Claria Horn Boom – Nominee to the U.S. District Court for the Eastern District of Kentucky & the U.S. District Court for the Western District of Kentucky

Claria Horn Boom has a relatively low profile for a federal judicial candidate.  Unlike other nominees put forward by the Trump Administration, Horn Boom hasn’t written extensively on her judicial philosophy, participated in the conservative legal movement, or built a strong litigation record.  In a confirmation process often marred by controversy, Horn Boom’s lack of a paper trail may serve her well.  However, it makes it difficult for litigants to anticipate the type of judge she will be.

Background

A native Kentuckyian, Horn Boom grew up in a Republican family in a small town in East Kentucky, where her mother served as county clerk for Martin County.[1]  Horn Boom attended Transylvania University in Lexington, graduating summa cum laude in 1991.  Horn Boom then attended Vanderbilt University Law School, graduating in 1994 with the Order of the Coif.  Horn Boom went on to clerk for Judge Pierce Lively on the U.S. Court of Appeals for the Sixth Circuit.

In 1995, Horn Boom joined the Atlanta office of King & Spalding, focusing on product liability and tort cases.  In 1998, Horn Boom returned to Kentucky as a federal prosecutor, focusing on the prosecution of financial crimes.  In 2005, Horn Boom became the first executive director of the Kentucky Equine Education Project, which advocates for the horse industry.[2]

In 2006, Horn Boom joined the Lexington office of Frost, Brown, Todd LLC., one of the largest midwestern law firms.  As a partner, Horn Boom focuses on advising businesses and financial institutions on matters, including real estate, regulations and litigation.

History of the Seat

Horn Boom has been nominated to a shared seat for the U.S. District Courts for the Eastern District of Kentucky and the Western District of Kentucky.  This seat opened on January 8, 2013, with the retirement of Clinton appointee Judge Jennifer Coffman.  While Coffman’s retirement was announced in 2012,[3] President Obama never sent a nominee to the Senate for the vacancy.  While the exact reason for the nominee is unclear, it is likely that Obama was unable to agree on a nominee with Kentucky Senators Mitch McConnell and Rand Paul.  The Obama Administration did vet Courtney Baxter, a commonwealth’s attorney in Eastern Kentucky, and a Republican, for the vacancy, but ultimately decided against nominating her.[4]

Horn Boom’s name was first floated for the vacancy early in the Trump Presidency.[5]  She was ultimately nominated for the seat on June 7, 2017.

Legal Experience

Horn Boom has spent the majority of her legal career focused on advising and defending corporations and financial institutions.  As an associate at King & Spalding, however, Horn Boom represented General Motors in successfully defending a consent agreement granting the corporation credits against future taxes.[6]  Similarly, as a partner in Lexington, Horn Boom successfully defended Central Bank against a suit alleging violations of the Right to Financial Privacy Act.[7]  Horn Boom also helped implement a “$90 million acquisition of coal terminals and coal mines in Kentucky, Virginia, and West Virginia.”[8]

During her time as an AUSA, Horn Boom worked on financial crimes, including the prosecution of Gary Douglas Burks for a kickback scheme involving defense contracts.[9]  Horn Boom also successfully argued that the U.S. Attorney’s Office was not required to recuse itself in a case where the defendant had been represented by the newly appointed U.S. Attorney in his previous capacity.[10]

Political Activity

Horn Boom, who comes from a Republican family,[11] has a record of support for Republican candidates.[12]  Between 2001 and 2016, Horn Boom has donated approximately $4900 to Kentucky Republicans, including $1450 to McConnell and $1000 to Paul.[13]  Horn Boom also retweeted a message in support of Rep. Ryan Zinke’s candidacy for Secretary of the Interior.[14]

Overall Assessment

Unlike almost every other Trump judicial nomination, Horn Boom had a minority of ABA Standing Committee rate her “Not Qualified” for a federal judgeship.[15]  Typically, such ratings reflect either the relative youth of the candidate, lack of relevant experience, or ethical and temperament issues.  As Horn Boom is in her late 40s, and doesn’t seem to have any major ethical issues, it is possible that the low rating is based on Horn Boom’s focus on transactional law rather than litigation in the federal courts.

While Horn Boom has practiced as a federal prosecutor for several years, a search of both Westlaw and LexisNexis yields only a handful of cases where she is the counsel of record.  Furthermore, even her official profile at Frost Brown & Todd suggests that her primary expertise is in transactional law, not litigation.[16]

None of this suggests that Horn Boom is unqualified for the bench, or that she should not be confirmed.  Horn Boom is, by all accounts, an intelligent and non-ideological candidate.  Nevertheless, it is the responsibility of the Senate Judiciary Committee to probe Horn Boom’s background and judicial philosophy before voting to confirm.


[1] Andrew Wolfson, Two Women in Line for Federal Bench in Kentucky, Which Now Only Has One Female Judge out of 13, The Courier-Journal, May 9, 2017, http://www.courier-journal.com/story/news/2017/05/09/two-women-line-federal-bench-kentucky-which-now-only-has-one-female-judge-out-13/314847001/.

[2] See id.

[3] Jennifer Hewlett, U.S. District Judge Jennifer Coffman to Retire from the Bench, Lexington Herald Leader, March 7, 2012, http://www.kentucky.com/news/local/crime/article44159211.html.  

[4] See Andrew Wolfson, Baxter Being Vetted for Federal Bench, Clerk Says, The Courier-Journal, April 15, 2014, http://www.courier-journal.com/story/news/politics/2014/04/15/baxter-vetted-federal-bench-clerk-says/7755619/.

[5] See Wolfson, supra n. 1.

[6] See Fulton Cnty. Tax. Comm’r. v. General Motors Corp., 507 S.E.2d 772 (Ga. App. 1998).

[7] See Coffman v. Centr. Bank & Trust Co., 2012 U.S. Dist. LEXIS 136757 (E.D. Ky., Sept. 25, 2012).

[9] See United States v. Burks, 2001 U.S. Dist. LEXIS 24481 at *18 n.10 (W.D. Ky. Aug. 10, 2001). See also Former Executive Admits Role in Kickback Scheme, The Courier-Journal, July 1, 2000, https://www.newspapers.com/newspage/110487250/.  

[10] See United States v. Huff, 2002 U.S. Dist. LEXIS 15480 (W.D. Ky. Aug. 13, 2002).

[11] See Wolfson, supra n. 1.

[13] See id.

[15] See ABA Standing Committee on the Federal Judiciary, Ratings of Article III and Article IV Judicial Nominees, 115th Cong., https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.authcheckdam.pdf.

Stephen S. Schwartz – Nominee to the U.S. Court of Federal Claims

Two months ago, I wrote on Damien Schiff, a nominee for the Court of Federal Claims (CFC).  Specifically, I called out Schiff’s youth, noting that he was only 38, and had spent less than thirteen years in practice.  Steven S. Schwartz, Trump’s second nominee for the CFC, has even less experience, having been out of law school for less than ten years.  

Background

Stephen S. Schwartz received a B.A. with Distinction from Yale University in 2005, and immediately proceeded to the University of Chicago Law School, graduating with a J.D. in 2008.[1]  After graduating, Schwartz clerked for conservative Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.

After his clerkship, Schwartz joined the Washington D.C. Office of Kirkland and Ellis as a litigation associate.  After five years there, Schwartz was hired as Counsel at Cause of Action, a public interest law firm focused on FOIA and administrative law suits against the federal government.  

In November 2016, Schwartz left Cause of Action to become a partner at Schaerr Duncan LLP., a D.C> Boutique Litigation firm, that, among other matters, represented Sen. Ted Cruz in the challenge to his eligibility to run for president.  

History of the Seat

Schwartz 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 on October 21, 2013, with Judge Lynn Bush’s move to senior status.  On April 10, 2014, Thomas Halkowski, a Principal in the Delaware office of Fish & Richardson, P.C. was nominated for the vacancy by President Obama.[2]  Halkowski and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[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.[4]

Legal Experience

From 2009 to 2015, Schwartz served as a litigation associate at Kirkland & Ellis.  In this capacity, Schwartz represented large companies in trials and appeals in federal court.  For example, Schwartz was part of the legal team for UBS Securities LLC in a case involving alleged violations of the Georgia Racketeering Influenced and Corrupt Organizations Act.[5]  Schwartz also joined noted advocate Christopher Landau in an unsuccessful appeal of a jury award against Avis Budget Group Inc.[6]

In 2015, Schwartz moved to Cause of Action, challenging agency determinations that he considered abuses of discretion. During the transition, Schwartz was part of the legal team challenging FDA interpretations of exclusivity rights on behalf of pharmaceutical companies.[7]  He also represented a franchise charged with wage and hour violations by the Department of Labor.[8]

Overall Assessment

Like Damien Schiff before him, Schwartz comes from a background of legal resistance to agency determinations.  However, unlike Schiff, Schwartz does not have a long record of inflammatory blog posts.  As such, it is unlikely that Schwartz’s nomination will attract the same intensity of opposition that Schiff has.  If opposition gathers, it will be based on his youth and inexperience, rather than his political opinions.


