Scott L. Palk – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Like Judge David Nye, Scott L. Palk has been waiting a long time for a federal judicial appointment: over two years to be exact.  Luckily, it looks like 2017 may be the year that Palk finally gets to don the black robes.

Background

An Oklahoma native, Scott Lawrence Palk was born in Tulsa in 1967.  After getting a B.S. from Oklahoma State University and a J.D. from the University of Oklahoma School of Law, Palk joined the District Attorney’s office in Cleveland County.  In 2002, Palk moved to the U.S. Attorney’s Office for the Western District of Oklahoma, serving as an Assistant U.S. Attorney in the Criminal Division.  In 2004, Palk rose to be Deputy Chief of the Criminal Division.

In 2011, Palk left the U.S. Attorney’s Office to rejoin his alma mater, the University of Oklahoma School of Law, as an Assistant Dean of Students and Assistant General Counsel.

On May 18, 2015, Palk was contacted by the office of Sen. James Lankford (R-OK), asking about his interest in an appointment to the Western District of Oklahoma.  After meetings with the Oklahoma Senators, and the Obama Administration, Palk was formally nominated on December 16, 2015.[1]  Palk, and fellow nominee Judge Suzanne Mitchell, received Committee hearings on April 21, 2016,[2] and were approved out of committee unanimously.[3]  However, they ran into a roadblock on judicial confirmations set up by Senate Majority Leader Mitch McConnell (R-KY).  As such, Palk’s nomination was never confirmed and returned to the White House at the end of the 114th Congress.

However, both Lankford and Sen. James Inhofe (R-OK) indicated their continued support for Palk’s nomination.  By their recommendation, Palk was renominated by the Trump Administration on May 8, 2017.[4]

History of the Seat

The seat Palk has been nominated for opened on December 1, 2014, with Judge Stephen P. Friot’s move to senior status.  Despite three of the seven judgeships on the Western District of Oklahoma being vacant, no judges were confirmed to this court during the Obama Administration.  Instead, the Administration’s nominees, Palk and Mitchell, were left unconfirmed despite unanimous committee approval and the support of Oklahoma’s Republican Senators.

Legal Experience

Palk has spent most of his career as a state and federal prosecutor (ten years as the former, nine as the latter).  As an assistant D.A. in Norman, Palk prosecuted violent crimes, drug crimes, sex crimes, and crimes against children.  Among his more notable cases, Palk successfully prosecuted Larry Gene Goble of Noble for the shooting deaths of two people.[5]

In one of his most significant cases, Palk prosecuted Frank Duane Welch for the 1987 murder of Jo Talley Cooper.[6]  In his defense, Welch argued that Cooper died while the two were engaged in auto-erotic asphyxiation.[7]  To combat Welch’s defense, Palk and the prosecution team admitted evidence of another murder Welch had committed, that of Debra Stevens.[8]  After Welch was convicted and sentenced to death, he challenged his trial on several bases, including the admission of the Stevens murder.[9]  The Oklahoma Court of Criminal Appeals affirmed the sentence and the conviction, but criticized Palk and the other prosecutors for failing to delineate the Burks exception that would admit the Stevens conviction when filing their notice with the court.[10]  After the Supreme Court denied review of his case,[11] Welch was executed in 2007.[12]

As an AUSA, Palk successfully prosecuted Sean Michael Gillespie, a white supremacist who was convicted of throwing a Molotov cocktail into a Jewish temple.[13]  Palk was also part of the appellate team that successfully defended Gillespie’s conviction.

As a Dean at the University of Oklahoma Law School, Palk handles civil and administrative matters for the school, including the recruitment of students, supervision of staff, and the mediation of employment issues.

Political Activity

Palk is a registered Republican, but his only political contribution of record is a $250 contribution to Tully McCoy, a Democratic Congressional candidate in 1994.[14]  However, at the time of his candidacy, McCoy was the District Attorney for Cleveland County (and Palk’s boss).  As such, Palk’s contribution can merely be viewed as support for his boss, rather than an endorsement of the Democratic party.

