Judge Marilyn Horan – Nominee for the U.S. District Court for the Western District of Pennsylvania

A longtime state judge in Western Pennsylvania, this is Judge Marilyn Horan’s second chance at a federal judgeship, her first having ended in failure due to a blockade on judicial confirmations at the end of the Obama Administration.  Given the bipartisan support behind her nomination, her distinguished background, and moderate judicial record, Horan is likely to be confirmed smoothly this time around.

Background

A Western Pennsylvania native, Marilyn Jean Horan was born on September 13, 1954 in Butler, in the outskirts of Pittsburgh.[1]  When Horan was 10, her father, a foreman at Armco Steel, was killed in a lightning strike alongside three others.[2]  Horan attended Pennsylvania State University, graduating magna cum laude in 1976.  Horan continued on to the University of Pittsburgh Law School graduating with a J.D. in 1979.  As a law student, Horan interned at the Neighborhood Legal Services Association in Butler.[3]

After graduating, Horan joined the Butler law firm Murrin, Murrin & Taylor.  Three years later, Horan became a partner and the firm was renamed Murrin, Taylor, Flach & Horan.

In 1996, Horan was appointed by Republican Governor Tom Ridge to be the first female judge on the Butler County Court of Common Pleas.[4]  Horan continues to serve as a judge there today.  In addition, Horan became a Common Pleas Court Administrative Judge in October 2017.[5]

During Horan’s tenure on the Court of Common Pleas, she has received several awards and commendations from the community including the Susan B. Anthony Award from the Women’s Bar Association of Western Pennsylvania,[6] the President’s Award from the Pennsylvania Conference of State Trial Judges,[7] the Outstanding Leadership Award from the Juvenile Justice Commission,[8] and the Anne X. Alpern Award from the Pennsylvania Bar Association Commission on Women in the Profession.[9]

In 2013, Horan applied for a federal judgeship with the application committee set up by Pennsylvania’s U.S. Senators Bob Casey (D-PA) and Pat Toomey (R-PA).[10]  Horan interviewed with Toomey and his staff in early 2014 and with Casey in early 2015.[11]  In July 2015, Horan was then nominated by President Obama for a vacancy on the U.S. District Court for the Western District of Pennsylvania created by Judge Terrence McVerry’s move to senior status.[12]  While Horan had bipartisan support for the seat and was unanimously voted out of the Judiciary Committee in January 2016, she never received a floor vote and her nomination was returned at the end of the 114th Congress.

History of the Seat

The seat Horan has been nominated for opened on April 24, 2013, with the unexpected death of Judge Gary Lancaster.[13]  On July 30, 2015, President Obama nominated Judge Robert J. Colville from the Alleghany County Court of Common Pleas to fill the vacancy created by Lancaster’s death.[14]  The nomination of Colville, a Democrat, was made as a package along with Horan’s nomination to a different seat as well as the nominations of two other Democrats.

While all four nominees in the package received a hearing on December 9, 2015, Colville and fellow Democrat John Milton Younge were blocked from Judiciary Committee consideration by Chairman Chuck Grassley, who was unhappy with their support of abortion rights.[15]  As such, Colville was not voted out of Committee and was returned unconfirmed at the end of the 114th Congress.  At the same time, Horan’s nomination for the McVerry seat was also returned unconfirmed to the President.

In January 2017, Toomey and Casey indicated their support for re-nominating Horan for the Western District.[16]  Horan was interviewed by the White House Counsel’s Office on May 15, 2017 and then maintained contact with their office while the nomination remained pending for seven months.[17]  Finally, Horan was nominated for the vacancy on December 20, 2017.[18]

Legal Experience

Horan’s sole legal occupation between law school and taking the bench was serving as an attorney at the firm of Murrin, Taylor, Flach & Horan in Butler, Pennsylvania.  At the firm, Horan handled family law, civil, and small business cases, practicing almost entirely in state court.[19]

Among other matters, Horan litigated many contentious family law cases.  In one case, Horan represented a father seeking visitation rights for his unborn child over the objection of the mother.[20]  In another case, Horan represented a mother in tracking down a child from a common law marriage who was kidnapped and taken to England by the child’s father.[21]  In another notable case, Horan successfully represented a mother in regaining custody of children that she had voluntarily relinquished to her parents.[22]

Jurisprudence

Horan has served on the Butler County Court of Common Pleas for the last twenty two years.  During this time, Horan has overseen over one thousand cases to verdict and judgment.[23]  Of these cases, the vast majority (approximately 75%) are civil cases, including municipal and administrative matters and family law.[24]

On the bench, Horan’s record has been relatively mainstream with a relatively low reversal rate.  Among over one thousand cases handled by Horan over the last twenty-two years, only approximately 26 have been reversed by a higher court.[25]  In one of her more notable reversals, Horan ruled that a defendant who had committed homicide by vehicle while under the influence had to pay restitution to the insurance company that paid out a life insurance policy to the decedent.[26]  In reversing, the Pennsylvania Superior Court found that an insurer did not constitute a victim that could claim restitution under Pennsylvania law.[27]

Political Activity

Horan is a Republican, and unsuccessfully pursued a Republican Party endorsement for a Superior Court seat in 2002.[28]  However, she has not been involved with any political party or campaign other than her own judicial campaigns.[29]

Overall Assessment

As of today, Horan’s chances of a smooth confirmation look pretty high.  She has a mainstream moderate record, is well-liked by fellow attorneys and has won several awards from legal associations.  Furthermore, she has the support of her Democratic and Republican home-state senators, as well as the backing of two different Administrations.  Finally, despite over two decades on the state bench, Horan has managed to avoid any hot-button decisions or cases.  As such, Horan looks set for a relatively painless confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 1.

[2] Karen Kane, Horan Honored as State’s Outstanding Jurist, Pittsburgh Post-Gazette, Aug. 22, 2004.

[3] See Horan, supra n. 1 at 2.

[4] See Kane, supra n. 2.

[5] See Horan, supra n. 1.

[6] Erin Giebler, Judge Horan Receives WBA Award, Alleghany County Bar Association Lawyers Journal, Mar. 3, 2006.

[7] Kane, supra n. 2.

[8] Metro, Butler County, Pittsburgh Post-Gazette, Dec. 8, 2005.

[9] Bill Vidonic, Marilyn J. Horan, Pittsburgh Tribune Review, Apr. 9, 2014.

[10] See Horan, supra n. 1 at 55.

[11] Id.

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

[13] Michael Hasch and Bobby Kerlik, Gary Lancaster, Chief U.S. Judge for Western Pa, Dead at 63, Pittsburgh Tribune Live, April 24, 2013, http://triblive.com/news/adminpage/3906347-74/district-chief-died.

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

[15] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominations Fail to Advance, The Daily Signal, Jan. 29, 2016, http://dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[16] See Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 55.

[17] See id.

[18] Press Release, President Donald J. Trump Announces Ninth Wave of Judicial Nominees and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at www.whitehouse.gov/thepressoffice).

[19] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 47.

[20] Stroup v. Stroup (Butler County late 1980s).

[21] Jenkins v. Jenkins (Butler County approximately 1984).

[22] Cady v. Weber, 464 A.2d 423 (Pa. Super. 1983).

[23] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 17.

[24] See id.

[25] See id. at 35-40.

[26] Commonwealth v. Opperman, CA 124 of 1999.

[27] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

[28] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 45-46.

[29] See id. at 46.

Ryan Bounds – Nominee for the U.S. Court of Appeals for the Ninth Circuit

Ryan Bounds, a federal prosecutor, is President Trump’s first nominee for the Ninth Circuit Court of Appeals.  An Oregon native and an accomplished lawyer, with experience in private practice and the public sector, Bounds has not received the support of the state’s senators, who contend that his nomination was made in contravention of the state’s bipartisan selection process.

