Last year, Brett Talley’s nomination to the federal bench died as doubts were raised about his temperament, youth, and inexperience.  Born in 1981, Talley was only 36 at the time of his nomination.  While the Trump Administration has yet to send a nominee as young as Talley, Cam Barker, newly tapped for the Texas federal bench, comes pretty close, at only 37 years old.  While Barker boasts an impressive resume, including stellar academic credentials, his position as Texas Deputy Solicitor General has given him a footprint in many deeply controversial cases.

Background

John Campbell “Cam” Barker was born in New Orleans, LA in 1980.  Barker attended Texas A&M University, graduating with a B.S. summa cum laude in 2002.  He proceeded to the University of Texas Law School, graduating with a J.D. with highest honors in 2005.  After graduating, Barker clerked for Judge John Walker on the U.S. Court of Appeals for the Second Circuit and then for Judge William Bryson on the U.S. Court of Appeals for the Federal Circuit.

After his clerkships, Barker joined the U.S. Department of Justice Criminal Division as a Trial Attorney.  He worked there until 2011.  During that time, he had a short stint as a Special Assistant United States Attorney on detail with the U.S. Attorney’s Office for the Eastern District of Virginia.

In 2011, Barker left the government to join the Houston office of Yetter Coleman LLP as an associate.  In 2014, Barker was named a partner at the firm.

In 2015, Barker was hired by Texas Attorney General Ken Paxton to be Deputy Solicitor General for the State of Texas, working under Solicitor General Scott Keller.  Barker continues to serve in that position today.

History of the Seat

The seat Barker has been nominated for opened on May 15, 2015, with Judge Leonard Davis’ move to senior status.  Although the seat opened with 19 months left in the Obama Administration, no nominee was ever put forward to fill the vacancy, possibly due to an inability to reach an agreement with Texas’ Republican Senators, John Cornyn and Ted Cruz.

In February 2017, Barker applied for a judgeship with the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.[1]  He interviewed with the Committee in March and then with Cornyn and Cruz in May.  Barker’s name was submitted to the White House in July 2017.[2]  After interviews with the White House Counsel’s Office and the Department of Justice, Barker was nominated on January 23, 2018.

Legal Experience

Other than his clerkships, Barker has held three primary legal positions: as a trial attorney with the Department of Justice; in private practice with Yetter Coleman; and as Deputy Solicitor General for Texas.  In these positions, Barker has practiced extensively in state and federal courts.

Department of Justice

From 2007 to 2011, Barker worked in the appellate section of the Criminal Division of the Department of Justice.[3]  In this capacity, Barker argued 12 criminal appeals in the federal appellate courts, generally defending convictions in federal criminal actions,[4] although, in some cases, Barker also appealed from adverse lower court rulings.[5]

In 2009, Barker detailed at the U.S. Attorney’s Office for the Eastern District of Virginia, where he was the lead prosecutor against three MS-13 gang members who were subsequently convicted of conspiracy and racketeering.[6]

Yetter Coleman

From 2011 to 2015, Barker worked as an associate and a partner at Yetter Coleman LLP.  In this role, Barker primarily carried a civil litigation caseload, including representing Bear Ranch, a beef producer, in a contract dispute,[7] and defending Oklahoma Gas & Electric Co. in a multidistrict patent infringement suit.[8]

Other than his civil docket, Barker also represented a Nepali immigrant seeking political asylum in the United States after facing torture from Maoists in Nepal.[9]  Barker was able to reverse the Board of Immigration Appeals decision denying his client asylum.[10]

Deputy Solicitor General

Since 2015, Barker has served as Deputy Solicitor General in Texas.  In this capacity, Barker has participated in a number of controversial cases.

For example, Barker was on the legal team, alongside Keller and Fifth Circuit nominee Andy Oldham, that sought to enjoin the Obama Administration’s DAPA initiative.  Barker succeeded in getting a nationwide injunction against the initiative from U.S. District Judge Andrew Hanen and in defending that injunction before the Fifth Circuit and the U.S. Supreme Court.[11]  The Texas legal team was able to convince Judge Hanen that Texas suffered an injury from the Obama Administration’s prioritization of certain deportations and that the DAPA initiative violated the separation of powers.[12]

In another controversial case, Barker defended Texas’ Voter ID law, which was challenged as an unconstitutional poll tax, being passed with a discriminatory purpose and effect, and creating a substantial burden to the right to vote.[13]  The law has been struck down by Judge Nelva Gonzalez Ramos, whose injunction has been stayed pending appeal.[14]

Barker has also represented the State of Texas as intervenors in the suits over President Trump’s executive orders restricting entry into the United States for travelers from seven predominantly Muslim countries, seeking to defend the constitutionality of the orders.[15]

Writings

As a law student, Barker authored an article discussing the statutory damages award for copyright infringement.[16]  In the article, Barker argues that the aggregation of statutory damages across many instances of misconduct creates a penalty “so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence.”[17]  He notes that this aggregation becomes particularly severe when imposed against those engaged in unauthorized file sharing, such as through sites such as Napster.[18]

Barker argues in the note that, because the statutory damages scheme under the Copyright Act is “punitive” in nature, that it is limited by the Substantive Due Process Clause, as interpreted under BMW of North America, Inc. v. Gore.[19]  He also notes that a defendant who illegally shares multiple files is not proportionally more culpable than a defendant who illegally shares one.[20]  As such, Barker endorses a rethinking of the statutory damages scheme and suggests the imposition of “much smaller penalties across a larger spectrum of the file-sharing public.”[21]

Overall Assessment

Given both his youth and his involvement in the controversial DAPA, voter id, and travel ban cases, it is unlikely that Barker will be considered a consensus nominee.  Barker’s critics will argue that, given Barker’s prominent role in “political” litigation at the Texas Solicitor General’s Office and his support for the travel ban, that this is an instance of the Trump Administration rewarding an unqualified supporter with a federal judgeship.

However, Barker boasts an impressive resume and can point to several factors in his favor.  Firstly, having graduated law school in 2005, Barker meets the ABA’s criteria of twelve years of practice.  Secondly, Barker has clerked for judges appointed by Republican and Democratic presidents.  Thirdly, Barker worked at the Department of Justice under both the Bush and the Obama Administration, defending their legal positions in court.  Finally, Barker can point to his defense in the Sharma case to counter suggestions that he is anti-immigrant.

Barker’s law review note raises an additional point.  While it may not be representative of his current views, the article demonstrates a strong concern with the proportionality of punishment and endorses the active use of the Substantive Due Process Clause to limit civil (and criminal) penalties that are excessive.  If Barker maintains these views, it is possible that he may yet end up endearing himself to liberals and disappointing many conservatives on the bench.

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