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.

Maryellen Noreika – Nominee for the U.S. District Court for the District of Delaware

The U.S. District Court for the District of Delaware, one of the nation’s busiest trial courts, is currently down two judges.  In seeking common ground with the state’s two Democratic senators, the Trump Administration has agreed to nominate two candidates recommended by them: one is a Republican former-U.S. Attorney, Colm Connolly; the other is Maryellen Noreika, a commercial litigator and a Democrat.

Background

Maryellen Noreika was born in Pittsburgh, Pennsylvania on July 12, 1966.  Noreika attended Lehigh University in Pennsylvania, getting a Bachelor in Science in 1988.[1]  After graduating, Noreika received an M.A. in Biology from Columbia University and then a J.D. magna cum laude at the University of Pittsburgh.

After graduating law school, Noreika joined Morris, Nichols, Arsht & Tunnell LLP, where she had been a summer associate.[2]  While at the firm, she briefly overlapped with her fellow nominee Connolly, who was a partner at the firm before his appointment as U.S. Attorney.  In 2001, Noreika became a partner at the firm and has served in that capacity until the present.

History of the Seat

Noreika has been nominated for a vacancy on the U.S. District Court for the District of Delaware.  This seat was opened by Judge Gregory Sleet’s move to senior status on May 1, 2017.  Noreika’s nomination was recommended and made in tandem with that of Connolly’s, who was nominated to fill a second vacancy on the court.

In mid-2017, Noreika interviewed with the selection committee set up by Senators Tom Carper and Chris Coons (D-DE).[3]  Noreika was one of three candidates recommended by the committee.[4]  She was formally nominated on December 20, 2017.

Legal Experience

Noreika has spent virtually her entire legal career at the firm of Morris, Nichols, Arsht & Tunnell LLP, starting as a summer associate while in law school, becoming an associate after she graduated, and finally becoming a partner in 2001.[5]  While at the firm, Noreika solely practiced civil litigation, primarily focusing on intellectual property issues.[6]  Among the most prominent cases she handled, Noreika represented a drug manufacturer in a successful suit based on infringement of hydrocone patents.[7]

In another notable case, Noreika represented Paradox Entertainment, whose character Red Sonya had been sued for trademark infringement by Red Sonja LLC.[8]  Serving as lead counsel for Paradox, Noreika was able to settle the infringement suit on the second day of trial for nominal damages of $1.[9]

Political Activity

Noreika may be a registered Democrat but she has donated several times to Republicans including the Presidential campaigns of John McCain and Mitt Romney.[10]  Noreika has also donated $3000 to Sen. Tom Cotton (R-AR) and $1000 to then-Sen. Rick Santorum in 2005.[11]  On the other side, Noreika gave $1000 to Sen. Hillary Clinton (D-NY) in 2008 as well as $1000 to the DSCC in 2009.[12]

Overall Assessment

The federal trial court in Delaware is home to some of the most complex commercial litigation in the country.  As such, Noreika, with the depth of her experience, is well-suited to this specialized jurisdiction.  While Noreika lacks the criminal experience to handle a significant portion of her docket, her civil experience more than makes up for this deficiency.

Furthermore, given Noreika’s strong support from Delaware’s senators, she is likely to be confirmed comfortably.  Additionally, as Noreika is, on one hand, a registered Democrat, and, on the other, a frequent donor to Republican candidates, both sides are likely to find her an acceptable choice.


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

[2] See id. at 2.

[3] Id.

[4] See Tom McParland, Sources: Trump to Tap Connolly, Noreika for Delaware District Court, Delaware Law Weekly, Sept. 22, 2017, https://www.law.com/delawarelawweekly/sites/delawarelawweekly/2017/09/22/sources-trump-to-tap-connolly-noreika-for-delaware-district-court/.  

[5] See Noreika, supra n.1 at 9-10.

[6] See id. at 10.

[7] Recro Gainesville LLC v. Actavis Laboratories FL Inc., C.A. No. 14-1118 (GMS) 2017 WL 710051 (D. Del. Feb. 24, 2017).

[8] Red Sonja LLC v. Paradox Entertainment Inc., C.A. No. 06-270 (SLR) (D. Del.).

[9] Sen. Comm. on the Judiciary, 115th Cong., Maryellen Noreika: Questionnaire for Judicial Nominees 15.

[10] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=maryellen+noreika&order=desc&sort=D (last visited Jan. 31, 2018).

[11] See id.

[12] Id. 

Colm Connolly – Nominee for the U.S. District Court for the District of Delaware

Ten years ago, Colm Connolly’s nomination for a federal judgeship failed due to the opposition of a home state senator.  Now, he is getting a second opportunity, one that is much more likely to be successful.

