Judge Allen Winsor – Nominee for the U.S. District Court for the Northern District of Florida

A state appellate judge and former solicitor general, Judge Allen Winsor brings extensive legal experience to the bench.  However, he also brings a long record in hot-button cases.

Background

A native Floridian, Allen Cothrell Winsor was born in Orlando in 1976.  Winsor graduated from Auburn University in 1997 and worked in two years as a Solution Sales Specialist in Rockville, Maryland.[1]  In 1999, Winsor returned to Florida to attend law school at the University of Florida, receiving a J.D. in 2002.[2]

After graduating, Winsor clerked for Judge Ed Carnes on the U.S. Court of Appeals for the Eleventh Circuit.  He then joined the Atlanta office of King & Spalding as an Associate (that office has produced two other Trump judges).  In 2005, Winsor moved to Tallahassee to be an Associate at GrayRobinson PA.[3]  He became a Shareholder at the firm in 2008.[4]

In 2013, Florida Attorney General Pam Bondi chose Winsor to be Florida Solicitor General.  He served in this capacity for the next three years, until being appointed by Gov. Rick Scott to Florida’s First District Court of Appeal.[5]  He continues to serve on that court.

History of the Seat

The seat Ray has been nominated for opened on November 7, 2016, with Judge Robert Hinkle’s move to senior status.  Florida Senators Bill Nelson, a Democrat, and Marco Rubio, a Republican, continued the use of a Judicial Nominating Commission (JNC) to solicit recommendations for vacancies.  The JNC recommended Winsor for the Northern District alongside three other candidates on November 16, 2017.[6]  After interviews with Nelson, Rubio and the White House, Winsor was nominated for the vacancy on April 10, 2010.[7]

Private Practice

Before he became Florida Solicitor General, Winsor spent ten years in private practice working at King & Spalding and GrayRobinson.  At these firms, Winsor’s specialty was in election law and he frequently worked with Republican lawmakers in defending election regulations.

Election Regulation

While at GrayRobinson, Winsor frequently represented Florida’s Secretary of State in defending Florida’s election regulations.  For example, Winsor successfully defended Florida’s registration deadline set 29 days before the election.[8]  He also successfully defended a provision that matched voter applications against drivers license registries and other databases (the provision was challenged by the NAACP).[9]  Winsor also defended bans on electioneering near polling places,[10] and restrictions on third party voter registration organizations.[11]

Redistricting

In 2012, Winsor was part of the legal team challenging the Fair Districts Initiative (a citizen ballot initiative that restricted gerrymandering in Florida).[12]  Winsor, representing the Florida House of Representatives, joined other attorneys in arguing that the Initiative violated the Constitution’s Elections Clause.[13]  The Eleventh Circuit upheld the Initiative.[14]

Winsor also represented the Florida House of Representatives in defending the redistricting maps drawn before the Florida Supreme Court.[15]

Solicitor General

From 2013 to his appointment as a judge in 2016, Winsor served as the Solicitor General of Florida, serving as the primary appellate attorney for the state.  In this role, Winsor has participated in many high-profile cases.

Dealth Penalty – Sentencing

Until 2016, Florida permitted judges to make the requisite factual findings to impose the death penalty, even if a jury recommended otherwise.  In Hurst v. Florida, Winsor defended this sentencing scheme before the U.S. Supreme Court, arguing that no judge had overruled a jury’s recommendation not to impose death since 1999.[16]  The Supreme Court rejected the scheme in a 8-1 opinion authored by Justice Sotomayor, finding that it violated the Sixth Amendment.[17]

Death Penalty – Intellectual Capacity

Winsor was also charged with defending Florida’s bright-line intellectual capacity rule before the Supreme Court.  Florida barred inmates subject to the death penalty from claiming lack of intellectual capacity where their IQ scores were above 70.[18]  Winsor again came up short in the case, as the Supreme Court voted 5-4 to strike down the bright-line rule.[19]

Gay Marriage

Winsor also defended Florida’s ban on same-sex marriage.  The Solicitor General’s Office drew criticism during the defense for stating in a brief that overturning Florida’s ban on same-sex marriage would “impose significant public harm.”[20]  While the statement went viral and drew significant criticism, Winsor responded that the statement was taken out of context.[21]  He stated:

“Florida is harmed whenever a federal court enjoins enforcement of its laws, including the laws at issue here.”[22]

Docs v. Glocks

Winsor was charged with defending Florida’s “Docs v. Glocks” law, which prevents physicians from discussing gun ownership with their patients.[23]  At oral argument, Winsor argued that, as the law instructed physicians to “refrain” from the discussions, the law merely offered a recommendation rather than a prohibition.[24] The law was ultimately struck down by the Eleventh Circuit.[25]

Medical Marijuana

In 2015, Winsor represented the State of Florida in challenging a ballot initiative that would legalize medical marijuana.[26]  Winsor argued that the Amendment’s language was too broad, and that it would permit individuals with minor injuries to receive medical marijuana.[27]  The Florida Supreme Court, however, unanimously approved the Amendment’s language.[28]  The Amendment was approved by 71% of voters in 2016.

Jurisprudence

Winsor has served as an appellate judge on Florida’s First District Court of Appeals for the last two years.  In his two years on the bench, Winsor has heard over 1300 cases.[29]  During this tenure, none of Winsor’s opinions were reversed by a higher court.

The vast majority of appeals that Winsor has heard have been criminal in nature, and Winsor has voted to uphold the underlying convictions in most of those appeals.  In a few, however, Winsor has voted in favor of the defendant.  In one case, Winsor reversed a father’s conviction for sexually assaulting his daughter, noting that the prosecution had failed to timely disclose expert evidence that they offered at trial.[30]  In another case, a divided panel affirmed the defendant’s conviction for sexual battery on a child, finding that admitting child hearsay did not violate the defendant’s rights.[31]  Winsor dissented, arguing that the evidence was improperly admitted and that the defendant was entitled to a new trial.[32]

Writings

In 2012, Winsor authored an article that was critical of the Florida Supreme Court decision in Sarasota Alliance for Fair Elections, Inc. v. Browning, and specifically criticized the ruling on “implied pre-emption.”[33]  In the article, Winsor criticizes the Supreme Court for failing to find that a voter initiative regulating Sarasota County’s elections and voting was pre-empted by Florida state law.[34]  Among his criticisms, Winsor suggests that the Supreme Court “understated the public-policy considerations” noting that:

“…differing local treatment of votes can have disastrous effects, as evidenced in 2000.”[35]

As such, Winsor urged the Florida legislature to pass statements in election codes expressly pre-empting local regulation of vote-counting.[36]

Overall Assessment

Despite his relative youth, Winsor has managed to rack up an impressive array of accomplishments.  Having experience both as an attorney and as a judge, Winsor is qualified for a federal judgeship.  That being said, Winsor may draw questions regarding his defense of conservative laws and his challenge to the medical marijuana amendment as Florida Solicitor General.  He may also draw opposition based on his defense of voting restrictions and his opposition to gerrymandering reform as a private practice attorney.

Overall, Winsor’s support from Rubio and Nelson, as well as his relatively uncontroversial tenure on the bench should help his confirmation along.


[1] Sen. Comm. on the Judiciary, 115th Cong., Allen C. Winsor: Questionnaire for Judicial Nominees 3.

[2] Id. at 1.

[3] Id. at 2.

[4] Id. 

[5] Julie Kanner, Career Track, Florida Times-Union, Feb. 9, 2016.

[6] Alex Leary, Finalists Named for Federal Bench in Northern District of Florida, The Buzz, Nov. 16, 2017, http://www.tbo.com/florida-politics/buzz/2017/11/16/finalists-named-for-federal-bench-in-northern-district-of-florida/.  

[7] Press Release, President Donald J. Trump Announces Twelfth Wave of Judicial Nominees, Twelfth Wave of United States Attorneys, and Sixth Wave of United States Marshalls (April 10, 2018) (on file at www.whitehouse.gov/thepressoffice).

[8] Diaz v. Cobb, 541 F. Supp. 2d 1319 (S.D. Fla. 2008).

[9] Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008).

[10] Citizens for Police Accountability Political Comm. v. Browning, 581 F. Supp. 2d 1164 (M.D. Fla. 2008); 572 F.3d 1213 (11th Cir. 2009).

[11] League of Women Voters v. Browning, 575 F. Supp. 2d 1298 (S.D. Fla. 2008).

[12] Brown v. Secretary of State of Florida, 668 F.3d 1271 (11th Cir. 2012).

[13] Id.

[14] Id. at 1273.

[15] In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597 (Fla. 2012).

[16] Robert Barnes, Supreme Court Hears Criminal Justice Cases, Wash. Post, Oct. 14, 2015.

[17] Hurst v. Florida, 136 S. Ct. 616 (2016)

[18] Mark Sherman, Court Skeptical of IQ Scores in Deciding Execution, Bismarck Tribune, Mar. 4, 2014.

[19] Hall v. Florida, 572 U.S. __ (2014).

[20] John Woodrow Cox, Public Harm and Gay Marriage, Tampa Bay Times, May 31, 2014.

[21] Id. 

[22] Id. (quoting Allen Winsor).

[23] Curt Anderson, US Court Hears Appeal in Docs vs. Guns Case, New Zealand Herald, July 19, 2013.

[24] See id.

[25] Wollschlaeger v. Governor of Florida, No. 1:11-cv-22026-MGC (11th Cir. 2017) (en banc).

[26] Matt Dixon, Marijuana Sides Argue Before State High Court; Debate Was About a Proposed Constitutional Amendment’s Wording, Florida Times-Union, Dec. 6, 2013.

[27] See id.

[28] Dan Sweeney, Medical Marijuana Proposal Moves Closer to Ballot, Sun-Sentinel, Dec. 17, 2015, http://www.sun-sentinel.com/news/florida/fl-medical-marijuana-supreme-court-approval-20151217-story.html.  

[29] See Winsor, supra n. 1 at 9.

[30] See Millette v. State, 223 So. 3d 466 (Fla. 1st DACA 2017).

[31] See Cabrera v. State, 206 So. 3d 768 (Fla. 1st DACA 2016).

[32] See id. (Winsor, J., dissenting).

[33] Allen Winsor, Sarasota Alliance for Fair Elections, Inc. v. Browning: The Implied End to Implied Pre-Emption, 41 Stetson L. Rev. 499 (Winter 2012).

[34] Id. at 507.

[35] Id. at 508.

[36] See id. at 515.

[37] See, e.g., I.A. Group, Ltd. Co. et al. v. RmNandco, Inc., 784 S.E.2d 823 (Ga. App. 2016) (rev’g judgment to plaintiff); Moore-Waters et al. v. Met-Test, LLC., 782 S.E.2d 848 (Ga. App. 2016) (rev’ing grant of default judgment to plaintiff); Martin et al. v. Hansen, 755 S.E.2d 892 (Ga. App. 2014) (rev’ing denial of summary judgment to defendant); Askew et al. v. Rogers, 755 S.E.2d 836 (Ga. App. 2014) (rev’ing grant of summary judgment to plaintiff); Security Real Estate Servs. Inc. v. First Bank of Dalton, 752 S.E.2d 127 (Ga. App. 2013) (rev’ing denial of summary judgment to defendant).

