Judge David Tapp – Nominee to the U.S. Court of Federal Claims

Judge David Tapp is a longstanding state judge in Kentucky.  He has now been tapped, not for a seat on the federal bench in Kentucky (which has no vacancies currently) but, rather, to a vacancy on the U.S. Court of Federal Claims (CFC), a specialized court based in Washington D.C.

Background

A native Kentuckyian, David Austin Tapp was born in Lexington in 1962.  Tapp received a B.A. from Morehead State University in 1983 and then joined the Rowan County Sheriff’s Office as a Deputy Sheriff.[1]  After stints as a loss prevention officer and as a social worker, Tapp received an M.A. from Chaminade University of Honolulu and a J.D. from the University of Louisville Brandeis School of Law.[2]

After law school, Tapp became a state prosecutor in Somerset, Kentucky.[3]  Two years later, he started his own law practice, working in criminal defense.  He held that position until he was elected to the state bench in 2004 (he was appointed to the Circuit Court by Governor Ernie Fletcher in 2005.)[4] 

History of the Seat

Tapp has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Tapp was nominated for opened up on October 21, 2013, with the with the retirement of Judge Lynn Bush.  On April 10, 2014, Thomas Halkowski, a Principal in the Delaware office of Fish & Richardson, P.C. was nominated for the vacancy by President Obama.[5]  Halkowski and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[6]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.[7]

The Trump Administration nominated Stephen Schwartz on June 7, 2017 to fill this vacancy. However, Schwartz’s nomination ran into trouble due to concerns about his youth and lack of experience.[8]

For his part, in June 2018, Tapp was contacted by Senate Majority Leader Mitch McConnell to gauge his interest in an appointment to the CFC.  Tapp was nominated on March 5, 2019.

Jurisprudence

Tapp has been a circuit court judge in Kentucky since 2005, a trial court with some appellate jurisdiction over the lower level Kentucky District Court.  In his fourteen years on the bench, Tapp has overseen almost 20,000 cases, including approximately 225 jury trials.[9]

Among his most important rulings, in 2008, Tapp issued a restraining order barring the release of prisoners under a new Kentucky law allowing for such early release.[10]  The restraining order was prompted by a petition filed by prosecutor Eddy Montgomery, and was criticized by defense attorneys as being motivated by “a lack of political courage to do the right thing.”[11]  The criticism by local defense attorney Robert Norfleet sparked a bar complaint against him, and a subsequent motion by Norfleet to have Tapp recuse himself from all of his cases, noting that Tapp had frequently noted his “hatred” of Norfleet.[12]  Tapp’s injunction was ultimately partially reversed by the Kentucky Supreme Court after being affirmed by the Kentucky Court of Appeals.[13]

Political Activity

In 2018, Tapp ran for a seat on the Kentucky Supreme Court, but ultimately only took 25% of the vote, coming in third behind Kentucky Court of Appeals Judge Debra Hembree Lambert (who ultimately won the election) and fellow circuit judge Dan Ballou.

Overall Assessment

Given Tapp’s long history on the bench, he seems to meet the base level of qualifications needed for a federal appointment.  However, what is unusual is the court that Tapp has been nominated to.  It does not seem that Tapp has practiced extensively before the CFC or that his docket in Kentucky covers the subject matter that the CFC reviews.  As such, senators may question the specific court that Tapp has been tapped for, even if his legal credentials are beyond dispute.


[1]  Sen. Comm. on the Judiciary, 115th Cong., David A. Tapp: Questionnaire for Judicial Nominees 2.

[2] Id. at 1.

[3] Id.

[4] See id.

[5] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[6] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[7] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[9] See Tapp, supra n. 1 at 45.

[10] Heather Pyles, Defense Attorneys Decry Tapp Ruling: Norfleet, Stanziano Respond to Decision to Block Release of Prisoners or Parolees, Commonwealth Journal, Aug. 21, 2008.

[11] See id. (quoting Robert Norfleet).

[12] See Heather Pyles, Attorney, Local Judges at War, Commonwealth Journal, Sept. 20, 2008.

[13] Commonwealth v. Thompson, 300 S.W.3d 152 (Ky. 2010).

The Irony of Michael Bogren’s Defeat

Early in the Trump Administration, a judicial nominee with strongly conservative credentials faced critical questioning from senators regarding a motion he had filed in a case involving LGBTQ rights.  In response to questioning, he noted:

“The views I express in litigation are those of my clients.”

The nominee in question is Howard Nielson, the Utah attorney whose involvement in defending California’s Proposition 8 was deeply controversial.  Nielson was ultimately confirmed this year by a narrow margin but his battle has a curious coda.  Just as Nielson took the bench in Utah, another nominee, Michael Bogren, withdrew his nomination to a U.S. District Court seat.  The reason: his defense of an East Lansing ordinance that barred businesses that discriminated against LGBT customers from taking part in city events.

