Matthew Petersen – Nominee to the U.S. District Court for the District of Columbia

A Commissioner at the Federal Election Commission (FEC), Matthew Petersen is the last of four Trump nominees to the U.S. District Court for the District of Columbia to come before the Senate Judiciary Committee.  While Petersen boasts an extensive resume with experience in election law, he may face pushback based on his tenure at the FEC.

Background

Matthew Spencer Petersen was born in Torrance, CA in 1970.  He matriculated at Utah State University in 1988 and then at Utah Valley University (then Utah Valley State College) in 1991, graduating with an A.S. with High Honors in 1996.  Petersen also matriculated at the University of Utah in 1993, transferring to Brigham Young University in 1994, and getting a B.A. magna cum laude in 1996.

Petersen then joined the University of Virginia School of Law, graduating in 1999.  After graduating, Petersen joined the Washington D.C. Office of Wiley Rein.

In 2002, Petersen was hired by the Republican majority on the Committee on House Administration as Majority Counsel.  He served in that capacity for three years, notwithstanding a short stint as Counsel to the Republican National Committee in late 2004.  In 2005, Petersen moved to the Senate to work as Chief Counsel for the Republicans on the Committee on Rules and Administration.

In 2008, Petersen was one of five new appointments to the FEC, a regulatory agency seeking to enforce campaign finance law.[1]  Specifically, Petersen was nominated to replace Hans Von Spakowsky, the controversial nominee previously recess-appointed to the Commission by President George W. Bush.[2]  While his term expired in 2011, Petersen continues to serve as a Republican representative on the Commission.

History of the Seat

The seat Petersen has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[3]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On May 20, 2017, Petersen was contacted by the White House Counsel’s Office to gauge his interest in an appointment to the U.S. District Court for the District of Columbia.  (Notably, the current White House Counsel Don McGahn served as a Republican member of the FEC alongside Petersen for five years.)  Petersen was formally nominated on September 11, 2017.

Legal Experience

Petersen has a relatively unusual background for a federal judicial nominee, having only spent three years working in litigation, and having spent significantly longer periods of time in legislative work and at the Federal Election Commission enforcing campaign finance laws.

Wiley Rein

Petersen’s litigation experience is limited to his time as an associate at Wiley Rein LLP where he served as an associate in the Election Law & Government Ethics practice group.[4]  In this capacity, Petersen represented corporations seeking to comply with campaign finance regulations, as well as candidates seeking to defend charges brought by the FEC.[5]

Capitol Hill

After leaving Wiley Rein, Petersen served as Majority Counsel on the House Committee on Administration.  In this role, Petersen served as a legal advisor to Chairman Robert Ney (R-OH), advising him on “legal and legislative matters relating to federal election and campaign finance laws.”[6]  He also worked on complaints submitted to the House Franking Commission, which regulates the use of official congressional mailings.  Notably, Petersen also helped draft the Help America Vote Act of 2002 (HAVA).

After a short stint at the RNC working to implement the HAVA during 2004 Presidential election, Petersen was hired by Sen. Trent Lott (R-MS) to serve as Chief Counsel for the Senate Committee on Administration.  In this capacity, Petersen notably worked on legislation merging the U.S. Capitol Police and the Library of Congress Police.[7]

Federal Election Commission

Petersen was confirmed to the FEC on June 24, 2008, as package deal of nominees that dramatically changed the Commission’s make-up.  Among his first acts on the FEC, Petersen joined with every other Commissioner in rejecting an effort by the Club for Growth (a conservative political group) to shorten disclosures on political advertisements.[8]