Background

A native Delawarean, Colm Felix Connolly was born in Wilmington on October 18, 1964.  Connolly attended the University of Notre Dame, getting his B.A. in 1986.[1]  After graduating, Connolly moved to London to get a Masters in Science from the London School of Economics.  After the program, Connolly joined the Delaware Department of the Treasury as Special Assistant to the Secretary.[2]

In 1988, Connolly joined the Duke University School of Law, getting a J.D. in 1991.[3]  After graduating, Connolly clerked for Delaware native Judge Walter Stapleton on the U.S. Court of Appeals for the Third Circuit.[4]

After his clerkship, Connolly joined the U.S. Attorney’s Office for the District of Delaware, working as a federal prosecutor under U.S. Attorney Gregory Sleet.[5]  After seven years there, Connolly left to join Morris, Nichols, Arsht & Tunnell LLP.[6]

In 2001, Connolly was selected by newly elected President George W. Bush to serve as the U.S. Attorney for the District of Delaware.[7]  Connolly served as U.S. Attorney throughout the Bush Administration, resigning upon the election of President Obama to join Morgan Lewis & Brockius LLP as a partner.[8]  Connolly serves as a partner there currently.

In late 2006, U.S. District Judge Kent Jordan was elevated to the Third Circuit, and Connolly was considered the prime candidate to replace him.[9]  In March 2007, U.S. Rep. Mike Castle (R-DE) recommended Connolly to fill the vacancy left by Jordan.[10]  On February 26, 2008, Bush formally nominated Connolly for the seat.[11]  However, Connolly did not have the support of then-U.S. Sen. Joe Biden, who used his blue slip to block the nomination.[12]  As such, Connolly’s nomination never received a hearing or a vote.

History of the Seat

Connolly has been nominated for a vacancy opened by Judge Sue Lewis Robinson’s move to senior status on February 3, 2017.  Connolly’s nomination was recommended and made in tandem with that of Maryellen Noreika, a Democrat, who was nominated to fill a second vacancy on the court.

In November 2016, after the election of Donald Trump, Connolly reached out to U.S. Senator Tom Carper (D-DE) to express his interest in the seat opening up by Robinson’s retirement.[13]  In mid-2017, Connolly interviewed with the selection committee set up by Carper and U.S. Sen. Chris Coons (D-DE).[14]  Connolly also interviewed with a parallel process led by Delaware Republican Party Chairman Mike Harrington Sr.[15]  Ultimately, Connolly was the only candidate recommended by both processes.[16]  He was formally nominated on December 20, 2017.

Legal Experience

Connolly’s twenty-five years in legal practice can be broken down into two parts: fifteen years as a federal prosecutor; and ten in private practice.

U.S. Attorney’s Office

In 1992, Connolly joined the U.S. Attorney’s Office for the District of Delaware, primarily handling criminal cases, including drug and firearm crimes, money laundering, and civil rights violations.[17]  In 1997, Connolly was the lead attorney in the most significant case of his career, the prosecution of prominent Delaware attorney Thomas Capano for the murder of his mistress Anne Marie Fahey.[18]  As the head of the prosecution, Connolly developed the investigation plan and worked with witnesses to build the case against Capano.[19]  Connolly also led the examination of witnesses, including Capano, prompting an outburst with Capano calling Connolly a “heartless, gutless, soulless disgrace for a human being.”[20]  Ultimately, Connolly was able to secure a guilty verdict and the death penalty for Capano,[21] although the penalty was ultimately overturned by the Delaware Supreme Court.

In 2001, the 36-year-old Connolly was appointed to be U.S. Attorney for the District of Delaware.  In his role as U.S. Attorney, Connolly dramatically increased the rate of prosecutions in the office.[22]  Among his prosecutions, Connolly helped secure the largest forfeiture in Delaware history.[23]  Connolly’s prosecutorial zeal also attracted some criticism.  After Connolly indicted the Democratic leadership in New Castle County, the defendants complained that his conduct was motivated by political considerations.[24]

In 2007, Connolly’s name was found on a Justice Department list designating U.S. Attorneys to be removed or fired.[25]  The concerns regarding Connolly were never made clear and Connolly served out his term as U.S. Attorney until the end of the Bush Presidency.[26]

Private Practice

Connolly has had two stints in private practice.  First, Connolly worked as a partner with Morris, Nichols, Arsht & Tunnell, working primarily in civil litigation.[27]  Second, after leaving the U.S. Attorney’s Office in 2009, Connolly has worked as a partner at Morgan, Lewis & Bockius LLP.[28]  In this capacity, Connolly has handled primarily commercial litigation, but has also handled a few criminal defense matters.  Among his more prominent clients, Connolly represented Kathy Klyce, the widow of Jack Wheeler, a prominent defense consultant who was found dead in a landfill in 2010.[29]