Overall Assessment

As his nominations by President Obama and President Trump would suggest, Palk is not a controversial candidate.  There is little in his record that will incite opposition on either the left or the right.  While Palk’s criminal experience is one-sided (he has spent most of his legal career as a prosecutor), this is hardly disqualifying.  Approximately one year ago, the Judiciary Committee approved Palk’s nomination unanimously.  It will likely do so again.  However, this time, Palk will likely get a floor vote as well.


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

[2] Chris Casteel, Federal Judicial Nominees Sail Through Committee Hearing, The Oklahoman, Apr. 21, 2016, http://newsok.com/article/5493224.

[3] Chris Casteel, Committee Clears Two for Oklahoma City Court, The Oklahoman, May 19, 2016,http://newsok.com/article/5499079.  

[4] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[5] Oklahoma v. Goble, No. CF-1995-1495-L (Okla. Cleveland Cnty. Ct. Sept. 18, 1996).  See also Oklahoman, Jury Gives Life Sentence in Double-Murder Case, The Oklahoman, Sept. 18, 1996, http://newsok.com/article/2551273.

[6] Oklahoma v. Welch, No. CF-1997-247-H (Okla. Cleveland Cnty. Ct. March 30, 1998).

[7] Welch v. State, 2 P.3d 356 (Okla. Crim. App. April 10, 2000) at ❡5.

[8] Id. at ❡7.

[9] Id.

[10] Id. at ❡9 (“However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered.”).

[11] Welch v. State, 531 U.S. 1056 (2000).

[12] Ben Fenwick, State Executes Man for 1987 Murder, Oklahoma Gazette, Aug. 22, 2007, http://okgazette.com/2007/08/22/state-executes-man-for-1987-murder/.

[13] United States v. Gillespie, No. CR-04-94-C (W.D. Okla. Sept. 9, 2005), aff’d, 452 F.3d 1183 (10th Cir. 2006), cert. denied, 549 U.S. 1063 (2006). 

[14] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=scott+palk (last visited May 25, 2017).  

Senate Invokes Cloture on Thapar’s Nomination

Today, the U.S. Senate invoked cloture on Judge Amul Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit.  The 52-48 vote was surprisingly close, with every Democrat voting against cloture.

Democrats’ unified opposition to Thapar is notable, as his record is not particularly extreme, and several mainstream legal groups, including the National Asian Pacific American Bar Association support his nomination.  If anything, Thapar’s record is more moderate than that of Justice Neil Gorsuch.  Yet, the four Democrats who supported cloture for Gorsuch all voted against Thapar.  Three factors may explain the unanimity:

  1. Thapar is Trump’s first lower court nomination.  By establishing firm opposition to him, Democrats are setting a baseline for their standards, refusing to vote for any nominee to Thapar’s right.
  2. Thapar is a prospective Supreme Court nominee if Justice Kennedy retires.  Voting against him unanimously gives Democratic Senators cover to reject Thapar if he is ever elevated.
  3. Thapar’s nomination has moved incredibly quickly.  He spent a mere five days on the Senate Executive Calendar before cloture was filed.  In contrast, during the Obama Administration, Republicans made even non-controversial Obama appointees wait months before a confirmation vote.  By voting no, Democrats are registering their opposition to the speed of Thapar’s confirmation.

At any rate, Thapar’s nomination can be compared to that of Judge David Hamilton, the first circuit court nominee President Obama sent to the Senate.  Hamilton, who had a relatively moderate profile, and strong support from Indiana Republicans, faced intense Republican opposition and accusations of being a judicial activist.  After languishing on the floor for over five months, Hamilton was confirmed with the support of just one Republican Senator (his home state Senator Richard Lugar).

Tomorrow, we will see if Thapar can manage even the one cross-party vote that Hamilton got.  Based on the vote today, I wouldn’t count on it.

Kevin C. Newsom – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Kevin Newsom, President Trump’s first nominee to the Eleventh Circuit, is a seasoned appellate litigator, seemingly universally respected, with extensive experience in diverse areas of law.  A longtime member of the Federalist Society, his confirmation would cement the somewhat evenly balanced Eleventh Circuit back onto a firm conservative footing.