Bogren went down, essentially, for engaging in the practice of law, which requires lawyers to make reasonable arguments on behalf of their clients.  Others on both sides of the aisle, including Bogren himself, have pointed out the absurdity of the attacks on Bogren.  Rather than reiterate those points, I’ll focus on a unique irony.

Bogren’s nomination was the result of a detailed negotiation between the White House and Michigan’s Democratic senators.  The negotiations lasted over two years before they produced the nominations package of Bogren and Judge Stephanie Davis (nominated for the Eastern District of Michigan).  Now, Bogren’s withdrawal costs the White House half of their deal.  More specifically, it costs them the conservative half of the deal.

Bogren, derailed by Sen. Josh Hawley and other conservatives, was a member of both the Federalist Society and the Republican National Lawyers Association.  Furthermore, he has contributed solely to Republicans including Presidential candidates John McCain and John Kasich, and the Republican National Committee.  In contrast, almost every single Republican who objected to Bogren had no problem approving Davis, who conducted election protection for the Obama campaign and served on the transition committee of former Detroit mayor Dennis Archer.

This is not to say that Davis, who has an impressive resume, should be opposed.  Rather, it is to note the absurdity of judging a nominee’s entire career by three lines in a legal brief.  It is also telling that Bogren was opposed for defending a municipal government’s right not to support businesses who discriminate, and not for, in another case, representing the Bay View Association, a Methodist resort association, which barred a Jewish buyer from purchasing property.

In any case, Bogren is not likely to be forgotten.  Democrats are sure to chant his name as a talisman the next time Republicans complain that a Trump nominee is being judged on the basis of his advocacy rather than his ability.

 

Brantley Starr – Nominee to the U.S. District Court for the Northern District of Texas

Two years ago, the First Assistant Attorney General for the Texas Attorney General’s Office, Jeff Mateer, saw his nomination implode as several controversial comments he had made in the past surfaced.  President Trump has now nominated Mateer’s deputy, Brantley Starr, to fill a lifetime appointment in Texas, where Mateer’s litigation history is likely to be a cause of controversy.

Background

A native Texan, Brantley David Starr was born in San Antonio in 1979.  He attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2004 (overlapping at both institutions with fellow Northern District nominee Matthew Kacsmaryk).[1]  After graduating from law school, Starr spent a year at the Office of the Texas Attorney General and then clerked on the Texas Supreme Court for Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit).  

After his clerkship, Starr rejoined the Texas Attorney General’s Office as a Fellow and Assistant Solicitor General.  In 2008, he joined King & Spalding LLC in Austin as an associate.  In 2011 he returned to the Texas Supreme Court as a Staff Attorney for Justice Eva Guzman.  In 2015, he rejoined the Texas Attorney General’s Office for a third time and currently serves as Deputy First Assistant Attorney General, working directly under former judicial nominee Jeff Mateer.

History of the Seat

Starr has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five of the twelve allotted judgeships for the District currently vacant.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Starr has been nominated to fill opened on September 22, 2018, when Judge Sidney Fitzwater[2] moved to senior status.  For his part, Starr interviewed for a judicial appointment in early 2017, but was not recommended at that time.[3]  Rather, Starr’s name wasn’t sent to the White House until July 2018, when he interviewed with the White House Counsel’s Office.  Starr was finally nominated on March 11, 2019.

Legal Experience

Starr has worked in three primary legal positions in his career: as a Staff Attorney to Texas Supreme Court Justice Eva Guzman; at the Austin office of King & Spalding; and at the Texas Attorney General’s Office.  While Starr largely avoided controversy in the former two positions, his stints at the Attorney General’s Office have involved him in some of the most potent legal issues currently being litigated.

Litigation

At the Attorney General’s Office, Starr has been active in much of Attorney General Ken Paxton’s strategy of activist litigation.  For example, Starr participated in a suit against the Obama Administration’s guidelines supporting the rights of transgender students.[4]  He also defended Texas’ strict voter ID law against a ruling that it was intended to discriminate against minority voters.[5] 

Testimony

In addition to his litigation work, Starr has frequently testified before the Texas legislature about proposed legislation, representing the views of the Texas Attorney General.  Starr’s testimony on these matters has generally been strongly conservative, regardless of the underlying subject matter of the legislation.  For example, Starr testified that legislation protecting the rights of adoption agencies to refuse to place children with same-sex couples was needed to protect “religious rights of conscience.”[6]  Starr also testified on legislation protecting religious objections to same-sex marriage, and persuaded legislators to drop language narrowing the protections only to actions clergy took “in their official capacity.”[7]  In other testimony, Starr suggested that state lawmakers had the flexibility to punish immigration offenses as state crimes,[8] and urged them to pass laws exempting religious groups from nondiscrimination ordinances on hiring and housing, allowing businesses not to sell to same-sex couples, and allowing government employees not to comply with Supreme Court precedent supporting same-sex marriage.[9]  Furthermore, in another instance, Starr testified that local district attorneys were neglecting enforcing the law on electoral and abortion related crimes.[10]  In response, many local prosecutors wrote that Starr’s testimony was misleading and was part of a “false narrative.”[11]

