J. Nicholas Ranjan – Nominee for the U.S. District Court for the Western District of Pennsylvania

While President Trump has received much criticism about the relative paucity of nominees of color among his judicial appointments, he has outpaced previous Administrations with regard to Asian-American nominees.  One such nominee is J. Nicholas Ranjan, who is of Indian origin.

Background

Jagan Nicholas Ranjan was born in Lancaster Ohio in 1978.[1]  Ranjan graduated summa cum laude from Grove City College in 2000 and cum laude from the University of Michigan Law School in 2003.[2]  He spent a year at the Office of the Ohio Solicitor General and then clerked for Judge Deborah Cook on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Pittsburgh Office of K&L Gates as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Ranjan has been nominated for opened on June 3, 2016, with Judge Kim Gibson’s move to senior status.  While the seat opened in the Obama Administration, no nomination was put forward to fill the vacancy.

Ranjan applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Ranjan interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on July 24, 2018.

Legal Experience

Ranjan began his career with a fellowship in the Ohio Solicitor General’s Office and a clerkship on the Sixth Circuit, but he’s spent his entire legal career since then at the Pittsburgh office of K&L Gates, handling commercial and appellate litigation.  Overall, Ranjan has worked as counsel of record in fourteen civil trials, including two jury trials.[6]  Both jury trials involved representations of prisoners suing guards for civil rights violations: one involving an excessive force claim;[7] the other involving inappropriate sexual contact.[8]

In another significant case, Ranjan represented Joseph Ruggieri, a Plum Borough teacher convicted for sex abuse of a student in a civil suit brought by the student.[9]  The suit was ultimately resolved through a confidential settlement.[10]

Writings and Statements

Over his legal career, Ranjan has written on and made public statements about legal and policy issues.  We have summarized his major positions below:

Medicaid and “Prior Authorization”

As a law student, Ranjan authored a note discussing the constitutionality of the Maine Rx program, which offered prior authorization of non-complying drugs to drug manufacturers as long as they offered rebates on those drugs to Maine residents.[11]  In the note, Ranjan argues that the program and similar programs are unconstitutional because they are pre-empted by federal Medicaid law, and because they violate the Dormant Commerce Clause, a controversial doctrine holding that states cannot discriminate against interstate commerce in their regulations.[12]

Legal Diversity

Ranjan serves as Chair of the Pittsburgh Office Diversity Committee at K&L Gates, and has used his role to improve legal diversity.  During his tenure, K&L Gates received a perfect score in a Human Rights Campaign survey tracking employer benefits and protections for LGBTQIA employees.[13]  Ranjan has also supported the Pittsburgh Legal Diversity & Inclusion Coalition, an initiative that seeks to improve diversity among the legal profession.[14]

Clarence Thomas

As a law student at the University of Michigan, Ranjan authored a book review of Andrew Peyton Thomas’ biography of Justice Clarence Thomas.[15]  In the book review, Ranjan posits an unusual theory: that the Justice’s life and jurisprudence, as well as the often-vitriolic response to him, is best understood by viewing the Justice as a “political figure rather than as merely a jurist.”[16]  Specifically, Ranjan argues that Justice Thomas’ jurisprudence on race is inconsistent with the originalist lens he takes with other issues, and that this disparity can be perceived as political, rather than judicial.[17]  Additionally, he notes that the Justice effectively politicized his race in his confirmation battle, stating that Thomas “changed the tone of the hearings from a sexual harassment investigation [to] a racist manhunt for Thomas by fiendish political lynchers.”[18]  At the same time, Ranjan criticizes much of the criticism of Thomas as “unreasoned, bitterly partisan, and grossly propagandized.”[19]  He suggests that viewing Thomas as a political, rather than a judicial, figure helps explain the level of opposition he faces.

Overall Assessment

In comparison to other, more controversial nominees sent forward by the Trump Administration recently, Ranjan should sail to confirmation.  His efforts on legal diversity are generally laudable and his legal career has been generally uncontroversial.  While Ranjan may face some questions regarding his description of Justice Thomas as a “political figure,” it is unlikely that this would derail his confirmation.  As such , it is even possible that Ranjan may see confirmation by the end of the year.


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

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 19.

[7] Byrnes v. Moody, No. 2:15-cv-00570 (W.D. Pa. 2017).

[8] Caldwell v. Folino, No. 2:08-cv-00122 (W.D. Pa. 2012).

[9] See Natasha Lindstrom, Plum Reaches Tentative Settlement in Sex-Abuse Lawsuit, Pittsburgh Tribune Review, July 29, 2017.

[10] See id.

[11] Jagan Nicholas Ranjan, Medicaid and the Unconstitutional Dimensions of Prior Authorization, 101 Mich. L. Rev. 602 (Nov. 2002).

[12] See id. At 608.

[13] See Tracy Carbasho, Five Local Firms Score Well in LGBT Equality, 16 Lawyers J. 3 (Dec. 26, 2014).

[14] See Susan Yohe, Pittsburgh Legal Diversity & Inclusion Coalition to Launch Model Career Advocate Program: Charting a Path to a More Diverse Pittsburgh, 20 Lawyers J. 1 (Oct. 12, 2018).

