UPDATED – Michael Truncale – Nominee for the U.S. District Court for the Eastern District of Texas

UPDATED 4/19 with comment from the Department of Justice

A longtime stalwart in the Texas Republican Party and a one-time Congressional candidate, Michael Truncale is a strongly conservative pick for the Eastern District of Texas.

Background

A native of Beaumont, Michael Joseph Truncale was born in 1957. Truncale received a B.B.A. from Lamar University in 1978 and an M.B.A. from the University of North Texas in 1980.[1] After two years as a Financial Analyst, Truncale attended Southern Methodist University School of Law, serving as Student Bar Association President there, and getting his J.D. in 1985.[2] He then joined the Beaumont firm Orgain, Bell & Tucker as an associate.[3] In 1991, Truncale became a partner at Orgain and still works as a partner there.[4]

History of the Seat

Truncale has been nominated to the U.S. District Court for the Eastern District of Texas, to a seat vacated on February 28, 2018, with Judge Ron Clark’s move to senior status.

In April 2017, Truncale applied for a judgeship with the Evaluation Committee set up by Texas Senators John Cornyn and Ted Cruz, both Republicans.[5] He interviewed with the Committee on April 20, 2017.[6] Truncale then interviewed with Cornyn and Cruz in May 2017, after which his name was submitted to the White House.[7] Truncale 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

Truncale has a long history of involvement with the Texas Republican Party, starting with working as a volunteer during the 1984 Presidential election. From 2006 to 2014, Truncale served on the Executive Committee of the Texas Republican Party.[8] He also was a Republican Delegate for John McCain in 2008 and a volunteer for the Trump campaign.[9]

Additionally, Truncale has been a generous donor to Republicans. Cornyn has been a particular beneficiary, having received almost $7000 in contributions over the last twelve years.[10] Truncale also donated $1000 to Cruz in 2015.[11]

In 2011, after congressional redistricting reshaped Texas’ 14th Congressional District and Rep. Ron Paul declined to run for re-election, Truncale was the first Republican candidate to announce his campaign.[12] In his campaign, Truncale emphasized his support for a Balanced Budget Amendment, cutting back federal regulations, and his opposition to the Affordable Care Act.[13] Ultimately, Truncale came in third in the Republican primary, securing 14.03% of the vote, and did not make the runoff, which was eventually won by then State Rep. Randy Weber.[14]

Legal Experience

Truncale has spent his entire career at the firm of Orgain, Bell & Tucker. At the firm, Truncale worked in civil defense, practicing in Texas state and federal courts. He also practiced white collar criminal defense in federal court.[15] Over the course of his legal career, Truncale has tried over 100 matters in state and federal court.[16]

Additionally, in 1992, Truncale became certified as a mediator under Texas law, mediating cases including contract disputes, tort actions, sexual harassment cases, and libel suits.[17] In 2017 and 2018, Truncale mediated nine different suits, including suits under tort law, landlord-tenant law, and contract law.[18]

Interviews and Expressed Views

As noted above, Truncale was a congressional candidate in the 2011-12 election cycle. As a candidate, Truncale ran as a conservative, expressing his desire for limited government, low spending and taxation, and the rollback of government regulation. While many of his interviews and speeches focus on general talking points and his support of conservative agenda items such as the repeal of the Affordable Care Act and the implementation of the Balanced Budget Amendments, a few also discuss his views on the judiciary and the Constitution, as well as more potentially controversial topics.

Judicial Philosophy

Truncale, who served on the Federal Judicial Evaluation Commission for Texas during the Obama Administration, has labeled himself a “strict constructionist.”[19] He has also described himself as a “conservative by conviction, not by convenience.” In an interview, Truncale described his judicial philosophy as follows:

“I do not believe that judges should legislate from the bench…and, really, overlook the plain meaning of the United States Constitution. That’s how we’ve got into a lot of trouble now. That’s why government has gotten too big. That’s why we’ve forgotten about the Tenth Amendment, which means that power is to be retained by the people and by the states, and that the people and the states don’t exist for the furtherance of the federal government…”[20]

Obamacare – Expansion of the Federal Government

In many of his speeches, Truncale has attacked Obamacare as a symbol of an expanding federal government. One talking point that Truncale would often repeat was that “If Obamacare is not allowed to stand, there is no limit to what the federal government can do to you.”[21]

In another forum, Truncale noted:

“It [Obamacare] is unconstitutional. There is no right in the Constitution for the government to tell you what kind of insurance to buy…”[22]

These remarks were made before the Supreme Court upheld the Obamacare individual mandate in June 2012.

Immigration

While Truncale, similar to other Republicans, advocated for stronger border enforcement during his campaign, one particular statement may draw controversy. At a CD14 Job Interview in 2012, Truncale was asked a question about border security. In responding, Truncale noted his desire in stronger border enforcement and “boots on the ground” near the Texas-Mexico border.[23] He appears to say the following:

“And, of course, we must…with regard to immigration…we must not continue to have the maggots coming in.”[24]

While it is unclear what exactly Truncale means through the use of the term “maggots”, or if that is the term he used, the context of his statement and his preface “with regard to immigration” suggests that he is using the term to refer to immigrants (or potentially undocumented immigrants). If this is what Truncale said and meant, his use of such inflammatory language may raise questions about his willingness and inability to treat litigants fairly, regardless of their background.

4/19 – UPDATE: According to Drew Hudson from the Department of Justice, Truncale used the word “magnets”, not “maggots.” Hudson notes that by magnets, Truncale was referring to incentives for illegal immigrants to enter the United States, such as entitlement programs. As such, the correct transcription, Hudson suggests, is:

“And, of course, we must…with regard to immigration…we must not continue to have the magnets coming in.”

Abortion

In a May 2012 forum, Truncale was asked about his views on government funding of Planned Parenthood. Truncale responded:

“I don’t think we should be funding Planned Parenthood. I’m pro-life.”[25]

In another interview, Truncale criticized the Obama Administration’s contraception mandate, describing it as an “assault on the Catholic Church.”[26]

Gun Rights

In an interview with the Police News, Truncale described himself as a supporter of Second Amendment rights, noting:

“Once you start chiseling away at the Second Amendment rights, once you start chiseling away the First Amendment rights, with regard to religion, then all of our liberties are at risk.”[27]

Overall Assessment

In evaluating Truncale’s overall record, it is important to separate his record as an attorney from his record as a congressional candidate. Looking solely at Truncale’s legal record, there is little to disqualify him from the federal bench. His experience in complex civil litigation prepares him well for many of the matters he would address as a federal court judge, while his experience with white collar defense would help him on the criminal side. Additionally, having spent his entire life in Beaumont, Truncale is intimately familiar with the legal community he would be serving as a judge.

However, the legal and political views expressed by Truncale during his congressional campaign may raise concerns regarding his impartiality on the bench. Truncale’s self-description as a “conservative by conviction” may be raised by critics to argue that, on the bench, he would be motivated by conservative ideology rather than fidelity to the law. ~~Additionally, Truncale may draw opposition for his use of the term “maggots” during a discussion of immigration.~~

UPDATE – 4/19: As noted above, the Department of Justice argues that Truncale actually used the term “magnets.” Obviously, if he actually said magnets, this should not bear on his qualification for judicial office.

Overall, Truncale’s nomination speaks to the danger of picking judges with electoral pasts. Statements made as candidates invariably have a way of coming back to haunt nominees.

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

[2] See id.

[3] See id. at 2.

[4] Id.

[5] See id. at 46.

[6] See id.

[7] See id.

[8] Id. at 5.

[9] See id. at 34.

[10] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?cand=&cycle=&employ=&name=michael+truncale&order=desc&sort=D&state=&zip= (last visited Apr. 18, 2018).

[11] See id.

[12] Sherry Koonce, Beaumont Attorney Seeks District 14 Seat, The Port Arthur News, Aug. 3, 2011.

[13] David Yates, Tort Reform Among Issues for Beaumont Attorneys Running for Congress, Southeast Texas Record, May 22, 2012.

[14] Sherry Koonce, Brazoria County Candidates Lead Republicans in District 14 Race, Port Arthur News, May 29, 2012.

[15] See Truncale, supra n. 1 at 38.

[16] Id.

[17] See id. at 36.

[18] Id. at 35-36.

[19] Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at https://www.youtube.com/watch?v=n1ztJk4m8P4).

[20] Michael Truncale, Interview with the Police News (Feb. 18, 2012) (available at https://www.youtube.com/watch?v=Kzb9XP3Xago).