Writings

In addition to the public testimony Starr has offered in his official capacity, Starr has occasionally written on the law as well.  For example, Starr spoke favorably of Mateer’s ill-fated judicial nomination, stating:

“Jeff Mateer leaves a legacy of service to the State of Texas and will now extend that service to all Americans”[12]

In another article which he authored on behalf of the Texas Attorney General’s Office, Starr spoke on the travel ban cases, arguing that the Constitution “cannot extend to someone who is both an alien and who has not yet been admitted into the country.”[13]  In the article, Starr also suggested that a suit against Trump Administration executive orders against “sanctuary cities” may be meritorious.[14] 

Political Activity

Starr has supported Ted Cruz’s campaigns, donating to him to 2011 and 2016.[15]  In addition, Starr was a volunteer for Gov. Greg Abbott’s campaign in 2014.[16]

Overall Assessment

Starr’s nomination has already been approved by the Senate Judiciary Committee on a party-line vote.  This means that, unless four Republican senators oppose Starr, his nomination will eventually be approved on the Senate floor.  For the reasons noted below, such approval is likely but not certain.

First of all, Trump judicial nominees have generally drawn approval from most Republican senators unless there are any particularly controversial or injudicious actions in their past.  While Starr’s record is strongly conservative, he does not have such actions.  Secondly, while Starr is young, his legal ability is largely beyond debate.

However, Starr’s advocacy and testimony on behalf of the Texas Attorney General’s Office may still draw fire.  For many, “religious conscience” laws are increasingly seen as licenses to discriminate.  As such, Starr’s assertive advocacy on their behalf, and his endorsement of Mateer, may ultimately become an issue.


[1] Sen. Comm. on the Judiciary, 115th Cong., Brantley Starr: Questionnaire for Judicial Nominees 2.

[2] Fitzwater himself was nominated to the Northern District amidst controversy due to his youth and alleged participation in voter suppression efforts.  Fitzwater’s later nomination to the Fifth Circuit was never confirmed.

[3] Id. at 35.

[4] See Daily Signal, Texas Sues Obama Administration Over Transgender Bathroom Directive, Western Free Press, May 26, 2016.

[5] See Paul J. Weber, Judge Again Finds Discrimination in Texas’ Voter ID Law, Salt Lake Tribune, Apr. 10, 2017.

[6] Newstex, Committee Weighs ‘License to Discriminate’ Adoption Bill, Texas Observer, Apr. 16, 2015.

[7] Chuck Lindell, Religious Objections Bill Heads to Senate, Austin American Statesman, May 5, 2015.

[8] Laws Can Be Written to Secure Border: US Attorney, Legal Monitor Worldwide, Dec. 19, 2015.

[9] Chuck Lindell, Senate Panel Weighing ‘Religious Freedom’ Laws, Austin American-Statesman, Feb. 18, 2016.

[10] Emma Platoff, Texas Attorney General Ken Paxton is Seeking More Power This Session to Prosecute Voter Fraud and Abortion-Related Crimes, Texas Tribune, Feb. 4, 2019.

[11] See id.

[12] See Press Release, Office of the Texas Attorney General, Attorney General Paxton Releases Statement on First Assistant Attorney General Jeff Mateer’s Nomination By President Trump to Federal Bench (Sept. 7, 2017).

[13] See Brantley Starr, Executive Power Over Immigration, 22 Tex. Rev. Law & Pol. 283, 285-86 (Winter, 2017).

[14] See id. at 289-93.

[16] See Starr, supra n. 1 at 16.

Judge Peter Phipps – Nominee to the U.S. Court of Appeals for the Third Circuit

The 46-year-old Peter Phipps faced an uncontentious confirmation to the U.S. District Court for the Western District of Pennsylvania last year.  Now, just a few months later, Phipps is up for a seat on the U.S. Court of Appeals for the Third Circuit.

Background

Peter Joseph Phipps was born on April 8, 1973 at Dyess Air Force Base in Abilene, TX.[1]  Phipps attended the University of Dayton, getting a B.A. in History and a B.S. in Physics.[2]  He continued on to the Stanford University Law School, graduating with a J.D. in 1998.  He then joined the Washington D.C. Office of Jones Day (a firm that has sent many alumni to the Trump Administration and the federal bench).[3]

In 2001, Phipps left Jones Day to clerk for Judge R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.[4] 

Phipps was nominated in February 2018 to a seat on the U.S. District Court for the Western District of Pennsylvania.  He was confirmed by voice vote on October 11, 2018, and has served on the federal bench since then.