[15] Jagan Nicholas Ranjan, The Politicization of Clarence Thomas Clarence Thomas: A Biography. By Andrew Peyton Thomas, 101 Mich. L. Rev. 2084 (May 2003).

[16] Id. at 2086.

[17] See id. at 2094-95.

[18] Id. at 2096.

[19] Id.

New Fronts in the Judicial War: Will Progressives Adopt the Conservative Model on State Courts and Solicitors General?

The 2018 elections have come and gone, with both sides finding something to smile about in the results.  For Republicans, the reinforced Senate majority ensures that Trump can continue to fill federal vacancies with conservatives.  However, all is not lost for Democrats.  Rather, they can adopt the successful model used by conservatives during the Obama Administration and use the states to advance progressive jurisprudence.  Both state court appointments and solicitor general appointments have generally been used effectively by Republicans to build a bench of conservative judges and legal leaders.  With electoral victories on the state level, it remains to be seen if progressives will catch up on these fronts.

State Courts

Let’s throw out a hypothetical.  Imagine we are back in 2017: President Trump has just been elected with a Republican Senate.  Let’s say that Justice Anthony Kennedy announces his retirement in March 2017, announcing that he will retire in September of that year, giving the President six months in which to appoint his successor.  It is a golden opportunity for Republicans to take a solid majority on the Supreme Court.  However, instead of nominating Brett Kavanaugh, the Trump Administration nominates no one.  The months tick down, one by one, and no nomination comes forward from the Trump Administration.  September 2017 comes by, the Justice steps down, and still no nomination has come.  The Supreme Court is forced into a 4-4 split, and important decisions are deadlocked.  And still, no nominee is put forward.  Now imagine we are in the present day and the Court is still split 4-4, with no nomination coming from the Administration and no explanation.

This hypothetical may seem absurd, but it is exactly what is currently happening in California, where Gov. Jerry Brown has essentially forfeited a golden opportunity to reshape the California Supreme Court, letting the court’s swing seat remain vacant for well over a year for no reason at all.

State Supreme Courts, which interpret state laws and constitutional provisions, are immensely powerful.  In fact, many of their decisions are unreviewable, even by the Supreme Court.  As such, it is remarkable to see the lack of attention given their way by progressives.  Alongside Brown’s failure to make an appointment to the California Supreme Court, Colorado Gov. Hickenlooper appointed two Republicans to the Colorado Supreme Court, resulting in the partisan balance on the court actually becoming more conservative during his tenure as Governor.  Similarly, in New York, Gov. Andrew Cuomo has largely avoided appointing outspoken liberals to the New York Court of Appeals, instead choosing moderates and conservatives including Judge Michael Garcia, a Republican who previously served as U.S. Attorney under President Bush.  In Connecticut, Gov. Dannel Malloy’s nominee to be Chief Justice of the Connecticut Supreme Court was rejected by the Democratic Senate after moderate Democrats defected.

In contrast, Republican Governors have used their appointment power effectively to choose young conservatives for the state benches.  Gov. Pete Ricketts, for example, tapped Justice Jonathan Papik, only 36, to the Nebraska Supreme Court in 2018.  Similarly, Gov. Nathan Deal in Georgia has appointed a bevy of young conservatives, Justices Nels Petersen, Britt Grant (now on the 11th Cir.), Sarah Hawkins Warren, and Charlie Bethel.  From Texas to Ohio to Indiana, Republican Governors have cemented conservative majorities on the high court through their appointments.

Now that the 2018 elections has resulted in the largest increase in new Democratic Governors since 1986, progressives have a strong opportunity to reshape the bench in many states.  With the vacancy on the California Supreme Court still pending, it provides an early sign of how seriously they will take this challenge.

Solicitors General

The 2018 election also saw Democrats taking control of the majority of state attorney general’s offices in the country.  Attorneys general are important not just because of their investigative and prosecutorial powers, but because they are able to, through their appointment of state solicitors general, shape the legal landscape of their states.

State solicitors general are the leading appellate advocate for their states, shaping and directing arguments before state and federal courts.  So far, most solicitors general are appointed by the attorney general.  Most Republican attorneys general have taken this opportunity and chosen young conservatives and future legal pioneers.  For example, Alabama Solicitor General Andrew Brasher is only 37, Florida Solicitor General Amit Agarwal is 42, Georgia Solicitor General Andrew Pinson is around 32, and Oklahoma Solicitor General Mithun Mansinghani is only 31 (and was just 29 when he was selected as Solicitor General).  In comparison, Democratic attorneys general have selected senior attorneys already established in their career.  For example, New York Solicitor General Barbara Underwood is 74, California Solicitor General Edward DuMont is 57, and Connecticut Solicitor General Jane Rosenberg is around 60 (an exception to this is Washington Solicitor General Noah Purcell, who is 38).

While the level of experience that Underwood, DuMont, and Rosenberg bring is undeniable, choosing younger solicitors general makes more sense from a movement perspective.  First, it helps season young attorneys early in their career.  Second, it builds a pipeline of potential judicial candidates.  The Trump Administration has been very effective at tapping current and former state solicitors general for the federal bench, building the next generation of conservative legal leaders.