Background

Kevin Christopher Newsom, born in 1972,[1] graduated first in his class from Samford University in 1994 before moving on Harvard Law School, where he graduated magna cum laude in 1997 and served on the Harvard Law Review.[2]  After law school, Newsom clerked for prominent conservative Judge Diarmuid O’Scannlain on the Ninth Circuit (1997-98).  Clerking for O’Scannlain, a “feeder judge” for the Supreme Court, led Newsom to a clerkship with Justice David Souter (2000-01).[3]  Newsom described working for Justice Souter—who is not known for his conservative views—as a “dream job,” and characterized his former boss as “blindingly brilliant.”[4]

After clerking for Justice Souter, Newsom stayed in DC doing appellate litigation for Covington & Burlington.  He chose Covington & Burlington because he wanted to become a law professor and had heard that the firm had “a strong reputation for sending its alumni into the teaching field.”[5]  But he became entranced with appellate law and after two years left the firm to take a position as Alabama’s Solicitor General in 2003.[6]  The man who hired him? Then-Alabama Attorney General—now Eleventh Circuit judge—William Pryor.[7]

In 2007, Newsom left the SG gig for Bradley Arant, where he remains as a partner today.[8]  Since his start at Bradley Arant, he has at various times served as an adjunct professor at Samford University’s Cumberland School of Law, Vanderbilt University Law School, and the Georgetown University Law Center.[9]

Newsom has been a member of the Federalist Society since 1999.[10]  He was President of the Birmingham Lawyers Chapter from 2012-2015, and since 2007 he has regularly presented at Society events and has been a member of the Executive Committee of the Society’s Federalism and Separation of Powers Practice Group.[11]  His fellow members on that committee include conservative legal luminaries such as Paul Clement, Greg Katsas, Eleventh Circuit Judge William Pryor, and fellow Trump nominee for the Eighth Circuit and current Minnesota Supreme Court Justice David Stras.[12]  Newsom has also been a member of the American Law Institute since 2006.[13]  Since 2011, he has served on the U.S. Judicial Conference’s Advisory Committee on Appellate Rules.[14]

 History of the Seat

The seat Newsom was tapped for has been open since the retirement of Judge Joel Dubina in 2013.[15]  Dubina, the father of Alabama Republican Representative Martha Roby, left the Circuit at a time of significant turnover, with four seats out of twelve open on the court.  While the Obama Administration appointed three judges to the Circuit, somewhat moderating its conservative tilt, Alabama Senators Richard Shelby and Jeff Sessions were unable to come to an agreement with the Obama Administration over a nominee for the Dubina vacancy.[16]

More than two years after the vacancy opened, Obama nominated Judge Abdul Kallon to fill the vacancy.[17]  While Kallon, a former Bradley Arant partner himself, had been confirmed as a federal district judge with Shelby and Sessions’s support, they refused to return blue slips for his elevation.[18]  With no blue slips, the Judiciary Committee took no action on Kallon’s nomination, and the seat was left unfilled during the Obama Administration.

Legal Career

As the Solicitor General for Alabama, Newsom argued many cases and participated in a number of filings before the U.S. Supreme Court.[19]  He was the counsel of record in an amicus filing on behalf of 25 states in a case challenging a three-drug lethal-injection protocol, Hill v. McDonough, 547 U.S. 573 (2006).  Hill had brought his claim under § 1983, but the Eleventh Circuit held that his § 1983 claim was the functional equivalent of a habeas petition, and because Hill had previously sought federal habeas relief, his new claim was barred as successive under 28 U.S.C. § 2244.[20]  In his amicus brief for the various States, Newsom endorsed this view and further made the case that “[e]leventh-hour litigation like Hill’s fatally frustrates” the States’ “ability to carry out duly-adjudicated death sentences in a timely manner.”[21]  Permitting “all manner of execution-related challenges to proceed via §1983,” Newsom contended, would come “at the cost of the finality interests that the federal habeas corpus statute is designed to protect.”[22]  To illustrate his concerns, Newsom related the story of former Alabama prisoner David Lee Nelson, who—as told by Newsom—manipulated the Supreme Court into granting him continued litigation on his claims.[23]  Newsom argued Alabama’s position in Nelson’s appeal,[24] and in Newsom’s view, permitting Hill to challenge the execution protocol under § 1983 would compound the supposed flaw in the Supreme Court’s treatment of Nelson.[25]