Background

Ryan Wesley Bounds was born on June 28, 1973 and is a Hermiston, Oregon native.[1]  He graduated from Stanford University in 1995 with a B.A. in psychology and political science.  At Stanford, he was an editor of the conservative student-run newspaper, The Stanford Review,[2] and of The Thinker, a Stanford newspaper that Bounds and a liberal student founded with the stated goal of providing a neutral forum to express opposing opinions about the topics du jour, an ethos captured in its masthead: “For every issue, there is another side; think about it.”[3]  In 1999,

Bounds graduated from Yale Law School, where he was editor-in-chief of the Yale Law and Policy Review, an editor of the Yale Law Journal, and vice-president of the Yale Federalist Society.[4]  He was also editor-in-chief of a 1998 Federalist Society symposium issue of the Harvard Journal of Law and Public Policy.[5]

From 1999-2000, Bounds clerked for Judge Diarmuid  F. O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit,[6] whose vacancy he would fill if confirmed.[7]  From 2000-04, he practiced commercial law at Stoel Rives LLP in Portland, Oregon.[8]  From 2004-07, he served as Deputy Assistant Attorney General and Chief of Staff in the Office of Legal Policy at the DOJ.  From 2007-08 and for part of 2009 he was the Special Assistant United States Attorney for the District of Columbia.  From 2008-09 he was the Special Assistant to the President for Justice and Immigration Policy for the Domestic Policy Council.[9]  From 2010 until the present, he has prosecuted federal crimes as an Assistant U.S. Attorney for the District of Oregon.10

History of the Seat

Bounds has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with O’Scannlain’s move to senior status.  Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.11  Oregon’s two democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez to the White House.  However, the White House nominated Bounds on September 7, 2017.

In response, both Wyden and Merkley declined to return blue slips on Bounds, noting, in a letter to White House Counsel Don McGahn that Bounds had not been approved by the state’s bipartisan judicial selection committee as of his nomination date, and that they had not been adequately consulted.12  McGahn disputed the lack of consultation and instread criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.13  Bounds’ American Bar Association rating is ‘Unanimously Qualified.’14

Legal Career

Bounds has a well-rounded legal career: trial and appellate work, civil and criminal work, and government and private practice at a top firm in Portland.15  Bounds’ career as an Assistant U.S. Attorney has centered on prosecuting immigration crimes (2010-2011) and fraud and environmental crimes (2011-present).16

Most of the major actions Bounds has worked on are in immigration and criminal law. The following cases are examples of his work: U.S. v. Vasquez, 843 F. Supp. 2d 1147 (D. Or. 2012) (dismissing assault with a dangerous weapon indictment because prison floor that defendant inmate slammed his victim into was not a dangerous weapon); U.S. v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1170 (D. Or. 2012)(holding illegal entry defendant in custodypending prosecution violated his statutory right to pretrial release); U.S. v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) (illegal entry defendant had been adequately informed that he was ineligible for voluntary departure due to previous rape conviction, and could not successfully collaterally attack his earlier removal order on grounds that he had not been so advised);Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (Board of Immigration Appeals abused its discretion by denying defendant’s motion to reopen his case as untimely because equitable tolling applied); Price v. U.S., 985 A.2d 434, 435 (D.C. Cir. 2009) (affirming theft conviction).

Speeches/Writings

As Deputy Assistant Attorney General, Bounds advocated for the maintenance of the Prison Litigation Reform Act (PLRA) when the issue was before the House of Representatives in 2007.  The question at bar was whether the PLRA’s terms, including the requirement that prisoners exhaust administrative remedies, that attorney’s fees are capped at 150% of any monetary recovery (i.e., if the recovery is $1, the PLRA caps attorney’s fees at $1.50), and that serial filers will be liable for court costs, have led to meritorious claims of prison abuses going unremedied.17  Bounds argued that the PLRA’s stated objective of decreasing frivolous prisoner lawsuits”has preserved the ability of legitimately harmed inmates to gain access to the courts and prevented the negative effects of frivolous cases in ever greater numbers.”18

While an undergrad at Stanford, Bounds co-founded The Thinker, a student publication aimed at providing a neutral forum where people of different political views can express their opinions freely and thoughtfully.20  Explaining what led him to co-found the paper, he expressed irritation “that there were some issues that I couldn’t talk about honestly on this campus.”  Bounds called Stanford’s conservative publication, The Review, “a service” in providing a forum where “people don’t toe the liberal line,” as in the liberal publication Stanford Daily, but saw the need for a single platform where “people with opposing viewpoints can meet on common ground.”21

Overall Assessment

Bounds’ relatively long, diverse career in litigation makes him an experienced candidate for the bench. While Bounds’ political orientation is decidedly conservative, his public positions have not been dogmatic or particularly ideological.  If Bounds is able to overcome the blue slip hurdle and gain the support of his home state senators, he will likely be confirmed.


[1]1http://pioneercourthouse.org/board-members-bios.html; http://www.oregonlive.com/portland/index.ssf/2017/09/trump_nominates_oregon_federal.html

[3]3https://web.stanford.edu/dept/news/pr/95/950605Arc5195.html

[4]4https://ballotpedia.org/Ryan_Bounds

[5]5https://ballotpedia.org/Ryan_Bounds; http://heinonline.org/HOL/LandingPage?handle=hein.journals/hjlpp21&div=8&id=&page=

[6]6https://ballotpedia.org/Ryan_Bounds

[7]7https://www.congress.gov/nomination/115th-congress/987

[8]8https://ballotpedia.org/Ryan_Bounds

Unconfirmed: Judith Richards Hope

“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

On February 5, 1988, Robert Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit, having served less than six years on the bench.[1]  In the previous year, Bork had endured a famously contentious and bitter battle for a seat on the U.S. Supreme Court.  While Bork sought to move on from the bench, his resignation would trigger another confirmation battle, leaving a well-respected D.C. litigator and trailblazer as its casualty.

Shortly after Bork’s resignation, the Reagan Administration quickly settled on a nominee: U.S. District Judge Karen Henderson.[2]  Henderson was young, conservative, and had the solid support of Judiciary Committee Ranking Member Strom Thurmond.[3]  Furthermore, Henderson was a woman, and satisfied Democratic Sen. Edward Kennedy’s push for more female and minority judges.[4]  However, with Henderson’s name all but ready to move forward, the judge unexpectedly withdrew from the process, citing family considerations in South Carolina.[5]  This left the Reagan Administration turning to their back-up, a prominent D.C. lawyer named Judith Richards Hope.

Hope was born Judith Richards in Cincinnati, the daughter of a Methodist minister and a social worker.  Hope grew up in the small town of Defiance, Ohio and started work at the age of twelve in a dry-cleaning plant, getting paid twenty-five cents an hour.[6]  She attended Wellesley College, graduating magna cum laude in 1961 and joining Harvard Law School as one of just fifteen women in her class.[7]  Hope graduated Harvard in 1964 alongside stalwarts including future Supreme Court Justice Stephen Breyer and future D.C. Circuit Judge Judith Ann Wilson Rogers.

By 1988, Hope had established herself as one of D.C.’s most prominent attorneys.  She had become a partner at Paul, Hastings, Janofsky & Walker, becoming the first woman to serve on the firm’s Executive Committee.  Furthermore, Hope had served on the White House Domestic Council in the Ford Administration and as vice chair of the President’s Commission on Organized Crime under Reagan.  In 1984, Hope served as the Chairwoman of Lawyers for Reagan-Bush.[8]  Additionally, she had a thriving practice, with clients including prominent screenwriter Nora Ephron.[9]

Despite her credentials, the Reagan Administration was unenthusiastic about her nomination, specifically doubting her commitment to conservative judicial principles.[10]  Additionally, Hope was reluctant to take the judgeship, which would constitute a significant pay cut.[11]  Nevertheless, with an important seat at stake, Reagan personally called Hope and persuaded her to accept the nomination.[12]  With her acquiescence, on April 14, 1988, Reagan officially nominated Hope for the vacancy.

Unfortunately for Hope, Bork’s resignation had left a tenuous balance on the D.C. Circuit, with six Reagan-appointed conservatives countering five older liberals (including future Supreme Court Justice Ruth Bader Ginsburg).[13]  Furthermore, one of the leaders of the court’s liberal wing, Judge Spottswood Robinson, was facing health issues and was considering retirement.[14]  As such, many Democrats sought to block any Reagan appointee to the court, preferring to leave the seat open for a Dukakis appointment.[15]  However, other liberals argued that the moderate Hope was the best nominee they were likely to get from a Republican Administration, noting that, if Bush won the election, he would likely nominate a more conservative candidate.[16]  Caught between the two sides, Senate Judiciary Committee Chair Joe Biden declined either to block Hope outright or to move her nomination forward.  Instead, her nomination sat in limbo.

