Tommy Parker – Nominee to the U.S. District Court for the Western District of Tennessee

Thomas Lee Robinson Parker, professionally known as “Tommy”, is a prominent Memphis attorney, having served as the president of the Memphis Bar Association.  With a varied legal background including substantive litigation experience, Parker should face little trouble being confirmed quickly.

Background

Tommy Parker received a Bachelor of Science degree from the University of South Carolina in 1985 and went onto earn his J.D. from Vanderbilt University Law School in 1989.  After graduating, Parker joined the Memphis law firm, Waring Cox PLC. as an associate, working in Tennessee state and federal court litigation.

In 1996, Parker was hired by U.S. Attorney Veronica F. Coleman to serve as a federal prosecutor.  As an Assistant U.S. Attorney for the Western District of Tennessee, Parker handled both trial and appellate criminal matters, including drug and white collar cases.

In 2005, Parker left the U.S. Attorney’s office to join the Memphis office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. as a Shareholder.[1]  Parker currently serves in the same capacity.

History of the Seat

Parker has been nominated to a seat on the U.S. District Court for the Western District of Tennessee.  This seat opened on July 1, 2015, when Judge Samuel Mays moved to senior status.  Approximately six weeks before Mays moved to senior status, President Obama nominated Edward Stanton, the then-U.S. Attorney in the district, to fill the judgeship.[2]  Stanton, who had the strong support of Republican Tennessee Senators Lamar Alexander and Bob Corker,[3] received a hearing on September 30, 2015, with the Committee unanimously approving his nomination on October 29.  However, despite there being no objections to his nomination, Stanton was blocked from a floor vote by Senate Majority Leader Mitch McConnell,[4] ultimately being returned unconfirmed at the end of the 114th Congress.

President Trump declined to renominate Stanton for the seat, instead nominating Parker on July 13, 2017.

Legal Experience

Parker began his legal career as a litigation associate at Waring Cox, PLC., representing corporations in tort claims.  Early in his career, Parker was part of the legal team defending a fire equipment company and its salesman against tort claims brought by a fireman injured by the equipment.[5]  Parker also defended stair manufacturers against claims by a worker injured by falling off their equipment, unsuccessfully arguing before the Tennessee Supreme Court that his clients should be able to plead the contributory negligence of the plaintiff’s employer as an affirmative defense.[6]

In 1996, Parker became a federal prosecutor.  In this capacity, Parker represented the federal government in criminal proceedings, including responding to motions to suppress,[7] and defending government intent to seek the death penalty.[8]  Parker also had the opportunity to represent the government in appeals before the U.S. Court of Appeals for the Sixth Circuit.[9]  For example, Parker successfully argued that cops did not exceed the scope of a traffic scope in searching a vehicle.[10]

In 2005, Parker left prosecution to flip to the other side, working as a criminal defense attorney in white collar criminal cases.  Parker also represented corporations in defending against government investigations,[11] and RICO claims.[12]  Parker has also taken on some cases representing plaintiffs.  For example, in one case, Parker represented the heirs of a decedent beaten to death by the Memphis police.[13]

Political Activity

Parker has been active in the local Republican Party, serving on the Steering Committee of the Republican Party of Shelby County from 2009-2014, and serving as the Party’s counsel during the 2016 election.  Parker has also been a generous donor to Tennessee Republicans, donating $2000 to Alexander, $1750 to Corker, and $1800 to Rep. David Kustoff (R-TN).[14]  Parker has also contributed to national Republicans, giving to the presidential campaigns of Mitt Romney and John Kasich, as well as to the Republican National Committee.[15]

Overall Assessment

There is no such thing as a “sure thing” when it comes to judicial nominations.  After all, in a universe where well-credentialed, moderate nominees were swiftly approved, this vacancy would have been filled two years ago with the confirmation of Edward Stanton.  Nevertheless, Parker’s strong legal experience, connections in the Memphis legal community, and mainstream politics makes him a likely candidate for the federal bench.

With his confirmation, Tennessee litigants can expect the addition of another moderate-conservative to the Western District bench.


[1] The Bulletin Board, Department: News About TBA Members, 41 Tenn. B.J. 10, 11 (February 2005).

[2] Press Release, White House, President Obama Nominates Edward L. Stanton III to Serve on the United States District Court for the Western District of Tennessee (May 21, 2015) (on file at https://obamawhitehouse.archives.gov).  

[3] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615.

[4] The Leadership Conference, Mitch McConnell Tried Skipping Over the Two Longest-Waiting Judicial Nominees. They’re Both Black Men, Medium, Sept. 9, 2016, https://medium.com/@civilrightsorg/mitch-mcconnell-tried-skipping-over-the-two-longest-waiting-judicial-nominees-208b6f7cdbb.  

[5] See Richmond v. Adelman, 1991 Tenn. App. LEXIS 572 (Tenn. App. July 24, 1991).

[6] Ridings v. The Ralph Parsons Co. et al., 914 S.W.2d 79 (Tenn. 1996).

[7] See, e.g., United States v. Ramirez, 115 F. Supp. 2d 918 (W.D. Tenn. 2000) (denying motion to suppress based on warrantless search of vehicle).  

[8] See, e.g., United States v. Haynes, 269 F. Supp. 2d 970 (W.D. Tenn. 2003) (denying motion to strike gov’t notice of intent to seek death penalty).

[9] See United States v. Brown, 276 F.3d 211 (6th Cir. 2002); United States v. Saucedo, 226 F.3d 782 (6th Cir. 2000); United States v. Wellman, 185 F.3d 651 (6th Cir. 1999); United States v. Gibson, 135 F.3d 1124 (6th Cir. 1998); United States v. Weaver, 126 F.3d 789 (6th Cir. 1997); United States v. Comer, 93 F.3d 1271 (6th Cir. 1996).

[10] See United States v. Villanueva, 89 Fed. Appx. 584 (6th Cir. 2004).

[11] See, e.g., United States v. UT Medical Group, Inc. et al., 2010 WL 11493930 (W.D. Tenn. Jan. 27, 2010).

[12] See, e.g., Duvall v. Ecoquest Intern., Inc., 2007 WL 2811052 (E.D. Mo. Sept. 24, 2007).

[13] Buckley v. City of Memphis, 2005 WL 6737964 (W.D. Tenn. Feb. 9, 2005).

[15] See id.

Where are the Women: The Alarming Gender Gap Among Trump’s Judges

During the 2012 Presidential campaign, Republican candidate Mitt Romney was mocked for declaring that he had “binders full of women” ready to appoint to federal positions.  The phrase, while awkward, signaled Romney’s commitment to gender diversity in his appointments.  In contrast, President Trump’s appointments, from his US Attorneys to his executive appointments, have been overwhelmingly male.  This pattern is evident in his judicial appointments.

