L. Steven Grasz – Nominee to the U.S. Court of Appeals for the Eighth Circuit

L. Steven “Steve” Grasz has a long history of partisan political advocacy, including his current stint working in both litigation and lobbying.  The well-connected attorney is also notably the first Trump nominee to get a unanimous “Not Qualified” rating from the American Bar Association (ABA).  Even setting the rating aside, Grasz’ strong conservative views, and his long record of expressing such views virtually guarantee him a tough confirmation.

Background

Leonard Steven Grasz was born in 1961 in Chappell, Nebraska.  After getting a B.A. from the University of Nebraska at Lincoln in 1984, Grasz moved to Washington D.C. to work as a Legislative Assistant for Republican Congresswoman Virginia Smith.  After a year in Washington, Grasz returned to Nebraska for law school, joining the University of Nebraska College of Law.  In 1986, Grasz took a leave of absence from law school to work as the State Campaign Coordinator for Don Stenberg, who was running for Attorney General of Nebraska.  After Stenberg lost the primary to incumbent Robert Spire, Grasz returned to law school.  Grasz graduated Order of the Coif in 1989.

After graduating, Grasz joined the Omaha office of Kutak Rock LLP. as an associate.  In 1991, after the election of Don Stenberg as Nebraska Attorney General, Grasz was hired to be Chief Deputy Attorney General.  Grasz held this position throughout Stenberg’s tenure, departing in 2002 as Stenberg’s final term wound down.

In 2002, Grasz joined the Omaha office of Husch Blackwell LLP. as Of Counsel.  In 2005, Grasz was made a Partner at the firm, and in 2013, he was named a Senior Partner.  Grasz currently serves as a Senior Partner in their office.

From August 2015, Grasz has served on the Board of the Nebraska Family Alliance, a non-profit organization that advocates for a traditional conception of family, marriage, and “foundational principles.”  The Nebraska Family Alliance takes on a number of issues, from combatting human trafficking, to fighting policies by the Nebraska State Activities Association to make sports more welcoming to transgender and gender-non-conforming students.  Grasz also served for two years as Assistant Secretary for Nebraskans for the Death Penalty, Inc., an organization seeking to overturn a legislatively imposed ban on the death penalty.

History of the Seat

Grasz has been nominated for a Nebraska seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat opened on June 30, 2017 with Judge William J. Riley’s move to senior status.  Riley, an appointee of President George W. Bush, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2014, but chose to remain active until June, announcing his retirement in December 2016.

In early 2017, Grasz expressed his interest in appointment to the Eighth Circuit to Nebraska Senators Deb Fischer and Ben Sasse.  On March 15, Grasz formally submitted an application to the Senators’ online judicial selection process.  Grasz was formally recommended for the vacancy on May 23, 2017, and was nominated on August 3rd, 2017.[1]

Political Activity

Grasz has a long history of involvement with the Republican party, from his service on the campaign of Republican Don Stenberg back in 1986 to his current membership as Legal Counsel and Treasurer for Republican Governor Pete Ricketts’ election committee.  Additionally, Grasz has contributed to the campaigns of numerous Republicans including Stenberg, former Congressman Lee Terry, the Nebraska Republican Party, and the Presidential Campaign of Mitt Romney.[2]

Additionally, Grasz served as General Counsel for the Nebraska Republican Party from 2007-2013, and served as Legal Counsel to the mayoral campaigns of Republican Jean Stothert.

Legal Experience

Grasz’ first legal position out of law school was conducting legal research on commercial civil litigation issues as an Associate at Kutak Rock LLP.  After moving to the Nebraska Attorney General’s office in 1991, Grasz had two primary roles: to provide legal guidance through writing Attorney General Opinions; and to represent the State of Nebraska in state and federal litigation.

One of the most significant cases that Grasz participated in as Chief Deputy Attorney General was Stenberg v. Carhart.  This suit involved a challenge to Nebraska’s ban on late-term abortions involving particular techniques.  Dr. LeRoy Carhart, an abortion provider specializing in late-term abortions, brought suit against the law, and Grasz was the chief counsel defending the law.  U.S. District Judge Richard Kopf,[3] the Eighth Circuit Court of Appeals,[4] and the U.S. Supreme Court in a 5-4 vote all struck down the statute,[5] ruling against Grasz’s position.  Grasz argued the case at the trial and appellate levels, and briefed at the Supreme Court, where Stenberg handled the oral argument.

Grasz also participated in other controversial cases.  In 2001, he successfully argued that allowing a woman to adopt her lesbian partner’s biological child would be an “end-run” around Nebraska’s ban on same-sex marriage.[6]  In another case, Grasz argued against employees seeking accommodation for their clinical depression under the Americans with Disabilities Act (ADA), noting “[i]t’s not a reasonable accommodation for the state to pay them for not getting any work done.”[7]  He also led the state’s first suit prosecuting farmers under I-300, an initiative prohibiting non-family farms from owning land or livestock for farming or ranching.[8]

Grasz also occasionally challenged the constitutionality of Nebraska statutes and ballot provisions, including a successful challenge against Nebraska’s ban on ‘soft money’ in political financing.[9]

As Chief Deputy Attorney General, Grasz was occasionally called upon to offer opinions on Nebraska law.  In one opinion, Grasz noted that the Defense of Marriage Act did not protect Nebraska from being forced to recognize same sex marriages, and suggested that a Nebraska ban on same sex marriage was necessary.[10]  In another opinion, Grasz reversed a 1973 Attorney General opinion that held that the State Constitution prohibited the leasing of air rights to a private entity.[11]  This reversal cleared the way for construction of a monumental arch over I-80.[12]  This opinion drew sharp criticism from State Senator Chris Beutler, who questioned its objectivity and noted “the handling of the entire question by the Attorney General’s office was unprofessional.”[13]  In another instance, Grasz refused to approve the Nebraska Board of Education’s standards, noting that presenting evolution as a fact, rather than a theory could violate student’s free exercise rights.[14]

In 2003, Grasz left the Attorney General’s office to re-enter private practice at Husch Blackwell LLP.  As a private practice attorney, Grasz has split his time between litigation and government relations (lobbying) on behalf of firm clients.  On the litigation side, Grasz notably led a challenge to the constitutionality of I-300, which he had defended as a government attorney.[15]  Grasz also represented pro-capital punishment advocates in defending the validity of a ballot initiative seeking to reinstate capital punishment in Nebraska.[16]

Speeches and Writings

Over the course of his legal career, Grasz has made public statements on the law both in his official capacity and as a private citizen.  Below, we have summarized some of the key areas where Grasz has built a record.

Reproductive Rights (& Carhart)

Grasz is a strong opponent of late-term abortions, and has been critical of the application of the Roe and Casey framework to their regulation.  In 1999, Bush authored a paper titled “If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being.”[17]  The paper, draws a distinction between termination of an “unborn” fetus, which is protected by Roe and “partial-birth abortion,” which is equated to infanticide.[18]  While acknowledging that this distinction is set apart from the “viability” standard established in Roe, Grasz urges courts to hold that the “partially-born” are protected as persons under the Fourteenth Amendment.[19]  Grasz’ paper drew sharp criticism from U.S. District Judge Richard Kopf, himself a Republican, who authored a response noting:

“I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry.”[20]

Judicial Selection in Nebraska

In 2012, Grasz authored a report for the Federalist Society on “Judicial Selection in Nebraska.”[21]  The report is sharply critical of the current merit-selection system that Nebraska has in place, arguing that the system magnifies the influence of groups such as the ACLU, Planned Parenthood and the Trial Lawyers’ Association (although it does not cite any sources for this claim).[22]  The report also criticizes the Nebraska model for limiting selection membership by party, and by treating independents on par with the major parties even though only 18% of Nebraskans are registered independents.[23]  Finally, the Report offers a series of reforms intended to improve the merit selection process, including broadening the base of candidates to the nominating commission, and reducing the influence of the ABA.[24]

