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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