[38] See, e.g., Teston et al. v. Southcore Constr. Inc., 783 S.E.2d 921 (Ga. App. 2016) (rev’ing grant of default judgment to defendant); Gomez v. Innocent et al., 746 S.E.2d 645 (Ga. App. 2013) (rev’ing grant of summary judgment to defendant); Deberry v. Johnson et al., 747 S.E.2d 886 (Ga. App. 2013) (rev’ing grant of summary judgment to defendant).

Justice Patrick Wyrick – Nominee for the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Justice Patrick Wyrick of the Oklahoma Supreme Court has the distinction of being the youngest candidate on President Trump’s Supreme Court shortlist.  So far, President Trump has prodigiously nominated all the state judges on his shortlist to the federal appellate bench.  However, as there are no Oklahoma vacancies on the Tenth Circuit, Wyrick has been nominated to the trial court instead.

Background

Patrick Robert Wyrick was born in Denison, TX on March 11, 1981.  Wyrick attended the University of Oklahoma, where he played baseball as a student athlete.[1]  While at the University, he met his future-wife, fellow athlete Jamie Wyrick (nee Talbert).[2]  Wyrick received his B.A. in 2004 and then received a J.D. from the University of Oklahoma College of Law in 2007.[3]

After graduating, Wyrick served as a law clerk to Judge James Payne on the U.S. District Court for the Eastern, Northern, and Western Districts of Oklahoma.[4]  He then joined the Oklahoma City office of GableGotwals as an Associate.

Just three years later, Wyrick, not even thirty, was chosen by newly elected Oklahoma Attorney General Scott Pruitt (now the EPA Director) to serve as Oklahoma Solicitor General.[5]  As Solicitor General, Wyrick was the primary representative before the courts for the state of Oklahoma.

In 2016, Justice Steven Taylor of the Oklahoma Supreme Court announced his retirement, and Wyrick was one of four candidates who applied for the seat.[6]  On February 9, 2017, the 35-year-old Wyrick was appointed by Governor Mary Fallin to fill the vacancy.[7]  Wyrick’s appointment sparked an immediate lawsuit from the American Civil Liberties Union, who argued that Wyrick, who listed a residence in Atoka to qualify for the appointment to a seat based in District 2 of Oklahoma, actually resided in Moore and Oklahoma City, citing Wyrick’s home purchases, marriage license, as well as the fact that he was registered to vote in Central Oklahoma in 2016.[8]  The Oklahoma Supreme Court dismissed the lawsuit, finding that they were not the proper agency to determine the eligibility of a sitting justice.[9]

In November 2017, Trump added Wyrick to his list of potential nominees to the U.S. Supreme Court.[10]  Wyrick’s addition makes him the youngest potential nominee on the list.

History of the Seat

Wyrick has been nominated to fill the fifth-longest pending vacancy in the nation.  This seat on U.S. District Court the Western District of Oklahoma opened on July 7, 2013, with Judge David Russell’s move to senior status.  However, the Obama Administration did not put forward a nomination for the next two and a half years, as they negotiated with Oklahoma Republican senators James Inhofe and James Lankford.  Finally, on December 16, 2015, President Obama nominated Judge Suzanne Mitchell, a U.S. Magistrate Judge on the Western District, to fill the vacancy.[11]

Mitchell, a Democrat, was nominated as part of a package with Scott Palk, a Republican.  The two nominees received a hearing before the Senate Judiciary Committee on April 20, 2016, and were both reported to the floor unanimously on May 19, 2016.  However, on the floor, Mitchell and Palk languished due to a confirmation blockade imposed by Senate Majority Leader Mitch McConnell and were not confirmed.[12]  After the election of Donald Trump, he renominated Palk (who was confirmed in late 2017).  However, Mitchell was not renominated.

Wyrick has been in contact with the White House Counsel’s Office since early 2017 in discussions on an appointment to the Western District.[13]  While he interviewed with the White House in March 2017, there was no further action on his nomination until November when he interviewed with a selection committee established by Inhofe and Lankford.[14]  After Inhofe and Lankford agreed to “recommend” Wyrick to the White House, he was nominated on April 10, 2018.

Political Activity

Other than a short stint as a volunteer for Republican Sen. Tom Coburn in 2004, Wyrick has no history with partisan politics.

Legal Experience

Wyrick began his legal career as a law clerk for Judge James Payne.  After that, he joined GableGotwals working on civil and appellate litigation.  After just three years at the position, Wyrick became Oklahoma’s Solicitor General, the primary appellate attorney for the state.  As Solicitor General, Wyrick has handled many controversial matters on behalf of then-Attorney General Scott Pruitt.

Death Penalty

In 2015, Wyrick argued Glossip v. Gross, a challenge to the use of midazolam as a sedative in Oklahoma executions, before the U.S. Supreme Court.[15]  Petitioners argued that midazolam was ineffective in preventing pain during the procedure and, as a result, the executed could feel the pain of being “burned alive” from the inside.[16]  In his briefs, Wyrick defended the Oklahoma drug protocol, arguing that death penalty opponents had successfully pressured drug companies into cutting off supplies of more effective drugs.[17]  It was a thread conservatives picked up on at oral argument.[18]

However, Wyrick also drew criticism from justices for allegedly misrepresenting the scientific evidence cited in the state’s brief.  Justice Sotomayor called out Wyrick at oral argument, noting that his assertions were “directly contradicted by the literature cited in the state’s written arguments.”[19]  Wyrick later conceded error on a related point, acknowledging that his office had inadvertently misrepresented that a letter sent to the Texas Department of Corrections had actually been sent to the Oklahoma Department of Corrections.[20]

Ultimately, the Supreme Court backed Wyrick’s position in a 5-4 decision.[21]

Abortion Rights

As Solicitor General, Wyrick was charged with defending abortion restrictions passed by the Oklahoma legislature and challenged under the Fourteenth Amendment.[22]  Among the restrictions Wyrick defended were laws requiring women to undergo ultrasounds before undertaking an abortion and laws restricting the use of drugs commonly used for medication abortions.  Both restrictions were unanimously struck down by the Oklahoma Supreme Court, as unconstitutional under Supreme Court precedent.[23]  Wyrick also defended a prescription requirement for minors who wanted to purchase Plan B contraceptives,[24] a provision imposing liability on physicians who prescribe prescription drugs for abortions,[25] and a ban on off-label use of drugs for abortions.[26]  In successfully defending the latter, Wyrick noted his views on the “dangers” of off-label use, noting:

“We have people who walk in perfectly healthy and are dead three days later.”[27]

Affordable Care Act

As Solicitor General, Wyrick sued to challenge a number of regulations imposed under the Affordable Care Act, including the IRS “large employer mandate” which Wyrick argued violated the intent of Congress in the ACA.[28]  Wyrick also raised the initial challenge to the IRS Rule permitting ACA subsidies to be offered to individuals on the federal exchange (this challenge was later rejected by the U.S. Supreme Court in King v. Burwell).[29]

Sharia Law

As Solicitor General, Wyrick also led the defense of the “Save Our State” Constitutional Amendment, which prohibited Oklahoma courts from considering international law or sharia law (Islamic jurisprudence) in its proceedings.  The Amendment was challenged by Muneer Awad, the executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR), who alleged that it violated his rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.[30]

At oral argument, Wyrick denied that the authors of the Amendment sought to single out sharia law, instead arguing that the ban included all international law.[31]  Nevertheless, the Tenth Circuit upheld a preliminary injunction against the Amendment.[32]  In 2013, Judge Vicki Miles-LeGrange made the injunction permanent.[33]  (Disclosure: As a legal fellow at the American Civil Liberties Union, who represented the plaintiff, I assisted with legal research and writing in support of the plaintiff’s case on remand.)

Jurisprudence

Wyrick has served as a Justice on the Supreme Court of Oklahoma since 2017.  In his year and a half on the bench, Wyrick has heard approximately 100 cases, and has authored five majority opinions,[34] eight concurrences,[35] and six dissents.[36]  Despite his relatively new position on the court, Wyrick has not hesitated to stake out strong positions, concurring and dissenting frequently.

Taxes and Fees

In 2017, Wyrick wrote for the Oklahoma Supreme Court in two high-profile challenges to state taxes.  In one case, Wyrick struck down the newly passed tax on cigarettes, finding that the “tobacco cessation fee” was not passed in conjunction with the constitutionally mandated supermajority for revenue raising bills.[37]  In the other case, Wyrick upheld the elimination of the state’s sales tax exemption, writing for a 5-4 majority that bills removing exemptions from existing taxes do not count as “revenue” bills while bills imposing new taxes do.[38]  In dissent, Justice Doug Combs pointed to the legislative history and the purpose of the auto tax to show that it was intended to raise revenue.[39]

Dissents

In a variety of civil cases, Wyrick has authored dissents advocating denial of claims.  For example, in one case where the Oklahoma Supreme Court found that a worker had properly been adjudicated disabled and was entitled to benefits, Wyrick dissented with Justice James Winchester, calling the majority opinion a “legal fiction.”[40]  In another case, Wyrick authored a dissent (joined only by Justice Winchester) arguing that a sex offender should be permitted to deregister.[41]  In yet another case, the Oklahoma Supreme Court held that plaintiffs injured by a drunk driver could bring suit against a convenience store that negligently and recklessly sold alcohol to the visibly intoxicated driver.[42]  Wyrick dissented, arguing that the decision would lead to “arbitrary impositions of liability” and that it dismissed the proximate cause requirement of tort claims.[43]

Writings

In 2014, Wyrick authored a blog post at SCOTUSBlog arguing for the plaintiffs in King v. Burwell.[44]  In the post, Wyrick argues that the Supreme Court should strike down the IRS Rule permitting Obamacare subsidies to be granted to those who participated in state and federal exchanges.[45]  He calls the case “a straightforward question of statutory interpretation,” arguing that permitting the rule would “undermine Congress’ very specific intent.”[46]  The Supreme Court ultimately rejected the argument in the post, with Chief Justice Roberts upholded the IRS Rule in an opinion for six justices.[47]

Overall Assessment

Wyrick’s youth and his conservative background is likely to draw opposition during the confirmation process.  Overall, I expect four primary arguments to be raised against Wyrick.

First, opponents may argue that Wyrick, only thirty-seven years old, lacks the requisite level of experience to be a federal judge.  They may note that the American Bar Association (ABA) recommends a minimum of twelve years of practice for judicial nominees and that Wyrick has only practiced for nine years.  In response, Wyrick and his supporters will argue that Wyrick’s experience as Oklahoma Solicitor General is particularly high-level, and as such, Wyrick is well-qualified for the bench.  They will also note that Wyrick has argued (and won) before the highest courts on both the state and federal level.

Second, critics may point to Wyrick’s tenure as Solicitor General and criticize his defense of controversial laws, including abortion restrictions, the “Save our States” amendment, and the use of midazolam in imposing the death penalty.  They may also bring up Wyrick’s correction of the record in Glossip.  In response, Wyrick will argue that, as Solicitor General, it was his responsibility to defend Oklahoma laws, and that his defense does not indicate a policy agreement with the underlying laws.

Third, senators may look to Wyrick’s jurisprudence on the Oklahoma Supreme Court.  They may argue that his dissents in Garrett, Boyle, and Frye suggest an unwillingness to support plaintiffs in civil cases.  In response, Wyrick will argue that (even though a majority of his colleagues disagreed), the law compelled the reasoning of his dissents.