Ohio Gubernatorial candidate Richard Cordray was a politician who understood this well, having himself served as Ohio Solicitor General in his early 30s.  As Attorney General, Cordray tapped Benjamin Mizer to serve as Ohio Solicitor General.  Mizer, who was only 31 at the time of his appointment, went on to serve the Obama Administration as Principal Deputy Assistant Attorney General for the Civil Division, and is poised to be a Sixth Circuit and Supreme Court candidate under a Democratic Administration.

So far, newly elected New York Attorney General Tish James has chosen to reappoint Underwood to serve as Solicitor General.  It’ll be interesting to see if other Attorneys General will follow James’ lead or Cordray’s.

Overall, despite the attention it gets, the federal bench is not the only front that legal conservatives and progressives fight over.  Even as the federal bench shifts under the weight of Trump appointees, state benches can provide a countervailing force.  As such, they are an important front to observe in the coming months.

Judge Rodney Smith – Nominee to the U.S. District Court for the Southern District of Florida

Judge Rodney Smith was the second African American judicial nominee to be sent forward by the Trump Administration when he was nominated back in May.  Now, as his nomination finally starts moving, Smith is poised to fill a long-pending vacancy on the court.

Background

A native Floridian, Rodney Smith was born in Orlando in 1974.  Smith graduated from Florida A&M University in 1996 and then from Michigan State University School of Law in 1999.[1]

After graduation, Smith joined the Miami-Dade County State’s Attorney’s Office, working as a prosecutor.[2]  In 2003, he moved briefly to the Office of the General Counsel at the United Automobile Insurance Company and then to the firm of McGrain Nosich & Ganz P.A.[3]  He left the firm a year later to join the Law Office of Rebecca W. Ribler as a Senior Trial Attorney.  In 2007, he shifted again to become Senior Assistant City Attorney for the City of Miami Beach.[4]

In 2008, Smith became a County Court Judge, appointed to the position by then-Republican Governor Charlie Crist.  In 2012, Smith was appointed by Gov. Rick Scott to be a Circuit Court Judge on the Eleventh Judicial Circuit of Florida, where he sits to this day.

History of the Seat

Smith has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on June 2, 2014, when Judge Robin Rosenbaum was elevated to the U.S. Court of Appeals for the Eleventh Circuit.  On February 26, 2015, Mary Barzee Flores, a former state court judge in Florida, was nominated by President Obama for the vacancy.[5]  However, while Flores had been recommended for the vacancy by the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson, Rubio refused to return a blue slip on Flores.[6]  Rubio’s stance was criticized by both Republicans and Democrats who described Flores as an “excellent judge.”[7]  Later, Rubio claimed that Flores had misrepresented her past support for the American Civil Liberties Union and other organizations.[8]  With Rubio’s opposition, Flores never got a hearing before the Senate Judiciary Committee and was not confirmed before the end of the Obama Administration.

In October 2017, Smith applied and interviewed with the JNC.  The JNC chose Smith as one of ten finalists to be passed onto the Senators.[9]  After interviews with Rubio and Nelson, Smith interviewed with the White House Counsel’s Office and the Department of Justice.  Smith was formally nominated on May 8, 2018.

Legal Career

Smith began his legal career as a state prosecutor in Miami-Dade County, where he served as the Chief of the Juvenile Division and worked in the Career Criminal/Robbery Division.[10]  As the former, Smith was able to secure a conviction against a defendant who emotionally and sexually abused his step-daughter, even though the child’s mother testified against her.[11]

From 2003 to 2007, Smith worked in private practice.  While working for Rebecca Ribler, Smith defended a case against a plaintiff who broke her hip slipping and falling while exiting the defendant’s restaurant.[12]

From 2007 to 2008, Smith worked as Senior Assistant City Attorney in Miami Beach, defending the city against litigation while also prosecuting ordinance violations.  During his time at the office, Smith successfully obtained summary judgment against a plaintiff who had been rendered a quadriplegic after diving into the ocean and striking a rock.[13]

Jurisprudence

Smith served as a County Court Judge in Florida from 2008 to 2012 and has served as a Circuit Judge since 2012.  In the former capacity, Smith heard criminal misdemeanor and traffic matters, civil protective orders, and landlord-tenant and small claims litigation.  As a Circuit Judge, Smith handles major felonies and any civil cases with more than $15000 in controversy.

Over his ten year tenure on state court, Smith has heard approximately 700 cases.  Of these, approximately 3% have been reversed by a higher court, a relatively low reversal rate.[14]  Of the cases in which Smith has been reversed, approximately one in five involved a confession of error by the prevailing party.[15]

Overall Assessment

Smith is a relatively uncontroversial choice for the federal bench.  His judicial record is fairly mainstream and he has not made any controversial statements or actions in his career.  Additionally, his record as a lawyer is fairly varied and it is hard to argue that Smith lacks the ability to be a district court judge.  As such, Smith will likely be confirmed with bipartisan support.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Press Release, Obama White House Archives, President Obama Nominates Two to Serve on the United States District Courts (Feb. 26, 2015).

[6] Jay Weaver, Rubio Holds Up Obama Nominee He Once Backed for Miami Federal Bench, Miami Herald, Feb. 28, 2016, https://www.miamiherald.com/news/politics-government/article63008137.html.  

[7] See id. (quoting Tom Spencer).

