Rebecca Grady Jennings – Nominee to the U.S. District Court for the Western District of Kentucky

A Louisville based civil litigator, Rebecca Grady Jennings is on track to become the first woman exclusively appointed to the U.S. District Court for the Western District of Kentucky. (Judge Jennifer Coffman was appointed to a joint seat serving both the Western and the Eastern Districts of Kentucky.  However, Coffman was a Lexington attorney in the Eastern District prior to her appointment).  While Jennings is very young (not even 40), she is unlikely to draw significant opposition due to her mainstream background.

Background

Jennings was born Rebecca Christine Grady in Wilmington, DE in 1978.  Jennings attended Emory University, along with a stint studying abroad at Oxford, graduating in 1999.  Upon graduation, Jennings attended American University Washington College of Law, graduating in 2002.

Jennings then clerked for Judge William Haynes on the U.S. District Court for the Middle District of Tennessee. After her clerkship, Jennings joined the Louisville Kentucky office of Middleton Reutlinger PSC as an Associate.  Jennings was elevated to be a Director in 2009, and has served as Chair of the Litigation Department since 2014.

History of the Seat

Jennings has been nominated for a seat on the U.S. District Court for the Western District of Kentucky.  This seat opened on April 1, 2014, when Judge John G. Heyburn moved to senior status.  While the seat opened in President Obama’s second term, the Obama Administration and Kentucky Senators Mitch McConnell and Rand Paul were unable to reach an agreement on a nominee to fill the vacancy.  As such, no nomination was put forward by the Obama Administration.

Jennings received a call from Paul’s office indicating her consideration for a federal judgeship in April 2017.  After interviews with Paul and McConnell, Jennings’ name was recommended to the White House.  Jennings interviewed with the White House and the Department of Justice in May, and her nomination was officially put forward on September 7, 2017.

Political Activity

While Jennings has never held public office, she has donated occasionally to Republicans.[1]  Among her donations, Jennings gave $1000 to the senatorial campaign of Trey Grayson, $1000 to McConnell, and $1000 to the Republican Party of Kentucky.

Legal Experience

After her clerkship on the U.S. District Court for the Middle District of Tennessee, Jennings has spent the rest of her legal career at the same firm: the Louisville law firm Middleton Reutlinger, serving first as a litigation associate, then as a partner, and finally as head of the litigation division.  In this role, Jennings mainly focuses on complex commercial litigation, including contract claims, professional malpractice, and intellectual property.  Jennings also maintains an employment law portfolio, primarily defending employers against discrimination claims, but also working on compliance matters.

In one of her more prominent cases, Jennings represented Republican Dana Seum Stephenson, who had been elected to the Kentucky State Senate in 2004.[2]  Stephenson’s opponent Virginia Woodward challenged Stephenson’s seating, arguing that Stephenson did not meet the Kentucky Constitution’s residency requirements.  Jennings was part of the legal team representing Stephenson throughout the proceedings, and at the Kentucky Supreme Court, which affirmed a lower court ruling holding that Stephenson was ineligible to serve.[3]

Jennings has also frequently defended school districts against First Amendment and sex discrimination challenges.  She notably defended school programs offering single-sex classes,[4] school dress codes,[5] and school locker room assignment plans.[6]

Overall Assessment

In a hearing expected to be dominated by the testimony of the American Bar Association (ABA), it is unlikely that Jennings will draw much controversy.  Despite her age, Jennings was rated Qualified by the ABA, and has fifteen years of substantive legal experience, significantly more than many of the other young nominees.  Furthermore, Jennings has Paul and McConnell, both influential senators, as her champions.  As such, it is likely that Jennings will be confirmed by the Senate before the end of the year.


[1] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=rebecca+jennings&order=desc&sort=D (last visited Nov. 9, 2017).

[2] Stephenson v. Woodward, 182 S.W.3d 162 (Ky. 2005).

[3] See id. 

[4] A.N.A. ex rel. S.F.A. v. Breckenridge Cty. Bd. of Educ., 833 F. Supp. 2d 673, 675 (W.D. Ky 2011).

[5] Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005).

