving first as a litigation associate, then as a partner, and finally as head of the litigation division.  In this role, Jennings mainly focuses on complex commercial litigation, including contract claims, professional malpractice, and intellectual property.  Jennings also maintains an employment law portfolio, primarily defending employers against discrimination claims, but also working on compliance matters.

In one of her more prominent cases, Jennings represented Republican Dana Seum Stephenson, who had been elected to the Kentucky State Senate in 2004.[2]  Stephenson’s opponent Virginia Woodward challenged Stephenson’s seating, arguing that Stephenson did not meet the Kentucky Constitution’s residency requirements.  Jennings was part of the legal team representing Stephenson throughout the proceedings, and at the Kentucky Supreme Court, which affirmed a lower court ruling holding that Stephenson was ineligible to serve.[3]

Jennings has also frequently defended school districts against First Amendment and sex discrimination challenges.  She notably defended school programs offering single-sex classes,[4] school dress codes,[5] and school locker room assignment plans.[6]

Overall Assessment

In a hearing expected to be dominated by the testimony of the American Bar Association (ABA), it is unlikely that Jennings will draw much controversy.  Despite her age, Jennings was rated Qualified by the ABA, and has fifteen years of substantive legal experience, significantly more than many of the other young nominees.  Furthermore, Jennings has Paul and McConnell, both influential senators, as her champions.  As such, it is likely that Jennings will be confirmed by the Senate before the end of the year.


[1] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=rebecca+jennings&order=desc&sort=D (last visited Nov. 9, 2017).

[2] Stephenson v. Woodward, 182 S.W.3d 162 (Ky. 2005).

[3] See id. 

[4] A.N.A. ex rel. S.F.A. v. Breckenridge Cty. Bd. of Educ., 833 F. Supp. 2d 673, 675 (W.D. Ky 2011).

[5] Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005).

[6] Richards et al v. Oldham Cnty. Bd. of Educ. et al., Civil Action No. 3:10-CV-00769 (W.D. Ky) (United States District Judge John G. Heyburn II).

Elizabeth L. “Lisa” Branch – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Judge Elizabeth L. “Lisa” Branch, President Trump’s second nominee to the Eleventh Circuit, is a state appeals court judge in Georgia with experience in the George W. Bush administration and as a BigLaw commercial litigator. While she has not had the opportunity to opine much on constitutional law, either as an attorney or judge, Branch is a member of the conservative Federalist Society (as is Judge Kevin Newsom, Trump’s first pick for the Eleventh Circuit).  As such, her confirmation will likely ensure a conservative en banc Eleventh Circuit for the foreseeable future.

Background

Elizabeth Lee[1] Branch was born in Atlanta, Georgia, in 1968.[2] She graduated from Davidson College in North Carolina in 1990, and from the Emory University School of Law in 1994. At Emory, Branch served on the Emory Law Journal and was inducted into the Order of the Coif,[3] indicating her position in the top ten percent of her class.[4] After law school, she clerked for two years in Atlanta for Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia.[5] Thereafter, from 1996 to 2004, she worked  at the law firm of Smith, Gambrell & Russell, LLP.[6] This was followed by four years in the Bush Administration, where she served in non-litigating positions,[7] first as the associate general counsel for rules and legislation at the Department of Homeland Security, then as the special assistant and counselor to the administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.[8]

In 2008, Branch returned to Smith, Gambrell & Russell as a partner in the commercial litigation group,[9] also working some on government affairs.[10] In 2012, Branch was appointed by Governor Nathan Deal to the Georgia Court of Appeals.[11]

While at the Georgia Court of Appeals, Branch has served and continues to serve on various internal court committees, and from 2013 to 2017 she also served as a commissioner, appointed by Governor Deal,[12] on the Georgia Child Support Commission.[13]

Among many other affiliations, Branch has been a member of the Federalist Society since 2001.[14] She served on the Executive Board of the Atlanta Lawyers Chapter from approximately 2009 to 2012, and she has served on that chapter’s Board of Advisors from 2012 to the present.[15] From approximately 2001 to 2003, and from 2006 to 2009, she was a member of the Republican National Lawyers Association.[16] She was on the Chairman’s Council of the Fulton County Republican Party from approximately 2011-2012, and she was a member of the National Rifle Association from 2009 to 2014.[17]

Political Activities

Prior to becoming a judge, Branch engaged with several political campaigns as an unpaid volunteer, including participating in the Republican National Committee’s 2006 door-to-door efforts supporting Rick Santorum (unsuccessfully) for a third Senate term.