Regulating Visual Depictions of Child Nudity

In 1998, Grasz co-authored a law review article titled “Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children.”[25]  While acknowledging that lower courts have mostly held the opposite, the article argues that the First Amendment does not protect the nude depictions of children outside the context of pornography to the same extent that adults are protected.[26]  The article also offers model language for lawmakers to follow to craft a constitutional statute that would regulate nude depictions of minors.[27]

Letters to the Editor

Throughout his life, Grasz has authored numerous letters to the editor detailing his political views.  In one, Grasz criticizes EPA regulations as “outrageous and unnecessary” and notes that “we are going to file as many suits in as many courts as necessary” to invalidate the criticized regulations.[28]  In another, Grasz criticizes Chief Justice Roberts for voting to preserve the Individual Mandate in the Affordable Care Act, noting that the decision “ushered in the ultimate transfer of limitless power to the federal government.”[29]

ABA Rating

On October 30, 2017, the American Bar Association Standing Committee on the Federal Judiciary rated Grasz “Not Qualified” for a seat on the Eighth Circuit by a unanimous vote.  The accompanying report by Pamela Bresnahan details the process of the evaluation and outlines three main reasons for the rating:

First, Bresnahan notes that concerns were raised based on Grasz’ views of stare decisis.  Specifically, Grasz’ article on Partial-Birth Abortion was considered a call to judicial activism by the Committee.

Second, Bresnahan adds that several concerns were raised about Grasz’ willingness to separate his personal views from his role as a judge.  Bresnahan noted that several of the attorneys who had worked with Grasz indicated that Grasz was not “open-minded” and that bias would infect his rulings.

Finally, Bresnahan notes that many of the individuals interviewed described Grasz as “gratuitously rude” in their personal interactions.

Bresnahan also makes two additional points worth noting.  First, she notes that several attorneys seemed to be omitted in his Judiciary Questionnaire.  Second, she notes that many of the interviewees were reluctant to participate, given Grasz’ close-connections within the Nebraska Republican Party.

Overall Assessment

Until this week, the Grasz nomination had proceeded fairly quietly, for several reasons.  First, unlike other nominees, including Barrett, Larsen, Eid, and Bibas, Grasz came from a state with two Republican senators, vitiating the need for blue slip lobbying.  Second, unlike the previous set of nominees, Grasz was not an academic, and thus, did not have the same level of paper trail of controversial ideas.  In fact, before last week, the main criticism of Grasz was based on his service on the Board of the Nebraska Family Association.[30]

However, that has all changed with the ABA rating release yesterday.  Now, liberals are pushing back aggressively against Grasz, arguing that he is unqualified for the bench, while conservatives, such as Sen. Ben Sasse,[31] are attacking the ABA as a liberal interest group.  Regardless of your views of the ABA’s reasoning (and its bias), there is plenty in Grasz’ record to raise concerns among senators.

First, it can be argued that Grasz’ writings show an inclination towards bending the law to serve policy functions.  Grasz’ piece on Partial Birth Abortion has already been criticized by the well-respected Kopf for endorsing judicial activism.  Furthermore, Grasz’ argument that visual representations of child nudity are not protected by the First Amendment, when most courts have held the opposite, suggests a bent towards legal reasoning focused on policy results rather than prior precedent.  While such thinking is acceptable as an advocate, it is concerning on the bench.

Second, Grasz’ tenure at the Nebraska Attorney General’s office suggests a tendency to interpret the law in accordance with political preferences.  Notably, Grasz’ conclusion that teaching evolution as fact violates the free exercise rights of students is at odds with the Supreme Court’s ruling to the contrary in Edwards v. Aguillard.  Furthermore, Grasz’ willingness to overturn a prior Attorney General opinion to enable the construction of an arch on a Nebraska highway has already drawn criticism from state officials.[32]

Overall, taking Grasz’ career, his writings, and his advocacy together lends a picture of a brilliant but deeply conservative advocate.  However, it also raises legitimate questions about Grasz’ willingness to base his rulings solely on the law as written, rather than the law as conservatives may wish it to be.  Grasz’ confirmation hearing tomorrow will better determine if such concerns are well-founded or not.


[1] Press Release, White House, President Donald J. Trump Announces Sixth Wave of Judicial Candidates and Fifth Wave of U.S. Attorney Candidates (Aug. 3, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=grasz&order=desc&sort=D (last visited Oct. 30, 2017).  

[3] Carhart v. Stenberg, 11 F. Supp. 2d 1134 (D. Neb. 1998).

[4] Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999).

[5] Stenberg v. Carhart, 530 U.S. 914 (2000).

[6] Margaret Reist, Gay Couple Battles Adoption Law, Lincoln Journal Star, Aug. 5, 2001.

[7] Stephanie Armour, Disabilities Act Abused? Law’s Use Sparks Debate, USA Today, Sept. 25, 1998.

[8] Art Hovey, State to Sue to Enforce Farming Law: Says Company Too Far-Flung to Be Family, Lincoln Journal Star, July 15, 1999.

[9] Butch Mabin, ‘Soft Money’ Law Defended Case Goes to Supreme Court, Lincoln Journal Star, Sept. 29, 1999.

[10] Same-Sex Marriage – Impact of Baehr v. Lewin and the Defense of Marriage Act on Nebraska Law, Neb. Op. Att’y Gen. No. 96090 (December 30, 1996).  See also Butch Mabin, State May Need Own Ban on Same-Sex Marriages, Lincoln Journal Star, Dec. 31, 1996.

[11] Legality of Leasing State Right of Way Space Above Interstate 80 for Development of an Archway, Neb. Op. Att’y Gen. No. 97048 (September 16, 1997).

[12] Fred Knapp, I-80 Archway Clears Hoop with Decision State Allowed to Lease Air Rights, Lincoln Journal Star, Sept. 17, 1997.

[13] Association Press and Journal Star Writers, Opinion on Archway Questioned, Lincoln Journal Star, Sept. 18, 1997.

[14] Kara G. Morrison, Evolution v. Creation: Nebraska, Others [sic] States Still Struggle With Issues, Lincoln Journal Star, Sept. 23, 1999.

[15] Art Hovey, Officials Answer I-300 Suit, Lincoln Journal Star, Jan. 29, 2005.

[16] Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).

[17] L. Steven Grasz, If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being, 33 Creighton L. Rev. 23 (Dec. 1999).  

[18] Id. at 26-27.

[19] Id. at 33.

[20] Hon. Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial Birth Abortion and Word Games – A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11, 12 (Dec. 2001).

[21] L. Steven Grasz, Judicial Selection in Nebraska,  The Federalist Society, April 2012, https://docuri.com/download/grasznebraska2012wp_59bb8560f581719a3172a06f_pdf.  

[22] Id. at 6.

[23] Id.

[24] Id. at 7, 10-11.

[25] L. Steven Grasz, Patrick J. Pfatlzgraff, Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children, 71 Temple L. Rev. 609 (Fall 1998).

[26] Id. at 610-11.

[27] Id. at 629-32.

[28] Steve Grasz, A Cheap Shot, Lincoln Journal Star, July 23, 1999.

[29] Steve Grasz, Local View: Roberts Jeopardized Legitimacy of High Court, Lincoln Journal Star, Jul. 9, 2012, http://journalstar.com/news/opinion/editorial/columnists/local-view-roberts-jeopardized-legitimacy-of-high-court/article_e6de9051-3758-5c30-af0b-3659f94fbecd.html.  

[30] Zoe Tilman, One of Trump’s Judicial Nominees Sits on the Board of a Group that Defends “Conversion” Therapy, Buzzfeed, Sept. 25, 2017, https://www.buzzfeed.com/zoetillman/one-of-trumps-judicial-nominees-sits-on-the-board-of-a?utm_term=.hvAGblQoOB#.yx37MgA89b.  

