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.

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