History of the Seat

Branch has been nominated for a Georgia seat on the U.S. Court of Appeals for the Eleventh Circuit. The vacancy will result from Judge Frank Hull’s impending move to senior status.  As Hull, one of the court’s solidly conservative members, has indicated that she will not move to senior status until the confirmation of her successor, there is not an active vacancy currently on the Eleventh Circuit.

Legal Career

Branch has never practiced before the Supreme Court of the United States,[18] but rather has focused her career on commercial litigation and subsequent service in the federal government in a non-litigating position.[19] Having not served in an attorney general’s or solicitor general’s office, she does not have a record of making controversial arguments or supporting controversial laws.

As part of the U.S. Senate’s Questionnaire for Judicial Nominees, Judge Branch was required to list the ten most significant litigated matters that she personally handled.[20] All ten were civil, four settled, and none concerned constitutional law or civil-rights laws. Only one of the ten listed resulted in a reported decision.[21] As such, it is difficult to determine her legal views on almost any subject from her work as an attorney. Branch’s pre-judicial career as an attorney does not appear, by itself, to shed any light on her views of separation of powers, federalism, privacy, equal protection, due process, religious freedom, or speech, for example. As will be noted, this is true of her judicial career as well.

Jurisprudence

Although Branch has been a state appellate judge for more than five years and has participated in more than 1,500 cases,[22] her decisions say little about her views on constitutional law. This is because the Georgia Court of Appeals “has statewide appellate jurisdiction of all cases except those involving constitutional questions, murder, and habeas corpus cases where original appellate jurisdiction lies with the Supreme Court [of Georgia].”[23] Her court nevertheless has jurisdiction “to address constitutional issues when they are well-settled as a matter of law,” and Judge Branch participated in a number of criminal appeals raising constitutional issues.[24] As a whole, those criminal-law opinions do not reflect an anti-defendant bias. In a number of cases, Branch has granted new trials as a result of ineffective assistance of counsel[25] and reversed denials of motions of suppress (or affirmed the grant of a motion to suppress),[26] which resulted in some convictions being reversed.[27]

But, by and large, her views on major issues of constitutional law are not available to us from her judicial record. That is not to say, of course, that nothing can be gleaned from her prior cases.

In a case seemingly designed to end up in blog posts such as this, Judge Branch held in Gary v. State that a man could not be convicted of criminal invasion of privacy under O.C.G.A. § 16-11-62(2) for recording video up a woman’s skirt with his cell phone while at the grocery store.[28] Perhaps aware that the eyebrow-raising nature of the holding might draw attention–either upon entry of the decision or in future confirmation hearings such as the one at which she will soon appear–Judge Branch took pains to explain what she was and was not saying:

“Each of Gary’s first four enumerations of error turns on whether OCGA § 16–11–62 (2) criminalizes the conduct at issue. With respect to this question, both the State’s argument and the trial court’s holding focused on two propositions: (i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated. Rather, the only issue presented by this appeal is whether the defendant’s conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16–11–62 (2).