[21] Michael Truncale, Candidate for U.S. House, Address to the Southeast Texas Tea Party (Apr. 3, 2012) (available at https://www.youtube.com/watch?v=7DBeSssCOCM). See also Michael Truncale, North Galveston County Chamber of Commerce Forum (Feb. 21, 2012) (available at https://www.youtube.com/watch?v=LMSs6Ld1ggw); Michael Truncale, Beaumont Chamber of Commerce Republican Candidate Forum (January 13, 2012) (available at https://www.youtube.com/watch?v=8Qqpe7VM_UI); Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at https://www.youtube.com/watch?v=n1ztJk4m8P4).

[22] Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at https://www.youtube.com/watch?v=uN7KCQ6RzIw).

[23] Michael Truncale, CD14 Job Interview (uploaded on May 23, 2012) (available at https://www.youtube.com/watch?v=Hr3rSPRTGJM).

[24] See id. at 1:31-1:36.

[25] Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at https://www.youtube.com/watch?v=HXUVd_Li-GM).

[26] Michael Truncale, Interview with the Police News (Feb. 18, 2012) (available at https://www.youtube.com/watch?v=Kzb9XP3Xago).

[27] See id.

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Judge Susan Brnovich – Nominee to the U.S. District Court for the District of Arizona

Judge Susan Brnovich, a well-respected state judge in Arizona, has been nominated to the federal bench upon the recommendation of Arizona’s Republican senators. It is a promotion she is likely to get.

Background

Brnovich was born Susan Marie Skibba in 1968 in Madison, WI. Brnovich graduated from the University of Wisconsin in 1990 and then jointly attended the University of Wisconsin Law School and Graduate School, getting a J.D. and an M.S. in Business in 1994.[1]

After graduation, Brnovich spent a year working as a bartender at an Applebee’s in Tempe, Arizona. She then joined the Maricopa County Attorney’s Office as a Deputy County Attorney.[2] In 2003, she joined the Maricopa County Superior Court as a Commissioner, handling certain uncontested cases and other assigned matters.[3] In 2009, Brnovich was appointed to the Court as a Superior Court Judge by Democratic Governor Janet Napolitano.[4] She continues to serve on that Court.

In 2012, Brnovich applied for appointment to the Arizona Supreme Court, for the vacancy opened by the elevation of Justice Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit.[5] Brnovich was not selected as one of the three finalists, and the seat went to Arizona Court of Appeals Judge Ann Scott Timmer.

History of the Seat

Brnovich has been nominated for a seat on the U.S. District Court for the District of Arizona. This seat opened on July 5, 2016, when Judge Neil Vincent Wake moved to senior status. As the seat opened with only six months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In early 2017, Brnovich applied for the judgeship with a selection committee put together by Senators John McCain and Jeff Flake.[6] She then interviewed with the committee in March and was selected unanimously as a finalist for the District Court, alongside five other candidates.[7]

Brnovich interviewed with the White House Counsel’s Office in April 2017.[8] President Trump nominated her on January 24, 2018.[9]

Legal Career

Brnovich has spent her entire pre-bench legal career as a Deputy County Attorney for Maricopa County. As a state prosecutor, Brnovich gained experience working with misdemeanors, felonies, and domestic violence cases.[10] During her seven years as a prosecutor, Brnovich tried 49 jury trials and one bench trial.[11]

Notably, Brnovich prosecuted and secured the death penalty against a father who burned his two year old daughter to death.[12] She also prosecuted Scottsdale abortion doctor Dr. John Biskind for the death of one of his patients after a ruptured uterus sustained during an abortion.[13] The doctor was found guilty of manslaughter and sentenced to five years in prison.[14]

Jurisprudence and Reversals

Brnovich has served as a Superior Court judge since her appointment in 2009. In this role, she serves as a primary trial judge, supervising criminal and civil cases. Over the last nine years, Brnovich has presided over approximately 100 trials, including approximately 70 jury trials.[15] Among her more notable decisions, Brnovich sentenced a man convicted of beating an 81-year-old monk to death to 21 years in prison,[16] tossed a Republican state legislative candidate off the ballot due to the failure to submit enough valid signatures,[17] and reversed the indictment of a Phoenix man charged with live streaming the rape of a passed-out woman, finding that the prosecution had erred by informing the grand jury that the defendant had exercised his right to remain silent.[18]

Over the course of her nine year tenure on the state bench, Brnovich has been reversed by higher courts in five cases.[19] Of those five reversals, in two cases, Brnovich’s rulings on issues of family support in divorce cases were reversed by the Arizona Court of Appeals.[20] Another two cases involved reversals of convictions based on trial errors made by Brnovich.[21] The final case reversed a sentence granted by Brnovich based on a subsequent superseding precedent that changed the law.[22]

Political Activity

Brnovich has a fairly limited political history, having donated to the Arizona Republican Party once in 2002.[23]

In 2014, while Brnovich was a sitting state judge, her husband Mark ran for and won the election to be Arizona’s Attorney General. During the election, Brnovich refrained from campaigning on behalf of her husband but did attend some election events and appeared in a campaign video.[24]

Overall Assessment

Looking at Brnovich’s overall record, it is unlikely that she will face much opposition in the confirmation process. With almost a decade on the state court bench and a dozen years of legal experience before, she is unquestionably qualified for a federal appointment. Furthermore, her record on the state bench is fairly uncontroversial and she has shown a willingness to rule against Republican interests. It is also unlikely that her prosecution of Dr. Biskind will be used against her, as her prosecution was based, not on the abortion itself, but on the lack of medical treatment offered to the patient. Furthermore, as a line prosecutor, Brnovich was likely not the last word on charging decisions in high profile cases.

Given these factors, Brnovich should be confirmed fairly comfortably, adding another conservative voice to the Arizona federal bench.

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Gary Grado, Arizona Supreme Court Vacancy Attracts 14 Applicants, The Arizona Capitol Times, July 19, 2012.

[6] Brnovich, supra n. 1 at 26.

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

[8] See Brnovich, supra n. 1 at 26.

[9] Press Release, White House, President Donald J. Trump Announces Tenth Wave of Judicial Candidates (Feb. 12, 2018) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-tenth-wave-judicial-candidates).

[10] See Brnovich, supra n. 1 at 18-19.

[11] Id. at 19.

[12] State v. Grell, CR1999-095294 (Ariz. Super. Ct.).

[13] State v. Biskind, CR1999-000198 (Ariz. Super. Ct.).

[14] Scottsdale Abortion Doctor Sentenced to Five Years in Prison, Arizona Daily Sun, May 4, 2001, http://azdailysun.com/scottsdale-abortion-doctor-sentenced-to-five-years-in-prison/article_d08ec172-9b1c-55da-9a1f-b94c9f9ada55.html.

[15] See Brnovich, supra n. 1 at 8.

[16] Mike Sakal, 21 Years for Man Convicted of Mesa Assault, Attempted Murder of Former Monk, East Valley Tribune, Feb. 27, 2012.

[17] Ben Giles, Judge Tosses Begody-Begay From Election Ballot, Arizona Capital Times, June 24, 2016.

[18] Gary Grado, Judge: Rape Suspect’s Rights Violated, East Valley Tribune, Jan. 30, 2010.

[19] Brnovich, supra n. 1 at 15-16.

[20] See Egizii v. Egizii, No. 1 CA-CV 17-0199 (Ariz. Ct. App. Apr. 12, 2018) (reversing and remanding for specific finding on how parties are to split the proceeds from the sale of the home); In re Marriage of Gersten, 219 P.3d 309 (Ariz. Ct. App. 2009) (reversing rulings on child support).

[21] See State v. Stuart, No. 1 CA-CR 12-0340 (Ariz. Ct. App. Aug. 13, 2013) (reversing conviction due to improper expert testimony); State v. Bunting, 250 P.3d 1201 (Ariz. Ct. App. 2011) (reversing conviction based on improper colloquy as part of defendant’s waiver of jury rights).

[22] State v. Thomas, No. 1 CA-CR 11-0250 (Ariz. Ct. App. July 12, 2012).

[23] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=susan+brnovich&cycle=&state=&zip=&employ=&cand= (last visited Apr. 18, 2018).

[24] See Brnovich, supra n. 1 at 17.

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Unconfirmed: Prof. Wenona Whitfield

“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

Judicial nominations don’t always fail due to high-profile political opposition. Sometimes, nominations fail because staffers or White House attorneys raise personal objections. The late Illinois Senator Paul Simon (no, not that Paul Simon) includes one such nomination story in his 1999 autobiography, that of Prof. Wenona Whitfield.[1]

When Bill Clinton was elected in 1992, the federal bench in Illinois had many vacancies, including two on the U.S. District Court on the Southern District of Illinois. To fill these vacancies, Simon created an advisory committee to choose candidates for the federal bench, alongside fellow Senator Carol Moseley-Braun.[2] To head the Committee for the Southern District, Simon chose Hiram Lesar, the former dean of the Southern Illinois University School of Law (SIU Law).[3] For his part, Lesar recommended one of the University’s property professors: Wenona Whitfield.