Hoping to end the embargo on Hope’s nomination, Judiciary Committee Republicans excoriated the Democratic majority, with Sen. Alan Simpson calling the lack of action “inane, banal, and childish.”[17]  The attacks did not have the desired effect, however, as Democrats chose not to include Hope’s nomination in their final hearing of the year.  In his defense, Biden pointed out that he had processed “at least 10 more judges” than Republicans expected to get.[18]

Desperate, the White House reached out to Senate leaders seeking to put a package of nominees together for confirmation and noting that Hope was one of their top priorities.[19]  However, the outreach backfired.  As one journalist noted, “[p]recisely because the White House wanted them so badly, the Democrats were determined to bury…Hope”[20]  Instead, Democrats and Republicans cut a deal on a package that left out Hope.  As the 100th Congress came to an end, so did Hope’s nomination.[21]

Unfortunately for those hoping for a more liberal D.C. Circuit, Vice President George H.W. Bush kept the presidency in Republican hands in the 1988 election.  Paradoxically, this also hurt Hope’s chances as, during the 1988 primaries, she had advocated for a different candidate: Senate Republican leader Robert Dole.[22]  Perhaps sensing the political difficulties, Hope announced that she would not seek renomination, and Bush filled the vacancy with the then-Chairman of the Equal Employment Opportunity Commission, an African African conservative named Clarence Thomas.[23]

With Thomas’ subsequent elevation to the Supreme Court, it is hard not to wonder what could have been.  At only forty-seven at the time of her nomination, would the relatively moderate Hope have become the stealth candidate to replace Justice Brennan, rather than then-Judge David Souter?

Stepping back, it is clear that the nomination’s defeat had little to do with Hope.  Had she been nominated at a different time (or under a different Senate), Hope would likely have sailed to confirmation.  For her part, Hope has continued to blaze a trail for other female judges and attorneys, mentoring many as a law professor at Harvard and Georgetown.  She remains to this day one of the luminaries of Harvard Law School and the legal profession.


[1] Ruth Marcus, Robert Bork’s Last Day on Bench a Busy One; Judge Quotes Dr. King: ‘Free at Last’, Wash. Post, Feb. 6, 1988.

[2] Ruth Marcus, Woman from South Carolina Top Choice to Replace Bork; Trial Judge Recommended for D.C. Court, Wash. Post, Feb. 26, 1988.

[3] See id.

[4] See id.

[5] Ruth Marcus, Top Candidate for Bork Seat Drops Out; S. Carolinian Cites Personal Reasons, Wash. Post, Mar. 4, 1988.

[6] Judith Richards Hope, Pinstripes & Pearls: the Women of the Harvard Law School Class of ‘64 Who Forged an Old Girl Network and Paved the Way for Future Generations 7 (Lisa Drew Book/Scribner 2003).

[7] See id.

[8] Susan F. Rasky & Linda Greenhouse, Washington Talk: Briefing: A Second Chance?, N.Y. Times, Nov. 18, 1988, http://www.nytimes.com/1988/11/18/us/washington-talk-briefing-a-second-chance.html.  

[9] See Chuck Conconi, Divorce with a Heartburn Clause, Wash. Post, June 28, 1985 (noting Hope as Ephron’s attorney).

[10] See Ruth Marcus, Woman D.C. Lawyer Picked to Succeed Bork, Sources Say; Reagan Reportedly Persuaded Her to Serve, Wash. Post, Mar. 24, 1998.

[11] See id.

[12] See id.

[13] Saundra Torry, D.C. Lawyer’s Nomination to Court of Appeals Appears Stalled, Wash. Post, Sept. 9, 1988.

[14] See id.

[15] See id.

[16] See id.

[17] Id.

[18] See Ruth Marcus, Reagan’s Judicial Nominees Face Judgment Day on the Hill, Wash. Post, Oct. 5, 1988.

[19] See Steven V. Roberts, Washington Talk: The Senate; As Adjournment Nears, Cutting a Judicial Deal, N.Y. Times, Oct. 19, 1988.

[20] See id.

[21] Jill Abramson, Failure of Appeals Court Nomination Means Next President to Fill Key Post, Wall Street Journal, Oct. 14, 1988.

[22] Susan F. Rasky & Linda Greenhouse, Washington Talk: Briefing: A Second Chance?, N.Y. Times, Nov. 18, 1988, http://www.nytimes.com/1988/11/18/us/washington-talk-briefing-a-second-chance.html.  

[23] Ruth Marcus, EEOC Chief is Eyed for U.S. Court; Expected Nomination Pleases Conservatives, Wash. Post, May 9, 1989.

Michael B. Brennan – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The last time the U.S. Court of Appeals for the Seventh Circuit had a full complement of judges was on January 16, 2010.  The next day, Judge Terence Evans moved to senior status.  Evans’ seat, informally assigned to Wisconsin, remains vacant to this day.  Due to infighting between his home-state senators, Michael Brennan, Trump’s nominee to fill the seat, is unlikely to see a smooth confirmation to the seat.

Background

Michael B. Brennan was born in 1963 in Milwaukee, Wisconsin.  Brennan received his B.A. cum laude from the University of Notre Dame in 1986.  He then proceeded to Northwestern University Law School, where he served as coordinating note and comment editor at the Northwestern University Law Review.  After graduating from law school, Brennan completed a two-year clerkship with Judge Robert Warren[1] on the U.S. District Court for the Eastern District of Wisconsin.[2]

After his clerkship, Brennan joined the Milwaukee office of Foley & Lardner, where he served as an associate for four years.  In 1995, Brennan left Foley to clerk for Judge Daniel Mannion on the U.S. Court of Appeals for the Seventh Circuit.

In 1997, Brennan joined the Milwaukee County District Attorney’s Office as an Assistant District Attorney.  The next year, while maintaining his position, Brennan also joined the Wisconsin Criminal Penalties Committee, a Committee intended to study and recommend changes in sentencing, as a staff attorney.  In 2000, Brennan was appointed by Gov. Tommy Thompson to be a judge on the Milwaukee County Circuit Court.

In 2003, Brennan applied to the Wisconsin Federal Judicial Commission for a vacancy opening up on the Seventh Circuit.[3]  However, Wisconsin Supreme Court Justice Diane Sykes got the nomination (and was ultimately confirmed).  In 2007, Brennan applied simultaneously for vacancies on the U.S. District Courts for the Eastern and Western Districts of Wisconsin.[4]  He was not selected for either vacancy, however, with the nominations going to fellow state judges Timothy Dugan and J. Mac Davis respectively.  However, neither candidate was ultimately confirmed.

In November 2008, Brennan unexpectedly announced his resignation from the bench to join Gass Weber Mullins LLC., a Milwaukee based complex litigation firm.[5]  He continues to practice there as a Partner.

History of the Seat

The seat Brennan has been nominated for is the longest pending appellate vacancy.  This seat opened on January 17, 2010 with the retirement of Judge Terence Evans.[6]  On January 22, 2010, Wisconsin Senators Herb Kohl and Russ Feingold, both Democrats, recommended four candidates for the vacancy to President Obama: U.S. District Judge Lynn Adelman; Prof. Victoria Nourse of the University of Wisconsin Law School; Judge Richard Sankovitz of the Milwaukee County Circuit Court; and defense attorney Dean Strang.[7]  On July 14, Obama nominated Nourse for the seat.[8]  No action was taken on Nourse’s nomination before the end of the 111th Congress.

In the 2010 elections, Feingold was defeated by Republican Ron Johnson.  Upon joining the Senate in 2011, Johnson indicated his opposition to Nourse’s nomination, claiming both procedural and substantive reasons for his opposition.[9]  Due to Johnson’s withholding of a blue slip, Nourse never got a hearing and her nomination was withdrawn at the end of 2011.

