Month: June 2017

Trevor McFadden – Nominee to the U.S. District Court for the District of Columbia

A longtime member of the Federalist Society, Trevor McFadden, in many ways, represents their ideal for a judicial candidate.  He is strongly conservative, young, and has excellent academic credentials.  Each of these points, conversely, is likely to draw Democratic opposition.

Background

Trevor Neil McFadden was born in Alexandria, VA in 1978.  After getting his B.A. from Wheaton College in Illinois, McFadden spent two years as an officer with the Fairfax County Police Department.  In 2006, McFadden graduated from the University of Virginia School of Law with the Order of the Coif, indicating superior academic performance.  McFadden then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.[1] 

After his clerkship, McFadden joined the Department of Justice, serving as Counsel for the Deputy Attorney General.  After the inauguration of the Obama Administration, McFadden joined the U.S. Attorney’s Office for the District of Columbia, serving as a prosecutor for four years.  During this time, he also served as a Part-time Deputy Sheriff for the Madison County Sheriff’s Office.

In 2013, McFadden left the U.S. Attorney’s Office to join the D.C. Office of Baker & McKenzie, LLP.  After the election of President Trump, McFadden rejoined the Department of Justice, this time as second in command at the Criminal Division.

McFadden has been a member of the Federalist Society since 2003.

History of the Seat

The seat McFadden has been nominated for opened on December 31, 2016, with Judge Richard Leon’s move to senior status.  On On March 2, 2017, McFadden was informed of the White House’s interest in naming him to the vacancy.  McFadden was formally nominated by President Trump on June 7.

Legal Experience

McFadden may be a couple of years shy of forty, but he has managed to accumulate an impressive breadth of legal work in that time.  While McFadden has taken on prominent policy roles in the Department of Justice, and has advised numerous corporations on compliance with federal law at Baker McKenzie, the bulk of his courtroom experience is from his stint as a federal prosecutor.

As an AUSA, McFadden worked primarily on prosecuting violent crimes.  For example, McFadden successfully prosecuted a man who assaulted and robbed a 78 year old dialysis patient, .[2]  McFadden also successfully defended the conviction of a defendant convicted of conspiring to distribute over a kilogram of PCP.[3]

Nevertheless, McFadden’s stint at the Criminal Division of the Department of Justice may draw more scrutiny.  In this role, McFadden serves as second in command to Acting Assistant Attorney General Kenneth Blanco.  McFadden may draw questions related to the recent charging memo released by Attorney General Jeff Sessions, calling on federal prosecutors to charge defendants with the strongest possible charges regardless of other factors.[4]  McFadden may also face questions as to his involvement with the Department’s efforts to crack down on sanctuary cities.

Political Activity

McFadden has been fairly active in the Republican party, having canvassed for GOP candidates since his high school days.  In his SJQ, McFadden notes that he has canvassed for President George W. Bush’s 2000 and 2004 campaigns, Mitt Romney’s 2012 campaign, and Rep. Tom Davis’ 1996 election campaign among others.

McFadden is also a supporter of President Trump, having donated $1000 to his election efforts, and being a vetter for his transition team.

Overall Assessment

As noted above, the young, conservative, and ambitious McFadden is likely to be a template for Trump nominees to the federal bench.  As such, Democrats are likely to look for reasons not to support his nomination.

Most of the objections that can be drawn to McFadden are based on process.  Unlike previous administrations, the Trump Administration declined to consult with D.C. Delegate Eleanor Holmes Norton in making federal court nominations.  McFadden has already drawn criticism from Norton for not being a D.C. resident.[5]  Furthermore, McFadden’s hearing, scheduled for the 28th of June, is moving forward without an ABA rating on his nomination.  Furthermore, McFadden’s 14-year long history with the Federalist Society is unlikely to be missed as well.  As such, expect a more difficult confirmation process for McFadden than his fellow D.C. nominees Friedrich and Kelly.

[1] Colloton himself is a former prosecutor and a shortlist candidate for a Supreme Court vacancy.

[2] See United States v. Brown, 2011-CF3-0160000 (D.C. Super. Ct.) (Judge Pan).

[3] United States v. Bell, 708 F.3d 223 (D.C. Cir. 2013).  

[4] See Matt Ford, Jeff Sessions Reinvogarates the Drug War, The Atlantic, May 12, 2017, https://www.theatlantic.com/politics/archive/2017/05/sessions-sentencing-memo/526029/.

[5] Press Release, Office of the MP Eleanor Holmes Norton, Norton Urges Senate Democrats to Question D.C. Federal Nominees on Residency, Familiarity with D.C., After White House Nominates Non-D.C. Residents for the U.S. District Court and U.S. Attorney for the District of Columbia (June 13, 2017).

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Timothy Kelly – Nominee to the U.S. District Court for the District of Columbia

Typically, when choosing federal district court judges, presidents defer to home state senators.  While most senators make their selections from the pool of politically active litigators, federal prosecutors, state court judges, and federal magistrates, some turn to a different pool: their employees.  Over the past few decades, several staffers on the Senate Judiciary Committee have been nominated and confirmed for the federal bench.  Most notably, Justice Stephen Breyer was a staffer for then-Judiciary Chairman Edward Kennedy (D-MA) before he was tapped for the federal bench.  Similarly, Sen. Strom Thurmond (R-SC) tapped multiple veterans of his staff for judgeships including Judge Dennis Shedd of the U.S. Court of Appeals for the Fourth Circuit, and Judges Henry Herlong and Terry Wooten of the U.S. District Court for the District of South Carolina.  Timothy Kelly, a prominent staffer to current Judiciary Chairman Chuck Grassley (R-IA), follows that long tradition.    