Political Activity

Connolly has been active with the Delaware Republican Party, serving in volunteer capacities on the campaigns of former-U.S. Sen. Bill Roth (R-DE), former-U.S. Rep. Mike Castle (R-DE), and as the co-chair of Delaware Lawyers for Bush.[30]  Additionally, Connolly has donated to the Republican Party of Delaware, U.S. Rep. Susan Brooks (R-PA), former U.S. Rep. Pat Meehan (R-PA) and the 2012 campaign of Mitt Romney.[31]

Overall Assessment

While Connolly may have faced disappointment the first time he was tapped for the federal bench, all signs point to a smooth confirmation this time around.

First of all, unlike last time, Connolly has the support of his home state senators, with Carper and Coons expressing their support for the nomination.[32]  Second, Connolly is also appearing before a Republican controlled senate (with no judicial filibuster).  As such, unified Republican support (and the support of his home-state Democrats) should be enough to confirm him.

On a more substantive level, Connolly is well-qualified for a federal judgeship.  His years as a federal prosecutor should leave him well-equipped to handle criminal trials and sentencing as a judge.  Additionally, his time in private practice has given him the requisite civil experience as well.

As such, barring any Petersen-like slip-ups in his hearing, Connolly is a strong bet for a bipartisan confirmation.  With the overburdened federal court in Delaware already half-empty, his future colleagues will only be too pleased to get some relief.


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

[2] See id. at 2.

[3] See id. at 1.

[4] See id. at 2.

[5] Id. 

[6] See id. at 2.

[7] Id.

[8] Id.

[9] David M. Drucker, Down on the Farm, Roll Call, May 8, 2007.

[10] Editorial, Judicial Appointments; Your Move, Senators, Philadelphia Inquirer, May 12, 2008.

[11] See id.

[12] See id.

[13] Sen. Comm. on the Judiciary, 115th Cong., Colm Connolly: Questionnaire for Judicial Nominees 64.

[14] Id.

[15] See Tom McParland, Sources: Trump to Tap Connolly, Noreika for Delaware District Court, Delaware Law Weekly, Sept. 22, 2017, https://www.law.com/delawarelawweekly/sites/delawarelawweekly/2017/09/22/sources-trump-to-tap-connolly-noreika-for-delaware-district-court/.  

[16] See id.

[17] Sen. Comm. on the Judiciary, 115th Cong., Colm Connolly: Questionnaire for Judicial Nominees 50.

[18] Id.

[19] George Anastasia and Bill Ordine, Federal Pressure Got Too Much for the Capanos/Were the Government’s Tactics Too Much? They are Routine – and Legal – Lawyers Say, The Philadelphia Inquirer, Nov. 23, 1997.

[20] Nation in Brief, Governor Prods Ramsey Inquiry, Atlanta Journal and Constitution, Jan. 5, 1999.

[21] George Anastasia, Capano Gets Death in Killing of Fahey/A Judge Scheduled the Execution for June 28. Appeals are Likely to Push the Date Back, Philadelphia Inquirer, Mar. 17, 1999.

[22] Editorial, Judicial Appointments; Your Move, Senators, Philadelphia Inquirer, May 12, 2008.

[23] Keith J. Kelly, Cond Gets Conned – Back-Office Manager Allegedly Embezzled $5.9M, N.Y. Post, Jan. 7, 2005.

[24] Local News, Federal Panel Indicts Top New Castle County Officials, Philadelphia Inquirer, May 27, 2004.

[25] David Johnson & Neil A. Lewis, Senate Democrats Plan A Resolution of Gonzales, N.Y. Times, May 18, 2007.

[26] Dan Eggen and Amy Goldstein, No-Confidence Vote Sought on Gonzales, Wash. Post, May 18, 2007.

[27] Sen. Comm. on the Judiciary, 115th Cong., Colm Connolly: Questionnaire for Judicial Nominees 50-51.

[28] Id. at 51.

[29] Steve Volk, Jack Wheeler Helped Build the Vietnam Wall and Worked for the White House & the Pentagon. How did he end up Dead in a Landfill?, Wash. Post, May 28, 2017.

[30] Sen. Comm. on the Judiciary, 115th Cong., Colm Connolly: Questionnaire for Judicial Nominees 48.

[31] Center for Responsive Politics, Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=colm+connolly&order=desc&sort=D (last visited Jan. 30, 2018).

[32] Press Release, Office of Sen. Christopher Coons, Carper, Coons’ Judicial Candidates Nominated for U.S. District Court Bench, Dec. 29, 2017 (on file at http://www.coons.senate.gov).