History of the Seat

Phipps has been nominated to Judge Thomas Vanaskie’s seat on the U.S. Court of Appeals for the Third Circuit.  Vanaskie, a Democrat, was appointed to the U.S. District Court for the Middle District of Pennsyvania by President Bill Clinton in 1994 and to the Third Circuit by President Obama in 2010.

Phipps’ nomination is opposed by Democratic Senator Bob Casey, who argues that Phipps lacks the experience on the bench for a seat on the Court of Appeals.[5] 

Legal Experience

While Phipps’s primary legal occupation has been as a litigator at the Department of Justice, he began his career as an Associate in the Washington D.C. Office of Jones Day, representing corporations in civil litigation.[6]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[7]

As Senior Trial Counsel at the Federal Programs Branch of the Department of Justice, Phipps litigated many contentious cases.  In one case, Phipps defended the U.S. Department of Housing and Urban Development against a class action suit brought by African American plaintiffs alleging racial discrimination in public housing.[8]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[9] 

In another notable case, Phipps defended the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy, which barred individuals engaging in homosexual conduct from serving openly in the armed forces.[10]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[11] 

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[12]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[13]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[14]

Jurisprudence

Phipps has served as a U.S. District Judge on the Western District of Pennsylvania since late October 2018.  In his short time on the bench, Phipps has presided over just one case that has gone to verdict or judgment, a $125,000 jury verdict for a plaintiff in a workplace injury trial.[15]  In other notable opinions, Phipps granted summary judgment against a plaintiff who was injured in a slip-and-fall, finding that there was not enough evidence to support plaintiff’s contention that there was a wet floor on the premises.[16]

Overall Assessment

When Phipps was nominated for the district court, we predicted a painless confirmation due to his relatively apolitical background and strong background.  Notwithstanding Casey’s opposition, there is still little in Phipps’ record to warrant strong opposition to the Third Circuit.  Phipps’ record does not suggest that he is particularly conservative, let alone an activist.  While the White House should have accommodated Casey’s concerns regarding Phipps’ level of experience, the nominee has more judicial experience than five out of the last six nominees selected for the Third Circuit.  As such, I predict a swift, if not entirely painless, confirmation for Phipps to the Third Circuit, and a relatively centrist tenure on the court.


[1] Sen. Comm. on the Judiciary, 116th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Press Release, Alliance for Justice, Peter Phipps Should Not Be Confirmed to Third Circuit (May 31, 2019).

[6] Id. at 10.

[7] Id. at 11-12.

[8] Thompson v. HUD, No. 95-395 (D. Md.) (Garbis, J.) (Grimm, J.).

[9] See id.

[10] Witt v. United States Air Force, No. 06-5195 (W.D. Wash.) (Leighton, J.).

[11] American Civil Liberties Union of Northern California v. Hargan, No. 16-3539 (N.D. Cal.) (Beeler, M.J.).

[12] See NCAA v. Christie, Nos. 3:12-4947; 3:14-6450 (D.N.J.) (Shipp, J.); Nos. 13-1713,-1714,-1715 (3d Cir.); Nos. 14-4546,-4568,-4569 (3d Cir.) (subsequently en banc); Nos. 13-967; -979; -980, Nos. 16-476,-477 (U.S.).

[13] See id.

[14] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

[15] Powers v. Norfolk Southern Ry. Co., Case No. 2:17-cv-648 (W.D. Pa.).

[16] Wood v. Speedway LLC, Civil Action No. 2:17-cv-1408, 2019 WL 2248671 (W.D. Pa. May 24, 2019).

William Shaw Stickman IV – Nominee to the U.S. District Court for the Western District of Pennsylvania

Sen. Pat Toomey is adept at recommending young male lawyers with bright futures to serve on the Western District of Pennsylvania.  After Judge Peter Phipps and Nicholas Ranjan, he has now recommended William Shaw Stickman IV.  In Stickman’s case, assertive letters to the editor he authored in his youth may cause him difficulty in the confirmation process.

Background

William Shaw Stickman IV was born in Pittsburgh PA in 1979.[1]  Stickman graduated summa cum laude from Duquesne University in 2002 and from Duquesne University Law School in 2005.[2]  He spent a year at the Pittsburgh office of Reed Smith LLP and then clerked for Chief Justice Ralph Cappy on the Pennsylvania Supreme Court.  He then joined the Pittsburgh Office of Del Sole Cavanaugh Stroyd LLC as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Stickman has been nominated for opened on December 6, 2018, with Judge Joy Flowers Conti’s move to senior status.  