Early in Petersen’s tenure, the FEC drew criticism for a high number of 3-3 deadlocks, preventing enforcement action.[9]  Specifically, the Republican Commissioners, Petersen, Don McGahn[10], and Caroline Hunter, were criticized for voting as a bloc and “undercutting federal election law and its enforcement.”[11]  In one instance, Petersen, McGahn, and Hunter refused to support a proposed regulation governing corporate travel for lawmakers, forcing the adoption of a weaker rule that relaxed travel requirements for Senators.[12]  Petersen defended his actions in an op-ed, arguing that “an agency cannot include in regulation what was not enacted through legislation.”[13]  Petersen also wrote letters to the editor arguing that the proposed rule closely mirrored congressional intent,[14] and that the problem of FEC deadlocks is being exaggerated.[15]  Instead, Petersen argued, the focus of the Republican commissioners is on reducing “[r]ote enforcement of hyper-technical rules” as this “has an unfair impact on the inexperienced [candidate].”[16]

However, throughout Petersen’s tenure, the FEC continued to draw criticism for being ineffective and being unable to enforce the law, specifically due to the Republican Commissioner’s refusals to take enforcement actions.[17]  One article noted that since the appointments of Petersen, McGahn, and Hunter, the FEC’s rate of deadlocks had increased eightfold from 2% to 16%.[18]  Another article noted: “If you’ve been thinking of breaking federal election law, this would be an excellent time to do it, because the chance of being caught is close to nil.  There is no cop on the beat.”[19]  In response, Petersen, Hunter, and McGahn wrote:

“Aggressive enforcement in cases where the law is vague or complicated undermines the rule of law.  Few areas of the law demand more sensitivity to aggressive enforcement than those governing First Amendment-protected political speech.”

Ultimately, the FEC’s lack of enforcement drew a suit from the Campaign Legal Center, specifically challenging the lack of action against individuals alleged to be “straw donors” under the Federal Election Campaign Act.[20]  The situation drew a rare public rebuke from Democratic Commissioner Ann Ravel, who resigned from the FEC in March 2017, arguing that “[t]he ability of the commission to perform its role has deteriorated significantly.”[21]  In response, Republican Chairman Lee Goodman (who replaced McGahn in 2013) countered:

“the situation has indeed changed, but for the better.”[22]

Despite the controversy over the Republican bloc votes, Petersen has drawn positive reviews from Commissioners, with both Goodman and Commissioner Steven Walther, who vote in opposite blocs, praising him.[23]

Overall Assessment

So far, Trump’s appointments to the D.C. federal bench have not attracted much opposition.  Trump has already successfully appointed three judges with widespread bipartisan support.  Whether Petersen follows this trend or not depends on how senators evaluate his actions on the FEC.  Petersen’s critics will argue, as many watchdog groups have, that Petersen joined with other FEC Republicans to stymie agency enforcement and cripple campaign finance laws.  However, Petersen and his supporters will likely downplay FEC deadlocks as rare occurrences, and note that his votes were based on First Amendment concerns.  They will also likely note that many of Petersen’s votes against enforcement were in favor of Democratic candidates, and that, as such, he cannot be considered overly partisan.

Overall, given the Republican senate majority, it is unlikely that Petersen will face much trouble getting confirmed.  Ironically, his confirmation will further jeopardize the FEC’s effectiveness, leaving it with two out of six seats vacant.


[1] The Politico, Senate Confirms New FEC Commissioners, Ending Long Partisan Standoff, CBS News, June 24, 2008, https://www.cbsnews.com/news/senate-confirms-new-fec-commissioners-ending-long-partisan-standoff/.  

[2] Matthew Mosk, Candidates’ Fundraising Disputes May Be Heard, Wash. Post, May 23, 2008.

[3] Ann E. Marimow, Chief Judge of the District’s Federal Court Retires as Lawsuit Accuses Him of Sexual Assault, Wash. Post, Mar. 16, 2016, https://www.washingtonpost.com/local/public-safety/chief-judge-of-the-districts-federal-court-retires/2016/03/16/2ff09bf0-ebc1-11e5-b0fd-073d5930a7b7_story.html?utm_term=.38886e556276.  

[4] Petersen, Senate Judiciary Questionnaire 29, https://www.judiciary.senate.gov/imo/media/doc/Petersen%20SJQ.pdf.

[5] Id.

[6] Id. at 28.

[7] Id.