[31] Seung Min Kim, ABA Deems Another Trump Judicial Nominee ‘Not Qualified’, Politico, Oct. 30, 2017, https://www.politico.com/story/2017/10/30/aba-trump-judicial-nominee-not-qualified-244327.  

[32] See supra n. 13.

Judge Terry Doughty – Nominee to the U.S. District Court for the Western District of Louisiana

The Western District of Louisiana is currently facing a judge shortage unlike any other district in the country.  Due to unexpected retirements, lingering vacancies, and the Republican-controlled 114th Congress’ refusal to confirm President Obama’s nominee to the court, the Western District (allotted seven active judges) is expected to fall to just two by the end of the year.  As such, President Trump’s nomination of Judge Terry Doughty to the court takes on greater importance.

Background

Terry Alvin Doughty was born on January 16, 1959 in Rayville, Louisiana.  Doughty received a Bachelor in Science at Louisiana Tech University in 1981, going straight to Louisiana State University Law Center, graduating with a J.D. in 1984.

In 1984, Doughty joined the Rayville law firm, Cotton, Bolton & Hoychick, as an associate.  The next year, Doughty joined the Fifth Judicial District Attorney’s Office as a part-time prosecutor.  In 1987, Doughty was promoted to be a partner, and the firm was renamed Cotton, Bolton, Hoychick & Doughty.

In 2008, Doughty was elected to a judgeship on Louisiana’s Fifth Judicial District.  He was re-elected in 2014, and currently serves in that capacity.

History of the Seat

Doughty has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana.

The vacancy Doughty has been nominated to fill opened on May 31, 2016, when Judge Robert James moved to senior status.  In 2016, Doughty contacted Rep. Ralph Abraham (R-LA) to express his interest in the vacancy opened by Judge James’ retirement.  After interviewing with Sen. Bill Cassidy and then-Sen. David Vitter, Doughty’s nomination was not taken up by the Obama Administration.

After the election of President Trump, Doughty interviewed again with Cassidy and Sen. John Kennedy.  Upon Cassidy and Abraham’s recommendation, Doughty was interviewed by the White House in April 2017, and officially nominated on August 3, 2017.

Legal Experience

From the time he graduated law school to his election to the bench, Doughty served at the same firm: Cotton, Bolton, Hoychick & Doughty.  At the firm, Doughty practiced civil litigation, focusing primarily on the representation of insurance companies.  For example, Doughty represented an insurance company in proceedings involving an injury caused by a cow to a resident of the insured household.[2]  Doughty also represented a defendant and his insurer in an action over an injury caused by a falling deer stand.[3]

Alongside his work at Cotton Bolton, Doughty also worked as a part-time prosecutor working in Franklin, Richland, and West Carroll Parishes.  In this role, Doughty successfully persuaded the Fifth Circuit to reinstate a conviction thrown out by a federal district judge on appeal.[4]  Similarly, Doughty successfully persuaded the Fifth Circuit to reinstate a murder conviction overturned by Judge Robert James for violating North Carolina v. Alford.[5]  Doughty also assisted in a second degree murder trial involving a defendant who shot the victim with a .38 pistol.[6]  The verdict was overturned by the Louisiana Court of Appeal.[7]

Jurisprudence and Reversals

Doughty serves as a district judge in the Fifth Judicial District of Louisiana.  In that capacity, Doughty presides over criminal, civil, and juvenile cases.  In his nine years on the state bench, Doughty has presided over almost 300 cases.  Of those cases, 33 have been appealed to higher courts, and two have been partially reversed:

Credit et al. v. Richland Parish Sch. Bd. et al. – This case involved a child who had been pushed under a school bus by another student.  Doughty ruled that, under Louisiana law, school employees were protected from suit by the decedent’s mother based on qualified immunity.[8]  The Louisiana Second Circuit Court of Appeals reversed, holding that Louisiana statutes only protected school employees from suits based on acts of commission, not omission.[9]  The Louisiana Supreme Court reversed again, upholding Doughty’s ruling as to most of the defendants, but holding that Doughty erred in blocking suit against the bus driver.[10]

Aymond et al. v. Citizens Progressive Bank – This case involved a suit for damages by farm entities against a bank based on a farm loan.  In his ruling, Doughty found that the plaintiffs could not maintain an action against the bank.  The Louisiana Second Circuit Court of Appeals partially reversed.[11]

Additionally, Doughty has attracted some criticism for his conduct on the breach of contract lawsuit, KT Farms et al. v. Citizens Progressive Bank et al.  Specifically, Doughty had been accused of a bias against plaintiff’s attorney Sedric Banks and of a conflict of interest involving his own aspirations to a federal judgeship.[12]  Based on an allegedly hostile comment made by Doughty from the bench, Banks filed a motion to recuse.[13]  During the motion hearing, Doughty testified that he had questioned Luke Letlow, the chief of staff of Congressman Abraham, as to negative press articles about his conduct relating to Banks.[14]  Furthermore, Doughty denied that he believed that Banks was “messing up” his chances at a federal judgeship.[15]  Judge James “Jimbo” Stephens ultimately ruled that Doughty was not required to recuse himself from the case.[16]

Additional questions have been raised based on Doughty’s close connection with Abraham, who is a stockholder of one of the defendant bank’s parent company.[17]  Further, Abraham’s son-in-law is a member of the bank’s board of directors.[18]

Overall Assessment

While there is little doubt that the Western District desperately needs judges, Doughty’s path to the bench, like that of his co-nominee Michael Juneau, has the potential to get rocky.  In Doughty’s case, this is primarily due to the allegations raised by Sedrick Banks in the Citizens Progressive Bank case.  Senators may question Doughty as to the propriety of his remaining of the case, given the close links between the defendants and his congressional sponsor for a federal judgeship.  In defense, Doughty can note that another judge (Stephens) has ratified his conduct and has confirmed that no ethical violations are raised by his presence on the case.

Given Doughty’s conservative record on the bench, it is unlikely that Senate Democrats will want to give him the benefit of the doubt on a close case.  However, Doughty’s chances of confirmation will largely depend of whether any of the Committee’s Republicans find his conduct ethically problematic.  If not, Doughty can expect a swift, if not smooth, confirmation.


[1] Tyler Bridges, 42 Parish Area of Western Louisiana Suffers From Vacant Federal Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.

[2] Andrade v. Shiers, 564 So.2d 787 (La. 2d Cir. 1990).

[3] J. Cooper, et ux v. D. Cooper, III et al., 786 So.2d 240 (La. 2d Cir. 2001).

[4] Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1994).

[5] Orman v. Cain, 228 F.3d 616 (5th Cir. 2000).

[6] State v. Ruff, 504 So.2d 72 (La. 2d Cir. 1987).

[7] See id.

[8] See Credit et al. v. Richland Parish Sch. Bd. et al., 2010 WL 8759525.

[9] See Credit et al. v. Richland Parish Sch. Bd. et al., 61 So.3d 861 (La. 2d Cir. 2011).

[10] See Richland Parish Sch. Bd. et al. v. Credit et al., 85 So.3d 669 (La. 2012).

[11] See 206 So.3d 330 (La. 2d Cir. 2016).

[13] See Parker, Judge, supra n. 12.

[14] See id.

[15] Id.

[16] Id.

[17] See Parker, Family, supra n. 12.

[18] See id.

Judge Terry Moorer – Nominee to the U.S. District Court for the Southern District of Alabama

Judge Terry Moorer, a U.S. Magistrate Judge in the Middle District of Alabama, is a man of many firsts.  He is President Trump’s first African American nominee to the federal bench.[1]  He is also the first African American nominee to the Alabama federal bench named by a Republican President, and the first Republican-appointed African American nominee since Judge C. Darnell Jones in 2008.  He would also be the first African American judge on the U.S. District Court for the Southern District of Alabama.  The historic nature of his nomination aside, Moorer may draw questions about his conduct in a politically charged case involving Alabama gambling.

