Month: March 2018

Jeremy Kernodle – Nominee for the U.S. District Court for the Eastern District of Texas

A young yet experienced litigator, Jeremy Kernodle has been nominated for a judgeship in the U.S. District Court for the Eastern District of Texas, rather than in the Northern District, where he is based.

Background

Jeremy Daniel Kernodle was born in Memphis in 1976.  Kernodle attended Harding University in Arkansas, graduating summa cum laude in 1998.[1]  He then attended Vanderbilt University School of Law, graduating with Highest Honors in 2001.[2]  He then clerked for Judge Gerald Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit.  Following his clerkship, Kernodle joined the Washington D.C. Office of Covington & Burling LLP as an associate.[3]

In 2005, Kernodle joined the Office of Legal Counsel in the Department of Justice as an attorney-advisor.[4]  In 2006, he moved to Dallas to become an associate at Haynes & Boone LLP.[5]  In 2012, Kernodle became a partner at the firm and continues to serve in that capacity today.

History of the Seat

Kernodle has been nominated to the U.S. District Court for the Eastern District of Texas, to a seat vacated on January 7, 2016, by Judge Michael Schneider’s move to senior status.  While Schneider moved to senior status with over a year left in the Obama Administration, no nominee was put forward for the vacancy.

In February 2017, Kernodle applied for a judgeship with the Evaluation Committee set up by Texas Senators John Cornyn and Ted Cruz, both Republicans.[6]  He interviewed with the Committee on March 16, 2017.[7]  Kernodle then interviewed with Cornyn and Cruz in May 2017, after which his name was submitted to the White House.[8]  Kernodle interviewed with the White House late in July 2017.  His nomination was submitted to the U.S. Senate on January 23, 2018.

Political Activity & Memberships

Kernodle has been fairly active in the Dallas Republican Party, having served as a Precinct Chair and on the Host Committee.[9]  He also donated $2500 to the Dallas Republican Party in 2017, as well as giving to Cornyn and Cruz.[10]

Kernodle has also been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 2006 and has served as President of the Dallas Lawyers Chapter since 2014.[11]

Legal Experience

Other than a brief stint at the Department of Justice, Kernodle has spent his entire legal career in private practice.  He started his career as an associate in the Washington D.C. office of Covington & Burling, specifically, in the Litigation and Supreme Court Practice Group.  While there, he appealed the dismissal of a malicious prosecution charge and argued the case before the Third Circuit.[12]

In 2005, Kernodle joined the Office of Legal Counsel (OLC) at the U.S. Department of Justice, which is tasked with providing advice on the legality of the Justice Department’s initiatives.[13]  While he did not participate in litigation at OLC, such a background has drawn significant criticism towards other Trump nominees.

In 2006, Kernodle joined Haynes & Boone in Dallas as an associate.  He was then made a partner in 2012.  At the firm, Kernodle has developed an expertise in False Claims Act cases, specifically in defending government contractors charged under the FCA.  For example, Kernodle successfully defending a healthcare company in a qui tam suit alleging fraud.[14]  In another suit, Kernodle successfully challenged a National Labor Relations Board order against the Dresser-Rand Co.[15]

Writings, Interviews, and Expressed Views

Over his career, Kernodle has developed an expertise in the False Claims Act (FCA), a law imposing liability on those who defraud the government.  He has authored numerous articles discussing developments in False Claims Act jurisprudence and caselaw.  In one such article, Kernodle suggests that the FCA will continue to expand in scope, leading to many lawsuits being brought under it.[16]

While Kernodle has generally focused his writing on the False Claims Act, as a law student, he wrote on the emerging “state-created danger” theory of liability for states and municipalities.[17]  The theory, which arose largely from the Supreme Court’s decision in DeShaney v. Winnebago County Department of Social Services, holds that the government can be held liable for a deprivation of constitutional rights where the government is responsible for creating the danger to the individual.[18]  Noting the variety of circuit court interpretations of the theory, Kernodle proposed a five part test for when the government could be held liable under the “state-created danger” theory: (1) the government acted affirmatively; (2) toward a specific plaintiff; (3) with deliberate indifference; (4) causing the harm; (5) in a way that shocks the conscience of the court.[19]  Such a restrictive test, Kernodle argues, is necessary for “confining recovery and protecting legislative decisions.”[20]

Overall Assessment

Kernodle fits neatly into the Trump Administration’s judicial focus on young conservatives with impeccable academic credentials.  Kernodle’s supporters will tout his litigation experience and expertise in the False Claims Act as evidence of his intellect.  Furthermore, conservatives will cheer Kernodle’s long history with the Federalist Society.

While Kernodle does not share the paper trail of controversial statements made by other Texas nominees, his nomination may nonetheless draw some opposition.  Firstly, critics may question Kernodle’s role at OLC, probing his views on topics such as the legality of interrogation techniques.  Secondly, they may criticize Kernodle’s lack of connections to the Eastern District of Texas, where he has been nominated.  (Interestingly, there are three nominee-less vacancies on the Dallas-center Northern District of Texas)

Overall, it is unlikely that his brief tenure at OLC or his affiliation with the Federalist Society will be disqualifying for the majority of the U.S. Senate.  As such, Kernodle will likely be confirmed in due course.

[1] Sen. Comm. on the Judiciary, 115th Cong., Jeremy D. Kernodle: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] See id. at 2.

[5] See id.

[6] See id. at 30.

[7] See id.

[8] See id.

[9] See id. at 15.

[11] See id.

[12] See Green v. Robinson, 112 Fed. Appx. 165, 2004 U.S. App. LEXIS 21304 (3d Cir. Oct. 13, 2004) (affirming dismissal of malicious prosecution claim).

[13] See Kernodle, supra n. 1 at 17.

[14] See United States ex rel. Colquitt v. Abbott Laboratories, 858 F.3d 365 (5th Cir. 2017).

[15] See Dresser-Rand, Co. v. NLRB, 838 F.3d 512 (5th Cir. 2016); Dresser-Rand, Co. v. NLRB, 576 F. App’x. 332 (5th Cir. 2014).

[16] Jeremy Kernodle, Christopher Rogers, and Nicole Somerville, Fraud Alert: What Every Texas Lawyer Should Know About the False Claims Act, 78 Texas B.J. 704, 705 (Oct. 2015).

[17] Jeremy Daniel Kernodle, Protecting the Police: Clarifying the Test for Holding the Government Liable Under 42 § 1983 and the State-Created Danger Theory, 54 Vand. L. Rev. 165 ( Jan. 2001).

[18] 489 U.S. 189, 200 (1989).

[19] See Kerndole, supra n. 29 at 187.

[20] Id. at 199.

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Judge C.J. Williams – Nominee for the U.S. District Court for the Northern District of Iowa

Judge C.J. Williams served as a law professor and a federal prosecutor for two decades before becoming a federal magistrate judge two years ago.  Last month, Williams was nominated for a lifetime judgeship on the U.S. District Court for the Northern District of Iowa.

Background

A native Iowan, Charles Joseph Williams was born in Cedar Rapids in 1963.  Williams received a B.A. with high distinction from the University of Iowa in 1985 and a J.D. with high distinction from the University of Iowa College of Law in 1988.  In 1997, he also received an LLM from the University of Missouri-Kansas City School of Law.

After graduating law school, Williams clerked for Judge Donald O’Brien on the U.S. District Court for the Northern District of Iowa.[1]  After a two year clerkship, Williams joined the U.S. Department of Justice Criminal Division as a trial attorney, and spent a year at the U.S. Attorney’s Office for the Eastern District of Virginia as a Special Assistant U.S. Attorney.[2]

In 1992, Williams joined the Kansas City law firm, Lathrop & Gage LLC.  In 1997, he returned to Iowa to become a federal prosecutor with the U.S. Attorney’s Office for the Northern District of Iowa.[3]  He held that position until 2016, when he was appointed to become a U.S. Magistrate Judge for the Northern District, replacing Judge Leonard Strand, who had been confirmed to a federal judgeship.[4]

Since 2001, Williams has taught Federal Criminal Practice and other courses on criminal law and practice at the University of Iowa School of Law.[5]

History of the Seat

The seat Williams has been nominated for opened on October 1, 2017, with Judge Linda Reade’s move to senior status.  Williams applied to a screening committee formed by Senators Chuck Grassley and Joni Ernst in August 2017, and interviewed before the Committee in late September.  On October 12, 2017, Grassley and Ernst sent the names of four finalists, including Williams, to the White House.[6]  After interviews with the White House Counsel’s Office and the Department of Justice, Williams was formally nominated to the U.S. District Court for the Northern District of Iowa on February 15, 2018.

Legal Experience

After his clerkship, Williams’ first legal position was at the Department of Justice prosecuting narcotics cases.[7]  In this position, Williams reviewed death penalty drug cases and helped prosecute a former Deputy Attorney General.[8]  In 1991, Williams became a Special Assistant U.S. Attorney (SAUSA) in the Eastern District of Virginia.[9]  In 1992, Williams became a trial attorney at Lathrop & Gage LLC.[10]  Williams helped start the firm’s criminal representation section.[11]

In 1997, Williams was hired to be an Assistant U.S. Attorney (AUSA) with the U.S. Attorney’s Office for the Northern District of Iowa.  There, Williams helped prosecute Sholom Rubashkin, the CEO of Agriprocessors, a kosher slaughterhouse and meatpacking plant that had allegedly hired thousands of illegal aliens.[12]  Rubashkin’s prosecution drew particular concern due to the participation of Judge Linda Reade (who eventually presided over the case) in a highly controversial raid of the Agriprocessor plant.[13]  During his hearing, Williams clarified that he was not involved in the raid or the prosecutions of workers in the plant.[14]

Williams also participated in the death penalty conviction of Angela Johnson, the girlfriend of a drug kingpin who was convicted of the drug related murders of two federal witnesses and three others.[15]  Johnson’s death penalty sentence was ultimately overturned by Judge Mark Bennett and the Attorney General chose not to pursue the penalty again.[16]  However, in his recap of the case, Judge Bennett complimented Williams’ handling of the case, calling him “well-qualified, talented, and exceptionally professional.”[17]

Jurisprudence

Williams has served as a U.S. Magistrate Judge on the U.S. District Court for the Northern District of Iowa since 2016.  In this role, Williams has presided over one jury trial and one bench trial.[18]  The jury trial involved damages to soybean and corn crops from hail, and the insurance company’s estimation of a lower loss.[19]  Williams ended up reducing the jury’s award of $1.5 million in punitive damages to $163,500.[20]

The bench trial that Williams presided over involved the abduction of three children by their mother and their removal to Turkey in violation of the Hague Convention.[21]  While Williams found that the removal of the children was unlawful, he did not order their return, noting that this would endanger the lives of one child, who needed a kidney transplant.[22]

In his two years on the bench, Williams has been reversed by a District Court judge on three occasions.  The rejections are outlined below:

United States v. Myers[23] – Presiding over the defendant’s arraignment, Williams ordered the defendant released before trial.  Judge Linda Reade reversed his decision and ordered the defendant detained.

United States v. Hayes[24] – Williams found that the government had charged two duplicitous counts of possessing a firearm as a prohibited person.  He recommended that the counts be merged.  Judge Leonard Strand agreed that the counts were duplicitous but found the correct remedy to be dismissal of one of the charges.

Cordes v. Berryhill[25] – In this social security action, Williams recommended that the ALJ’s decision denying social security benefits be affirmed.  Strand rejected this recommendation and reversed the ALJ recommendation.

Writings

As both an AUSA and an adjunct professor at the University of Missouri Kansas City School of Law, Williams has written fairly extensively on a variety of legal topics.  Williams began his legal academic career early, authoring a law review note discussing limitations on the Miranda right to counsel.[26]  He went on to dissect and examine many statutory provisions[27] and common law and evidentiary standards.[28]  However, he was particularly prolific in discussing jury selection.