As of August 23, 2017, President Trump has named 36 nominees to Article III courts: 11 to the U.S. Court of Appeals; 24 to the U.S. District Courts; and Justice Neil Gorsuch to the U.S. Supreme Court.  Out of these 36 nominees, only seven are women.  In contrast, by August 2009, President Obama had nominated only 17 nominees, but had named just as many women: seven, including Justice Sonia Sotomayor to the U.S. Supreme Court.

Comparatively, only 19% of President Trump’s judicial nominations are women, a lower percentage than the last three presidents, and comparable with the nominations made by President George H.W. Bush.  The ratio is particularly skewed in nominations to the U.S. District Courts.  Only four out of 24 District Court nominations have gone to women.

Out of the seven female nominees, three replace departing female judges and four replace male judges.  In contrast, six of the male nominees put forward replace female judges.  In other words, with the confirmation of these nominees, for the first time since the Eisenhower Administration, the overall number of active female judges would go down.

It is still early, and the Trump Administration could pick up the pace and appoint more women to the federal bench.  However, the tea leaves are not promising.  Rather, the nominees the Administration have in the works are also, generally, male:

  • DC Circuit – While the Administration was looking at four well-qualified female candidates to fill the vacancy left by Judge Janice Rogers Brown’s retirement, the expected nominee, Deputy White House Counsel Greg Katsas, is male.
  • Second Circuit – The Administration has pitched four candidates to New York Senators Chuck Schumer and Kirsten Gillibrand to fill two 2nd circuit vacancies: all four candidates are male.
  • Third Circuit – The Administration is preparing to nominate Paul Matey to fill one of two vacancies without a nominee.  For the other vacancy, the Administration is mulling David Porter.  Both candidates are male.
  • Fifth Circuit – The Administration is weighing four male candidates for two vacancies on the court.
  • Seventh Circuit – The White House has interviewed three men to replace Judge Ann Claire Williams.
  • Ninth Circuit – The leading candidates for vacancies in Arizona, California, and Oregon are all men.
  • Tenth Circuit – Three male attorneys are being considered for the New Mexico seat vacated by Judge Paul Kelly.
  • Eleventh Circuit – The list of candidates being considered for the vacancy by Judge Frank Hull (a woman), is mostly male, but does include female Georgia Supreme Court Justice Britt Grant.

The Administration and its supporters will argue that this doesn’t matter.  As long as the nominees put forward are qualified, their gender is irrelevant.

While this is true on the individual level, such an argument is based around the erroneous assumption that the only way a female candidate would be chosen over a male one is due to emphasis on diversity.  This is patently false.  Women make up approximately 35% of the legal profession, and this percentage is increasing sharply. Furthermore, the federal bench (the elite of the judiciary) is already one third female.   As such, producing a pool of nominees that is only 19% female suggests an inability to consider qualified female nominees, rather than a slavish devotion to quality.

Since FDR was in office, every single administration appointed a greater percentage of women to the federal bench than the previous administration of their party.  Unless corrective measures are take, the Trump Administration looks set to break that trend.

Update – I wanted to address a reader inquiry.  The reader in question wanted to know why the relevant barometer for comparison was the percentage of women in the legal profession, rather than the percentage of women in organizations like the Federalist Society, from where Trump draws his appointees.  Three responses.

First, federal judges primarily serve the rule of law and the general public.  As such, it is particularly important that the public maintain faith in the judiciary.  Numerous studies have shown that when female or minority judges are left off the bench, that both the quality and perception of justice suffer.  As such, you judge the diversity of federal judges based on those appearing in court before them.

Second, the Federalist Society does not constitute the entirety of conservative lawyers.  While the membership of the Federalist Society may be predominantly white and male, there are other sources of conservative women.  Furthermore, District Court appointments, where the gender gap is particularly bad, generally do not come from the Federalist Society.  In most cases, the male nominees being chosen are themselves not members of the Federalist Society.  As such, it is difficult to believe that Federalist Society membership is the basis on which female judges are being ignored.

Third and most importantly, the pool of conservative attorneys that Trump is drawing upon for his nominees is essentially the same as the pool tapped by past Republican Presidents.  Over ten years ago, despite women making up only about 25% of the legal community, President Bush managed to have women constitute 22% of his appointees.  Twenty five years ago, President George H.W. Bush essentially matched Trump’s current 19% despite working with a female legal population that was substantially lower than what Trump has now.  When these past presidents, whose nominees were equally conservative, could maintain parity between the percentage of women in their appointments and the percentage of women in the legal community, there is no reason why President Trump cannot do so.

Annemarie Carney Axon – Nominee to the U.S. District Court for the Northern District of Alabama

It is relatively unusual to have a federal judge share the bench with a former clerk.  However, upon her expected confirmation, Annemarie Carney Axon, a Birmingham based attorney, would join her former boss, Judge Inge Prytz Johnson, on the United States District Court for the Northern District of Alabama.

Background

Axon, born Annemarie M. Carney, attended the University of Alabama, graduating with a B.A. in History and Political Science in 1995.  She went on to the University of Alabama law school, graduating in 1999.  After graduating, Axon clerked for Judge Inge Prytz Johnson on the United States District Court for the Northern District of Alabama.

After her clerkship, Axon moved to Providence, RI to work as an associate at Edwards & Angell LLP.  Axon returned to Alabama in 2005 to join the Birmingham office of Wallace, Jordan, Ratliff & Brandt, LLC.  She currently serves as a partner there.

History of the Seat

Axon has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat opened on May 8, 2015, when Judge Sharon Lovelace Blackburn moved to senior status.  Shortly after this seat opened, negotiations on a judicial nominations package between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[1]  President Trump announced Axon’s nomination to the vacancy on July 13, 2017.

Legal Experience

Axon has spent nearly two decades litigating in state and federal courts.  Much of her career has been focused on representing banks and other financial institutions, defending them against contract claims,[2] and against SEC liability.[3]  For example, Axon successfully defended a bank serving as trustee for a Rhode Island mother and children against charges that the bank mismanaged the trust.[4]  While Axon’s work representing financial institutions is unlikely to raise many eyebrows, she may be asked about two more controversial cases.

In Providence, Axon defended the Palestinian Authority (PA) in a series of suits brought by American citizens killed by Hamas.[5]  Axon and her legal team at Edwards Angell argued that the suits brought against the PA were nonjusticiable, and the PA was protected by sovereign immunity.  After adverse rulings against them in the lower court,[6] the First Circuit ruled against the PA, and held that it did not constitute a “state” for sovereign immunity purposes.[7]

In Birmingham, Axon was part of the legal team defending then Governor Bob Riley’s appointments to the Alabama A&M Board of Trustees.[8]  The appointments were challenged by a group of alumni as violating the express interests of the Alabama Senate.[9]  However, the Alabama Supreme Court rejected Riley’s argument that the alumni lacked standing but found that the trial court lacked subject matter jurisdiction to hear the case, as such affirming Axon’s position.[10]

Political Activity

Axon does not have a history of donations to candidates of either political party.