Background

Terry Fitzgerald Moorer was born in Greenville, AL in 1961.  After getting an associate’s degree from Marion Military Institute in 1979, Moorer received a B.A. from Huntingdon College in 1983.   Moorer immediately proceeded to the University of Alabama Farrow School of Law, graduating in 1986.  While a law student, Moorer clerked for Justice Samuel A. Beatty on the Alabama Supreme Court.

After getting his J.D., Moorer joined the Office of the Staff Judge Advocate at Fort Rucker.  After four years there, Moorer joined the U.S. Attorney’s Office for the Middle District of Alabama as an Assistant U.S. Attorney.  In 2001, Moorer became the lead of the Organized Crime and Drug Enforcement Task Force (OCDETF).

From 1990 to 2005, Moorer also served  as a Judge Advocate in the Alabama National Guard.  From 2005 to 2014, Moorer served as a Military Judge.

In 2007, Moorer was selected to be U.S. Magistrate Judge for the U.S. District Court for the Middle District of Alabama.  He continues to serve in that position.

In 2013, Moorer applied for vacancies on the U.S. District Court for the Northern District of Alabama and the Middle District of Alabama.  He interviewed with Congresswoman Terri Sewell (D-AL) and the Alabama Democratic Party, but was not selected for the vacancies.  In 2015, Moorer interviewed again with Sen. Richard Shelby (R-AL) and then-Sen. Jeff Sessions (R-AL).  Again, Moorer was nominated by the Obama Administration for any of the vacancies.

History of the Seat

The seat Moorer has been nominated for opened on June 8, 2017, with Judge William Steele’s move to senior status.  While Moorer’s nomination for an unspecified seat on the U.S. District Court for the Middle District of Alabama had been announced on May 8, the White House ended up nominated two other lawyers: Emily Coody Marks, and Brett Talley, to that court.  Moorer was instead nominated to the U.S. District Court for the Southern District of Alabama on September 7, 2017.

Political Activity

In the 1980s, Moorer served as a paid campaign aide in two campaigns.  From April 1982 to September 1982, Moorer recruited and coordinated volunteers for the gubernatorial campaign of Alabama House Speaker Joe McCorquodale.  McCorquodale ultimately lost the Democratic primary to former Governor George Wallace, who won the general election.

From April 1986 to July 1986, Moorer also served as a paid campaign aide for the campaign of Don Siegelman to be Alabama Attorney General.  Siegelman, a Democrat, was ultimately elected and went on to become Governor in 1998.

Legal Experience

Moorer’s first job out of law school was working as a Judge Advocate for the U.S. Army.  In this role, Moorer represented the command in disciplinary proceedings, including court martials.  Moorer also provided legal assistance to members of the armed forces, and represented army hospitals in medical malpractice cases.  Other than this position, most of Moorer’s career as an attorney has been as a federal prosecutor.

Moorer worked as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the Middle District of Alabama from 1990 to late 2006.  As a federal prosecutor, Moorer worked on cases involving narcotics, organized crime, firearms, fraud, immigration, gang activity, and child pornography.  Notably, early in his tenure, Moorer was the lead counsel in prosecuting PHE, one of the largest pornography distributors in the United States, for sending unsolicited material to juveniles.[2]

During his last six years as a federal prosecutor, Moorer was supervised by U.S. Attorney Leura Canary, the wife of prominent Alabama Republican Bill Canary.  As U.S. Attorney, Canary led the prosecution of then-Democratic Governor (and Moorer’s old boss) Don Siegelman on federal bribery and mail fraud charges.[3]  While the charges, which were extremely controversial and criticized for political motivation, overlapped with Moorer’s tenure at the office, there is no evidence of Moorer’s involvement in the case.

Jurisprudence

Moorer has served as a U.S. Magistrate Judge on the U.S. District Court for the Middle District of Alabama since 2007.  In this role, Moorer presides over pretrial, trial, grand jury and discovery matters.  He also hears civil trials in cases where both parties consent to his presence on the case.  In his ten years on the bench, Moorer has heard approximately 11 cases that have gotten a verdict or judgment.

Notably, Moorer presided over the deeply controversial trial of eleven defendants charged with illegally attempting to legalize gambling in Alabama.[4]  The charges drew criticism for being politically motivated, intended to hurt Democrats, and legally spurious.[5]  Moorer himself drew criticism for his refusal to call Republican Governor Bob Riley to testify in the trial, with one commentator, attorney Roger Shuler, arguing that Moorer had bent to the will of the Alabama Republican Party.[6]  Ultimately, the defendants were acquitted of all charges.[7]

As a U.S. Magistrate Judge, Moorer is called on to rule on pretrial motions in criminal cases, including motions to suppress evidence under the Fourth Amendment.  In the overwhelming majority of such motions he has reviewed, Moorer has recommended that the evidence not be suppressed.[8]  In one case, Moorer recommended that a suppression motion be denied in a case where an individual, pulled over for traffic offenses, was further detained and questioned after investigation of the traffic investigation had ended.[9]  Specifically, Moorer held that even if a constitutional violation had occurred, the “effect of suppression here would be marginal at best” in deterring future violations.[10]  Judge W. Harold Albritton declined to adopt that portion of Moorer’s reasoning, arguing that Moorer should have refrained from that “unnecessary” finding after having denied the motion to suppress.[11]

In the ten years that Moorer has served on the bench, nine of his decisions have been partially and completely reversed by a higher court.  Most notably, in one case, Moorer held that government officials were protected by qualified immunity against suit by an inmate alleging inadequate dental care.[12]  After the district court adopted Moorer’s report and recommendation, the Eleventh Circuit reversed, holding that material facts at issue in the case should have led to a denial of summary judgment.[13]

Overall Assessment

Given his long tenure as both a federal prosecutor and a U.S. Magistrate Judge, Moorer is well-prepared for the federal district court.  While Moorer’s record is fairly conservative, critics are likely to attack two aspects in particular: first, they may reiterate the allegations of bias raised against Moorer during the McGregor trial; second, they may attempt to question Moorer’s involvement, if any, in the Siegelman prosecution.

In response to these lines of inquiry, Moorer’s defenders can note that he had no involvement in the Siegelman case, and further, the acquittals in McGregor show Moorer’s ultimate fairness to the defendants.

Overall, the odds lean in favor of Moorer’s confirmation, which would give the U.S. District Court for the Southern District of Alabama its first African American federal judge.


[1] Kent Faulk, Trump Nominates Black Alabama Judge to Federal Bench, AL.com, Sept. 7, 2017, http://www.al.com/news/birmingham/index.ssf/2017/09/african_american_nominated_by.html.

[2] United States v. PHE, 2:93-cr-329-ID (M.D. Ala. 1993).

[3] Scott Pelley, Did Ex-Alabama Governor Get a Raw Deal?, 60 Minutes, Feb. 21, 2008, https://www.cbsnews.com/news/did-ex-alabama-governor-get-a-raw-deal/.  

[4] United States v. McGregor, Crim. Act. No. 2:10-cr-0186-MHT (M.D. Ala. 2011).  

[5] See Roger Shuler, Leura Canary’s “October Suprise” Becomes Reality, Legal Schnauzer, Oct. 4, 2010, https://legalschnauzer.blogspot.com/2010/10/leura-canarys-october-surprise-becomes.html.  See also BMAZ, Leura Canary Strikes Again: Alabama Bingo Arrests, Shadowproof, Oct. 4, 2010, https://shadowproof.com/2010/10/04/leura-canary-strikes-again-alabama-bingo-arrests/.  

[6] Roger Shuler, Is That Racism Hanging in the Air at the Federal Bingo Trial in Alabama, Legal Schnauzer, June 16, 2011, https://legalschnauzer.blogspot.com/2011/06/is-that-racism-hanging-in-air-at.html.  See also Bob Martin, Was Federal Court’s Table Set, The Tuskegee News, Nov. 18, 2010, http://www.thetuskegeenews.com/opinion/was-federal-court-s-table-set/article_7ecd8108-9586-5a36-ba85-667b0b0f93a8.html.  