[6] Richards et al v. Oldham Cnty. Bd. of Educ. et al., Civil Action No. 3:10-CV-00769 (W.D. Ky) (United States District Judge John G. Heyburn II).

Elizabeth L. “Lisa” Branch – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Judge Elizabeth L. “Lisa” Branch, President Trump’s second nominee to the Eleventh Circuit, is a state appeals court judge in Georgia with experience in the George W. Bush administration and as a BigLaw commercial litigator. While she has not had the opportunity to opine much on constitutional law, either as an attorney or judge, Branch is a member of the conservative Federalist Society (as is Judge Kevin Newsom, Trump’s first pick for the Eleventh Circuit).  As such, her confirmation will likely ensure a conservative en banc Eleventh Circuit for the foreseeable future.

Background

Elizabeth Lee[1] Branch was born in Atlanta, Georgia, in 1968.[2] She graduated from Davidson College in North Carolina in 1990, and from the Emory University School of Law in 1994. At Emory, Branch served on the Emory Law Journal and was inducted into the Order of the Coif,[3] indicating her position in the top ten percent of her class.[4] After law school, she clerked for two years in Atlanta for Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia.[5] Thereafter, from 1996 to 2004, she worked  at the law firm of Smith, Gambrell & Russell, LLP.[6] This was followed by four years in the Bush Administration, where she served in non-litigating positions,[7] first as the associate general counsel for rules and legislation at the Department of Homeland Security, then as the special assistant and counselor to the administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.[8]

In 2008, Branch returned to Smith, Gambrell & Russell as a partner in the commercial litigation group,[9] also working some on government affairs.[10] In 2012, Branch was appointed by Governor Nathan Deal to the Georgia Court of Appeals.[11]

While at the Georgia Court of Appeals, Branch has served and continues to serve on various internal court committees, and from 2013 to 2017 she also served as a commissioner, appointed by Governor Deal,[12] on the Georgia Child Support Commission.[13]

Among many other affiliations, Branch has been a member of the Federalist Society since 2001.[14] She served on the Executive Board of the Atlanta Lawyers Chapter from approximately 2009 to 2012, and she has served on that chapter’s Board of Advisors from 2012 to the present.[15] From approximately 2001 to 2003, and from 2006 to 2009, she was a member of the Republican National Lawyers Association.[16] She was on the Chairman’s Council of the Fulton County Republican Party from approximately 2011-2012, and she was a member of the National Rifle Association from 2009 to 2014.[17]

Political Activities

Prior to becoming a judge, Branch engaged with several political campaigns as an unpaid volunteer, including participating in the Republican National Committee’s 2006 door-to-door efforts supporting Rick Santorum (unsuccessfully) for a third Senate term.

History of the Seat

Branch has been nominated for a Georgia seat on the U.S. Court of Appeals for the Eleventh Circuit. The vacancy will result from Judge Frank Hull’s impending move to senior status.  As Hull, one of the court’s solidly conservative members, has indicated that she will not move to senior status until the confirmation of her successor, there is not an active vacancy currently on the Eleventh Circuit.

Legal Career

Branch has never practiced before the Supreme Court of the United States,[18] but rather has focused her career on commercial litigation and subsequent service in the federal government in a non-litigating position.[19] Having not served in an attorney general’s or solicitor general’s office, she does not have a record of making controversial arguments or supporting controversial laws.

As part of the U.S. Senate’s Questionnaire for Judicial Nominees, Judge Branch was required to list the ten most significant litigated matters that she personally handled.[20] All ten were civil, four settled, and none concerned constitutional law or civil-rights laws. Only one of the ten listed resulted in a reported decision.[21] As such, it is difficult to determine her legal views on almost any subject from her work as an attorney. Branch’s pre-judicial career as an attorney does not appear, by itself, to shed any light on her views of separation of powers, federalism, privacy, equal protection, due process, religious freedom, or speech, for example. As will be noted, this is true of her judicial career as well.