Overall Assessment

In confirmation politics, nominees who don’t speak out on judicial and political issues generally attract less opposition.  As such, Axon’s focus on (less high profile) financial issues, and her non-involvement with politics speaks to her confirmability.

If critics attack Axon, it will likely be due to her defense of the Palestinian Authority.  Her involvement in the politically volatile case, and the ultimate rejection of her legal position by the First Circuit could be grounds for criticism.  Nevertheless, she and her supporters can argue that her zealous advocacy on behalf of her client should not be considered representative of her own legal views.

To sum up, Axon’s record suggests an easily confirmation and middle-of-the-road nominee.


[1] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[2] See, e.g., Tomaiolo v. Malinoff, 281 F.3d 1 (1st Cir. 2002) (representing Transamerica Corporation); Morris v. Highmark Life Ins. Co., 255 F.Supp.2d 204 (D. Mass. 2003).

[3] See, e.g., S.E.C. v. Slocum, Gordon & Co., 334 F. Supp. 2d 144, 149 (D.R.I. 2004).

[4] Rose v. Firststar Bank et al., 819 A.2d 1247 (R.I. 2003).

[5] The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F. Supp. 2d 40 (D.R.I. 2002).

[6] Estates of Ungar v. Palestinian Auth., 315 F. Supp. 2d 164, 187 (D.R.I. 2004).

[7] Ungar v. Palestine Liberation Org., 402 F.3d 274, 276 (1st Cir. 2005).

[8] Riley v. Hughes, 17 So. 3d 643 (Ala. 2009).

[9] Id. at 645.

[10] Id. at 646.

Thomas Alvin Farr – Nominee to the U.S. District Court for the Eastern District of North Carolina

In December 2006, Thomas Alvin Farr, a well-connected Republican attorney from Raleigh, was nominated for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  For the next two years, Farr waited for a hearing and a vote, neither of which came in the Democratic-controlled Senate.  Then, with the election of President Obama, Farr’s hopes of a federal judgeship died.  On July 13, 2017, however, President Trump revived Farr’s nomination, submitting him once again to the seat he had originally been nominated for, a seat studiously kept open by North Carolina’s Republican Senators.

Background

Thomas Alvin Farr was born in Cincinnati, OH on October 24, 1954.[1]  Farr attended Hillsdale College, a Christian liberal arts school in Michigan, graduating summa cum laude in 1976.  Farr proceeded to Emory University, graduating with a J.D. in 1979.

After graduating, Farr joined the National Right to Work Legal Defense Foundation as a staff attorney.  In 1981, upon the election of Republican senator John P. East,[2] Farr moved to Washington D.C. to serve as Counsel for the Senate Labor and Human Resources Committee.  Farr left D.C. in 1982 to serve as a law clerk to Judge Frank Bullock of the U.S. District Court for the Middle District of North Carolina.

In 1983, Farr joined the Raleigh law firm Maupin, Taylor, Ellis & Adams, P.A., working on civil litigation, with a focus on labor law.  During this period, Farr also served as a member of the North Carolina Elections Board.

In 2003, Farr and three other partners left Maupin for Haynsworth, Baldwin, Johnson & Greaves, a Greenville, SC based labor and employment firm.[3]  In 2006, Farr joined the Raleigh office of Ogletree Deakins, where he currently works as a partner.

In December 2006, President George W. Bush nominated Farr for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  Farr’s nomination came a month after Democrats took control of the U.S. Senate.  Incoming Chairman Patrick Leahy (D-VT) declined to process Farr’s nomination, despite moving and confirming three other North Carolina nominees.  Farr’s nomination was ultimately returned to the President unconfirmed.

History of the Seat

Farr has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[4]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[5]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[6]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[7]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[8]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[9]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[10] this time with the support of Burr and Senator Thom Tillis (R-NC).[11]

Legal Experience

Having been a lawyer since 1979, Farr has more experience litigating than any other nominee put forward by the Trump Administration.  The vast majority of his experience has been in the fields of labor and election law.

Labor Law

Farr has spent virtually his entire legal career in labor law, generally opposed to the positions of unions and unionized workers.  He started his legal career at the National Right to Work Legal Defense Foundation, litigating against unions and union-friendly regulation.  Furthermore, as Counsel for Sen. East, Farr worked on labor policy in the U.S. Senate.

In private practice, Farr fought claims by truck drivers seeking the rights of union membership,[12] and industrial workers seeking to take necessary measurements to file a grievance.[13]  Farr also successfully intervened in a suit blocking NLRB enforcement of its bargaining order against a pork product plant in North Carolina.[14]  He also filed suit to challenge an arbitration decision in favor of a unionized employee.[15]

Farr also filed a Supreme Court amicus brief on behalf of Helms urging affirmance of a decision holding that unions could not spend money on activities unrelated to collective bargaining.[16]

Election Law

In addition to his expertise in labor law, Farr is also known for his extensive litigation experience representing the Republican party, Republican elected officials, and conservative interests in election law litigation.[17]

Early in his career, Farr represented Sen. Jesse Helms (R-NC) and the North Carolina Republican Party in a suit challenging the constitutionality of North Carolina election laws.  The suit arose when Republican Congressman Bill Hendon lost a close election to Democrat James Clarke, and filed suit to challenge the election results, and the North Carolina straight-ticket statute.  After years of litigation, Judge David Sentelle (now on the U.S. Court of Appeals for the D.C. Circuit) found that the statute, which voided cross-over votes cast in opposition to a straight-ticket ballot, was unconstitutional, accepting Farr’s position.[18]

Following the 1990 census, Farr represented the Republican Party of North Carolina in its unsuccessful challenge against the state’s congressional map, alleging partisan gerrymandering.[19]  In 1995, Farr argued the case of Shaw v. Hunt before the U.S. Supreme Court.  The Supreme Court ended up siding with Farr on a 5-4 vote, striking down the congressional map as an unconstitutional racial gerrymander.[20]

In 2001, Farr and future U.S. District Judge James Dever once again challenged the maps drawn by North Carolina’s Democratic legislature, alleging that they were a partisan gerrymander.[21]

In contrast to his litigation against partisan gerrymandering by Democrats, Farr has defended gerrymandering by Republicans.  For example, Farr was a part of the legal team defending the North Carolina legislature’s gerrymandering of the Guilford County Board of Commissioners.[22]