[8] Marc Caputo and Seung Min Kim, Rubio Breaks Silence on Female Judge, Politico, June 9, 2016, https://www.politico.com/story/2016/06/marco-rubio-judge-mary-barzee-flores-224073.  

[9] David Markus, Breaking — JNC Makes the Cut to 10 Finalists for District Judge, Southern District of Florida Blog, Nov. 29, 2017, http://sdfla.blogspot.com/2017/11/breaking-jnc-makes-cut-to-10-finalists.html.

[10] See Smith, supra n. 1 at 46.

[11] State v. Yanes, No. F01-029698, aff’d, 865 So.2d 507 (Fla. 3d DCA 2003).

[12] O’Brien v. GMRI, Inc. d/b/a Bahama Breeze, Case No. 04-23037 CA 20.

[13] Downs v. City of Miami Beach, et al., Case No. 04-08735 CA 15 and Case No. 06-20861 CIV-HUCK/BANDSTRA, aff’d, 13 So.3d 1064 (Fla. 3d DCA 2009).

[14] See Smith, supra n. 1 at 38.

[15] Id. at 37-41.

Allison Rushing – Nominee to the U.S. Court of Appeals for the Fourth Circuit

At just 36 years old, Allison Jones Rushing is the youngest nominee Trump has put forward so far to an appellate seat.  While Rushing has a stellar resume, her youth will likely raise concerns in the confirmation process.

Background

Rushing was born Allison Blair Jones in Hendersonville, North Carolina in 1982.  She received a B.A. summa cum laude from Wake Forest University in 2002 and a J.D. magna cum laude from the Duke University School of Law in 2007.  As a law student, Rushing worked as a summer intern at the Alliance Defense Fund (ADF) (now Alliance Defending Freedom).[1]  ADF has drawn controversy for its advocacy involving “religious freedom” and has been labeled a hate group by the Southern Poverty Law Center.[2]

After graduating, Rushing clerked for then-Judge Neil Gorsuch on the Tenth Circuit, Judge David Sentelle on the D.C. Circuit, and for Justice Clarence Thomas on the U.S. Supreme Court, with a short stint as an Associate at Williams & Connolly in between.[3]

After her clerkships, Rushing rejoined the D.C. office of Williams & Connolly as an Associate.  In 2016, Rushing became a Partner at the firm, where she continues to serve.

History of the Seat

Rushing has been nominated to replace U.S. Circuit Judge Allyson Kay Duncan, who has indicated her intention to move to senior status upon the confirmation of her successor.  In June 2018, shortly after Duncan announced her departure, Rushing was contacted by the White House to gauge her interest in an appointment to the Fourth Circuit.[4]  After an interview, Rushing was informed by the White House that she would be nominated.[5]  Rushing was officially nominated on August 27, 2018.

Legal Experience

Other than her clerkships, Rushing has spent her legal career at the firm of Williams & Connolly, specifically focusing on appellate and commercial litigation.  Over the course of her career, Rushing has handled four trials in federal district court as well as over 47 briefs at the U.S. Supreme Court.[6]  In her litigation work, she has frequently collaborated with Williams & Connolly partner Kannon Shanmugam, himself a famous conservative attorney.

Among her more prominent clients, Rushing has represented the Bank of America corporation,[7] KPMG,[8] Ernst & Young,[9] and Eli Lilly.[10]  Rushing also represented Jesse Litvak, a bond trader convicted of securities fraud based on statements he had made during negotiations, on appeal, successfully reversing the convictions on the basis that Litvak’s misstatements were immaterial.[11]  Rushing also represented the New York City Council Black, Latino and Asian Caucus as amicus in a case involving New York City’s policy of preventing worship services in schools.[12]

Writings

As a law student, Rushing authored an article discussing the Rooker-Feldman doctrine, which bars lower federal courts from reviewing state court judgments.[13]  In the paper, Rushing outlines the doctrine, as well as changes to its contours in later decisions such as Exxon Mobil Corp. v. Saudi Basic Industries Corp., which clarified that the Rooker-Feldman doctrine does not bar “parallel suits.”[14]

Political Activity & Membersips

Rushing has been a member of the Federalist Society for Law and Public Policy Studies since 2012.[15]  Rushing also served as a legal advisor in the Mitt Romney Presidential Campaign, to which she also donated $500.[16]

On the flip side, Rushing campaigned for Democratic Maryland Delegate Sam Arora, a former aide to Senator Hillary Clinton.[17]

Overall Assessment

With her hearing today, Rushing is on track to be the  youngest appellate judge confirmed since Alex Kozinski was appointed in 1985.  As such, it is likely that much of the debate around Rushing will revolve around her qualifications and experience.

While Rushing falls narrowly short of the American Bar Association’s twelve years of practice requirement, she was nonetheless rated “Qualified” by the group.[18]  This is likely a testament to Rushing’s substantial litigation experience, including extensive practice in the courts of appeals.