[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] See Raser Tech. Inc. v. Morgan Stanley & Co. LLC., 2012 U.S. Dist. LEXIS 189209 (N.D. Ga. Oct. 30, 2012).

[6] Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709 F.3d 872 (9th Cir. 2013).

[7] Mylan Pharmaceuticals, Inc. v. United States Food & Drug Admin., 23 F. Supp. 3d 631 (N.D.W.V. 2014), rev’d, 594 Fed. Appx. 791 (4th Cir. 2014).  

[8] Rhea Lana, Inc. & Rhea Lana’s Franchise Systems Inc. v. Dep’t of Labor, 824 F.3d 1023 (D.C. Cir. 2016).

Judge Ralph Erickson – Nominee to the U.S. Court of Appeals for the Eighth Circuit

Judge Ralph Erickson has served on the bench in some capacity for 24 years, and has served as a federal trial judge for 14 of those years.  As such, he is a fairly experienced and safe choice by the Trump Administration for the Eighth Circuit.

Background

Ralph Robert Erickson was born in in the small town of Thief River Falls, Minnesota in 1959.  After getting a B.A. at Jamestown College (now the University of Jamestown), Erickson attended the University of North Dakota School of Law, graduating with distinction in 1984.  After graduating, Erickson was hired as an associate at Ohnstad Twichell P.C., working on family law and municipal court matters.  Alongside that position, Erickson also served as a prosecutor for the cities of West Fargo and Riverside, North Dakota.

In 1992, Erickson left these positions to run for a seat in the North Dakota state legislature while setting up a private practice.  Erickson lost the race for a seat in the North Dakota House of Representatives, but was appointed as a County Magistrate a year later.  In 1994, Erickson was appointed as a County Judge for a four county district, and in 1995, he became a District Judge for the East Central Judicial District, based in Fargo.

In September 2002, Erickson, then 43, was nominated by President George W. Bush for a lifetime appointment on the U.S. District Court for the District of North Dakota.  Erickson was unanimously confirmed by the U.S. Senate on March 12, 2003.[1]  Erickson currently serves in that capacity.

Erickson has often spoken out about his personal struggles with alcohol.  In a 2007 interview with the University of North Dakota Law School, Erickson described overcoming alcoholism as “one of his greatest strengths.”[2]  He specifically noted:

“I have an insight into personal failures that I would not have if I had not had this particular problem, and as a judge it allows me to refrain from judging other people.”[3]

Erickson is also a frequent speaker at Alcoholics Anonymous, assisting others with finding sobriety.

History of the Seat

Erickson was tapped for a North Dakota seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat was vacated by Judge Kermit Edward Bye, an appointee of President Bill Clinton.  Bye moved to senior status on April 22, 2015, and President Obama nominated Jennifer Klemetsrud Puhl, a federal prosecutor, to fill the vacancy.[4]  Puhl, who had the support of Sen. Heidi Heitkamp (D-ND) and Sen. John Hoeven (R-ND), received a hearing on June 21, 2016,[5] and was unanimously moved to the floor on July 14, 2016.  However, Puhl’s nomination ran into a blockade on confirmations imposed by Senate Majority Leader Mitch McConnell (R-KY), and was never confirmed.

In December 2016, Erickson contacted Hoeven and Heitkamp expressing his interest in the vacancy.  After interviewing with the White House Counsel’s Office and the Department of Justice, Erickson was formally nominated on June 7, 2017.[6]  Like Puhl, Erickson has the support of both Hoeven and Heitkamp.[7]

Political Activity

Before becoming a judge, Erickson was fairly active in the North Dakota Republican Party.  In addition to donating to the party,[8] Erickson served as an Executive Committee member, a Precinct Chair, and a member of the State Republican Committee at various times.  He ceased participation in such roles upon his selection as a judge.

Legal Career

Before becoming a judge, Erickson worked as a part-time prosecutor, prosecuting small traffic and misdemeanor cases between 1984 and 1991.  Erickson also practiced family law and landlord tenant matters, trying approximately thirty five cases.  During this time, Erickson handled the unsuccessful appeal of a construction worker who suffered a heart attack due to workplace stress.[9]  The North Dakota Supreme Court ruled against Erickson’s client 3-2.  Erickson also represented personal injury plaintiffs, including a senior citizen who was struck by a fully loaded luggage cart while on a bus tour of New England,[10] and a single father who was struck by a pickup truck while riding his motorcycle.[11]

Jurisprudence

Erickson has served as a federal trial judge for approximately fourteen years.  During this time, he has established a reputation as a fair, middle of the road judge.[12]  A look at the 500+ orders and decisions Erickson has handed down suggests certain patterns:

Deference to Jury Determinations of Facts

While many federal judges continue to use summary judgment to maintain control of their dockets, Erickson has shown an unwillingness to decide factual disputes reserved for the jury.  As such, he has frequently denied summary judgment on motions of both plaintiffs[13] and defendants.[14]  In one case, Erickson notes

“The parties have not had an opportunity to conduct discovery with regard to any of the claims; therefore, summary judgment is premature as to all claims.”[15]

Similarly, Erickson is generally deferential to jury verdicts, regardless of whether they support the plaintiff or the defendant.  In one case, Erickson rejected a defendant’s motion to overturn a jury verdict for the plaintiff, noting that the verdict was “reasonable based on the substantial evidence provided at trial.”[16]

Narrow Enforcement of Criminal Procedural Protections

While Erickson has generally ruled against criminal defendants raising Fourth, Fifth, and Sixth Amendment claims, he has, under narrow circumstances, shown a willingness to support their claims.  

While sitting by designation on the Eighth Circuit, Erickson held that a defendant’s rights were not violated where he was committed for a mental competency evaluation without being present at the hearing.[17]  Specifically, Erickson noted that while the decision could constitute a trial error, such error was harmless.[18]

However, in another case, Erickson ruled in favor of a defendant seeking to avoid having his request for a lawyer used as an inference of guilt.[19] 

Similarly, while Erickson has generally rejected motions to suppress based on Fourth Amendment violations,[20] he suppressed evidence in a case where the defendant’s consent to search her hotel room was coerced.[21]

Willingness to Reverse Criminal Convictions

While Erickson has affirmed most challenges to criminal convictions before him,[23] he has also shown a willingness to overturn convictions obtained through violations of defendants’ rights.

For example, in one case, Erickson found that a defendant had been convicted despite the failure of the government to provide appropriate Brady evidence.[24] 

Perhaps no case better demonstrates Erickson’s willingness to overturn convictions than U.S. v. Williams.  Alphonso Williams was convicted of participating in a drug trafficking conspiracy despite the fact that “Williams was never seen selling drugs… buying drugs…using drugs…[or] discussing drugs.”[25]  In granting Williams’ motion for acquittal, Erickson describes a jury process that was tainted by race, noting that this was “a trial so tainted and a result so perverse that to allow the verdict to stand would render all of us insecure as citizens.”[26]  Erickson also lambasts his own role as trial judge, stating:

“Rulings that I made and oversight I failed to provide created an atmosphere in which a jury was simply unable to avoid an elephant in the courtroom—an elephant that should never have been allowed in the first place. Had the court made the correct rulings and had the court provided appropriate instructions and guidance, I have no doubt the verdict would have been different.”[27]

Ultimately, Erickson’s decision was partially reversed by the Eighth Circuit.[28]

Reversals

In the fourteen years he has been a federal judge, Erickson has been reversed approximately thirty times, a reasonable rate of reversal.  Many of these have reversed Erickson’s rulings in favor of criminal defendants,[29] although a handful of reversals are based on errors that prejudiced defendants.[30]  Notably, the Eighth Circuit reversed Erickson’s granting of a judgment of acquittal in Williams, although it affirmed his decision to grant Williams a new trial.[31]   

In one key case, Erickson found that police officers who shot a suicidal man were not entitled to qualified immunity, as there was a genuine dispute of material fact involving their actions.[32]  However, the Eighth Circuit reversed, holding that, based on the facts of the case, the officers’ actions were objectively reasonable.[33]

Judicial Controversies

Of the 500+ plus cases that Erickson has presided over, three in particular are likely to draw attention:

United States v. Rodriguez

Rodriguez was the first death penalty trial in North Dakota since 1913.  The defendant was charged with kidnapping, sexually assaulting, and murdering Dru Sjodin.  Erickson managed both the trial and penalty proceedings, ultimately sentencing Rodriguez to the death penalty.[34]

Erickson’s decision was appealed to the Eighth Circuit, who affirmed the death sentence.[35]  However, Judge Melloy dissented, arguing that improper arguments by the prosecutors during the penalty trials required reversal of the death sentence.[36] 

North Dakota v. EPA

This case involved a challenge to an Environmental Protection Agency (EPA) Rule that broadened the definition of “Waters of the United States” under the Clean Water Act to ensure that small streams and wetlands were also protected.[37]  Erickson found that the EPA’s rule was “arbitrary and capricious” and violated the Administrative Procedure Act (APA).[38]

Erickson’s ruling drew sharp criticism at the time,[39] and may be revived to suggest a prejudice against environmental groups.