Stickman applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Stickman interviewed with Toomey and Casey shortly after but did not start the process with the White House until February 2019.  He was formally nominated on May 13, 2019.

Legal Experience

Stickman has spent entire legal career post clerkship at the Pittsburgh office of Del Sole Cavanaugh Stroyd LLC, handling a litigation practice on both civil and personal injury cases.  Overall, Stickman has litigated six jury trials to verdict.[6]  Notably, Stickman (with Third Circuit Judge Stephanos Bibas as his co-counsel) represented the mother of Ryan Maseth, a Pittsburgh-native soldier who was electrocuted in an Iraqi military base.[7]  Stickman’s case against the military contractor responsible for the barracks was dismissed by Judge Nora Barry Fischer,[8] but was reinstated by the Third Circuit.[9]  The case was ultimately settled.

In another matter, Stickman served as Counsel for the Pennsylvania Reapportionment Commission in defending redistricting plans developed after the 2010 census.[10] 

Political Activity

Stickman is a Republican and has served on the Alleghany County Republican Committee from 2014 to 2019.[11]  He also ran for the Alleghany County Council as a college student in 2001, losing the election to Democratic incumbent Wayne Fontana.[12]  During the election, the Pittsburgh Post-Gazette endorsed Fontana, describing Stickman as “earnest and diligent” but noting his youth and that he “lacks an adequate grasp of specific issues facing the county.”[13]

Writings

In the early 2000s, Stickman authored a number of Letters to the Editor for the Pittsburgh Post Gazette.  Three of these letters are particularly notable for revealing Stickman’s views on key social issues.

Abortion

During the 2004 election, Stickman wrote a response to another letter comparing the number of abortions in the U.S. to the number of deaths in Iraq.  In the letter, Stickman describes the abortion industry as “grotesque,” stating that “since Roe vs. Wade more than 39 million babies have been killed by abortion.”[14]  Stickman also criticizes the comparison between abortion and the Iraq war, stating:

“To argue that there is moral equivalence between the accidental deaths of Iraqi civilians while liberating them from a murderous tyrant and the intentional deaths of many millions of babies is specious at best.”[15]

Gay Rights

In 2003, shortly after the Supreme Court struck down anti-sodomy laws in its Lawrence v. Texas decision, Stickman wrote a letter defending the disapproval and anti-LGBT views of Sen. Rick Santorum.[16]  In the letter, Stickman describes gay rights groups criticizing Santorum as “leftist sharks” and states:

“Even if the senator did equate homosexual intercourse with adultery, bigamy and incest, isn’t that his prerogative?  Are we and the leaders we elect no longer allowed to disagree with the activities of certain groups?”[17] 

Anti-Catholic Bias

In a 2002 letter, Stickman criticized the Post-Gazette’s coverage of sexual abuse cases involving Catholic priests.[18]  Stickman suggested that the coverage sensationalized the scandal and was motivated by anti-Catholic prejudice, comparing it to the Ku Klux Klan burning crosses to intimidate his Catholic grandmother.[19]  Stickman also alludes to the campaign against anti-Muslim bigotry after the September 11 attacks, asking: “is anti-Catholicism the last acceptable prejudice in our society?”[20]  Stickman notes that only 1.8 percent of Catholic priests have been implicated in scandal, noting:

“…the PG [Post-Gazette] should apologize to the 98.2 percent of priests who have suffered due to one-sided coverage.”[21]

Overall Assessment

The 40-year-old Stickman is young, conservative, and seems to have the support of his home state senators (even Democratic Sen. Bob Casey).  Furthermore, his career as a lawyer has not attracted much controversy, and he has accrued the requisite level of experience for a federal trial judge.  As such, his confirmation seems fairly assured.  

However, senators are likely to raise concerns about Stickman’s letters to the editor, suggesting that such letters do not reflect an appropriate judicial temperament.  Furthermore, Stickman’s beliefs, as divined from those letters, can be read to suggest that abortion is equivalent to murder, that homosexuality is equivalent to incest, that criticism of the Catholic church for its role in covering up child abuse is motivated solely by anti-Catholic animus, and that criticism of homophobia is an attempt to suppress speech.  While a nominee’s personal views shouldn’t necessarily dictate their judicial decisions, the boundary is nonetheless appropriate for senators to explore.

Of course, as with any nominee whose previous writings come under scrutiny, the key question is whether the nominee maintains the same views today or if his views have evolved with time.  That will be the question that must be explored regarding Stickman.


[1] Sen. Comm. on the Judiciary, 115th Cong., William S. Stickman IV: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 15.

[7] See Joe Mandak, Judge: No Iraqi Law in Pa. Soldier’s Shower Death, Associated Press, Oct. 3, 2011.

[8] Joe Mandak, Judge Nixes Pa. Soldier’s Iraq Electrocution Suit, Associated Press, July 16, 2012.