Farr also defended the congressional map and state legislative maps drawn by the Republican legislature against charges that they were unconstitutional racial gerrymanders.[23]  He also defended “election reform” measures enacted by the legislature that, critics argued, would disenfranchise minority voters.[24]

Controversially, Farr’s firm was hired at taxpayer expense to defend North Carolina’s restrictive voter id law against suit by the Department of Justice, who argued that the law disenfranchised minority voters.[25]  In court, Farr argued that voter id was a “minor inconvenience” for voters.[26]  Ultimately, the appeals were dismissed by Democratic Governor Roy Cooper, and Farr was dismissed from the case.[27]

Other Representations

In addition to the cases mentioned above, Farr has defended business interests against civil rights and other actions in court.[28]  Early in his career, Farr successfully defended a railroad accused of promoting white candidates over an experienced black conductor.[29]  Farr also successfully defended American Safety Products, Inc. against breach of contract and RICO claims,[30] as well as defending Dow Corning Corp. against wrongful termination claims.[31]

Political Activity

As may be evident from his frequent appointments by the Republican legislature, Farr is well connected in the North Carolina Republican Party and has been a generous donor to Republicans.  Through his career, Farr has donated to Sen. Lauch Faircloth (R-NC), President George W. Bush, Sen. Elizabeth Dole (R-NC), Sen. Bob Smith (R-NH), Sen. Richard Burr (R-NC), Rep. Renee Ellmers (R-NC), Rep. George Holding (R-NC), Rep. Richard Hudson (R-NC), Mitt Romney, Newt Gingrich, Speaker Paul Ryan, Sen. Thom Tillis (R-NC), and Senate Majority Leader Mitch McConnell, among others.[32]  Farr has also been a strong supporter of President Trump, donating almost $2500 to Trump’s campaign, and an additional $1100 to the Make America Great Again PAC.[33]  While most of his donations are to Republicans, Farr did donate $1000 to Rep. Mike McIntyre (D-NC) in 2009.

Overall Assessment

Both Farr’s supporters and detractors will likely turn to one-word arguments for their position.  For Farr’s supporters, the word is “qualified.”  For his opponents, it’s “partisan.”

As noted, Farr has more experience practicing law than any other Trump nominee.  With almost forty years of legal experience, including work in government, nonprofits, and private practice, Farr is certainly well qualified for a federal judgeship.

However, Farr also has a deeply partisan history.  His switch from attacking partisan gerrymanders drawn by Democrats to defending partisan gerrymanders drawn by Republicans allows detractors to paint him as a partisan ideologue.  Furthermore, his dismissal of the burdens of voter id as a “minor inconvenience” is sure to draw opposition from civil rights groups.

As a bottom line, Democrats, civil rights plaintiffs, and labor unions will argue that, given Farr’s partisan past, he cannot be fair to them in court.  Unlike his first nomination, however, this time, Farr will get a hearing to defend himself and try and put those doubts to rest.


[2] East later gained notoreity as one of the principal opponents of a federal holiday honoring Rev. Martin Luther King, Jr.  Frances Romero, A Brief History of Martin Luther King Jr. Day, Time, Jan. 18, 2010, http://content.time.com/time/nation/article/0,8599,1872501,00.html.

[3] Kim Nilsen, Eillis [sic] Leaves Maupin Taylor & Ellis, Triangle Business Jrnl., Mar. 24, 2003, https://www.bizjournals.com/triangle/stories/2003/03/24/daily11.html.

[4] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[5] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[6] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[7] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[10] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[11] Press Release, Burr and Tillis Welcome Nomination of Thomas Farr as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[12] Joyner v. Abbott Labs., 674 F. Supp. 185, 188 (E.D.N.C. 1987).

[13] N.L.R.B. v. Am. Nat. Can Co., Foster-Forbes Glass Div., 924 F.2d 518, 520 (4th Cir. 1991).

[14] N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir. 1995), supplemented, 81 F.3d 25 (4th Cir. 1996).

[15] Bandag, Inc. v. Local 922, United Steel Workers of Am., No. 5:96-CV-450-BR3, 1996 WL 943527, at *1 (E.D.N.C. Dec. 20, 1996), aff’d sub nom. Bandag, Inc. v. Local 922, 121 F.3d 697 (4th Cir. 1997).

[16] Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 745, 108 S. Ct. 2641, 2648, 101 L. Ed. 2d 634 (1988).

[17] See, e.g. Wesley Brown, Hudson and Jackson Exchange Blows in Senate Race, The Free Press, Oct. 15, 2010 (noting that while representing Sen. Brent Jackson, Farr sent a cease-and-desist letter to his Democratic opponent, alleging untruths in his ads).

[18] Hendon v. N. Carolina State Bd. of Elections, 633 F. Supp. 454, 462 (W.D.N.C. 1986).

[19] Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.), aff’d, 506 U.S. 801, 113 S. Ct. 30, 121 L. Ed. 2d 3 (U.S. 1992).  See also Shaw v. Hunt, 861 F. Supp. 408, 417 (E.D.N.C. 1994), rev’d, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (U.S. 1996).

[20] Shaw v. Hunt, 517 U.S. 899, 902, 116 S. Ct. 1894, 1899, 135 L. Ed. 2d 207 (U.S. 1996).

[21] Stephenson v. Bartlett, 180 F. Supp. 2d 779, 781 (E.D.N.C. 2001).

[22] NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections, 858 F. Supp. 2d 516 (M.D.N.C. 2012).

[23] Harris v. McCrory, 159 F. Supp. 3d 600, 604 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455, 197 L. Ed. 2d 837 (U.S. 2017). See also  Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211, 198 L. Ed. 2d 655 (U.S. 2017).

[24] League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 230 (4th Cir. 2014).

[25] N. Carolina State Conference, of the NAACP v. McCrory, 156 F. Supp. 3d 683, 686 (M.D.N.C. 2016).

[26] Ken Otterbourg, Closing Arguments Given in Key Voter Rights Trial, N.Y. Times, Feb. 2, 2016.

[27] Taft Wireback, Law Firm Disputes Dismissal from NC Voter ID Case, Greensboro News & Record, Feb. 21, 2017, http://www.greensboro.com/news/government/law-firm-disputes-dismissal-from-nc-voter-id-case/article_fc41ca4c-139e-5faf-9232-a5785ca01aba.html.

[28] See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 290 (4th Cir. 2009); Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995); Mumford v. CSX Transp., 878 F. Supp. 827, 829 (M.D.N.C. 1994), aff’d sub nom. Mumford v. CSX Transp., Inc., 57 F.3d 1066 (4th Cir. 1995).