[8] Matthew Murray, FEC Rejects Club’s Bid to Tweak Disclosure Rules, RollCall, July 29, 2008.

[9] Matthew Murray, FEC Deadlocks on the Rise, RollCall, Apr. 6, 2009.

[10] McGahn currently serves as Trump’s White House Counsel, and has a significant role in selecting judicial nominees.

[11] Editorial, Obama’s FEC, RollCall, Dec. 2, 2009.

[12] See id.

[13] Matthew Petersen, FEC Implemented Congress’ Vision on Travel Rules, RollCall, Dec. 1, 2009.

[14] Matthew S. Petersen, Caroline S. Hunter, Donald F. McGahn, Travel Rules Follow the Law, Wash. Post, Dec. 7, 2009.

[15] Matthew S. Petersen, Caroline S. Hunter, Donald F. McGahn, Promoting Change, Not Paralysis, at the FEC, Wash. Post, June 19, 2009.

[16] See id.

[17] Craig Holman, Guest Observer, RollCall, March 14, 2011.

[18] Id.

[19] Dana Milbank, A Good Faith Effort to Break D.C. Gridlock, Wash. Post, Oct. 12, 2014.

[20] Press Release, The Campaign Legal Center, CLC, D21 Lawsuit Calling for FEC Enforcement Moves Forward (Mar. 29, 2017) (available at http://www.campaignlegalcenter.org/news/press-releases/clc-d21-lawsuit-calling-fec-enforcement-moves-forward).

[21] Eric Lichtblau, Democratic Member to Quit Election Commission, Setting Up Political Fight, N.Y. Times, Feb. 19, 2017, https://www.nytimes.com/2017/02/19/us/politics/fec-elections-ann-ravel-campaign-finance.html.

[22] Id.

[23] Dave Levinthal, Will Donald Trump Let the Federal Election Commission Rot, The Center for Public Intregrity, Sept. 14, 2017, https://www.publicintegrity.org/2017/09/08/21164/will-donald-trump-let-federal-election-commission-rot.

Fernando Rodriguez Jr. – Nominee to the U.S. District Court for the Southern District of Texas

Compared to the backgrounds of most Trump nominees, Fernando Rodriguez is particularly unique.[1]  First, Rodriguez is the first and, thus far, only hispanic nominee to the federal bench from the Trump Administration.  Second, Rodriguez has an unusual background for a judicial nominee, having spent much of his career in trainings and advocacy fighting human trafficking.

Background

Fernando Rodriguez Jr. was born in Harlingen, TX, a small town near the Mexican border, in 1969.  Rodriguez received a Bachelor of Arts degree from the Yale University in 1991.  After graduating, Rodriguez joined Teach for America, teaching at an inner city Houston elementary school, Scarborough Elementary, for three years.

In 1994, Rodriguez joined the University of Texas at Austin Law School, earning his J.D. with honors in 1997.  After graduating, Rodriguez was hired by Texas Supreme Court Justice Nathan Hecht, a Republican, to be his briefing attorney.  After a year there, Rodriguez joined the Dallas Office of Baker Botts LLP. as an associate.  He became a partner there in 2006.

In 2010, Rodriguez joined the International Justice Mission, a Christian non-profit focused on law enforcement issues (primarily human trafficking).  Specifically, Rodriguez was hired to be the Field Office Director in Bolivia.  In 2013, Rodriguez became the Field Office Director in the Dominican Republic.  He currently serves in that capacity.

History of the Seat

Rodriguez has been nominated to a seat on the U.S. District Court for the Southern District of Texas.  This seat opened on May 20, 2014, when Judge Gregg Costa was elevated to the U.S. Court of Appeals for the Fifth Circuit.[2]  While Obama and Texas Senators John Cornyn and Ted Cruz reached a deal to confirm three nominees to the Southern District, Costa’s seat was not among them and was never filled.[3]

After the election of President Trump, Cruz and Cornyn set up a Federal Judicial Evaluation Committee to take applications for the federal bench.  Rodriguez interviewed with the Committee on April 20, 2017, and with Cornyn and Cruz on May 4.  Rodriguez then interviewed with the White House Counsel’s Office and the Department of Justice on May 30, 2017, and was finally nominated on September 7, 2017.