However, this does not mean that no questions can be raised about Rushing’s background.  Specifically, North Carolina lawyers might question Rushing’s connection with the court and the state that she will be serving.  While Rushing is a native North Carolinian, she has not practiced law in the state since law school, is not a member of the North Carolina bar, and, according to her firm biography, is not admitted to practice in the Fourth Circuit, the court to which she has been appointed.[19]

Given these factors and her relative youth, many will argue that there are many more qualified and experienced candidates for this vacancy.  However, the ultimate question around Rushing, as around any other nominee, is not whether she is the “most qualified” candidate, but rather, whether she meets the requisite levels of qualifications to be an appellate judge.  As Rushing’s intellect and legal ability are unquestioned, how senators vote will ultimately depend on which factors they consider in answering that question.


[1] Sen. Comm. on the Judiciary, 115th Congress, Allison Jones Rushing: Questionnaire for Judicial Nominees 2.

[2] See Southern Poverty Law Center, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom (last visited Oct. 17, 2018).

[3] See Rushing, supra n. 1 at 2.

[4] Id. at 28.

[5] Id.

[6] Id. at 13-14.

[7] See United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 83 F. Supp. 3d 528 (S.D.N.Y. 2015).

[8] See Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, LLP, 798 F.3d 113 (2d Cir. 2015).

[9] Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[10] See Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357 (Fed. Cir. 2017).

[11] See United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) and 808 F.3d 160 (2d Cir. 2015).

[12] The Bronx Household of Faith et al. v. Bd. of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014).

[13] Allison B. Jones, The Rooker-Feldman Doctrine: What Does It Mean to be Inextricably Intertwined, 56 Duke L.J. 643 (Nov. 2006).

[14] Id. at 658-59.

[15] See Rushing, supra n. 1 at 5.

[17] See Rushing, supra n. 1 at 10.

[18] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Oct. 17, 2018).

[19] See Williams & Connolly, Allison Rushing, https://www.wc.com/Attorneys/Allison-Jones-Rushing (last visited Oct. 17, 2018).

Judge Rossie Alston – Nominee to the U.S. District Court for the Eastern District of Virginia

Judge Rossie Alston, who currently serves on the Virginia Court of Appeals, has had his share of messy confirmation battles.  Three years ago, his confirmation to the Virginia Supreme Court was derailed by a power struggle between the Virginia legislature and Governor Terry McAuliffe.  This time around, his nomination to the U.S. District Court for the Eastern District of Virginia is likely to yield more success.

Background

Rossie David Alston Jr. was born in Washington D.C. on May 31, 1957.  He attended Averett College (now University) in Southern Virginia, graduating cum laude in 1979 and then received a J.D. from North Carolina Central University School of Law in 1982.[1]

After graduation, Alston worked as a Staff Attorney at the National Labor Relations Board and then joined the National Right to Work Legal Defense Foundation, where he worked for five years as a Staff Attorney.[2]  In 1992, Alston joined Smith, Hudson, Hammond and Alston in Manassas as a Name Partner.[3]

In 1998, Alston was appointed to the Juvenile & Domestic Relations Court in Prince William County.[4]  Three years later, he was selected to be a Circuit Court judge in Prince William County.[5]

In 2005, Alston applied for a vacancy on the U.S. District Court for the Eastern District of Virginia, but was not selected as the top candidate by the State Bar (who chose magistrate judge Liam O’Grady and litigator Anthony Trenga).[6]  Alston was still one of five candidates recommended for the seat by Virginia’s Republican Senators (O’Grady was ultimately chosen).[7]

In 2009, Alston was selected by the Virginia General Assembly to join the Virginia Court of Appeals, replacing Judge Jean Harrison Clements.[8]

In 2015, Alston was part of a tangle over a Supreme Court appointment between Gov. Terry McAuliffe and General Assembly leaders.  McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court upon the recommendation of Del. Dave Albo, a Republican.[9]  However, Republican leaders in the Assembly protested the nomination, claiming that they were not adequately consulted, and instead announced plans to elevate Alston to the seat.[10]  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.[11]

Republicans tried to move Alston again after Watkins’ retirement, but Sen. Glen Sturtevant, who replaced Watkins, indicated his opposition to Alston.[12]  After two African American Democrats both reneged on deals to support Alston, Republicans dropped plans to elevate him, and his colleague, Judge Steven McCullough, was elevated instead.

Alston continues to serve on the Virginia Court of Appeals.

History of the Seat

Alston has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on September 30, 2017, when Judge Gerald Bruce Lee moved to senior status.  Virginia Senators Mark Warner and Tim Kaine, both Democrats, recommended Alston alongside federal prosecutor Patricia Giles in December 2017.[13]  Alston was nominated on June 18, 2018.[14]

Legal Experience

Alston started his legal career working as a labor attorney, first at the National Labor Relations Board and then at the National Right to Work Legal Foundation, a non-profit organization that seeks to counter union activities.  From 1989 to 1998, Alston worked in private practice, handling criminal defense, plaintiff’s side civil litigation, and domestic matters.

Some of the clients Alston represented include a woman charged with the death of a toddler scalded with hot bath water,[15] a teen who killed his stepfather to protect his mother from physical abuse,[16] and a driver convicted of reckless driving for participating in a road duel.[17]  Alston was also part of the legal team suing on behalf of the parents of a 13-month-old baby that fell through a window screen and sustained serious injuries.[18]  Alston was able to obtain a $15 million judgment, but the verdict was overturned on appeal.[19]

Jurisprudence

Alston has served as a judge in Virginia for approximately twenty years, starting as a Juvenile & Domestic Relations Judge in Prince William County in 1998, becoming a Circuit Court Judge in 2001, and being elected by the Virginia Assembly to the Court of Appeals in 2009.