Whitfield had a long history in the legal community of Southern Illinois. She received a B.A. from Illinois Wesleyan in 1970 and a J.D. from SIU Law in 1977.[4] Just a few years later, Whitfield began teaching at SIU Law, teaching Property and Health Law.[5] Having had more than a decade of teaching experience by the time Clinton came into office, Whitfield’s nomination in March of 1995 made her poised to become the first African-American judge and the first woman on the Southern District of Illinois.[6]

Whitfield’s nomination was not initially considered controversial. The Chief Judge of the Southern District, Judge Phil Gilbert (a Republican appointed by President George H.W. Bush) strongly supported Whitfield, and her initial meetings with Republican members of the Senate Judiciary Committee went smoothly.[7] According to Simon, then-Chairman of the Senate Judiciary Committee Orrin Hatch (R-UT) assured him that he “would do everything he could to help [Whitfield].”[8]

However, Simon notes, Hatch’s staff put the brakes on the nomination, citing the fact that Whitfield was a recovering alcoholic.[9] Seeking to alleviate their concerns, Whitfield assured the Committee that she would resign before letting her condition affect her work on the bench.[10] This assurance, along with Simon’s lobbying, led to Hatch giving Whitfield a hearing on July 31, 1996.[11]

Unfortunately, the hearing, already late in the 1996 Presidential election cycle, did not lead to further movement on Whitfield’s nomination. According to Simon, Hatch indicated that he wanted to move Whitfield through the Committee, but couldn’t, due to opposition from Senate Majority Leader Trent Lott (R-MS).[12] However, when Simon took the matter directly to Lott, he contradicted Hatch’s account, noting that both his parents were alcoholics and that, as such, he had no opposition to Whitfield.[13] Lott promised to move Whitfield to a floor vote if she passed through Committee.[14] Upon going back to Hatch, he reiterated his position on Whitfield, maintaining that Lott was the barrier to a final vote.[15] Ultimately, the impasse was never settled and Whitfield was never confirmed by the Senate.

After his re-election, Clinton chose not to re-nominate Whitfield (her chances were likely hurt by Simon’s retirement). Instead, on April 28, 1998, Clinton nominated Illinois State Judge David Herndon to fill the seat. Herndon’s nomination moved relatively smoothly and he was unanimously confirmed on October 21, 1998.

As for what happened with Whitfield’s nomination, Simon maintains that the opposition stemmed from Hatch or more specifically, Hatch’s staff, noting:

“I sense that his staff saw a black woman and that “spelled” liberal to them.”[16]

To be fair, it remains unclear as to whether the objections to Whitfield’s personal background were pretextual. Under Hatch’s leadership, the Senate did confirm ten African American female nominees put forward by Clinton. However, many qualified African American women were also rejected under Hatch’s tenure, including Judge Frederica Massiah-Jackson.

As for the Southern District of Illinois, it did not receive a female or an African American judge until 2014, when Judges Nancy Rosenstengel and Staci Yandle were confirmed.

[1] Paul Simon, P.S.: The Autobiography of Paul Simon 192-93 (Bonus Books Inc. 1999).

[2] See id. at

[3] Id.

[4] See Wenona Whitfield, Biography at the SIU School of Law, http://www.law.siu.edu/our-people/faculty/adjunct/whitfield.html.

[5] Id.

[6] Gus Bode, An Asset to the SIU School of Law, Daily Egyptian, Mar. 31, 1995, https://dailyegyptian.com/53062/archives/an-asset-to-the-siu-school-of-law-faculty-may-be-moving-on-to-a-new-tier-in-the-legal-profession-but-for-siu-the-move-will-not-be-a-total-loss-wenona-whitfield-an-associate-professor-of-law-at-the/.

[7] See Simon, supra n. 1 at 192.

[8] Id. at 192-93 (quoting Orrin Hatch).

[9] Id. at 193.

[10] Id.

[11] https://www.congress.gov/nomination/104th-congress/280.

[12] See Simon, supra n. 1 at 193.

[13] Id. (quoting Trent Lott).

[14] Id.

[15] Id.

[16] Id.

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On the “Correctness” of Brown v. Board of Education

This morning, five judicial nominees testified before the Senate Judiciary Committee, the most controversial of whom was Wendy Vitter, tapped for the U.S. District Court for the Eastern District of Louisiana. Among many sharp exchanges that Vitter had with Committee Democrats during the hearing, one was particularly notable:

Sen. Richard Blumenthal (D-Conn.) asked Vitter if she believed that Brown v. Board of Education, the seminal Supreme Court decision desegregating public schools, was correctly decided. Vitter answered as follows:

“Senator, I don’t mean to be coy, but I think I get into a difficult…diff…difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with. Again, my personal, political, or religious views, I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed, I would be bound by it and of course I would uphold it.”

Blumenthal pressed his question and Vitter repeated her refusal, stating:

“And again, I would respectfully not comment on what could be my boss’ ruling, the Supreme Court. I would be bound by it. And if I start commenting on ‘I agree with this case or don’t agree with that case,’ I think we get into a slippery slope.”

Vitter’s answer has already been criticized by the Leadership Conference on Civil Rights, and judicial nominations guru Christopher Kang, among others. It will no doubt be raised repeatedly by opponents to argue that Vitter is an opponent of the Brown decision and thus, unfit for the bench. Setting aside any normative evaluation of Vitter, it is worth asking: how can a judicial nominee ethically answer Blumenthal’s question?

The “Correct” Answer

From a moral sense, there is little doubt Brown was correctly decided. This is the consensus position of the legal community and of most (but not all) Americans. As such, isn’t that the “correct” answer to the question?

Last month, Sixth Circuit nominee John Nalbandian seemed to agree, answering Blumenthal’s question as follows:

“Brown, Senator, is a seminal decision in the Supreme Court’s history and corrected an egregious error in Plessy v. Ferguson and I believe…I believe it was [correctly decided].”

However, about a minute later, Nalbandian was asked if Roe v. Wade, which established the right to terminate a pregnancy, was correctly decided. He said the following:

“I’m reluctant, and I think it would be inappropriate for me to go down a list of Supreme Court cases and say I think this case was rightly decided and that case was not, because I think it would call into question my partiality going forward.”

The problem here is that the two answers are essentially irreconcilable. Regardless of one’s feelings about the cases, both Brown and Roe are binding precedents of the U.S. Supreme Court. As such, it is truly odd that a nominee can comment on the “correctness” of one without compromising his impartiality, but not the other.

Nalbandian did attempt a distinction between Roe and Brown, arguing that Brown is widely accepted while Roe raises issues that may come before him as a judge. However, it’s hard to accept this answer for two reasons:

First, Nalbandian is up for a lower court judgeship. As such, he will have no opportunity to opine on the “correctness” of Roe. Rather, it is his responsibility to apply Roe, its progeny, and all other Supreme Court precedents. Thus, as a lower court judge, all Supreme Court precedents bind him equally.

Second, there is no such thing as a case that will NEVER come before the judge. Long settled precedents are constantly re-examined in the legal system. Austin, Bowers, Miller, Bakke have all been challenged and re-evaluated before the Supreme Court in the last two decades. As such, the distinction between a “settled” case like Brown and an “unsettled” case like Roe appears even more spurious.

The “Principled” Answer

So setting aside the Brown–Roe decision Nalbandian made, we come back to the Vitter answer, which is to decline to opine on all Supreme Court precedents. After all, it is a lower court judge’s responsibility to apply ALL Supreme Court precedents, even those that they believe to be wrongly decided. As such, the only “principled” answer is to decline to state the “correctness” of any Supreme Court decision.

Unfortunately, this answer looks awful from a political sense. It leads to a nominee being battered for not “supporting” popular precedents such as Brown, or worse, having their partiality questioned through their refusal to answer.

Avoiding the Trap

The dual pressures noted above are not a bug but rather a feature of Blumenthal’s question. Asking whether Brown was correctly decided, while innocuous on the surface, is a cleverly worded Catch-22. Answer in the affirmative and you’re forced into unprincipled verbal gymnastics when the follow-up question about Roe hits. Decline to answer out of principle and you’re branded uncooperative or prejudiced.