Fourth, senators may raise Wyrick’s connection to Pruitt, Trump’s controversial EPA Director.  Given Wyrick’s initial selection as Solicitor General by Pruitt, critics may try to tie Wyrick to his old-boss’ more controversial actions.  If this question is raised, it will be interesting to see if Wyrick offers to recuse himself in cases involving Pruitt, and if such recusal is demanded by critics.

Overall, there is no denying Wyrick’s intelligence and accomplishments.  Nevertheless, the ease of Wyrick’s confirmation will ultimately turn on his answers to the concerns raised above.


[1] See Jenni Carlson, Cancer Doesn’t Curb Wyrick’s Enthusiasm for her Marathon Run, The Oklahoman, Apr. 30, 2006.  

[2] See id.

[3] Sen. Comm. on the Judiciary, 115th Cong., Patrick Wyrick: Questionnaire for Judicial Nominees 1.

[4] Judge Payne is the only judge in the country to hear cases across three districts.

[5] See id. at 2.

[6] Dale Denwalt, Four Candidates Vie For State Supreme Court, The Journal Record, Dec. 12, 2016.

[7] Dale Denwalt, Oklahoma Governor Appoints Wyrick to State Supreme Court, The Daily Oklahoman, Feb. 9, 2017.

[8] Catherine Sweeney, Observers: Wyrick Flap a Rare Occurrence, The Journal Record, Feb. 22, 2017.

[9] See Spencer v. Wyrick, 392 P.3d 290 (Okla. 2017).

[10] Justin Wingerter, Oklahoma Supreme Court Judge Joins Trump’s List of Possible SCOTUS Picks, The Daily Oklahoman, Nov. 17, 2017.

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

[12] The Oklahoman Editorial Board, U.S. Senate Should End Wait for Two Oklahoma Judicial Nominees, The Oklahoman, Nov. 18, 2016, https://newsok.com/article/5527448/us-senate-should-end-wait-for-two-oklahoma-judicial-nominees.

[13] Sen. Comm. on the Judiciary, 115th Cong., Patrick Wyrick: Questionnaire for Judicial Nominees 56-57.

[14] Id. at 57.

[15] Robert Barnes & Mark Berman, Sharp Questions About Using Sedative to Execute Inmates, Wash. Post, Apr. 30, 2015.

[16] See id.

[17] Maureen Johnson, You Had Me At Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested Supreme Court Decisions, 49 Ind. L. Rev. 397, 456 (2016).

[18] See Barnes, supra n. 15.

[19] Chris Casteel, U.S. Supreme Court Sharply Divided in Oklahoma Lethal Injection Case, Daily Oklahoman, Apr. 29, 2015.

[20] Emily Summars, Oklahoma Attorney General Admits Court Filing Error, Journal Record Legislative Report, May 15, 2015.

[21] Glossip v. Gross, 135 S.Ct. 2726 (2015).

[22] See Patrick Gregory, Trump Nominee Wyrick Defended Executions, Abortion Regs, Bloomberg Law, May 18, 2018, https://biglawbusiness.com/trump-nominee-wyrick-defended-executions-abortion-regs/.

[23] See Nova Health Sys. v. Pruitt, 292 P.3d 28 (Okla. 2012) and Okla. Coal. for Reproductive Justice v. Cline, 2012 OK 12 (Okla. 2012).

[24] Marie Price, New Law Restricting Access of Minors’ Access to Plan B One-Step Emergency Contraceptive Temporarily Enjoined From Taking Effect in Okla, Journal Record Legislative Report, Aug. 19, 2013.

[25] Marie Price, Judge Strikes Physician Liability From Abortion Drug Law, Journal Record, Oct. 22, 2014.

[26] Oklahoma Judge to Let Most of New Abortion Law Take Effect; Plaintiffs Consider Appeal, Legal Monitor Worldwide, Oct. 25, 2014.

[27] Id.

[28] Marie Price, State of Oklahoma: Feds’ Delay Demonstrates Admission That ACA Requirements Are Hurting Large Employers, Journal Record Legislative Report, July 11, 2013.

[29] See Patrick Wyrick, Symposium: King v. Burwell – a simple case, SCOTUSBlog, Nov. 10, 2014, http://www.scotusblog.com/2014/11/symposium-king-v-burwell-a-simple-case/.

[30] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).

[31] See Robert Boczkiewicz, 10th US Circuit Court of Appeals Takes Up Oklahoma’s Islamic Law Case, The Oklahoman, Sept. 13, 2011.

[32] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).

[33] See Awad v. Ziriax, 996 F. Supp. 2d 1198 (W.D. Okla. 2013).

[34] Am. Honda Motor Co. v. Thygesen, 2018 OK 14 (Okla. 2018); Cates v. Integris Health, 412 P.3d 98 (Okla. 2018); State Farm Mut. Auto. Ins. Co. v. Payne, 408 P.3d 204 (Okla. 2017); Okla. Auto. Dealers Assoc. v. State ex rel. Oklahoma Tax Comm’n, 401 P.3d 1152 (Okla. 2017); Naifeah v. State ex rel. Oklahoma Tax Comm’n, 400 P.3d 759 (Okla. 2017).  

[35] Okla. Oil & Gas Ass’n v. Thompson, 414 P.3d 345 (Okla. 2018) (Wyrick, J., concurring specially); McDonald v. Thompson, 414 P.3d 367 (Okla. 2018) (Wyrick, J., concurring specially); Okla. Indep. Petroleum Ass’n v. Potts, 2018 OK 24 (Okla. 2018) (Wyrick, J., concurring specially); JP Energy Mktg. LLC v. Commerce & Indus. Ins. Co., 2018 OK 11 (Okla. 2018) (Wyrick, J., concurring in part and dissenting in part); Hunsucker v. Fallin, 408 P.3d 599 (Okla. 2017) (Wyrick, J., concurring in part and dissenting in part); Richard v. State ex rel. Oklahoma Tax. Comm’n, 406 P.3d 571, 573 (Okla. 2017) (Wyrick, J., concurring in judgment); Multiple Injury Trust Fund v. Wiggins, 404 P.3d 35, 37 (Okla. 2017) (Wyrick, J., concurring in judgment); Andrew v. Demani-Sparkes, 396 P.3d 210, 225 (Okla. 2017) (Wyrick, J., concurring in judgment).

[36] Keener v. Miller, No. 116,779 (Okla. Apr. 10, 2018) (Wyrick, J., dissenting); Boyle ex rel. Estate of Cain v. ASAP Energy Inc., 408 P.3d 183, 199 (Okla. 2017) (Wyrick, J., dissenting); Frye v. State ex rel. Dep’t of Corr., 404 P.3d 38, 41 (Okla. 2017) (Wyrick, J., dissenting); Multiple Injury Trust Fund v. Mackey, 406 P.3d 564, 567 (Okla. 2017) (Wyrick, J., dissenting); Multiple Injury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting); State ex rel. Oklahoma Bar Ass’n v. Helton, 394 P.3d 227, 242 (Okla. 2017) (Wyrick, J., dissenting).

[37] See Naifeah v. State ex rel. Oklahoma Tax Comm’n, 400 P.3d 759 (Okla. 2017).

[38] See Okla. Auto. Dealers Assoc. v. State ex rel. Oklahoma Tax Comm’n, 401 P.3d 1152, 1154 (Okla. 2017).

[39] See id. at 1165 (Combs, J., dissenting).

[40] See Multiple Injury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting).

[41] Frye v. State ex rel. Dep’t of Corr., 404 P.3d 38, 41 (Okla. 2017) (Wyrick, J., dissenting)

[42] See Boyle ex rel. Estate of Cain v. ASAP Energy Inc., 408 P.3d 183, 199 (Okla. 2017) (Wyrick, J., dissenting).

[43] Id. at 202.

[44] Patrick Wyrick, Symposium: King v. Burwell – a simple case, SCOTUSBlog, Nov. 10, 2014, http://www.scotusblog.com/2014/11/symposium-king-v-burwell-a-simple-case/.

[45] See id.

[46] Id.

[47] See King v. Burwell, 576 U.S. __ (2015).

Judge Chad Kenney – Nominee for the U.S. District Court for the Eastern District of Pennsylvania

A former elected Sheriff in Pennsylvania, Judge Chad Kenney comes to the federal bench with experience in law enforcement and on the state bench.

Background

A native Pennsylvanian, Chad Francis Kenney Sr. was born in Lower Merion on August 8, 1955.  He attended Villanova University, graduating cum laude in 1976 and then getting a J.D. from Temple University School of Law in 1980.[1]

After graduation, Kenney worked at Benson Zion & Associates in Haverford for a year and then joined the Superior Court of Pennsylvania as a Staff Lawyer.[2]  In 1983, Kenney joined the Law Office of Boardman and Schermer in Philadelphia.  After six years there, Kenney started his own law practice in Upper Darby.[3]

In 1992, Kenney joined O’Donnell & Kenney as a named partner.  In 1996, he left the position to become an Assistant County Solicitor in Media, Pennsylvania.[4]  In 1998, Kenney was elected to be County Sheriff for Delaware County.[5]

In 2003, Democratic Governor Ed Rendell appointed Kenney to the Delaware County Court of Common Pleas.[6]  Kenney served as President Judge of the Court from 2012 to 2017 and still serves as a Judge today.

History of the Seat

Kenney has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on January 11, 2016, when Judge L. Felipe Restrepo was elevated to the U.S. Court of Appeals for the Third Circuit.  While the seat opened with a year left in President Obama’s second term, no nomination was ever made to fill the seat.

After reaching out to Sen. Patrick Toomey (R-PA), Kenney interviewed for a judgeship with Toomey and his staff in February 2017.[7]  Kenney then interviewed with Sen. Bob Casey (D-PA) in April 2017 and with the White House in May.[8]  President Trump announced Kenney’s nomination to the vacancy on December 20, 2017.[9]

Jurisprudence

From 2003, Kenney has served as a Judge on the Delaware County Court of Common Pleas, which is the primary trial courts in Pennsylvania.  As a Judge, Kenney presided over cases in civil and criminal matters, as well as domestic relations, juvenile, and family law matters.  Over the last fifteen years, Kenney has presided over approximately 150 jury trials.[10]

Charter School Funding

In 2015, newly elected Democratic Governor Tom Wolf created a new funding formula for charter schools in the state, one that critics suggested was intended to shut down the schools.[11]  The new funding plan set a uniform funding rate for charter schools based on the number of students served.[12]  Based in part on the formula and seeking to resolve a budget crisis, Wolf attempted to cut the tuition payments paid by the Chester Upland School District to charter schools.[13]  However, Kenney refused to approve the cut, instead rejecting Wolf’s plan and requiring the School District to continue to fully fund charter schools.[14]

Public Defender “Punishment”

In 2013, Joseph De Ritis, a recently-terminated Delaware County public defender, filed a lawsuit naming Kenney as one of the defendants.  The lawsuit claimed that Kenney had conspired by Douglas Roger, the head of the defender’s office to fire De Ritis for not pressuring his clients to accept plea deals rather than take cases to trial.[15]  De Ritis based his claim on the hearsay statement that Kenney thought that De Ritis was not moving his cases quickly enough.[16]  Kenney was ultimately dropped from the lawsuit by Judge Cynthia Rufe in 2016.[17]

Reversals

Over his fifteen years on the bench, Kenney’s rulings have been reversed by higher courts five times.  Of these reversals, the most significant is in Commonwealth v. Goldsborough.[18]  In that case, Kenney granted a defendant’s motion to suppress all evidence from his arrest, finding that the police lacked probable cause to detain the defendant.[19]  The Pennsylvania Superior Court reversed the decision, finding that probable cause existed for the detention.[20]

Political Activity

Before he became a judge, Kenney was an elected Sheriff in Delaware County where he was supported by the Pennsylvania Republican Party.[21]  Kenney also served as Pennsylvania State Republican Committee member from 1996 and 2003.[22]  He also donated in support of Pennsylvania Senator Arlen Specter (a liberal Republican who later switched parties to become a Democrat).[23]

Overall Assessment

For the most part, close cooperation between Toomey and Casey on judicial nominations have spared Pennsylvania nominees the controversy that other states have drawn.  Toomey supported the renomination of two Obama nominees, for example, who did not receive votes in 2016.  Kenney, whose nomination was a product of this cooperation, also looks likely to receive a comfortable conformation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Chad F. Kenney Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 3.