After Kohl was replaced by fellow Democrat Tammy Baldwin in 2012, Baldwin and Johnson struck a deal on a process to fill three federal judicial vacancies for Wisconsin, including the Seventh Circuit seat.[10]  The deal had both Johnson and Baldwin appoint three members to a Commission, which would then solicit applications and recommend no less than four candidates for each vacancy (for a candidate to be recommended, they needed support from five out of six commissioners).[11]

The deal allowed for the successful confirmations of Judges James Petersen and Pamela Pepper in 2014.  However, the Commission was unable to agree on four candidates to fill the Seventh Circuit vacancy, with only two out of eight finalists: Sankovitz and Madison attorney Donald Schott, receiving the requisite five votes.[12]  While Johnson offered to send only the names of Sankovitz and Schott to the White House, Baldwin instead sent all eight candidates, an action that Johnson characterized as breaking the original agreement.[13]

In January 2016, the White House nominated Schott to the vacancy.[14]  While Johnson initially demurred to support Schott,[15] he ultimately returned a blue slip to allow Schott’s nomination to proceed.  The Republican-controlled Senate Judiciary Committee held a hearing on Schott and advanced the nomination on a 13-7 vote on June 16, 2016.[16]  However, Senate Majority Leader Mitch McConnell blocked all further action on the nomination, and it expired at the end of the 114th Congress.

After the election of Trump and the re-election of Johnson in 2016, Johnson and Baldwin renewed their 2013 deal for the recommendations for federal judicial vacancies.[17]  In March 2017, Brennan was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[18]  After interviewing with the White House Counsel’s Office and the Department of Justice in March 2017, Brennan applied to the Commission set up by Johnson and Baldwin.[19]  However, the Commission did not recommend Brennan (or any other applicant) due to the inability to secure five votes.[20]  Despite the lack of recommendation for Brennan (who secured votes from all three Republican Commissioners and one Democratic Commissioner), the White House submitted his nomination to the Senate on August 3, 2017.[21]

As Brennan had not been recommended by the Wisconsin Federal Judicial Commission, Baldwin has indicated that she is “troubled” by his nomination, and has not yet returned a blue slip enabling the Judiciary Committee to hold a hearing.[22]  Nevertheless, the Senate Judiciary Committee is moving to a hearing on January 24, 2018.

Political Activity

Brennan has a long history of contributions and volunteering for the Wisconsin Republican party.  Brennan has volunteered and held positions in the campaigns of several Republicans including Johnson, Gov. Scott Walker, Congressman James Sensenbrenner, and former Governor and Senate candidate Tommy Thompson.[23]  Brennan also served on the Finance Committee of the Wisconsin Republican Party for four years.[24]  Brennan has also contributed financially to Republican candidates, including $1500 to Johnson and $4000 to Thompson.[25]

Additionally, Brennan is connected closely with Walker, serving as the Chair of Walker’s Judicial Selection Advisory Committee.[26]  While he chaired the Committee, it drew criticism for relying heavily on partisan identification and contributions when selecting judges for the state court.[27]  Brennan is also the founding member of the Milwaukee chapter of the Federalist Society, a conservative legal organization advocating for an originalist and textualist interpretation of the Constitution.[28]

Legal Practice

Brennan’s first legal position after his clerkship was at Foley & Lardner as a litigation associate.  In this capacity, Brennan largely represented corporations in federal and state court.[29]  For example, Brennan represented Great-West Life Assurance Company in defending an action for ERISA benefits filed by a widowed plaintiff.[30]  However, Brennan also participated in some more political actions.  In a notable case, Brennan successfully challenged a Fond Du Lac ordinance regulating the sale of tobacco products, arguing that the ordinance was pre-empted by state regulations on tobacco distribution.[31]  In another case, Brennan represented the Wisconsin Republican party who sought to prevent the placement of white supremacist David Duke on the Republican primary ballot in Wisconsin.[32]

From 1997 to 1999, Brennan served as Assistant District Attorney at the Milwaukee County District Attorney’s Office.[33]  In that capacity, Brennan represented Milwaukee County District Attorney E. Michael McCann in defending a Wisconsin statute requiring doctors to tell victims of rape and incest that services are available that allow women to listen to the heartbeat or view images of their unborn child.[34]  The Seventh Circuit upheld the statute in a 2-1 vote.[35]

After stepping off the bench in 2008, Brennan has served as a partner at Gass Weber Mullins LLC.  In this capacity, Brennan handles a combination of commercial litigation, catastrophic injury cases, and mediation.[36]  Among the more significant matters he has handled, Brennan has represented numerous correctional institutions in defending against §1983 suits.[37]

Jurisprudence & Reversals

Brennan served as a judge on the Milwaukee County Circuit Court from 2000 to 2008.  During that time, Brennan handled civil, criminal, landlord-tenant, traffic, juvenile, and probate matters.[38]  Brennan ran for re-election in 2001 and 2007, being unopposed both times.

During his tenure on the state bench, Brennan established a fairly conservative record, including as a strict sentencing judge.  In one notable case, Brennan sentenced a defendant to 66 years in jail after he drove drunk and caused an accident killing four people and injuring two others.[39]  In another case, Brennan sentenced a defendant charged with reckless homicide to 35 years in prison and an additional 20 years of extended supervision.[40]  In another notable case, Brennan presided over the sentencing of four Democrats, including the son of Congresswoman Gwen Moore (D-WI), who had pleaded no contest to slashing the tires of Republican election vans.[41]  Despite prosecutors recommending no jail time, Brennan threw out the plea agreements and imposed sentences of four to six months.[42]

In one of his most widely reported cases, Brennan presided over the criminal trial of a school-bus driver, who was charged with physical and verbal abuse towards a student with disabilities.[43]  Part of the evidence against the driver was from a recorder placed by the student’s parents in his backpack.  Brennan declined to exclude the recorded evidence, holding that the statements were not barred by Wisconsin’s Electronic Surveillance Control Law.[44]  Brennan’s ruling was overturned by the Wisconsin Court of Appeals but ultimately affirmed by the Wisconsin Supreme Court.[45]

Reversals

Over his eight years on the state bench, Brennan has been reversed in approximately fifteen cases.  The majority of these cases involved criminal convictions or rulings against defendants being reversed.[46]  For example, State v. Haas involved a defendant convicted solely on the basis of eyewitness testimony implicating him in a burglary.[47]  The defense sought to bring in the clothing the defendant was arrested in to impeach the eyewitness’ testimony.[48]  However, the clothing had been destroyed by the police and the defendant was convicted.[49]  Brennan denied a motion for a new trial.  However, the Wisconsin Court of Appeals reversed, holding that the destroyed exculpatory evidence clearly required reversal.[50]   Similarly, in State v. Alicea, a police officer failed to comply with a pretrial ruling barring all references to a robbery accusation against the defendant.[51]  Brennan, who presided over the trial, declined to declare a mistrial or allow the defense to explain that the robbery accusation was untrue, instead instructing the jury to disregard the reference.[52]  The Court of Appeals reversed for a new trial, finding that the police officer’s improper reference to the robbery accusation had violated the defendant’s rights.[53]

Surprisingly, some cases in which Brennan’s rulings were reversed by appellate courts appear to have been omitted from his Senate Judiciary Questionnaire.[54]  Among these cases is one where Brennan ruled that a tenant whose hair dryer caused a fire which damaged her rental unit was liable for the damage even without any showing of negligence.[55]  In reversing, the Wisconsin Court of Appeals found that the lease provision dictating liability was invalid under Wisconsin law.[56]  In another case, a landlord sought to evict a deaf tenant for breaching his lease by assaulting another resident.[57]  Brennan rejected the tenant’s argument that he had not been given an opportunity to remedy the breach, holding that quasi-criminal breaches were non-remediable as a matter of law.[58]  The Wisconsin Court of Appeals reversed, noting that Brennan’s ruling “cited no case law to support these conclusions…ignored the procedure set out in the statute and ignored the fact that Greenfield stated in its five’day notice that Tannehill could remedy the breach by having no future contact with Pell.”[59]

Speeches and Writings

Brennan has frequently written on legal issues, including Wisconsin court rulings, judicial politics, and trial tactics.  Brennan’s writings suggest strong conservative underpinnings in his judicial philosophy and will likely draw support from Republican senators and concern from Democrats.