As such, I’d propose the following answer to Blumenthal’s question:

“Senator, Brown is a very important precedent of the U.S. Supreme Court. If you’d asked me about the case when I was a private citizen, I would have happily discussed my respect for the decision and its progeny. However, I’m here as a judicial nominee, and as such, I have a responsibility to conduct myself as I would on the bench. Just as it would be inappropriate for a lower court judge to discuss the “correctness” of Supreme Court decisions, it would be equally inappropriate for me. I can, however, assure you that I will faithfully apply Brown and its progeny, as well as all other Supreme Court cases.”

Such an answer adopts the best parts of both Nalbandian’s and Vitter’s answers. It sidesteps the Brown question but makes clear the reasons for the sidestep while re-iterating respect for Brown. While no answer is immune to being twisted, it is unlikely that the answer above would be taken to suggest that the nominee opposed Brown itself.

It will be interesting to see if Blumenthal repeats the Brown question at the hearing in two weeks, and, if he does so, how judicial nominees choose to answer. Should they choose to do so, nominees adopting the proposed answer above will be seen as exercising the sincerest form of flattery.

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Mark Bennett – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Experienced Hawaii litigator Mark Bennett is an unusual nominee from the Trump Administration in one key aspect: his age. While the Trump Administration has generally chosen judges in their 40s and 50s for the appellate bench, Bennett is 65 years old. Not only is he the oldest of all of Trump’s appellate nominees by far, he is also older than 80% of Obama’s appellate picks. In fact, in the last thirty years, just two appellate judges have been chosen at an older age than Bennett. Nevertheless, Bennett’s age, experience and general moderation make him an acceptable nominee for Hawaii’s Democratic home-state Senators, leading to an easier confirmation.

Background

Mark Jeremy Bennett was born on February 24, 1953 in Brooklyn, NY. After getting a B.A. summa cum laude from Union College in Schenectady, NY in 1976, Bennett received a J.D. magna cum laude from Cornell Law School in 1979.[1] He then clerked for Judge Samuel King on the U.S. District Court for the District of Hawaii.[2]

After his clerkship and a brief period of self-employment, Bennett joined the U.S. Attorney’s Office for the District of Columbia as an Assistant U.S. Attorney.[3] Two years later, he moved to Hawaii to be a federal prosecutor at the U.S. Attorney’s Office for the District of Hawaii, staying there for seven years.[4]

In 1990, Bennett joined McCorriston Miller Mukai MacKinnon LLP. as Of Counsel, becoming a Partner in 1991.[5] While serving as a Partner, Bennett served as a Special Prosecuting Attorney for the City of Honolulu and as Special Deputy Attorney General in the Hawaii Attorney General’s office.[6]

In 2003, the newly elected Republican Governor Linda Lingle chose Bennett to be Hawaii’s new Attorney General.[7] Bennett was confirmed by the Democratic State Senate and served as Hawaii’s chief legal and law enforcement officer throughout the eight years Lingle was in office.

In 2011, after the election of Democrat Neil Abercrombie to the Governorship, Bennett joined the Hawaii law firm Starn, O’Toole, Marcus & Fisher as a Director.[8] He serves in that capacity to this day.

History of the Seat

Bennett has been nominated for a Hawaii seat on the U.S. Court of Appeals for the Ninth Circuit. This seat opened on December 31, 2016 with Judge Richard Clifton’s move to senior status.

Bennett’s name was proposed for the Ninth Circuit by Hawaii Senators Mazie Hirono and Brian Schatz, both Democrats, who reached out to Bennett in mid-2017.[9] In November 2017, Bennett interviewed with the White House Counsel’s Office and was formally nominated on February 15, 2018.[10]

Political Activity

Bennett has a long history of involvement with the Republican Party of Hawaii, including serving as the Party’s counsel in 2001-02.[11] Bennett also volunteered on Lingle’s gubernatorial campaigns in 2002 and 2006, as well as supporting Republican James Aiona’s gubernatorial campaign in 2010.[12] Bennett also supported Lingle in her 2012 Senate bid against Hirono.[13]

Additionally, Bennett has also been a generous donor to the Republican Party of Hawaii, donating almost $5000 over the years, including $400 in October 2017, after his name had been proposed for a federal judgeship but before the formal vetting process had begun.[14] Bennett has also donated to support Lingle, former U.S. Senator Kelly Ayotte and Hawaii State Legislator Cynthia Thielen, all Republicans.[15] On the flip side, Bennett financially supported Rep. Colleen Hanabusa (a Democrat) in her primary challenge to Schatz in 2014.[16]

Legal Career

After his clerkship, Bennett spent ten years working as a federal prosecutor in D.C. and Hawaii. In these roles, Bennett handled both criminal and civil cases, handling prosecutions at the trial level, and defending convictions on appeal. In 1990, he joined the Honolulu office of McCorriston Miller Mukai MacKinnon LLP, working in complex civil litigation. While at the firm, Bennett represented Texaco in defending against a $2 billion antitrust case brought by Democratic Governor Benjamin Cayetano.[17]

From 2002 to 2010, Bennett served as the Attorney General of Hawaii (his work as Attorney General is summarized in the next section). He left the office in early 2011 to join Starn, O’Toole, Marcus & Fisher, working in complex civil litigation. Among his most important work at the firm, Bennett defended the University of Hawaii against suits by students alleging data breaches, successfully settling the case.[18] He also represented the Hawaii legislature as amicus before the Hawaii Supreme Court.[19]

While at Starn O’Toole, Bennett also worked as an arbitrator and mediator, requiring him to judge and resolve complex disputes. Over the last seven years, Bennett has served as an arbitrator in four cases and as a mediator in six.[20]

Attorney General of Hawaii

From 2002 to 2010, Bennett served as Attorney General for the State of Hawaii, an appointed position. In this role, Bennett defended state laws and policies against litigation, as well as taking on affirmative criminal and civil actions against individuals and corporations. We summarize some of the legal positions Bennett took as Attorney General.

Gun Control

In 2008, the U.S. Supreme Court struck down the District of Columbia’s ban on ownership of handguns, finding an individual right to bear arms in the Second Amendment of the U.S. Constitution.[21] When the case was being argued, state attorneys general of both parties weighed in both in favor of and against the D.C. ban.[22] While 31 attorneys general weighed in against the ban, five, including Bennett, signed onto a brief supporting it.[23] Speaking about the case, Bennett noted:

“We think that a decision that the Second Amendment prohibits strict gun-control laws is just wrong.”[24]

Notably, at the time of the suit, Hawaii had some of the strictest gun control laws in the country.[25]

Takings

In 2005, Bennett argued Lingle v. Chevron before the Supreme Court. The case involved a challenge by Chevron to a Hawaii law that limited the rent that Chevron could charge to independent gasoline dealers leasing their stations. After the Ninth Circuit struck down the law as an unconstitutional “taking” of Chevron’s property, Bennett defended the law in oral arguments before the Supreme Court.[26] The Supreme Court unanimously held for Hawaii and Bennett’s position, arguing that state economic regulation did not necessarily constitute a “taking” even where it did not advance a legitimate state interest.[27]

LGBT Rights in Hawaii Prisons

In the mid-2000s, the Department of Justice filed a civil rights suit against the State of Hawaii on behalf of three LGBT inmates who faced harassment and abuse from prison staff.[28] Hawaii also faced a related suit brought by the ACLU.[29] As Attorney General, Bennett helped settle the suit against the federal government, with Hawaii agreeing to increased conditions and monitoring of its youth prisons, more resources for suicide prevention and the prevention of sexual abuse, and criminal background checks against prison officials.[30]

Discrimination and the Statute of Limitations

Jones v. R.R. Donnelly & Sons Co. involved an action for racial discrimination brought by African American plaintiffs against a printing company.[31] The key question before the Supreme Court was whether a four-year federal statute of limitation established for all acts passed after 1990 covered the suit in question. Bennett joined five other state attorneys general, led by future Eleventh Circuit Judge Bill Pryor (and argued by another future Eleventh Circuit Judge, Kevin Newsom), in filing an amicus brief urging the application of a two year statute of limitations under state law.[32] However, the Supreme Court unanimously rejected Bennett’s position, holding that the four year federal statute of limitations applied to the action in this case.[33]

Incidental Use of Religion in Public Life

Bennett has weighed in as amicus in two court of appeals cases involving the incidental use of religion in public life. The first case involved a challenge to the voluntary recitation of the pledge of allegiance, which the plaintiff argued was a violation of the Establishment Clause.[34] Bennett joined an amicus brief on behalf of 30 state attorneys general supporting Loudoun County.[35] The Fourth Circuit held that the voluntary recitation of the pledge did not violate the Establishment Clause.[36]