In one notable article, Williams advocates for amending the Federal Rules of Criminal Procedure to give attorneys the right to conduct voir dire (questioning) of potential jurors.[29]  Williams notes that the current rules allow a judge to solely conduct voir dire or dispense with voir dire entirely.[30]  Blocking attorney participation in the voir dire process, Williams notes, limits the effectiveness of jury selection tools such as peremptory strikes and is often less effective at picking an impartial jury.[31]

In another article, Williams outlines the history of peremptory strikes and suggests that the number of such strikes permitted “should be as small as possible.”[32]  Expanding on that theme in another article, Williams advocates a consistent method for exercising peremptory strikes across the federal judiciary.[33]  Specifically, Williams endorses the sequential-strike method, which requires both sides to voir dire blocks of jurors, with each side making determinations as to whether to strike a juror after a for-cause determination has been made.[34]

Overall Assessment

As noted previously, federal magistrate judges are fairly safe nominees for the federal bench.  While Williams has had a fairly short tenure as a magistrate, his long history as a federal prosecutor and fairly uncontroversial record on the bench makes him an uncontroversial nominee.

Furthermore, Williams has a powerful champion, namely, Senate Judiciary Committee Chairman Chuck Grassley.  As Chairman, Grassley has carefully guided Iowa judges through the nomination thicket, getting two confirmed during the otherwise unproductive 114th Congress.  As such, the odds look fairly good for a prompt confirmation for Williams.

[1] Sen. Comm. on the Judiciary, 115th Cong., C.J. Williams: Questionnaire for Judicial Nominees 2.

[2] See id.

[3] See id.

[4] See id.

[5] See id. at 57.

[6] Press Release, Office of Sen. Chuck Grassley, Senators Ernst and Grassley Recommend Four Iowa Lawyers For Federal Judiciary Post (Oct. 17, 2017) (available at http://www.1380kcim.com/news/2017/senators-ernst-and-grassley-recommend-four-iowa-lawyers-for-federal-judiciary-post/).

[7] See Williams, supra n. 1 at 45.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] United States v. Rubashkin, No. 08-CR-1324-LRR (N.D. Iowa).

[13] Josh Nelson, UPDATE: Rubashkin Asks For New Trial After Judge’s Role in Raid is Detailed, Waterloo Cedar Falls Courier, August 5, 2010, http://wcfcourier.com/news/local/article_f4f87fee-a0ae-11df-918f-001cc4c03286.html.

[14] Trish Mehaffey, Federal Magistrate Answers Questions From U.S. Senate Judiciary Regarding His Nomination as District Judge, Dubuque Gazette, March 20, 2018, http://www.thegazette.com/subject/news/government/federal-magistrate-answers-questions-from-us-senate-judiciary-regarding-his-nomination-as-district-judge-20180321.

[15] United States v. Johnson, 01-CR-3046-MWB & 09-CV-3064-MWB (N.D. Iowa).

[16] Id. 

[17] Mark W. Bennett, Sudden Death: A Federal Trial Judge’s Reflections on the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 42 Hofstra L. Rev. 391 (Winter 2013).

[18] See Williams, supra n. 1 at 30.

[19] Bruhn Farms Joint Venture v. Fireman’s Fund Ins. Co., 2017 WL 2888585 (May 11, 2017).

[20] See id.

[21] Leonard v. Lentz, No. 17-CV-3037-CJW, 2017 WL 6887535 (N.D. Iowa Nov. 1, 2017); 2018 WL 459341 (N.D. Iowa Jan. 18, 2018).

[22] See id.

[23] 17-CR-20188-LRR (Apr. 26, 2017).

[24] 2017 WL 1955334 (May 11, 2017).

[25] 2017 WL 3951641 (Sept. 8, 2017).

[26] Charles J. Williams, Connecticut v. Barrett and the Limited Invocation of the Right to Counsel: A New Limitation on Fifth Amendment Miranda Protections, 73 Iowa L. Rev. 743 (March 1988).

[27] See, e.g., C.J. Williams, An Argument For Putting the Posse Comitatus Act to Rest, 85 Miss. L.J. 99 (2016); C.J. Williams, What is the Gist of the Mail Fraud Statute, 66 Okla. L. Rev. 287 (Winter 2014); Charles J. Williams, Towards a Comprehensive Health Care Anti-Kickback Statute, 64 UMKC L. Rev. 291 (Winter 1995).

[28] See, e.g., C.J. Williams, Fault and the Suicide Victim: When Third Parties Assume a Suicide Victim’s Duty of Self-Care, 76 Neb. L. Rev. 201 (1997). See also C.J. Williams and Dasha Ternavska, A Series of Unfortunate Events: The Admissibility of “Other Fires” Evidence in Arson Cases, 48 Conn. L. Rev. 685 (Feb. 2016).

[29] C.J. Williams, To Tell You The Truth, Federal Rule of Criminal Procedure 24(A) Should Be Amended To Permit Attorneys To Conduct Voir Dire of Prospective Jurors, 67 S.C. L. Rev. 35 (Autumn 2015).

[30] See id. at 58.

[31] Id. at 60.

[32] C.J. Williams, On the Origin of Numbers: Where did the Number of Peremptory Strikes Come From and Why is Origin Important, 39 Am. J. Trial Advoc. 481, 515 (Spring 2016).

[33] C.J. Williams, Proposing a Peremptory Methodology for Exercising Peremptory Strikes, 54 Am. Crim. L. Rev. 277 (Winter 2017).

[34] Id. at 296-97.

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Judge Amy St. Eve – Nominee for the U.S. Court of Appeals for the Seventh Circuit

In 2002, the 35-year-old Amy St. Eve became one of the youngest judges ever appointed to the U.S. District Court for the Northern District of Illinois.  Last month, St. Eve was nominated by President Trump to the prestigious U.S. Court of Appeals for the Seventh Circuit, an elevation that is supported by her home state senators.  It is a promotion she is likely to get.

Background

Amy Joan St. Eve was born in Belleville, Illinois on November 20, 1965.  St. Eve attended Cornell University, getting a B.A. in 1987.  She continued on to Cornell Law School, getting her J.D. in 1990.

After graduating law school, St. Eve joined the New York office of Davis, Polk & Wardwell as an Associate.[1]  In October 1994, St. Eve was hired by Whitewater Independent Counsel Kenneth Starr to be a prosecutor for his office.[2]  In 1996, St. Eve moved to be a federal prosecutor for the U.S. Attorney’s Office for the Northern District of Illinois.[3]  In May 2001, she joined Abbott Laboratories in Abbott Park, Illinois as Senior Counsel of Litigation.[4]

On March 21, 2002, St. Eve was nominated by President George W. Bush for a vacancy on the U.S. District Court for the Northern District of Illinois vacated by Judge George Lindberg.  Engelhardt’s nomination was championed by then-Sen. Peter Fitzgerald (R-Ill.).  St. Eve was confirmed unanimously by the Senate on August 1, 2002.  She serves as a federal district judge today.

History of the Seat

St. Eve has been nominated for a Illinois seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened with Judge Ann Claire Williams’ move to senior status on June 5, 2017.

On June 22, 2017, the White House Counsel’s Office reached out to St. Eve to gauge her interest in the Seventh Circuit appointment.[5]  St. Eve interviewed with the office on June 27.[6]  In December 2017, St. Eve was subsequently informed by Illinois Senators Richard Durbin and Tammy Duckworth that she would be nominated for the vacancy.  Her nomination was officially sent to the Senate on February 15, 2018.

Legal Career

St. Eve began her legal career as an associate at Davis Polk & Wardwell in New York City, where she represented businesses in defending civil and white collar criminal cases.[7]  In 1994, she joined the legal team assembled by Independent Counsel Ken Starr in investigating and prosecuting the Whitewater cases.  As an attorney there, St. Eve helped prosecute then-Arkansas-Governor Jim Guy Tucker for bank fraud and government fraud.[8]

In 1996, St. Eve became a federal prosecutor at the U.S. Attorney’s Office for the Northern District of Illinois.  During her tenure, St. Eve prosecuted white collar crime, narcotics, and fraud.  However, many of her most notable cases focused on government corruption.  For example, St. Eve participated in “Operation Safe Road,” a government investigation of corruption under the Illinois Secretary of State’s office during the tenure of Republican George Ryan (later the Governor).[9]  As a result of the investigation, St. Eve successfully prosecuted numerous employees who had fraudulently given out vehicle operator licenses in exchange for cash bribes.[10]  Ryan himself would eventually be indicted and convicted after St. Eve’s confirmation to the bench.

Jurisprudence & Reversals

St. Eve has served as a judge on the U.S. District Court for the Northern District of Illinois for the last sixteen years.  In this role, St. Eve has presided over 123 trials, 49 in criminal cases and the remaining 74 in civil cases.[11]  We have summarized two areas where St. Eve has made a mark:

Religious Discrimination

In two cases where she reached opposite results, St. Eve has elucidated her views on the level of protection offered to employees when they allege religious discrimination.[12]  In one case, St. Eve found that Wal Mart did not discriminate against a Christian employee when she was dismissed for telling other employees that “gay people are sinners and are going to hell.”[13]  Rather, St. Eve found that, to allege discrimination, the employee needed to show that non-Christian employees who held the same anti-gay views she did were treated differently by Wal Mart.[14]  As no such allegation was made, St. Eve ruled that dismissing the employee was not anti-Christian discrimination.[15]

In contrast, St. Eve declined to dismiss the discrimination case brought by an employee at Sidetrack, a Chicago gay bar, who alleged harassment and discrimination based on his Christian beliefs.[16]  In the suit, the plaintiff alleged “anti-Christian video clips Sidetrack played during comedy nights, offensive performances ridiculing Christians at special events, and degrading comments Sidetrack employees…made to Plaintiff because of his religion.”[17]  In denying summary judgment for Sidetrack, St. Eve found that a reasonable jury could find that the evidence constituted discrimination against the plaintiff based on his religious, rather than his political beliefs.[18]

Civil Rights Cases

During her fifteen years as a judge, St. Eve has presided over many civil rights cases.  In her rulings, St. Eve has been evenhanded, ruling for plaintiffs in some cases,[19] and for the defendants in others.[20]

In one notable case, St. Eve presided over a challenge by a special education teacher who was injured by an autistic student.[21]  The teacher alleged substantive due process violations and Monell liability due to failure to train after a struggle with an autistic student led to head injuries and a serious concussion.[22]  Specifically, the teacher criticized the school’s administration for failing to put the student in a therapeutic day school.[23]

St. Eve rejected the teacher’s claim, arguing that the administration’s decision to allow the student to continue attending school “was not an arbitrary decision, but instead was based on a deliberative process.”[24]  As such, St. Eve granted summary judgment for the defendants.[25]  The Seventh Circuit ultimately affirmed St. Eve’s decision.[26]

Reversals

In the sixteen years that St. Eve has served as a federal judge, she has been reversed by higher courts 43 times: 39 times by the Seventh Circuit; and four times by the Federal Circuit.[27]  In fourteen cases, the Seventh Circuit reversed St. Eve’s dismissal of a plaintiff’s civil complaint or a grant of summary judgment against the plaintiff.[28]  In contrast, St. Eve’s rulings in favor of plaintiffs have been reversed in three cases.[29]  In the criminal context, St. Eve’s sentences have been reversed by the Seventh Circuit in twelve cases.[30]

Overall Assessment

St. Eve comes to the confirmation process with a long judicial paper trail.  This record establishes her as a middle-of-the-road judge with no bias towards either conservative or liberal judicial philosophies.  Additionally, with her long tenure as a federal judge, St. Eve’s qualifications for the appellate bench are unquestionable.