The answer to this question necessarily must begin with the language of OCGA § 16–11–62 (2) itself.”[29]

Turning to that language–which makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view”–along with language from surrounding subsections and an earlier definitions section, Branch concluded that the term “private place” did not include a particular region of a person’s body.[30] Five of her colleagues joined her opinion, and together they noted “that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. . . . The remedy for this problem, however, lies with the General Assembly, not with this Court. Both our constitutional system of government and the law of this State prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions thereof.”[31] Three judges dissented, finding that the very same “plain and unambiguous language” of the statute yielded the opposite result.[32]

Branch also resorted to plain statutory language in holding that two transgender men had a right to change their names, in In re Feldhaus.[33] (Disclosure: the ACLU, for whom I work, filed an amicus brief in the case.) Although she pointedly did not use personal pronouns to describe the men–instead employing an awkward “the person formerly known as x” formulation–the judge formerly and currently known as Lisa Branch appropriately recognized that all the Georgia name-change statute requires is that a person not change their name in an attempt to defraud others, and that the transgender petitioners’ attempts to change their names to ones consistent with their gender identity in the cases before her were not an attempt to defraud others.[34] In so holding, the judge formerly and currently known as Lisa Branch offered a clear rejection of the approach taken by the many state trial judges–not just in Georgia but across the country–who unlawfully burden transgender petitioners for name changes with additional requirements or criteria that are nowhere enumerated or implied and are not applied to any other class of petitioner.

Branch’s interpretation of purportedly plain language was not always uncontroversial. Beyond the skirt-photographing case described above, in the Cook case Judge Branch–joined by two colleagues–interpreted the federal Medicaid statute to be unambiguous in indicating that the Medicaid applicant’s purchase of an annuity was not subject to an asset-transfer penalty, and thus refused to defer to the relevant federal agency’s contrary interpretation.[35] The Supreme Court of Georgia–while splitting on the degree of agency deference required–unanimously disagreed that the language unambiguously required Branch’s interpretation.[36]

Preceding another prominent reversal on a matter of statutory interpretation, Branch formed part of a three-judge plurality that held that police officers of Agnes Scott College–a private college–were entitled to immunity as “state officer[s] or employee[s]” under the Georgia Tort Claims Act.[37] (One judge concurred in the judgment, while three judges dissented.)[38] The Supreme Court of Georgia unanimously reversed, finding it “clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”[39] Looking beyond the specific statutory provision considered by the Court of Appeals plurality, the Supreme Court of Georgia found that “reading the Georgia Tort Claims Act as a whole makes it abundantly clear that the immunity it provides is limited to torts committed by a ‘state officer or employee’ who was acting within the scope of his or her official duties or employment on behalf of a specific ‘state government entity.’”[40]

In each of the cases described above, the distinguishing factor between Branch and her colleagues or the parties was statutory interpretation. What was plain to her was sometimes plainly different to her colleagues. This, of course, is true of all judges, and it will surely continue to mark her future cases, whether she remains in her current position or is confirmed to the Eleventh Circuit.

Writings

Branch does not have many publicly available non-judicial writings. While at OIRA, she co-authored a law-review article entitled “Managing the Regulatory State: The Experience of the Bush Administration.”[41] While an assessment of the Bush Administration’s OMB–including its approach to “smart regulation” and its use of “prompt” letters–is well beyond the scope of this blog post,[42] the piece is notable for its surprisingly statist–relatively speaking–acknowledgment of the importance of regulation:

“Every President from Richard Nixon to George W. Bush has embraced centralized executive oversight of agency regulations. Even critics of OMB acknowledge the legitimacy of a centralized oversight function. Presidents have found regulatory oversight to be necessary and desirable because: (i) the regulatory state is a permanent part of the legal landscape of the United States; (ii) the economic costs of the regulatory state are substantial; (iii) a consensus is needed when executive branch disagreements about regulation arise; and (iv) federal regulations are often necessary to achieve legislative objectives and implement Presidential priorities and policy objectives. Virtually all scholarship on this subject acknowledges the increasing importance of OMB’s role in regulatory policymaking over the past thirty years.”[43]

Although the piece is highly technocratic, promotes science, and gives some amount of attention to so-called unquantified benefits such as a human health and environmental quality, it would be reading too much into this article to suggest that an appreciation of agency expertise will lead Branch to defer to that expertise when the statutory language does not require it. Instead, she will likely seek simply to apply language that she perceives to be unambiguous.