[3] Id. at 2-3.

[4] Id.

[5] Id. at 3.

[6] Id. at 1.

[7] Id. at 43.

[8] Id.

[9] Press Release, White House, President Donald J. Trump Announces Ninth Wave of Judicial Candidates and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at https://www.whitehouse.gov/the-press-office).  

[10] See Kenney, supra n. 1 at 20.

[11] Jan Murphy, Charter School Advocates Think Gov. Tom Wolf Is Out to Shut Their Schools Down, Penn Live, Mar. 4, 2015, http://www.pennlive.com/politics/index.ssf/2015/03/charter_school_advocates_think.html.  

[12] See id.

[13] Mari A. Schaefer and Caitlin McCabe, Judge Rejects Wolf Challenge to Charter Funding, Philadelphia Inquirer, Aug. 26, 2015.

[14] Id. 

[15] Julie Zauzmer, Ex-Delco Defender: Fired Over Lack of Plea Deals, Philadelphia Inquirer, Dec. 5, 2013.

[16] See id.

[17] Alex Rose, Judge Dropped as Defendant in Wrongful Firing Lawsuit, Delaware County Daily Times, Mar. 2, 2016, http://www.delcotimes.com/article/DC/20160302/NEWS/160309905.

[18] 31 A.3d 299 (Pa. Super. Ct. 2011).

[19] See id. at 304.

[20] Id. at 308.

[21] See Nancy Petersen, Sanchez Likely As County’s First Hispanic Judge, Philadelphia Inquirer, Nov. 5, 1997.

[22] See Kenney, supra n. 1 at 36.

Andrew Oldham – Nominee for the U.S. Court of Appeals for the Fifth Circuit

Young, well-credentialed, and fiercely conservative, Andy Oldham is exactly the type of nominee that Trump promised to name to the federal bench if elected.  While Oldham’s involvement in aggressive conservative litigation may have secured him the nomination, it is likely to draw strong opposition from Senate Democrats.

Background

Andrew Stephen Oldham was born in Richmond, VA on December 15, 1978.  Oldham received a B.A. with Highest Honors from the University of Virginia in 2001, and then received a Master of Philosophy from the University of Cambridge in 2002.[1]  Oldham then attended Harvard Law School, graduating magna cum laude in 2005.  (At Harvard Law, one of Oldham’s professors was U.S. Sen. Elizabeth Warren).[2]

After law school, Oldham moved to Washington D.C. to clerk for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit.  Oldham then moved to the Office of Legal Counsel (OLC), working under acting Assistant Attorney General Stephen Bradbury.  In 2008, Oldham secured a clerkship with Justice Samuel Alito on the U.S. Supreme Court.[3]

In 2009, Oldham joined the law firm Kellogg Huber as an Associate.  Just three years later, Texas Attorney General Greg Abbott hired Oldham as Deputy Solicitor General, working with fellow judicial nominee Cam Barker.

In 2015, when Abbott was elected to be Texas Governor, Oldham became his Deputy General Counsel.[4]  Oldham became the Acting General Counsel in 2017 and the General Counsel in 2018.

History of the Seat

Oldham has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on April 2, 2018 with Judge Edward Prado’s resignation to be the U.S. Ambassador to Argentina.  However, Oldham had been on the White House’s radar much earlier.  In 2017, Oldham was a finalist alongside Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney James Ho to fill two Texas vacancies on the Fifth Circuit.[5]  Ho and Willett were ultimately nominated on September 28, 2017 and confirmed in December 2017.[6]  Oldham remained under consideration, however, and was nominated to the Prado seat on February 15, 2018.

Political Activity

Oldham does not have a long donation history, with his only donation of record being a $500 contribution to Cruz during his presidential campaign in 2016.[7]  Additionally, Oldham served as an envelope stuffer for Republican George Allen’s senatorial campaign in 2000.[8]

Oldham has also been a member of the Federalist Society for Law and Public Policy Studies, a conservative legal organization that has produced many Trump nominees, since 2002.[9]  He has also been a member of the National Rifle Association since 2015.[10]

Legal Experience

Oldham has served in both advisory positions: at the Office of Legal Counsel and then as Abbott’s General Counsel; and litigation positions: at Kellogg Huber and the Texas Attorney General’s Office.  While Oldham has engaged substantively with the law in each of these positions, the bulk of his most controversial (and significant) cases have been handled as Deputy Solicitor General of Texas, a role in which Oldham spearheaded much conservative activist litigation, as well as amicus work handled as Abbott’s Counsel.  Below, we highlight some of Oldham’s work on hot-button issues:

DAPA & Immigration

Oldham was lead counsel in challenging the Obama Administration’s Deferred Action for Parental Accountability (DAPA), which deferred action status for deportation purposes for immigrants with children who were American citizens or lawful permanent residents.[11]  Oldham drafted the initial complaint and successfully argued for a nationwide injunction before Judge Andrew Hanen.[12]

Abortion and Healthcare

As Deputy Solicitor General of Texas, Oldham managed the defense of Texas laws that critics alleged impeded a woman’s right to have an abortion.  Oldham was part of the legal team that successfully persuaded the Fifth Circuit to overturn a trial injunction and find that Texas laws requiring abortion providers to have admitting privileges in local hospitals and restricting medication abortions were constitutional.[13]  Oldham was also involved in the defense of the restrictions under an “as-applied challenge” brought by a McAllen Texas abortion clinic.[14]  The Supreme Court would eventually find that the provisions created an “undue burden” on a woman’s right to choose.[15]

Oldham was also lead counsel in a challenge to the Affordable Care Act under the “Origination Clause” of the Constitution.[16]  Shortly after Oldham left the case, the Fifth Circuit dismissed the challenge for lack of standing.

Habeas Rights

As Deputy Texas Solicitor General, Oldham argued two cases before the Supreme Court, in both cases arguing, unsuccessfully, for the barring of habeas claims raised by the plaintiffs.  In the first case, a 5-4 majority of the Supreme Court ruled against Oldham’s position, finding that the ineffective assistance of state habeas counsel can excuse the procedural default of a habeas claim.[17]  In the second case, a 6-3 majority held that a habeas inmate did not need to cross-appeal a claim he had lost on the trial level in order to raise it during a defense of claims he had won.[18]

Second Amendment

As Deputy General Counsel for Governor Abbott, Oldham filed an amicus brief on behalf of the Governors of Texas, Louisiana, Maine, Mississippi, Oklahoma, and South Dakota in a Second Amendment challenge to a California law requiring good cause to carry a concealed firearm.[19]  Despite Oldham’s and other briefs filed supporting the Second Amendment challenge, the Ninth Circuit held en banc that the Second Amendment does not protect a right to concealed carry.[20]

Campaign Finance

In the Texas Attorney General’s Office, Oldham helped defend Texas’ campaign finance laws against First Amendment challenges brought by a group of nonprofits and general-purpose political committees.[21]  The plaintiffs challenged Texas’ ban on corporate contributions for issue-oriented general-purpose committees, as well as requirements that the committees have appointed treasurers, collect ten contributions, and wait sixty days before exceeding $500 in contributions and expenditures.[22]  In the challenge defended by Oldham, the Fifth Circuit struck down the ten contribution limit and the sixty day waiting period but upheld the other requirements.[23]

Environmental & Administrative Law

At the Texas Attorney General’s Office, Oldham helped craft the challenge to greenhouse gas rules promulgated by the EPA under the Clean Air Act.  Specifically, Oldham focused on the challenge to the EPA “tailoring” rule, which determined which sources emitting air pollutants were required to get permits, and argued that the rule should not be subjected to Chevron deference.  The Supreme Court struck down the “tailoring” rule by a 5-4 margin.[24]

Overall Assessment

Oldham, with his impeccable academic credentials, his youth, and future Supreme Court potential, was always going to attract attention in the confirmation process.  However, given Oldham’s involvement in conservative impact litigation, his nomination is likely to be deeply controversial.

In particular, Oldham’s role in litigation against DAPA, and EPA rules, as well as his role defending abortion restrictions that were struck down as unconstitutional will be argued to suggest that he is a conservative extremist.  Democrats may note that Oldham had an unusually active role in shaping and filing litigation intended to further conservative policy goals and stymie liberal ones.  As such, they will argue that Oldham will continue that goal on the bench and be a judicial activist.

Oldham’s supporters, including Cornyn and Cruz, who sit on the Senate Judiciary Committee, will undoubtedly argue that it is inappropriate to impute a lawyer’s positions on behalf of his client to the lawyer himself.  However, as Cruz himself voted against Trump nominee Mark Bennett based on stances he took as Hawaii Attorney General, Democrats may decide that what’s sauce for the goose is sauce for the gander.  As such, Oldham’s confirmation will ultimately turn on his decisions rather than his qualifications.


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

[2] Fred Thys, Warren’s Former Students See Her As Anything But ‘Elitist’, WBUR, Apr. 23, 2012, http://legacy.wbur.org/2012/04/23/warren-popular-former-students.

[3] See Oldham, supra n. 1 at 2.

[4] Id.

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

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

[8] Oldham, supra n. 1 at 14.

[9] See id. at 5.

[10] Id.

[11] Texas v. United States, 86 F. Supp. 591 (S.D. Tex. 2015) (issuing a preliminary injunction against DAPA).

[12] See id.

[13] Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014).

[14] Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014).

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

[16] Holtz v. Burwell, 784 F.3d 984 (5th Cir. 2015).

[17] Trevino v. Thaler, 133 S. Ct. 1911 (2013).

[18] Jennings v. Stephens, 135 S. Ct. 793 (2015).

[19] Peruta v. Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).

[20] See id. at 924.

[21] Catholic Leadership Coalition of Texas v. Reisman, et al., 764 F.3d 409 (5th Cir. 2014).

[22] See id. at 414.

[23] Id.

[24] Texas v. EPA; Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).