The second case was a challenge from notable atheist Michael Newdow to the use of prayer and the phrase “so help me God” in the inauguration ceremony of President Barack Obama.[37] Bennett joined all 50 state attorneys general in an amicus brief opposing the plaintiffs in the case.[38] The D.C. Circuit found that the plaintiffs lacked standing.[39]

Rights of Native Hawaiians

As Attorney General, Bennett was a strong advocate for Native Hawaiians’ rights. For example, Bennett testified in the Senate in support of the Akaka bill, sponsored by former Sen. Daniel Akaka (D-Hawaii), which conferred the same status to native Hawaiians as enjoyed by all other recognized native tribes.[40]

Additionally, Bennett strongly defended the Kamehameha Schools (a group of Hawaii private schools) policy favoring admission for native Hawaiians. After a Ninth Circuit panel struck down the policy as unconstitutional discrimination, Bennett successfully persuaded an en banc panel to uphold the policy on a 8-7 vote.[41] Bennett argued that the policy was permissible even though it was intended to create opportunities for native Hawaiians and not for diversity purposes.[42]

Nevertheless, Bennett has taken adverse positions to those of Native Hawaiians. Notably, he successfully persuaded a unanimous Supreme Court that the “apology resolution” passed by Congress signaling the rights of native Hawaiians to their “ancestral territory” did not create substantive rights that restricted the State of Hawaii.[43]

Overall Assessment

As noted above, Bennett’s age makes him a fairly unusual pick from the Trump Administration. That being said, his age and level of experience brings several advantages in the confirmation process. Firstly, it is more difficult to attack Bennett as unqualified or inexperienced. Rather, objective observers can agree that Bennett possesses the requisite legal qualifications for an appellate appointment. Secondly, it defuses attacks from Democrats, who might be concerned that defeating Bennett would lead to a younger appointment from Trump.

The disadvantage of Bennett’s long legal history is that it can be mined for partisan opposition. However, Bennett’s record provides no obvious fault lines for Democrats to oppose his nomination. Bennett has not taken any positions on many legal hot button issues, including reproductive rights, and the positions he has taken (e.g. gun control) are hardly conservative.

Rather, had Bennett been nominated by a Democratic president, it is likely that Bennett would have drawn strong opposition from conservatives, given his defense of Hawaii’s strong gun laws, and affirmative action based admissions policies. As the nomination comes from Trump, most conservative opposition is likely to be muted.

Additionally, it is important to note that Bennett’s defense of both gun control and race-based admissions policies were made in his capacity as Hawaii Attorney General. Given that the Attorney General is charged with defending Hawaii’s laws, Bennett had an ethical responsibility to mount a strong defense. As such, one cannot necessarily attribute the positions that Bennett took as Attorney General as his own legal views.

Overall, Bennett represents the kind of appellate nominee who should be more common: a credential, experienced advocate with expertise in a wide range of legal issues. Barring any flare-ups over the positions he advocated as Attorney General, he should be confirmed smoothly.

[1] Sen. Comm. on the Judiciary, 115th Cong., Mark J. Bennett: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] See Tim Ruel, Lingle Recruits Texaco Defense Lawyer, Honolulu Star-Tribune, Dec. 10, 2002, http://archives.starbulletin.com/2002/12/10/news/story5.html.

[8] State Attorney General Mark Bennett to Join Law Firm, Hawaii News Now, 2010, http://www.hawaiinewsnow.com/story/13584825/state-attorney-general-mark-bennett-to-join-law-firm.

[9] See Bennett, supra n. 1 at 123.

[10] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[11] See Bennett, supra n. 1 at 97.

[12] See id.

[13] Id.

[14] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?cand=&cycle=&employ=&name=Mark+Bennett&order=desc&sort=D&state=HI&zip= (last visited Apr. 10, 2018).

[15] Id.

[16] Id.

[17] See Ruel, supra n. 7.

[18] Gross v. University of Hawai’i, No. 11-1-1217-06 (Haw. 1st Cir. Ct.).

[19] Nelson v. Hawaiian Homes Comm’n, 2018 WL 798192 (Haw. Feb. 8, 2018).

[20] See Bennett, supra n. 1 at 99-100.

[21] District of Columbia v. Heller, 554 U.S. 570 (2008).

[22] John Gramlich, D.C. Gun-Control Case Divides State Attorneys General, Charleston Gazette, Mar. 9, 2008.

[23] Id.

[24] Id. (quoting Mark Bennett).

[25] See id.

[26] Linda Greenhouse, Justices Appear Reluctant to Increase Land-Use Oversight, N.Y. Times, Feb. 23, 2005.

[27] Lingle v. Chevron, 544 U.S. 528 (2005).

[28] Janis L. Magin, Hawaii Agrees to Broad Changes in Procedures for Incarcerated Gay Youths, N.Y. Times, Feb. 13, 2006.

[29] See id.

[30] Id.

[31] 541 U.S. 369 (2004).

[32] See id.

[33] Id.

[34] Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395 (4th Cir. 2005).

[35] Id.

[36] Id.

[37] Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010).

[38] Id.

[39] Id.

[40] See Testimony of Hawaii Attorney General Mark J. Bennett in Support of Passage of the Akaka Bill, Hawaii Bar Journal (July 2006).

[41] Z-Nation, Schools’ Hawaiians-First Rule Ok’ed, Monterey County Herald, Dec. 6, 2006.

[42] Id.

[43] See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009).

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Eric Tostrud – Nominee to the U.S. District Court for the District of Minnesota

Eric Tostrud, a Minneapolis based attorney and law professor, is part of a package deal of nominees made between the Trump Administration and Minnesota’s Democratic senators. Like his fellow nominee Nancy Brasel, Tostrud should be seen as a consensus nominee.

Background

A native Minnesotan, Eric Christian Tostrud was born in St. Paul on June 14, 1965. Tostrud received his B.A. cum laude from St. Olaf College in 1987 and then a J.D. summa cum laude from the William Mitchell College of Law in St. Paul.[1]

After graduation, Tostrud clerked for Judge Edward Devitt on the U.S. District Court for the District of Minnesota and Judge George MacKinnon on the U.S. Court of Appeals for the D.C. Circuit. In 1992, he joined the Minneapolis office of Lockridge Grindal Nauen PLLP as an Associate.[2] He was made a Partner at the firm in 1998, and became Of Counsel in 2014.[3] He continues to practice as Of Counsel at Lockridge to this day.[4]

In 1993, Tostrud began teaching at Mitchell Hamline School of Law (formerly William Mitchell, his alma mater) as an Adjunct Professor.[5] His title became Distinguished Practitioner in Residence in 2015.[6] Additionally, Tostrud has been an Adjunct Professor at the University of Minnesota Law School since 2011.[7]

History of the Seat

Tostrud has been nominated for a seat on the U.S. District Court for the District of Minnesota. This seat opened on October 31, 2016, when Judge Donovan Frank moved to senior status. As the seat opened with only three months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In November 2016, Tostrud applied for the judgeship with Minnesota Senator Amy Klobuchar (D-Minn).[8] In January 2017, he also applied to the parallel application process conducted by Rep. Erik Paulsen (R-Minn).[9] His name was submitted by Paulsen to the White House in June.

Meanwhile, Klobuchar (D-Minn) and the Trump Administration began negotiations over two vacancies on the U.S. District Court. They ultimately agreed on Tostrud, Paulsen’s candidate, and Minneapolis Judge Nancy Brasel, who was supported by Klobuchar.[10] President Trump announced both Brasel and Tostrud on July 13, 2017.[11]

Legal Career

Other than his clerkships and his position as a law professor, Tostrud has spent his entire legal career at the same firm: Lockridge Grindal Nauen PLLP (Lockridge). At the firm, Tostrud worked in complex civil litigation, focusing on the Employee Retirement Income Security Act of 1974 (ERISA).[12] Notably, Tostrud represented the Hartford Life & Accident Insurance Co. in defending many ERISA claims.[13]

In another notable case, Tostrud represented many hospitals in defending against antitrust claims brought by a group of nurse-anesthetists, successfully moving for summary judgment and defending the judgement on appeal.[14] In another case, Tostrud successfully defended against a class action suit alleging failure to provide insurance discounts.[15]

Since 2014, Tostrud has been a full-time law professor, teaching Federal Civil Procedure, Advanced Civil Procedure, and Electronic Discovery at Mitchell Hamline School of Law.[16] Additionally, he has taught Federal Jurisdiction at the University of Minnesota Law School.[17]

Political Activity

Tostrud has had a close relationship with Paulsen, having served as his Finance Chairman on his state legislative and congressional campaigns.[18] He has also been a generous donor to other Republicans, giving $10,000 to the Republican Party of the 3rd Congressional District of Minnesota in 2016, as well as donating to former Speaker John Boehner and Sen. Marco Rubio.[19] However, Tostrud also donated $1000 to Sen. John Kerry (D-Mass.) in 2003.[20]

Writings

In 2001, Tostrud authored a letter to the editor for the Minnesota Lawyer discussing the Supreme Court’s recent 5-4 decision in Board of Trustees of the University of Alabama, et al. v. Garrett et al.[21] The decision had held that the Eleventh Amendment barred citizens from suing states for violations of the Americans with Disabilities Act (ADA). In the letter, Tostrud is critical of the decision.[22] Specifically, he notes that the decision is contrary to the plain text of the Eleventh Amendment, stating:

“When the Supreme Court openly disregards the actual words of the Constitution to reach an outcome, the consequences can be grave.”[23]

Overall Assessment

As with his paired nominee, Nancy Brasel, Tostrud is a consensus nominee. While Tostrud has a longer record of political donation and activity than Brasel, it is important to note that political activity should not, in and of itself, disqualify nominees for the bench. Furthermore, Tostrud has the support of Klobuchar, who is well respected on both sides of the aisle, and who will help him navigate the confirmation thicket.