[7] Kim Chandler, Milton McGregor, Five Others Acquitted in Alabama Gambling Trial, AL.com, March 8, 2012, http://blog.al.com/spotnews/2012/03/milton_mcgregor_5_others_acqui.html.  

[8] See, e.g., United States v. Cruz, 2017 WL 1745066 (M.D. Ala. April 17, 2017); United States v. Hughes, 2016 WL 6305963 (M.D. Ala. Oct. 27, 2016); United States v. Terry, 2015 WL 5852947 (M.D. Ala. Oct. 7, 2015); United States v. King, 2015 WL 4620530 (M.D. Ala. June 30, 2015); United States v. Nevels, 2014 WL 272309 (M.D. Ala. Jan. 23, 2014); United States v. McCall, 2014 WL 65738 (M.D. Ala. Jan. 8, 2014); United States v. Tears, 2012 WL 6568545 (M.D. Ala. Dec. 17, 2012); United States v. Vaught, 2012 WL 3670652 (M.D. Ala. July 26, 2012); United States v. Lovvorn, 2012 WL 3743975 (M.D. Ala. April 24, 2012); United States v. Thomas, 2010 WL 5579877 (M.D. Ala. Dec. 29, 2010); United States v. Guice, 2010 WL 5575287 (M.D. Ala. Nov. 30, 2010); United States v. Bruce, 2010 WL 3730149 (M.D. Ala. Aug. 31, 2010); United States v. Turner, 2010 WL 3880043 (M.D. Ala. Aug. 4, 2010); United States v. Thoussaint, 2010 WL 447107 (M.D. Ala. Feb. 4, 2010); United States v. Nelb, 2009 WL 4666868 (M.D. Ala. Dec. 2, 2009); United States v. DeJesus, 2009 WL 3488690 (M.D. Ala. Oct. 22, 2009); United States v. Rendon, 2009 WL 3052277 (M.D. Ala. Sept. 21, 2009); United States v. Brooks, 2009 WL 2960378 (M.D. Ala. Sept. 10, 2009); United States v. Hall, 2009 WL 2132702 (M.D. Ala. July 14, 2009).  But see United States v. Smith, 694 F. Supp. 2d 1242 (M.D. Ala. 2009) (adopting report and recommendation by Moorer granting motion to suppress in part); United States v. Mock, 2012 WL 7988590 (M.D. Ala. Nov. 29, 2012) (granting motion to suppress in part).

[9] United States v. Williams, 2010 WL 5579879 (M.D. Ala. Dec. 6, 2010).

[10] Id. at *3.

[11] See United States v. Williams, 2011 WL 124508 (M.D. Ala. Jan. 14, 2011).

[12] Iacullo v. United States, 2:10-cv-589-TMH, 2014 WL 2861427 (M.D. Ala. June 24, 2014).

[13] See Iacullo v. United States, 657 F. App’x 916 (11th Cir. 2016).

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

Karen Gren Scholer – Nominee for the U.S. District Court for the Northern District of Texas

Compared to previous presidents, President Trump has nominated fewer women and racial minorities to the bench.  As such, the nomination of Karen Gren Scholer is notable: as Scholer is not a former nominee of President Obama, but is an Asian American woman.

Background

Scholer, nee Karen Anne Gren, was born in 1957 in Tokyo, Japan.  Scholer received a Bachelor of Arts at Rice University in 1979 and a Juris Doctor from Cornell University Law School in 1982.  After graduating from law school, Scholer joined the Dallas law firm Strasburger & Price, LLP. as an Associate.  In 1989, Scholer was named a Partner at the firm.

In 1996, Scholer left Strasburger & Price to join Andrews & Kurth LLP. as a partner.  She served as Partner for four years, and as Of Counsel for a few months.  In 2000, Scholer was elected as a Republican to the 95th Judicial District Court in Dallas.  Scholer was re-elected unopposed in 2004.

In 2009, Scholer left the bench to join the Dallas office of Jones Day as a Partner.  In 2014, she left Jones Day to become a Principal at the firm Carter Scholer PLLC.  She currently serves in that capacity.

In 2014, Scholer also began work as an arbitrator and mediator for the American Arbitration Association.  She also serves in that capacity presently.

On July 30, 2014, Scholer applied to Senators John Cornyn and Ted Cruz for a vacancy on the U.S. District Court for the Northern District of Texas.  In April 2015, Scholer also applied for a vacancy on the U.S. District Court for the Eastern District of Texas.  After interviews with the Obama Administration and Democratic Representatives Marc Veasey and Eddie Bernice Johnson, Scholer was nominated to a vacancy on the U.S. District Court for the Eastern District of Texas on March 15, 2016.[1]  Scholer’s nomination had the support of Cornyn and Cruz[2] but attracted opposition from East Texas Republican Rep. Louie Gohmert due to Scholer’s base in Dallas.[3]  While Scholer received a hearing before the Senate Judiciary Committee, her nomination was never approved and died at the end of the Obama presidency.

History of the Seat

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

The vacancy Scholer has been nominated to fill opened on May 1, 2016, when Judge Jorge Antonio Solis moved to senior status.  On March 15, 2016, Obama nominated James Wesley Hendrix, the 39-year-old appellate chief of the U.S. Attorney’s Office for the Northern District of Texas to fill the vacancy.[4]  While Hendrix had the support of his home state senators and received a hearing in September 2016, his nomination never moved to the floor and thus was not confirmed.  Hendrix was not renominated to the Court by President Trump.

After the election of President Trump, Scholer applied again for the vacancies on the Eastern and Northern Districts of Texas.  Upon Cornyn and Cruz’s recommendation, Scholer was interviewed by the White House in May 2017, and officially nominated on September 7, 2017.

Legal Experience

Scholer has spent virtually her entire legal career as a civil litigator.  In her initial position at Strasburger & Price LLP., Scholer focused on personal injury cases, specializing in the defense of product liability cases.  For example, Scholer was part of the defense team in a product liability action against General Motors based on allegedly defective three-point seatbelts in the backseats.[5]  Scholer also defended Budget Rent a Car in a personal injury action over an injury caused by a falling suitcase on a shuttle bus.[6]  Scholer continued this product liability work as a partner at Andrews & Kurth LLP.

After her eight years on the bench, Scholer joined the Dallas office of Jones Day as a partner in the complex tort and product liability section.  In this role, Scholer primarily handled the defense of Yamaha in a multi-district product liability action based on the defective design of the Yamaha Rhino off road vehicle.[7]

As a named partner at Carter Scholer PLLC., Scholer handles business tort and personal injury litigation.  Scholer also occasionally represents plaintiffs, notably representing the victim of a slip-and-fall to a successful settlement.[8]

Jurisprudence and Reversals

Scholer served two four year terms as a judge on the 95th Judicial District Court in Dallas.  In this role, Scholer presiding over civil cases in Dallas, including contract and tort cases.  Scholer was also briefly appointed by Governor Rick Perry to serve on the Tenth Circuit Court of Appeals of Texas for a single case.