[9] Joe Mandak, Suit Over Pa. Soldier’s Death  in Iraq is Revived, Associated Press, Aug. 1, 2013.

[10] See Angela Couloumbis, Pa. Justices Hear Arguments Over New Legislative Plans, Philadelphia Inquirer, Sept. 13, 2012.

[11] See Stickman, supra n. 1 at 13-14.

[12] Id. at 13.

[13] Editorial, Fontana for District 12; More a Worker than a Reformer on County Council, Pittsburgh Post-Gazette, Oct. 26, 2001.

[14] See William S. Stickman IV, Accidental Deaths Vs. Intentional Deaths: No Comparison, Pittsburgh Post-Gazette, Oct. 29, 2004.

[15] Id.

[16] William S. Stickman IV, Free to Disagree, Pittsburgh Post-Gazette, Apr. 30, 2003.

[17] See id. 

[18] William Stickman, An Acceptable Prejudice?, Pittsburgh Post-Gazette, Mar. 29, 2002.

[19] See id.

[20] Id.

[21] Id.

Jason Pulliam – Nominee to the U.S. District Court for the Western District of Texas

The lack of diversity of Trump’s judicial nominees has already drawn criticism.  Trump has been especially slow about nominating African American judges, naming just six to date.  As such, the nomination of Jason Pulliam, who will be the first African American judge on the Western District of Texas, is particularly welcome.

Background

Jason Kenneth Pulliam was born in 1971 in Brooklyn.  After getting a B.A. and an M.A. from Brooklyn College, CUNY, Pulliam received a J.D. Texas Southern University Thurgood Marshall School of Law in 2000.  After his graduation, Pulliam spent three years as a Judge Advocate in the U.S. Marine Corps.[1]

After leaving the Marines, Pulliam spent the next six years as an associate in private practice, moving between The Carlson Law Firm, Ball & Weed P.C. and Ford & Murray PLLC.  In 2011, Pulliam became a Judge with the Bexar County Court of Law No. 5.[2]  In 2015, he was appointed by outgoing Gov. Rick Perry as a Justice on the Fourth Circuit Court of Appeals.  However, in 2016, Pulliam lost re-election to fellow Bexar County Court judge Irene Alarcon Rios.  He then joined the San Antonio office of Prichard Young LLP as a Counsel.

In 2018, Pulliam once again ran for the Fourth Circuit, but again lost the election to incumbent judge Patricia Alvarez, a Democrat.

History of the Seat

Pulliam has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on December 31, 2017, when Judge Sam Sparks took senior status.  While Pulliam was previously considered for vacancies filled by Judges Walter Counts and Fernando Rodriguez, he was ultimately recommended in mid-2018 for the Sparks vacancy, based out of Austin.[3]  However, while Pulliam was selected as a nominee by the White House in August 2018, he was not formally nominated until March 2019.

Legal Experience

Pulliam started his legal career as a Judge Advocate in the U.S. Marine Corps, where he served as a criminal defense and legal assistance attorney while serving on active duty.  During this period, Pulliam was trial defense counsel for James D. Mohammad, who was convicted for failing to follow an order to get inoculated based on his Muslim faith.[4]  Mohammad appealed, arguing that Pulliam was ineffective in his defense, but the Court of Criminal Appeals found that Pulliam had adequately researched the defenses Mohammad sought and had declined to bring them because they were specious.[5]

From 2004 to 2010, Pulliam worked in private practice, where he handled a variety of cases, including personal injury, civil litigation, and malpractice.  In this period, Pulliam notably defended RV Insurance Solutions LLC, a collection agency, against allegations that it had illegally misappropriated customer funds.[6]

Jurisprudence

Pulliam served as a county court judge from 2011 to 2014 and as an appellate judge from 2015 to 2016.  In the latter position, Pulliam sat as part of 3-judge panels to oversee appeals in the Fourth Circuit, which covered much of Southern Texas.  As an appellate judge, Pulliam notably dismissed a class action suit by a team of 1400 plaintiffs who alleged that payday lenders had improperly used criminal prosecution against their debtors.[7]  In his opinion, Pulliam found that the suits were foreclosed by arbitration clauses in the payday contracts.[8]  However, Judge Rebeca Martinez dissented from Pulliam’s conclusion.[9]

In another notable case, Pulliam held that Dino Villareal, a transgender man[10], could not bring suit for a paternity action for the adoptive children of his female partner.[11]  This holding also drew dissents, including one on the merits from Judge Martinez.[12]

Political Activity

As noted earlier, Pulliam ran as a Republican in Texas judicial elections, losing to Democratic candidates in 2016 and 2018.  In addition, Pulliam donated to Rep. Cathy McMorris Rodgers in 2016.[13]