Circuit Court Judge

From 2001 to 2009, Alston served as a Circuit Court Judge in Prince William County, where he presided over civil and criminal cases.[20]  On the Circuit Court, Alston developed a reputation for creative sentencing, including imposing “community service and symbolic jail time.”[21]  In one notable case, Alston presided over the trial of a community leader charged with leaving his toddler in a hot car.[22]  The jury found the father guilty and recommended 12 months in jail.[23]  However, Alston gave the father seven years of probation, ordering the father to spend his deceased daughter’s birthday in jail and donate blood on that day for the next seven years.[24]  In so ruling, Alston emphasized that the defendant “was a good man who loved his family and his church.”[25]

Court of Appeals

From 2009 onwards, Alston has served on the Virginia Court of Appeals, one level before the Virginia Supreme Court.  In his time on the court, Alston authored over 200 majority opinions, establishing a largely conservative record.  For example, Alston held, shortly after the Supreme Court legalized same-sex marriage in Obergefell, that cohabitation under Virginia law did not apply to same-sex couples, a decision that was reversed by the Virginia Supreme Court.[26]  In another case, Alston held that making an unsignaled left turn could be grounds for a valid traffic stop by a police car, even if there was no other traffic in the vicinity.[27]

Reversals

Over his twenty years on the bench, Alston’s rulings have been reversed by higher courts eleven times.[28]  Of these reversals, the most significant is in Luttrell v. Cuoco.[29]  Luttrell involved a ruling from a Fairfax judge that a man had to continue to pay alimony to his ex-wife even though his wife was now cohabiting with her female partner.[30]  Alston wrote for the Virginia Court of Appeals in holding that, under Virginia’s alimony law, cohabitation could only be between a man and a woman.[31]  The Virginia Supreme Court reversed, finding that a 1997 amendment expanded the definition of cohabitation to include same-sex couples.[32]

Interestingly, Alston has been reversed four times in cases where he ruled in favor of defendants or against law enforcement.[33]  In contrast, Alston has never had a conviction before him reversed and has only had a sentence before him reversed once.[34]

Writings or Comments

In his testimony as a nominee to the Virginia Supreme Court, Alston was asked if businesses should be permitted to turn away LGBT customers based on the business owner’s religious beliefs.[35]  Alston responded:

“There is no reason whatsoever why any person in the United States of America should be denied equal privileges that we all enjoy under the law.”[36]

Senator Don McEachin, a Virginia Democrat, interpreted Alston’s testimony as a rebuke to Virginia Republicans, who were then attempting to pass “religious liberty” laws that would permit such discrimination.[37]

Overall Assessment

While Alston’s elevation to the Virginia Supreme Court may have been entangled in politics, his path to the federal bench looks much smoother.  As Alston has already gotten the sign-off of Virginia’s Democratic senators, it is unlikely that his conservative-leaning jurisprudence would keep many Democrats from backing him.  As such, it is more a question of when, rather than if, Alston will be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rossie D. Alston Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Leef Smith, Judge is Sworn In for Juvenile Court; Alston Takes Over Bench of the Late Patrick Molinari, Wash. Post, Oct. 10, 1998.

[5] See Alston, supra n. 1 at 2.

[6] Alan Cooper, Ney, Wetsel Backed by 4 Bars for VA Appeals Court, Virginia Lawyers Weekly, Dec. 26, 2005.

[7] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.

[8] Alan Cooper, Alston Elected to Virginia Court of Appeals, Virginia Lawyers Weekly, Feb. 11, 2009.

[9] Peter Vieth, Va. GOP Leaders Favor Alston Over Roush for Supreme Court, Virginia Lawyers Weekly, Aug. 3, 2015.

[10] See id.

[11] BIDS, In Vote on SC Justice, GOP’s John Watkins Unites With Democrats, Legal Monitor Worldwide, Aug. 18, 2015.

[12] Jim Nolan, Sturtevant Backs Keeping Roush on Supreme Court, Richmond Times-Dispatch, Jan. 16, 2016, https://www.richmond.com/news/sturtevant-backs-keeping-roush-on-supreme-court/article_b67927be-51f5-5a98-ba90-35e4c60ff314.html.  

[13] Press Release, Office of Sen. Mark Warner, Warner & Kaine Recommend Two for Vacancy On U.S. District Court for the Eastern District of Virginia (Dec. 21, 2017) (available at https://www.warner.senate.gov/public/index.cfm/2017/12/warner-kaine-recommend-two-for-vacancy-on-u-s-district-court-for-the-eastern-district-of-virginia).  

[14] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Candidates, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 7, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[15] See Leef Smith, Autopsy: Girl’s Scalding Intentional, Wash. Post, July 11, 1998.

[16] Avis Thomas-Lister, Teen to be Tried as Juvenile in Stepfather’s Slaying; Pr. William Youth, 15, Testifies in Hearing He Feared Abuse of Mother, Siblings, Wash. Post, June 5, 1991.

[17] Leef Smith, Driver Sentenced in Road Duel That Nearly Killed Va. Child, Wash. Post, Apr. 5, 1997.