Alan Albright – Nominee for the U.S. District Court for the Western District of Texas

An attorney who first became a judge over 25 years ago (and left the bench approximately 20 years ago) would not seem like a likely judge from an Administration focused on youth as a key criteria of nomination.  However, Alan Albright became a judge at just 32 years of age and left the bench before he was forty.  As such, the seasoned litigator, now 58, is still young enough to serve on the bench for another thirty years.

Background

Alan D. Albright was born on November 24, 1959 in Hershey, PA.  After getting a B.A. from Trinity University in 1981, Albright received a J.D. from the University of Texas Law School in 1984.  After his graduation, Albright served as a law clerk to Judge James Nowlin on the U.S. District Court for the Western District of Texas.[1]

After his clerkship, Albright joined McGinnis, Lochridge & Kilgore LLP. as an associate.  Two years later, he joined the Austin office of Akin Gump Strauss Hauer & Feld as an associate.  In 1992, Albright, only 32, was tapped to be a U.S. Magistrate Judge for the U.S. District Court for the Western District of Texas.

Albright left the bench in 1999 to join the Austin office of Thompson & Knight LLP.  Two years later, he left Thompson to join Gray Cary (now DLA Piper) as a Partner.  In 2005, he moved to the Austin office of Fish & Richardson as a Partner.  In 2009, he joined the Austin office of Bracewell & Giuliani (now Bracewell) as a Partner.  In 2014, he left Bracewell to become a Partner at Sutherland Asbill & Brennan.  In 2015, he returned to Bracewell as a Partner, and works there to this day.

History of the Seat

Albright has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on September 14, 2016, when Judge Walter Scott Smith Jr. retired amidst allegations of sexual misconduct.[2]  In February 2017, Albright applied for a federal judgeship with an Evaluation Committee set up by Texas Republican Sens. John Cornyn and Ted Cruz.[3]  He interviewed with the Committee in March 2017 and then with Cornyn and Cruz in April.  Albright interviewed with the White House and Department of Justice on July 18, 2017.[4]  He was nominated on January 24, 2018.

Legal Experience

Albright’s work in private practice can be divided into two periods sandwiched around his seven years on the bench.  The first period was from 1986, when Albright finished his clerkship, to 1992, when he became a federal judge.  During his period, Albright primarily worked in insurance litigation, starting at the Austin firm McGinnis, Lochridge & Kilgore LLP and then working for the Biglaw firm Akin Gump.

The second period was from 1999, when Albright left the bench, to the present.  In this period, the primary focus of Albright’s career has been on patent litigation, at the firms Thompson & Knight, Gray Cary, Fish & Richardson, and Bracewell & Giuliani (now Bracewell).  Notably, Albright represented Overstock.com in defending against a patent infringement action, representing the website through a jury trial (the jury found for the defendants).[5]

While Albright focused primarily on patent litigation , he occasionally handled other cases.  Notably, Albright represented the Williamson County government in defending against a suit brought by Robert Lloyd, a conservative Republican who claimed that the County had improperly taken his political affiliation and his opposition to abortion and same-sex marriage into account in rejecting him for a Constable appointment.[6]

Jurisprudence

Albright served as a U.S. Magistrate Judge on the U.S. District Court for the Western District of Texas from 1992 to 1999.  In this capacity, Albright presided over the pretrial aspects of approximately 1000 misdemeanor and civil cases and approximately 500 civil cases.[7]  He also presided over around 15-20 civil cases by consent.[8]   Among the more prominent cases Albright handled, he overturned a $275,000 jury verdict for a San Marcos plaintiff shot by a police officer on qualified immunity and official immunity grounds (his decision was affirmed on appeal).[9]  In another notable case, Albright found for the parents of a daughter who suffered permanent injuries during birth due to the negligence of the doctor delivering the baby.[10]

In his seven years on the bench, Albright was reversed by the Fifth Circuit in four cases.  In three of the reversals, the Fifth Circuit reversed plaintiff-friendly rulings by Albright.[11]  In the fourth case, the Fifth Circuit reversed the grant of summary judgment to the defendant in a Lanham Act case.[12]

Political Activity

Albright has been a frequent donor to Republican candidates.  Cornyn was a particular beneficiary, having received approximately $5000 from Albright.[13]  Albright also donated almost $5000 to Rudy Giuliani’s 2008 Presidential campaign.[14]

Additionally, Albright volunteered on the campaigns of several Texas politicians, including Republican Governor Bill Clements, and Democrats Bob Krueger and Henry Cisneros.[15]

Overall Assessment

Compared to other nominees from Texas who have incited more pushback, Albright is relatively uncontroversial.  His long-time tenure as a patent litigator has allowed Albright to steer clear of controversial cases while maintaining the intellectual vigor needed for the bench.  Additionally, supporters will argue Albright’s representation of Williamson County in defending against a discrimination suit brought by a conservative employee reflects an apolitical approach to the law.

Furthermore, Albright’s record on the bench is relatively non-ideological.  While Albright did overturn a jury verdict for a plaintiff against the cop who shot him, his ruling for the victims of medical negligence in a bench trial suggests that he is not biased against plaintiffs.  Furthermore, most of his reversals from the Fifth Circuit have been from plaintiff-friendly rulings.

Overall, these factors, combined with his age and experience, suggest that Albright will be considered a consensus nominee.


[1] Sen. Comm. on the Judiciary, 115th Cong., Alan D. Albright: Questionnaire for Judicial Nominees 46.

[2] Tommy Witherspoon, Probe of Federal Judge Ends With His Retirement, Waco Tribune, Sept. 29, 2016, http://www.wacotrib.com/news/courts_and_trials/probe-of-federal-judge-ends-with-his-retirement/article_232c914f-578a-5e3d-813e-0f963cd75be3.html.

[3] See Albright, supra n. 1 at 44.

[4] See id.

[5] Alcatel-Lucent USA v. Amazon.com, Inc., 6:09-cv-00422-LED (E.D. Tex. Nov. 2, 2011), aff’d, 505 F. App’x 957 (Fed. Cir. 2013).

[6] Lloyd v. Birkman, No. 1:13-cv-00505 (W.D. Tex.).

[7] See Albright, supra n. 1 at 13-14.

[8] Id.

[9] Tamez v. City of San Marcos, No. 93-CV-666 (W.D. Tex. July 8, 1996), aff’d, 118 F.3d 1085 (5th Cir 1997), cert. denied, 522 U.S. 115 (1998).

[10] Jackson v. United States, No. 1:96-cv-00491-ADA (W.D. Tex. Aug. 20, 1998).

[11] See Castillo v. City of Round Rock, Tex., No. A-96-CV-863 (W.D. Tex. Feb. 2, 1998), rev’d, 177 F.3d 977 (5th Cir. 1999), cert. denied, 528 U.S. 1019 (1999) (reversing denial of summary judgment to defendants, noting that claims were barred by qualified immunity); Travis v. Bd. of Regents of the Univ. of Tex. Sys., No. A-94-CV-712 (W.D. Tex.), rev’d, 122 F.3d 259 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1992) (reversing verdict for plaintiff on sex discrimination and retaliation claims); Texas v. Thompson, No. A-93-CA-343 (W.D. Tex. Dec. 12, 1994), appeal dismissed in part and rev’d in part, 70 F.3d 390 (5th Cir. 1995) (per curiam) (reversing denial of summary judgment to one defendant). 

[12] Soc’y of Fin. Exam’rs v. Nat’l Ass’n of Certified Fraud Exam’rs, Inc., No. A-92-CA-792/ A-92-CV-937 (W.D. Tex. Dec. 8, 1993), vacated, 41 F.3d 223 (5th Cir. 1995), cert. denied, 515 U.S. 1103 (1995).

[14] See id.

[15] See Albright, supra n. 1 at 29-30.

Justice Britt Grant – Nominee for the U.S. Court of Appeals for the Eleventh Circuit

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

Background

Britt Cagle[1] Grant is a 40-year-old Atlanta native who graduated summa cum laude from Wake Forest University in 2000 and graduated with distinction from Stanford Law School in 2007.[2] Between the two, she worked for then-Congressman (now-Governor) Nathan Deal’s office, followed by several years of domestic-policy work in the White House of George W. Bush.[3]

While in law school, Grant served as the president of the Stanford Federalist Society, the co-founder and co-president of the Stanford National Security and the Law Society, and the managing editor of the Stanford Journal of International Law.[4] She then clerked for conservative superstar Judge Brett Kavanaugh of the D.C. Circuit (2007-2008) before turning to a multi-year stint doing commercial litigation at the D.C. office of Kirkland & Ellis.[5] In 2012, she left Washington to work for the Georgia Attorney General’s office. She worked first as “Counsel for Legal Policy,” and then in January 2015 she was appointed Solicitor General of Georgia, in which role she served until her appointment to the Supreme Court of Georgia by her former boss, now-Governor Nathan Deal, in January 2017.[6] She is the Georgia Supreme Court’s third female justice in history,[7] and she serves alongside the second female justice, Carol Hunstein.[8] At her swearing in, Grant “promised to honor the rule of law with humility and fairness. And she set another goal: ‘clarity and coherence.’”[9] A few months after her appointment, the Georgia Supreme Court’s Chief Justice Hines had this to say about Grant and her fellow recent appointee Nels Peterson: “They are as bright as new pennies. And they’re good people.”[10]

Grant is a member of the American Law Institute, the Joseph Henry Lumpkin American Inn of Court, the Appellate Practice Section of the Georgia Bar, and the Emory University Board of Visitors.[11] She has also served on various Supreme Court of Georgia Committee concerning matters such as professionalism, dispute resolution, and public trust.[12] Grant also serves on the Federalism & Separation of Powers Executive Committee of the Federalist Society and is also a member of the advisory board of the Atlanta chapter of that group.[13] (The Federalist Society’s Separation of Powers practice group’s Executive Committee seems to be a particular productive reservoir of Trump nominees. I noted in my post on Kevin Newsom that he had been a member of that same committee, along with current Eleventh Circuit Judge William Pryor and fellow Trump nominee David Stras, who has since been confirmed to the Eighth Circuit. Grant’s nomination is thus at least the third Trump nomination to come from that committee. I am no longer able to determine the other current members of that committee, because following the publication of my post on Kevin Newsom, the Federalist Society has taken down the list of committee members from their website,[14] although the website makes clear that each committee indeed still does have an executive committee that meets once a month.[15])

Although there is no current vacancy on the U.S. Supreme Court, in November 2017, Grant was added to President Trump’s running list of possible Supreme Court nominees (which includes her former boss, Judge Kavanaugh).[16]

History of the Seat

Grant has been nominated to a vacancy on the U.S. Court of Appeals for the Eleventh Circuit to a seat opened by Judge Julie Carnes’s move to senior status in June 2018.  As noted, however, Grant had been on the White House’s radar much earlier.  She was vetted in 2017 for the vacancy opened by Judge Frank Hull’s move to senior status, a vacancy ultimately filled by Judge Lisa Branch.[17]

Legal Career

Grant’s career in litigation relevant to her nominated position appears to be limited to her years as Georgia’s Solicitor General. In that capacity, she appeared in some capacity (i.e., with her name appearing on the briefs) in eighteen cases before the Supreme Court of Georgia.[18] Of those eighteen, certiorari was denied in five,[19] three were transferred to the Georgia Court of Appeals,[20] one was an application for interlocutory appeal that was denied (Grant was Appellee),[21] one was dismissed on a motion to dismiss (Grant was Appellee),[22] and the remaining eight were disposed of through opinions. Of those eight, she served as a neutral amicus in one,[23] and among the remaining seven, her office won six and lost one. The wins: she was appellee in Olvera v. University System of Georgia’s Board of Regents[24] and amicus appellee in Hertz v. Bennett,[25] and the opinions below were unanimously affirmed; as appellant in McKinney v. Fuciarelli,[26] Kemp v. Monroe County,[27] and In the Interest of B.R.F. f/k/a/ B.R.M.,[28] she won unanimous reversal or vacate-and-remand; and as appellant in Turner v. Georgia River Network,[29] she won reversal with the support of all those participating except Justice Melton, who dissented.The case her office lost was Grady County Board of Commissioners v. Georgia River Network,[30] with all those participating voting against her team–except Justice Melton.