Furthermore, St. Eve’s record as a federal prosecutor also speaks to her evenhandedness.  While she participated in the politically charged investigation over Whitewater, and successfully prosecuted Democratic Governor Jim Guy Tucker, she also worked to bring down a system of patronage and corruption established by a Republican secretary of state in Illinois.  Her success on both fronts makes it difficult to paint her as a partisan prosecutor.

As such, St. Eve is likely to be seen as a “consensus” nominee, one expected to get a swift and uncontroversial confirmation.

[1] Sen. Comm. on the Judiciary, 115th Cong., Amy St. Eve: Questionnaire for Judicial Nominees 1.

[2] See id. at 53.

[3] See id.

[4] See id. at 2.

[5] See id. at 68.

[6] See id.

[7] See id. at 53.

[8] See United States v. McDougal, 95-cr-175 (E.D. Ark.)

[9] See Andrew Zajac and Flynn McRoberts, Operation Safe Road: License Scheme Led to Wider Investigation, Chicago Tribune, Dec. 18, 2003, http://articles.chicagotribune.com/2003-12-18/news/0312180299_1_driver-s-licenses-plates-applicants.

[10] See United States v. Mastrodomenico, 98-cr-623 (N.D. Ill.); United States v. Seibel, 99-cr-78 (N.D. Ill.); United States v. Golumb, 99-cr-871 (N.D. Ill.).

[11] See St. Eve, supra n. 1 at 21.

[12] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[13] Matthews v. Walmart, Inc., No. 08 C 5312, 2010 WL 11545667, at *2 (N.D. Ill. Apr. 26, 2010), aff’d sub nom. Matthews v. Wal-Mart Stores, Inc., 417 F. App’x 552 (7th Cir. 2011).

[14] See id. at *3-4.

[15] See id.

[16] Parker v. Side by Side, Inc., 50 F. Supp. 3d 988, 995 (N.D. Ill. 2014).

[17] Id. at 1002.

[18] Id. at 1013-14.

[19] See, e.g., Ayoubi v. Basilone, No. 14 C 0602, 2016 WL 6962189, at *5 (N.D. Ill. Nov. 28, 2016) (denying Defendants’ motion to dismiss); Sokol v. City of Chicago, Illinois, No. 13 CV 5653, 2014 WL 5473050, at *3 (N.D. Ill. Oct. 29, 2014) (denying proposed order to protect confidential information by Defendants); Pierce v. Cook Cty., No. 12 C 5725, 2014 WL 4376231, at *5 (N.D. Ill. Sept. 4, 2014) (denying Defendants’ motion to dismiss action as unexhausted).  

[20] See, e.g., Smith v. Ramirez, No. 12 C 509, 2014 WL 4070202, at *1 (N.D. Ill. Aug. 14, 2014) (denying Plaintiff’s motion for summary judgment); Hicks v. Young, No. 10 C 3874, 2011 WL 5507379, at *1 (N.D. Ill. Nov. 9, 2011) (granting Defendant’s motion to dismiss for failure to state a claim); Caudle El v. Lake Cty. Sheriffs, No. 08 C 6534, 2010 WL 11546028, at *4 (N.D. Ill. June 1, 2010) (granting summary judgment to Defendants on deliberate indifference claim); Jackson v. Indian Prairie Sch. Dist. 204, No. 08 C 4312, 2010 WL 11545957, at *5 (N.D. Ill. Apr. 30, 2010), aff’d, 653 F.3d 647 (7th Cir. 2011) (granting summary judgment for Defendants).

[21] See Jackson v. Indian Prairie Sch. Dist. 204, No. 08 C 4312, 2010 WL 11545957, at *5 (N.D. Ill. Apr. 30, 2010), aff’d, 653 F.3d 647 (7th Cir. 2011).

[22] Id. at *3.

[23] See id. at *4.

[24] Id.

[25] Id. at *5.

[26] 653 F.3d 647 (7th Cir. 2011).

[27] See St. Eve, supra n. 1 at 40-46.

[28] See Yanhke v. Kane Cnty., 823 F.3d 1066 (7th Cir. 2016); Reid v. Illinois, 808 F.3d 1103 (7th Cir. 2015); Smith v. Dart, 803 F.3d 304 (7th Cir. 2015); Petrovic v. Enter. Leasing Co. of Chicago, LLC, 513 F. App’x 609 (7th Cir. 2013); Todd v. Kohl’s Dep’t Store, 490 F. App’x 824 (7th Cir. 2013); Schwartz v. Prudential Ins. Co. of Am., 450 F.3d 697 (7th Cir. 2006); Shaffer v. Am. Med. Ass’n, 662 F.3d 439 (7th Cir. 2011); Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009); Makor Issues & Rights, Ltd. v. Tellabs, 437 F.3d 588 (7th Cir. 2006); Shapo v. Engle, 463 F.3d 641 (7th Cir. 2006); Davis v. Carter, 452 F.3d 686 (7th Cir. 2006); Bremgettcy v. Horton, 423 F.3d 674 (7th Cir. 2005); Blue Cross & Blue Shield of Ill. v. Cruz, 396 F.3d 793 (7th Cir. 2005); Xechem, Inc. v. Bristol Myers Squibb Co., 372 F.3d 899 (7th Cir. 2004).

[29] See Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005); Transpersonnel, Inc. v. Roadway Express, Inc., 422 F.3d 456 (7th Cir. 2005); Schimmer v. Jaguar Cars, Inc., 384 F.3d 402 (7th Cir. 2004).

[30] See United States v. Harrington, 834 F.3d 733 (7th Cir. 2016); United States v. Rogers, 528 F. App’x 641 (7th Cir. 2013); United States v. Vidal, 705 F.3d 742 (7th Cir. 2013); United States v. Knox, 496 F. App’x 649 (7th Cir. 2012); United States v. Hernandez, 479 F. App’x 735 (7th Cir. 2012); United States v. Knox, 412 F. App’x 867 (7th Cir. 2011); United States v. Black, 625 F.3d 386 (7th Cir. 2010); United States v. Knox, 573 F.3d 441 (7th Cir. 2009); United States v. Adefumi, 279 F. App’x 401 (7th Cir. 2008); United States v. Smith, 276 F. App’x 497 (7th Cir. 2008); United States v. McMahan, 495 F.3d 410 (7th Cir. 2007); United States v. Garcia, 439 F.3d 363 (7th Cir. 2006).

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

Richard Posner is a hard act to follow.  Like him or hate him, it’s hard to deny the mercurial judge’s legal genius.  After Posner’s abrupt resignation, Trump is looking to replace him with a biglaw litigator with a stellar academic resume.  A former Supreme Court clerk who worked for the Bush White House, Scudder has the credentials to succeed Posner.

Background

Michael Yale Scudder was born in 1971 in Fort Wayne, Indiana.  He attended Saint Joseph’s College in Indiana, graduating summa cum laude in 1993.[1]  He then worked for two years as a staff accountant in the Fort Wayne office of Ernst & Young.[2]

In 1995, Scudder joined the Northwestern University Pritzker School of Law.  He graduated magna cum laude in 1998.[3]  After graduating, Scudder clerked for Judge Paul Niemeyer on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[4][5]

After his clerkship, Scudder joined the Cleveland office of Jones Day, where he served as an associate for two years.  In 2002, Scudder was hired at the U.S. Attorney’s Office for the Southern District of New York to be a federal prosecutor.[6]  In 2006, Scudder moved to Main Justice as Counselor to Deputy Attorney General Paul McNulty.

In 2007, Scudder was hired by the White House as Associate Counsel to the President.[7]  He was promoted to be General Counsel of the National Security Council and Senior Associate Counsel to the President, where he focused on national security issues.[8]  In 2009, Scudder left to join the Chicago Office of Skadden, Arps, Slate, Meagher & Flom LLP as a Partner.  He continues to work in that capacity today.

History of the Seat

Scudder has been nominated for an Illinois seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on September 2, 2017 with the sudden resignation of Judge Richard Posner.[9]  However, Scudder had been under consideration for a judicial appointment much earlier.  On June 6, 2017, Scudder received a call from the White House Counsel’s office gauging his interest in a 7th Circuit seat.[10]  He interviewed with the White House shortly thereafter.[11]

In October 2017, Scudder interviewed with a screening committee set up by Illinois Senators Richard Durbin and Tammy Duckworth.[12]  He interviewed with Durbin and Duckworth later that month, and was designated the presumptive nominee on December 4, 2017.[13]  Scudder was nominated on February 12, 2018.

Political Activity

Scudder has generally steered clear of electoral politics.  He has not volunteered on any campaigns, and his only political contribution of record is a $250 contribution to Republican Congressional candidate Jay Jorgensen in Utah, who clerked on the Supreme Court with Scudder.[14]

Legal Practice

Scudder’s first legal position after his clerkships was at Jones Day, a firm that has yielded many Trump executive attorneys and judicial nominees.  In 2002, Scudder moved on to join the U.S. Attorney’s Office for the Southern District of New York, one of the most prestigious prosecutorial offices in the country, to work under future FBI Director James Comey.[16]  During his four years as a federal prosecutor, Scudder worked with the narcotics, general crimes, and violent crimes units, trying six cases and handling six appeals.[15]  Among his more notable cases, Scudder helped prosecute a pediatrician for traveling abroad to have sex with minors at resorts in Mexico and Honduras.[17]

In 2006, Scudder joined the National Security team at the Deputy Attorney General’s office at the Department of Justice.[18]  In 2007, Scudder moved to the White House Counsel’s Office working on monitoring legislation and litigation related to national security.[19]  A few months after his move, Scudder was promoted to be Senior Associate Counsel to the President and General Counsel of the National Security Council, where he spent his time working with the Council on legal issues associated with national security and counterterrorism.[20]

In 2009, shortly after the inauguration of the Obama Administration, Scudder joined the Chicago Office of Skadden Arps as a partner.[21]  At Skadden, Scudder focused on business litigation, and white collar matters.[22]  He particularly specialized in cases involving accounting and the law.[23]  During his time at Skadden, Scudder handled two jury trials.[24]

Among the most notable cases he handled at Skadden, Scudder has represented the University of North Carolina at Chapel Hill in defending the constitutionality of its admissions process.[25]  Throughout the suit, Scudder has defended the University’s admissions policies, which incorporate race and ethnicity, as constitutional.[26]  Scudder also filed amicus briefs on behalf of the University in supporting the University of Texas’ affirmative action programs in Fisher v. University of Texas at Austin.[27]

Aside from his paid work, Scudder has been active in representing criminal defendants pro bono.  For example, Scudder successfully persuaded the Seventh Circuit to reverse an indigent defendant;s conviction due to the trial judge’s failure to give proper jury instructions regarding the defendant’s prior crimes.[28]  Additionally Scudder has filed amicus briefs in a number of criminal cases at the Supreme Court, generally supporting greater rights for criminal defendants.[29]

Writings

As a law student, Scudder authored an article analyzing the recently passed Private Securities Litigation Reform Act of 1995.[30]  In the article, Scudder discusses the damages cap imposed by the legislation, arguing that Congress’ “theory of damages may have initial appeal, but it lacks empirical support.”[31]  He also argues that a better damages limitation provision would have limited investor recovery to the actual losses they had suffered.[32]

Overall Assessment

While it is always tricky to predict that a nominee will be smoothly confirmed, the odds look fairly good for Michael Scudder.  First of all, Scudder has the strong support of his home state senators, both of whom are Democrats.  Second, Scudder lacks a controversial paper trail and has not participated in many controversial cases.  Rather, in his more hot-button cases, such as the UNC affirmative action suit, Scudder has taken the “liberal” position in litigation.  Third, unlike many Trump appellate nominees, Scudder does not have a history with the Federalist Society.