[29] Miller v. Seaboard Sys. R.R., No. C-85-1156-R, 1986 WL 15502, at *1 (M.D.N.C. Dec. 23, 1986).

[30] Grantham & Mann, Inc. v. Am. Safety Prod., Inc., 831 F.2d 596, 598 (6th Cir. 1987).

[31] Riley v. Dow Corning Corp., 876 F. Supp. 732, 733 (M.D.N.C. 1992), aff’d, 986 F.2d 1414 (4th Cir. 1993).

[32] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=Thomas+Farr (last visited Aug. 17, 2017).  

Michael Lawrence Brown – Nominee to the U.S. District Court for the Northern District of Georgia

Third time’s the charm?  After two different Obama nominees were blocked from filling this Atlanta-based judgeship, the Trump Administration has put its hopes on a prominent white collar defense attorney: Michael Lawrence Brown.

Background

Brown has close ties to Atlanta, having grown up there and attended the Marist school, an independent Catholic prep school.[1]  After getting an B.A. from Georgetown University in 1991, Brown attended the University of Georgia Law School, graduating in the Top 10% in 1994.  Following his graduation, Brown clerked for Judge J.L. Edmondson on the United States Court of Appeals for the Eleventh Circuit.

After his clerkship, Brown joined the Atlanta office of King & Spalding, LLC., coinciding with another Trump judicial nominee, Claria Horn Boom.  Brown spent four years at the firm, leaving in 1999 to join the U.S. Attorney’s Office for the Southern District of Florida.

In 2002, Brown was hired by then-U.S. Attorney William Duffey to be a federal prosecutor in the Northern District of Georgia.  He served in this role until 2005, when he moved to the Atlanta office of Alston & Bird.  He currently serves as a partner and the co-leader of the firm’s Government & Internal Investigations Team.

History of the Seat

Brown has been nominated for a seat on the U.S. District Court for the Northern District of Georgia.  This seat was vacated on July 31, 2014, when Judge Julie Carnes was elevated to the U.S. Court of Appeals for the Eleventh Circuit.  Twice, President Obama attempted unsuccessfully to fill this seat.  His first nominee was then-Georgia Court of Appeals judge (and current Georgia Supreme Court Justice) Michael Boggs.[2]  Boggs, a conservative Democrat, was part of a six judge package negotiated between the White House and Georgia’s Republican senators.  Unfortunately, while Boggs received a hearing with the other nominees from the package, he faced strong opposition from progressive groups, who objected to stances he had taken as a state senator.[3]  Ultimately, the Senate Judiciary Committee did not process Boggs’ nomination, and the White House abandoned the nomination.[4]

Facing a Republican-controlled Judiciary Committee, Obama nominated Judge Dax Eric Lopez of the State Court of Dekalb County on July 30, 2015.[5]  However, Lopez, a Latino Republican, drew sharp opposition from some Georgia conservatives for his participation in the Georgia Association of Latino Elected Officials, a nonpartisan civic organization.[6]  Ultimately, Lopez’s nomination was blocked by Sen. David Perdue (R-GA), who declined to return his blue slip.[7]

President Trump declined to renominate Lopez, instead nominating Brown on July 13, 2017.

Legal Experience

Brown began his legal career as a clerk for Judge J.L. Edmondson on the U.S. Court of Appeals for the Eleventh Circuit.  He followed this up by joining the Atlanta office of King & Spalding as an associate.  During his time there, Brown was part of a legal team representing a holding company in a legal malpractice action against its former attorneys.[8]  Brown also defended a furniture manufacturer against antitrust liability,[9] and served as court appointed counsel in a Bivens action against federal agents.[10]

In 1999, Brown moved to Florida to serve as an Assistant United States Attorney (AUSA).  In 2002, he moved back to Atlanta to work as an AUSA in the Northern District of Georgia.  In this role, he was part of the legal team prosecuting Baltimore Ravens running back Jamal Lewis for drug charges in 2004.[11]  This case also drew criticism for Brown, as U.S. District Judge Orinda Evans found the charges “weak.”[12]  The felony charges were ultimately plead down to a single charge of using a cellphone to help facilitate a drug deal.[13]

In 2004, Brown moved to the Atlanta office of Alston & Bird, where he currently serves.  In that role, Brown developed a reputation for the vigorous defense of defendants accused of white-collar and corruption crimes.[14]  Notably, Brown represented Crawford Lewis, a former DeKalb County School Superintendent charged with public corruption and racketeering.[15]  Brown helped secure a probationary sentence for Lewis, who was facing up to 65 years in jail, in exchange for testimony against his co-defendants.[16]  When Judge Cynthia Becker, who was unimpressed with the deal, sentenced Lewis to prison anyway, Brown “flooded Becker’s office with calls and emails asking for bond.”[17]  The Georgia Court of Appeals eventually granted the bond request and Becker was struck from the bench for her conduct in the case.

Brown also represented Tyler Peters, a bond trader who was ultimately acquited of conspiracy, securities fraud and wire fraud charges.[18]  Brown has also handled antitrust matters including representing automobile safety manufacturer Autoliv Inc.

Political Activity

Brown has been fairly active as a political donor, having contributed to former Republican Senator Saxby Chambliss and current Senator David Perdue.[19]  In 2012, Brown contributed a total of $3600 to Mitt Romney’s presidential candidacy.  More recently, Brown contributed $1000 to the Right to Rise PAC, which supported the presidential campaign of former Florida Governor Jeb Bush.  While most of Brown’s contributions have been to Republicans, his most recent contribution was $250 to California Senator Kamala Harris.

In 2012, Brown was one of two non-jurists to be included on Gov. Nathan Deal’s list of finalists for a Georgia Supreme Court vacancy.  Deal ultimately chose Georgia Court of Appeals judge Keith Blackwell.

Overall Assessment

As an appellate clerk, a former federal prosecutor, and a law firm partner, Brown is well-qualified to serve as a federal judge.  Having served as a prosecutor and a defense attorney, Brown has the experience to gauge both sides of a criminal case.  At any rate, Brown lacks the baggage that brought down both the Boggs and Lopez nominations.  As such, as a candidate who supported both David Perdue and Kamala Harris, Brown will likely be confirmed comfortably.


[1] R. Robin McDonald, Alston & Bird Partner Brown’s Path to the Georgia Federal Court Bench, Daily Report, July 18, 2017, http://www.dailyreportonline.com/id=1202793307311/Alston-amp-Bird-Partner-Browns-Path-to-the-Georgia-Federal-Court-Bench?slreturn=20170709231611.

[2] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (Dec. 19, 2013) (on file at https://obamawhitehouse.archives.gov).  