Her briefing in those cases before the Supreme Court of Georgia reflects traditional adherence to text–with a willingness to look beyond text when it is helpful to advance the needs of the case–and deference to the legislature. In one case concerning sovereign immunity, her office explored the history of various provisions of the Georgia Constitution and wrote: “If the public interest in avoiding what could occasionally be viewed as harsh or unfair results outweighs the public interest in sovereign immunity, then the people of Georgia – through the General Assembly – have the constitutional authority to waive it.”[31] She spoke to “fidelity to the text of the statute” in one case, and argued that the bar to establish the absurdity exception to overcome plain meaning is high one, citing Joseph Story’s Commentaries on the Constitution of the United States.[32] In other cases, she did not limit herself to plain language, contending in one that “The cardinal rule of statutory construction is to seek the intent of the Legislature, and language in part of a statute must be construed in light of the legislative intent as found in the statute as a whole”;[33] in another: “Both text and practice demonstrate that the Board of Regents is not subject to the APA.”[34]

In her briefing, Grant also demonstrated sympathy for practical considerations. Where the Court of Appeals had granted an out-of-time appeal because “a constitutional violation concerning the appeal occurred when the mother’s right to file an application for discretionary appeal with the assistance of a court-appointed attorney was frustrated because of the ineffective assistance or denial of counsel,”[35] Grant acknowledged the burden on the mother–“To be sure, it is regrettable that the mother was unaware that she had the right to counsel for an appeal.”–but bemoaned the “dangers” of the decision of the Court of Appeals: “So long as there is the possibility of an out-of-time discretionary appeal, there will be no certainty for any deprived child that his or her stable, permanent home placement will be maintained. As this Court has recognized, ‘languishing in temporary care’ is not healthy for deprived children, who ‘need permanence of home and emotional stability or they are likely to suffer serious emotional problems.’”[36]

Grant also filed numerous briefs in the Georgia Court of Appeals and the U.S. Court of Appeals for the Eleventh Circuit. In the Eleventh Circuit, she was involved in litigation concerning the EPA’s  “Waters of the United States Rule,”[37] with her jurisdictional arguments ultimately being vindicated in the Supreme Court earlier this year (in a case other than hers).[38]

Her experience leading cases as party counsel before the Supreme Court of the United States includes one case while she was in private practice and four as Georgia’s Solicitor General:

Although the papers do not appear to list her as named counsel in the original-jurisdiction case of Florida v. Georgia (a water case that is still ongoing well after her departure),[39] Grant states that she supervised the litigation team, “provided strategic oversight and budget management, edited briefs, represented the State in status conferences, worked with State officials on budgetary issues, and participated in trial preparation.”[40]

In McLaughlin v. Lejeune, the U.S. Supreme Court denied her cert petition challenging a Georgia Supreme Court decision that refused to apply harmless-error analysis in determining the validity of guilty pleas.  In that case, the defendant was not advised “of the three rights identified in Boykin v. Alabama, 395 U.S. 238 (1969),” “i.e., the rights to trial by jury, to confront one’s accusers and the privilege against compelled self-incrimination.”[41] Three justices of the Georgia Supreme Court had dissented in the decision below,[42] and Governor Deal has since appointed three new justices to the court–including Grant–such that there may now potentially be more than enough votes to overrule the prior decision, should it come before the court again. Such a case would permit one to determine whether the view Grant advocated in her cert petition tracks her own view, but the issue does not appear to have come before the court again since that time–at least not in a form that has resulted in a written opinion.

Grant filed a brief opposing cert in Alves v. Board of Regents of the University System of Georgia, and that petition was denied as well.[43] In Alves, two members of an Eleventh Circuit panel (Judge Wilson and District Judge William Terrell Hodges) held–over Judge Martin’s dissent–that a “written grievance by five [Georgie State University] employees alleging mismanagement by their supervisor which preceded their termination” was not entitled to First Amendment protection.[44] In defending this result, Grant first suggested the case was a poor vehicle for Supreme Court review given that a separate state-court ruling issued a few days prior to the filing of the brief would render the First Amendment question moot once the state-court decision became final.[45] On the merits, while Judge Martin believed the employees were speaking as citizens on matters of public concern,[46] Grant contended that “Petitioners’ attempt to portray their speech as having broader implications for the GSU community amounts to garden-variety complaining about their employment conditions and the tasks they were asked to perform. The gravamen of Petitioners’ memorandum was that they disagreed with the policies their supervisor was implementing . . . . It was only incident to voicing their personal concerns that Petitioners’ remarks touched upon matters that might potentially affect the student body. To hold otherwise would allow Petitioners to constitutionalize a run-of-the-mill employee grievance through inclusion of calculated buzzwords regarding issues that, after investigation, proved to be unfounded.”[47]

Another case, this one decided on the merits, was Foster v. ChatmanFoster was a Batson case in which Chief Justice Roberts–joined by seven other justices (only Justice Thomas dissented)–held that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination in jury selection was clearly erroneous. Grant’s office had argued in its brief that “[t]he facially neutral notes on black prospective jurors, taken eight months after Batson v. Kentucky, 476 U.S. 79 (1986), are not evidence of the State’s intention to engage in purposeful discrimination as alleged by Foster. Instead, they are the result of the State’s efforts to rebut contentions of discrimination.”[48] The State contended that Foster “has failed to show anything but an attempt by a racially diverse prosecution team to demonstrate its compliance with the new evidentiary requirements outlined in Batson.”[49] Chief Justice Roberts squarely rejected this argument, saying it “falls flat”: first, it “reeks of afterthought, having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari. In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”[50] Curiously, while Grant’s name appears on the Joint Appendix of the case,[51] it does not appear on the merits brief just quoted, even though the other four attorneys who appeared with her on the Joint Appendix do indeed appear on it.[52] The Supreme Court’s docket for the case does not appear to contain any explanation for this.

Contrary to what might be expected, the representation that led to the most splintered Supreme Court decision was not in her capacity as Solicitor General but rather in her earlier private practice. In Shady Grove Orthopedic Associates v. Allstate Insurance Company, the Supreme Court held that a New York law placing limits on class actions did not preclude a federal district court sitting in diversity from entertaining a class action under Rule 23.[53] Grant’s brief[54] did not carry the day, although the case produced a highly unusual split, with Justice Scalia writing (for portions of the opinion) for Chief Justice Roberts and Justices Stevens, Thomas, and Sotomayor, while Justice Ginsburg wrote in dissent for Justices Kennedy, Breyer, and Alito.

These cases do not encompass all of Grant’s participation at the Supreme Court of the United States. She was also party counsel for the State of Georgia–but not for the leading state, Texas–in the multi-state challenge to DAPA (Deferred Actions for Parents of Americans), Texas v. United States.[55] And under her leadership, Georgia also participated as amicus in numerous other cases that resulted in highly splintered opinions: Shelby County v. Holder (state coverage under the Voting Rights Act),[56] Town of Greece v. Galloway (legislative prayer),[57] Burwell v. Hobby Lobby (the Affordable Care Act’s contraception mandate),[58] Friedrichs v. California Teachers Association (public-employee unions),[59] Obergefell v. Hodges (marriage for same-sex couples),[60] Glossip v. Gross (lethal-injection protocols),[61] and Gloucester Cty. Sch. Bd. v. G.G. (rights of transgender students),[62] among others.[63] Her Senate questionnaire indicates that for these cases, she “drafted, reviewed, or edited” the relevant filings.[64] Her name does not appear as counsel on them, however. Instead, the briefs list the name of Georgia’s attorney general at the time.

Jurisprudence

By my count, Grant–as a justice on the Supreme Court of Georgia–has written over 40 majority opinions. All but seven were unanimous in reasoning and result,[65] and two were unanimous but contained an additional concurring opinion.[66]

Of the seven majority opinions by Grant that were not unanimous, only two contained an additional opinion actually explaining the disagreement.[67] In both of those concurring opinions, her fellow justices “concurring specially” expressed the view that Grant had decided more than she needed to. In one case concerning official immunity (in particular, the question whether the defendant’s acts were discretionary or ministerial), Barnett v. Caldwell, Justice Melton (joined by Justice Hunstein) stated:

Although I concur with the analysis in the body of the majority opinion, I must write separately because I believe that dicta in footnote two sets forth an overly broad rule that is not applicable to the facts of this case. The majority suggests that: “An action or failure to act is either discretionary or not, and an official cannot alter that fact by doing it well, poorly, or not at all.” I disagree with this statement, and, more fundamentally, I disagree with the majority’s decision to expound upon the issue at all. The judicial process is served neither by inserting unnecessary and complicated issues into a case, nor by proclaiming unwavering rules to govern such complicated issues. The majority does both. I believe that this issue was handled more appropriately by Justice Peterson, who authored the opinion below [(and was thus disqualified in this particular case)]. Justice Peterson reasoned as follows:

Caldwell suggests that a total failure to comply with Section 6.5 would nevertheless be a discretionary act entitled to official immunity. We view such an argument through skeptical eyes, because a total failure to perform an act may involve no exercise of discretion or deliberation whatsoever, and it is not clear that such a failure would be considered a discretionary act covered by official immunity. But given our resolution of this appeal, it is not necessary to decide this question.

Far reaching (and, in this case, overly broad) rules like the one proposed by the majority should not be created in dicta, especially in an area of the law which requires an in depth consideration of the law and facts on a case-by-case basis. For this reason, I cannot concur with the analysis set forth in footnote two.[[68]]

In a separate case, Chrysler Group LLC v. Walden, Grant held that compensation evidence “is subject to the Rule 403 analysis weighing the evidence’s unfair prejudice against its probative value.” Grant noted that Chrysler did not object and thus analyzed the question under the plain-error standard instead of the abuse-of-discretion standard, and–finding no “clear and obvious reversible error”–affirmed the judgment below.[69] Justice Peterson, joined by Justice Boggs, took issue that Grant’s opinion went beyond those points:

I agree with each of those premises, and they are all that is necessary to decide the question this case presents. As such, the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further. But Division II (B) does not stop there; it goes much further (mostly in dicta), and often with sweeping language that travels far beyond this case. Respectfully, I cannot go along.[[70]]

Notably, Justice Melton (who had authored the special concurrence in Barnett suggesting that Grant had gone too far), wrote his own concurring opinion, stating that “[e]ven when considered in light of the concurrence from Justice Peterson, I agree with the analysis in the majority opinion.”[71]

The final majority opinion I will mention is Levis v. State, in which Grant issued a unanimous-in-result opinion reversing a felony-murder conviction on October 31, 2017,[72] then issued another unanimous-in-result opinion on December 11, 2017, superseding the prior opinion and upholding the felony-murder conviction.[73] Each opinion began this way: “Following a jury trial, Lisa Ann Lebis appeals her convictions of felony murder and other crimes related to the shooting death of Officer Sean Callahan. Lebis contends that the evidence was insufficient to support the verdict with regard to a number of counts against her and that trial counsel rendered ineffective assistance in the case.”[74] The October 2017 opinion continued:  “For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis’s convictions of two of the misdemeanor obstruction counts and all of the counts regarding possession of firearms and dangerous weapons; but reversing her conviction of felony murder and of the other two misdemeanor obstructions.”[75] And the December 2017 opinion continued: “For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis’s convictions of two of the misdemeanor obstruction counts, all of the counts regarding possession of firearms and dangerous weapons, and of felony murder; but reversing her conviction of the other two misdemeanor obstructions.”[76] With respect to the felony murder charge, the October 2017 opinion stated that “[a] more difficult question arises when we consider Lebis’s argument that the evidence was insufficient as a matter of law in relation to her conviction of felony murder as charged in the indictment,” ultimately reaching this conclusion:

That understanding renders Lebis’s felony murder conviction improper. Although the indictment charged Lebis with felony murder as a party to the crime, it specified that the predicate felony was Lebis’s joint possession of the murder weapon at the time Tremaine used it to shoot Officer Callahan. But Lebis’s prior constructive possession of the Glock when it was kept with the other weapons in the motel room does not bear on whether she possessed it at the time of the murder as charged in the indictment. The indictment required the State to prove beyond a reasonable doubt that Lebis jointly possessed the murder weapon at the time of the murder; the evidence does not support her joint possession of the Glock at that time. Because the evidence was insufficient to support the charge of felony murder as set forth in the indictment, Lebis’s conviction for this crime must be reversed.[[77]]

In contrast, the December 2017 opinion started that section by declaring, “The evidence was also sufficient to support the jury’s verdict that Lebis was guilty of felony murder as a party to her husband’s possession of a firearm as a convicted felon—a criminal act that proximately caused the death of Officer Callahan.” Explaining, Grant stated:

[A] defendant can be held responsible for the actions of another as a party to the crime or as a co-conspirator, without also concluding that the defendant constructively possessed the contraband actually and solely possessed by another. So even though Lebis did not jointly possess that firearm with Tremaine at the moment of the murder, it remains true that she can be held to account for the actions of another—here, her husband—as a party to the crime or as a co-conspirator. Accordingly, her arguments that she did not constructively possess the firearm do not help her escape responsibility for the crime.

As to the variance in the indictment, the majority opinion now had this to say:

Although Lebis raised sufficiency of the evidence rather than a “fatal variance” between the language of the indictment, which charged joint possession, and the proof at trial, we also note that any suggestion of such a fatal variance would also fail. Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.[[78]]

Grant has also participated in opinions as a concurring colleague. In at least two cases, she concurred in only the judgment as to certain portions of an opinion, but she did not write an opinion explaining the disagreement (as appears to be common in Georgia Supreme Court cases).[79]

She wrote a concurring opinion (joined by Justice Nahmias) in Schumacher v. City of Roswell, which made clear again her focus on following clear textual commands (and the frustration of not having them):

I join the Court’s opinion in full, including its conclusion that the only issue decided today is that a freestanding challenge to the facial validity of a zoning ordinance, unaccompanied by any complaint regarding an individualized determination impacting a particular parcel of land, does not challenge a “decision” of an “administrative agency” under OCGA § 5-6-35 (a) (1). This decision is consistent with the text of the statute, and accordingly with our responsibility as judges to apply even complicated statutes as they are written by the General Assembly.

That said, I understand and appreciate the concerns of the dissenting opinion regarding the lack of clarity in appellate procedures. More often than not, one would expect a close adherence to the textual demands of a statute to lead to greater clarity in the law; an attorney should be able to turn to the statute in the codebook and determine whether a direct appeal or an application is appropriate in a given case. That ideal is not necessarily met here. But the dissent’s approach does not add clarity either, seeking to extend a rationale that we have already deemed to have “fallacies.”

Even in the context of zoning, which has purportedly been the subject of a “bright line rule,” this Court has not been able to agree on which cases require an application. . . .

We recently attempted to bring some needed clarity to this interpretive enterprise by explaining in Keystone Knights that decisions can be “adjudicative,” “legislative,” or “executive,” and that an application is required to seek review of “adjudicative” decisions by administrative agencies. That decision was a valuable step in asserting order over our jurisprudence in this area, but it still left much to be divined by practicing attorneys. Of course, in fairness to Keystone Knights, the complexity of the analysis required under any approach that takes statutory language seriously counsels in favor of a legislative solution. What, for example, is a “decision”? Or an “administrative agency”? And what is the answer when a case raises claims regarding legislative, executive, and adjudicative decisions by a government entity acting in different capacities with respect to each of the “decisions”? The statute invites rather than answers these questions, and we can only do so much to simplify while also remaining faithful to its text.

Accordingly, the General Assembly may wish to clarify the scope of the matters that are subject to the discretionary appeal process. Until then, the best path forward—as remarkable as this is—may well be to follow the advice of two leading Georgia appellate treatises and file a discretionary application in every instance where there is any doubt.[[80]]

And in State v. Cohen (part of the “Waffle House sex tape” saga), Grant herself (joined by Justices Hunstein and Blackwell) contended that the majority decided a question it need not have.[81] That case concerned O.C.G.A. § 16-11-62(2), which states that a person may not use any device “to observe, photograph, or record the activities of another which occur in any private place and out of public view.” (That statute has been discussed on this blog before, as it was also the subject of a news-attracting opinion written by fellow Trump nominee Lisa Branch.[82]) The housekeeper and personal assistant to the chairman of Waffle House was accused of recording the two having sex,[83] and the majority held that:

Although there is nothing in the plain language of former OCGA § 16-11-62 (2) to indicate that Rogers and the other person in the residence would no longer have a reasonable expectation to be safe from the “hostile intrusion” of having their activities secretly video recorded once Brindle entered the residence, and although there is nothing in the former version of OCGA § 16-11-62 (2) to show that the reasonable expectation to be safe from “hostile intrusion or surveillance” under the statute is coextensive with one’s “reasonable expectation of privacy” under the Fourth Amendment to the United States Constitution, we have in the past looked to Fourth Amendment jurisprudence as a guide when interpreting the scope of privacy protected by OCGA § 16-11-62.[[84]]

Grant disagreed with looking to the Fourth Amendment. She noted that in contexts where “government agents were alleged to have illegally surveilled criminal defendants,” “it is no surprise at all to look toward the Fourth Amendment, which serves as a constitutional boundary to the behavior of the government. But here, in analyzing the actions taken by private parties, the Fourth Amendment provides something less than a useful guide; in fact, applying Fourth Amendment rules may even serve to confuse rather than clarify the meaning of the statute.”[85] She continued:

To begin, much of what the majority applies as seminal Fourth Amendment law had not yet been announced by the United States Supreme Court at the time that OCGA § 16-11-62 was drafted. The “private place” definition at issue here was passed by the General Assembly in April 1967, while the United States Supreme Court did not issue its Katz decision until December of that same year.

Nor am I as certain as my colleague that when the General Assembly redefined “private place” to constitute “a place where there is a reasonable expectation of privacy,” the legislature was “squarely invoking the modern Fourth Amendment test.” Concurring op. at 634, 807 S.E.2d 861. (Nahmias, J. concurring in part and concurring specially in part). Perhaps Fourth Amendment tests are more relevant under the new version of the statute—or perhaps not. After all, the amended statute still addresses a privacy interest quite different than the one that we all share against government search and seizure. But we need not make that determination until the proper case is before us, and I would decline to do so here.[86]

Grant also wrote a concurring-in-part-and-dissenting-in-part opinion (joined by Justice Hunstein) in Sponsler v. Sponsler.[87]

Writings

Although Grant does not appear to have published any law-review articles herself, she served as a research assistant for two law-review articles on national-security issues.[88] This interest appears to be a family affair, as her husband once worked at the CIA.[89]

Overall Assessment

Justice Britt Grant appears, like Newsom and Branch before her, to be a mainstream conservative nominee to the Eleventh Circuit.  With the exception of Foster v. Chatman, Grant does not appear to have participated as a lead counsel in any particularly politically charged cases, and even in Foster, the extent of her participation is not clear. Nor, from the materials I have been able to check myself–her amicus briefs notwithstanding, and those do not list her as counsel–does she appear to have publicly expressed positions on the broader constitutional and civil-right questions that would invariably come before her as an Eleventh Circuit judge. Her record as a justice on the Georgia Supreme Court seems to be in line with the other justices on that court–broad unanimity. Her membership and participation in the Federalist Society confirms her conservative views, but her appointment is unlikely–in the short term–to affect the ideological makeup of the court given that the judge she would be replacing is also more conservative.


[1] State Bar of Georgia, Hon. Britt Cagle Grant, https://www.gabar.org/MemberSearchDetail.cfm?ID=MTEzNDAz.

[7] CLOSER LOOK, A new era begins for Georgia’s Supreme Court Deal appointed half of state’s 24 justices to 2 top appellate courts, Atlanta Journal and Constitution, Jan. 10, 2017, 2017 WLNR 804272.

[9] Georgia Politics, Campaigns, and Elections for December 12, 2016, GaPundit, Dec. 12, 2016, 2016 WLNR 37904671.

[10] State’s chief justice visits Cairo, Thomasville Times-Enterprise (GA), May 18, 2017, 2017 WLNR 15729555.

[12] Sen. Comm. on the Judiciary, 115th Cong. Britt Grant: Questionnaire for Judicial Nominees (Grant SJQ) at 5, https://www.judiciary.senate.gov/imo/media/doc/Grant%20SJQ.pdf.

[16] The Latest And Greatest In President Trump’s Judicial Nominations (Part 2), https://abovethelaw.com/2018/01/the-latest-and-greatest-in-president-trumps-judicial-nominations-part-2/2/

[31] Fulton County v. City of Atlanta, 2016 WL 3043850, at *3-9, *24 (Ga. 2016).

[32] McKinney v. Fuciarelli, 2015 WL 10549708, at *3, *18 (Ga.).

[33] Foster v. Ga. Reg’l Transp. Auth., 2015 WL 1576408, *24 (Ga.).

[34] Olvera v. University System of Ga.’s Bd. of Regents, 2015 WL 4641675, *11 (Ga.) (emphasis added).

[35] In Interest of B.R.F., 332 Ga. App. 49, 50, 770 S.E.2d 912, 914 (2015), vacated sub nom. In Interest of B.R.F, 299 Ga. 294, 788 S.E.2d 416 (2016).

[36] In the Interest of B.R.F.F/K/A B.R.M., A Child., 2015 WL 5822948, at *15, *17-18 (2015).

[37] Georgia v. McCarthy, No. 15-14035, 2016 WL 2897733 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2016 WL 3227576 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2015 WL 6163726 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2015 WL 5608569 (C.A.11).

[38] Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018).

[40] Grant SJQ at 44-45.

[42] Lejeune v. McLaughlin, 299 Ga. 546, 789 S.E.2d 191 (2016).

[43] No. 15-971, 2016 WL 1298204 (U.S.).

[44] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1153 (11th Cir. 2015).

[45] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 2016 WL 1298204, *9-10 (2016).

[46] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1153 (11th Cir. 2015) (Martin, J., dissenting).

[47] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 2016 WL 1298204, *38-39 (2016) (citation, quotations, and alterations omitted).

[50] Foster v. Chatman, 136 S. Ct. 1737, 1755 (2016) (quotations and citation omitted).

[53] 559 U.S. 393 (2010).

[63] Grant SJQ at 43.

[64] Grant SJQ at 41.

[65] Ramirez v. State, 811 S.E.2d 416 (Ga. 2018); Barnett v. Caldwell, 302 Ga. 845, 809 S.E.2d 813 (2018); Sutherlin v. Sutherlin, 301 Ga. 581, 802 S.E.2d 204 (2017); Daniel v. State, 301 Ga. 783, 804 S.E.2d 61 (2017); Lebis v. State, 302 Ga. 750, 808 S.E.2d 724 (2017); Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992 (Ga. Mar. 15, 2018); Simpkins v. State, No. S18A0063, 2018 WL 2089505 (Ga. May 7, 2018).

[66] Goodrum v. State, No. S17A1748, 2018 WL 1323269 (Ga. Mar. 15, 2018); Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 807 S.E.2d 876 (2017).

[67] Barnett v. Caldwell, 302 Ga. 845, 809 S.E.2d 813 (2018); Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992 (Ga. Mar. 15, 2018).

[68] Barnett v. Caldwell, 302 Ga. 845, 852–53, 809 S.E.2d 813, 819 (2018) (Melton, J., concurring specially) (citation omitted).

[69] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *1 (Ga. Mar. 15, 2018).

[70] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *9 (Ga. Mar. 15, 2018) (quotations and citations omitted).

[71] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *8 (Ga. Mar. 15, 2018).

[78] https://scholar.google.com/scholar_case?case=17412431040748197491&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[79] Drews v. State, 810 S.E.2d 502 (Ga. 2018); Undisclosed LLC v. State, 302 Ga. 418, 807 S.E.2d 393 (2017).

[80] Schumacher v. City of Roswell, 301 Ga. 635, 641, 803 S.E.2d 66, 71–73 (2017) (Grant, J., concurring) (footnotes and citation omitted).

[81] State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (2017).

[84] State v. Cohen, 302 Ga. 616, 629, 807 S.E.2d 861, 871–72 (2017).

[85] State v. Cohen, 302 Ga. 616, 635, 807 S.E.2d 861, 875 (2017) (Grant., J., concurring specially in part).

[86] State v. Cohen, 302 Ga. 616, 635-36, 807 S.E.2d 861, 875–76 (2017) (Grant., J., concurring specially in part).

[87] Sponsler v. Sponsler, 301 Ga. 600, 800 S.E.2d 564 (2017).

[88] Mariano-Florentino Cuellar, “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953, 76 U. Chi. L. Rev. 587 (2009); Dara Kay Cohen et. al., Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 Stan. L. Rev. 673 (2006).

Jon Katchen – Nominee for the U.S. District Court for the District of Alaska

Jonathan W. Katchen is President Trump’s nominee for the U.S. District Court for the District of Alaska.  His career has been in natural resources law, both in the private and public sectors.

Background

Jonathan Katchen, 42, lives in Anchorage, Alaska.[1]  He grew up in the affluent town of Gladstone, New Jersey.[2]  He earned his B.A., cum laude, and his M.A., both in Theology, from Boston College in 1998 and 2001, respectively, and his J.D. from the University of California, Hastings College of the Law in 2004.[3]  Katchen worked in Alaska as a Jesuit volunteer before beginning a summer internship in the state during law school.[4]  He clerked for now retired Judge Maryanne Trump Barry of the U.S. Court of Appeals for the Third Circuit (President Trump’s older sister) upon graduating law school.[5]

Katchen has served as Special Assistant to Alaska’s former attorney general, Dan Sullivan, and as an Assistant Attorney General in the Oil, Gas & Mining Section.[6]  As Assistant Attorney General, Katchen counseled the Attorney General, Governor, and senior state officials on oil and gas lease disputes, permitting natural resource development on federal lands, and pipeline regulatory issues.[7]

From 2010-12, Katchen served as the Intergovernmental Coordinator for the Alaska Department of Natural Resources, advising senior administration officials and state legislators on natural resource issues and leading the department’s administrative appeals and litigation and providing counsel to the the then-Commissioner, Dan Sullivan.  Sullivan is currently Alaska’s U.S. senator (R).[8]

In 2012, Katchen began working in private practice at the Anchorage office of Crowell & Moring LLP, a large corporate law firm, where he practiced in environmental and natural resources law and regulatory industries.[9]  In 2017, he moved to Holland & Hart, where he currently practices oil and gas law.[10]

History of the Seat 

Katchen has been nominated to a vacancy on the U.S. District Court for the District of Alaska.  The vacancy opened with Judge Ralph Beistline’s move to senior status on December 31, 2015.  No nomination was put forward to the vacancy during the Obama Administration.

Katchen was one of five names submitted by Alaska’s senators, Sullivan and Murkowski, an unusually large number.[11]  Alaska’s former senator Mark Begich has suggested that the longer list may have been the product of the state’s senator’s disagreeing on who to send forward.  As Murkowski put it, ”We put forth a longer list in an effort to align our priorities.”[12]

Some have criticized Katchen’s nomination as the product of his connections and politics, rather than merit.[13]  Retired Superior Court Judge Elaine Andrews, who presided over Alaska’s Anchorage courts, has indicated that Katchen is not qualified for the position: “We should be taking the very best we have, and he may be decent, he may be very good, but he’s not the best we have.”[14]  Katchen ranked 13th out of 20 applicants on the Alaska bar association poll, with 31 percent rating him “extremely qualified” or “well qualified,” compared to 66 percent who gave those ratings to the top applicant, Eric Aarseth, a highly rated state judge since 2005.[15]  As writer Charles Wohlforth noted, “Two law school summer jobs and a clerkship are the extent of [Katchen’s] criminal law experience.”[16]

Legal Career

As outlined above, Katchen’s relatively short career has been primarily in the public sector.  He does not appear as counsel in any published cases on Westlaw.

Katchen was the state’s lead negotiator in a multi-year negotiation over Point Thomson, one of the largest undeveloped oil and gas fields in North America situated in a remote arctic area off of Alaska’s northern coast.[17]  The negotiation revolved around a long-standing dispute between Alaska’s Department of Natural Resources (DNR) and Exxon regarding Exxon’s drilling in Point Thomson.[18]  Although Point Thomson holds 8 trillion to 9 trillion cubic feet of natural gas and hundreds of millions of barrels of gas and oil liquids, as of 2005 it had never produced oil or gas.[19]  The state of Alaska leases acreage to developers who seek to drill for oil and gas, and Exxon had long held the rights to a significant portion of the Point Thomson acreage.  In 2005, the DNR Director denied as inadequate Exxon’s plan of development for Point Thomson, which led to the state’s revoking their leases to drill, prompting several years of litigation challenging that decision.[20]  The state argued that Exxon was obligated either to produce the liquids and send them down the existing trans-Alaska oil pipeline, or relinquish the leases so they could be auctioned off to another developer.[21]  These legal battles were finally put to rest with the 2012 settlement agreement, negotiated primarily by Katchen, which required Exxon to build a pipeline from Point Thomson to deliver product to the trans-Alaska pipeline and to produce 10,000 barrels per day of natural-gas condensates by the winter of 2015-16.[22]  Point Thomson has been developed since the agreement was finalized and now contributes the agreed-upon 10,000 barrels of product per day, which one commenter called “a major victory for the Alaska economy.”[23]

Katchen has received accolades from Alaska’s former governor, Sean Parnell, and former Attorney General (now U.S. Senator (R)), Dan Sullivan, who describe him as “an extremely competent attorney” and someone who will “make an exceptional jurist who will faithfully apply the law and uphold the Constitution.”[24]  He was named in Chambers USA’s 2015 publication, America’s Leading Lawyers for Business, in the environment, natural resources, and regulatory industries category.[25]

Speeches/ Writings

Katchen has written a handful of opinion pieces for the Anchorage Daily News since 2014.[26]  One such piece responds to Ray Metcalfe, a former Alaska lawmaker, who criticized then Attorney General Dan Sullivan for allegedly not criminally prosecuting Alaska oil giant Bill Allen for child sex crimes.[27]  Katchen explained that Allen was not prosecuted because his abuse of a minor violated only federal (not state) law, and the U.S. Department of Justice would not cross-designate the Alaska Department of Law so as to give Sullivan the authority to prosecute Allen for federal crimes.  “Thus, the only question that needs to be answered is why did Obama administration officials refuse Dan’s request to cross-designate state prosecutors to pursue a federal criminal action against Allen.”[28]

Katchen has also been openly critical of Alaska’s current governor, Bill Walker, for not prioritizing or developing policies that will result in additional oil production through the Trans-Alaska Pipeline.[29]  Decline in oil production means decline in the state’s economy, on top of the problems caused Walker’s “erratic” tax reform attempts, which Katchen criticizes as discouraging investors from investing in further developing Alaska’s oil and gas fields.[30]

Katchen authored a 2016 amicus on behalf of Alaska’s congressional delegation submitted in the U.S. Supreme Court case Sturgeon v. Frost, 136 S.Ct. 1061 (2016).  The case arose out of the National Park Service informing an Alaskan hunter that he could not pilot his hovercraft on a particular river.  The hunter filed suit, arguing that federal law limited the Park Service’s jurisdiction to portions of the river owned by the state of Alaska, and that the river where he operated his hovercraft was not state-owned.  The district court and the 9th Circuit rejected this argument, finding the exercise of jurisdiction appropriate.  On his involvement as amicus for appellant’s Supreme Court case, Katchen explained: “Right now, they haven’t done this, but the Park Service has the authority to say to a Native corporation, ‘You can’t build a lodge on your lands. You can’t build a trail. You can’t do berry-picking. You can’t land a plane.’ If the Ninth circuit’s decision in Sturgeon doesn’t get overturned they will have that authority.”[31]  The Supreme Court agreed, reversing the lower courts in a unanimous opinion, holding the Park Service may only regulate “non-public” lands in Alaska according to Alaska-specific laws.

Overall Assessment

Katchen has unimpeachable expertise in natural resources law and has earned the respect of his colleagues.  However, it is unclear how his expertise would translate to the federal judiciary, where judges’ dockets are widely varied and typically center on criminal law (where Katchen’s experience is more limited).

So far, Katchen has strong support from senator Sullivan, while senator Murkowski’s support is unclear.  He has also not yet been rated by the ABA.  As noted above, Katchen’s nomination has received some criticism for his youth and his perceived leapfrogging over more experienced candidates.  However, there is no requirement that a judicial nominee be the “most” qualified candidate in the state.  As there is little public controversy surrounding Katchen’s career and as he has accomplished himself professionally, he will likely be confirmed.