None of this is to suggest that there are no objections that can be raised against Scudder.  Questions may be raised about Scudder’s work on national security issues at the Bush Administration. Specifically, senators may seek to probe whether Scudder shares the broad views of executive power claimed by the Administration in conducting counterterrorism and national security operations.

Nonetheless, Scudder is well-placed for a comfortable confirmation.  Additionally, given his academic credentials, clerkships, and uncontroversial background, Scudder should be considered a strong likelihood for a future Supreme Court nominee, especially under a Republican presidency.

[1] Sen. Comm. on the Judiciary, 115th Cong., Michael Y. Scudder: Questionnaire for Judicial Nominees 1.

[2] Id. at 3.

[3] Id. at 1.

[4] Id. at 2.

[5] Scudder was joined at the court by other luminaries such as Judge Ketanji Brown Jackson, Supreme Court advocate Kannon Shanmugam and law professors Benjamin Liebman, Rebecca Tushnet, Kermit Roosevelt III, Tim Wu, and Richard Primus.

[6] Id. 

[7] Peter Baker and R. Jeffrey Smith, Miers Steps Down as White House Gears For Battle, Wash. Post, Jan. 5, 2007.

[8] See Scudder, supra n. 1 at 2.

[9] Jason Meisner and Patrick O’Connell, Richard Posner Announces Sudden Retirement From Federal Appeals Court in Chicago, Chicago Tribune, Sept. 1, 2017, http://www.chicagotribune.com/news/local/breaking/ct-judge-richard-posner-retires-met-20170901-story.html.

[10] See Scudder, supra n. 1 at 33.

[11] See id.

[12] Id.

[13] Id. 

[15] See Scudder, supra n. 1 at 18.

[16] See United States v. Gabb, 80 Fed. Appx. 142 (2d Cir. 2003).

[17] See Susan Saulny, Ex-Doctor Receives Sentence of 21 Years in Child Sex Case, N.Y. Times, Feb. 14, 2004.

[18] See Scudder, supra n. 1 at 18.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] See, e.g., In re Robert D. Hesselgesser, CPA, United States Securities and Exchange Commission No. 3-17214 (April 19, 2016).

[24] See id.

[25] Students for Fair Admissions, Inc. v. Univ. of North Carolina, No. 1:14-cv-00954-LCB-JLW (M.D.N.C. filed Nov. 17, 2014).

[26] See id.

[27] See Brief of Amicus Curiae The University of North Carolina at Chapel Hill in Support of Respondents, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

[28] United States v. Robinson, 724 F.3d 878 (7th Cir. 2013).

[29] See Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioners, Camreta v. Greene, 563 U.S. 692 (2011) (Nos. 09-1454 & 09-1478); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioner, Bailey v. United States, 568 U.S. 186 (2013) (No. 11-770); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Respondents, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

[30] Michael Y. Scudder, The Implications of Market-Based Damages Caps in Securities Class Actions, 92 Nw. U.L. Rev. 435 (Fall 1997).

[31] Id. at 474.

[32] See id.i

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Maureen Ohlhausen – Nominee to the U.S. Court of Federal Claims

The Acting Chairwoman of the Federal Trade Commission (FTC),[1] Maureen Ohlhausen has worked in private FTC litigation, held a variety of posts at the FTC, and worked as a staff attorney and clerk in D.C.’s federal appeals court and the U.S. Court of Federal Claims.  She now is a nominee to that very court.

Background 

Ohlhausen graduated from the University of Virginia in 1984 with a B.A. in English, with distinction, and earned her J.D., with distinction, from the George Mason University School of Law in 1991.[2]  Upon graduating from law school, she clerked for the U.S. Court of Federal Claims, after which she clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit from 1994-1997.  Following her clerkships, she began a 12-year stint at the FTC, where she started as an attorney in the Office of the General Counsel and ultimately became Director of the Office of Policy Planning.[3]  In 2009, she was policy counsel at the Business Software Alliance, a private firm specializing in the software industry private firms centering on software and technology, and from late 2009-2012, she practiced law at FTC practice group, Wilkinson Barker Knauer, LLP, where she was a partner.[4]  Ohlhausen has served as an FTC commissioner since 2012, and President Trump designated her as the FTC’s acting chairwoman in 2017.[5]

History of the seat

President Trump has nominated Ohlhausen to sit as a judge on the U.S. Court of Federal Claims, a court of special jurisdiction that hears monetary claims against the U.S. government.[6]  Judges on the court serve for 15-year terms and are eligible for reappointment.[7]  The seat Ohlhausen was nominated for opened up on January 8, 2016, with Judge Lawrence Block’s move to senior status.  While five Obama nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[8]  No nominee was ever put forward for the Block seat.[9]

Legal Career & Views

Ohlhausen is a Republican and an outspoken critic of government regulation.[10]  A believer in free markets, Ohlhausen has frequently used the term “‘regulatory humility’ to describe her philosophy on federal policymaking.”[11]  She has also advocated deregulation of and limited governmental intervention in the marketplace, a philosophy she put into practice in nominating fellow prominent deregulation advocate Thomas Pahl to the FTC’s Bureau of Consumer Protection last year.[12]

For example, she opposes broad occupational licensure requirements (i.e., the governmental requirement of a license to pursue a particular profession or vocation).[13]  Indeed, as her “first major initiative as Acting Chairman, [Ohlhausen] formed the Economic Liberty Task Force to help” prevent or roll back “unnecessary or overbroad occupational licensing and to partner with state leaders and other stakeholders.”[14]  See also infra, “Speeches and Writings” for an expanded discussion of Ohlhausen’s views on this issue.

More controversially, Ohlhausen is an outspoken opponent of net neutrality laws, and instead believes that its ends can be achieved via antitrust enforcement.[15]  Under the Federal Communications Commission’s (FCC) 2015 net neutrality regulations, Internet service providers’ (ISPs) were prohibited from blocking or throttling internet traffic, and from charging websites and online services for faster, more reliable services.[16]  In late 2017, shortly before the FCC’s repeal of net neutrality and during Ohlhausen’s tenure as FTC chairwoman, the FCC and FTC entered into a memorandum of understanding whereby ISPs may promise consumers that they will follow net neutrality guidelines.  If they break this promise, the FTC has jurisdiction to punish them for deceiving consumers.  The FTC’s jurisdiction thus depends on ISPs voluntarily making, and then breaking, net neutrality promises to consumers.[17]  Opining on the memorandum, Ohlhausen reiterated the FTC’s “committ[ment] to ensuring that Internet service providers live up to the promises they make to consumers.”[18]

Speeches and Writings

By virtue of her position as acting chairwoman, Ohlhausen has publicly taken a number of positions regarding market entry, market deregulation, and the effects of regulation in terms of fairness to consumers.  The following samples some of her more recent speeches and writings.

Ohlhausen authored a 2016 journal article, Administrative Litigation at the FTC: Effective Tool for Developing the Law or Rubber Stamp?[19]  The article is the most comprehensive empirical study of the FTC’s “Part 3 process,” an administrative process that empowers the FTC to challenge alleged unfair or deceptive trade practices through administrative litigation.  If the FTC invokes this process and the respondent challenges the charges against it, the case is tried before an Administrative Law Judge, and then the FTC reviews the judge’s decision de novo.  In the past ten years, the FTC has never rejected an action that it previously authorized.  By analyzing the disposition of cases that go through the Part 3 process and the factors at play in the FTC’s charging decisions and subsequent affirmance, the article challenges Part 3 critics’ contention that the FTC’s review of its own charging decision is essentially a rubber stamp, concluding that the Part 3 process plays a crucial role in developing the law.

In May of 2017, Ohlhausen delivered a speech at a seminar covering the first 100 days of the Trump administration.  She explained three of the Trump administration’s priorities pertaining to the FTC: unleash job creation, correct federal government overreach in a number of areas, and reform federal regulatory processes and reduce burdensome regulation.[20]  She praised these efforts as aligning with the FTC’s efforts “to expand and strengthen our competition advocacy work,” “ prevent meaningful consumer harm, not [] redesign the economy as we see fit,” and “eliminate unnecessary and burdensome regulatory requirements that hurt our economy.”[21]

In July of 2017, Ohlhausen was the keynote speaker at an event hosted by The Heritage Foundation, a conservative think tank, where the topic was the promotion of regulatory reform for occupational licensing requirements.  During the speech, Ohlhausen argued that unnecessary occupational licensure requirements are “barriers to entry” that “harm[] workers, consumers, and the economy as a whole.”[22]  Unnecessary licensing requirements, she explained, are those where there are not information asymmetries between professionals and consumers, in non-technical fields, and those where consumers can “easily observe service quality.”[23]  For example, “in certain health care occupations, consumers could face serious risks if treated by unqualified individuals, yet find it difficult (or impossible) to assess quality of care at the time of delivery. In such circumstances, a license requirement might help improve public health and safety.”[24]  In contrast, licensing requirements in fields where “consumer risks are low or entirely speculative” are inappropriate.  She used the example of cosmetology: “A bad haircut or makeup application is markedly obvious to a consumer and to all of her friends. Bad haircuts or makeup applications quickly have consequences for the cosmetologist. The consumer risk is low and fleeting, but the excessive licensure requirement is not – it creates a large burden on those seeking to enter the workforce and limits competition.”[25]  More broadly, she explained that “licensure disproportionally affects those seeking to move up the lower and middle rungs of the economic ladder,” as it requires people to expend time and money on meeting often state-specific licensing requirements.[26]

In a December 2017 speech at Georgetown University, Ohlhausen explained her view that large, growing companies, such as Amazon or Google, do not unduly threaten competition and are not on track to becoming monopolies prohibited by antitrust law.  Companies’ occupying a big portion of the market at one time, she explained, does not erode free and open markets, and instead the touchstone of antitrust enforcement is the actual likely harm to consumers in an open market system.[27]  Monopolies, she explained, are acceptable as long as they gain consumers by merit, rather than anticompetitive practices short-circuiting their competition.  Even practices such as a company’s artificially lowering its prices to eliminate competition, then raising prices once it did so, are permissible because so long as the possibility of marketplace “entry remains, possible predation [of competitors] makes no economic sense.”[28]  In her concluding remarks, she described herself as neither “a champion of today’s leading Internet firms nor their foe,” and her and the FTC’s policy positions as ones “that [leading internet firms] sometimes love and sometimes hate.”[29]

Of her January 2018 nomination to the U.S. Court of Federal Claims, Ohlhausen stated: “I am honored that the President has expressed his intent to nominate me to be a judge on the U.S. Court of Federal Claims, one of the oldest federal courts in our nation. In the meantime, I will continue to serve at the Federal Trade Commission until a time when I may be so fortunate as to be confirmed to the Court of Federal Claims by the United States Senate.”[30]

FTC Administrative Decisions

Commissioner Ohlhausen has participated in over 1,000 administrative FTC decisions, including merits determinations of alleged FTC violations and policy guidance issued by the commission.[31]  The following highlights positions that Ohlhausen has taken within this administrative process evincing her focus on and prioritization of free markets via deregulation:

In 2012, Ohlhausen dissented from the FTC’s decision to withdraw a 2003 policy statement that it would not pursue disgorgement (pursuit of monetary equitable relief) except in the clearest of cases of FTC violations.[32]  She criticized the commission’s proffered basis for rescinding the policy statement, that it “has chilled the pursuit of monetary remedies in the

years since [its] issuance,” as not based in empirical evidence to this effect.  She further criticized the commission’s stated view that, instead of the policy statement, the FTC “will rely instead upon existing law, which provides sufficient guidance on the use of monetary equitable remedies,” as a toothless statement that “ could be used to justify a decision to refrain from issuing any guidance whatsoever about how this agency will interpret and exercise its statutory authority on any issue.”[33]