If confirmed, Tostrud will likely be a moderate-conservative jurist. Looking at his 2001 letter to the editor, Tostrud appears to advocate a focus on the “plain text” of the Constitution in interpretation, an approach generally identified with conservatives. However, the letter itself applies that interpretation to support a “liberal” result, and one advocated by the Supreme Court’s liberal dissenters. This suggests, not necessarily that Tostrud is a liberal or a conservative, but rather that his focus is on getting the law correct, rather than the outcome.

Given these factors, Tostrud should be comfortably confirmed alongside Brasel, restoring the Court to full strength.

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 32.

[9] Id.

[10] Stephen Montemayor, White House Moves Closer to Filling Minnesota’s U.S. Attorney, Federal Judge Openings, Minneapolis Star Tribune, Dec. 14, 2017, http://www.startribune.com/white-house-moves-closer-to-filling-minnesota-s-u-s-attorney-federal-judge-openings/464179853/.

[11] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 12, 2018) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-eleventh-wave-judicial-candidates).

[12] See Tostrud, supra n. 1 at 15-16.

[13] See, e.g., Feller v. Hartford Life & Accident Ins. Co., 817 F. Supp. 2d 1097 (S.D.Iowa 2010); Meylor v. Hartford Life & Accident Ins. Co., 444 F. Supp. 2d 963 (N.D. Iowa 2006); Sloan v. Hartford Life & Accident Ins. Co., 433 F. Supp. 2d 1037 (D.N.D. 2006); Dorholt v. Hartford Life & Accident Ins. Co., 417 F. Supp. 2d 1094 (D. Minn. 2006); Lao v. Hartford Life & Accident Ins. Co., 319 F. Supp. 2d 955 (D. Minn. 2004); Estate of Bruce Haag v. Hartford Life & Accident Ins. Co., 188 F. Supp. 2d 1135 (D. Minn. 2002); Vesaas v. Hartford Life & Accident Ins. Co., 981 F. Supp. 1196 (D. Minn. 1996).

[14] See Minn. Assoc. Of Nurse Anesthetists v. Unity Hosp., et al., 208 F.3d 655 (8th Cir. 2000), aff’ing, 5 F. Supp. 2d 694 (D. Minn. 1998).

[15] Palmer v. Illinois Farmers Ins. Co., 820 F. Supp. 2d 1004 (D. Minn. 2011), aff’d, 666 F.3d 1081 (8th Cir. 2012).

[16] Tostrud, supra n. 1 at 29-30.

[17] Id. at 29.

[18] See S.T., At the Races, Roll Call, Jan. 15, 2008.

[19] Open Secrets, https://www.opensecrets.org/donor-lookup/results?cand=&cycle=&employ=&name=eric+tostrud&order=desc&sort=D&state=&zip= (last visiting Apr. 7, 2018).

[20] See id.

[21] Eric Tostrud, Commentary on Recent Supreme Court Decision, The Minnesota Lawyer, Mar. 26, 2001.

[22] See id.

[23] Id.

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Judge Nancy Brasel – Nominee to the U.S. District Court for the District of Minnesota

Judge Nancy Brasel, a well-respected state jurist in Minnesota, is part of a package deal of nominees made between the Trump Administration and Minnesota’s Democratic senators. Her moderate record and uncontroversial background should net her a comfortable confirmation.

Background

Brasel was born Nancy Ellen Notebook in Durham in the United Kingdom on January 20, 1969. Brasel attended Trinity University in San Antonio and then received a Master of Arts from the University of Texas at Austin. Brasel then attended the University of Minnesota Law School, graduating in 1996.[1]

After graduation, Brasel clerked for Judge Donald Lay on the U.S. Court of Appeals for the Eighth Circuit. She then joined the Minneapolis office of Leonard Street and Deinard as an associate.[2] In 1999, she joined Greene Espel PLLP as a member and became a partner in 2002.[3] In 2008, Brasel left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Minnesota.[4]

In 2011, Democratic Governor Mark Dayton appointed Brasel to a seat on the 4th Judicial District of Minnesota, which covers Hennepin County (Minneapolis).[5] She continues to serve on that court to this day.

History of the Seat

Brasel has been nominated for a seat on the U.S. District Court for the District of Minnesota. This seat opened on May 31, 2016, when Judge Ann Montgomery moved to senior status. As the seat opened with only seven months left in President Obama’s presidency, no nomination was ever made to fill the seat. In early 2017, Brasel applied for the judgeship with Rep. Erik Paulsen (R-Minn).[6]

Meanwhile, Minnesota Senator Amy Klobuchar (D-Minn) and the Trump Administration began negotiations over two vacancies on the U.S. District Court. They ultimately agreed on Brasel, Klobuchar’s candidate, and Minneapolis attorney Eric Tostrud, who was supported by Paulsen.[7] President Trump announced both Brasel and Tostrud on July 13, 2017.[8]

Legal Career

After her clerkship with the strongly liberal Lay, Brasel worked as an associate at Leonard, Street & Deinard, where she defended employers in employment law, discrimination, and sexual harassment cases. For example, Brasel helped a defendant employer against an action for “negligent infliction of emotional distress” brought by a former employee.[9]

In 1999, Brasel moved to Greene Espell PLLP, handling more complex litigation including securities actions. While at the firm, Brasel defended fourteen Northern Minnesota cities being sued for fraud based on representations related to municipal bonds, successfully settling the case.[10] She also represented Deloitte on appeal in defending a negligent misrepresentation action.[11]

In 2008, Brasel became a federal prosecutor for the U.S. Attorney’s Office for the District of Minnesota, handling white collar crime and narcotics cases.[13] Notably, she prosecuted 23 defendants for drug trafficking based on evidence from wiretaps, leading to guilty pleas from all defendants.[14]

Jurisprudence and Reversals

Brasel has served as a District Court judge in Minneapolis since her appointment in 2011. In this role, she serves as a primary trial judge, supervising criminal and civil cases. Over the last six years, Brasel has presided over approximately 75 trials, including approximately 25 jury trials.[15] Brasel’s more prominent trials include a breach of contract case regarding commercial flooring,[16] the termination of parental rights in a case where the father had killed one of his children,[17] and a challenge to the warrantless collection of a urine sample by a DUI defendant.[18]

Over the course of her seven year tenure on the state bench, Brasel has been reversed by higher courts in five cases.[19] Of those five reversals, in two cases, Brasel’s grants of summary judgment to the defendant were reversed by a higher court.[20] Another two reversals were in criminal cases, reversing a conviction[21] and a sentence[22] respectively on appeals from defendants. The final case reversed the grant of a motion to suppress by Brasel.[23]

Political Activity

Other than her nonpartisan election campaign in 2012, Brasel has a relatively limited political history. She has never participated in political campaigns and has only two political contributions of record: both to Klobuchar.[24]

Writings

In 2002, Brasel authored an article discussing Minnesota’s Private Attorney General statute as it relates to fraud cases.[25] Specifically, she discussed a then-recent Minnesota Supreme Court decision that limited private attorney general cases to those that conferred a “public benefit.” In reviewing the statute’s text, legislative history, and purpose, as well as similar statutes in other states, Brasel suggested two factors that could determine “public benefit,” whether the attorney general had authority to bring the suit, and the number of consumers affected by the defendant’s actions.[26]

Overall Assessment

Among the pool of Trump nominees, Brasel is a fairly consensus pick. Appointed to the state bench by a Democrat and recommended by another, Brasel also has a mainstream record on the state bench, and an uncontroversial background.