Jurisprudence

Although Branch has been a state appellate judge for more than five years and has participated in more than 1,500 cases,[22] her decisions say little about her views on constitutional law. This is because the Georgia Court of Appeals “has statewide appellate jurisdiction of all cases except those involving constitutional questions, murder, and habeas corpus cases where original appellate jurisdiction lies with the Supreme Court [of Georgia].”[23] Her court nevertheless has jurisdiction “to address constitutional issues when they are well-settled as a matter of law,” and Judge Branch participated in a number of criminal appeals raising constitutional issues.[24] As a whole, those criminal-law opinions do not reflect an anti-defendant bias. In a number of cases, Branch has granted new trials as a result of ineffective assistance of counsel[25] and reversed denials of motions of suppress (or affirmed the grant of a motion to suppress),[26] which resulted in some convictions being reversed.[27]

But, by and large, her views on major issues of constitutional law are not available to us from her judicial record. That is not to say, of course, that nothing can be gleaned from her prior cases.

In a case seemingly designed to end up in blog posts such as this, Judge Branch held in Gary v. State that a man could not be convicted of criminal invasion of privacy under O.C.G.A. § 16-11-62(2) for recording video up a woman’s skirt with his cell phone while at the grocery store.[28] Perhaps aware that the eyebrow-raising nature of the holding might draw attention–either upon entry of the decision or in future confirmation hearings such as the one at which she will soon appear–Judge Branch took pains to explain what she was and was not saying:

“Each of Gary’s first four enumerations of error turns on whether OCGA § 16–11–62 (2) criminalizes the conduct at issue. With respect to this question, both the State’s argument and the trial court’s holding focused on two propositions: (i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated. Rather, the only issue presented by this appeal is whether the defendant’s conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16–11–62 (2).

The answer to this question necessarily must begin with the language of OCGA § 16–11–62 (2) itself.”[29]

Turning to that language–which makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view”–along with language from surrounding subsections and an earlier definitions section, Branch concluded that the term “private place” did not include a particular region of a person’s body.[30] Five of her colleagues joined her opinion, and together they noted “that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. . . . The remedy for this problem, however, lies with the General Assembly, not with this Court. Both our constitutional system of government and the law of this State prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions thereof.”[31] Three judges dissented, finding that the very same “plain and unambiguous language” of the statute yielded the opposite result.[32]

Branch also resorted to plain statutory language in holding that two transgender men had a right to change their names, in In re Feldhaus.[33] (Disclosure: the ACLU, for whom I work, filed an amicus brief in the case.) Although she pointedly did not use personal pronouns to describe the men–instead employing an awkward “the person formerly known as x” formulation–the judge formerly and currently known as Lisa Branch appropriately recognized that all the Georgia name-change statute requires is that a person not change their name in an attempt to defraud others, and that the transgender petitioners’ attempts to change their names to ones consistent with their gender identity in the cases before her were not an attempt to defraud others.[34] In so holding, the judge formerly and currently known as Lisa Branch offered a clear rejection of the approach taken by the many state trial judges–not just in Georgia but across the country–who unlawfully burden transgender petitioners for name changes with additional requirements or criteria that are nowhere enumerated or implied and are not applied to any other class of petitioner.

Branch’s interpretation of purportedly plain language was not always uncontroversial. Beyond the skirt-photographing case described above, in the Cook case Judge Branch–joined by two colleagues–interpreted the federal Medicaid statute to be unambiguous in indicating that the Medicaid applicant’s purchase of an annuity was not subject to an asset-transfer penalty, and thus refused to defer to the relevant federal agency’s contrary interpretation.[35] The Supreme Court of Georgia–while splitting on the degree of agency deference required–unanimously disagreed that the language unambiguously required Branch’s interpretation.[36]

Preceding another prominent reversal on a matter of statutory interpretation, Branch formed part of a three-judge plurality that held that police officers of Agnes Scott College–a private college–were entitled to immunity as “state officer[s] or employee[s]” under the Georgia Tort Claims Act.[37] (One judge concurred in the judgment, while three judges dissented.)[38] The Supreme Court of Georgia unanimously reversed, finding it “clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”[39] Looking beyond the specific statutory provision considered by the Court of Appeals plurality, the Supreme Court of Georgia found that “reading the Georgia Tort Claims Act as a whole makes it abundantly clear that the immunity it provides is limited to torts committed by a ‘state officer or employee’ who was acting within the scope of his or her official duties or employment on behalf of a specific ‘state government entity.’”[40]

In each of the cases described above, the distinguishing factor between Branch and her colleagues or the parties was statutory interpretation. What was plain to her was sometimes plainly different to her colleagues. This, of course, is true of all judges, and it will surely continue to mark her future cases, whether she remains in her current position or is confirmed to the Eleventh Circuit.