Judicial Activism

Brennan has frequently written on the subject of judicial activism.  In 2005, as a sitting state judge, he authored an article criticizing the Wisconsin Supreme Court for “activist” decisions.[60]  Brennan’s article sparked a response from federal judge Lynn Adelman, who called the charge of activism “a rhetorically charged shorthand for decisions the speaker disagrees with.”[61]

In an earlier article, Brennan took the opposing perspective, disagreeing with calls for judicial restraint on the part of conservative judges, noting that “justices and judges faced with activist legislatures are not required to roll over in the name of judicial restraint.  That would leave in place a one-way ratchet of constantly expanding government.”[62]

Judicial Nominations

In 2011, as Johnson was blocking the Nourse nomination, Brennan, then the Chair of Walker’s Judicial Selection Advisory Committee, wrote in support of Johnson’s actions.[63]  In the op-ed, joined by other attorneys including two current Wisconsin Supreme Court Justices (selected by Brennan’s committee), Brennan notes that Johnson, as an elected Wisconsin senator deserves to “participate in the selection of a judge for a Wisconsin seat” and that the Nourse nomination was moved “in disregard of a senator’s duty of ‘advice and consent’ under Article II Section II.”[64]

Expert Testimony

In early 2012, Brennan and his partner J. Ric Gass gave a presentation on the Daubert standard for expert witnesses and the selection of experts in the context of scientific testimony.[65]  In his notes for the presentation, Brennan focuses on the inherent unpredictability of scientific testimony, noting that “[s]cience is inherently changeable” and “[p]roblems with scientific accuracy have always been with us.”  As such, Brennan encourages attorneys to prepare their scientific expert witnesses well and to recognize possible weaknesses in their scientific opinions.

Overall Assessment

There are two arguments that can made against Brennan’s nomination: one based on process, and one based on substance.  The procedural argument against Brennan’s argument is essentially parallel to the argument he and Johnson laid out against Nourse’s elevation.  Essentially, Brennan’s nomination is moving without the consent of the duly elected senator from his home state.  Democrats can reasonably argue that, given their past willingness to defer to Johnson’s objections to Obama’s nominees, Baldwin deserves the same deference with regard to Brennan.

The substantive argument against Brennan has little to do with his legal ability.  Given his experience as both a trial judge and a complex litigator, Brennan is well-prepared to handle the intellectual rigors of the Seventh Circuit.  As such, the argument against Brennan will likely focus on his conservative ideology.

Specifically, critics may look to Brennan’s strongly conservative rulings as a judge, alongside his ideologically charged writings, and his role in reshaping Wisconsin’s state judiciary in a conservative direction, and argue that Brennan lacks the requisite impartiality to be a federal judge.  In response, supporters will likely argue that the vast majority of Brennan’s rulings have been affirmed by higher courts, and that conservatives should not be denied seats on the federal bench purely based on their ideology.

With a narrow Republican majority in the senate, Brennan remains more likely than not to be confirmed.  However, given the opposition of his home state senator and the Republicans’ narrow margin of error, the outcome is not set in stone.


[1] An appointee of President Nixon, Warren was the Republican Attorney General of Wisconsin before his confirmation to the bench.  Wolfgang Saxon, Robert W. Warren, 72, Wisconsin Federal Judge, N.Y. Times, Aug. 22, 1998, http://www.nytimes.com/1998/08/22/us/robert-w-warren-72-wisconsin-federal-judge.html.

[2] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 2-3.

[3] Tony Anderson, Twelve Apply for 7th Circuit Seat, Wisconsin Law Journal, July 23, 2003.

[4] See David Ziemer, 17 Apply for Vacancy on United States District Court for the Eastern District of Wisconsin, Wisconsin Law Journal, July 30, 2007.  See also Jack Zemlicka, U.S. District Court Judge Shabaz’s Seat Draws 16 Candidates, Wisconsin Law Journal, Dec. 10, 2007.

[5] Marie Rohde, Two Milwaukee Judges Resigning for Private Practice, Milwaukee Journal Sentinel, Nov. 14, 2008, http://archive.jsonline.com/news/milwaukee/34502294.html/.  

[6] See Martha Neil, Longtime 7th Circuit Judge Terence Evans is Dead After Sudden Illness, ABA Journal, Aug. 11, 2011, http://www.abajournal.com/news/article/7th_circuit_judge_terence_evans_is_dead/ (noting Evans’ move to senior status).

[7] Adam Korbitz, Kohl, Feingold Forward Four Names to President Obama for Seventh Circuit, State Bar of Wisconsin, Jan. 25, 2010, https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=26&ArticleID=5864.

[8] Adam Korbitz, President Nominates Victoria Nourse to Seventh Circuit U.S. Court of Appeals, State Bar of wisconsin, July 15, 2010, https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=14&ArticleID=8620.  

[9] Craig Gilbert, Ron Johnson ‘Filibuster’ of Nourse Nomination to Federal Bench Draws Fire, Milwaukee Journal Sentinel, July 18, 2011, http://archive.jsonline.com/newswatch/125741928.html.

[10] Susan McDonald, Johnson, Baldwin Agree to Judicial Screening Panel, WISN, April 17, 2013, http://www.wisn.com/article/johnson-baldwin-agree-to-judicial-screening-panel/6314857.  

[11] Craig Gilbert, Baldwin, Johnson Bitterly Joust Over Appeals Court Vacancy, Milwaukee Journal Sentinel, Apr. 28, 2016, http://archive.jsonline.com/news/statepolitics/baldwin-johnson-bitterly-joust-over-appeals-court-vacancy-b99715579z1-377503181.html/.  

[12] See id.

[13] See id.

[14] Id.

[15] Press Release, Office of Sen. Ron Johnson, Johnson Responds to Judicial Nomination of Donald K. Schott (Jan. 12, 2016) (on file at https://www.ronjohnson.senate.gov/public/index.cfm/2016/1/johnson-responds-to-judicial-nomination-of-donald-k-schott).

[16] Shawn Johnson, U.S. Senate Panel Advances Wisconsin Judicial Nominee, Wisconsin Pub. Radio, June 16, 2016, https://www.wpr.org/u-s-senate-panel-advances-wisconsin-judicial-nominee.  

[17] Craig Gilbert, Ron Johnson and Tammy Baldwin Renew Deal on Picking Judges, Milwaukee Journal Sentinel, https://www.jsonline.com/story/news/politics/2017/02/13/ron-johnson-and-tammy-baldwin-renew-deal-picking-judges/97871500/.  

[18] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 51.

[19] See id.

[20] Margo Kirchner, Ron Johnson’s Hypocrisy on Federal Judgeship, Wisconsin Justice Initiative, Aug. 22, 2017, https://urbanmilwaukee.com/2017/08/22/op-ed-ron-johnsons-hypocrisy-on-federal-judgeship/.  

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

[22] Todd Richmond, Trump Court Appointee Never Cleared Commission, Sen. Tammy Baldwin Says, Wisconsin State Journal, Aug. 5, 2017, http://host.madison.com/wsj/news/local/govt-and-politics/trump-court-appointee-never-cleared-wisconsin-commission-sen-tammy-baldwin/article_82e4070d-4ec3-599d-a437-a9296980894b.html.

[23] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 34-35.

[24] See id.

[26] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 34.

[27] See Eric Litke, Party Politics Color Governors’ Judicial Picks, Green Bay Press-Gazette, Jan. 29, 2016, http://www.greenbaypressgazette.com/story/news/2016/01/29/wisconsin-judicial-appointments–partisanship-walker-doyle/79509122/.  

[28] Carrie Severino, Who is Mike Brennan, Nat’l Rev., Aug. 4, 2017, http://www.nationalreview.com/bench-memos/450159/who-mike-brennan.  

[29] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38.

[30] Edwards v. Great-West Life Assur. Co., 20 F.3d 748 (7th Cir.), cert. denied 512 U.S. 962 (1994).

[31] U.S. Oil Inc. et al. v. City of Fond du Lac, 544 N.W.2d 589 (Wisc. App. 1996).

[32] McCarthy et al. v. Elections Bd. et al., 480 N.W.2d 241 (Wisc. 1992).

[33] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38.

[34] Karlin v. Foust, 188 F.3d 446, 490–91 (7th Cir. 1999)

[35] See id.

[36] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38-39.

[37] See, e.g., Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372 (7th Cir. 2012) (en banc), cert. denied sub nom. Correctional Med. Svcs., Inc. v. Glisson, – U.S. – (2017); James v. Eli, 846 F.3d 951 (7th Cir. 2017), reh’g granted, No. 15-3034, 2017 WL 1228561 (7th Cir. Mar. 31, 2017); Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), reh’g en banc denied, No. 14-3316, 2015 WL 10767326 (7th Cir. Dec. 7, 2015); Estate of Rice v. Correctional Med. Svcs, Inc., 675 F.3d 650 (7th Cir. 2012).