Legal Experience

Rodriguez began his legal career as a briefing attorney for Texas Supreme Court Justice Nathan Hecht.  Despite the title, the role involved Rodriguez serving as Hecht’s law clerk.  After that position, Rodriguez has only worked for two employers: Baker Botts; and the International Justice Mission.

While an associate and a partner at Baker Botts, Rodriguez practiced commercial civil litigation, primarily representing corporate clients.  Notably, Rodriguez represented Ternium, a steel supplier, in a federal breach of contract action for failure to pay for a steel shipment.[4]  Rodriguez also successfully defended a Costa Rican partnership against breach of contract and business tort claims arising from funding of a hospital.[5]  Rodriguez also practiced in state court, winning a breach of contract claim involving the payment of taxes in a property sale.[6]

At the International Justice Mission, Rodriguez primarily worked to combat child sex trafficking.  While stationed in Bolivia, Rodriguez worked with law enforcement officials to secure convictions for 26 offenders.[7]  Rodriguez similarly worked to convict 23 offenders in the Dominican Republic.[8]  In these roles, Rodriguez also worked to train law enforcement and the judiciary on trafficking issues.

Political Activity

Rodriguez has a limited history of political activity.  He has only one donation of record: a $500 donation to John McCain’s Presidential Campaign in 2008.[9]  He also served as a volunteer for Judge Catharina Haynes’ re-election campaign in 2006.  Judge Haynes, a Republican, was later appointed to the Fifth Circuit by President George W. Bush.

Overall Assessment

In confirmation politics, as in electoral politics, a sympathetic narrative is the key to success.  In Rodriguez’s case, he has it in spades.  Not only is he the first hispanic judge nominated by President Trump, but he has devoted his career to a worthy cause: helping child escape human trafficking and sexual slavery.  His work on human trafficking issues along with his experience teaching elementary school in inner-city Houston is fairly unusual in a federal judicial nominee.  Furthermore, Rodriguez does not have a history of overly partisan advocacy, or of controversial writings.  Nor does he have a dearth of experience, having been an attorney for twenty years.  As such, all signs point to a comfortable nomination for Rodriguez.


[1] Rorie Spill Solberg and Eric N. Walterburg, Trump’s Judicial Nominations Would Put a Lot of White Men on Federal Courts, Wash. Post, Nov. 28, 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/11/28/this-is-how-trump-is-changing-the-federal-courts/?utm_term=.0f24cb9a88ce.

[2] John Council, It’s Unanimous: Gregg Costa to Join Fifth Circuit, Texas Lawyer, May 26, 2014, https://www.law.com/texaslawyer/almID/1202656477944/.  

[3] Kevin Diaz, Texas Candidates for Federal Bench Caught Up in Political Gamesmanship, San Antonio Express-News, January 15, 2015, http://www.expressnews.com/news/local/article/Texas-candidates-for-federal-bench-caught-up-in-6039505.php.  

[4] See Ternium Int’l USA Corp. v. Consol. Sys. Inc., No. 3:08-cv-00816-G, 2009 WL 464953 (N.D. Tex. Feb. 24, 2009).

[5] See Int’l. Hosp. Corp. et al. v. Grupo Promoter Hosp. San Jose, S.A., et al., No. 3:06-cv-00266-N (N.D. Tex. 2006).

[6] See Hollywood Theatres, Inc. v. J.C. Mitchell, No. 98-11171-A (County Court of Law No. 1, Dallas County, Tex. 1999) (Judge David Gibson).

[7] Fernando Rodriguez Jr., Senate Judiciary Questionnaire 26 (available at https://www.judiciary.senate.gov/imo/media/doc/Rodriguez%20Jr%20SJQ.pdf).

[8] Id.

[9] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=fernando+rodriguez&order=desc&page=2&sort=D (last visited Nov. 28, 2017).