Writings

Branch does not have many publicly available non-judicial writings. While at OIRA, she co-authored a law-review article entitled “Managing the Regulatory State: The Experience of the Bush Administration.”[41] While an assessment of the Bush Administration’s OMB–including its approach to “smart regulation” and its use of “prompt” letters–is well beyond the scope of this blog post,[42] the piece is notable for its surprisingly statist–relatively speaking–acknowledgment of the importance of regulation:

“Every President from Richard Nixon to George W. Bush has embraced centralized executive oversight of agency regulations. Even critics of OMB acknowledge the legitimacy of a centralized oversight function. Presidents have found regulatory oversight to be necessary and desirable because: (i) the regulatory state is a permanent part of the legal landscape of the United States; (ii) the economic costs of the regulatory state are substantial; (iii) a consensus is needed when executive branch disagreements about regulation arise; and (iv) federal regulations are often necessary to achieve legislative objectives and implement Presidential priorities and policy objectives. Virtually all scholarship on this subject acknowledges the increasing importance of OMB’s role in regulatory policymaking over the past thirty years.”[43]

Although the piece is highly technocratic, promotes science, and gives some amount of attention to so-called unquantified benefits such as a human health and environmental quality, it would be reading too much into this article to suggest that an appreciation of agency expertise will lead Branch to defer to that expertise when the statutory language does not require it. Instead, she will likely seek simply to apply language that she perceives to be unambiguous.

Overall Assessment

Branch’s legal career provides very little insight into how she would operate as an Eleventh Circuit judge faced with a wide range of constitutional questions, as she has not publicly staked out a position on any hot-button legal issue. Her most controversial public acts seem to be joining the NRA and supporting incumbent senator Rick Santorum, holder of a variety of controversial views. Branch’s membership in the Federalist Society is the clearest indication of where her judicial philosophies lie, and her confirmation would likely ensure a conservative en banc Eleventh Circuit for many years to come.


[1] State Bar of Georgia, Hon. Elizabeth Lee Branch, https://www.gabar.org/MemberSearchDetail.cfm?ID=MDc2MDMw (all websites visited Oct. 25, 2017); Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[2] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[3] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[5] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[6] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[7] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[10] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[11] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[12] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[13] Questionnaire for Judicial Nominees at 4-5, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[14] Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[15] Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[16] Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[17] Questionnaire for Judicial Nominees at 6, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[18] Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[19] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[20] Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[21] Questionnaire for Judicial Nominees at 50, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf; Wood v. Archbold Med. Ctr., Inc., 738 F. Supp. 2d 1298 (M.D. Ga. 2010).

[22] Questionnaire for Judicial Nominees at 22, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[23] Court of Appeals of the State of Georgia, http://www.gaappeals.us/.

[24] Questionnaire for Judicial Nominees at 42, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[25] Shaw v. State, 340 Ga. App. 749, 798 S.E.2d 344 (2017); McLaughlin v. State, 338 Ga. App. 1, 789 S.E.2d 247 (2016).

[26] Watts v. State, 334 Ga. App. 770, 780 S.E.2d 431 (2015); Causey v. State, 334 Ga. App. 170, 778 S.E.2d 800 (2015); Bodiford v. State, 328 Ga. App. 258, 761 S.E.2d 818 (2014); Corey v. State, 320 Ga. App. 350, 739 S.E.2d 790 (2013); State v. Carr, 322 Ga. App. 132, 744 S.E.2d 341 (2013); Williams v. State, 318 Ga. App. 715, 734 S.E.2d 535 (2012).

[27] Arp v. State, 327 Ga. App. 340, 759 S.E.2d 57 (2014).

[28] Gary v. State, 338 Ga. App. 403, 403-04, 790 S.E.2d 150 (2016).