[38] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 20-21.

[39] State v. Promotor, Case No. 2003-CF-2230 (Wis. Cir. Ct. Aug. 3, 2004).

[40] State v. Whitmore, No. 2003-CF-005697 (Wis. Cir. Ct. Oct. 13, 2004).

[41] Week in Review, St. Paul Pioneer Press, Apr. 30, 2006.

[42] See id.

[43] State v. Duchow, No. 2003-CF-002648 (Wis. Cir. Ct. Dec. 29, 2003).

[44] See id.

[45] See State v. Duchow, 749 N.W.2d 913 (Wis. 2008), rev’ing 303 Wis. 2d 744 (Wis. Ct. App. 2007).

[46] See, e.g. State v. Lord, 723 N.W.2d 425 (Wis. 2006); State v. Haas, 750 N.W.2d 518 (Wis. Ct. App. 2008); State v. Jackson, 735 N.W.2d 178 (Wis. Ct. App. 2007); State v. Basley, 726 N.W.2d 671 (Wis. Ct. App. 2006); State v. McGowan, 715 N.W.2d 631 (Wis. Ct. App. 2006); State v. Alicea, 650 N.W.2d 560 (Wis. Ct. App. 2002).

[47] State v. Haas, 750 N.W.2d 518 (Wis. Ct. App. 2008).

[48] See id.

[49] Id.

[50] See id.i

[51] State v. Alicea, 650 N.W.2d 560 (Wis. Ct. App. 2002).

[52] See id.

[53] Id.

[54] See Shadley v. Lloyds of London, 776 N.W.2d 838 (Wis. Ct. App. 2009) (reversing Brennan’s award of attorney’s fees); Maryland Arms Ltd. Partnership v. Connell, 769 N.W.2d 145 (Wis. Ct. App. 2009) (reversing liability determination on fire in tenant unit); Greenfield Senior Housing V, LLC v. Tannehill, 736 N.W.2d 543 (Wis. Ct. App. 2007) (reversing finding that tenant’s breach of the lease was non-remediable); State v. McAdoo, 715 N.W.2d 240 (Wis. Ct. App. 2006) (reversing sentence because 27 months of extended supervision exceeded statutory max of nine months); State v. Simmons, 659 N.W.2d 507 (Wis. Ct. App. 2003) (reversing defendant’s convictions where defendant did not knowingly violate injunction).

[55] See Maryland Arms Ltd. Partnership v. Connell, 769 N.W.2d 145 (Wis. Ct. App. 2009).

[56] See id.

[57] See Greenfield Senior Housing V, LLC v. Tannehill, 736 N.W.2d 543 (Wis. Ct. App. 2007).

[58] See id.

[59] See id. at 552.

[60] Michael B. Brennan, Are Courts Becoming Too Activist, Milwaukee Journal Sentinel, Oct. 2, 2005.

[61] The Honorable Lynn Adelman and Shelley Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425, 427 (Winter 2007) (quoting Kermit Roosevelt III, The Myth of Judicial Activism, Making Sense of Supreme Court Decisions 3 (2006).

[62] Michael B. Brennan, Conservative Judicial Activism: More than Whose Ox Is Being Gored, The Federalist Society, August 2001, https://fedsoc.org/commentary/publications/hot-topics-judicial-activism.  

[63] See Michael B. Brennan, James T. Barry, Steven M. Biskupic, Rebecca G. Bradley, Donald A. Daugherty Jr., Daniel Kelly, David W. Simon, Sen. Johnson Only Wants to Have His Say on Nourse Nomination, Milwaukee Journal-Sentinel, July 23, 2011, http://archive.jsonline.com/news/opinion/126042043.html/.  

[64] See id.

[65] See Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 14.

Dan Domenico – Nominee for the U.S. District Court for the District of Colorado

A district judgeship is a bit of a consolation prize for Daniel Domenico, who lost out on Neil Gorsuch’s seat on the U.S. Court of Appeals for the Tenth Circuit to Colorado Supreme Court Justice Allison Eid.  Nevertheless, Domenico, who is well-established in Colorado conservative legal circles, is likely to have a smooth confirmation for a trial judgeship.

Background

A native Coloradoan, Daniel Desmond Domenico was born in 1972 in Boulder.  After a brief stint at the University of Colorado, Domenico attended Georgetown University., graduating magna cum laude in 1995.[1]  After graduating, Domenico joined the Bob Dole for President campaign as an Assistant to the Polling Director.  After the campaign, Domenico briefly worked at the Welfare to Work Partnership as a Research Associate.

In 1997, Domenico joined the University of Virginia School of Law.  Domenico graduated Order of the Coif in 2000, and joined the Denver office of Hogan & Hartson.[2]  After three years at Hogan, Domenico left to clerk for the newly appointed Judge Timothy Tymkovich on the U.S. Court of Appeals for the Tenth Circuit.[3]

After his clerkship, Domenico joined the Senate campaign of Rep. John Thune who was challenging Senate Minority Leader Tom Daschle in South Dakota.[4]  After Thune’s successful election, Domenico joined the Department of the Interior as Special Assistant to the Solicitor.[5]

In 2006, Domenico was hired by Colorado Attorney General John Suthers to be Colorado’s Solicitor General, taking the position previously held by Tymkovich and Eid.[6]  Domenico held the position until 2015, when he left to join the firm of Kittredge LLC. as a principal.[7]

History of the Seat

Domenico has been nominated for a vacancy on the U.S. District Court for the District of Colorado.  This seat was opened by Judge Robert Blackburn’s move to senior status on April 12, 2016.  On April 28, 2016, Obama nominated Hogan Lovells partner Regina Rodriguez to fill the vacancy.[8]  Rodriguez had the support of Democratic Senator Michael Bennet and Republican Senator Cory Gardner.[9]  However, despite their support, the Senate Judiciary Committee took no action on Rodriguez’s nomination and it expired at the end of the 114th Congress.

While Domenico had previously applied for the Blackburn seat in 2015, in 2017, he reached out to Gardner’s office to express interest in the Tenth Circuit seat opened with Gorsuch’s elevation to the U.S. Supreme Court.[10]  Domenico also expressed his interest directly to officials at the Department of Justice.[11]  Despite his lobbying, the nomination for the Tenth Circuit went to Colorado Supreme Court Justice Alison Eid, and Domenico was instead nominated for the vacant judgeship on the U.S. District Court.

Legal Experience

Domenico began his legal career at the firm of Hogan & Hartson LLP. (now Hogan Lovells).  At the firm, Domenico handled primarily transactional materials, not appearing in court during his tenure.[12]  After leaving the firm and completing a clerkship for Tymkovich, Domenico worked as Counsel for Thune’s campaign, again handling compliance and transactional work and not appearing in court.[13]

Department of the Interior

From 2005 to 2006, Domenico served as Assistant to the Solicitor for the Department of the Interior.  In this role, Domenico advised the Secretary of the Interior on various legal matters and worked with the Department of Justice on litigation issues.[14]  Among the cases he handled at the Department of the Interior, Domenico helped develop a memorandum for the Bureau of Land Management to handle the ownership of dirt back-roads in states.[15]

Colorado Solicitor General

In 2006, despite not having appeared in court, Domenico was selected to be Colorado’s Solicitor General, replacing Eid, who was appointed to the Colorado Supreme Court.  At just thirty four years old, Domenico was the youngest Solicitor General in Colorado history.

As Solicitor General, Domenico was charged with representing the state of Colorado in litigation, including the defense of Colorado laws against constitutional challenges.  In this capacity, Domenico defended Colorado’s Taxpayer’s Bill of Rights, which required voters to approve any tax increases,[16] Colorado’s expansion of background checks on gun purchases,[17] and a Colorado statute preventing state funds from going to “pervasively sectarian” institutions.[18]

As Solicitor General, Domenico argued two cases before the U.S. Supreme Court.[19]  In Wood v. Milyard, the Supreme Court was called onto decide if the Court of Appeals had the authority to raise a statute of limitations defense sua sponte and if the State of Colorado, in not challenging a claim on statute of limitations grounds, had waived the issue.[20]  Appearing for Colorado, Domenico argued that choosing not to challenge the statute of limitations did not constitute a waiver.  However, in a 9-0 decision, the Supreme Court disagreed and held that Colorado had waived the statute of limitations defense.[21]  In the second case, Direct Marketing Association v. Brohl, Domenico lost 9-0 in his argument that a suit challenging Colorado’s implementation of an online sales tax is barred by the Anti-Injunction Act.[22]

Kittredge LLC.