Of Scholer’s more prominent cases, she presided over a medical malpractice trial where the plaintiff alleged that the defendant had negligently removed fat and skin creating infection in her sutures.[9]  Scholer presided over a jury verdict for the plaintiff in $291,000 in damages.  Scholer also presided over a jury verdict to the plaintiff in an unsafe workplace case brought by the employee of a public utility company.[10]  Scholer denied a defense motion for a new trial and entered judgment for the plaintiff.[11]

In her eight years on the bench, Scholer’s opinions have been reversed or criticized by a higher court in 19 cases.  On these, two are particularly notable:

City of Dallas v. VRC, LLC. – In this case, a towing company filed suit against a Dallas ordinance setting rates for non-consensual towing of vehicles, alleging that the rates were too low, and constituted a “regulatory taking.”[12]  The City argued lack of jurisdiction due to governmental immunity, and lack of ripeness.[13]  Scholer ruled against the City on both claims, allowing the case to move ahead.[14]  The Fifth Circuit Court of Appeals of Texas reversed, finding that there was no viable regulatory takings claim under either state or federal law.[15]

Ferguson v. Building Materials Corp. of America – This case involved a personal injury suit brought after an eighteen wheeler crashed into a building which collapsed on the plaintiff.[16]  Scholer granted summary judgment to the defendants in the case, finding that the plaintiff’s claims were judicially estopped.[17]  While the Fifth Circuit affirmed Scholer, the Texas Supreme Court reversed in a per curiam decision.[18]

Political Activity

Scholer has a long history with the Republican party, having been elected twice as a Republican to the state bench.  Scholer has also volunteered with the Travis County Republican Party between 1999-2010, and has been a member of the Texas Federation of Republican Women since 1999.

Overall Assessment

As noted with Judge David Counts, nominees put forward by presidents of both parties generally fare an easier time through the confirmation process.  For her part, Scholer does not have a paper trail of controversial statements, or any particularly unorthodox legal or judicial views.  While she does have a long history as a Republican, a partisan history, in and of itself, should not be disqualifying for the bench.  As such, a prompt confirmation should be expected for Scholer, who will be the first Asian American judge on the Northern District of Texas, when confirmed.


[1] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).

[2] John Council, Cornyn Pledges to Help Obama Seat Texas Judges, Texas Lawyer, March 28, 2016, http://www.law.com/texaslawyer/almID/1202752774603/.

[3] Press Release, Office of Rep. Louie Gohmert, Gohmert Objects to President Obama’s Eastern District of Texas Judge Nominee (April 7, 2016) (on file at https://gohmert.house.gov/news/documentsingle.aspx?DocumentID=398311).  

[4] See supra n. 1.

[5] Tarrantino et al. v. General Motors Corp. et al., Cause No. 86-12794, 14th Judicial District Court of Dallas County, Texas; Judge John Marshall; 1986-89.

[6] Simmons v. Budget Rent a Car, Civil Action No. 3:81-cv-01431-F, United States District Court for the Northern District of Texas, Judge Robert Porter, 1982-84.

[7] In re: Yamaha Motor Corp., Rhino ATV Products Liability Litigation, Master File No. 3:09-MD-2016-BC, Multi District Litigation in the United States District Court, Western District of Kentucky; Judge Jennifer Coffman, 2009-2013.

[8] Bearden v. Half Price Books, Cause No. 14-1168, 134th Judicial District Court of Dallas County, Texas; Judge Dale Tiller; 2014-15.

[9] Trebold v. Fowler, M.D., Cause No. 00-06073.

[10] Dennis v. Texas Utility Co, Inc. dba TU Electric Co., Cause No. 96-09957.

[11] See id.

[12] City of Dallas v. VRC, LLC., 260 S.W.3d 60 (Tex. App.-Dallas 2008 no pet.).

[13] See id.

[14] Id.

[15] See id.

[16] Ferguson v. Building Materials Corp. of America., 295 S.W.3d 642 (Tex. 2009).

[17] Id.

[18] Id.

Judge Walter David Counts III – Nominee for the U.S. District Court for the Western District of Texas

Generally, Presidents select judicial nominees from the political party that they belong to: Republicans select Republican judges; Democrats select Democrats.  Where Presidents make cross-party appointments, they are typically in deference to home-state senators of the opposite party, or as part of a package deal to confirm judges of their own party.  One of the exceptions to this rule was the appointment of Judge Robert Junell, a Democratic state legislator in Texas, who was appointed to the U.S. District Court for the Western District of Texas by President George W. Bush.  Interestingly, President Trump’s nominee to fill the vacancy left by Junell could also qualify: U.S. Magistrate Judge David Counts.

Background

Walter David Counts III was born in Knox City, TX in 1961, the son of Walter David Counts Jr.  Counts attended Texas Tech University in Lubbock, graduating in 1983.  In the summer of 1983, Counts worked as a Congressional Intern for former Democratic Rep. Jack Hightower.

After college, Counts attended St. Mary’s University School of Law, graduating in 1986.  Upon graduating, Counts joined the Austin firm Martin, Cox, Greenberg & Jones as an Associate Attorney.  After a year there, Counts joined the Travis County District Attorney’s Office as an Assistant District Attorney.  In 1990, Counts left to set up a solo practice in Austin, only to return to the District Attorney’s Office in 1991.

In 1995, Counts joined the U.S. Attorney’s Office for the Western District of Texas.  In 1999, Counts became Deputy Chief of Major Crimes in the Criminal Division.  In 2009, Counts was appointed by the Chief Judge of the U.S. District Court of the Western District of Texas to be a magistrate judge for the court.  He currently serves in that position.

On March 15, 2016, Counts was nominated by President Obama to serve as a U.S. District Court judge.  With the support of Republican Senators John Cornyn and Ted Cruz, Counts received a Senate Judiciary Committee hearing on September 7, 2016.  However, despite the friendly hearing, Counts was never voted out of Committee and his nomination ended upon the conclusion of the Obama presidency.

History of the Seat

Counts has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on February 13, 2015, when Judge Robert Junell moved to senior status.[1]  After extensive negotiations between President Obama and Senators Cornyn and Cruz, a package of five nominees to the Texas federal bench were announced on March 15, 2016.[2]  The package included Counts’ nomination to the vacancy left by Junell.  While the package of judges received a joint hearing on September 7, 2016, they were never voted on by the Senate Judiciary Committee.

In January 2017, Counts applied for the vacancy again to the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.  After interviews with the Committee and the White House Counsel’s Office, Counts was nominated for the vacancy on September 11, 2017.

Legal Experience

There have been only two short periods of time in which Counts has not been either a prosecutor or a judge.  First, after graduating from law school, Counts worked at Martin, Cox, Greenberg and Jones, a civil law firm based in Austin.  In this position, which he only held for a year, Counts represented public health companies and nursing homes in regulatory proceedings.  Second, from 1990-91, Counts maintained a solo practice, practicing criminal defense.  Other than these two short periods, Counts spent his entire legal career before joining the bench in one of two positions: as a state prosecutor in Travis County; and as a federal prosecutor in the U.S. Attorney’s Office for the Western District of Texas.

Travis County District Attorney

Counts worked in the Travis County District Attorney’s Office from 1987-1990 and 1991-1995.  As a state prosecutor there, Counts worked primarily in violent felony cases, including sexual assault and murder.  Counts notably prosecuted a convicted serial rapist who had assaulted and murdered young women after being released on parole.[3]  Counts was able to successfully prosecute Mr. McDuff and obtain the death penalty, even while having to navigate the evidentiary obstacles of not having the victim’s body.[4]

Notably, Counts also prosecuted Joel Rene Valdez on a rape charge.[5]  Valdez presented an unusual defense: that the victim’s insistence that he wear a condom implied her consent.[6]  Despite heavy media attention, Counts was able to obtain a conviction and a 40-year sentence against Valdez.[7]

U.S. Attorney

In 1995, Counts became a federal prosecutor in the U.S. Attorney’s Office for the Western District of Texas.  In this role, Counts prosecuted a variety of cases, including narcotics, firearms, immigration, white collar crime, and public corruption.  Among the more notable matters he handled, Counts successfully prosecuted Frio County Treasurer for setting up schemes to steal funds from county and federal programs.[8]  Counts also prosecuted two San Antonio City Council members for taking kickbacks from attorneys in exchange for city contracts.[9]

Jurisprudence

Counts has served as a U.S. Magistrate Judge since 2009.  In this capacity, Counts handles pretrial, grand jury, and discovery matters in criminal cases in the Midland/Odessa and Pecos Divisions of the Western District of Texas.  Counts also handles civil trials with the consent of both parties.