United States v. Martinez

In this case, Erickson’s conduct was called into question by a defendant he sentenced.  Erickson sentenced Martinez to life in prison after his guilty plea on a trial involving a cartel killing.  However, Martinez challenged the sentence, arguing that his attorney, Thomas Dickson, and Erickson had an improper social relationship, and that Dickson had assured him that Erickson would give him a lower sentence.

After an evidentiary hearing, Judge Jeffrey Viken rejected Martinez’s claims and found that “no improper out-of-court or social relationship existed between Judge Erickson and Mr. Dickson and that they never discussed Mr. Martinez’s plea options outside of the record.”[40]

Overall Assessment

Erickson represents the kind of nominee Trump should nominate more often: experienced, well-respected, and judicially moderate.  With the exception of the rulings highlighted above, it is unlikely that any of Erickson’s judicial conduct will draw scrutiny.  Additionally, given Sen. Heitkamp’s strong support, it is likely that Erickson will be swiftly confirmed.


[1] Jeff Zent, Senate Confirms Confirms as Judge, Inforum, Mar. 14, 2003, http://www.inforum.com/content/senate-confirms-confirms-judge.

[2] The University of North Dakota School of Law, The Case of a Lifetime, UND Law, Summer 2007, 4, 7, https://law.und.edu/_files/docs/alumni/pdf/nd-law/07nd-law02.pdf.

[3] 

[4] Press Release, The White House Archives, President Obama Nominates Jennifer Klemetsrud Puhl to Serve on the United States Court of Appeals (Jan. 28, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office/2016/01/29/president-obama-nominates-jennifer-klemetsrud-puhl-serve-united-states).

[5] Patrick Springer, Senate Hearing Friendly for Appointment to Replace Fargo-Based Appeals Judge, The Bismarck Tribune, June 21, 2016, http://bismarcktribune.com/news/state-and-regional/senate-hearing-friendly-for-appointment-to-replace-fargo-based-appeals/article_5155ec6c-fe6e-5445-910a-6816105c8f51.html.

[6] AP, North Dakota Federal Judge Nominated for Appeals Court, US News, June 7, 2017, https://www.usnews.com/news/best-states/north-dakota/articles/2017-06-07/north-dakota-federal-judge-nominated-for-appeals-court.  

[7] See id.  See also Press Release, Office of Sen. Heidi Heitkamp, Heitkamp Statement on Nomination of Ralph Erickson to Serve as Judge on 8th Circuit Court of Appeals (June 7, 2017) (on file at https://www.heitkamp.senate.gov/public/index.cfm/2017/6/heitkamp-statement-on-nomination-of-ralph-erickson-to-serve-as-judge-on-8th-circuit-court-of-appeals).

[9] See Grace v. North Dakota Workers Comp. Bureau, 395 N.W.2d 576 (N.D. 1986).

[10] Sellie v. North Dakota Ins. Guaranty Assoc., 494 N.W.2d 151 (N.D. 1992).

[11] In re the Matter of Kyle Smith, 119 B.R. 714 (Bankr. D.N.D. 1990).

[12] See Patrick Springer, Trump Nominates U.S. District Judge in Fargo to Federal Appeals Court, The Bismarck Tribune, June 9, 2017, http://bismarcktribune.com/news/state-and-regional/trump-nominates-u-s-district-court-judge-in-fargo-to/article_401fa1b0-5d60-5ad5-a2c2-0b39d7675640.html (quoting Prof. Carl Tobias) (“[Erickson] enjoys a reputation for being a fair, mainstream jurist who possesses great judicial temperament.”).

[13] See, e.g., Associated Potato Growers, Inc. v. BNSF Ry. Co., corporation, No. 2:15-CV-11, 2016 WL 7495845, at *1 (D.N.D. May 12, 2016); Tioga Townhomes, LLC v. Auto-Owners Ins. Co., No. 4:14-CV-99, 2016 WL 7507792, at *1 (D.N.D. Jan. 4, 2016).

[14] See, e.g., Ewina v. Basic Energy Servs., Inc., No. 4:14-CV-157, 2016 WL 4717985, at *1 (D.N.D. Sept. 9, 2016); BNSF Ry. Co. v. Progress Rail Servs. Corp., No. 3:13-CV-80, 2016 WL 7496873, at *1 (D.N.D. Aug. 16, 2016); Max Bancorp, LLC v. Nat’l Bank of Harvey, No. 4:14-CV-152, 2016 WL 7496899, at *1 (D.N.D. May 25, 2016); Korinek v. FlexTM, Inc., No. 3:14-CV-74, 2015 WL 12591730, at *1 (D.N.D. Mar. 2, 2015).

[15] A & R Fugleberg Farms, Inc. v. Triangle Ag, LLC, No. 3:09-CV-07, 2010 WL 1418870, at *1 (D.N.D. Apr. 7, 2010).  

[16] Energy Heating, LLC v. Heat On-The-Fly, LLC, No. 4:13-CV-10, 2016 WL 3762697, at *1 (D.N.D. Mar. 4, 2016).

[17] United States v. Zavesky, 839 F.3d 688, 691 (8th Cir. 2016), cert. denied, 137 S. Ct. 1388, 197 L. Ed. 2d 565 (2017).

[18] See id. at 694-95.

[19] United States v. Garcia, No. 4:13-CR-207, 2015 WL 13229566, at *1 (D.N.D. Apr. 14, 2015).

[20] See United States v. Trotter, No. 2:14-CR-96, 2015 WL 13101987, at *1 (D.N.D. Mar. 4, 2015); United States v. Brown, No. 2:11-CR-84, 2011 WL 13130436, at *2 (D.N.D. Oct. 25, 2011); United States v. Hager, No. 3:11-CR-11, 2011 WL 3862072, at *1 (D.N.D. Aug. 31, 2011), aff’d, 710 F.3d 830 (8th Cir. 2013).

[21] United States v. Quintero, No. 3:10-CR-51, 2010 WL 3522251, at *1 (D.N.D. Sept. 8, 2010), aff’d, 648 F.3d 660 (8th Cir. 2011).

[22] State of Minn. v. Obeta, 796 N.W.2d 282 (Minn. 2011) (Stras, J., dissenting).

[23] See, e.g., United States v. Banks, No. 2:11-CR-4, 2015 WL 12723043, at *1 (D.N.D. July 30, 2015); United States v. Trotter, No. 2:14-CR-96-02, 2015 WL 13101986, at *1 (D.N.D. Apr. 21, 2015); United States v. Bagola, No. 2:12-CR-63, 2013 WL 11322598, at *6 (D.N.D. Dec. 5, 2013), aff’d, 796 F.3d 903 (8th Cir. 2015); United States of Am. Plaintiff, v. Jonathan Jason McClarin, a/k/a Jay Defendant., No. 3:09-CR-155-3, 2012 WL 12966187, at *1 (D.N.D. June 28, 2012); United States v. Garrett, 648 F.3d 618, 621 (8th Cir. 2011).

[24] Cvijanovich v. United States, No. 3:07-CR-55, 2011 WL 2680485, at *11 (D.N.D. July 8, 2011).

[25] United States v. Williams, No. 3:09-CR-55-02, 2010 WL 9137843, at *2 (D.N.D. Jan. 22, 2010).

[26] Id. at *1.

[27] Id. at *1.

[28] United States v. Williams, 647 F.3d 855 (8th Cir. 2011).

[29] See Davis v. United States, No. 12-cr-109, Doc. No. 243 (D.N.D. Mar. 30, 2016), rev’d, __ F.3d __, 2017 WL 2295789 (8th Cir. 2017); Taylor v. United States, No. 3:09-cr-69, Doc. No. 723 (D.N.D. Jan. 30, 2014), rev’d, 792 F.3d 865 (8th Cir. 2015); United States v. Cavanaugh, 680 F. Supp. 2d 1062, 1077 (D.N.D. 2009), rev’d, 643 F.3d 592 (8th Cir. 2011)

[30] See, e.g., United States v. Robertson, No. 08-cr-62, Doc. No. 65 (D.N.D. Feb. 18, 2009), rev’d, 606 F.3d 943 (8th Cir. 2010); United States v. Chalupnick, No. 06-cr-94, Doc. No. 23 (D.N.D. Feb. 5, 2007), rev’d, 514 F.3d 748 (8th Cir. 2008).

[31] See United States v. Williams, 647 F.3d 855 (8th Cir. 2011).

[32] Partlow v. Stadler, No. 3:12-CV-80, 2014 WL 12059001, at *5 (D.N.D. Jan. 22, 2014), rev’d, 774 F.3d 497 (8th Cir. 2014).  

[33] See 774 F.3d 497 (8th Cir. 2014).

[34] United States v. Rodriguez, 581 F.3d 775, 784 (8th Cir. 2009).

[35] See id. at 783.

[36] Id. at 816 (Melloy, J., concurring in part and dissenting in part).

[37] North Dakota v. U.S. E.P.A., 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015).