Speeches and Writings

While a sitting judge and judicial candidate in 2016, Pulliam appeared on an interview with the Black Video Network, where he discussed his role as a judge and key issues.[14]  Among the topics he is asked to address, Pulliam discusses police brutality and Black Lives Matter noting:

“[Protestors] have an absolute right to protest under the First Amendment.  They have a right to seek redress for grievances, and I think we should encourage that as long as it doesn’t ever become violent.  Folks probably need to have a specific agenda and list of items that they seek redress for those grievances.  They may want to petition their city council or their state legislature, and then seek to change by being part of the process.”[15]

Later in the interview, Pulliam contrasted himself with Judge Rios, his opponent, by noting that he has criminal and civil experience, while Rios only has civil experience.[16]

Overall Assessment

Pulliam was the first African American Republican to be a Bexar County judge when he was appointed in 2011.  He then became the first African American on the Fourth Circuit and, would, if confirmed, become the first African American on the U.S. District Court for the Western District of Texas.

Setting aside his contribution to the diversity of the federal bench, Pulliam’s record is conservative but not overly political.  While Pulliam may draw criticism for his decisions in the CASH BIZ and Sandoval cases, such concerns are unlikely to derail his nomination.


[1] Sen. Comm. on the Judiciary, 115th Cong., Jason K. Pulliam: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] See id. at 60-61.

[4] United States v. Mohammad, 2006 WL 1499986 (U.S. Navy-Marine Corps Ct. of Crim. App. May 31, 2006).

[5] See id. at *5.

[6] Motorhomebytel, Inc. v. RV Ins. Sols. LLC., Bexar Cnty. St. Dist. No. Cause 2007C105629.

[7] CASH BIZ, LP v. Henry, No. 04-15-00469-CV, 2016 WL 4013794 (Tex. App. – San Antonio, July 27, 2016, pet. filed).

[8] See id.

[9] Charles Kuffner, Appeals Court Blocks Litigation Against Payday Lenders, Off the Kuff, Aug. 7, 2016.

[10] Interestingly, while Mr. Villareal has obtained an Order Granting Change of Identity, and, while Pulliam’s original opinion refers to him as male, Pulliam’s SJC Questionnaire appears to misgender him.  See Pulliam, supra n. 1 at 26 (“The underlying matter involved two women who were in a relationship (Sandoval and another woman who identified as a man named Dino.”).

[11] In re Sandoval, No. 04-15-00244-CV, 2016 WL 353010 (Tex. App._San Antonio Jan. 27, 2016, orig. proceeding).

[12] Art Leonard, Texas Appeals Panel Denies Transgender Man Standing to Bring Paternity Action Concerning Children He Was Parenting, Art Leonard Observations, Jan. 30, 2016, https://www.artleonardobservations.com/texas-appeals-panel-denies-transgender-man-standing-to-bring-paternity-action-concerning-children-he-was-parenting/.  

[14] See Black Excellence – Jason Pulliam for Judge, https://www.youtube.com/watch?v=PJQY-FerUFM.  

[15] See id.

[16] Id.

Daniel Bress – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Like fellow nominee Dan Collins, Daniel Bress is also a former clerk for the late Justice Antonin Scalia and also faces the joint opposition of home state senators Dianne Feinstein and Kamala Harris.

Background

Daniel Aaron Bress was born in Hollister, CA in 1979.  Bress received an A.B. from Harvard in 2001 and a J.D. from the University of Virginia Law School in 2005.[1]  After graduating from law school, Bress clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Antonin Scalia on the U.S. Supreme Court, clerking alongside future Sen. Mike Lee, and future Sixth Circuit Judge Eric Murphy.[2] 

After his clerkships, Bress joined the San Francisco Office of Munger, Tolles & Olson LLP.  He left a year later to join Kirkland & Ellis in Washington D.C. where he has been a Partner since 2011.[3] 

Additionally, Bress has taught courses on textualism as a method of constitutional and statutory interpretation at the University of Virginia and Catholic University Law Schools.[4]

History of the Seat

Bress has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 18, 2017 when Judge Alex Kozinski resigned from the bench in the midst of heavy controversy.  On October 10, 2018, Trump nominated Patrick Bumatay, a federal prosecutor who would have been the first openly gay judge on the Ninth Circuit.  Based on a disagreement with California’s Senators, however, Bumatay was withdrawn and nominated to the U.S. District Court for the Southern District of California.

In May 2017, Bress was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In late 2017 and early 2018, Bress interviewed with Advisory Committees set up by California’s Democratic Senators.[6]  Bress’ nomination was sent to the Senate on February 6, 2019.