[29] Gary v. State, 338 Ga. App. 403, 405, 790 S.E.2d 150 (2016).

[30] Gary v. State, 338 Ga. App. 403, 405-09, 790 S.E.2d 150 (2016).

[31] Gary v. State, 338 Ga. App. 403, 409-10, 790 S.E.2d 150 (2016).

[32] Gary v. State, 338 Ga. App. 403, 410-13, 790 S.E.2d 150 (2016) (Mercier, J., dissenting).

[33] In re Feldhaus, 340 Ga. App. 83, 796 S.E.2d 316 (2017).

[34] In re Feldhaus, 340 Ga. App. 83-85, 796 S.E.2d 316 (2017).

[35] Cook v. Glover, 295 Ga. 495, 495-96, 761 S.E.2d 267 (2014).

[36] Cook v. Glover, 295 Ga. 495, 495-502, 761 S.E.2d 267 (2014); Cook v. Glover, 295 Ga. 495, 502-04, 761 S.E.2d 267 (2014) (Nahmias, J., concurring specially).

[37] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 458-59, 759 S.E.2d 857 (2014).

[38] See Agnes Scott Coll. v. Hartley, 321 Ga. App. 74, 81-86, 741 S.E.2d 199 (2013) (Boggs, J., concurring in the judgment; Miller, J., dissenting).

[39] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 459, 759 S.E.2d 857 (2014).

[40] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 463-64, 759 S.E.2d 857 (2014).

[41] John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953 (2006).

[42] See generally Daniel H. Cole, Law, Politics, and Cost-Benefit Analysis, 64 Ala. L. Rev. 55 (2012).

[43] John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953, 955-56 (2006) (footnotes omitted).

St. Sen. Mark Norris – Nominee to the U.S. District Court for the Western District of Tennessee

While the federal judicial appointment process is political, it is unusual for politicians to directly be appointed to the judiciary.  As such, Mark Norris, the Majority Leader of the Tennessee State Senate, has a unique background as a nominee.  While other judges such as Judge Orlando Luis Garcia, Judge Henry Floyd, and Judge William J. Ray have stints as legislators, they all had judicial experience prior to their nominations.  Norris does not.

Background

Mark Saalfield Norris Jr. was born on July 9, 1955 in Akron, Ohio.  Norris received a Bachelor of Arts degree from Colorado College in 1977 and went onto earn his J.D. from the University of Denver College of Law in 1980.  After graduating, Norris joined the Memphis office of Armstrong Allen PLLC. as an associate, working in Tennessee state and federal court litigation.  In 1987, Norris became a partner at the firm.

In 1994, Norris was elected to the Shelby County Commission, which establishes policy and taxation for Shelby County (which covers Memphis).  Norris served on the Commission until 2000, with a stint as the Chairman from 1996 to 1997.

In 2000, Norris was elected to the Tennessee State Senate to represent District 32, representing the heavily Republican Memphis suburbs.  In 2006, Norris was elected to be the Chairman of the Senate Republican Caucus, and upon the election of Republicans to the Tennessee Senate Majority, Norris was elected Majority Leader in 2007.  He continues to hold that position.

In 2006, Norris left his partnership at Armstrong Allen, and joined Adams and Reece LLP. as a Special Counsel.  He continues to hold this position.

History of the Seat

Norris has been nominated to a seat on the U.S. District Court for the Western District of Tennessee.  This seat opened on March 18, 2017, when Judge Daniel Breen moved to senior status.  In February 2017, Norris was contacted by Sen. Lamar Alexander (R-TN) to gauge his interest in a federal judicial vacancy.  After Norris confirmed his interest, he interviewed with the White House in March 2017 and was declared the presumed candidate.  Norris was formally nominated on July 13, 2017.