Among his more notable trials, Counts presided over the jury trial of two oilfield workers who sought unpaid overtime wages under the Fair Labor Standards Att (FLSA).[10]  After a jury verdict for the plaintiffs, Counts awarded them liquidated damages and attorney’s fees, denying the employer’s motions for a new trial.[11]  On the criminal front, Counts presided over the guilty pleas of four prominent Midland and Odessa citizens who were charged with mortgage fraud, bank fraud, and money laundering.[12]

In his eight years on the bench, Counts has written hundreds of Reports and Recommendations for federal district judges.  Of these, four have been partially rejected by the district judge.[13]  Of these, the most notable is Counts’ opinion in Sherwood v. United States.[14]  The case involved a habeas petition brought by a prisoner who argued that his right to self-representation during his trial was impeded.[15]  While Counts recommended that the plaintiff receive relief for his petition, the district court rejected this recommendation of relief.[16]

Political Activity

Counts has no political donation history, although his father, W. David Counts Jr., served as in the Texas state legislature as a Democrat between 1988 and 2002.

Overall Assessment

Generally speaking, nominees put forward by presidents of the opposite party (or presidents of both parties) fare well in the confirmation process.  The same process is likely to hold up for Counts.  Republicans are unlikely to object to Counts as he is the product of a recommendation process set up by Cornyn and Cruz, two conservative senators.  Democrats are unlikely to object to Counts given his previous nomination by President Obama, his ties to a prominent Democratic officeholder, and his relatively moderate record.

If confirmed, one can expect Counts to have a similar record to that of the judge he replaces.  Like Judge Robert Junell, Counts will likely be a center-right voice on the federal bench in Midland.


[1] John Council, U.S. District Judge Rob Junell Hits Career Peak, Texas Lawyer, Feb. 12, 2015, http://www.texaslawyer.com/id=1202717806165/US-District-Judge-Rob-Junell-Hits-Career-Peak?slreturn=20170918151134.

[2] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).  

[3] See State v. McDuff, No. 93-5281 (147th Dist. Ct., Travis Cnty., Tex. 1995).

[4] See id.

[5] See State v. Valdez, No. 92-5263 (147th Dist. Ct., Travis Cnty, Tex. 1995).

[6] Special to the N.Y. Times, Man is Convicted of Rape in Case Involving Condom, N.Y. Times, May 14, 1993.

[7] Sue Anne Presley, Rapist Asked to Use Condom Gets 40 Years; Terror ‘Indiscribable’, Victim Tells Court, Wash. Post, May 15, 1993.

[8] See United States v. Cantu, No. 5:07-CR-00662 (W.D. Tex. May 7, 2009).

[9] See United States v. Martin, No. 5:02-CR-00527 (W.D. Tex. Apr. 6, 2005).

[10] See Carley v. Crest Pumping Tech., No. 7:15-CV-00161, 2016 WL 8856917 (W.D. Tex. Jan 10, 2017).

[11] See id.

[12] United States v. Hilliard, No. 7-14-CR-00001 (W.D. Tex. Jan. 13, 2015).

[13] Lindig Construction & Trucking, Inc. v. Bonelli, No. 7:15-CV-00116 (W.D. Tex. April 6, 2016), adopted in part by 2016 WL 8677200 (W.D. Tex. Aug. 19, 2016); Nestor v. Penske Truck Leasing Co., L.P., No. 4:14-CV-00036, 2015 WL 4603313 (W.D. Tex. July 7, 2015), adopted in part by 2015 WL 4601255 (W.D. Tex. July 29, 2015); United States v. Venegas, No. 7:13-CR-00061 (W.D. Tex. Dec. 2 2013), aff’d, 594 F. App’x. 822 (5th Cir. 2014); Sherwood v. United States, No. 4:04-CR-00191 (W.D. Tex. Apr. 5, 2012).

[14] Sherwood v. United States, No. 4:04-CR-00191 (W.D. Tex. Apr. 5, 2012).

[15] Id.

[16] Id.

Brett Talley – Nominee for the U.S. District Court for the Middle District of Alabama

In the world of judicial confirmation politics, fortune favors the reticent.  Despite this, the Trump Administration has been relatively bold in choosing nominees for the federal bench with a paper trail of controversial statements.  As such, Brett Talley, the youthful attorney chosen for the Middle District of Alabama, will likely face significant scrutiny over his thin legal resume and his long paper trail of political writings.

Background

A native Alabamian, Brett Joseph Talley was born in Birmingham in 1981. Growing up in small town Alabama, Talley attended the University of Alabama, graduating summa cum laude in 2004.  Talley went on to Harvard Law School, getting his J.D. in 2007.

Upon graduation, Talley joined the Washington D.C. office of Gibson, Dunn & Crutcher as an Associate.  However, after just a year there, Talley felt that “working at a big D.C. law firm was sucking out his soul.”[1]  So he took a two-year clerkship with Judge L. Scott Coogler with the U.S. District Court for the Northern District of Alabama.  After a year there, Talley transitioned to a second clerkship with Judge Joel Dubina on the U.S. Court of Appeals for the Eleventh Circuit.

In January 2012, Talley was hired by the Romney campaign as a Senior Writer and Speechwriter.  Talley continued to work for Romney through the campaign, and upon Romney’s loss, found a job as a Speechwriter for Sen. Rob Portman (R-OH).

In 2015, Talley was appointed by Sen. Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Talley served in that capacity until January 2017 when he was appointed Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In addition to his legal work, Talley is an accomplished horror writer, having published his first book, That Which Should Not Be, in 2011.[2]  Talley has written six other horror books and true ghost accounts, as well as numerous short stories.  He also maintains a blog titled The Site That Should Not Be to discuss horror fiction.

History of the Seat

Talley has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on August 1, 2015, when Judge Mark Fuller resigned after his arrest for domestic violence.[3]  Despite the seat opening in 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.[4]

In June 2017, Talley was contacted by Sen. Richard Shelby’s office, asking for his interest in a judicial appointment.  Talley interviewed with the White House Counsel’s Office and the Office of Legal Policy in July 2017 and his nomination was announced on September 7, 2017.[5]

Legal Experience

Setting aside his clerkships and time as a speechwriter, Talley has had two main legal positions: as an associate at Gibson Dunn; and as Deputy Solicitor General of Alabama.  During the year he spent at Gibson Dunn, Talley represented a U.S. Congressman in a public corruption investigation, represented a landlord tenant case pro bono, and worked on an international investigation involving the Foreign Corrupt Practices Act.

As the Deputy Solicitor General of Alabama, Talley defended Alabama laws and convictions before state and federal courts.  For example, Talley unsuccessfully argued before the 11th Circuit for the execution of a defendant with impaired cognitive functioning and no memory of his crime.[6]  Talley also occasionally engaged state resources to sue the federal government, challenging, for example, EPA regulations intended to protect the habitat of marine wildlife.[7]   Finally, Talley also filed amicus briefs in other courts seeking to push conservative interpretations of the Constitution and state statutes.  For example, he submitted an amicus brief in a challenge to a San Diego ordinance regulating concealed carry permits.[9]

Writings

As noted above, Talley is an accomplished horror writer and maintains a blog to discuss horror fiction.  More pertinently, Talley maintained a second blog for a few months in 2013 titled Government in Exile – When Your Guy Didn’t Win, outlining his political views and criticisms of the Obama Administration.  In this blog, Talley attacked a number of political issues.  Most notably, Talley wrote on gun control and the Newtown massacre in a series of posts.  Specifically, Talley criticizes the post-Newtown gun control push, arguing that gun control would not have prevented the massacre, noting:

“As long as guns are legal, incidents like Newtown will continue to occur.”[10]

In another post, Talley criticizes Sen. Dianne Feinstein (D-CA) (who is now the ranking member of the Senate Judiciary Committee) for her views on gun control, noting:

“Feinstein comes by this view honestly.  She’s not trying to enslave us all, or strip away our rights, or set up a one world state.  She just hates guns.”[11]

Instead of gun control, Talley suggests that “a society that respects life” is the key to preventing mass shootings.[12]  He also calls on his readers to donate to the National Rifle Association.[13]

In other blog posts, Talley argues in favor of immigration reform,[14] noting that failure could push Hispanics further into the Democratic camp, and against drone strikes on American soil.[15]

Talley has also authored op-eds outside his blog and political career.  In 2016, Talley authored articles supporting the candidacy of President Trump.[16]  Post-election, Talley authored an op-ed criticizing liberals who opposed Trump supporters such as Attorney General Sessions and former advisor Steve Bannon, arguing that these critics were “weaponizing racism.”[17]

Political Activity

Talley, a Republican, worked as a researcher, speechwriter, and op-ed writer for the Romney campaign during the 2012 Presidential election.  Talley similarly served in a political capacity for Portman, producing columns, op-eds, speeches, and social media posts in support of the senator’s positions.