Background

Timothy James Kelly was born in Glen Cove, NY in 1969.  After getting an A.B. from Duke University in 1991, Kelly joined the New York office of Cleary, Gottlieb, Steen & Hamilton as a legal assistant, working there for two years.  In 1993, Kelly left his position as Cleary to work as a staff assistant for the U.S. House Committee on House Administration.  During this position, Kelly also worked as a waiter and doorman at the popular Capitol Hill bar, Hawk ‘N’ Dove.  

In 1994, Kelly left both positions to join the Georgetown University Law Center, getting his J.D. in 1997.  Kelly then joined the D.C. office of Arnold & Porter, where he had previously worked as a law clerk.  He worked at Arnold & Porter until 2003, other than a one-year stint as a loaned associate to the Legal Aid Society for the District of Columbia and another year clerking for Judge Ronald Buckwalter on the U.S. District Court for the Eastern District of Pennsylvania.

In 2003, Kelly was hired by Roscoe C. Howard to join the U.S. Attorney’s Office for the District of Columbia, eventually moving up to the Major Crimes section of the Criminal Division.  In 2007, Kelly moved to the Department of Justice’s Criminal Division, fighting corruption in the Public Integrity section.

In 2013, Kelly was hired by Sen. Grassley to serve as Counsel and as the Republican Staff Director to the Senate Caucus on International Narcotics Control.  Kelly currently serves as Grassley’s Chief Counsel for National Security and Senior Crime Counsel.

History of the Seat

The seat Kelly has been nominated for opened on May 18, 2016, with Judge Rosemary Collyer’s move to senior status.  On September 6, 2016, President Obama nominated Abid Riaz Qureshi, a litigation partner at Latham & Watkins to fill the vacancy.[1]  Qureshi, who would have been the first Muslim to serve as a federal judge,[2] never received a hearing on his nomination.

Legal Experience

Kelly’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1997-2003, where he worked as an associate at Arnold & Porter.  The second is from 2003-2013, where Kelly worked as a federal prosecutor and DOJ attorney.  The final is from 2013-2017, where Kelly served in the legislative branch.  We will focus on the first two periods.

Kelly’s time at Arnold & Porter was focused on defending pharmaceutical companies against product liability lawsuits.  Kelly served on the legal team defending American Home Products Corp. (Wyeth) in tort lawsuits relating to their sale of diet drugs.  The team ultimately reached a national settlement over the claims during simultaneous state court trials in Mississippi and New Jersey.[3]

As an AUSA, Kelly worked on several trial and appellate level prosecutorial matters, including misdemeanors, violent crimes, and white collar offenses.  For example, Kelly successfully prosecuted a defendant for threatening his former girlfriend with a gun and assaulting her.[4]  Kelly also argued three criminal appeals at the D.C. Court of Appeals.

At the Public Integrity Section, Kelly focused on the investigation and prosecution of political corruption.  Kelly prosecuted Eugenio Pedraza, Special Agent-in-Charge for the Department of Homeland Security, who conspired with fellow agents to falsify investigative reports.[5]  Kelly also successfully prosecuted Donna Scott for steering Department of Energy contracts to her husband.[6]  Notably, Kelly successfully prosecuted the Lt. Governor of the American Samoa, and a senator in the American Samoa legislature for public corruption.[7]

In 2010, Kelly was part of the legal team prosecuting former CIA agent Jeffrey Sterling for his unauthorized disclosure of classified information to journalist James Risen.  Before Sterling’s trial, the prosecution missed a discovery deadline imposed by Judge Leonie Brinkema, submitting key impeachment evidence one day late.  Judge Brinkema sanctioned Kelly and the other government attorneys for the missed deadline by striking two government witnesses.  The Fourth Circuit, in a 2-1 decision, overturned this sanction as an abuse of discretion, noting that the government conduct was not made in bad faith.[8]  Nevertheless, the majority opinion noted that it cannot “condone the Government’s oversight.”[9] 

Political Activity

Kelly, a Republican, has a relatively short record of political activity.  In 2008, Kelly made multiple contributions totalling $1200 to Sen. John McCain (R-AZ) (who was then running for president).[10]  In 2012, Kelly contributed $1250 to Mitt Romney’s presidential candidacy.  Further, in 2014, Kelly traveled to Iowa to canvass and make phone calls for the successful candidacy of Sen. Joni Ernst (R-IA).

Overall Assessment

Kelly has an unusually well-rounded resume for a federal district court position.  Having worked in private practice, as a federal prosecutor, and in the legislative process, Kelly will approach the bench with a broad array of legal experience.  Furthermore, Kelly also has experience working with indigent clients, as he spent a year representing low income residents of Washington D.C. in cases involving public benefits, landlord-tenant, and family law.  