Legal Experience

Setting aside his stint in the state legislature and on the Shelby County Commission, Norris has practiced law at two firms: Armstrong Allen PLLC. and Adams & Reece LLP.  In both positions, Norris handled a general civil litigation practice, focusing on personal injury, commercial, and other civil claims, including insurance defense.  Over the course of his career, Norris has been counsel of record in approximately 600 cases.  For example, Norris served as Chief Counsel for a couple who sued Memphis after the wife broke her ankle near a city library.[1]  Norris also defended various municipalities based on a provision in the Tennessee Constitution requiring all consolidation of municipalities to have a majority of residents both within and without the municipality.[2]

State Legislative Service

As noted above, Norris has served in the Tennessee State Senate since 2000, and as the Majority Leader since 2007.  In this capacity, Norris helps lead the Senate’s agenda, and has ignited controversy in two areas in particular: LGBT rights; and Refugee Resettlement.

LGBT Rights

In 2017, Norris supported a measure that would redefine terms in state law to their “natural and ordinary meaning”, a measure widely viewed as attempting to counter-act the Supreme Court’s decision legalizing same-sex marriage.[3]  Norris was also part of a group of 53 Republican legislators who sought to intervene in a same-sex divorce case in Knoxville, arguing that they had an interest in the interpretation of the state’s marriage laws.[4]

Refugee Resettlement

Norris has been accused by some of anti-Muslim animus by some organizations based on his strong opposition to the settling of Syrian refugees in Tennessee.[5]  In 2016, Norris sponsored a resolution in the Tennessee Senate demanding that the Attorney General file suit to block the resettlement of refugees in Tennessee.[6]  In defending his actions, Norris cited a news study from the alt-right website Breitbart stating that 27% of refugees resettled in Tennessee between 2011 and 2015 tested positive for latent tuberculosis, noting:

“Public health is at risk, and doing nothing is not an option.”[7]

Norris neglected to mention the fact that, even if the Breitbart sources are accurate, latent tuberculosis is not contagious.[8]

Overall Assessment

There is generally good reason why state legislators are not directly appointed to the federal bench.  As legislating is inherently political, legislators invariably have a long record of controversial actions that can be mined for opposition.  Unfortunately for him, Norris does as well.  Norris’ strong conservative record in the Tennessee Senate and his rhetoric on same-sex marriage and refugee resettlement will certainly be used by opponents to paint him as a bigot.

However, Norris benefits from his thirty seven year long practice history.  He can argue that his representation of personal injury plaintiffs as well as defendants shows a willingness to understand both sides of the law.  Furthermore, Norris benefits from his strong endorsement from Alexander and Sen. Bob Corker (R-TN).

With Republicans in the majority, Norris remains the odds-on favorite for confirmation.  However, if he fails to adequately address concerns about his views or doubles-down at his hearing, all bets are off.


[1] See Cross v. City of Memphis, Case No. 72984 (Circuit Court of Shelby County), rev’d and remanded, 20 S.W.3d 642 (Tenn. 2000).

[2] Tigrett et al. v. Robert Cooper. et al., 7 F. Supp. 3d 792 (W.D. Tenn. 2014), dismissed as moot, 595 F. App’x 554 (6th Cir. 2014).

[3] Jake Lowary, Senate Passes ‘Natural, Ordinary Meaning’ Bill Slammed by LGBT Groups as Discriminatory, Tennessean, April 27, 2017, http://www.tennessean.com/story/news/politics/2017/04/27/senate-passes-natural-ordinary-meaning-bill-slammed-lgbt-groups-discriminatory/100976184/.  

[4] Tom Humphrey, 53 GOP Legislators Want to Intervene in Same-Sex Divorce, Humphrey on the Hill, Sept. 12, 2016, http://knoxblogs.com/humphreyhill/2016/09/12/53-gop-legislators-want-intervene-sex-divorce/.  

[5] See, e.g. Alliance for Justice, AFJ Nominee Report: Mark Norris, https://www.afj.org/wp-content/uploads/2017/10/AFJ-Norris-Report.pdf.

[6] See Tom Humphrey, Legislators Challenge Refugee Resettlement on Public Health Grounds, Knoxville News Sentinel, June 19, 2016, http://archive.knoxnews.com/news/politics/legislators-challenge-refugee-resettlement-on-public-health-grounds-35a811e3-cf1d-4759-e053-0100007f-383569751.html/.  

[7] See id.

[8] See Latent Tuberculosis, https://en.wikipedia.org/wiki/Latent_tuberculosis (last visited Nov. 1, 2017).