[38] See id. 

[39] Samantha Page, Judge Steps in at the Last Minute to Block EPA, Heroically Saves America from Clean Water, ThinkProgress, Aug. 28, 2015, https://thinkprogress.org/judge-steps-in-at-last-minute-to-block-epa-heroically-saves-america-from-clean-water-3de1d55fd473.

[40] United States v. Martinez, No. 3:06-CR-14-17, 2017 WL 944188, at *7 (D.N.D. Mar. 8, 2017).

Justice David R. Stras – Nominee to the U.S. Court of Appeals for the Eighth Circuit

At 43 years old, Justice David Stras is the youngest appellate nominee put forward by the Trump Administration.  Despite his youth, Stras, who has spent seven years on the Minnesota Supreme Court, has both the academic and judicial qualifications for the job.  However, the Trump Administration’s failure, once again, to preclear Stras’ nomination with Minnesota’s senators could jeopardize a comfortable confirmation.

Background

David Ryan Stras was born in Wichita, Kansas on July 4, 1974.  After getting a B.A. with highest distinction at the University of Kansas, Stras attended the University of Kansas School of Law for a joint JD/MBA program.  After graduating, Stras clerked for Judge Melvin Brunetti at the U.S. Court of Appeals for the Ninth Circuit, and then for conservative superstar Judge J. Michael Luttig with the U.S. Court of Appeals for the Fourth Circuit.  After his clerkship, Stras was hired as an associate at the Washington D.C. Office of Sidley Austin LLP.

In 2002, Stras left Sidley to take a prestigious clerkship with Supreme Court Justice Clarence Thomas.  After clerking for Thomas, Stras moved to the University of Alabama School of Law as a Hugo Black Faculty Fellow, teaching Federal Jurisdiction and Law and Economics.  After his fellowship, Stras was hired as an Associate Professor of Law at the University of Minnesota Law School, where Stras taught Federal Jurisdiction and Constitutional Law.

In 2010, Stras was tapped by Republican Governor Tim Pawlenty for an opening on the Minnesota Supreme Court.[1]  The appointment drew criticism both for Stras’ age (35) and inexperience, and for the timing of the appointment, coming shortly after the Supreme Court had narrowly rejected Pawlenty’s use of unallotments to reduce state spending.[2]  Stras was subsequently elected to a six year term on the court and currently serves as a supreme court justice.[3] 

History of the Seat

Stras was tapped for a Minnesota seat on the U.S. Court of Appeals for the Eighth Circuit vacated by Judge Diana Murphy.  Murphy, a centrist voice on the court who was tapped for the U.S. District Court for the District of Minnesota by President Jimmy Carter, and elevated to the Eighth Circuit by President Bill Clinton in 1994, moved to senior status on Nov. 29, 2016.  

Stras, who was on President Trump’s shortlist for the Supreme Court vacancy created by the death of Justice Antonin Scalia,[4] was contacted regarding his interest in the Minnesota seat in January 2017.  He interviewed with the White House Counsel in March and was formally nominated on May 8, 2017.  Stras’ nomination was met with skepticism by Minnesota Senators Amy Klobachar and Al Franken, who indicated that they were not meaningfully consulted about Stras prior to the nomination.[5]

Political Activity

Minnesota Supreme Court justices are elected to 6-year terms in nonpartisan elections.  In theory, this allows candidates to run for open seats.  However, since 1992, every new justice has been appointed by the Minnesota Governor and has run as an incumbent.  In 2012, Stras was challenged for a full six year term by magistrate judge Tim Tingelstad and attorney Alan Nelson.  Stras led the first round of balloting with 49% of the vote, and faced Tingelstad who received 29%.  

In the general election, Stras emphasized his apolitical nature, and the bipartisan support he had received, while Tingelstad pushed for the elimination of court appointments.[6]  Faith became a dividing line between the candidates, as Tingelstad emphasized his Christian faith, while Stras, who is Jewish, stated “I do not think that God dictates any of my decisions.”[7]  In the general election, Stras defeated Tingelstad, taking 56% of the vote.[8]

Other than his run for judicial office, Stras has minimal involvement with electoral politics.  His only involvement with campaigns involved attending fundraising events for Gov. Pawlenty in the years before his appointment to the Supreme Court.

Legal Career

Having spent most of his legal career either as an academic or as a jurist, Stras has comparatively little experience in the practice of law.  Stras’ litigation experience consists of one year as an associate at Sidley Austin LLP., and one year serving as Of Counsel in the Minneapolis office of Faegre Baker Daniels LLP.  During his time at Sidley, Stras worked on white collar criminal defense and the representations of telecommunications, railroads, and utilities on appeal.  At Faegre, Stras served as an advisor on appellate and federal court matters, including the representation of a mortgage company seeking to foreclose on homes in Minnesota.[9]

Jurisprudence

Stras has served on the Minnesota Supreme Court for approximately seven years, hearing appeals from the Minnesota lower courts, and serving as the final voice on Minnesota state law. During his tenure, Stras has developed a reputation as an idiosyncratic conservative, frequently staking out liberal positions in dissent.[10]  Below are some patterns drawn from his jurisprudence.

Limited View of a Judge’s Role

Throughout his tenure, Stras has frequently written concurrences and dissents criticizing his colleagues for departing from the appropriate “role of a judge.”  In doing so, Stras has criticized equitable, judge-made doctrines that seek to remedy wrongdoing.  Stras has been particularly critical of the “interests of justice” standard, noting in one case:

“…I continue to doubt our authority to reduce sentences or reverse convictions in the interests of justice or under some comparable, “highly subjective” power…”[11]

In another case, the Minnesota Supreme Court held that the Minnesota Department of Health must comply with the informed consent provisions of the Genetic Privacy Act before collecting blood samples from newborn children to screen for diseases.[12]  In dissent, Stras noted:

“In my view, the court reaches the correct policy result. If I were a legislator, I would vote for legislation protecting blood samples under the Genetic Privacy Act. However, my role as a judge is not to implement my own policy preferences, but to interpret the law as written.”[13]

Strictness on Jurisdiction and Timeliness

Stras has also taken a very narrow view of the Minnesota Supreme Court’s jurisdiction, frequently arguing that cases should be dismissed for lack of jurisdiction, untimeliness, or mootness.[14]

For example, in one case, Stras lambasted his colleagues for deciding an appeal he deemed untimely:

“The court’s rule in the decision we announce today can be boiled down to the following proposition: we may treat the time limits for filing an appeal as optional in some cases and mandatory in others, depending on our intuition about whether judicial economy favors review.”[15] 

Similarly, Stras notes in another case:

“The majority undoubtedly addresses an issue of great importance for sexual assault prosecutions in Minnesota. The majority does so, however, in a case over which we have no jurisdiction.”[16]

Willingness to Enforce Criminal Procedural Rules

Despite his conservative background, Stras’ jurisprudence is relatively friendly to those charged with crimes, interpreting the Fourth, Fifth, and Sixth Amendments and their protections strictly.

Like most judges, Stras has generally affirmed convictions against procedural arguments.[17]  However, compared to his colleagues, Stras has frequently found the violation of criminal defendants’ procedural rights.  In State v. Bernard, Stras dissented from a 5-2 decision holding that compelled breath tests looking for alcohol did not violate the Fourth Amendment.[18]  Similarly, in State v. Brooks, Stras wrote in dissent that a driver did not voluntarily consent to a blood and urine test.[19]  Specifically, Stras noted:

“It is hard to imagine how Brooks’ consent could have been voluntary when he was advised that refusal to consent to a search is a crime.”[20] 

In another case, Stras held that a defendant had a Sixth Amendment right to have a jury, not a judge, determine his statutory “risk level” for sentencing purposes.[21]  In yet another case, Stras joined a dissent arguing that a 21-month delay violated a defendant’s speedy trial rights under the Sixth Amendment.[22]

However, in a few cases, Stras has disagreed with colleagues who have overturned the convictions of defendants.[23]  In one case, Stras found that a defendant’s waiver of counsel should be treated as knowing and voluntary even after a significant charging change by the prosecution.[24]  In another case, Stras disagreed with the court majority in their ruling that the state’s attempt to interfere in the testimony of a defense expert witness required reversal of the conviction.[25]

Reluctance to Grant Postconviction Relief

While Stras has been willing to find for criminal defendants whose procedural rights were violated, he is much less friendly to defendants challenging their convictions based on trial errors or evidentiary issues.  Specifically, Stras has rejected claims based on prosecutorial misconduct,[26] incorrect evidentiary rulings,[27] or sufficiency of the evidence.[28]  Stras is particularly willing to dismiss collateral challenges as procedurally barred.[29]

However, Stras has shown a willingness to reverse convictions that rely on jury instructions that misstate the elements of the offense or the burden of proof.[30]

Reversals

The Minnesota Supreme Court, on which Stras serves, is the final authority on the interpretation of the Minnesota Constitution and statutes.  As such, the only decisions of the Minnesota Supreme Court that can be appealed to the U.S. Supreme Court are interpretations of the U.S. Constitution or federal law.  