[18] Gamble v. Jeld-Wen Inc., No. 138861 (chancery), Fairfax Cnty. Circuit Court, 1997.

[19] Jeld-Win Inc. v. Gamble, 256 Va. 144 (1998).

[20] See Alston, supra n. 1 at 20.

[21] See Josh White, Father Should Go to Jail for Death, Va. Jury Says, Wash. Post, Dec. 5, 2002. 

[22] Commonwealth v. Kelly, No. CR05053304-00 (Cir. Ct. Feb. 21, 2003).

[23] See White, supra n. 21.

[24] Sean O’Driscoll, Father Receives Sentence for Death of Child, Irish Times, Feb. 22, 2003.

[25] See id.

[26] See Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016).

[27] Deborah Elkins, Court Upholds Stop for No-Signal Turn, Virginia Lawyers Weekly, Mar. 6, 2015 (citing Wilson v. Commonwealth).

[28] See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017) (reversing finding that possessing a loaded gun does not constitute felony child neglect); Cole v. Commonwealth, 2017 Va. LEXIS 162 (Nov. 16, 2017) (reversing finding that Court of Appeals did not possess the authority to decide pre-trial issues in appeal); Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016) (holding that Virginia cohabitation statute includes same-sex couples); Commonwealth v. Quarles, 283 Va. 214 (2012) (reversing holding that investigating detective had impermissibly restarted communication after defendant requested counsel); Simms v. Ruby Tuesday, Inc., 281 Va. 114 (2011) (reaffirming validity of “horseplay doctrine”);  Royal Indem. Co. v. Tyco Fire Prods, LP, 281 Va. 157 (2011) (reversing ruling that statute of limitations precluded negligence claims); Commonwealth v. Andrews, 280 Va. 231 (2010) (reversing sentencing due to allowing improper victim testimony); Woods v. Mendez, 265 Va. 68 (2010) (reversing dismissal of claim for punitive damages); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc) (reversing panel decision that defendant did not exercise dominion and control over marijuana in his vehicle); Kapur v. Kapur, 2009 Va. App. LEXIS 234 (May 19, 2009) (reversing sanctions issued against husband in divorce case); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003) (reversing grant of motion to suppress).

[29]  2016 Va. LEXIS 57 (April 28, 2016).

[30] See id. See also Tom Jackman, Va. High Court Limits Spousal Support, Wash. Post, May 3, 2016.

[31] See Jackman, supra n. 31.

[32] Id.

[33]  See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017); Commonwealth v. Quarles, 283 Va. 214 (2012); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003).  

[34] See Commonwealth v. Andrews, 280 Va. 231 (2010).

[36] Id. (quoting Judge Rossie Alston).

[37] Brad Kutner, Senator Don McEachin Talks LGBTQ Issues Ahead of the 2016 General Assembly Session, GayRVA, Aug. 26, 2015, http://www.gayrva.com/news-views/senator-don-mceachin-talks-lgbtq-issues-ahead-of-the-2016-general-assembly-session/.  

Eric Murphy – Nominee for the U.S. Court of Appeals for the Sixth Circuit

Eric Murphy was not even thirty-five when he was selected to be Ohio’s top appellate attorney.  Now, still shy of forty, Murphy has been nominated to a lifetime appointment to the Sixth Circuit.  However, Murphy’s nomination is strongly opposed by Sen. Sherrod Brown, his home-state senator.

Background

Eric Earl Murphy was born in Indianapolis in 1979.  Murphy received his B.A. from Miami University in 2001 and his J.D. from the University of Chicago Law School in 2005.[1]  He clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[2]

After his clerkships, Murphy joined the Columbus office of Jones Day as an Associate.[3]  In 2013, Ohio Attorney General Mike DeWine selected Murphy as the new Solicitor General for the state, replacing Alexandra Schimmer.[4]  He serves in that position today.

History of the Seat

Murphy has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Alice Batchelder has indicated that she will vacate the seat upon the confirmation of a successor.

In September 2017, Murphy reached out to the White House Counsel’s Office to express his interest in a judicial appointment.[5]  After interviews with the White House, Murphy interviewed with Brown and Republican Senator Rob Portman in late 2017.  He was officially nominated on June 18, 2018.[6]   Notably, Brown has indicated his strong opposition to Murphy’s nomination and has indicated that he will not return a blue slip.[7]

Political Activity

Murphy has a relatively limited political history, having served as part of the local Republican Party chapter as a college student and having volunteered for DeWine in the 2000 elections.[8]

Private Practice

After his clerkships, Murphy worked in the Columbus office (alongside fellow nominee Chad Readler) as an Associate in the Issues and Appeals section.  In this role, Murphy handled appeals in state and federal court, representing a variety of corporate clients, including R.J. Reynolds Tobacco Co., Goodyear Tires, and Procter & Gamble.[9]  Notably, Murphy represented the Washington Legal Foundation, a free-market conservative organization, in arguing that the First Amendment permits promoting a prescription drug for an off-label use, successfully getting a conviction overturned.[10]

Solicitor General

Since 2013, Murphy has served as the Solicitor General of Ohio, representing Ohio before state and appellate panels, defending state laws, and pushing for conservative legal outcomes in other cases.  In his five years as Solicitor General, Murphy has argued five cases before the U.S. Supreme Court.[11]  He has also filed four amicus briefs as counsel of record and has participated at the certiorari level in over eighty additional cases.[12]  We have highlighted some of the key positions he took as Solicitor General.