In addition, Talley donated $1000 to Portman’s re-election campaign in 2016, and an additional $250 to the Alabama Republican Party.[18]

Overall Assessment

Yesterday, we wrote on Holly Lou Teeter, the federal prosecutor whose eleven years of legal experience fell narrowly short of the ABA guidelines, which recommend twelve for federal judges.  Brett Talley, an attorney tapped for the Alabama federal bench, has even less experience, having practiced law for only three years (six if you include his clerkships).  Considering the fact that Talley is only 36, legitimate questions can be raised about Talley’s fitness for the bench.

Furthermore, Talley has an extensive history of strongly held political beliefs.  He has already expressed his opposition to most gun control, as well as to gay marriage,[19] and has indicated his strong opposition to liberalism and the Democratic party.  While many judges come from a political background, Talley does not share a extensive legal history that could temper the impact of his writings.  As such, Democrats will likely question him on whether his bias against Democrats could influence his rulings on the bench.

Given his youth, limited experience, and strongly expressed conservative beliefs, Talley will likely an objectionable nominee for most Democrats.  While Talley is still more likely to be confirmed than not, out of all the district court nominees reviewed thus far, he is the most likely to fall short.


[2] See id.

[3] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[4] 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/.  

[5] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[6] Madison v. Comm’r, Alabama Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

[7] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

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

[9] See Peruta v. City of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).

[10] Brett J. Talley, Are We Learning the Wrong Lessons From Newtown, Government in Exile, Jan. 14, 2013, https://happywarriordotme.wordpress.com/2013/01/14/are-we-learning-the-wrong-lesson-from-newtown/.  

[11] Brett J. Talley, Are Any Restrictions on Gun Ownership Legitimate, Government in Excile, Jan. 15, 2013, https://happywarriordotme.wordpress.com/2013/01/15/are-any-restrictions-on-gun-ownership-legitimate/.

[12] Brett J. Talley, The Wrong Lessons From Newtown: Part 2, Government in Exile, Jan. 18, 2013, https://happywarriordotme.wordpress.com/2013/01/18/the-wrong-lessons-from-newtown-part-2/.

[13] Brett J. Talley, A Call to Arms: It’s Time to Join the National Rifle Association, Government in Exile, Jan. 26, 2013, https://happywarriordotme.wordpress.com/2013/01/26/a-call-to-arms-its-time-to-join-the-national-rifle-association/.  

[14] Brett J. Talley, Immigration Reform, The Bitter Pill Republicans Must Swallow, Feb. 1, 2013, https://happywarriordotme.wordpress.com/2013/02/01/immigration-reform-the-bitter-pill-republicans-must-swallow/.  

[15] Brett J. Talley, Drone Attacks on American Soil Against American Citizens?, Government in Exile, Mar. 8, 2013, https://happywarriordotme.wordpress.com/2013/03/08/drone-attacks-on-american-soil-against-american-citizens/.  

[16] See, e.g., Brett J. Talley, Don’t Let ‘Never Trump’ Become ‘Ready for Hillary’, CNN, May 7, 2016, http://www.cnn.com/2016/05/07/opinions/never-trump-risks-electing-hillary-clinton-opinion-talley/index.html.  

[17] Brett J. Talley, Democrats: The Party Who Cried Racist, CNN, Dec. 1, 2016, http://www.cnn.com/2016/12/01/opinions/democrats-the-party-who-cried-racist-talley/index.html.  

[18] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=Brett+Talley (last visited Oct. 16, 2017).

[19] See Terris, supra n. 1.

Jeff Beaverstock – Nominee for the U.S. District Court for the Southern District of Alabama

Jeff Beaverstock brings an unusual background to the federal bench, having served not only as a civil litigator, but as an Army Reserve lawyer practicing in the military legal system.

Background

Jeffrey Uhlman Beaverstock was born in Waterbury, CT on November 29, 1968.  Beaverstock attended The Citadel, the Military College of South Carolina, overlapping with another Trump nominee, Judge Tripp Self.  After graduating in 1991, Beaverstock spent four years as an active duty Airborne Ranger Infantry Officer in the U.S. Army.

In 1995, Beaverstock joined the University of Alabama Law School alongside fellow Trump nominee Emily Coody Marks.[1]  Graduating in 1998, Beaverstock joined the Mobile law firm Pierce, Ledyard, Latta, Wasden & Bowron, PC.  In 2003, the firm split and Beaverstock joined Bowron, Latta & Wasden, PC as a partner.  In 2008, Beaverstock joined Burr & Forman, LLP. as a partner.  He currently practices at the firm.

Alongside his private practice, Beaverstock also served as an army lawyer, representing Army Reserve soldiers in judicial and non-judicial proceedings.  From 2010-12, Beaverstock served as an operations officer, training Army Reserve lawyers.  Beaverstock currently serves as Chief of Contract & Administrative Law for the 377th Theater Sustainment Command.

History of the Seat

Beaverstock has been nominated for a seat on the U.S. District Court for the Southern District of Alabama.  This seat opened on March 7, 2016, when Judge Callie Granade moved to senior status.  While the seat opened in 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.[2]

In February 2017, Beaverstock contacted Sen. Richard Shelby as well as then-Sen. Jeff Sessions to be considered for the vacancy.  Sessions recommended Beaverstock for the vacancy on February 7, 2017.  President Trump announced Beaverstock’s nomination to the vacancy on September 7, 2017.[3]

Legal Experience

Beaverstock primarily practices as a civil litigator in Alabama state and federal courts.  More specifically, Beaverstock specializes in construction law and maritime law, as well as mortgage foreclosure actions.  For example, while at Bowron Latta, Beaverstock represented the manufacturer of mobile homes in a breach of home warranty and personal injury action arising from the intrusion of water into a mobile home.[4]  Additionally, at Burr & Forman, Beaverstock represented a general contractor sued by their subcontractor in a contract dispute.[5]  Despite an adverse verdict at the trial court, Beaverstock was able to overturn the verdict at the Alabama Supreme Court.[6]

Additionally, as an Army Reserve lawyer, Beaverstock handles the legal review of procurement actions and supervises all administrative matters for 37,000 troops in the U.S. Army Reserve.

Overall Assessment

All indications point to a smooth confirmation for Beaverstock.  He does not have a paper trail of controversial statements, or a partisan political history, or any ethical issues.  Further, his long history of military service will make it difficult for senators to drum up opposition.  If and when Beaverstock is confirmed, the Southern District of Alabama, which is already down to only one active judge out of three authorized judgeships, should expect a new conservative voice.


[1] Annemarie Axon, another Trump nominee to the federal bench in Alabama joined the following year.

[2] 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/.  

[3] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[4] Johnson v. Southern Energy Homes, Inc., 391 F. Supp. 2d 1118 (S.D. Ala. 2006).

[5] White-Spunner Construction, Inc. v. Construction Completion Co., 103 So.3d 781 (Ala. 2012).  

[6] See id.