[3] See Humberto Sanchez, Next Nasty Nomination Fight for Obama: Michael Boggs on the Hot Seat, RollCall, March 10, 2014, http://www.rollcall.com/news/home/debo-adegbile-defeat-emboldens-michael-boggs-opponents.

[4] Burgess Everett, Obama Abandons Judicial Nomination, Politico, Dec. 31, 2014, http://www.politico.com/story/2014/12/president-obama-abandon-michael-boggs-nomination-113898.

[5] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).  

[6] See Greg Bluestein, Johnny Isakson Says Dax Lopez Deserves a Hearing: ‘I Believe in the Constitution’, The Atlanta Journal Constitution, Jan. 11, 2016, http://politics.blog.ajc.com/2016/01/11/johnny-isakson-says-dax-lopez-deserves-a-hearing-i-believe-in-the-constitution/.

[7] Seung Min Kim, Republican Senator Sinks GOP Judge’s Nomination, Politico, Feb. 2, 2016, http://www.politico.com/story/2016/02/dax-lopez-federal-judge-appointment-david-perdue-218460.

[8] Hunter, MacLean, Exley & Dunn, P.C. v. Frame et al., 507 S.E.2d 411 (Ga. 1998).

[9] Rockholdt Furniture Inc. v. Kincaid Furniture Co., Inc.; Rhodes Furniture Co., 1999 U.S. App. LEXIS 22426 (6th Cir., Sept. 10, 1999).

[10] Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998).

[11] George Henry, Lewis Pleads Not Guilty to Drug Charges; No Trial Date Established for Ravens Running Back, Wash. Post, Feb. 27, 2004.

[12] See supra n. 1.

[13] See id.

[14] See id.

[15] See id.

[16] Maghen Moore, DeKalb Judge Becker Gobbled Up in Corruption Investigation, The Atlanta Journal-Constitution, Aug. 26, 2015, http://www.myajc.com/news/local/they-wanted-head-the-wall-judge-becker-says/A8Vq5qrwcasZvFBlP26CLI/.

[17] Id.

[18] Press Release, Alston & Bird, Former Nomura Bond Trader Wins Jury Acquittal on Securities & Wire Fraud Charges (June 20, 2017) (on file at https://www.alston.com/en/insights/news/2017/06/former-nomura-bond-trader-wins-jury-acquittal).

Liles Burke – Nominee to the U.S. District Court for the Northern District of Alabama

Judge Liles Burke, now 48, is one of three Alabama district court nominees put forward by the Trump Administration.  Having been a judge since his early thirties, Burke currently serves on the Alabama Court of Criminal Appeals.  Burke’s conservative record on and off the bench will likely endear him to Senate Republicans, while raising concerns among Democrats.

Background

Liles Clifton Burke was born in Arab, AL in June 1969.  The son of a prominent local attorney, Burke attended public school and graduated from The University of Alabama in 1991.  He went on to the University of Alabama Law School, graduating in 1994.

After graduation, Burke returned to Arab to join his father’s firm.  While working there, Burke also served as Arab’s Municipal Prosecutor and City Attorney.  In 2001, Burke was appointed a Municipal Judge for Arab.  In 2006, he was elevated to be a Marshall County District Judge by Republican Governor Bob Riley.

In 2011, Republican Governor Robert Bentley appointed Burke to a seat on the Alabama Court of Criminal Appeals, the chief intermediate court in the state for criminal issues.[1]  Burke was elected unapposed to a full term on the court in 2012 and still serves as an associate judge.

History of the Seat

Burke has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat opened on August 31, 2013, when Judge Charles Lynwood Smith moved to senior status.[2]  While the seat opened only a year into President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[3]  President Trump announced Burke’s nomination to the vacancy on July 13, 2017.[4]

Jurisprudence

Burke’s first judicial position was as a Municipal Judge in Arab, Alabama.  In this capacity, Burke handled hearings on misdemeanor and traffic offenses, as well as issuing warrants and handling bond hearings.  Upon his elevation to the District Court, Burke handled more serious criminal matters, as well as civil proceedings.  In that role, Burke helped set up a family drug court and domestic violence court in Marshall County.[5]  During his four year tenure as a District Judge, Burke had only one case overturned by a higher court.[6]

As a judge on the Alabama Court of Criminal Appeals, Burke reviewed appeals from criminal cases brought in Alabama trial courts.  As their cases could only be appealed through a writ of certiorari to the Alabama or the United States Supreme Courts, Burke and his colleagues frequently were the final word on criminal law in Alabama.  During his tenure, Burke established himself as a part of the court’s conservative mainstream, rarely dissenting or concurring.[7]  The following patterns are established in his jurisprudence.

General Affirmance of Death Penalty Convictions

Burke has consistently voted to affirm the imposition of the death penalty,[8] even in circumstances that have led his colleagues to question its application.  In Lane v. State of Alabama, Burke affirmed the death penalty against a series of challenges by the defendant.[9]  Specifically, Burke rejected arguments that the defendant was mentally retarded, and that violent rap lyrics written by the defendant were unfairly used against him, noting:

“The fact that Lane wrote such lyrics makes it more likely, though not certain, that he held such violent behavior in high esteem. The fact that Lane valued that type of behavior is probative of both his motive and intent in shooting Wright and stealing his vehicle.”[10]

Judge Samuel Welch dissented on both those points, noting that the rap lyrics, written years before the crime, had no probative value in the trial.[11]  Further, on the issue of Lane’s mental disability, Welch criticizes the legal standard used by Burke to examine the case, noting:

“I do not believe that the majority’s statement is an accurate statement of the law.”[12]

Burke’s opinion was vacated by the U.S. Supreme Court, which remanded the case back to the Alabama Court of Appeals to be reconsidered in light of Hall v. Florida.  On remand, Burke again affirmed the death penalty, over dissents by Welch and Judge J. Elizabeth Kellum.[13]

Similarly, Floyd v. State involved a challenge by a white defendant under Batson v. Kentucky.[24]  The defendant argued that his rights were challenged by the prosecutor’s decision to strike 10 out of 11 african american venire members and 12 out of 18 women.  Floyd’s initial challenge resulted in a remand by the Court of Criminal Appeals to determine the race-neutral reason for the strikes.  When the trial court again ruled against Floyd, the Court of Criminal Appeals affirmed his death sentence on the second appeal.  However, the Alabama Supreme Court reversed and sent the case back down to the trial court.  On the third appeal, Burke wrote the opinion rejecting the Batson challenge.  Burke’s ruling was affirmed by the Alabama Supreme Court,[25] but reversed by the U.S. Supreme Court.[26]  On remand, the Alabama Supreme Court reinstated the death penalty against Floyd.[27]

Like in Lane and Floyd, Burke has shown a willingness to re-impose the death penalty where higher courts have reversed previous decisions on the issue.[14]  For example, in Wimbley v. State of Alabama, Burke joined a unanimous court in re-affirming the death penalty after it was vacated by the Supreme Court.[15]

Willingness to Consider Sufficiency of the Evidence Arguments

In contrast to his rigid stance on the death penalty, Burke has shown a willingness to overturn convictions based on “sufficiency of the evidence” arguments.  “Sufficiency of the evidence” challenges argue that, based on the evidence offered at trial, no reasonable juror would find that the elements of the crime have been proven.  During his tenure, Burke has written several opinions overturning convictions based on insufficient evidence.[16]

Burke’s willingness to entertain challenges based on “sufficiency of the evidence” is particularly surprising as trial judges and juries are generally given deference in factual issues, and federal judges from both political parties almost always reject appeals based on the “sufficiency of the evidence.”