False Speech in Advertising

Murphy’s first argued case before the Supreme Court was Susan B. Anthony List v. Dreihaus.  The case involved a challenge by the Susan B. Anthony List, an anti-abortion group, to an Ohio law criminalizing the use of “false statements” in political advertising.  After a lower court held that the SBA List could not challenge the law for lack of standing, the Supreme Court granted certiorari and Murphy defended the law.  The Supreme Court unanimously held against Murphy’s position and found that the SBA List could challenge the law under the First Amendment.[13]

Death Penalty Protocol

In 2016, prisoners challenged Ohio’s three-drug protocol for executions, and its use of the drug Midzolam.[14]  After the District Court granted an injunction against the protocol, and the Sixth Circuit affirmed, Murphy was able to convince an en banc seating of the Sixth Circuit to reverse.[15]

Same Sex Marriage

As Solicitor General, Murphy led the defense of Ohio’s ban on same sex marriage, consolidated with the bans in Tennessee, Kentucky, and Michigan.[16]  Murphy defended the bans before the Sixth Circuit, arguing that gay marriage was an issue for voters, not the courts.[17]  However, the Supreme Court ultimately rejected Murphy’s position, holding that same sex marriage bans violate the Constitution.[18]

Restrictions on Voting

As Solicitor General, Murphy led the defense of Ohio voting restrictions, including two prominent cases that involved the Supreme Court.  The first case involved a challenge to the reduction of Ohio’s early voting period from 35 days to 28.[19]  Murphy defended the restrictions, successfully reinstating them before the Sixth Circuit after the District Court struck them down.[20]  The Supreme Court denied a stay.

The second case was a challenge under the National Voter Registration Act to Ohio’s practice of purging voters from the rolls after a two-year inactive period of voting.[21]  After the District Court permitted the practice, a panel of the Sixth Circuit reversed and the Supreme Court granted certiorari.  Murphy argued the case before the Supreme Court, which reversed 5-4.[22]

Overall Assessment

Murphy has accomplished a lot given his relative youth.  Despite barely meeting the 12 years of practice criteria set by the American Bar Association, it is hard to argue that Murphy is not qualified for the appellate bench.

However, this does not mean that Murphy will be deemed a “consensus” nominee.  Murphy has been advanced without the support of his home-state senator, which automatically puts a nominee at risk of opposition.  Additionally, Murphy’s record as Solicitor General can be characterized as constituting conservative activism.  Murphy’s defense of Ohio voting restrictions and same-sex marriage ban will be particularly scrutinized.

At the same time, Solicitors General and Attorneys General have a responsibility to defend their state statutes and policies, provided that there is a reasonable defense.  Murphy’s supporters can point to his defense of the Ohio “false statements” law, challenged by conservative groups, to argue that Murphy’s top priority is the law, rather than ideology.

Overall, given Senate Republicans’ abandonment of the “blue slip” policy for appellate nominees, Murphy will likely be confirmed.  However, he is unlikely to get the support of many, if any Democrats, in that process.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric E. Murphy: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Murphy, supra n. 1 at 47.

[6] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[8] See Murphy, supra n. 1 at 14-15.

[9] See Murphy, supra n. 1 at 16-17.

[10] See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).

[11] See Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018); Sheriff v. Gillie, 136 S. Ct. 1594 (2016); Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[12] See Murphy, supra n. 1 at 19-24.

[13] Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[14] In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) (en banc).

[15] Id. 

[16] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

[17] Robert Barnes, Gay-Marriage Backers Meet a Skeptical Court, Wash. Post, Aug. 7, 2014.

[18] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[19] Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); Husted v. Ohio State Conference of the NAACP, 135 S. Ct. 42 (2014).

[20] Id. 

[21] Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).

[22] Id.

Ten Upcoming Judicial Nomination Battles

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court.  His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low.  Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation.  Instead, it has returned to a familiar front: lower court nominations.  With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming.  Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight.  (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

10. Cam Barker – Eastern District of Texas

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas.  As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts.  In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans.  Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.”  Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

9. Stephen Clark – Eastern District of Missouri 

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri.  Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage.  For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill.  Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed.  His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

8. Justice Patrick Wyrick – Western District of Oklahoma

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist.  Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt.  His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General.  Specifically, two incidents have been raised.  First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction.  Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence.  Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt.  The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

7. Mark Norris – Western District of Tennessee

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate.  His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017.  Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate.  In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state.  For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

6. Wendy Vitter – Eastern District of Louisiana

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana.  Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified).  Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

5. Howard Nielson – District of Utah

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C.  Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee.  Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush.  Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture.  In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded.  Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry.  In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

4. Ryan Nelson – Ninth Circuit

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit.  Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot.  The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

3. Matthew Kacsmaryk – Northern District of Texas

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.”  In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools.  In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage.  He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement.  Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

2. David Porter – Third Circuit

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey.  As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor.  In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

1. Thomas Farr – Eastern District of North Carolina

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country.  Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate.  Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.”  At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities.  Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.”  Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted.  (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.)  With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.