Since that dissent, Ohlhausen has been vocal about her opposition to the decision to withdraw this policy statement in subsequent decisions, including those in which she concurred in the decision to pursue disgorgement.  In a 2015 decision, FTC v. Cephalon, Inc., the FTC found that Cephalon had engaged in anti-competitive conduct by paying four firms to refrain from selling generic versions of Cephalon’s patented drug for an extended period of time, thereby inhibiting competition and denying patients access to lower-cost versions of the drug.[34]  Ohlhausen agreed that disgorgement was appropriate, but because Cephalon’s conduct met the test laid out in the since-rescinded policy statement.  She noted in her concurrence, “the incentive to pursue monetary remedies more frequently, particularly in other cases without a clear violation, may cause the Commission to neglect its special mission to develop the antitrust laws through Part III litigation and other unique tools. That concern is only heightened now that we are counting disgorgement in the billions of dollars.”  She reiterated these concerns in her 2017 concurrence to In the Matter of Mallinckrodt ARD Inc., where the FTC found that a pharmaceutical company engaged in anticompetitive conduct by attempting to create a monopoly with respect to a particular drug.[35]  Ohlhausen expressed “concerns about [the] aspect of the remedy” for this conduct that required the company to pay over $100 million in disgorgement.  The case, Ohlhausen contended, should have been handled through the FTC’s administrative process rather than filed in federal court (a predicate for pursuing and obtaining the remedy of disgorgement).[36]

In 2013, the FTC filed a complaint against and conducted an investigation of Google, In the Matter of Google Inc., for its alleged anticompetitive practices relating to, inter alia, seeking to enjoin putative licensees of Google’s “standard essential patents” (patents required to comply with a technical standard, thereby encouraging adoption of a common platform among rival producers, which in turn fosters competition).  This, the FTC charged, violated Google’s duty to offer such patents on “fair, reasonable, and non-discriminatory terms.”[37]  The FTC and Google ultimately reached an agreement whereby Google agreed to not seek such injunctions, as well as remove restrictions on the use of its online search advertising platform that may have made it more difficult for advertisers to coordinate online advertising campaigns across multiple platforms.[38]  Ohlhausen criticized the portion of the decision related to these restrictions as not premised on a showing of actual harm to competitors in the form of increased costs or Google’s monopolization of the market, thus potentially discouraging innovation by needlessly punishing Google.[39]  “If our cases – particularly our standalone [unfair and anticompetitive practices] cases – are not anchored to competitive and ultimately consumer harm, then they are completely adrift. I am hopeful that the Commission will maintain its focus on competitive and consumer harm as it moves beyond this matter.”

Overall Assessment

Ohlhausen has a long, distinguished career in FTC-related private practice and the FTC itself.  While her economic knowledge and experience are unimpeachable, it is not clear that her expertise relates to the subject matter of lawsuits within the U.S. Court of Federal Claims’ jurisdiction — claims for money damages arising from the United States Constitution, federal statutes, executive regulations, or an express or implied in fact contract with the United States Government.[40]  However, the economy is not an esoteric subject and her knowledge base is not inapposite to the claims the court hears, she has served in an adjuratory capacity as an FTC commissioner, and she has substantial federal clerking experience, including on the Court of Federal Claims.  As such, Ohlhausen will likely be confirmed by the Senate.

[6] 28 U.S.C. §§171-72.

[8] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[9] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[16] https://arstechnica.com/tech-policy/2017/12/voluntary-net-neutrality-will-protect-consumers-after-repeal-fcc-claims/

[27] https://www.usatoday.com/story/tech/2017/09/12/internet-companies-too-big-ftc-chair-says-more-than-market-share-counts/656394001/

[28] https://www.usatoday.com/story/tech/2017/09/12/internet-companies-too-big-ftc-chair-says-more-than-market-share-counts/656394001/

[29] https://www.usatoday.com/story/tech/2017/09/12/internet-companies-too-big-ftc-chair-says-more-than-market-share-counts/656394001/

[31] Westlaw search conducted by author February 25, 2018.

[33] FTC v. Cephalon, Inc., Separate Statement of Commissioners Maureen K. Ohlhausen & Joshua D. Wright, at 3 (May 28, 2015), https://www ftc.gov/public-statements/2015/05/separate-statement-commissioners-maureen-kohlhausen-joshua-d-wright.

[35] In the Matter of Mallinckrodt ARD Inc., Concurring Statement of Maureen K. Ohlhausen, 2017 WL 395523 (Jan. 18, 2017).

[36] In the Matter of Mallinckrodt ARD Inc., Concurring Statement of Maureen K. Ohlhausen, 2017 WL 395523 (Jan. 18, 2017).

[40]  28 U.S.C. § 1491.

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Unconfirmed: The Neverending Vacancy

When Judge Malcolm Howard took senior status on December 31, 2005, the 66-year-old Reagan appointee likely expected a successor to be appointed in a matter of months.  Today, over twelve years later, Howard’s seat on the U.S. District Court for the Eastern District of North Carolina is still vacant, the longest district court vacancy in U.S. history.[1]  The story of this vacancy spans three Administrations and three failed nominations, as well as involving the ugly specter of racism and politics in the “new south.”

Let us start off with two facts: first, the Eastern District of North Carolina, which covers 44 counties from Raleigh into the North Carolina coastline, has one of the highest percentage of black residents in the nation, with over 25% of the population being African American;[2] second, the Eastern District of North Carolina has never had a single African American judge.[3]  North Carolina’s relative paucity of African American federal judges relates partly back to Sen. Jesse Helms, the notoriously conservative senior senator from North Carolina.  Over his thirty year tenure, Helms oversaw the nominations of 15 district court judges and three appellate judges from North Carolina, only two of whom were black.  As such, by the time that Howard moved to senior status, many felt that the Eastern District of North Carolina was overdue for an African American judge.  However, President George W. Bush’s nominated Thomas Alvin Farr, a 52-year-old white private practice attorney from Raleigh.

Farr’s nomination came before a Democratic-controlled Senate on January 9, 2007, alongside the nominations of Thomas Schroeder, William Osteen Jr., and Martin Reidinger to fill three other North Carolina vacancies.[4]  The Senate confirmed Osteen and Reidinger on September 10, 2007, and confirmed Schroeder on December 14, 2007.  However, despite having the strong support of North Carolina senators Elizabeth Dole and Richard Burr, Farr received neither a hearing nor a vote.  In the 2008 elections, two simultaneous actions killed Farr’s hope of confirmation: first, Illinois Senator Barack Obama, a Democrat, was elected to be the new President of the United States; second, Dole was defeated for re-election by Democrat Kay Hagan.

Entering office with a new Democratic president, Hagan recommended three candidates to President Obama for the Howard seat: Superior Court Judges Allen Cobb and Quentin Sumner, and Assistant U.S. Attorney Jennifer May-Parker.[5]  Notably, two of the three candidates, Sumner and May-Parker, were African American.  On July 21, Burr wrote to Obama endorsing the candidacies of Cobb and May-Parker for the seat.[6]

However, despite the joint recommendations, the White House failed to put a nomination forward.  As his first term came to an end, Obama managed to place two North Carolina judges on the U.S. Court of Appeals for the Fourth Circuit, as well as two more on the District Courts.  And yet, the Administration failed to nominate anyone to the Eastern District.

Some speculated that the Administration had failed to nominate a candidate because it was looking for an African American nominee.[7]  Rep. G.K. Butterfield urged the White House to nominate an African American to the seat, noting that 26.5% of the residents under the Eastern District were black.[8]  For her part, Hagan refused to recommend any additional candidates to the White House.[9]

On June 20, 2013, four and a half years after he came to office, Obama finally submitted a nomination to the Howard seat, which had, by now, been vacant for seven and a half years.  The nominee was Jennifer May-Parker, the African American federal prosecutor recommended by Hagan and Burr in July 2009.[10]  However, despite his support for May-Parker in 2009, Burr refused to return a blue slip on the nomination.[11]  Burr declined to offer a reason for his blockade of May-Parker, but his intransigence prevented a hearing or a vote on May-Parker.  Furthermore, in the 2014 elections, Hagan lost re-election to Republican Thom Tillis.  Bowing to the political realities, the Obama Administration chose not to renominate Jennifer May-Parker in the Republican-controlled 114th Congress.

After withdrawing May-Parker’s nomination in early 2015, Obama did not submit another nomination to the Howard seat until April 2016, when he nominated Patricia Timmons-Goodson, a member of the U.S. Commission on Civil Rights and a former North Carolina Supreme Court Justice.[12]  The nomination drew a sharp response from Burr who argued that Obama had broken an agreement that would have filled the vacancy, calling the nomination an “election season stunt.”[13]  Despite criticism within his home-state,[14] Burr stuck to his stance, blocking Timmons-Goodson for the rest of the Obama administration.  Notably, in a private meeting, Burr took credit for the “longest vacancy,” touting it as an example of his frustration of the Obama Administration’s goals.[15]  Overall, Burr weathered the criticism and won re-election.  Furthermore, the election of President Donald Trump in 2016 put an end to the Timmons-Goodson nomination.

With a new Republican president and two Republican senators, the stars seemed aligned for the swift confirmation of a nominee to the Howard seat.  Sure enough, on July 13, 2017, Trump renominated Farr, over ten years after his initial nomination by Bush.  However, since then, Farr’s second nomination has bogged down over criticism of his work defending voting restrictions in North Carolina, and his alleged role in illegal voter suppression while working on the Helms campaign in 1990.[16]  As a result, Farr’s nomination has twice passed through the Judiciary Committee on narrow party-line votes, and has still not been called up by Senate Majority Leader Mitch McConnell.

Furthermore, Farr’s confirmation on the floor isn’t assured.  With Sen. John McCain frequently absent for medical reasons, McConnell has only a narrow 50-49 margin on controversial votes.  With Democrats united against Farr, McConnell cannot afford any defections if he intends to confirm Farr.  Thus, with the NAACP and other groups lobbying moderate Republicans heavily,[17] the outcome is still uncertain.  And as such, the neverending vacancy goes on, still unfilled.

[1] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[2] See Ari Berman, He Defended North Carolina’s Voter Suppression Law. Now He’s Set to Become a Federal Judge There, Mother Jones, Oct. 18, 2017, https://www.motherjones.com/politics/2017/10/he-defended-north-carolinas-voter-suppression-law-now-hes-set-to-become-a-federal-judge-there/.

[3] See id.

[4] Archive of Federal Judicial Vacancies, http://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2007/02/vacancies/pdf (last visited March 11, 2018).

[5] WRAL, Hagan Looks to Split U.S. Attorney Job, Capitol Broadcasting Company, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[6] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).  

[7] Patrick Gannon, Race, Politics Keep Judge’s Seat Empty for 7 Years, Star News, Jan. 12, 2013, http://www.starnewsonline.com/news/20130112/race-poltics-keep-judges-seat-empty-for-7-years.

[8] See id.

[9] See id.

[10] Press Release, Office of President Barack Obama, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[11] Jennifer Bendery and Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huff. Post, Jan. 8, 2014, https://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.  

[12] Press Release, Office of President Barack Obama, President Obama Nominates Eight to Serve on the United States District Courts (April 26, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[13] Press Release, Office of Sen. Richard Burr, Sen. Burr’s Statement on the White House’s Nomination for the Eastern District Judge (April 29, 2016) (on file at https://www.burr.senate.gov/press/releases/).  

[14] CBC Editorial, Burr Needs to End Political Games, Back Timmons-Goodson Judicial Appointment, WRAL.com, Oct. 5, 2016, http://www.wral.com/editorial-burr-needs-to-end-petty-political-games-back-timmons-goodson-judicial-appointment/16083659/.  

[15] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[16] See Alexander Nazaryan, President Trump is Rewarding a Lawyer Who Has Fought to Block the Black Vote with a Plum Federal Judgeship, Newsweek, Sept. 21, 2017, http://www.newsweek.com/trump-north-carolina-farr-voter-suppression-668649.