Mixed Record on Criminal Procedural Protections

Burke’s record on protecting defendant’s Fourth, Fifth, and Sixth Amendment rights is decidedly mixed.  While Burke generally affirms convictions against criminal procedural challenges, he has demonstrated a willingness to side with defendants in some cases.

For example, Burke voted to overturn the conviction of a driver who was pulled over for driving with a cracked windshield.[17]  In his majority opinion, Burke noted that, as Alabama law does not specifically prohibit driving with a cracked windshield, the traffic stop was improper and all evidence obtained violates the Fourth Amendment.[18]  In contrast, most of Burke’s votes on Fourth Amendment issues have been against the defendant.[19]  Notably, Burke wrote for the majority in finding that a bag of narcotics recovered from a defendant’s pocket was in “plain view” and as such did not violate the Fourth Amendment.[20]  Judges Welch and Kellum dissented, pointing out that the police officers could not see the contents of the bag from the defendant’s pocket, merely the “knot” and as such, there was no probable cause to assume that the bag contained contraband.[21]

Similarly, Burke reversed a trial court judge who had found that a juvenile defendant’s waiver of his Miranda rights was not “intelligent and voluntary.”[22]  This opinion drew a sharp dissent from Welch, who argued that Burke failed to follow the deferential standard of review for trial court factual findings.[23]

Conservative Rulings on Divisive Issues

In addition to the rulings above, Burke’s votes in two cases involving divisive social issues may draw scrutiny.

Diggs v. State[28] – This case involved Alabama’s “Stand Your Ground” Law.  The defendant, charged with manslaughter, argued that he shot the victim in self-defense after the victim fired first.  The trial court refused to instruct the jury on self-defense.  The Court of Criminal Appeals reversed, finding that the jury should have instructed on both self-defense and the lack of a right to retreat.  Burke concurred with the result.

Gilbert v. State[29]– This case involved a constitutional challenge to Alabama’s sexual misconduct law.  Specifically, the defendant argued that, in criminalizing a consensual sexual encounter between two men, the law violated Lawrence v. Texas.  In writing for the court, Burke rejected this argument.  He noted that, even though the statute, on its face, criminalizes consensual “deviate sexual intercourse,” the defendant had not demonstrated that his own conduct was consensual, and as such, did not fall within the bounds of Lawrence. Judge Kellum dissented from this holding.

Political Activity

Burke is a Republican and has run for judicial office on the Republican Party line.[30]  In 2012, Burke was re-elected unopposed as a Republican to the Court of Criminal Appeals.  In addition, Burke has been fairly active as a donor, including political donations to Rep. Robert Aderholt, and the Alabama Republican Party.  Notably, as a sitting judge, Burke donated to Sen. Marco Rubio in 2015.[31]

Twitter Use

Since August 2012, Burke has maintained a Twitter account under the handle @JudgeLilesBurke.[32]  While the account has “Judge” in the title, it serves primarily as a personal account.  While the vast majority of the posts are innocuous, sharing family photos, his views on sports, and inspirational Bible messages, some posts focus on controversial subjects including religion and politics.

Religion

Burke, who is a committed Christian, frequently tweets and retweets inspirational Bible messages and verses.[33]  On occasion, Burke has tweeted his support for the expansion of Christianity.  For example, on Dec. 22, 2013, Burke retweeted a message from Pastor Steve Gaines, who said:

“I pray that the Lord will raise up more preachers in 2014 who will preach God’s Word compassionately & passionately with no compromise.”

Similarly, on Sept. 12, 2015, Burke posted an article from Christianity Today under the caption: “Christianity is surging in the heart of Islam.”

Burke has also tweeted messages against Islamic extremism, tweeting on March 31, 2015:

“68 Christian churches burned by Muslim extremists.  We must pray for those people of faith who are suffering.”

Similarly, on Feb. 21, 2015, Burke retweeted conservative journalist Sean Davis:

“I believe Obama when he says he’s a Christian.  I also believe ISIS when it claims to be Islamic.”

Burke has also tweeted articles criticizing agnosticism,[34] and atheism.[35]

Politics

Burke’s tweets on politics fall into two main categories.  The more numerous category of posts details partisan events for the Alabama Republican Party he attended as a judge.[36]  The second category of posts are more overtly political.  In tweets, Burke has criticized Bernie Sanders,[37] Edward Snowden,[38] and socialism.[39]  He also tweeted messages supporting Margaret Thatcher,[40] Ronald Reagan,[41] George H.W. Bush,[42] and Senator Richard Shelby.[43]  During the Alabama referendum elections in March 2016, Burke also tweeted messages of support for Amendment 1, which allows the legislature to restructure judicial retirement.

Overall Assessment

Critics of the Trump Administration will find much to dislike about Burke, from his conservative record on the Alabama Court of Criminal Appeals to his active affiliation with the Republican party.  Burke’s opinion in Lane, indicating that writing violent rap lyrics is probative of motive and intent to commit crimes, is likely to draw particular criticism.

Burke’s tweets are another source of concern.  Alabama’s Canons of Judicial Ethics instruct judges to “avoid impropriety and the appearance of impropriety,” “regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties,” and “refrain from political activity inappropriate to judicial office.”  It could be argued that Burke’s tweets on political issues, including his endorsement of Republican candidates and Amendment 1, violate these canons.  Burke’s tweets on religious issues do not raise a similar concern, but may draw criticism from those advocating a separation of church and state.

Burke’s defenders may argue that, given Alabama’s system of electing judges through partisan elections, Burke’s campaigning and involvement with the Republican party is inevitable.  They will also point out that Burke has frequently supported defendants in non-capital cases, and that his record does not suggest any bias in favor of prosecutors.

With a Republican majority in the Senate, Burke is almost certain to be confirmed.  If and when he makes it through the process, he will likely bolster the ranks of conservatives on the Alabama federal bench.