It must also be noted that Kelly’s pre-law school experience is relatively rare for a federal judicial nominee.  Of the nominees we have reviewed, Kelly is the first to have worked two jobs simultaneously, the first to have worked in the service industry, and the first to report having received federal financial aid.[11]  Given the privileged pedigrees of many nominees, Kelly’s background is refreshingly different.

Given these factors, and the lack of any controversial stances in his background (although like most other Trump nominees, Kelly is a longtime member of the Federalist Society), Kelly should face a relatively smooth path to confirmation.  If nothing else, Kelly’s time as a committee staffer should help grease the path.  After all, who knows Kelly better than those who work with him every day.

[1] Press Release, White House, President Obama Nominates Abid Riaz Quereshi to Serve on the United States District Court for the District of Columbia (Sept. 06, 2016) (on file at https://obamawhitehouse.archives.gov).  

[2] Jennifer Bendery, Barack Obama Just Nominated a Muslim to be a Federal Judge.  That’s A First, HuffPost, Sept. 6, 2016, http://www.huffingtonpost.com/entry/obama-muslim-federal-judge_us_57cf2cfbe4b03d2d45970d3a.

[3] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[4] See United States v. Williams, 2006 CF3 025277 (D.C. Super. Ct.) (Judge Dixon).

[5] United States v. Pedraza, No. 1:13-cr-00305 (S.D. Tex.) (Judge Hanen), aff’d, 636 Fed. Appx. 229 (5th Cir. 2016).

[6] United States v. Donna Scott, No. 1:10-cr-00025 (D. Md.) (Judge Messitte).

[7] United States v. Sunia and Lam Yuen, 643 F. Supp. 2d 51 (D.D.C. 2009).

[8] United States v. Sterling, 724 F.3d 482, 512-13 (4th Cir. 2013).

[9] Id. at 512.

[10] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=timothy+kelly (last visited June 27, 2017).  

[11] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.

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Dabney Friedrich – Nominee to the U.S. District Court for the District of Columbia

Dabney Friedrich’s nomination to the U.S. District Court for the District of Columbia was announced by President Trump on May 8, 2017, but was not formally nominated to the Senate until June 7.  While the cause of the delay is unknown, it is unlikely to hinder the well-qualified Friedrich’s path to the bench.

Background

Dabney Langhorne Friedrich was born June 19, 1967.  After receiving her Bachelor of Arts from Trinity University and diploma in legal studies from Oxford University she received her law degree from Yale Law School where she served as the senior editor on the Yale Journal on Regulation.  

Friedrich clerked for Judge Thomas F. Hogan of the United States District Court for the District of Columbia.  She prosecuted criminal cases as an Assistant United States Attorney for the Southern District of California and Eastern District of Virginia, and then served as Chief Crime Counsel to chairman Orrin Hatch of the Senate Judiciary Committee, and Associate White House Counsel to the President during the George W. Bush Administration, where she assisted with the nomination and confirmation of federal judges.

In 2006, George W. Bush appointed Friedrich a Commissioner on the United States Sentencing Commission, the independent agency that issues sentencing guidelines and recommendations for federal judges and congressional review. She was re-nominated to the same position by Barack Obama, and has served on the Sentencing Commission through the recent expiration of her term at the end of 2016.  

History of the Seat

Friedrich was nominated to the vacancy left by Reggie Walton, who assumed senior status on December 31, 2015.  Judge Walton, a George W. Bush appointee was similarly a former prosecutor and was appointed to the National Prison Rape Elimination Commission, where he made recommendations to the President, Congress, and Attorney General regarding methods to curb incidents of rape among the incarcerated.  Judge Walton also served a seven-year term on the Foreign Intelligence Surveillance Court, being elevated to its presiding judge in 2013.  

On April 28, 2016, a few months after the seat opened up, President Obama nominated Judge Florence Pan, a judge on the Superior Court of the District of Columbia to fill the vacancy.  Judge Pan received a hearing before the Republican-controlled Senate Judiciary Committee on July 13, and was unanimously approved on September 15.  However, at that point, Pan ran into Senate Majority Leader Mitch McConnell’s blockade on judicial confirmations, and was ultimately returned unconfirmed.

Legal Background  

While Friedrich has extensive experience with criminal law both as a federal prosecutor, and as chief counsel to Sen. Hatch, it is her work on criminal sentencing that is likely to draw the most interest.  

During her time on the Sentencing Commission, Friedrich has worked to eliminate race-based disparities and establish sentencing uniformity.  In 2011, Friedrich joined the Sentencing Commission’s unanimous decision recommending that prisoners incarcerated for offenses involving crack cocaine be eligible for early release.  Friedrich also voted in favor of giving retroactive effect to the Fair Sentencing Act of 2010, which drastically reduced recommended sentences for crack cocaine crimes, to fix the longstanding disparity in sentencing crack vs. powder cocaine crimes.  This allowed offenders who were imprisoned for crack offenses before the new law took effect to benefit as well.  In media comments about the changes, Friedrich noted that political support for sentencing reform will be accomplished by pressure in Congress to control the costs of the U.S. prison system.[1]  Friedrich has also stressed the importance for national uniformity of sentencing, and the efforts of the Department of Justice to provide consistent supervisory guidance to prosecutors across the country.[2]

Over the past six years, under Friedrich’s tenure, the Commission has taken a number of actions to address sentencing disparities and reduce the federal prison population.  In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge.[3] Some of the most recent work of the Commission has included a unanimous vote to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score, following a May 2016 report by the Commission’s Tribal Issues Advisory Group.[4]  Friedrich’s work on these matters suggests a pragmatic approach to criminal sentencing, which tempers retributive justice with other sentencing goals.

Overall Assessment

With a long and distinguished career in public service, Friedrich has had the opportunity to work on numerous issues that directly affect District Court judges, and her background on the sentencing commission shows that she supports reasonable reforms to sentencing laws aimed at reducing the overpopulation of prisons for drug-related offenses.  

Friedrich’s re-nomination to the Commission by the Obama administration also shows her bi-partisan appeal.  If confirmed – and little suggests that she would be a controversial appointment – she will likely use the same consistent, evidence-based approach to the law that has characterized her work at the Sentencing Commission.  

[2] http://www.reuters.com/article/us-usa-courts-sentences-idUSBREA2C08J20140313

[4] Id.

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Thoughts on Today’s Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing for three of President Trump’s judicial nominees: John Bush, nominated for the Sixth Circuit, Kevin Newsom, nominated for the Eleventh Circuit, and Damien Schiff, nominated for the Court of Federal Claims.  Anyone interested can watch the hearing, but I wanted to offer some preliminary observations.

DISCLAIMER: These are my subjective views.  Obviously, opinions will differ, and I don’t claim to be an authority on confirmation hearings.

  1. It was a Good Day for Kevin Newsom – Early in the hearing, it was clear that Democrats did not particularly care to make a case against Kevin Newsom’s confirmation.  Ranking Member Dianne Feinstein (D-CA) set the tone when she stated that she would not hold the GOP blockade of Judge Abdul Kallon to this seat against Newsom.  For his part, Newsom navigated questions related to substantive due process with ease, charmed senators on both parties, and even offered a moment of genuine emotion during his opening statement when he remembered his late sister.  Some Senators, including Sen. Al Franken (D-MN), didn’t even bother to ask Newsom any questions, while Sen. Richard Blumenthal (D-CT) went out of his way to praise the nominee for his pro bono advocacy of immigrants.  In short, Newsom should feel pretty good about his chances.
  2. It was a Bad Day for John Bush – John Bush went into this hearing having already faced sustained opposition from liberal groups over his blogging and his speeches. He tried to rehabilitate himself early by apologizing for using a racial slur in a previous speech.  However, Democrats largely ignored that particular complaint, instead focusing on his blogging.  Both Sen. Feinstein and Sen. Franken took Bush to task over his writings, focusing on his criticism of Roe v. Wade and his citing of conspiracy theories respectively.  Perhaps Bush’s lowest point came when Sen. John Kennedy (R-LA), whose vote Bush needs to advance, declined to ask him any questions, instead pithily noting: “I’ve read your blog; I’m not impressed.”  A rattled Bush failed to seize on a lifeline offered by Sen. Thom Tillis (R-NC), telling the senator that impartiality as a judge was an “aspiration” rather than an “absolute expectation.”  To make things worse, Newsom stepped in to disagree and state that impartiality was an “absolute expectation” from judges.  Of course, none of this is to say that Bush will not be confirmed.  However, he did not make things any easier for himself.
  3. Nobody Cares About Damien Schiff – Walking into this hearing, Damien Schiff was likely the easiest nominee to oppose, given his inflammatory writing, including his reference to Justice Anthony Kennedy as a “judicial prostitute.”  However, only a handful of senators stayed to question Schiff, and of them, only Sen. Franken seriously questioned Schiff’s blogging.  Schiff’s explanation that the term was intended to criticize the media’s reporting on the Supreme Court (an explanation that falls apart the moment you actually read the entire post) was never challenged. This lack of attention speaks to how little senators (and probably the general public) cares about the court of federal claims.

There are other observations that can no doubt be made, but I will limit myself to those three.  Overall, while the hearing was interesting, it had little that will attract media attention or the anger of the broader public.  For nominees seeking confirmation, that can only be seen as a good thing.

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The Consultation Double-Standard

Let’s compare excerpts from the Senate Judiciary Questionnaires of two judicial nominees:

“In January 2017, I was asked separately by both Congressman Erik Paulsen and Congressman Tom Emmer if I would be interested in being nominated to fill a vacant position on the United States Court of Appeals for the Eighth Circuit.  I indicated I would be interested.  In early February 2017, Congressman Paulsen, Congressman Emmer, and Congressman Jason Lewis sent a letter to the White House recommending that I be nominated for the position.  Each congressman met with me separately.  Also in early February 2017, I corresponded and spoke with an official from the White House Counsel’s Office about the vacancy and my potential interest in the position…”

“There is a commission formed by Senators Baldwin and Johnson to recommend judicial candidates to the Senators.  I applied to that commission and was interviewed on November 18, 2014 in Madison, Wisconsin.  On May 7, 2015, Senator Baldwin asked for my permission to include my name on a list of candidates she sent to the White House for consideration…On October 28, 2015, I interviewed with staff from Senator Johnson’s office in Milwaukee, and on November 5, 2015, I interviewed with Senator Johnson at his office in Washington D.C.”

The first is the description of the judicial nomination process offered by Justice David Stras, nominated for a Minnesota seat on the Eighth Circuit, a state with two Democratic Senators.  The second is a description of the same process offered by Donald Schott, a Wisconsin attorney nominated by President Obama to a seat on the Seventh Circuit (but never confirmed).  At the time, Wisconsin had a Democratic and a Republican Senator.

Let’s look at other examples.  Here is Justice Joan Larsen’s path to a Michigan seat on the Sixth Circuit (Michigan has two Democratic Senators):

“Since March 9, 2017, I have been in contact with officials from the White House Counsel’s Office and the Department of Justice Office of Legal Policy about a potential federal judicial appointment.  On April 27, 2017, I interviewed with White House Counsel Don McGahn in Washington D.C.  On May 8, 2017, the President submitted my nomination to the Senate.”

In comparison, here is the path for Judge Carolyn McHugh, who was nominated by Obama to a Utah seat on the Tenth Circuit (Utah has two Republican Senators):

“In January 2013, I submitted a cover letter and resume to Senator Orrin Hatch and to Congressman Jim Matheson for a possible position on the Tenth Circuit.  On January 16, 2013, I interviewed with Senator Hatch and Senator Mike Lee, and on January 30, 2013, I interviewed with Congressman Jim Matheson.  On February 4, 2013, I was notified by Senator Hatch that he and Senator Lee would be recommending me to the White House for consideration.”  

The contrast is stark.  Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process.  Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.

 

Consultation under Obama

On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.  Specifically, the letter noted:

“The principle of senatorial consultation (or senatorial courtesy)…dates to the Administration of George Washington.  Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications for federal service.”

The letter goes on to state a bright-line rule on judicial nominees:

“…if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators.  For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.  

In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips:

  • Louis Butler – Western District of Wisconsin
  • Elissa Cadish – District of Nevada
  • Alison Lee – District of South Carolina
  • Jennifer May-Parker – Eastern District of North Carolina
  • Arvo Mikkanen – Northern District of Oklahoma
  • Victoria Nourse – Seventh Circuit Court of Appeals
  • Natasha Perdew Silas – Northern District of Georgia
  • Steven Six – Tenth Circuit Court of Appeals
  • William Thomas – Southern District of Florida

When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips.  During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked:

  • Donald Beatty – District of South Carolina
  • Mary Barzee Flores – Southern District of Florida
  • Rebecca Ross Haywood – Third Circuit Court of Appeals
  • Lisabeth Tabor Hughes – Sixth Circuit Court of Appeals
  • Abdul Kallon – Eleventh Circuit Court of Appeals
  • Myra Selby – Seventh Circuit Court of Appeals
  • Dax Erik Shepard – Northern District of Georgia
  • Patricia Timmons-Goodson – Eastern District of North Carolina

 

Consultation under Trump

Under a Trump Administration, Senate Republicans’ dedication to the even-handed application of senatorial courtesy has dimmed.  Rather, some Republicans seem to be ready to trash the “special responsibility” they once defended.

At any rate, such rhetoric may end being just that: rhetoric.  Tradition and principles aside, there are many practical reasons for keeping the blue slip.  Even if Republicans seek to look only at short-term interests, there is one key number to keep in mind: two.  In order words, if all Democrats line up against a nominee, Republicans can only afford to lose two of their own Senators without risking the judge’s confirmation.  While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.  

In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.  If nothing else, it gives the nominees a champion in the convoluted Senate confirmation process.  To use the words of the Senate Republican Conference:

“[Republicans], as a Conference, expect [senatorial consultations] to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not.”

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President Trump Announces Ten New Judicial Nominations

Today, according to the Washington Times, President Trump nominated three judges to the U.S. Court of Appeals.  They are:

Stefanos Bibas, a law professor at the University of Pennsylvania and the director of the University’s Supreme Court Clinic, was nominated to the Third Circuit Court of Appeals.

Judge Ralph Erickson, a federal trial judge on the U.S. District Court for the District of North Dakota, was nominated to the Eighth Circuit Court of Appeals.

Justice Allison Eid of the Colorado Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Tenth Circuit Court of Appeals.

Trump also named three judges to the U.S. District Courts.  They are:

Claria Horn Boom, a Lexington attorney, was nominated to a joint seat on the Eastern and Western Districts of Kentucky.

Timothy J. Kelly, chief counsel to Senate Judiciary Committee Chairman Chuck Grassley, was nominated to the U.S. District Court for the District of Columbia.

Trevor McFadden, a deputy assistant attorney general in the Department of Justice, was nominated to the U.S. District Court for the District of Columbia.

Finally, Trump nominated Stephen S. Schwartz to the U.S. Court of Federal Claims, and Michael P. Allen, Amanda Meredith, & Joseph Toth to the U.S. Court of Appeals for Veterans Claims.

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Professor Amy Coney Barrett – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The Seventh Circuit is known for attracting academics.  Three of its most prominent judges, Richard Posner, Frank Easterbrook, and Diane Wood, served as law professors before being elevated to the bench.  If confirmed, Prof. Amy Coney Barrett will continue that trend.

History of the Seat

Barrett has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened in February 2015 with the retirement of Judge John Daniel Tinder.[1]  Even though Tinder’s plans were leaked almost a year before his actual retirement,[2] the Obama Administration did not submit a nominee to the Senate until January 2016, when Myra Selby, a former justice on the Indiana Supreme Court, was nominated.[3] 

While Selby’s nomination was strongly supported by Sen. Joe Donnelly (D-IN), Sen. Dan Coats (R-IN) opposed the nomination, arguing that the nominee should be selected by a bipartisan commission for the state.[4]  With Coats declining to return a blue slip, the Senate Judiciary Committee did not take any action on Selby’s nomination, and it was returned unconfirmed at the end of the 114th Congress.  As such, the vacancy was left open for Trump to fill.

Background

Barrett was born as Amy Vivian Coney on Jan. 28, 1972 in New Orleans, Louisiana.  After getting a B.A. from Rhodes College, Barrett attended Notre Dame Law School, where she was executive editor of the Notre Dame Law Review.  After graudating from law school, Barrett clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and obtained a prestigious Supreme Court clerkship with Justice Antonin Scalia.  

After her clerkship, Barrett joined the D.C. office of Miller, Cassidy, Larocca & Lewin LLP, which merged into Baker Botts LLP.  While at Baker, Barrett was a part of the legal team representing then-Governor George W. Bush in Bush v. Gore.  

As an attorney at Baker, Barrett started working as an adjunct faculty member at the George Washington University Law School, co-teaching a class with fellow Baker attorney John Elwood (himself a distinguished Supreme Court practitioner).  Shortly after, Barrett joined the Law School as a John H. Olin Fellow in Law.  In 2002, Barrett moved to become a Professor of Law at Notre Dame Law School, her alma mater.  Other than a short stint as a Visiting Associate Professor of Law at the University of Virginia, Barrett has served at Notre Dame ever since.  

In February 2017, Barrett was contacted by the Office of Sen. Todd Young (R-IN), and asked about her interest in a Seventh Circuit opening.  After confirming her interest, Barrett completed an application, met with the Senator, the White House and the Department of Justice.[5]  On May 8, President Trump formally nominated Barrett to the Seventh Circuit.[6]

Legal Practice

Because Barrett has spent the vast majority of her professional life as a law professor, she has relatively little experience in litigation.  During her two years at Baker Botts, Barrett worked on cases in the trial and appellate courts, including the second-chairing of an accounting malpractice case in Virginia state court.[7]  As noted earlier, Barrett was also part of the legal team in Bush v. Gore.  

In 1999, Barrett assisted the appellate counsel for two individuals convicted of conspiracy to defraud several government agencies.[8]  Barrett, working with other attorneys, raised several challenges to the convictions and sentence, including challenges to the sufficiency of the evidence, and the jury instructions.  Ultimately, the Second Circuit affirmed the convictions and the sentences.[9]

In 2000, Barrett was part of the legal team representing the National Council of Resistance of Iran in challenging their designation as a “foreign terrorist organization” by the State Department.[10]  The D.C. Circuit sided with Barrett, holding that the designation violated the Council’s due process rights, reversing and remanding.[11]  The designation was eventually lifted by Secretary of State Hillary Clinton in 2012.[12]

Writings

As a law professor, Barrett has written exhaustively on a range of legal issues, often taking legal positions that call into question established legal doctrines.  For example, in one article, Barrett argues that the traditionally held view of the Supreme Court’s supervisory power over lower courts is flawed.[13]  In her confirmation, Barrett is particularly likely to face questions about her writings challenging the principle of stare decisis.

The legal doctrine of stare decisis is the foundation of a common law system.  The doctrine asks courts to generally follow the precedent made by previous courts, even where a judge may disagree with the previous outcome.  As Justice Louis Brandeis once noted, “it is more important that the applicable rule of law be settled than that it be settled right.”[14]  While stare decisis is not inflexible (Brandeis goes on to note that courts have an obligation to reverse incorrect constitutional rulings),[15] judges generally will follow rulings from previous panels, even where they might have ruled differently.[16]

For her part, Barrett has repeatedly questioned stare decisis, and whether the doctrine should be applied as broadly as it is.  In a 2013 article, Barrett argued that a weakened form of stare decisis in constitutional cases helps promote pluralism on the Supreme Court and mitigates disagreements.[17]

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process, posits that, in many instances, the application of stare decisis violates the due process rights of litigants, as it denies them the opportunity to litigate the merits of their own claim.[18]  Specifically, Barrett argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.[19]  Barrett notes that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.[20]  In other words, as Barrett notes, she suggests using precedent in a way analogous to the way it is used in civil law systems, as a “shortcut” in figuring out how to reach a decision.[21]

Barrett also questions stare decisis in the statutory context in a separate article, where she urges that the doctrine is “an ill fit in the inferior courts.”[22]

Overall Assessment

As an academic, Barrett is paid to push the envelope on legal thought and theory.  While this makes her a prolific and talented writer, it leaves little sign of how she would rule on the bench.  Barrett’s experience in litigation is fairly limited.  By her own admission, Barrett has never tried a case as first chair, never argued an appeal, and never been counsel of record in an appellate case.  This may cause critics to suggest that she is unqualified for the federal bench.

On the other hand, Barrett’s academic credentials are beyond question.  Her clerkships to two legal luminaries, Judge Silberman and Justice Scalia, are enough to put to rest any questions about her legal ability.  While she may lack litigation experience, the Seventh Circuit is full of former academics who have distinguished themselves on the bench.

A bigger question is Barrett’s commitment to following precedent that she disagrees with.  Given her repeated questioning of stare decisis, it is reasonable to expect Senators to explore her willingness to abide by it.  

Another point which may hurt Barrett is her likely status as a future Supreme Court nominee.  Barrett is young (only 45), a woman, and has impeccable academic credentials.  It remains to be seen if Democrats will attempt to handicap her ascent by attacking her appellate confirmation.  

Provided Barrett manages to allay concerns about her experience and her views on precedent, there is little reason to oppose her nomination.  In all likelihood, Barrett will avoid the fate of Myra Selby and be confirmed in due course to the Seventh Circuit.

[1] Dave Stafford, Tinder Departs 7th Circuit, The Indiana Lawyer, July 29, 2015, http://www.theindianalawyer.com/tinder-departs-7th-circuit/PARAMS/article/37799.

[2] Dave Stafford, Judge Tinder’s Retirement Plans Leaked, The Indiana Lawyer, Mar. 12, 2014, http://www.theindianalawyer.com/judge-tinders-retirement-plans-leaked/PARAMS/article/33639.  

[3] Press Release, White House Archives, President Obama Nominates Two to Serve on the United States Court of Appeals (January 12, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).  

[4] Press Release, Office of Sen. Dan Coats, Coats Responds to President’s Nominations for Indiana Judicial Vacancies (Jan. 12, 2016) (on file at www.legistorm.com).  

[5] There are no indications of any meetings or consultations with Sen. Joe Donnelly (D-IN).

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

[7] Tassi Drywall Construction Co., Inc. v. Turner Jones & Assoc., P.C. et al., No. L190384 (Va. Cir. Ct.).

[8] United States v. Berger, 224 F.3d 107 (2d Cir. 2000).

[9] Id. at 111.

[10] Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001).

[11] Id.

[12] Shane Scott, Iranian Dissidents Convince U.S. to Drop Terrorist Label, N.Y. Times, Sept. 21, 2012, http://www.nytimes.com/2012/09/22/world/middleeast/iranian-opposition-group-mek-wins-removal-from-us-terrorist-list.html.

[13] Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006).

[14] Burnet v. Coronodo Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).

[15] Id. at 407.

[16] See, e.g., United States Inter. Revenue Serv. v. Osborne, 76 F.3d 306 (9th Cir. 1996).  

[17] Amy Coney Barrett, Symposium: Constitutional Foundation: Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1737 (2013).

[18] Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).

[19] See id. at 1035.

[20] Id. at 1074 (“To the extent, however, that precedent is well-established in a court of appeals, it is unlikely that many litigants would press for overruling it, even with a flexible system of stare decisis in place.”).

[21] Id. at 1069.

[22] Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 351 (2005).

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Damien M. Schiff – Nominee to the U.S. Court of Federal Claims

Among the ten nominees that Trump jointly named on May 8, Damien Schiff stands out for his relative youth.  Schiff is only thirteen years out of law school, and has spent virtually his entire legal career in one position: working for the libertarian Pacific Legal Foundation.  Even though Schiff has not been named to a lifetime appointment, his youth, in addition to his political background, and some inflammatory writings, may create resistance to his nomination.

Background

Damien Michael Hennessy Schiff was born in San Jose, California in 1979.  After getting a B.A. from Georgetown University and a J.D. from the University of San Diego Law School, Schiff clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.  

After his clerkship, Schiff joined the Pacific Legal Foundation as a staff attorney.  Other than a brief stint as counsel at Alston & Bird LLP., he has worked at the Pacific Legal Foundation ever since, becoming a Senior Staff Attorney in 2011, a Principal Attorney in 2012, and a Senior Attorney in 2017.  

In February 2017, Schiff reached out to the White House Counsel’s Office, indicating his interest in an appointment to the Court of Federal Claims.  After follow-up interviews with the Counsel’s Office and the Department of Justice, Schiff was nominated on May 8, 2017.[1]

History of the Seat

Schiff has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges are appointed for 15-year terms.  The seat Schiff was nominated for opened up in August 2013, with the retirement of Judge George W. Miller.  On May 14, 2014, Jeri Kaylene Somers, a judge on the Civilian Board of Contract Appeals was nominated for the vacancy by President Obama.[2]  In February 2015, Somers and four other nominees to the Court were approved by the GOP-led Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[3]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant at the inauguration of the Trump Administration.[4]   Schiff is the first nominee Trump has put forward for the CFC.

Legal Experience

From 2005 to 2017, Schiff served as an attorney for the Pacific Legal Foundation, a public interest law firm that litigates cases involving public interest takings, property rights, and environmental regulation.  Schiff focused most of his career on the latter, litigating and advocating against environmental regulations.

Schiff was the counsel of record in Sackett v. EPA, a case clarifying whether compliance orders issued by the EPA were subject to judicial review under the Administrative Procedure Act.[5]  The Sacketts, an Idaho couple, were issued a compliance order under the Clean Water Act by the EPA, for filling in wetlands to build a home.  The Sacketts sought to challenge the jurisdictional basis of the compliance order, but were ruled against by the trial court and the Ninth Circuit.  The Supreme Court, in an opinion by Justice Scalia, unanimously reversed, holding that the Sacketts had the right to challenge the compliance orders.[6]

Schiff has represented both governmental and business plaintiffs in challenging state and federal environmental regulations.  Schiff unsuccessfully argued to overturn a veto by the Bush EPA of a proposed flood control project that would lead to the discharge of pollutants.[7]   Schiff also unsuccessfully challenged the EPA’s designation of critical habitat for 18 vernal pool species.[8]  He also unsuccessfully challenged California’s designation of two salmon species as endangered.[9]

While the bulk of Schiff’s legal experience has been focused on environmental law, he also successfully challenged a local campaign finance initiative that banned non-local corporations from spending money in county elections.[10]

Speeches and Writings

From 2007-2009, Schiff maintained a personal blog titled Omnia Omnibus.  In this forum, Schiff discussed his views on public policy, politics, and the law, generally from a religious lens.  For example, in one post, Schiff suggests that, for Catholic voters, a candidate’s view on abortion should generally trump other social and moral issues.[11]  In another, Schiff describes the nomination of the Catholic (but pro-choice) Tom Daschle to be Secretary for Health and Human Services as a “poke in the eye to the [Catholic] bishops.”[12] 

The blog also lays out many strongly religious political views.  In one post, Schiff defends the right of Catholic universities to ban pro-choice speakers and viewpoints from campus.[13]  In another, Schiff argues that public schools should not teach students that homosexual families are the “moral equivalent of heterosexual families.”[14]  In this post, Schiff goes on to state that he would have objected to the teaching of an anti-racism curriculum in 1950s Arkansas.[15]  He goes onto advocate allowing parents to stop paying taxes to public schools, noting: “Why should folks have to pay for somebody else’s education, or for facilities that they themselves do not use?”[16]

One of Schiff’s blog posts has already drawn significant attention in the media.  In a blog post from June 29, 2007, Schiff describes Supreme Court Justice Anthony Kennedy as a “judicial prostitute.”[17]  While the language was used in criticism of Kennedy’s swing-vote status, its intemperate wording has already drawn criticism from liberal groups.[18]

Overall Assessment

If Schiff had been named to a lifetime appointment, rather than to the CFC, his writings and background would have guaranteed an explosive confirmation fight.  In fact, given the blue slip rules, it is unlikely Schiff would have been approved to a seat on the federal bench in California (where he resides).  Given the CFC’s limited jurisdiction, it is possible that Senate Democrats may choose to save their powder, and focus on fighting Article III appointments.  

That being said, Schiff’s confirmation to the CFC could nonetheless open up a lifetime appointment.  Judge Alex Kozinski of the Ninth Circuit and former Judge Randall Rader of the Federal Circuit both served as CFC judges before their appellate appointments.  At 38, Schiff is young enough to be elevated in a few years to an appellate court, and potentially even further.  

As such, it is incumbent on the Senate Judiciary Committee to carefully probe Schiff’s writings, and ensure that his strongly held political views would not affect his rulings as a judge.  It also falls upon Schiff to clarify some of the more aggressive opinions he has taken, particularly his reference to Justice Kennedy as a “judicial prostitute.”  After all, every litigant, regardless of whether they are before the Supreme Court, or the CFC, deserves an impartial and qualified judge.

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

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

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

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

[5] Sackett v. EPA, 132 S. Ct. 1367 (2012).

[6] Id.

[7] Bd. of Miss. Levee Comm’rs. v. EPA, 674 F.3d 409 (5th Cir. 2012).

[8] Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010).

[9] Cal. Forestry Ass’n v. Cal. Fish & Game Comm’n, 68 Cal. Rptr. 3d 391 (2007).

[10] Mercer, Fraser Co. v. County of Humboldt et al., No. C 08-4098, 2008 WL 4344523 (N.D. Cal. Sept. 22, 2008).

[11] Damien Schiff, Chaput on Obama, Omnia Omnibus, Oct. 20, 2008, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-Attachments-Final-1511.pdf.

[12] Damien Schiff, Daschle at HHS?, Omnia Omnibus, Nov. 19, 2008, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-Attachments-Final-1503.pdf.

[13] Damien Schiff, Unknown Title, Omnia Omnibus, Unknown Date, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-1487-1488.pdf.

[14] Damien Schiff, Teaching “Gayness” in Public Schools, Omnia Omnibus, May 17, 2009, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-1487-1488.pdf.

[15] Id. (“…not that I approve of racism, but that, as a prudential matter, the best way to get people to drop their racist views would not be to force the teaching of their children.”) (emphasis in original).

[16] Id.

[17] Seung Min Kim, Trump Nominee Called Kennedy Judicial Prostitute, Politico, May 26, 2017, http://www.politico.com/story/2017/05/26/trump-judicial-nominee-justice-kennedy-slight-damien-schiff-238874.

[18] Id. (Quoting Nan Aron) (“Mr. Schiff clearly lacks the judicial temperament necessary to be a judge…”).

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