From 2015, Domenico has been running a solo practice called Kittredge LLC. where he handles both litigation and public policy on behalf of individuals and businesses.  Notably, Domenico represented a team of plaintiffs in successfully enjoining a Colorado law criminalizing the showing of marked ballots to another party.[23]  Domenico also represented the Chamber of Commerce as amicus in a case challenging the exercise of Wisconsin jurisdiction over a corporation who appointed a registered agent in Wisconsin.[24]  The Wisconsin Supreme Court sided with the corporation in a 4-2 decision.[25]

Writings

While Domenico has not been as prolific as other Trump nominees, two editorials he authored may come up in his confirmation hearings.  First, in 2015, Domenico authored an op-ed criticizing the Obama Administration’s negotiation of the Joint Comprehensive Plan of Action with regard to Iran’s nuclear program.[26]  Specifically, Domenico argued that Iran’s development of nuclear power was unlikely to be “purely peaceful” and criticized the Obama Administration’s leadership on the issue.[27]

In a 2016 article, Domenico argued that Senate Republicans had the “right to delay the Supreme Court process” with regard to Judge Merrick Garland’s nomination.[28]  The article published alongside an op-ed by University of Denver law professor Alan Chen arguing the opposite perspective, argues that it is appropriate to delay a Supreme Court nomination to allow the American people to weigh in.[29]  The dueling articles drew many responses from local readers, with Greenwood Village resident Martin Berliner disputing Domenico’s perspective, arguing that American voters already weighed in by electing President Obama.[30]

Political Activity

Domenico has a long and active history in the Republican Party, going back to his role as an intern and an assistant in the Bob Dole campaign in 1996.[31]  While serving as Solicitor General in 2006, 2010, and 2014, Domenico advised the Attorney General campaigns of Republicans John Suthers and Cynthia Coffman.[32]  Additionally, Domenico also served as Counsel on John Thune’s successful senate campaign in 2004.[33]

Overall Assessment

While, Domenico’s record suggests a conservative judicial philosophy and political ideology,  his nomination will likely draw bipartisan support for several reasons.

First, Domenico has the support of Democratic Sen. Michael Bennet, who has returned a blue slip on his nomination.  While returning a blue slip does not necessarily indicate support, Bennet could have used his blue slip to block Domenico had he considered the nomination particularly egregious.

Second, Domenico’s record both at the Colorado Solicitor General’s Office and in private practice is not particularly ideological.  As Solicitor General, Domenico has defended conservative laws as well as liberal ones, including gun control legislation that he presumably opposes.

Opponents of Domenico will likely point to his op-eds opposing the Iran Deal and supporting the Supreme Court blockade of Justice Scalia’s seat as evidence of conservative activism.  Furthermore, they may argue that his appointment as Solicitor General was not particularly successful, pointing to his two 9-0 losses at the Supreme Court.

However, such criticism is unlikely to carry much weight.  After all, regardless of the outcomes of his arguments, one could argue that appearing at the Supreme Court twice is itself a significant accomplishment.  As such, given his support from home state senators, Domenico is likely to be confirmed smoothly.


[1] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico.: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. 

[4] White House Counsel Don McGahn, who handles the selection of judicial nominees, is also a Jones Day alumnus.

[5] See id. at 2.

[6] Id.

[7] Id.

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

[9] Press Release, Office of Senator Michael Bennet, Bennet, Gardner Urge Judiciary Committee to Consider Regina Rodriguez Nomination (July 12, 2016) (on file at https://www.bennet.senate.gov/?p=release&id=3735).  

[10] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 31.

[11] Id.

[12] Id. at 16-17.

[13] See id. at 17.

[14] Id. at 15-16.

[15] Joe Baird, Utah Case Now Model for New BLM Road Policy, The Salt Lake Tribune, Mar. 22, 2006.

[16] Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo. 2012), vacated 744 F.3d 1156 (10th Cir. 2014), petition vacated 135 S. Ct. 2927 (2015).

[17] Colorado Outfitters Ass’n v. Hickenlooper, No. 13-cv-1300 (D. Colo. 2015).

[18] Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

[19] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 18.

[20] See Wood v. Milyard, 132 S. Ct. 1826 (2012).

[21] See id.

[22] See Direct Marketing Assoc. v. Brohl, 134 S. Ct. 2901 (2015).

[23] See Hill v. Williams, 2016 WL 8667798 (D. Colo. Nov. 4, 2016).

[24] Ambac Assurance Corp. v. Countrywide Home Loans Inc., 898 N.W.2d 70 (Wisc. 2017).

[25] Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).

[26] Dan Domenico, Iran Deal’s Defenders Reveal Weak View of U.S. Leadership, Colo. Statesman, Sept. 25, 2015.

[27] See id.

[28] Dan Domenico, Senate Has the Right to Delay Supreme Court Nomination Process, Denv. Post, Feb, 19, 2016.

[29] See id.

[30] Martin Berliner, Debating GOP’s Plan to Block Any Nominee from Obama, Denv. Post, Feb. 28, 2016.

[31] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 13.

[32] See id.

[33] Id. at 23-24.

Unconfirmed: Fred Gray

Judicial confirmation is a business.  Over the last thirty years, a cottage industry of interest groups, nonprofits, and lobbying agencies have formed to support and oppose judicial candidates.  Behind the rhetoric on both sides, it is sometimes easy to forget that nominees are people: people who are frequently forgotten once their nominations are blocked or defeated.   “Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.  On this Martin Luther King Day, where better to start this series than with one of King’s fellow civil rights leaders, whose rejection for the federal bench was laced with allegations of racism and prejudice: Fred Gray.

When Jimmy Carter was elected Governor of Georgia in 1970, Fred Gray was already one of the most famous civil rights attorneys in the nation.  A native Alabamian, Gray was born in Montgomery in 1930, and grew up in a segregated city.  While attending an all-black school, Gray worked as a “boy preacher”, ministering to interracial crowds throughout his youth.[1]  After graduating from the Alabama State College for Negroes in 1951, Gray found himself barred from admission at an Alabama law school due to his race.  Nevertheless, Gray attended Case Western Reserve School of Law in Ohio, getting a J.D. in 1954, and returning to Montgomery shortly thereafter to fight segregation.

Back in Montgomery, Gray represented Rosa Parks and the Rev. Martin Luther King Jr. in litigation stemming from the Montgomery Bus Boycott in 1955, as well as serving as lead counsel in Browder v. Gayle, which desegregated city buses nationwide.[2]  Gray also represented King in his tax evasion case, securing an acquittal from an all-white jury.[3]  Gray also successfully argued that Alabama State students who were expelled for participating in student sit-ins had their due-process rights violated, and successfully filed to protect marchers seeking to march from Selma to Montgomery in 1965.[4]

Furthermore, Gray also argued on behalf of African Americans at the Supreme Court in Gomillion v. Lightfoot.[5]  Among his other accomplishments, Gray was the leading attorney in successfully desegregating the University of Alabama and Auburn University, despite the opposition of politicians including Gov. George Wallace.[6]  In one of his most notable cases, Gray represented the African American victims of the Tuskegee Syphilis Study.[7]  Finally, in 1970, Gray was the first African American elected to the Alabama legislature, alongside Thomas Reed.[8]

When Carter was elected president in 1976, he and Attorney General Griffin Bell met with Coretta Scott King and assured her of their commitment to place qualified African American judges on the federal bench.[9]  In 1979, Gray was one of five candidates considered by Carter and Bell for the U.S. Court of Appeals for the Fifth Circuit.[10]  Despite his commitment to King, and Gray’s strong backing from Alabama African American groups, Bell declined to recommend Gray for the seat, ranking him fifth out of the five candidates being considered.[11]  The nomination and the seat instead went to the candidate ranked fourth, a white lawyer named Robert Vance.[12]

Instead, in 1979, Gray was recommended by Alabama Senators Howell Heflin and Donald Stewart (both Democrats) for a seat on the U.S. District Court for the Middle District of Alabama.[13]  However, despite the recommendation, the Carter Administration sat on Gray’s nomination for several months, allegedly due to Bell’s opposition.[14]  It took the personal intervention of Alabama African American power broker Joe Reed to break the impasse and allow Gray to be nominated officially in January 1980.[15]

Unfortunately for Gray, more obstacles stood ahead.  Citing Gray’s alleged misconduct on a bond issue as Tuskegee City Attorney, the American Bar Association (ABA) rated Gray “unqualified” for a federal judgeship.[16]  Additionally, Sen. Edward Kennedy, Chairman of the Senate Judiciary Committee, was challenging Carter in the Democratic Presidential Primary and believed that Gray’s nomination was intended to “buy” black votes in the Alabama Democratic primary.[17]  This gave him little incentive to disregard the ABA rating and move ahead on Gray’s nomination.

In response to the ABA rating, the National Bar Association, which is predominantly African American, stepped in to rate Gray and fellow black nominee U.W. Clemon, rating them “very well qualified.”[18]  In May 1980, Gray finally came before the Senate Judiciary Committee, sitting through a marathon 12-hour hearing.[19]  At the hearing, Gray’s supporters, including Clarence Mitchell from the Leadership Conference on Civil Rights, argued that the ABA’s opposition to the nomination was tinged by racism.[20]  In response, the ABA, represented by San Francisco attorney Robert D. Raven, fought back, noting:

“Do you think we want to find black judges unqualified?  Do you think we’re fools?”[21]

Ultimately, the hearing did not result in further action on Gray’s nomination.  In August 1980, Heflin withdrew his support for Gray.[22]  Facing certain defeat, Gray withdrew his nomination.[23]  In Gray’s place, Carter nominated an African American attorney in private practice in Montgomery, Myron Thompson.[24]  Despite Thompson being only thirty-three years old, he received a “qualified” rating from the ABA and was confirmed on September 26, 1980.[25]

Looking back on Gray’s short-lived judicial nomination, it is difficult to take race out of the equation.  Even if one accepts that the ABA’s rating was not based on Gray’s race (and there were many, even in 1980, who did not), it is hard to accept the conclusion that Gray, given his distinguished career, was unqualified for the federal bench where a thirty three year old attorney was not.  Nevertheless, while Gray was not able to take the bench, he broke barriers nonetheless.  In 2001, Gray became the first black president of the Alabama Bar and continues to be a civil rights leader today.[26]  Ultimately, Gray remaining unconfirmed in no way diminishes his significant legal achievements or his stature in the legal community.


[1] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

[2] Sheldon Goldman, Picking Federal Judges 266 (Yale University Press 1997).

[3] See Key, supra n.1.

[4] See id.

[5] 364 U.S. 339.

[6] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

[7] See id.

[8] See id.

[9] Sheldon Goldman, Picking Federal Judges 266 (Yale University Press 1997).

[10] See id. at 272.

[11] See id.

[12] Id.

[14] See id.

[16] See id.

[17] See id.

[18] See McFadden, supra n.13.

[19] See Babcock, supra n.11.

[20] See id.

[21] See id.

[22] Sheldon Goldman, Picking Federal Judges 267 (Yale University Press 1997).

[23] See id.

[24] See id.

[25] See id.

[26] Barclay Key, Encyclopedia of Alabama “Fred Gray”, http://www.encyclopediaofalabama.org/article/h-1510 (last visited Jan. 14, 2018).

Barry Ashe – Nominee for the U.S. District Court for the Eastern District of Louisiana

A member of the conservative Federalist Society, Barry Ashe is President Trump’s first nominee to the New Orleans based Eastern District of Louisiana.

Background

Barry Weldon Ashe was born in 1956 in New Orleans, LA.  Ashe attended Tulane University, graduating summa cum laude in 1978.[1]  Ashe then joined the U.S. Navy, serving for three years.  In 1981, Ashe left the Navy to join Tulane University Law School, graduating in 1984 magna cum laude.

After graduation, Ashe clerked for Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit.[2]  After completing his clerkship with King, Ashe joined the New Orleans office of Stone Pigman Walther Wittmann LLC as an Associate.  Ashe became a Member at the firm in 1991 and serves in that capacity today.

Ashe has served on the Executive Committee of the New Orleans Chapter of the Federalist Society since 2006.

History of the Seat

Ashe has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Ivan Lemelle’s move to senior status on June 29, 2015.  On February 4, 2016, Obama nominated federal public defender Claude Kelly to fill the vacancy.[3]  Kelly, a Republican, had the support of Louisiana Senators David Vitter and Bill Cassidy.[4]

Kelly received a hearing before the Senate Judiciary Committee on May 18, 2016, and was approved without objection on June 16.  However, Kelly’s nomination never received a floor vote due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.

Shortly after the election of President Donald Trump, Ashe reached out to Cassidy and Louisiana Senator John Kennedy (who replaced Vitter) to express his interest in a federal judgeship.[5]  In 2017, Kennedy recommended Ashe to the White House for the vacancy.[6]

After interviews with the White House Counsel’s Office and the Department of Justice, Ashe was officially nominated on September 28, 2017.[7]

Legal Experience

Ashe has spent his entire legal career at the firm of Stone Pigman Walther Wittmann LLC.  At the firm, Ashe primarily works in commercial and appellate litigation representing financial institutions, pharmaceutical companies, and oil, gas, & chemical industries.[8]

In one of his most notable cases, Ashe represented the Tangipahoa Parish Board of Education in a suit defending an evolution disclaimer adopted by the Board.[9]  The disclaimer, required to be read to students before presenting evolution, declared that the teaching of the scientific theory of evolution in class was not meant as an endorsement and should not be taken to dissuade or influence the Biblical view of creation.[10]  The disclaimer was struck down by both Judge Marcel Livaudais on the Eastern District of Louisiana and the Fifth Circuit as violating the Establishment Clause of the First Amendment.[11]

In another notable case, Ashe argued on behalf of the Louisiana Attorney Discipline Board in favor of the constitutionality of restrictions on attorney advertising.[12]  While the Fifth Circuit upheld many of the challenged rules, it struck down restrictions on portraying judges or juries in advertisements and restrictions on the font size and speed of disclaimers.[13]

Writings

In 2000, Ashe authored an article titled “Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere.”[14]  In the article, Ashe argues that “the Fifth Circuit is waging a war against religion in the public sphere.”[15]  Looking at the Fifth Circuit’s decisions in five areas: public funding of parochial education; prayer at high school football games; disclaimers involving evolution; “clergy in schools” counseling program; use of school buildings for religious activities, Ashe concludes that the Fifth Circuit’s ruling in favor of a separation of church and state “evinces the court’s hostility towards religion.”[16]

Political Activity

Ashe has been a frequent donor to Louisiana Republicans, including Vitter, Cassidy, Kennedy, Rep. Steve Scalise, and former Governor Bobby Jindal.[17]  In contrast, Ashe has only donated to one Democrat: Public Service Commissioner Foster Campbell.[18]

Overall Assessment

Members of both parties will likely agree that Ashe, who has over thirty years of legal experience, is professionally qualified to serve as a trial judge.  They may differ however based on his ideology and willingness to follow precedent.

Specifically, Ashe will likely be questioned as to whether he continues to maintain that the Fifth Circuit is waging a “war on religion.”  Furthermore, he is likely to be asked if he can continue to follow Fifth Circuit precedent that he disagrees with (as he will be bound to do as a district court judge).  If Ashe is able to sufficiently answer those concerns, he will likely be confirmed easily.


[1] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe.: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (February 4, 2016) (on file at https://obamawhitehouse.archives.gov).  

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

[5] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 30.

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

[7] Press Release, White House, President Donald J. Trump Announces Eighth Wave of Judicial Candidates (September 28, 2017) (on file at www.whitehouse.gov/the-press-office).  

[8] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 15.

[9] See Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999).

[10] Id. at 341.

[11] Id. at 348.

[12] See Public Citizen, Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011).

[13] See id.

[14] Barry W. Ashe, Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere, 46 Loy. L. Rev. 973 (Winter 2000).

[15] Id. at 976.

[16] Id. at 1027.

[18] Id.