[17] See Anne Blythe, Trump’s Pick on Bench is ‘Tantamount to Hitler Wreacking Havoc’ Among Jews, NAACP Leader Says, News & Observer, Mar. 5, 2018, http://www.newsobserver.com/news/local/article203587414.html.

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Dominic Lanza – Nominee for the U.S. District Court for the District of Arizona

Generally, when a well-respected U.S. Attorney makes calls on behalf of your nomination, it helps you stand apart from the crowd.  However, such calls may have cost Dominic Lanza a nod for the Ninth Circuit.  As such, a nomination to the U.S. District Court for the District of Arizona serves as Lanza’s consolation prize.

Background

Dominic William Lanza was born in Seattle in 1976.  Lanza attended Dartmouth University, graduating summa cum laude in 1998.[1]  While in college, Lanza was a student athlete, playing football.  After graduation, Lanza spent a year in New York City working as a Sales and Trading Associate at the investment firm, D.E. Shaw & Associates.[2]

In 1999, Lanza matriculated at Harvard Law School, graduating cum laude in 2002.[3]  He then clerked for Judge Pamela Rymer on the U.S. Court of Appeals for the Ninth Circuit.  Following his clerkship, Lanza joined the Los Angeles Office of Gibson Dunn as an associate.[4]

In 2008, Lanza joined the U.S. Attorney’s Office for the District of Arizona as an Assistant U.S. Attorney.[5]  In 2012, Lanza was promoted to be Chief of the Financial Crimes and Public Integrity Section, and in 2015, became the Chief Assistant U.S. Attorney.[6]  Lanza serves in that capacity today.

History of the Seat

Lanza has been nominated to the U.S. District Court for the District of Arizona, to a seat vacated on September 1, 2016, by Judge Susan Ritchie Bolton’s move to senior status.  However, this was not the seat that Lanza was originally recommended for.  In April 2017, Lanza was recommended by Arizona senators John McCain and Jeff Flake, both Republicans, to fill an Arizona vacancy on the U.S. Court of Appeals for the Ninth Circuit, a seat vacated on October 11, 2016, by Judge Barry Silverman.[7]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[8]

Furthermore, Lanza’s mentor, former U.S. Attorney Paul Charlton, proved to be a liability as well.[9]  The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[10]  Allegedly, one source close to the vetting process noted: “That Lanza dude is toast.”[11]  As such, no action was taken on Lanza’s nomination for several months after his name was submitted to the White House.  Finally, the Administration nominated Lanza to the District Court on January 24, 2018.

Political Activity & Memberships

Lanza has not been particularly active in the political sphere.  He has two donations on record: $250 respectively to former Sen. Jon Kyl (R-AZ) and Sen. Tom Cotton (R-AR).[12]

Lanza has been a member of the Arizona Republican Lawyers’ Association from 2011 to the present.[13]  He has also been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 2015.[14]

Legal Experience

Lanza has spent the first six years of his legal career in private practice, working at Gibson Dunn in their constitutional and appellate law practice.  He then spent the next ten years of his career as a federal prosecutor in Arizona.

Private Practice

From 2002 to 2008, Lanza worked as an associate in the Los Angeles office of Gibson Dunn.[15]  In the constitutional and appellate law practice at the firm, Lanza handled a number of product liability lawsuits, including seeking constitutional defenses to punitive damage awards.[16]  While at the firm, Lanza also served as associate trial counsel in six cases.[17]

At the firm, Lanza participated in a number of appeals seeking to reduce or eliminate large awards of punitive damages awarded against corporations.  In one case, Lanza was part of the legal team that successfully reversed a $28 billion punitive damage award against the tobacco company Phillip Morris.[18]  In another case, Lanza and his fellow attorneys successfully reversed a $10 million punitive damage award against Ford automobiles for concealing vehicle histories.[19]

U.S. Attorney’s Office

From 2008, Lanza has served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Arizona, and has served as the Chief Assistant U.S. Attorney since 2015.  In this role, Lanza handles many of the administrative matters in the U.S. Attorney’s Office and serves as an advisor to the U.S. Attorney.[20]  As an AUSA, Lanza has tried seven cases as lead or co-counsel.[21]

Among the cases Lanza has worked on, the most famous is likely that of Jared Lee Loughner, the Tucson mass shooter who murdered six people, including Chief U.S. District Judge John Roll, and injured 13 others, including then Congresswoman Gabrielle Giffords, in 2011.[22]  In the case, Lanza managed to secure an emergency order from the court keeping the government’s investigative materials secret in response to media inquiries.[23]

In addition to his trial work, Lanza has also argued 11 cases before the Ninth Circuit and has handled several appeals including government appeals and defending convictions.[24]  In one unusual case, Lanza was charged with defending the shackling of defendants in Arizona federal court, notwithstanding a Ninth Circuit decision indicating that such shackling was unconstitutional.[25]  While the Ninth Circuit had held in United States v. Sanchez-Gomez that defendants cannot be placed in shackles without individualized determinations from the district court,[26] the court placed the mandate on hold pending a writ of certiorari.[27]  With the mandate placed on hold, many Arizona federal judges (and the government) argued that the Ninth Circuit decision was not binding.[28]  However, the Ninth Circuit granted a mandamus petition requiring the unshackling of defendants, noting that the lack of issuance of the mandate does not prevent the Ninth Circuit decision from being binding.[29]

Writings

Lanza has not been a prolific writer, having only three major articles to his name: two that he authored as a student, and one that he wrote as a lawyer.  Nevertheless, all three pieces yield insights into Lanza’s legal philosophy and his future leanings as a judge.

Global Warming

In 2018, Dominic Lanza co-authored an article with Gibson Dunn partner Theodore Boutrous criticizing the use “public nuisance” suits seeking to combat global warming.[30]  The article, written around the time that Boutrous was defending automakers sued by California for contributing to global warming,[31] argues that tort litigation seeking to combat global warming “represent a naked and wholly improper attempt to override [legislative] policy judgments.”[32]  The article also argues that federal common law does not allow for nuisance suits based on global warming.[33]  It instead suggests that the role of federal courts should be to review regulatory efforts to combat global warming under the framework of Massachusetts v. EPA, not to allow tort claims based on the effects of climate change.[34]

Race-Based Redistricting

As a law student, Lanza authored an article discussing recent Supreme Court jurisprudence on race-based redistricting.[35]  The article discusses the Supreme Court decisions in Shaw v. Reno and Hunt v. Cromartie, where the Supreme Court upheld North Carolina’s majority-minority 12th District.[36]  Lanza argues that Justice Breyer’s majority opinion in Cromartie is inconsistent with the prior decisions in Shaw I and Shaw II.[37]  Specifically, Lanza argues that Cromartie fails to place meaningful limitations on the legislature’s use of race in redistricting, noting that the Court has “radically reduced the scrutiny applied to legislative districting decisions.”[38]  Instead, Lanza notes:

“If a majority of the Court wishes to overturn Shaw II, it should do so explicitly.”[39]

Race-Based Challenges to Athletic Eligibility Requirements

In this article, Lanza analyzes recent Third Circuit decision in Cureton v. NCAA, holding that minimum standardized test score requirements for student athletes did not violate Title VI of the Civil Rights Act of 1964.[40]  Cureton involved a challenge to the NCAA requirements, which the plaintiffs argue disproportionately affected racial minorities.[41]  Lanza notes that, in dismissing the plaintiffs’ challenge, the Third Circuit did not address the merits of the claim, instead ruling that Title VI did not apply to the NCAA.[42]  Nevertheless, Lanza argues that the NCAA requirements should pass muster even if one accepts the disparate impact theory the plaintiffs have advanced, noting:

“Thus, because Proposition 16’s test score requirement is essential in advancing the laudable goal of safeguarding academic integrity, and because no equivalent, less discriminatory alternatives exist, the preferences of standardized-test critics must necessarily be subordinated.”[43]

Overall Assessment

Lanza’s background as a federal prosecutor, his membership in the Federalist Society and Republican groups, and his legal writings all suggest a conservative political orientation.  However, they do not necessarily reflect a discernable judicial philosophy.  In his articles on global warming and on Title VI, Lanza suggests that judges should steer well clear of making decisions with policy ramifications, an implicit endorsement of judicial restraint.  However, in his article on race-based redistricting, Lanza criticizes the Supreme Court for giving legislatures “hyper-deference,” suggesting an endorsement of an active role for judges, even in “political” spheres such as redistricting.  As such, Lanza’s judicial philosophy is difficult to discern.

Regardless, Lanza’s breadth of legal experience in both criminal and civil law is clear.  Furthermore, while the Trump Administration may have viewed it as a negative, Lanza’s association with Paul Charlton, who is well-respected in Arizona legal circles, will likely be a net positive in the confirmation process.

Overall, there is nothing politically disqualifying in Lanza’s background.  He will likely be confirmed in due course and will add a conservative voice to the Arizona trial bench.

[1] Sen. Comm. on the Judiciary, 115th Cong., Dominic W. Lanza: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. at 1.

[4] See id.

[5] See id. at 2.

[6] See id.

[7] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[8] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[9] See Jeremy Duda, Being Judged by the Company You Keep, Yellow Sheet Report, May 12, 2017.

[10] See id.

[11] See id.

[13] See Lanza, supra n. 1 at 5.

[14] See id.

[15] See id. at 2.

[16] See id. at 12.

[17] See id. at 13-14.

[18] See Bullock v. Phillip Morris USA, Inc., 159 Cal. App. 4th 655 (2008).

[19] But see Johnson et al. v. Ford Motor Company, 113 P.3d 82 (Cal. 2005) (reversing and remanding California Court of Appeals ruling eliminating punitive damages).

[20] See Lanza, supra n. 1 at 12-13.

[21] See id. at 14.

[22] See United States v. Loughner, CR 11-187-TUC-LAB (D. Ariz.).

[23] See id. 

[24] Compare United States v. Rodman, 776 F.3d 638 (9th Cir. 2015) (affirming defendant’s conviction) to United States v. Aguilar-Reyes, 653 F.3d 1053 (9th Cir. 2011) (reversing sentence on government appeal).

[25] In re Zermeno Gomez, 868 F.3d 1048 (9th Cir. 2017).

[26] See 859 F.3d 649, 661 (9th Cir. 2017) (en banc).

[27] See Zermeno Gomez, supra n. 25 at 1050.

[28] See id. at 1051.

[29] See id. at 1053.

[30] Theodore J. Boutrous Jr. and Dominic Lanza, Global Warming Tort Litigation: The Real “Public Nuisance”, 35 Ecology L. Currents 80 (2008).

[31] See Abigail Goldman, He’s a Hired Gun of the Highest Caliber, Los Angeles Times, June 24, 2007, http://articles.latimes.com/2007/jun/24/business/fi-sunprofile24.  

[32] See Boutrous, supra n. 29 at 86.

[33] See id. at 87.

[34] See id. at 88.

[35] Dominic Lanza, Leading Cases, Voting Rights – Race-Based Redistricting, 115 Harv. L. Rev. 386 (2001).

[36] See id. (citing 526 U.S. 541 (1999)).

[37] Id. at 393.

[38] See id. at 396.

[39] Id.

[40] Dominic W. Lanza, Recent Cases, Title VI – Third Circuit Upholds Viability of Standardized Test Scores as a Component of Freshman Athletic Eligibility Requirements, 114 Harv. L. Rev. 947 (2001).

[41] See Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999), rev’ing 37 F. Supp. 2d 687 (E.D. Pa. 1999).

[42] See Lanza, supra n. 32 at 951.

[43] See id. at 953.