Given these factors, Brasel should be confirmed with bipartisan support this year, lending relief to an overworked federal bench in Minnesota.

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

[2] Id.

[3] Id.

[4] Id.

[5] Dan Heilman, Minnesota Gov. Dayton Fills Judge Slots; Most From Public Sector, The Minnesota Lawyer, Sept. 16, 2011.

[6] Brasel, supra n. 1 at 35.

[7] Stephen Montemayor, White House Moves Closer to Filling Minnesota’s U.S. Attorney, Federal Judge Openings, Minneapolis Star Tribune, Dec. 14, 2017, http://www.startribune.com/white-house-moves-closer-to-filling-minnesota-s-u-s-attorney-federal-judge-openings/464179853/.

[8] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 12, 2018) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-eleventh-wave-judicial-candidates).

[9] See Riebhoff v. Cenex/Land O’Lakes Agronomy Co., 1998 Minn. App. LEXIS 1408 (Minn. Ct. App. Dec. 29, 1998).

[10] Franklin High-Yield Tax-Free Income Fund v. City of Baudette, et al., No. 98-CV-1576, 1999 WL 33912055 (D. Minn. Sept. 13, 1999).

[11] Crest Group, Inc. v. Deloitte & Touche, LLP., No. 27-CV-03-005617 (Minn. Ct. App. Sept. 25, 2007).

[12] See id.

[13] Brasel, supra n. 1 at 26.

[14] United States v. Abdul-Ahad, No. 08-CR-142 (D. Minn. Oct. 27, 2008).

[15] See Brasel, supra n. 1 at 9.

[16] Building Restoration Corp. v. B&B Companies, Inc., No. 27-CV-15-21845.

[17] In the Matter of the Welfare of the Children of C.A.P., Nos. 27-JV-14-7814 and 27-JV-16-1631.

[18] State v. Taylor, No. 27-CR-12-8310.

[19] Brasel, supra n. 1 at 22.

[20] See Bray v. Starbucks Corp., No. 27-CV-16-3979 (Minn. Dist. Ct. Mar. 24, 2017), aff’d in part, rev’d in part, No. A17-0823 (Minn. Ct. App. Dec. 26, 2017) (reversing grant of summary judgment on public accommodation claim); Tap House Restaurant v. Cassidy Turley Comm. Real Estate Serv., No. 27-CV-16-7177, rev’d, No. A17-0774 (Minn. Ct. App. Dec. 11, 2017).

[21] State v. Witherspoon, No. 27-CR-11-28854, rev’d, No. A12-1247 (Minn. Ct. App. July 1, 2013) (reversing conviction for second degree riot based on sufficiency of the evidence).

[22] State v. Charette, No. 27-CR-11-28468, aff’d in part, rev’d in part, No. A12-1541 (Minn. Ct. App., Sept. 3, 2013) (reversing for resentencing).

[23] State v. Harrington, No. 27-CR-11-28655, rev’d, No. A17-0774 (Minn. Ct. App. Dec. 11, 2017).

[24] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=nancy+brasel&cycle=&state=&zip=&employ=&cand= (last visiting Apr. 4, 2018).

[25] Nancy E. Brasel, Recent Decisions of the Minnesota Supreme Court: Ad Hoc Deceptions in Private Disputes: When Does a Private Plaintiff Confer a Public Benefit Under Minnesota’s Private Attorney General Statute, 29 Wm. Mitchell L. Rev. 321 (2002).

[26] See id. at 341.

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Wendy Vitter – Nominee to the U.S. District Court for the Eastern District of Louisiana

Before her nomination to a federal judgeship, Wendy Vitter was perhaps best known in connection to her husband, former Senator and Congressman David Vitter. In particular, Wendy was remembered for her participation in a press conference during the D.C. Madam scandal in 2007.[1] Now a nominee to a federal judgeship, Vitter faces new scrutiny on her professional record and public views.

Background

Vitter was born Wendy Lee Freret Baldwin in 1961 in New Orleans. Vitter attended Sam Houston State University, graduating in 1982.[2] She then worked as a substitute teacher and Exercise Instructor for a few months before joining Tulane University Law School, graduating with a J.D. in 1986.[3]

After graduation, Vitter joined the Orleans Parish District Attorney’s Office as an Assistant District Attorney.[4] In 1989, she was elevated to become Deputy Chief of Trials and in 1990, she became the Chief of Trials.[5] In 1992, Vitter joined Abbott & Meeks as an associate.

Vitter left Abbott & Meeks in 1993 and stayed out of the workforce for the next 19 years, supporting her husband as he ran for the state legislature, the U.S. House, and the Senate. In 2007, both Vitters burst onto the political news scene under less than ideal circumstances, when the Senator’s phone number was uncovered in a sting of the D.C. Madam (a woman charged with running a high-end brothel).[6] In a high profile news conference, Vitter stood by her husband and assured reporters that she was “proud to be Wendy Vitter.”[7] Ultimately, the allegations did not affect David Vitter’s 2010 re-election campaign, although some alleged that they helped to sink his gubernatorial campaign in 2015.[8]

In 2012, Vitter rejoined legal practice as a Project Director at The Roman Catholic Archdiocese of New Orleans.[9] In 2013, she became General Counsel to the Archdiocese.[10] She continues to work there to this day.

History of the Seat

Vitter has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana. This seat was opened by Judge Helen Ginger Berrigan’s move to senior status on August 23, 2016. While Berrigan, a left-leaning judge, retired under a Democratic president, the Obama Administration did not put forward a nominee for the vacancy.

Shortly after the election of President Donald Trump, Vitter reached out to Louisiana Senators Bill Cassidy and John Kennedy to express her interest in a federal judgeship.[11] On April 7, 2017, Vitter interviewed with the White House Counsel’s Office.[12] In June 2017, Vitter interviewed with a judicial selection committee created by Cassidy, and was selected as a nominee in September 2017.[13] Vitter was officially nominated on January 23, 2018.[14]

Legal Experience

Vitter began her legal career as a prosecutor in New Orleans under District Attorney Harry Connick Sr. While she started in juvenile courts, Vitter worked her way up to becoming Chief of Trials, trying over one hundred cases in her five years as a prosecutor.[15] Among the cases she worked on, Vitter prosecuted Marcus Hamilton for the brutal murder of Father Patrick McCarthy.[16] During the trial, Hamilton argued that he had killed McCarthy in response to repeated sexual advances made by McCarthy against him.[17] Despite the argument, Vitter was able to secure the death penalty against Hamilton, which was upheld by the Louisiana Supreme Court.[18] Vitter also prosecuted the first capital case in Louisiana where DNA evidence was introduced at trial.[19]

In 1992, Vitter moved to the firm Abbott & Meeks, handling maritime litigation, product liability, and class actions in federal court.[20] However, she left this position approximately a year later.[21]

In 2013, Vitter rejoined the workforce as General Counsel to the Archdiocese of New Orleans.[22]

In this position, Vitter advises the Archdiocese on legal matters, including compliance with employment laws, the Americans with Disabilities Act, wage and hour regulations, and other laws.[23] She also represents the Archdiocese in state court and before federal agencies.[24]

Political Activity & Speeches

Perhaps unsurprisingly, given Vitter’s marriage to a politician, she has an extensive history of political activity, including over 120 public appearances campaigning for her husband.[25] Vitter has also served as an unofficial advisor in all of her husband’s campaigns.[26] She has also donated to the Presidential campaign of former Senator Phil Gramm.[27]

Vitter has been active in the pro-life movement, serving as Honorary Chair for the Notre Dame Seminary Priests for Life luncheon in 2013 and getting the Proudly Pro-Life Award from the New Orleans Right to Life Educational Foundation for her efforts.[28] In early March, the Alliance for Justice reported that Vitter’s judiciary questionnaire had omitted some of her pro-life activism, specifically two speeches, and participation in a panel.[29] In the panel in question, Vitter advocated the work of fellow panelist Angela Lanfranchi, and encouraged attendees to pick up and use Lanfranchi’s brochure, The Pill Kills.[30] The brochure in question suggests that

“women on the contraceptive pill are more likely to die a violent death, because they are more likely to cheat on their male partners, to face fertility problems, to have unhealthy children, and to have poor relationships to their partners” and that this would “influence rates of intimate partner violence.”[31]

Overall Assessment

In opposing judicial nominees, senators generally raise one or more of the following allegations: lack of experience; lack of integrity; and lack of impartiality. In Vitter’s case, critics may potentially raise all three points against her. We will evaluate each argument in turn to judge its plausibility and persuasiveness.