During Stras’ seven year tenure on the bench, none of his opinions have been reversed by the Supreme Court.  However, the Supreme Court did indirectly reverse Stras’ view in one case.

State v. Bernard was a challenge to a Minnesota law making it a crime to refuse to take a chemical test to detect alcohol in a DWI case.  Bernard challenged the statute as a violation of his due process rights, as the search itself was unreasonable under the Fourth Amendment.  The Minnesota Supreme Court, in a 5-2 opinion, upheld the law, arguing that chemical tests are a proper search incident-to-arrest and as such, criminalizing the refusal of the search did not implicate due process rights.[31]  In a joint dissent, Stras and Justice Alan Page sharply criticized the majority’s reasoning, arguing that it was contrary to Supreme Court precedent limiting the search incident-to-arrest exception.[32]

On a consolidated appeal, the U.S. Supreme Court found that warrantless breath tests did not implicate the Fourth Amendment, essentially affirming the Minnesota Supreme Court decision, and implicitly disagreeing with Stras’ dissent.[33]  Stras’ position did draw the votes of Justices Sotomayor and Ginsburg.[34]

Scholarship

During his time as a law professor, and, to a lesser extent, during his years on the Minnesota Supreme Court, Stras has written fairly extensively about the Constitution, the rule of law, and legal decisionmaking.  We have outlined the main topics of his writings below, along with the themes on each topic.

Role of the Law Clerk

Both as a law professor and as a justice, Stras has written and spoken extensively on the role of law clerks in the judicial process.  In a 2007 book review, Stras, a former Supreme Court clerk himself, noted the importance of law clerks who serve in the cert pool, and thus help limit the number of petitions granted by the court.[35]  In another article, Stras notes the significant role that law clerks placed in the oral argument preparation for Justice Harry Blackmun.[36]

Stras has also spoken candidly on his own experience both as a law clerk and as a justice hiring law clerks.  In his keynote address at the Marquette University Law School’s conference, Judicial Assistants or Junior Judges: The Hiring, Utilization, and Influence of Law Clerks, Stras explained the different roles for clerks at the Fourth Circuit, the Ninth Circuit, and the U.S. Supreme Court (where Stras clerked) as well as the Minnesota Supreme Court.[37]  In the speech, Stras noted that, while he uses clerks extensively for preliminary work on cases, he does not use clerk input for oral argument.[38]  At the same conference, Stras noted that he does not have a political “litmus test” for his clerks and hires clerks from all backgrounds.[39]  Rather, he noted:

“I just want people with diverse backgrounds, which can include things like race, region, things like that.”[40]

Life Tenure

Stras has written and spoken repeatedly in defense of the constitutional guarantee of life tenure for federal judges.  

In a 2005 law review article, Stras argued that Congress could not abrogate life tenure for federal judges without violating a number of constitutional provisions, including the tenure and salary clauses.[41]  He also defended life tenure against critics in the article, noting that it insulates judges from political pressure.[42]  He has further expanded on this defense using empirical evidence to counter critics of life tenure.[43]

In a 2009 panel held by the Federalist Society, Stras debated Prof. Stephen Burbank, Prof. James Lindgren, and supreme court advocate Charles Cooper in strong defense of life tenure.  During his remarks, he described himself as “a fundamental Burkean conservative who believes that everything in the Constitution has very strong meaning and very strong reasons behind it.”[44]  He went on to defend the uniqueness of the Judiciary, praising its “anti-majoritarian” nature.[45]

Support for Conservative Judges

Stras has gone on record multiple times praising conservative judges and judicial philosophies.  In 2005, during the confirmation debate over then-Judge Samuel Alito, Stras published an editorial arguing for his confirmation.  Specifically, Stras noted:

“[Justice Alito] is a mainstream conservative jurist that has shown great respect for the rule of law.”[46]

Stras also authored an article praising Justice Pierce Butler, a justice who served on the Supreme Court early in the 20th century.  In the article, Stras describes Butler as “stereotypically libertarian” with a strong commitment to protecting private property rights.[47]  Stras disagrees with the traditional view of Butler as a “conservative”, pointing out that Butler’s jurisprudence took a broad view of the rights of criminal defendants.[48]  Stras also speaks approvingly of Butler’s opinion striking down New York’s minimum wage law as an infringement on the right to contract,[49] even while acknowledging that Butler’s broad views of private property rights did not extend to resident aliens.[50]

Overall, Stras acknowledges that Butler’s broad view of economic liberty and the right to contract are “on the wrong side of history” but nonetheless praises him as a “judicial minimalist” who decided cases in a “narrow, concise, and technical manner.”[51]  Stras’ praise of Butler suggests that he would seek to emulate similar qualities on the bench.

Overall Assessment

Had the Trump Administration pre-cleared Stras’ nomination with Sens. Klobuchar and Franken, his confirmation would be all but assured.  Not only does Stras have the requisite qualifications for the Eighth Circuit, his jurisprudence places him well within the mainstream of his future colleagues.  

Critics of Stras’ nomination will likely draw concern from his praise of Pierce Butler and his jurisprudence on economic liberty.  They could argue that, as a federal judge, Stras would seek to strike down economic and environmental regulations that he deemed violations of “liberty.”  However, there is nothing in Stras’ seven-year record on the Minnesota Supreme Court that suggests a hostility to government or regulation.  On the contrary, Stras’ tenure suggests that he, like Butler is a “judicial minimalist”, seeking to take the court out of policy debates and allow legislatures the freedom to legislate.

Now, Stras is still a judicial conservative, and many of his rulings will likely upset those with a more liberal view of the law.  Nonetheless, he is also likely to disappoint conservatives on the bench.  As a Minnesota Supreme Court justice, Stras frequently joined Justice Alan Page, one of the most liberal members of the court, in dissent against rulings by the conservative majority.  It would be unsurprising if, on the Eighth Circuit, Stras frequently voted with Judge Jane Kelly (the circuit’s sole liberal voice) in holding law enforcement accountable for violations of Fourth, Fifth, and Sixth Amendments.

In this sense, Stras is likely to emulate Justice Scalia, another conservative lion who nevertheless proved to be a criminal defendant’s best advocate on many cases.  If that is the case, the federal bench will be lucky to have him.


[1] Press Release, Office of Governor Tim Pawlenty, Governor Pawlenty Names Gildea Chief Justice, Appoints Stras to Supreme Court (May 13, 2010) (on file at https://www.leg.state.mn.us/docs/2010/other/101582/www.governor.state.mn.us/mediacenter/pressreleases/JudicialSelections/PROD009980.html).  

[2] See Eric Black, Pawlenty’s Supreme Court Picks Raise Sticky and Embarrassing Issues, MinnPost, May 14, 2010, https://www.minnpost.com/eric-black-ink/2010/05/pawlentys-supreme-court-picks-raise-sticky-and-embarrassing-issues. See also Peter S. Wattson, Unallotment Conflict in Minnesota 2009-2010, Senate Counsel, State of Minnesota, June 3, 2010, https://www.senate.mn/departments/scr/treatise/Unallotment/Unallotment_Conflict_in_Minnesota.pdf.

[3] Wendy Erlein, Election Results 2012: Voters Name Lorie Skjervein Gildea Minnesota Supreme Court Chief Justice, Maple Grove Patch, Nov. 8, 2012, https://patch.com/minnesota/maplegrove/election-results-2012-voters-choose-lorie-skjerven-gi0f19fe5885.

[4] Ricardo Lopez, Minnesota Justice David Stras on Trump Shortlist of Potential Supreme Court Picks, Minnesota Star Tribune, May 18, 2016, http://www.startribune.com/minnesota-justice-david-stras-on-trump-shortlist-of-potential-supreme-court-picks/379988881/.

[5] See Press Release, Office of Sen. Al Franken, Sen. Franken’s Statement on Trump Nomination of Minnesota Supreme Court Justice David Stras for the Eighth Circuit (May 8, 2017) (on file at https://www.franken.senate.gov/?p=press_release&id=3693). But see Scott Johnson, The Luger Lobby: Sen. Klobuchar Comments, Western Free Press, Apr. 10, 2017, http://www.westernfreepress.com/2017/04/10/the-luger-lobby-sen-klobuchar-comments/ (suggesting that Klobuchar was aware of Stras’ nomination in April 2017).

[6] See Minnesota Lawyer Staff, Minnesota Supreme Court, Seat 4: Stras v. Tingelstad, Minnesota Lawyer, Oct. 5, 2012, http://minnlawyer.com/2012/10/05/minnesota-supreme-court-seat-4-stras-v-tingelstad/.

[7] Court Opponents Don’t Agree on What Counts as Experience, The Bemidji Pioneer, Oct. 28, 2012, http://www.bemidjipioneer.com/content/court-opponents-don%E2%80%99t-agree-what-counts-experience.

[8] Wendy Erlein, Election Results 2012: Voters Name Lorie Skjervein Gildea Minnesota Supreme Court Chief Justice, Maple Grove Patch, Nov. 8, 2012, https://patch.com/minnesota/maplegrove/election-results-2012-voters-choose-lorie-skjerven-gi0f19fe5885.