In its opinion, the Supreme Court unanimously reversed the Eleventh Circuit.[26]  Although the Court stated that “the State and the victims of crime have an important interest in the timely enforcement of a sentence” and that “courts should not tolerate abusive litigation tactics,” the Court unanimously rejected Newsom’s arguments, as well as those by the respondents and the federal government (as amicus), as inconsistent with the Federal Rules of Civil Procedure and the court’s precedent.[27]  In Hill’s case, Newsom’s fear about further protracted litigation did not come to fruition.   The Supreme Court’s reversing opinion—in which it noted that it was not ruling on the “equities and the merits of Hill’s underlying action”—was handed down on June 12, 2006.[28]  Three months later, on September 20, 2006—following several more opinions from the district court and Eleventh Circuit[29]—Hill was executed.[30]

Newsom, again as Alabama’s SG, also defended against a constitutional challenge to Alabama’s statutory ban on the distribution of sex toys.[31]  (Disclosure: The ACLU, for whom I work, was opposing counsel in the case.) The Eleventh Circuit, in several opinions (the Williams cases), addressed the question whether the ban could survive Supreme Court precedent—including, ultimately, Lawrence v. Texas, 539 U.S. 558 (2003)—holding that it did.[32]  Newsom’s position, accepted by the court, was—in the court’s words—that “public morality remains a legitimate rational basis for the challenged legislation even after Lawrence.”[33]  A decade later, however, the Eleventh Circuit has granted rehearing en banc in another case on the question whether one of the Williams cases is still good law and whether a Georgia municipality’s ban on the sale of sex toys is constitutional.[34]  Although the specific Williams case in question is not the one in which Newsom was counsel, the broader constitutional inquiry that the court will address directly implicates the case in which he was involved as well.[35]  Oral argument in that case will be held on June 6, 2017.[36]

Finally, Newsom also argued for Alabama in a case concerning preclearance under the Voting Rights Act, Riley v. Kennedy, 553 U.S. 406 (2008).  There, Alabama—a “covered” jurisdiction under the VRA, meaning it must obtain “preclearance” from the U.S. DOJ before changing voting procedures—sought to reinstate a prior voting practice following the Alabama Supreme Court’s conclusion that a newer practice was unconstitutional.[37]  Newsom successfully contended that Alabama’s return to its prior practice did not qualify as a change requiring preclearance—Justice Ginsburg wrote the 7-2 opinion in Alabama’s favor.[38]  Justice Stevens, along with Newsom’s former boss, Justice Souter, dissented.[39]

Writings

Newsom has received some scholarly attention for an article he published in the Yale Law Journal while working as an associate at Covington & Burling: “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases.”[40]  In that article, which he developed while serving as a research assistant on Professor Laurence Tribe’s constitutional law treatise,[41] Newsom takes on the Fourteenth Amendment’s Privileges or Immunities Clause, arguing that the conventional scholarly interpretation of the Slaughter-House Cases is mistaken.  While many commentators believe the Clause incorporates most or all of the protections of the Bill of Rights against the states and that the Slaughter-House Cases were therefore wrongly decided, Newsom agrees with former and disagrees with the latter, instead arguing that the Cases are consistent with an incorporationist interpretation of the Clause.

In reaching this conclusion, Newsom offers his views on the doctrine of substantive due process, stating that his interpretation “would permit courts to lay aside the historically confused and semantically untenable doctrine of ‘substantive due process,’ a doctrine that has for years visited suspicion and disrepute on the judiciary’s attempt to protect even textually specified constitutional freedoms, such as those set out in the Bill of Rights, against state interference.”  Although he states that his primary concern about what his interpretation of Slaughter-House means for substantive-due-process doctrine is the protection of “substantive Bill of Rights freedoms” (such as the freedom of speech), purportedly leaving “for another day” what his reinterpretation means for the “more controversial branch of substantive due process”—“the protection of unenumerated rights against state interference”—he nevertheless makes plain those views as well: (1) substantive due process is inconsistent with the constitutional text; (2) it is inconsistent with the intent of the framers of the Fourteenth Amendment; (3) because of those reasons, reliance on the doctrine undermines the integrity of the Supreme Court and the “institution of judicial review”; and (4) the doctrine can be traced to the Dred Scott decision and therefore suffers a “pedigree” problem.  On this latter point, Newsom offers his advice to judges: “courts invoking substantive due process—the idea of grounding protection for a substantive right in what is, by all accounts, a purely procedural provision—would do well to remember that all roads lead first to Roe, then on to Lochner, and ultimately to Dred Scott.”  Presumably, this statement is intended to suggest that all three decisions—not simply Dred Scott and Lochner, but also Roe—were wrongly decided.