[1] Charles Whisenant, Burke is Appointed by Gov. to State Court, The Arab Tribune, Feb. 21, 2011, http://www.thearabtribune.com/news/burke-is-appointed-by-gov-to-state-court/article_9893de61-4e3e-5212-bb22-9713436d4d61.html.

[2] Brian Lawson, U.S. District Judge Lynwood Smith Retiring From Active Service, Will Continue ‘Substantial Judicial Duties’, AL.com, Aug. 2, 2013, http://blog.al.com/breaking/2013/08/us_district_judge_lynwood_smit.html.

[3] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[4] Press Release, White House, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-fifth-wave-judicial-candidates).  

[5] Supra n.1.

[6] See id.

[7] Burke authored concurrences or dissents in less than 20 cases out of the over 300 cases he oversaw.

[8] See, e.g., Johnson v. State, 2015 Ala. Crim. App. LEXIS 3 (Ala. Crim. App. Feb. 6, 2015); ; Thomas v. State, 155 So. 3d 270 (Ala. Crim. App. 2013). But see Smith v. State, 157 So. 3d 1007 (Ala. Crim. App. 2014) (reversing death sentence due to improper admission of polygraph evidence).

[9] See Lane v. State, 169 So. 3d 1076 (Ala. Crim. App. 2013).

[10] Id. at 1099.

[11] See id. at 1143 (Welch, J., dissenting) (“Even if writing rap lyrics about violence established that the songwriter held violent behavior in high esteem, and I do not agree that it does, it is sheer speculation to hold that valuing violent behavior somehow established motive or intent as to the robbery-murder of Wright.”).

[12] Id. at 1147.

[13] See Lane v. State, 2016 Ala. Crim. App. LEXIS 21 (Ala. Crim. App., Apr. 29, 2016).

[14] See, e.g., Russell v. State, 2016 Ala. Crim. App. LEXIS 81 (Ala. Crim. App., Dec. 16, 2016).

[15] See Wimbley v. State, 2016 Ala. Crim. App. LEXIS 83 (Ala. Crim. App., Dec. 16, 2016).

[16] See Caver v. State, 219 So. 3d 1 (Ala. Crim. App. 2016); McClellion v. State, 167 So. 3d 381 (Ala. Crim. App. 2014); Folds v. State, 143 So. 3d 845 (Ala. Crim. App. 2013); Black v. State, 74 So. 3d 1054 (Ala. Crim. App. 2011). But see Evans v. State, 82 So. 3d 766 (Ala. Crim. App. 2011) (affirming conviction against sufficiency of the evidence standards).

[17] JDI v. State, 77 So. 3d 610 (Ala. Crim. App. 2011).

[18] See id. at 621.

[19] See, e.g., Skipper v. State, 195 So. 3d 1075 (Ala. Crim. App. 2015); Pickering v. State, 194 So. 3d 980 (Ala. Crim. App. 2015); State v. Harris, 159 So. 3d 86 (Ala. Crim. App. 2014).  

[20] Nix v. State, 136 So. 3d 1101 (Ala. Crim. App. 2013).

[21] See id. at 1106 (Welch, J., dissenting).

[22] State v. RC, 195 So. 3d 317 (Ala. Crim. App. 2015).

[23] See id. at 326 (Welch, J., dissenting).

[24] Floyd v. State, 190 So. 3d 987 (Ala. Crim. App. 2013).

[25] Floyd v. State, 191 So. 3d 147 (Ala. 2015).

[26] Floyd v. Alabama, 136 S. Ct. 2484 (2016).

[27] Floyd v. State, 2016 Ala. LEXIS 132 (Ala., Nov. 18, 2016).

[28] Diggs v. State, 168 So. 3d 156 (Ala. Crim. App. 2014).

[29] Gilbert v. State, 2016 Ala. Crim. App. LEXIS 15 (March 18, 2016).

[30] Judges are elected in partisan elections in Alabama.

[32] https://twitter.com/judgelilesburke?lang=en

[33] See, e.g., Retweet of David Jeremiah, July 31, 2015.

[34] See Tweet, Jan. 28, 2015 (“Great article by Rabbi Wolpe.  ‘Being spiritual is not the same as being religious.’”

[35] See Tweet, Nov. 18, 2014 (“This is a great short read that made my day. ‘How a French Atheist Becomes a Theologian’”).

[36] See, e.g., Tweet, Sept. 3, 2016 (“I greatly enjoyed speaking to the Cullman County Republicans today about Alabama’s Court System.  Many old friends.”).

[37] See Retweet of Ben Shapiro, June 6, 2016 (“To be fair, if Sanders understood math, he wouldn’t be a socialist.”).

[38] See Retweet of Ari Fleischer, June 10, 2013 (“Real whistleblowers don’t flee the country.”).

[39] See Tweet, Apr. 16, 2016 (“For those in our country who seem to have forgotten that socialism always ends badly, look no further than this…”).

[40] See Tweet, Jan. 17, 2014 (quoting Margaret Thatcher) (“The facts of life are conservative.”).

[41] See Tweet, Oct. 4, 2014 (“The country I love sure needs another dose of this great man.”).

[42] See Tweet, June 26, 2016 (“I miss President Bush’s leadership and his keen sense of humor.”).

[43] See Tweet, Feb. 1, 2016 (“…Thank you, Senator, for all you do for our state!”).

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

New Judicial Nominations – Aug. 3, 2017

Today, the White House submitted another two nominees to the U.S. Court of Appeals and six nominees to the U.S. District Courts.  The nominees are:

Michael B. Brennan – a partner at the Milwaukee law firm Gass Weber Mullins LLC. has been nominated for a Wisconsin seat on the Seventh Circuit.

Donald C. Coggins – an attorney in private practice in Spartanburg, Coggins has been nominated for the U.S. District Court for the District of South Carolina.  Coggins had previously been nominated to this court by President Obama.

Judge Terry A. Doughty – a state court judge, Doughty has been nominated for the U.S. District Court for the Western District of Louisiana.

L. Steven Grasz – the senior counsel at Husch Blackwell LLP. has been nominated for a Nebraska seat on the Eighth Circuit.

Michael J. Huneau – a Lafayette attorney in private practice, Juneau has been nominated for the U.S. District Court for the Western District of Louisiana.

A. Marvin Quattlebaum – an attorney in private practice in Greenville, Quattlebaum has been nominated for the U.S. District Court for the District of South Carolina.

Holly Lou Teeter – a federal prosecutor, Teeter has been nominated for the U.S. District Court for the District of Kansas.

Judge Robert E. Weir – a federal magistrate judge, Weird has been nominated for the U.S. District Court for the Eastern District of Kentucky.