[9] See Williams v. Geithner, Case No. 09-CV-1959 (Minn. 2009).

[10] See Bob Collins, On MN Supreme Court, Stras Found Unlikely Allies, Minnesota Pub. Radio, May 18, 2016, http://blogs.mprnews.org/newscut/2016/05/on-mn-supreme-court-david-stras-found-unlikely-allies/.

[11] Nose v. State of Minn., 845 N.W.2d 193 (Minn. 2014) (Stras, J., concurring).

[12] Bearder v. State of Minn. et al., 806 N.W.2d 766 (Minn. 2011).

[13] See id. at 784 (Stras, J., dissenting).

[14] See Bicking v. City of Minneapolis et al., 891 N.W.2d 304 (Minn. 2017) (Stras, J. dissenting) (arguing that the case before the court is nonjusticiable); In re Guardianship of Tschumy, 853 N.W.2d 728 (Minn. 2014) (Stras, J., dissenting) (stating that there was no case or controversy); Schober v. Comm’r of Revenue, 853 N.W.2d 102 (Minn. 2013) (Stras, J., dissenting) (arguing that the petition is untimely); Berkowitz v. Office of Appellate Cts., 826 N.W.2d 203 (Minn. 2013) (holding that the petition for relief is untimely; Carlton v. State, 816 N.W.2d 590 (Minn. 2012) (Stras, J., concurring) (expressing disagreement with the use of equitable tolling to revive untimely petitions for relief); State v. Ali, 806 N.W.2d 45 (Minn. 2011) (Stras, J., concurring) (expressing disagreement with the collateral order doctrine).

[15] Harbaugh v. Comm’r of Revenue, 830 N.W.2d 881, 885 (Minn. 2013) (internal citations omitted).

[16] State of Minn. v. Obeta, 796 N.W.2d 282 (Minn. 2011) (Stras, J., dissenting).

[17] See Sanchez v. State of Minn., 890 N.W.2d 716 (Minn. 2017); State v. McAllister, 862 N.W.2d 49 (Minn. 2015); State v. Lemert, 843 N.W.2d 227 (Minn. 2014); Ferguson v. State of Minn., 826 N.W.2d 808 (Minn. 2013); State v. Ortega, 813 N.W.2d 86 (Minn. 2012); State v. Brist, 812 N.W.2d 51 (Minn. 2012). See also State v. Beecroft, 813 N.W.2d 814 (Minn. 2012) (Stras, J., dissenting); State v. Rhoads, 813 N.W.2d 880 (Minn. 2012) (Stras, J. dissenting).  

[18] State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Page J. and Stras J., dissenting jointly).

[19] State v. Brooks, 838 N.W.2d 563, 573 (Minn. 2013) (Stras, J., dissenting). See also State v. Fawcett, 884 N.W.2d 380 (Minn. 2016) (Stras, J., dissenting) (stating that a search for alcohol and controlled substances in a blood test violates the Fourth Amendment when the warrant only mentions alcohol).

[20] Id. at 573-74 (internal citations omitted).

[21] State v. Ge Her, 862 N.W.2d 692 (Minn. 2015).

[22] State v. Osorio, 891 N.W.2d 620, 633-38 (Minn. 2017) (Hudson, J., dissenting).

[23] See, e.g., United States v. Sydnor, No. CR 16-21-ART-HAI-(2), 2017 WL 772341, at *6 (E.D. Ky. Feb. 28, 2017) (suppressing non-Mirandized statement as elicited in violation of the Fifth Amendment).

[24] State v. Rhoads, 813 N.W.2d 880 (Minn. 2012) (Stras, J. dissenting).  

[25] See State v. Beecroft, 813 N.W.2d 814 (Minn. 2012) (Stras, J., dissenting).

[26] See Hooper v. State, 838 N.W.2d 775 (Minn. 2013); State v. Hill, 801 N.W.2d 646 (Minn. 2011).

[27] See State v. Horst, 880 N.W.2d 24 (Minn 2016); Bobo v. State, 820 N.W.2d 511 (Minn. 2012) (Stras, J., concurring in part and dissenting in part); State v. Tanksley, 809 N.W.2d 706 (Minn. 2012). See also State v. Pass, 832 N.W.2d 836 (Minn. 2013) (reversing trial court exclusion of evidence as substantially prejudicial to defendant). But see Caldwell v. State, 853 N.W.2d 766 (Minn. 2014) (granting evidentiary hearing to defendant).

[28] See State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013); State v. Hayes, 826 N.W.2d 799 (Minn. 2013); State v. Hohenwald, 815 N.W.2d 823 (Minn. 2012). But see State v. Nelson, 842 N.W.2d 443 (Minn. 2014) (reversing conviction for insufficiency of the evidence).

[29] See Gail v. State, 888 N.W.2d 474 (Minn. 2016); Davis v. State, 880 N.W.2d 373 (Minn. 2016); Taylor v. State, 874 N.W.2d 429 (Minn. 2016); Wayne v. State, 870 N.W.2d 389 (Minn. 2015); Williams v. State, 869 N.W.2d 316 (Minn. 2015); Lussier v. State, 853 N.W.2d 149 (Minn. 2014); Wallace v. State, 820 N.W.2d 843 (Minn. 2012); Buckingham v. State, 799 N.W.2d 229 (Minn. 2011).

[30] See, e.g.,State v. Struzyk, 869 N.W.2d 280 (Minn. 2015) (Stras, J., concurring); State v. Kelly, 855 N.W.2d 269 (Minn. 2014) (Stras, J., concurring); State v. Koppi, 798 N.W.2d 358 (Minn. 2011).

[31] State v. Bernard, 859 N.W.2d 762, 764 (Minn. 2015).  

[32] See id. at 774 (Page, J., and Stras, J., jointly dissenting).

[33] See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

[34] See id. at 2187 (Sotomayor, J., concurring in part and dissenting in part).

[35] David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Texas L. Rev. 947 (2007).

[36] Timothy R. Johnson, David R. Stras, and Ryan C. Black, Advice from the Bench (Memo): Clerk Influence on Supreme Court Oral Arguments, 98 Marq. L. Rev. 21 (Fall 2014).

[37] David R. Stras, Keynote Address: Secret Agents: Using Law Clerks Effectively, 98 Marq. L. Rev. 151 (Fall 2014).

[38] See id. at 172.

[39] Chad Oldfather, Panel Discussion: Judges’ Perspective on Law Clerk Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (Fall 2014).

[40] See id. at 464.

[41] David R. Stras and Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute”, 83 Wash. U. L. Q. 1397 (2005).

[42] See id. at 1424-25.

[43] See David R. Stras, The Incentives Approach to Judicial Retirement, 90 Minn. L. Rev. 1417 (May 2006); David R. Stras and Ryan W. Scott, An Empirical Analysis of Life Tenure: A Response to Professors Calabresi and Lindgren, 30 Harv. J. L. & Pub Pol’y 791 (Summer 2007).

[44] Federalist Society Transcript: Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Non-Renewable Terms?, 12 Barry L. Rev. 173 (Spring 2009).  

[45] Id. at

[46] David Stras, No Nukes, Nat’l Rev., Nov. 7, 2005, http://www.nationalreview.com/article/215882/no-nukes-david-stras.  

[47] David R. Stras, Pierce Butler: A Supreme Tactician, 62 Vand. L. Rev. 695, 717-720 (March 2009).

[48] See id. at 721 (citing Olmstead v. United States, 277 U.S. 438, 486-88 (1928) (Butler, J., dissenting)).

[49] See id. at 727 (citing Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936)).

[50] See id. at 728.

[51] Id. at 756.

Eleven New Nominations to the District Court Announced

In a much needed and welcome move, the Trump Administration announced the nominations of 11 candidates to fill vacancies on U.S. District Courts.  The nominees are:

Annemarie Carney Axon, a Birmingham attorney, and Judge Liles C. Burke of the Alabama Court of Criminal Appeals were nominated for the U.S. District Court for the Northern District of Alabama.

Judge Tripp Self III of the Georgia Court of Appeals was nominated for the U.S. District Court for the Middle District of Georgia.

Michael Lawrence Brown, a partner in the Atlanta office of Alston & Bird LLP, and Judge Billy McCrary Ray II of the Georgia Court of Appeals, were nominated for the U.S. District Court for the Northern District of Georgia.

Judge Charles Barnes Goodwin, a federal magistrate judge, was nominated for the U.S. District Court for the Western District of Oklahoma.

Thomas Alvin Farr, a Raleigh attorney, was nominated for the U.S. District Court for the Eastern District of North Carolina.  Farr had previously been nominated to fill the same vacancy during the Bush Administration.

Chip Campbell Jr. and Eli Richardson, both Nashville attorneys in private practice, were nominated for the U.S. District Court for the Middle District of Tennessee.

Mark Norris, the currently serving Tennessee Senate Majority Leader, and Thomas Lee Robinson Parker, a Memphis attorney, were nominated for the U.S. District Court for the Western District of Tennessee.