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John Nalbandian – Nominee for the U.S. Court of Appeals for the Sixth Circuit

So far, the Trump Administration has moved relatively quickly to fill vacancies on the Court of Appeals.  However, the nomination of John Nalbandian to the Sixth Circuit was seemingly finalized in supernatural speed, coming just two days after Judge John Rogers announced his intent to move to senior status.  This speed is a sign that Nalbandian was being vetted before the vacancy was announced, potentially for the Ohio seat vacated by Judge Alice Batchelder.

Background

John Baylor Nalbandian was born in 1969 in Fort Ord, California.[1]  After getting a B.S. magna cum laude from the University of Pennsylvania and a J.D. from the University of Virginia Law School, Nalbandian clerked for Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.[2]  After his clerkship, Nalbandian joined the Washington D.C. office of Jones Day.

In 2000, Nalbandian moved from Jones Day to the Cincinnati office of Taft Stettinius & Hollister LLP.[3]  He became a partner there in 2004 and continues to serve in that capacity today.

In 2010, upon the recommendation of Senate Republican Leader Mitch McConnell (R-KY), Nalbandian was appointed by President Obama to serve on the board of directors of the State Justice Institute (SJI), a nonprofit organization focused on improving resources for judges and court staff.[4]  Nalbandian continues to serve as a director.

History of the Seat

Nalbandian has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in January 2018 with Judge John Rogers’ announcement that he would move to senior status upon confirmation of his successor.  However, Nalbandian had been under consideration for a federal judgeship as far back as November 2016, when he first began talking to McConnell about a judicial appointment.[5]  While he interviewed with McConnell in January 2017, he wasn’t contacted by the White House until September (approximately when Judge Alice Batchelder announced her move to senior status in an Ohio seat).  Nalbandian interviewed with the White House and the Department of Justice in October 2017, and was nominated on January 24, 2018.

Political Activity

Nalbandian is a Republican and has a long history with the Kentucky Republican party, including serving as the Party’s General Counsel between 2010 and 2016, and serving as a Delegate to the 2016 Republican National Convention.[6]  Nalbandian also advised and volunteered on the campaigns of several Kentucky Republicans including those of McConnell, Sen. Rand Paul, Rep. Andy Barr, Rep. James Comer, and former State Senate President David Williams.[7]

Nalbandian has also been an active donor to Republicans, having given almost $15000 over the last thirteen years.[8]  Barr has been a particular beneficiary of the donations, having received $3250 of the donations.[9]  Nalbandian has also donated to other Republicans including Senators Todd Young and Tom Cotton.[10]

Nalbandian has been active in the Federalist Society for the past twenty seven years, including serving as President of the Cincinnati Lawyers Chapter from 2000 to 2008, and serving as an Advisory Board Member from 2010 to the present.[11]

Legal Experience

Nalbandian has practiced law for around twenty five years, cutting his teeth by representing a habeas petitioner as a law student at the University of Virginia.[12]  In his time at Jones Day and at Taft Stettinius, Nalbandian has specialized in appellate practice, representing businesses on commercial, environmental, labor, and other matters.[13]  For example, Nalbandian helped defend the brand name manufacturers of Percocet in a series of class-action lawsuits borne out of injuries caused by the drug.[14]  Throughout his career, Nalbandian has handled a vast array of cases.  We summarize some of them below:

Criminal Defense

Nalbandian has developed a thriving criminal defense practice, working on many white collar criminal defense matters.[19]  Notably, he has also represented capital and habeas defendants pro bono.  For example, Nalbandian represented an Ohio death penalty petitioner in seeking a new sentencing hearing.[20]  In challenging the death penalty sentence, Nalbandian successfully argued that the petitioner did not receive the effective assistance of his counsel at the penalty phase of his trial, leading to the Sixth Circuit reversing the death penalty on a 2-1 vote.[21]

Environmental Pollution & Toxic Torts

Nalbandian has represented many businesses in suits over environmental pollution or toxic torts, typically seeking to shield the business from penalties or civil damages.  In one suit, Nalbandian represented a steel company seeking to reverse damages assigned to plaintiffs based on “fugitive dust” that had migrated to the plaintiffs’ properties.[15]  However, Nalbandian has also represented plaintiffs in contamination and toxic tort actions, in one case, suing on behalf of plaintiffs who had consumed contaminated water in West Virginia.[16]

Local Government

Throughout his career, Nalbandian has also occasionally represented municipalities in zoning and other such suits.[17]  In one of his more prominent cases, Nalbandian represented Northern Ohio municipalities in an unsuccessful challenge to the regional stormwater management program implemented by the Sewer District.[18]

Election Law

As part of his election law practice, Nalbandian represented Hamilton County Judge John Williams in a contentious election challenge.[22]  In the 2010 elections, Williams was challenged by Democrat Tracie Hunter, and was certified as the winner with a narrow lead in the final vote count.  However, Hunter challenged the results, arguing that 849 provisional ballots were erroneously thrown out due to poll worker error.[23]  When outgoing Ohio Secretary of State Jennifer Brunner, a Democrat, stepped in to offer guidance in reviewing the 849 disputed ballots, Nalbandian sued on Williams’ behalf, successfully getting the Republican-dominated Ohio Supreme Court to step in and block Brunner’s guidance.[24]

In response to the Ohio Supreme Court’s intervention, Hunter filed a federal suit, and U.S. District Judge Susan Dlott granted a preliminary injunction in Hunter’s favor to count the disputed ballots.[25]  When Nalbandian appealed, a divided panel of the Sixth Circuit affirmed the injunction,[26] and with the recounting of 149 additional ballots, Hunter was declared the winner of the election.

Academic Judgment

In one of his more unusual cases, Nalbandian represented the Case Western Reserve University in seeking to revoke a medical school diploma given to one of its students.[27]  The plaintiff in the case, Amir Al-Dabagh, had fulfilled all the academic requirements for a medical degree.[28]  However, the Medical School declined to give him a degree, citing numerous “professionalism” violations, including incurring a DUI in North Carolina.[29]  Al-Dabagh filed suit, arguing that the failure to give him a medical degree violated its state law duties of fair dealing and good faith, and U.S. District Judge James Gwin ruled in his favor.[30]  However, Nalbandian filed an appeal and was able to convince the Sixth Circuit to reverse the ruling.  Writing for the court, Judge Jeffrey Sutton found that the Medical School’s decision not to award the degree based on “professionalism” was an “academic judgment” that could not be second-guessed by the court.[31]

Overall Assessment

Kentucky nominees to the Sixth Circuit have not had the smoothest confirmations under Trump, with both Judges Thapar and Bush being confirmed by narrow partisan margins.  While Nalbandian has already been unanimously confirmed by the senate once, this does not necessarily portend an easy confirmation for him this time around.  The State Justice Institute, while important, focuses on education rather than shaping law or policy.  As such, it is unlikely that Democrats, who were willing to confirm Nalbandian to the SJI, will be equally accommodating when the prize is a lifetime appointment one step below the supreme court.

Furthermore, Nalbandian is active in the Federalist Society, and the conservative legal organization has become a a bete noire for Senate Democrats.  As such, it is likely that Nalbandian will see significantly more opposition to this nomination than he did eight years ago.

That being said, unlike the previous two nominees to the Sixth Circuit from Kentucky, Nalbandian lacks both a judicial paper trail and a bevy of controversial statements that can be mined for opposition research.  Furthermore, unlike most Trump nominees, Nalbandian has worked with diversity-based legal organizations, including as an active member of the Greater Cincinnati Minority Counsel Program  and the National Asian Pacific American Bar Association.  His active role in the Asian American legal community and his pro bono work should also deflect criticism.

Overall, while Nalbandian may not see the unanimous support he received eight years ago, he will likely be confirmed with a bipartisan majority.  His expected confirmation will make him the second Asian Pacific American on the Sixth Circuit, and will help secure the court’s conservative majority.

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

[2] Id. at 2.

[3] See id.

[4] See The Salt Lake Tribune, Utah Court Official Appointed by Obama to National Board, The Salt Lake Tribune, July 1, 2010.

[5] See Nalbandian, supra n. 1 at 25.

[6] See id. at 11.

[7] See id. at 11-12.

[9] See id.

[10] See id.

[11] See Nalbandian, supra n. 1 at 4.

[12] In re: Burnley, 998 F.2d 1 (4th Cir. 1992).

[13] See Nalbandian, supra n. 1 at 13.

[14] See Germain et al. v. Teva Pharmaceuticals USA Inc., 756 F.3d 917 (6th Cir. 2014).

[15] Ellis et al. v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004).

[16] See Rhodes et al. v. E.I. Du Pont De Nemours & Co., 636 F.3d 88 (4th Cir. 2011).

[17] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[18] See Northeast Ohio Regional Sewer Dist. v. Bath Twnship, 44 N.E.3d 246 (Ohio 2015).

[19] See, e.g., United States v. Romanini, 502 Fed. Appx. 503 (6th Cir. 2012).

[20] See Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003).

[21] See Frazier v. Huffman, 343 F.3d 780, 801 (6th Cir. 2003).

[22] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[23] See id. at 226.

[24] The State ex rel. Painter et al. v. Brunner, 941 N.E.2d 782 (Ohio 2011).

[25] See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-00820-Dlott, 2010 U.S. Dist. LEXIS 128434 (S.D. Ohio, Nov. 22, 2010).

[26] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[27] See Al-Dabagh v. Case Western Reserve University, 777 F.3d 355 (6th Cir. 2015).

[28] See id. at 358.

[29] See id.

[30] See id. at 358-59.

[31] See id. at 360.

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Gordon Giampietro – Nominee for the U.S. District Court for the Eastern District of Wisconsin

Last year, Gordon Giampietro was nominated by President Trump to be a federal judge upon the recommendation of Wisconsin’s U.S. Senators, indicating a comfortable nomination.  As such, when news broke of controversial statements made by Giampietro in interviews and online comments and of allegations that the statements were not properly disclosed in the nomination process, many felt that this latest controversy had derailed his nomination.  However, even without the reported statements, Giampietro’s record shows involvement in several political flashpoints, suggesting that his confirmation was always unlikely to be smooth.

Background

Gordon Peter Giampietro was born on October 19, 1965, in Washington D.C.  Giampietro spent much of his formative years in D.C., attending The Catholic University of America and The Catholic University Columbus School of Law, getting his J.D. in 1992 with a Comparative and International Law Certificate.  In between his undergraduate education and law school, Giampietro worked at The Connecticut Avenue Club Hotel as the Assistant Manager.[1]  After graduating law school, Giampietro moved to Wisconsin to clerk for Judge Rudolph Randa on the U.S. District Court for the Eastern District of Wisconsin, serving as the newly appointed conservative’s first law clerk.[2]

After his clerkship, Giampietro joined the Milwaukee Office of Michael, Best & Friedrich LLP as a Litigation Associate.[3]  In 2000, he was named a Litigation Partner at the firm.  In 2002, Giampietro left the firm to join the U.S. Department of Justice Criminal Division, serving as an Assistant U.S. Attorney in the Eastern District of Wisconsin.[4]  Additionally, in 2007, Giampietro became the Bankruptcy Fraud Coordinator for the Office.  In 2010, Giampietro gave up that position and became the Criminal Health Care Fraud Coordinator and Deputy Elections Officer.[5]

In 2015, Giampietro left the government to join the Northwestern Mutual Life Insurance Company as Assistant General Counsel.[6]  He serves in that role today.

History of the Seat

Giampietro has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on February 5, 2016, by Judge Rudolph Randa (for whom Giampietro had clerked).  Interestingly, Randa had expressed his interest in moving to senior status back in 2007, and the Bush Administration had nominated state judge Timothy Dugan to replace him.[7]  However, Dugan was never confirmed by the then-Democratic senate, and, after the election of President Obama, Randa reversed his desire to go on senior status.