Overall Assessment

Branch’s legal career provides very little insight into how she would operate as an Eleventh Circuit judge faced with a wide range of constitutional questions, as she has not publicly staked out a position on any hot-button legal issue. Her most controversial public acts seem to be joining the NRA and supporting incumbent senator Rick Santorum, holder of a variety of controversial views. Branch’s membership in the Federalist Society is the clearest indication of where her judicial philosophies lie, and her confirmation would likely ensure a conservative en banc Eleventh Circuit for many years to come.


[1] State Bar of Georgia, Hon. Elizabeth Lee Branch, https://www.gabar.org/MemberSearchDetail.cfm?ID=MDc2MDMw (all websites visited Oct. 25, 2017); Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[2] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[3] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[5] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[6] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[7] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[10] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[11] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[12] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[13] Questionnaire for Judicial Nominees at 4-5, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[14] Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[15] Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[16] Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[17] Questionnaire for Judicial Nominees at 6, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[18] Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[19] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[20] Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[21] Questionnaire for Judicial Nominees at 50, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf; Wood v. Archbold Med. Ctr., Inc., 738 F. Supp. 2d 1298 (M.D. Ga. 2010).

[22] Questionnaire for Judicial Nominees at 22, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[23] Court of Appeals of the State of Georgia, http://www.gaappeals.us/.

[24] Questionnaire for Judicial Nominees at 42, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[25] Shaw v. State, 340 Ga. App. 749, 798 S.E.2d 344 (2017); McLaughlin v. State, 338 Ga. App. 1, 789 S.E.2d 247 (2016).

[26] Watts v. State, 334 Ga. App. 770, 780 S.E.2d 431 (2015); Causey v. State, 334 Ga. App. 170, 778 S.E.2d 800 (2015); Bodiford v. State, 328 Ga. App. 258, 761 S.E.2d 818 (2014); Corey v. State, 320 Ga. App. 350, 739 S.E.2d 790 (2013); State v. Carr, 322 Ga. App. 132, 744 S.E.2d 341 (2013); Williams v. State, 318 Ga. App. 715, 734 S.E.2d 535 (2012).

[27] Arp v. State, 327 Ga. App. 340, 759 S.E.2d 57 (2014).

[28] Gary v. State, 338 Ga. App. 403, 403-04, 790 S.E.2d 150 (2016).

[29] Gary v. State, 338 Ga. App. 403, 405, 790 S.E.2d 150 (2016).

[30] Gary v. State, 338 Ga. App. 403, 405-09, 790 S.E.2d 150 (2016).

[31] Gary v. State, 338 Ga. App. 403, 409-10, 790 S.E.2d 150 (2016).

[32] Gary v. State, 338 Ga. App. 403, 410-13, 790 S.E.2d 150 (2016) (Mercier, J., dissenting).

[33] In re Feldhaus, 340 Ga. App. 83, 796 S.E.2d 316 (2017).

[34] In re Feldhaus, 340 Ga. App. 83-85, 796 S.E.2d 316 (2017).

[35] Cook v. Glover, 295 Ga. 495, 495-96, 761 S.E.2d 267 (2014).

[36] Cook v. Glover, 295 Ga. 495, 495-502, 761 S.E.2d 267 (2014); Cook v. Glover, 295 Ga. 495, 502-04, 761 S.E.2d 267 (2014) (Nahmias, J., concurring specially).

[37] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 458-59, 759 S.E.2d 857 (2014).

[38] See Agnes Scott Coll. v. Hartley, 321 Ga. App. 74, 81-86, 741 S.E.2d 199 (2013) (Boggs, J., concurring in the judgment; Miller, J., dissenting).

[39] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 459, 759 S.E.2d 857 (2014).

[40] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 463-64, 759 S.E.2d 857 (2014).

[41] John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953 (2006).

[42] See generally Daniel H. Cole, Law, Politics, and Cost-Benefit Analysis, 64 Ala. L. Rev. 55 (2012).

[43] John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953, 955-56 (2006) (footnotes omitted).