 

Four Nominees Advance to Senate Floor

This morning, the Senate Judiciary Committee advanced the nominations of John Bush, Kevin Newsom, Tim Kelly, and Damien Schiff to the senate floor.  On one end of the spectrum, Newsom and Kelly were advanced with bipartisan support (the former with just two senators dissenting, and the latter by voice vote).  On the other end, Bush and Schiff attracted unanimous opposition from Democrats.

While the outcome of the committee vote was pre-ordained after GOP skeptics announced their support for Bush and Schiff, both nominees have a narrow margin for error on the senate floor.  Opponents will likely now turn their attention to lobbying moderate Republicans such as Sen. Susan Collins (R-ME).  While Republicans are unlikely to run afoul of Bush’s sponsor, Senate Majority Leader Mitch McConnell (R-KY), there is a small chance some senators may choose to oppose Schiff.

Justice Joan L. Larsen – Nominee to the U.S. Court of Appeals for the Sixth Circuit

Justice Joan Larsen of the Michigan Supreme Court, has been on President Trump’s radar for a long time.  Over a year ago, Trump included Larsen among a list of 11 jurists he would consider for the vacancy on the U.S. Supreme Court.[1]  While Trump chose Neil Gorsuch for that vacancy, Larsen was tapped shortly after for a vacancy on the U.S. Court of Appeals for the Sixth Circuit.  While the White House may hope for a swift confirmation for Larsen, her conservative record, along with the lack of consultation with Michigan’s senators, may raise concerns.

Background

Joan Louise Larsen was born in Waterloo-Cedar Falls, Iowa in December 1968.  After getting a B.A. with Highest Honors at the University of Northern Iowa,[2] Larsen attended Northwestern University School of Law, graduating first in her class in 1993.  After graduating, Larsen clerked for Judge David Sentelle at the U.S. Court of Appeals for the D.C. Circuit, and then for Justice Antonin Scalia on the United States Supreme Court.  After her clerkship, Larsen returned to the Washington D.C. Office of Sidley Austin LLP (where she had summered as a law student).  

In 1998, Larsen left Sidley to join the faculty of the University of Michigan Law School.[3]  Other than a short sixteen month stint at the Office of Legal Counsel (OLC) at the U.S. Department of Justice, Larsen taught constitutional law and criminal procedure there until 2015.

In 2015, Larsen was selected by Michigan Governor Rick Snyder for an opening on the Michigan Supreme Court.[4]  Larsen’s appoint drew bipartisan support, but was opposed by the Michigan ACLU, who objected to Larsen’s role at OLC in the Bush Administration.[5]

In 2016, Larsen’s name was included on a list of 11 jurists that would be considered for the Supreme Court under the Trump Administration.[6]  While Larsen reportedly did not solicit the mention, she nonetheless recused herself from a challenge to Trump’s electoral win by Green Party candidate Dr. Jill Stein.[7]

On March 9, 2017, Larsen was contacted by the White House Counsel’s Office about a judicial appointment.  While she interviewed with White House Counsel Don McGahn, Larsen’s name did not come from Michigan’s senators, and was not pre-cleared with them.  Larsen was officially nominated on May 8.[8]

History of the Seat

Larsen has been nominated for a Michigan seat on the U.S. Court of Appeals for the Sixth Circuit vacated by Judge David McKeague.  McKeague, a Republican who was tapped for the U.S. District Court for the Western District of Michigan by President George H.W. Bush, and elevated to the Sixth Circuit by President George W. Bush in 2005, has indicated that he will move to senior status upon confirmation of a successor.  As such, the seat will not open on the court until Larsen’s confirmation.

Political Activity

Michigan Supreme Court justices are elected in statewide elections to 8-year terms.  Even though these elections are ostensibly nonpartisan, the candidates are still nominated by political parties.  After Larsen’s appointment to the Michigan Supreme Court, she was nominated by the Michigan Republican Party to run for a full term on the court.[9]

During her campaign, Larsen described herself as a “Constitutional, rule of law judge.”  In campaign ads, Larsen emphasized her commitment to “equal justice for all.”  At the same time, Larsen’s supporters including the Chamber of Commerce described her and fellow Justice David Viviano as “not the kind of judges who will let people off on a technicality, implying that Larsen would be unwilling to overturn convictions even if they were obtained through police and prosecutorial misconduct.  In the 2016 general election, Larsen defeated Deborah Thomas, a judge in Michigan’s Third Circuit Court (and the Democratic nominee), winning 58% of the vote, performing significantly worse than fellow Justice David Viviano.[10]

Other than her own campaign for the Michigan Supreme Court, Larsen has scant experience with electoral politics.  In 1996, Larsen drafted and edited policy papers for the presidential campaign of then-Sen. Bob Dole.  In 2012, Larsen made a $500 contribution to Republican presidential candidate Mitt Romney, her only political contribution of record.

Legal Experience

Larsen has spent the vast majority of her legal career either in academia or on the bench.  Nevertheless, her short tenure in the practice of law (including two years at Sidley Austin and one year at OLC) suggests a conservative legal philosophy.

As an associate at Sidley Austin, Larsen was part of the trial team representing Glendale Federal Bank in a breach of contract case against the federal government.  Larsen helped formulate the theory of damages that secured a $381 million judgment for her client.[11]  Larsen also defended the manager of a meat-packing plant who was accused of discharging pollutants into federal waterways.[12]

From 2002 to 2003, Larsen worked as a Deputy Assistant Attorney General at OLC, essentially advising the Bush White House on the legality of its actions.  During Larsen’s tenure, OLC, under the leadership of then-head John Yoo, released a series of controversial memoranda arguing that the use of waterboarding on terror suspects did not violate the law.[13]  While Larsen has insisted that she was not involved in the drafting of those documents, the ACLU claims that she is the author of a classified memo on habeas corpus rights, and may be involved in more high profile discussions.[14]  As of May 2016, the memo authored by Larsen remains classified and has not been released.[15]

Jurisprudence

Larsen has served on the Michigan Supreme Court for approximately two years, hearing appeals from the Michigan lower courts, and serving as the final voice on Michigan state law. During her tenure, Larsen has written only six opinions.  They are outlined below:

In re Application of Consumers Energy Co. – Michigan state law permits businesses to recover the costs of purchasing pollutant allowances if the purchases were prompted by state law changes prior to October 6, 2008.  In this case, the plaintiffs sought to recover the costs of purchasing nitrous oxide allowances from the Michigan Public Service Commission.[16]  While a majority of the Michigan Supreme Court found that state law barred recovery, Larsen, joined by Justice David Viviano, dissented.  Larsen argued that, while the regulations in question were passed before the October 6 deadline, the extended timeline of implementing such regulations meant that the regulations would not come into effect until after that date.  As such, Larsen stated that the plaintiffs should be allowed to recover the costs of the allowances.[17]

People v. Seewald – This case involved a challenge to the conspiracy conviction of two campaign workers for former Rep. Thaddeus McCotter (R-MI).  The question was whether the defendants, who had agreed to falsely sign nominating petitions as “circulators” had committed “conspiracy” under the Michigan statute.  While the Court of Appeals found for the defendants, Larsen, writing for the unanimous Supreme Court, reversed, finding that the Michigan conspiracy statute covered the defendants’ conduct.[18]

Hodge v. State Farm Mut. Auto. Ins. Co. – This case asked whether Michigan district courts, which have subject matter jurisdictions over all civil cases involving less than $25000 in damages, have jurisdiction over a suit where the initial complaint alleges $25000 in damages, but the evidence in trial establishes greater damages.  Writing for a unanimous court, Larsen held that trial evidence of damages that exceed the jurisdictional limit does not divest a district court of jurisdiction over a civil case.[19]  Rather, Larsen found that jurisdiction is determined by the initial good-faith allegation of damages in the complaint.[20]

Arbuckle v. General Motors, LLC. – This case involved the coordination of workers’ compensation benefits and disability payments by General Motors in a way that allowed offsetting the benefits.  Larsen wrote for a unanimous court in finding that such coordination was permitted under Michigan law.[21]

Yono v. Dep’t of Transportation – The key question in this case was whether the government could be held liable for an injury that occurred on a parallel parking lane on a highway.  Larsen, writing for a 4-3 majority on the court, found that a parallel parking lane could not be considered “designed for vehicular travel” under the highway exception to the Governmental Tort Liability Act.[22]  As such, Larsen held that the government was immune against the plaintiff’s suit.[23]  In dissent, Justice Bridget McCormack argued that parking is necessarily part of “vehicular travel” and that, as such, the highway exception to governmental immunity did apply.[24]

In re Hicks – This case involved a challenge to the termination of the intellectually disabled plaintiff’s parental rights.  Writing for a unanimous court, Larsen found that the trial court had failed to consider the plaintiff’s intellectual disability in determining whether the termination was appropriate.[25]