In February 2017, Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively, announced the renewal of their bipartisan Judicial Nominating Commission.  Giampietro submitted an application to the Committee on May 30th.[8]  He interviewed with the Committee in July and his name, alongside three others, was submitted to the White House in August 2017.[9]  After interviews with the White House Counsel’s Office and the Department of Justice, Giampietro was nominated on December 20, 2017.

Legal Experience

Excluding his time as a clerk, Giampietro has split his career between working as a federal prosecutor and working in private practice.

Private Practice

In his first position out of his clerkship, Giampietro managed corporate litigation as an associate and a partner at Michael Best.[10]  Notably, Giampietro was able to dismiss a tort action brought by the estate of a worker killed by a vertical boring mill, by successfully arguing, as a matter of first impression, that Wisconsin law did not permit suits against brokers of second hand industrial equipment.[11]

In addition to his corporate work, Giampietro also participated in more controversial cases.  For example, Giampietro represented the Republican leaders in the Wisconsin House and Senate in the lawsuit over Wisconsin’s legislative districts.[12]  Giampietro also represented the Metropolitan Milwaukee Association of Commerce in an unsuccessful challenge to a Milwaukee labor ordinance requiring county contractors to sign “labor peace agreements” with unions.[13]

However, Giampietro’s most politically charged case was his representation of Munir Hamdan, a grocery store owner seeking the right to carry a concealed weapon to protect his store.[14]  Hamdan was charged with carrying a concealed weapon in violation of Wisconsin law, but his conviction was reversed in a 5-2 vote of the Wisconsin Supreme Court, who held that Hamdan’s conviction violated the Right to Bear Arms in the Wisconsin Constitution.[15]

Department of Justice

From 2002 to 2015, Giampietro worked as a prosecutor at the Department of Justice through the U.S. Attorney’s Office for the Eastern District of Wisconsin.  In this role, Giampietro handled the prosecutions of both violent offenders and white collar criminals.[16]  Notably, Giampietro prosecuted Kimberly Prude, a convicted felon, for casting a ballot in the 2004 elections.[17]  Prude had cast a ballot while on supervised release from a forgery conviction.[18]  Upon discovering that she was ineligible to vote, Prude contacted the Election Commission and attempted to withdraw her ballot only to be told “not to worry about it.”[19]  Despite the fact that she herself had reported the mistake and had attempted to withdraw the ballot, Prude was nonetheless prosecuted and convicted of voter fraud.[20]  During the trial, Prude was not permitted to present witnesses to testify as to her efforts to withdraw her ballot, while the government was allowed to testify on the subject.[21]  On appeal, the Seventh Circuit agreed that Judge Rudolph Randa had erred in his evidentiary rulings but found that the errors did not require reversal under “plain error” review.[22]

Giampietro was also central to a conflict between the U.S. Attorney’s Office and federal judge J.P. Stadtmueller.  In 2008, Giampietro was prosecuting Rashid Salahuddin for being a felon in possession of a firearm, a case that had, at the time, been pending for three years.[23]  On October 9, 2008, Stadtmueller, who was overseeing the case, called U.S. Attorney Steven Biskupic and Federal Defender Daniel Stiller into his chambers for a meeting without the court reporter present.[24]  At the meeting, Stadtmueller expressed concern as to the length and litigation costs in the case and suggested that the parties resolve the issue without further litigation.[25]  In response to this meeting, the U.S. Attorney’s Office filed a motion for Stadtmueller to recuse himself from the case, alleging bias against Giampietro and the U.S. Attorney’s Office.[26]  Stadtmueller, a former U.S. Attorney, declined to recuse himself and granted motions to suppress in the defendant’s favor.[27]  Giampietro appealed the recusal motion to the Seventh Circuit, who forced Stadtmueller off the case, citing that Stadtmueller “suggested that the case was an embarrassment to the justice system and an inefficient allocation of taxpayer resources” in his remarks.[28]  The removal prompted Stadtmueller to take the unprecedented step of declining all future criminal cases, suggesting that the U.S. Attorney’s Office was using recusal to engage in “judge shopping.”[29]

Writings, Interviews, and Expressed Views

Over his career, Giampietro has occasionally commented on issues of law and policy, both in writing, and through interviews and speeches.

Expressed Political Views in Interviews

On February 2015, 2018, Zoe Tillman at Buzzfeed broke the story that Giampietro had, in his writings and interviews, made “disparaging comments about diversity, same-sex relationships, and birth control.”[30]  Specifically, in a 2015 radio interview, Giampietro stated that it was “irrefutable” that children were best-raised by heterosexual couples and that same-sex relationships were troubled.[31]  In other comments, Giampietro referred to the birth control pill as an “assault on nature” and suggested that diversity was “code for relaxed standards.”[32]  In response to the story, Baldwin indicated that the statements had not been disclosed to the Evaluation Commission and that they “raise serious questions about whether this nominee would be able to serve as a fair and impartial judge.”[33]

In response, Giampietro wrote to Baldwin privately arguing that the article “reads like an attack on my Catholic faith.”[34]  Additionally, five Wisconsin based Catholic bishops wrote to Baldwin arguing that Giampietro was “not receiving a fair hearing because of his Catholic faith.”[35]  Furthermore, members of the Evaluation Commission disagreed as to the significance of the undisclosed statements, with Republican member Rick Esenberg arguing that the statements were irrelevant while Democratic member Barbara Quindel indicating that the Commission would not have recommended Giampietro if they had known about the statements.[36]

“Moral Force” of Judicial Decisions

In 2003, the Wisconsin Supreme Court, in a 4-3 decision, upheld a $3.5 million punitive damages award against an insurance company, finding as a matter of law, that the insurance company had acted in bad faith in failing to inform the insured of a mutual mistake in the insurance contract.[37]  The decision was criticized by some attorneys, including many conservatives.[38]  In response to the criticism, George Burnett, President of the Wisconsin Bar, authored a President’s Message urging members of the Bar to defend the Court against “political attacks.”  In response, Giampietro wrote a response, arguing that Burnett overstepped in arguing that Courts rule by “moral force.”[39]  He noted that “[w]hen the judicial branch abandons ‘the idea of law,’ it forfeits the right to claim that its decisions are imbued with a ‘moral force.’”[40]  In response, Burnett countered that Giampietro’s piece misinterpreted his own and noted that “when one ascribes political motives as a substitute for a legal critique of judicial decisions, one undermines public confidence in our judiciary.”[41]

Political Activity & Memberships

On May 22, 2017, Giampietro donated $1000 to Sen. Ron Johnson.[42]  The contributions were made approximately a week before Giampietro applied for a federal judgeship with Johnson and Baldwin’s Selection Committee.

Giampietro has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 1989, serving as the President of the Milwaukee Chapter between 1995 and 1997.[43]

Overall Assessment

It is undeniable that Giampietro is an exceptional lawyer, with significant experience in both civil and criminal law.  As such, it is unlikely that critics of the nomination will raise substantive objections to his qualifications.  Instead, they may object to Giampietro’s temperament and impartiality, relying on the statements reported on by Buzzfeed, his membership in the Federalist Society, his involvement in politically charged cases including the Hamdan case, and, potentially, his conduct in the Prude and Salahuddin cases.

In contrast, Giampietro’s supporters are likely to try a tactic that worked well for then-nominee Amy Coney Barrett in 2017: accusing Giampietro’s critics of anti-Catholic bias.  They will argue, as Giampietro already has, that his views on LGBT relationships and birth control are integral to his faith and that attacking those views is tantamount to imposing a religious test for federal judges.

Ultimately, the Constitution forbids a religious test for public office, and, additionally, public opinion stands strongly by that principle.  As such, to disqualify Giampietro, critics will have to make an additional point in their case, that Giampietro would be unable to set aside his views (religious or otherwise) to rule based on the law and precedent.  The future of Giampietro’s nomination ultimately depends on whether Sen. Baldwin is convinced on this point.

[1] Sen. Comm. on the Judiciary, 115th Cong., Gordon Giampietro: Questionnaire for Judicial Nominees 2.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Giampietro had applied to fill that vacancy but was not selected.

[8] See id. at 28.

[9] See id.

[10] See id. at 12.

[11] See Geboy v. TRL, Inc., 976 F. Supp. 1202 (E.D. Wis. 1997), aff’d, 159 F.3d 993 (7th Cir. 1998).

[12] See Arrington v. Elections Bd., 173 F. Supp. 2d 856 (E.D. Wis. 2001).

[13] See Metropolitan Milwaukee Assoc. Of Commerce v. Milwaukee Cnty., 201 F. Supp. 2d 942 (E.D. Wis. 2002).

[14] See State of Wisconsin v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

[15] See id. at 478 (concluding that the right to keep and bear arms is at an apex when protecting a home or a business).

[16] See Giampietro, supra n. 1 at 11.

[17] See United States v. Prude, 489 F.3d 873 (7th Cir. 2007).

[18] See id. at 875.

[19] Id.

[20] See id. at 876.

[21] See id. at 878-81.

[22] See id. at 881.

[23] See In re: United States of America, 572 F.3d 301, 305 (7th Cir. 2009).

[24] See id. 

[25] See id.

[26] See id. at 305-06.

[27] See United States v. Salahuddin, 607 F. Supp. 2d 930 (E.D. Wis. 2009), motion for reconsideration denied, 608 F. Supp. 2d 1061 (E.D. Wis. 2009).

[28] In re: United States of America, 572 F.3d 301, 311 (7th Cir. 2009).

[29] John Diedrich, U.S. Judge Stadtmueller Not Taking New Criminal Cases, Milwaukee Journal Sentinel, Aug. 23, 2009, http://archive.jsonline.com/news/milwaukee/54417857.html/.  

[30] Zoe Tillman, One of Trump’s Judicial Nominees Once Wrote That Diversity is “Code for Relaxed Standards”, BuzzFeed News, Feb. 15, 2018, https://www.buzzfeed.com/zoetillman/one-of-trumps-judicial-nominees-once-wrote-that-diversity?utm_term=.bunlpv57b#.ferWeqXP9.  

[31] See id.

[32] See id. (citing Giampietro’s comments).

[33] See id. (quoting Sen. Tammy Baldwin’s spokesperson).

[34] Bill Glauber and Daniel Bice, Catholic Bishops Call on Tammy Baldwin Not to Block Judicial Nomination of Gordon Giampietro, Milwaukee Journal Sentinel, Feb. 27, 2018, https://www.jsonline.com/story/news/politics/2018/02/27/catholic-bishops-call-tammy-baldwin-not-block-nomination-gordon-giampietro-federal-bench/377622002/.

[35] See id. (quoting Letter from The Bishops of the State of Wisconsin to Sen. Tammy Baldwin (Feb. 20, 2018)).

[36] See id.

[37] See Trinity Evangelical v. Tower Ins. Co., 661 N.W.2d 789 (Wis. 2003).

[38] See, e.g., Robert J. Dreps & Katherine Stadler, Insurance Bad Faith: Failure to Reform Policy Based on Agent Error May Constitute Bad Faith as a Matter of Law, Godfrey & Kahn S.C. Blog, May 28, 2003, http://www.gklaw.com/newsupdatespressreleases/Insurance-Bad-Faith-Failure-to-Reform-Policy-Based-on-Agent-Error-May-Constitute-Bad-Faith-as-a-Matter-of-Law-2003-05-28-1.htm (describing decision as “puzzling” and “at odds” with Supreme Court precedent).

[39] Gordon P. Giampietro, Ruling by Moral Force?, Wis. Lawyer (Feb. 2004), https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=77&Issue=2&ArticleID=734.  

[40] See id.

[41] See George Burnett, Response to Ruling by Moral Force?, Wis. Lawyer (Feb. 2004), https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=77&Issue=2&ArticleID=734.

[42] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=gordon+giampietro (last visited Feb. 25, 2018).

[43] See id. at 4.

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