Newsom’s views on substantive due process put him at odds with current Supreme Court caselaw—which obviously recognizes the existence of substantive-due-process doctrine—but it does not place him out of the conservative mainstream, which has long challenged Roe in particular and substantive due process more generally.  Notably, his potential future colleague on the Eleventh Circuit—should Newsom be confirmed—is Judge William Pryor, who called Roe the “worst abomination in the history of constitutional law.”[42]  (Judge Pryor was initially filibustered by Senate Democrats and was installed as a circuit-court judge by President George W. Bush through a recess appointment.[43])  Newson’s apparent wholesale rejection of substantive due process is also shared by at least one member of the current U.S. Supreme Court—Justice Clarence Thomas.  Justice Thomas was confirmed in 1991 by a narrow margin and in a confirmation environment that was much more forgiving than today’s.  Given the change in environment and Justice Thomas’s willingness to overturn otherwise settled law in a variety of areas “in an appropriate case”[44]—including in the area of substantive due process[45]—it is not clear that he could be reconfirmed today.  What this means with someone of Newsom’s specific views on substantive due process is unclear, but given that Newsom is not being nominated for the Supreme Court but for Eleventh Circuit, he would not be in a position—for the moment, at least—to overturn Supreme Court caselaw in that or in any other area.  At most, he will be in a position to narrowly interpret or distinguish such cases.  This is true of any other judge on the court, but it is not insignificant, particularly given his assertion that “courts invoking substantive due process … would do well to remember that all roads lead first to Roe….”  This advice was not directed solely at the Supreme Court but rather courts, plural—presumably including the court to which he has been nominated.  The statement seems to suggest that all courts should consider the putative illegitimacy of Roe when addressing claims involving the doctrine of substantive due process.

Such a statement is at odds with Supreme Court precedent, which not only reaffirmed Roe in 1992 (Casey[46]) but relied on it as recently as 2016 (Whole Woman’s Health[47]).  Perhaps this interpretation of Newsom’s writing accurately reflects his views as a recent law school graduate, but there does not appear to be any publicly available indication that he would in bad faith resist the application of Supreme Court caselaw with which he disagrees.  When I asked former Alabama Solicitor General John Neiman for his own view on Newsom’s nomination, he replied, “[h]e is a great pick and extremely qualified.”

Overall Assessment

On paper, Kevin Newsom is an eminently qualified nominee for the Eleventh Circuit. His views on substantive due process, however, while not out of step in the community of conservative legal superstars through which he moves, are inconsistent with current caselaw, and his apparent views on Roe in particular could draw significant concern from some quarters. Nevertheless, I believe that Newsom is a highly qualified pick for the President.


[1] Kevin Newsom, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[9] Kevin Newsom, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

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

[11] Id.

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

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

[15] Dottie Perry, Exodus from 11th Circuit Presents a Ripe Opportunity…That Will Likely Rot, The Legal Examiner Mobile, Aug. 26, 2013, http://mobile.legalexaminer.com/miscellaneous/exodus-from-11th-circuit-presents-a-ripe-opportunity-that-will-likely-rot/.

[16] Mary Troyan, Shelby Blames White House for Lack of Judges, Montgomery Adviser, Sept. 21, 2015, http://www.montgomeryadvertiser.com/story/news/2015/09/22/shelby-blames-white-house-lack-judges/72604440/.

[17] Mary Troyan, Obama Appoints Judge Abdul Kallon to 11th Circuit, Montgomery Adviser, Feb. 11, 2016, http://www.greenvilleonline.com/story/news/2016/02/11/obama-appoints-judge-abdul-kallon-11th-circuit/80253358/.

[18] Id.

[19] Kevin Newsom, Questionnaire for Judicial Nominees at 26-28, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[20] Hill v. McDonough, 547 U.S. 573, 576 (2006).

[24] See Nelson v. Campbell, 541 U.S. 637 (2004).

[26] Hill v. McDonough, 547 U.S. 573 (2006).

[27] Id. at 582-83.

[28] Id. at 585.

[29] Hill v. McDonough, 462 F.3d 1313 (11th Cir. 2006); Hill v. McDonough, No. 4:06-CV-032-SPM, 2006 WL 2556938 (N.D. Fla. Sept. 1, 2006); Hill v. McDonough, No. 4:06-CV-032-SPM, 2006 WL 2598002 (N.D. Fla. Sept. 11, 2006); Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006); see also Hill v. McDonough, 548 U.S. 940 (2006).

[30] Florida prisoner executed after court rejects cruelty claim, https://www.theguardian.com/world/2006/sep/21/usa.edpilkington.

[31] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[32] See id. at 1318-19; see also Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[33] Williams v. Morgan, 478 F.3d 1316, 1318 (11th Cir. 2007).

[35] See id.

[36] Id.

[37] See Riley v. Kennedy, 553 U.S. 406, 411-12 (2008).

[38] Id. at 411, 421-22.

[39] Id. at 429.

[40] Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000).

[41] Bryan H. Wildenthal, How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism, 23 T. Jefferson L. Rev. 241, 244 n.11 (2001).

[44] E.g., Shepard v. United States, 544 U.S. 13, 28 (2005) (Thomas, J., concurring).

[45] E.g., McDonald v. City of Chicago, Ill., 561 U.S. 742, 811-13 (2010) (Thomas, J., concurring in part and concurring in the judgment).

[46] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).

[47] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

UPDATE – John K. Bush Criticized Cruz, Abortion, and the Affordable Care Act As a Blogger.

Approximately one hour ago, Zoe Tillman of BuzzFeed News reported that John K. Bush, nominated for the Sixth Circuit, has an extensive history of politically-charged blog posts at Elephants in the Bluegrass under the pseudonym, G. Morris.  Among the more impolitic of these are posts calling Sen. Ted Cruz (R-TX) a “sore loser”, calling for the repeal of the Affordable Care Act,  criticizing Roe v. Wade, and comparing Barack Obama to Monica Lewinsky.

In our analysis of Bush’s record yesterday, we noted the concerns that had already been raised over his statements about New York Times v. Sullivan, and his generally conservative record. The new posts on Elephants in the Bluegrass raise legitimate questions about Bush’s willingness to set aside ideology and give all litigants a fair hearing.  Needless to say, with Cruz as one of his questioners, Bush’s confirmation hearings are shaping up to be very interesting.

 

John K. Bush – Nominee to the U.S. Court of Appeals for the Sixth Circuit

John K. Bush, a distinguished commercial litigator, is the second Kentucky nominee named by President Trump to the Sixth Circuit.  Like the first, Judge Amul Thapar, Bush has a close connection with the Federalist Society.  However, unlike Thapar, Bush has no judicial record, making his conservative legal background even starker.

Background

John Kenneth Bush was born on Aug. 24, 1964 in Hot Springs, Arkansas.  After getting a B.A. from Vanderbilt University and a J.D. from Harvard Law School, Bush clerked for Judge J. Smith Henley on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Bush joined the Washington D.C. office of Gibson, Dunn & Crutcher LLP, working primarily in federal appellate matters.

In 1996, Bush moved to the Louisville office of Bingham, Greenebaum & Doll LLP, becoming a member in 1998, and a partner in 2012.  At Bingham, Bush served as Co-Chair of the Litigation Department, as well as Team Leader of the Antitrust Team.

Starting in 1997, Bush has served as President of the Louisville Lawyers Chapter of the Federalist Society, an organization dedicated to shaping the American legal system in accordance with originalist and textualist principles.

In November 2016, Bush indicated his interest in serving as a federal judge to Senate Majority Leader Mitch McConnell (R-KY).  After meetings with McConnell, Senator Rand Paul (R-KY), and officials in the White House Counsel’s Office and the Department of Justice, Bush was formally nominated on May 8, 2017.[1]

History of the Seat

Bush has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in February 2017 with Judge Danny Julian Boggs’ move to senior status.[2]  Boggs, an appointee of President Ronald Reagan, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2009, but did not announce the move until shortly before President Trump’s inauguration.

Legal Experience

In almost thirty years as an attorney, Bush has primarily worked on commercial litigation, both on the trial and the appellate level.  As the head of Bingham’s Antitrust team, many of Bush’s most prominent cases involve antitrust litigation.  Early in his year, Bush was chief trial counsel for Hillerich & Bradsby Co. (H&B.), a baseball bat manufacturer in Louisville, in multidistrict litigation involving NCAA rules governing aluminium baseball bats.[3]

In one of his most significant cases, Bush represented Vibo Corporation, a tobacco manufacturer, in challenging its payment obligations under the Master Settlement Agreement (MSA) negotiated between the tobacco industry and state attorney generals in the 90s.  In the suit, Bush challenged the MSA, arguing that the agreement violated federal antitrust law.  The primary suit, brought in the Western District of Kentucky, resulted in both trial and appellate rulings against Bush’s client.[4]

Despite his primary focus on commercial litigation, Bush has also worked on some more controversial cases.  Alongside Theodore Olson, Bush was part of President Ronald Reagan’s defense team during the Iran-Contra investigation.[5]  Bush also worked with law school classmate Mark Nielson to sue the State of Connecticut and force implementation of a voter-approved constitutional limit on state spending.[6]  Bush was also part of the legal team that successfully defended a low sentence for Stacey C. Koon, the Los Angeles police sergeant convicted of civil rights violations for his role in the beating of Rodney King.[7]

Furthermore, Bush’s participation as amicus counsel in two politically charged cases may also be brought up at his confirmation hearing.  In 2007, Bush filed an amicus brief on behalf of the Louisville Area Chamber of Commerce, Inc. urging the Supreme Court to uphold the Louisville school district’s desegregation plan.[8]  Despite drafting a brief aimed at drawing conservative votes, the Supreme Court voted 5-4 to strike down the desegregation plan for relying too closely on race.[9]  Furthermore, last year, Bush participated as amicus counsel in Susan B. Anthony List v. Driehaus, a landmark First Amendment case which struck down Ohio’s ban of false statements in political campaigning.[10] 

Political Activity

Bush, a registered Republican,[11] has a long history of involvement with the Republican party.  Bush has contributed to the campaigns of numerous Republicans including McConnell, Paul, Congressman Andy Barr, and former Congresswoman Anne Northup.[12]  Over the course of his career, Bush has contributed $4500 to McConnell and $1050 to Paul, as well as volunteering for both Senators’ re-election campaigns.[13]

Bush has also made two small contributions to the Louisville and Jefferson County Republican Committee, as well as serving as an Executive Committee Member for the Jefferson County Republican Party for the last year.  Bush also served on Republican Governor Matt Bevin’s Transition Team.

Speeches and Writings

Over his thirty year long legal career, Bush has both spoken and written extensively on legal issues.  While most of Bush’s speeches and writings focus on the practice of litigation[14] and antitrust law,[15] two in particular may draw controversy.

Right to Privacy and the Kentucky Supreme Court

In 2006, Bush co-authored a paper for The Federalist Society of Law and Public Policy Studies alongside Prof. Paul E. Salamanca of the University of Kentucky School of Law.  The paper, titled “Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?” criticized a series of rulings made by the Kentucky Supreme Court that the authors felt had expanded judicial authority at the expense of the legislature, and had disregarded precedent.  Among the areas of criticism, the authors noted the Kentucky Supreme Court’s tendency “to find rights in the state constitution above and beyond those in the U.S. Constitution.”[16]  Specifically, they highlighted that the Court “immunized consensual sodomy from criminal prosecution” despite the U.S. Supreme Court’s ruling to the contrary in Bowers v. Hardwick.[17]

Bush and Salamanca also criticized the Court’s abortion jurisprudence, noting that while the Court was initially willing to defer to state regulation of abortion, it’s “affirmance of the state’s efforts to protect unborn life was short-lived.”[18]  They also chided former Justice Charles Leibson, stating that “Justice Leibson’s interpretation of Roe gave little, if any, weight to the protection of unborn life.

Originalist Interpretation of Libel Law

On March 7, 2009, Bush spoke at the Symposium on Constitutional Law at the University of Louisville Brandeis School of Law.  His speech, titled “The Constitution and the Importance of Interpretation: Original Meaning” included an endorsement of originalism: a method of interpretation that gives primacy to the words of the constitution as they were understood by the authors.[19]  In his speech, Bush singled out the Supreme Court case of New York Times v. Sullivan as a case inconsistent with originalism.[20]  Sullivan, which insulated news articles that criticized public figures, has been cited as a case that protects freedom of the press.[21]  As such, Bush’s criticism of the case may raise questions about his willingness to interpret and apply it as a federal judge.  Bush’s remarks have already drawn concern from liberal groups, who argue that they could be used as a blueprint by the Trump Administration to target independent journalists.[22]

Overall Assessment

Unlike the previous nominees featured on the Vetting Room, Bush has no experience as a judge.  While there is nothing innately disqualifying about this, Bush’s lack of judicial experience makes it more difficult to gauge what kind of a judge he will be.  However, looking at his extensive history with the Federalist Society, his endorsement of originalism, and his long involvement with the Republican party, it is reasonable to conclude that Bush will be a deeply conservative addition to the Sixth Circuit.

While partisan activity should not be a bar to judicial service, Bush’s background makes it easy for progressive legal groups to build a case against his confirmation.  In particular, Bush’s criticism of both Sullivan and an expanded right to privacy, as well as his defense of Koon, a white police officer charged with violating the civil rights of a black man, could be used as grounds for concern.[23]

Overall, there is enough in Bush’s record to draw concern from the Judiciary Committee Democrats.  If and when Bush’s nomination comes up for Committee consideration, I expect a partisan battle over his confirmation.


[1] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[3] See, e.g., Baum Research & Dev. Co. v. Hillerich & Bradsby Co., No. 98-72946, 2003 WL 25775524, at *1 (E.D. Mich. Nov. 23, 2003).  

[4] See VIBO Corp. v. Conway, 594 F. Supp. 2d 758 (W.D. Ky. 2009), aff’d 669 F.3d 675, 680 (6th Cir. 2012).

[5] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[6] Jack Ewing, Frustrated Lawmaker Asks Court for Assist, Hartford Courant, Sept. 11, 1993, http://articles.courant.com/1993-09-11/news/0000004890_1_spending-cap-legislator-courts.

[7] Koon v. United States, 518 U.S. 81 (1996).

[8] See Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

[9] Andrew Wolfson, President Trump Taps Louisville Conservative John K. Bush for Court, Louisville Courier-Journal, May 8, 2017, http://www.courier-journal.com/story/news/politics/2017/05/08/donald-trump-taps-louisville-conservative-john-k-bush-court/101426196/. See also Robert Barnes, Three Years After Landmark Court Decision, Louisville Still Struggles With School Desegregation, Wash. Post, Sept. 20, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html?sid=ST2010091904357.

[10] Susan B. Anthony List v. Driehaus, 814 F.3d 466, 469 (6th Cir. 2016).

[12] While Bush takes the unusual step of reporting his campaign contributions on his Senate Judiciary Questionnaire, he omits some small donations, including a $500 contribution to McConnell made on Aug. 31, 2005, and a $200 contribution to Northup on July 26, 2004.  

[13] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=john+bush (last visited May 18, 2017).

[14] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[15] See, e.g., John K. Bush, So You Have a Big Antitrust Problem: Now What?, Antitrust Law Client Strategies, 2007.  

[16] John K. Bush, Paul E. Salamanca, Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?, The Federalist Society of Law and Public Policy Studies, Sept. 2006, 5.  

[17] Id.

[18] Id. at 6.

[19] John K. Bush, Speech at the Brandeis School of Law’s Symposium on Constitutional Law (Mar. 7, 2009).

[20] Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[21] New York Times Editorial Bd., The Uninhibited Press, 50 Years Later, N.Y. Times, Mar. 8, 2014, https://www.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html (“[Sullivan] rejected virtually any attempt to squelch criticism of public officials – even if false – as antithetical to the ‘central meaning of the First Amendment.’”).

[22] See Justice Watch, Trump Judicial Nominee John K. Bush Has Advocated Stripping First Amendment Protections from the Press, Alliance for Justice, May 11, 2017, http://www.afj.org/blog/trump-judicial-nominee-john-k-bush-has-advocated-stripping-first-amendment-protections-from-the-press; Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[23] Although Bush’s defenders may note his defense of aggressive desegregation plans as amici in Parents Involved.