In addition to the opinions she authored, the opinions Larsen has joined suggest a willingness to rule against plaintiffs[26] and criminal defendants.[27]  For example, in Hecht v. Nat’l Heritage Acads., Larsen joined an opinion by Chief Justice Robert Young vacating a grant of damages to a white teacher who was terminated based on racial bias.[28]  In Covenant Medical Center v. State Farm, Larsen joined Justice Brian Zahra in holding that healthcare providers couldn’t sue no-fault insurers for PIP benefits.[29]  In dissent, Justice Richard Bernstein argued that the majority’s reading contradicted the “plain language of the statute.”[30]

However, Larsen has also joined opinions that achieve more liberal outcomes.  For example, in Associated Builders & Contractors v. City of Lansing, Larsen joined Young’s opinion rejecting a challenge to Lansing’s minimum wage ordinance.[31]  In another case, Larsen joined a 5-2 majority on the court in holding that prosecutors were statutorily barred from using false statements made by police officers in an internal investigation to later prosecute those officers.[32]  In dissent, Justice Steven Markman argued that the majority’s reading of Michigan law goes against the “obvious purpose of the statute.”[33]

Speeches and Writings

As a prominent academic, Larsen has written extensively on constitutional structure, civil rights, and other areas of law.  One of her earliest articles, her law review note at Northwestern, explores the bar on using specific acts to show propensity in criminal cases.[34]  Specifically, Larsen argues that the bar should only be applied against evidence presented by the prosecution, and that barring the use of specific act evidence by a defendant prejudices a their ability to present a complete defense.[35]

In her writings, Larsen has generally been an advocate of expansive presidential powers. Notably, Larsen co-authored a paper on the Incompatibility Clause of the U.S. Constitution.[36]  Larsen and co-author Prof. Steven Calabresi argued that this clause was an essential guard of presidential power and prerogatives.[37]  Eliminating the clause would, Larsen wrote, “result in a fusion of the executive and legislative powers, with the Congress-filled Cabinet controlling the President’s exercise of his constitutionally granted powers.”[38]

Similarly, in an op-ed with the Detroit News, Larsen defended the use of presidential signing statements.[39]  Specifically, Larsen noted that signing statements (statements issued by the executive that “clarify” the scope of the law being signed) represent “the president’s independent vision of what the Constitution requires.”[40]  Larsen specifically brings up President Bush’s signing statement attached to a 2006 anti-torture bill.  She notes that the statement essentially says: “if the circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute.”[41]  Larsen’s endorsement of the use of signing statements in such a context reinforces her broad view of presidential powers and prerogatives.

Additionally, many of Larsen’s writings show an endorsement of originalism as the primary source of constitutional interpretation.  Originalism, or the theory that the constitution should be interpreted in accordance with the original meaning of the text, has drawn much criticism by liberal legal scholars.[42]  Nevertheless, Larsen frequently employs originalism as a tool for constitutional interpretation.[43]

Overall Assessment

Like most other appellate nominations made by the Trump Administration, Larsen is both young and judicially conservative.  Unfortunately for Larsen, these same factors make it likely that Democrats will look at her nomination with skepticism.

For critics of Larsen’s nomination, the best argument is procedural.  In nominating Larsen, the Trump Administration ignored decades of precedent and failed to consult with Michigan senators.  As such, Sen. Debbie Stabenow and Sen. Gary Peters are well within their rights to refuse to return blue slips and demand that the Administration engage in good faith consultations.  However, if blue slips are returned, Larsen’s thin paper trail will make it difficult to create a compelling case against her confirmation.

Larsen’s expansive views on presidential power are also likely to raise concerns among senators.  Her 2006 op-ed, and her statement that the president could claim to protect the nation by violating the law would raise concerns among those who favor a limited executive.

Additionally, with the emoluments clause suits proceeding against President Trump, senators may also raise Larsen’s writings on the related incompatibility clause.  Furthermore, some senators may raise Larsen’s votes in Yono and Hecht to suggest that she is biased against civil plaintiffs, although others will likely use her vote for the city in Associated Builders to point out her neutrality.

Overall, it is fairly clear that Larsen has both the intellectual heft and the requisite qualifications to serve on the judiciary.  The key question is whether her ideology would make her a result-oriented jurist.  If senators can answer that question in the negative, there is no reason to oppose her nomination. 


[1] Dara Lind and Dylan Matthews, Your Guide to President Donald Trump’s Supreme Court Shortlist, Vox, May 19, 2016, https://www.vox.com/2016/5/18/11703416/trump-supreme-court-shortlist.

[2] As a college student, Larsen stuffed envelopes and made phone calls for the presidential campaign of then-Senator Joe Biden.

[3] She also spent a semester as a visiting professor at Northwestern University Law School.

[4] Paul Egan, Snyder Appoints Joan Larsen to Supreme Court, Detroit Free Press, Sept. 30, 2015, http://www.freep.com/story/news/local/michigan/2015/09/30/snyder-appoints-joan-larsen-supreme-court/73079114/.

[5] See id.

[6] Lind, supra n.1.

[7] Kathleen Gray, Michigan Supreme Court Justices Recuse Themselves from Recount Case, Detroit Free Press, Dec. 9, 2016, http://www.freep.com/story/news/politics/2016/12/09/michigan-supreme-court-recount/95194974/.

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

[9] Emily Lawlor, See Democratic and Republican Candidates for Supreme Court, University Boards, MLive.com, Aug. 28, 2016, http://www.mlive.com/news/index.ssf/2016/08/see_democratic_and_republican.html.

[10] Michael Gerstein, Viviano, Larsen Win Re-Election to Mich. Supreme Court, The Detroit News, Nov. 8, 2016, http://www.detroitnews.com/story/news/politics/elections/2016/11/08/michigan-supreme-court-results/93501312/.

[11] Glendale Federal Bank v. United States, 43 Fed. Cl. 390 (1999).

[12] See United States v. Sinskey, 4:96-cr-40010-LLP-1 (D.S.D. 1996), aff’d 119 F.3d 712 (8th Cir. 1997).

[13] See Lind, supra n. 1.

[14] Rick Pluta, UM Law Professor Joan Larsen Named to Michgan [sic] Supreme Court”, WDET, Oct. 1, 2015, http://wdet.org/posts/2015/10/01/81659-um-law-professor-joan-larsen-named-to-michgan-supreme-court/.

[15] See Lind, supra n. 1.

[16] See In re Application of Consumers Energy Co., 876 N.W.2d 566 (Mich. 2016).

[17] See id. (Larsen, J., dissenting).

[18] People v. Seewald, 879 N.W.2d 237, 242 (Mich. 2016).

[19] Hodge v. State Farm Mut. Auto. Ins. Co., 884 N.W.2d 238 (Mich 2016).

[20] See id. at 239.

[21] Arbuckle v. General Motors, LLC., 885 N.W.2d 232 (Mich. 2016).

[22] Yono v. Dept’ of Transp., 885 N.W.2d 445 (Mich 2016).

[23] See id. at 456.

[24] See id. at 458-59 (McCormack, J., dissenting).

[25] In re Hicks, 893 N.W.2d 637 (Mich. 2017).

[26] See Deacon v. Pandora, 885 N.W.2d 628 (Mich. 2016) (holding that plaintiff did not constitute a “customer” of Pandora’s for the purpose of seeking damages for publicly disclosing his personal information).

[27] See People v. Hall, 884 N.W.2d 561 (Mich 2016) (holding that a defendant who forged signatures on a nominating petition, could be charged with felony forgery).

[28] Hecht v. Nat’l Heritage Acads, 886 N.W.2d 135 (Mich. 2016).

[29] Covenant Med Cntr. v. State Farm Mut. Auto. Ins. Co., __ N.W.2d __ (Mich. 2017) (No. 152758).

[30] Id. at *28 (Bernstein, J., dissenting).

[31] Assoc. Builders & Contractors v. City of Lansing, 880 N.W.2d 765 (Mich. 2016).

[32] People v. Harris, 885 N.W.2d 832 (Mich 2016).  

[33] See id. at 860 (Markman, J., concurring in part and dissenting in part).

[34] Joan Larsen, Of Propensity, Prejudice, and Plain Meaning: The Accused’s Use of Exculpatory Specific Acts Evidence and the Need to Amend Rule 404(b), 87 NW. U. L. Rev. 651 (1993).  

[35] See id. at 690.

[36] Article I, Section 6, Clause 2 prohibits individuals from serving simultaneously in the executive and the legislative branches.

[37] Steven G. Calabresi and Joan Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 Cornell L. Rev. 1045 (1994).

[38] Id. at 1118.

[39] Joan Larsen, Bar Group is Wrong, Presidents can Interpret Laws They Sign, Detroit News, Sept. 13, 2006, https://www.law.umich.edu/newsandinfo/pdf/Documents/06_09_september_bargroup.pdf.

[40] Id.

[41] Id.

[42] See, e.g., Nina Totenberg, Justice Breyer: The Case Against ‘Originalists’, Nat’l Pub. Radio, Sept. 30, 2005, http://www.npr.org/templates/story/story.php?storyId=4930456.

[43] See, e.g., Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010), Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1309-16 (2004).