Kyle Duncan – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)[6] for Louisiana’s AG’s office from 2008-2012.[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)[12] and of the Knights of Columbus,[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016.  Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, [16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was  “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.[18] In the motion, Duncan also  repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,[31] and the case is on appeal for the second time to the Fifth Circuit.[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),[43] Zubik (contraception),[44] Trinity Lutheran (religious funding),[45] Windsor and Obergefell (marriage for same-sex couples),[46] and others.

Duncan has written and spoken most often on the contraception mandate.[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.


[1] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[2] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, 4-5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[3] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[4] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2-3, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[5] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[6] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[7] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[8] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[9] https://www.becketlaw.org/about-us/mission/.

[10] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[11] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[12] https://fedsoc.org/.

[13] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[14] http://www.kofc.org/un/en/todays-knights/what-we-do.html.

[15] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 30, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[16] 1:16-cv-236-TDS-JEP (M.D.N.C.).

[17] https://www.aclu.org/legal-document/carcano-et-al-v-mccrory-et-al-complaint.

[18] ECF No. 34 at 2 (PDF p. 8), in 1:16-cv-236-TDS-JEP (M.D.N.C.)..

[19] ECF No. 34 at 2-3 (PDF pp. 8-9), in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[20] ECF No. 127, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[21] E.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[22] E.g., Stone v. Trump, No. CV MJG-17-2459, 2017 WL 5589122 (D. Md. Nov. 21, 2017); Doe 1 v. Trump, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015); see also Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[23] ECF No. 103 at 87-88, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[24] ECF No. 103 at 89, in 1:16-cv-236-TDS-JEP (M.D.N.C.) (emphasis added).

[25] Resp. to Pet. for Writ of Cert. at 2-3 (PDF. pp. 11-12), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[26] Resp. to Pet. for Writ of Cert. at 9, 12-14 (PDF. pp. 18, 21-23), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[27] 136 S.Ct. 1017 (2016).

[28] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[29] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[30] http://www.scotusblog.com/wp-content/uploads/2016/02/15-274-bsac-AAPS.pdf.

[31] ECF No. 274, in 3:14-cv-525-JWD-RLB (M.D. La.).

[32] No 17-30397 (5th Cir.).

[33] ECF No. 274 at 67 ¶ 230, in 3:14-cv-525-JWD-RLB (M.D. La.).

[34] ECF No. 274 at 70 ¶¶ 240, 242, in 3:14-cv-525-JWD-RLB (M.D. La.).

[35] Holt v. Hobbs, 135 S. Ct. 853 (2015).

[36] 2016 WL 1377728.

[37] 2009 WL 2564713.

[38] 2015 WL 1608213.

[39] http://www.scotusblog.com/wp-content/uploads/2017/01/16-833-cert-petition.pdf.

[40] 2015 WL 5064004.

[41] 563 U.S. 51 (2011).

[42] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[43] https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/hobby-lobby-spells-doom-for-mandate-20.

[44] https://www.schaerr-duncan.com/supplemental-briefs-in-zubik-v-burwell.

[45] https://www.schaerr-duncan.com/trinity-lutheran-church-v-pauley.

[46] https://www.schaerr-duncan.com/symposium-overruling-windsor; http://www.thepublicdiscourse.com/2015/04/14894/.

[47] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 6-7, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[48] https://www.firstthings.com/article/2013/10/how-fares-religious-freedom.

[49] http://www.ncregister.com/daily-news/the-other-health-care-mandate-good-samaritan-turned-upside-down.

[50] Kyle Duncan, Obergefell Fallout, in Same-Sex Marriage: A Reference Handbook, 2nd Edition, at 132 (preview available on Google Books).

[51] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[52] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[53] Kyle Duncan, Misunderstanding Freedom from Religion: Two Cents on Madison’s Three Pence, 9 Nev. L.J. 32 (2008).

[54] Kyle Duncan, Bringing Scalia’s Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 (2007).

[55] Kyle Duncan, Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).

[56] Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 497 (2003).

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.