Firstly, critics may argue that Vitter lacks the requisite experience to be a federal judge. The ABA requires a minimum of twelve years of legal practice to be qualified for a federal judicial appointment. Vitter practiced as a state prosecutor for five years, in private practice for one year, and then as General Counsel for five years, leaving her narrowly short of the ABA’s requirements. More concerning than the inability to meet the ABA standard, however, is the fact that Vitter’s federal court experience is extremely limited, with Vitter having practiced in federal court only for a year. Furthermore, none of the matters she worked on during this year, by her own views, were significant enough to warrant inclusion in her Senate Judiciary Questionnaire.

In response, Vitter’s supporters can argue that she has handled over one hundred criminal trials in state court, and numerous civil proceedings as General Counsel. Furthermore, they can argue that Vitter’s extensive experience in capital cases is particularly apposite to federal court work, as capital cases are notoriously complex and involve intimate knowledge of both facts and law. As such, they would argue that she is qualified for the federal trial bench.

Secondly, Vitter’s critics may echo the arguments made by the Alliance for Justice, arguing that her failure to properly disclose all of her speeches and panels suggests a willful attempt to deceive the Judiciary Committee. However, it is important to note that Vitter disclosed over one hundred speeches over a eighteen year period, making it fairly unlikely that the disclosure of 2-3 additional speeches would have been deemed dispositive. It is far more likely that the speeches were overlooked rather than deliberately omitted.

Thirdly, Vitter’s critics may argue that her long history of partisan advocacy and of pro-life activism suggests an inability to enforce precedents favorable to abortion rights. They may also argue that Vitter’s endorsement of Lanfranchi’s claims about contraception reflects her embrace of ideology over facts. Assuming that Vitter, as numerous nominees before her have, will assure the Committee of her commitment to precedent and her understanding that Roe v. Wade is the law of the land, Vitter’s backers will likely point to such a commitment as evidence of her ultimate fidelity to the law rather than to her ideology. They may also attempt to argue, as they have done with others, that attacking Vitter for her pro-life ideology amounts to an attack on her faith.

In looking over the arguments above, it is unlikely that Vitter will be deemed a “consensus” nominee. However, she is still favored for confirmation for two reasons. First, the Republican Judiciary Committee senator most likely to turn against a Trump nominee, Sen. John Kennedy, is solidly behind Vitter. Second, given that many of the senators on both sides of the aisle served with Vitter’s husband, it would be particularly awkward for them to block Vitter’s path to the federal bench. Relationships are still important in Washington, and as such, Vitter may fare better than a different nominee sharing her background and views.

[1] Griffin Connolly, Vitter’s Wife Nominated by Trump for Federal Judgeship in Louisiana, Roll Call, Jan. 24, 2018, https://www.rollcall.com/news/politics/vitters-wife-nominated-trump-federal-judgeship-louisiana.

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

[3] Id.

[4] See id. at 2.

[5] Id.

[6] Dana Milbank, Sex and the Conservative, Wash. Post, July 17, 2007.

[7] Id.

[8] Chris Cillizza, Why Did David Vitter’s Prostitute Problem Kill Him in 2015 and Not in 2010?, Wash. Post, Nov. 23, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/11/23/why-did-david-vitters-prostitution-problem-kill-him-in-2015-and-not-in-2010/?utm_term=.5a8c2d0dddc4.

[9] Id.

[10] Id.

[11] Id. at 41.

[12] Id.

[13] Id.

[14] Press Release, White House, President Donald J. Trump Announces Tenth Wave of Judicial Candidates (January 23, 2018) (on file at www.whitehouse.gov/the-press-office).

[15] See Vitter, supra n. 2 at 30-31.

[16] See State v. Marcus Hamilton, 681 So.2d 1217 (La. 1996).

[17] See id. at 1221.

[18] Id. at 1229.

[19] See State v. Steven Quatrevingt, 670 So.2d 197 (La. 1996).

[20] See Vitter, supra n. 2 at 31.

[21] Id.

[22] Id.

[23] See id.

[24] See id.

[25] See Vitter, supra n. 2 at 8-25.

[26] Id. at 29.

[27] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=wendy+vitter&cycle=&state=&zip=&employ=&cand= (last visited Mar. 28, 2018).

[28] See Vitter, supra n. 2 at 4.

[29] See Drew Broach, Wendy Vitter’s Nomination Falls Under New Scrutiny For Questionnaire Omissions, New Orleans Times Picayune, Mar. 2, 2018, http://www.nola.com/national_politics/2018/03/wendy_vitter_omissions_judicia.html.

[30] Carter Sherman and Taylor Dolven, A Trump Judge Pick Left Anti-Abortion Speeches Off Her Senate Disclosure Form, Vice News, Mar. 1, 2018, https://news.vice.com/en_us/article/vbpndy/a-trump-judge-pick-left-anti-abortion-speeches-off-her-senate-disclosure-form.

[31] Id. (quoting The Pill Kills).

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Judge Robert Summerhays – Nominee for the U.S. District Court for the Western District of Louisiana

Like Dan Domenico and Dominic Lanza before him, Judge Robert Summerhays is a Trump district court nominee who was originally considered for the Court of Appeals. While Summerhays was ultimately not selected for the Fifth Circuit (the Administration chose Kyle Duncan), he is now pending appointment to the Western District of Louisiana.

Background

Robert Rees Summerhays was born on September 10, 1965 in Fort Worth, Texas. Summerhays attended the University of Texas at Austin, graduating with high honors in 1989, and then joined the U.S. General Accounting Office in Dallas as an evaluator.[1]

After two years in Dallas, Summerhays enrolled at the University of Texas at Austin Law School, graduating with high honors in 1994.[2] He then clerked for Judge Eugene Davis on the U.S. Court of Appeals for the Fifth Circuit.[3] After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP as an associate. In 2003, he became a partner at the firm.[4]

In 2006, Summerhays was named a Bankruptcy Judge on the U.S. Bankruptcy Court for the Western District of Louisiana.[5] He still serves on that court today. He also served as Chief Bankruptcy Judge from 2009 to 2017.[6]

History of the Seat

Summerhays has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana. The Western District is facing a vacancy crisis, with four of the seven allotted judgeships for the District currently vacant, and only two nominees pending.[7] This crisis was exacerbated by the Republican Senate’s failure to confirm any Obama nominations to Louisiana seats in the 114th Congress.

The vacancy Doughty has been nominated to fill opened on June 5, 2017, when Judge Rebecca Doherty moved to senior status. However, Summerhays was actually recommended by Louisiana senators Bill Cassidy and John Kennedy for appointment to the U.S. Court of Appeals for the Fifth Circuit seat vacated by Judge Eugene Davis.[8] In his interview with the White House, Summerhays expressed his willingness to take a District Court appointment if the White House chose not to nominate him for the Court of Appeals.[9] Sure enough, the Trump Administration nominated conservative lawyer Kyle Duncan for the Fifth Circuit and tapped Summerhays for the Western District.

Legal Experience

After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP, working in complex commercial litigation and securities litigation.[10] Among the more prominent cases he handled at the time, Summerhays represented Ernst & Young in defending against a securities class actions suit, managing the litigation until the ultimate dismissal by Judge Sam Lindsay.[11] He also represented the plaintiff in a state-law antitrust action against United Technologies Corporation, leading to a verdict for his client.[12]

Summerhays also handled many mediations, arbitrations, and other alternative dispositions. Notably, he represented Hughes Electronics in a $1 Billion arbitration action against Boeing, guiding the case to a settlement.[13]

Jurisprudence and Reversals

Summerhays serves as a Bankruptcy Judge in the Western District of Louisiana. In that capacity, Summerhays presides over bankruptcy matters, and has supervised 232 adversary proceedings and has entered final orders in over 16,000 cases.[14] In his twelve years on the bench, three of his decisions were substantially reversed by higher courts:

In re Vidalier[15] – The district court reversed Summerhays’ ruling that a married debtor could not file late joint tax returns after the death of his spouse for years when the spouse was alive.[16]

Joyner v. Liprie[17] – This case involved an estate action brought by a former business partner that was removed to federal court. Summerhays declined to remand the action to state court, ruling that the causes of action brought could not be asserted by the plaintiff.[18] The District Court declined to adopt this portion of the report, remanding the action to state court.[19]

In re Miller[20] – In this case, Summerhays ruled that 11 U.S.C. § 1325 prevented a creditor from seeking an unsecured deficiency claim.[21] The Fifth Circuit reversed this ruling.[22]

Writings

As a young attorney, