Judge Joel Carson: Nominee to the U.S. Court of Appeals for the Tenth Circuit

A prominent Roswell-based attorney for the oil and gas industry and a part-time federal magistrate judge, Joel Carson is Trump’s second nominee to the U.S. Court of Appeals for the Tenth Circuit, replacing the conservative Judge Paul Kelly.

Background

Joel McElroy Carson III was born in Artesia, New Mexico on November 16, 1971.[1]  Carson attended Texas Tech University in Lubbock, getting a B.B.A. in Finance in 1994.[2]  After graduating, Carson returned to New Mexico to attend the University of New Mexico Law School, getting his J.D. in 1997.  Carson then clerked for Judge Bobby Baldock on the U.S. Court of Appeals for the Tenth Circuit and then joined the Roswell firm Hinkle Hensley Shanor & Martin LLP as an associate. In 2002, Carson became a partner at the firm.[3]

In 2008, Carson left the firm to join the Mack Energy Corporation as General Counsel.[4]  He stayed there for five years, leaving in 2014 to start his own firm Carson Ryan LLC.[5]

In 2015, Carson was tapped to be a part-time federal magistrate judge in Roswell, New Mexico.[6]  He continues to serve in that capacity, while maintaining his firm.

History of the Seat

Carson has been tapped for a New Mexico seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat is being vacated by Judge Paul Kelly’s decision to move to senior status upon the confirmation of his successor.

In early 2017, Carson expressed his interest in the Tenth Circuit appointment to Rep. Steve Pearce (R-NM) and Sen. Tom Udall (D-NM).[7]  After an interview with the White House Counsel’s Office in May 2017, Carson was selected as a finalist for the seat by the White House, who sent five names to Udall and Sen. Martin Heinrich (D-NM).[8]  Among the names sent was that of William Levi, a Washington D.C. based associate at Sidley Austin who had been a clerk to Supreme Court Justice Samuel Alito and was only 33 years old.[9]  Udall balked at Levi’s name and suggested that another finalist, Judge James Browning of the U.S. District Court for the District of New Mexico, would have his support.[10]  Nevertheless, the White House decided not to nominate Browning or Levi, and instead nominated Carson for the seat on December 20, 2017.

Political Activity

Carson has been active in the Republican Party of New Mexico, serving on its Executive Committee, as well as the Secretary in 2011.[11]   Carson also volunteered with the Romney campaign in 2012 and the campaign of former senator Pete Domenici.[12]  Carson has also frequently spoken at Chavez County Republican Party functions, introducing other speakers including Domenici, Pearce, and Governor Susana Martinez.[13]

Carson has also frequently contributed to Republican candidates, including Domenici.  Notably, he has given approximately $10000 to Pearce over the last fifteen years.[14]  Carson also donated to the unsuccessful senate candidacies of Republicans Heather Wilson and Rick Berg in 2012 and to Sen. Ted Cruz in 2015.[15]  Carson has occasionally donated to New Mexico Democrats as well, including former Congressman Harry Teague and former Governor Bill Richardson.[16]

Legal Career

Carson has spent most of his legal career working with issues involving the energy industry, utilities, water and land rights.  As an attorney in private practice and as an in-house counsel at the Mack Energy Corporation, Carson handled complex energy litigation and transactions.  Among his more prominent cases, Carson represented an energy company seeking Takings Clause damages for the government’s delay in approving applications for permits to drill (APDs).[17]  While the Court of Federal Claims ruled for Carson’s client in the case, the Federal Circuit reversed, rejecting Carson’s argument that the delay in approving the permits constituted a regulatory taking.[18]

Outside his oil and gas expertise, Carson also represented the New Mexico legislature in defending its redistricting plans against legal challenges.[19]  Carson has also frequently represented indigent defendants as court-appointed counsel.[20]

Jurisprudence

Carson has served as a part-time federal magistrate judge since 2015.  In this role, Carson manages only criminal proceedings and habeas actions.  In the last three years, Carson has handled three cases to verdict or judgment, as well as writing one recommendation for a district judge.[21]  The three trials Carson handled, two bench and one jury, all involve criminal citations arising from crimes committed on federal property.  In the sole jury trial he presided over, the jury found the defendant not guilty of driving under the influence on an air force base.[22]  In the two bench trials, Carson found for the United States in one case[23] and for the defendant in another.[24]  In the sole habeas case he handled, Carson recommended that a prisoner’s habeas petition based on ineffective assistance of counsel be dismissed.[25]

Scholarship

As a law student at the University of New Mexico, Carson authored a paper titled “Reintroducing the Mexican Wolf”, which discussed the constitutional implications of property loss through the reintroduction of endangered species.[26]  Specifically, Carson argues that federal officials who reintroduce the wolf may find themselves constitutionally liable for damage the wolf inflicts.

In the paper, Carson argues that reintroducing a predator species such as the Mexican wolf would open officials up to Takings Clause actions from cattle farmers who lose animals.  Specifically, Carson suggests that such losses would constitute both a per se taking and a regulatory taking.[27]  While acknowledging that courts have previously held that damage from protected wildlife does not constitute a compensable taking,[28] Carson argues that such cases would come out differently when the government exercises “pervasive control” over the animals.[29]  Carson notes that “[d]epradations by Mexican wolves appear to fit neatly within the academic confines of takings law.”[30]

Carson goes on to suggest that federal officials who reintroduce endangered species could be liable for damages under Bivens.[31]  Specifically, Carson suggests that the federal government’s refusal to timely remove a wolf that roams onto private land would be “a picture perfect scenario for a Bivens claim.”[32]  Nevertheless, Carson steps back from a wholesale endorsement of Bivens actions based on wolf depredation, arguing that the Fish & Wildlife Service should instead create a compensation procedure to avoid the attorney’s costs associated with lawsuits.[33]  He concludes with the following observation:

“When citizens lose livestock to Mexican wolves, their private property has been taken for a public purpose.  Just compensation is due and the citizen should not be required to litigate all the way to the Supreme Court to recover.”[34]

Overall Assessment

Having worked there for twenty years, Carson is well-respected in the New Mexico legal community.  His (albeit brief) record on the federal bench does not suggest a bias for or against criminal defendants or the government.  In fact, his two bench rulings have come down evenly, one conviction and one acquittal.  Furthermore, unlike most Trump appellate nominees, Carson does not appear to have any ties to the Federalist Society.  As such, it is reasonable to assume that Carson will likely have a smooth confirmation to the federal bench.

However, Carson may face questions regarding his view on Takings jurisprudence.  Specifically, he may be questioned as to whether he will follow Tenth Circuit precedent holding that losses from wild animals do not constitute compensable takings.  He may also be questioned as to whether he agrees that federal officials who reintroduce wild animals can be sued under Bivens. (Interestingly, his broad view of Bivens liability may endear him to civil rights attorneys who argue that Bivens has been construed unduly narrowly by the courts).

If senators find that Carson’s views on Bivens and the Takings Clause are within the legal mainstream, he will likely be confirmed swiftly, and, at only forty-six, will shape Tenth Circuit jurisprudence for decades to come.


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

[2] See id.

[3] Id. at 2.

[4] Id.

[5] See id.

[6] See id. at 1-2.

[7] Sen. Comm. on the Judiciary, 115th Cong., Joel Carson: Questionnaire for Judicial Nominees 29-30.

[8] Id. at 30.

[9] Michael Coleman, Court Nominee’s Lack of NM Roots Prompts Concern, Albuquerque Journal, Sept. 10, 2017, https://www.abqjournal.com/1061212/court-nominees-lack-of-nm-roots-prompts-concern.html.  

[10] See id.

[11] Supra Carson, n. 1 at 15.

[12] See id.

[13] See id. at 7-9.

[15] See id. 

[16] See id.

[17] See Bass Enterprises Production Co. v. United States, 381 F.3d 1360 (Fed. Cir. 2004).

[18] See id. at 1365-66.

[19] See Jepsen v. Virgil-Giron, First Judicial District Court, Santa Fe County Case No. D-101-CV-2001102177 (2001).

[20] See, e.g., United States v. Madrid, 533 F.3d 1222 (10th Cir. 2011); United States v. Gonzalez-Jacquez, 566 F.3d 1270 (10th Cir. 2009).

[21] Supra Carson n. 1 at 9-10.

[22] See United States v. Bordayo, Case. No. 1:16-CR-3340-JMC (2016).

[23] United States v. Paige, Case. No. CVB CAFB 6038129 (2016).

[24] United States v. Malouf, Case No. CVB HAFB 3905866 (2016).

[25] Thomas v. Hatch, Case No. 1:17-CV-885 WJ/JMC (2018).

[26] Joel M. Carson, Reintroducing the Mexican Wolf: Will the Public Share the Costs, or Will the Burden Be Borne by a Few, 38 Natural Resources Journal 298 (1998).

[27] Id. at 305-06.

[28] Id. at 308-11 (citing Christy v. Hodel, 857 F.3d 1324 (9th Cir. 1988) and Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986).

[29] Id. at 311.

[30] Id. at 316.

[31] In Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), the Supreme Court recognized a private right of action for individuals seeking to sue federal officials for damages from the violations of their constitutional rights.

[32] Id. at 321.

[33] See id. at 323-25.

[34] Id. at 325.

3 Comments

  1. Regarding the Bounds controversy and Wyden/Merkley’s decisions to not support him, I’m not sure how much of that is not politics. I’m referring to the tweet here: https://twitter.com/VettingRoom/status/963152422326517760. (I don’t tweet, so this is the only way for me to discuss the controversy.) If you look at his judiciary committee questionnaire from his original nomination from September of last year, he mentions every single one of those articles. If the nominating committee for Oregon didn’t even look at his questionnaire (supposedly he didn’t disclose the articles directly to them), I don’t know if they’re worth their salt. If anything, I think Bounds will get a hearing after Nalbandian, and I think Nalbandian will be after Carson’s on Wednesday. That, of course, is assuming that some of today’s nominees don’t submit their questionnaires and get cleared for blue slips first.

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    • It may well be politics but that doesn’t stop it from being a “substantive” objection, i.e. an objection based on the substance of the nominee (as opposed to a procedural objection, based on an objection to the process used to select the nominee). The key question here is whether the SJQ will deem the optics of moving Bounds w/o any blue slips worth it when there are other less controversial nominees that are likely to be just as conservative. I don’t know the answer to that.

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  2. The only difference between Stras/Brennan and him is that he doesn’t have the support of either of his senators. But I’m not sure if that will make much of a difference. The Oregon nominating commission recommended Bounds, so evidently someone in Oregon thinks he’s qualified to serve as a circuit judge. Brennan had a GOP senator in support but Baldwin opposed him for likely substantive and procedural grounds. And Franken thought Stras was too conservative, while Klobuchar just looked at his qualifications, agreed with the White House and the ABA, and returned her favorable blue slip. I think Grassley will argue that he did actually disclose the articles (which likely would have killed his nomination if he didn’t) and that he has been recommended by the committee and will move forward. I don’t think Bounds will get withdrawn simply because he has a former chair of the NRCC in his pocket (Greg Walden, who is also currently a House committee chair) and has strong Federalist Society connections.

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