Both of Bress’s home state senators, Sen. Dianne Feinstein and Sen. Kamala Harris, have expressed opposition to Bress’s nomination, citing Bress’ residence and career in DC and lack of ties to the California legal community.[7]

Political Activity & Memberships

Bress is a Republican who has donated to the campaigns of Mitt Romney, John McCain, and Sen. Jeff Flake.[8]  He was also a member of the D.C. Chapter of Lawyers for Romney in the 2012 elections.[9]

Furthermore, Bress has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 2003.[10] 

Legal Experience

Bress has spent his legal career as a civil litigator, most of it at the D.C. Office of Kirkland & Ellis.  Over the course of his 12 year legal career, Bress has not tried any cases to verdict but has participated in appellate matters before the U.S. Supreme Court and the federal courts of appeals.

Among the most notable cases he handled, Bress sued under California’s Parent Empowerment Act to challenge the denial of a petition to convert Palm Lane Elementary School (a public school) into a charter school.[11]  Bress, who handled the case on a pro bono basis, argued successfully that the school’s decision to reject the petition was arbitrary.[12]

In other cases, Bress is defending Honeywell Int’l in a suit against a government alleging that anti-ballistic products they manufactured were defective.[13]  He also represented an Alabama death row inmate in challenging an Alabama procedural rule on successive habeas petitions.[14]

Writings

Of Bress’ writings on the law, two are particularly notable.  As an associate at Munger, Bress coauthored an article alongside other Supreme Court clerks at the firm (including future Ninth Circuit Judge Michelle Freidland) on the death penalty.[15]  The article focused on Justice Stevens’ dissent from a 7-2 decision upholding Kentucky’s death penalty protocol in Baze v. Rees, and the changed position from Justice Stevens’ affirmation of the death penalty in Gregg v. Georgia thirty years earlier.[16]  The article posits that “constant exposure to the horrors of capital crimes and the utter finality of executions” motivated Stevens’ change in position.[17]

In the other notable article, authored as a law student, Bress argues that the inherent power of administrative agencies to reconsider their final decisions (barring any statutory authority) must be limited and proscribed.[18]

Overall Assessment

Bress may be the youngest of Trump’s three California nominees to the Ninth Circuit, but that’s not what makes him the most controversial.  Rather, the issue is geography.  Traditionally, circuit nominees have been tied to individual states within a circuit (and statutorily, each state is required to have at least one judge on a circuit).  Bress has been nominated to a California seat but has spent almost his entire legal career in Washington D.C.  In a Judiciary Committee meeting earlier this year, Chairman Lindsay Graham acknowledged the legitimacy of concerns regarding Bress’ ties to California.  Furthermore, Bress’ legal ties are primarily to the D.C. legal community and he resides in Alexandria, Virginia.  On the flip side, Bress has litigated in California courts, was born in California, and is a member of the state bar.  Nevertheless, the Alliance for Justice has already noted that Bress’ firm biography has been edited to emphasize California ties, suggesting that his supporters are concerned about the attack.[19]

Overall, Bress’ substitution for Bumatay suggests that the White House considered the former less controversial for an appellate seat.  In the unlikely event that Bress’ nomination is derailed by questions of geography, the White House could, in theory, substitute Bumatay back for the Ninth Circuit, giving the court its first openly gay judge.


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

[2] Id. at 2.

[3] Id. at 3.

[4] Id. at 30.

[5] See id. at 33.

[6] Id.

[7] See Press Release, Office of Sen. Dianne Feinstein, Feinstein: Don’t Confirm a D.C. Lawyer to California’s Seat on Ninth Circuit (May 16, 2019); Press Release, Office of Sen. Kamala Harris, Harris on Trump’s Ninth Circuit Nominee: Daniel Bress Is Not a California Lawyer (May 17, 2019).

[8] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=daniel+bress&order=desc&sort=D (last visited May 21, 2019).

[9] See Bress, supra n. 1 at 12.

[10] See id. at 5.

[11] See Ochoa v. Anaheim City Sch. Dist., 11 Cal. App. 5th 209 (2017).

[12] Joseph Pimental and Roxana Kopetman, Court to Rule on Parents’ Charter School Demand, Chico Enterprise-Record, Mar. 2, 2017.

[13] United States v. Honeywell Int’l Inc., Case No. 08-cv-961 (D.D.C.).

[14] Kuenzel v. Alabama, 137 S. Ct. 375 (No. 16-213).

[15] Jeffrey Bleich, Aimee Feinberg, Michelle Freidland, Daniel Bress, and David Han, Change of Heart – Justice Stevens Reassesses the Death Penalty, 34 San Francisco Att’y 32 (Fall 2008).

[16] Id. 

[17] Id. at 34.

[18] Daniel Bress, Administrative Reconsideration, 91 Va. L. Rev. 1737 (Nov. 2005).

[19] Press Release, Alliance for Justice, Bress is Wrong for the Ninth Circuit (May 17, 2019).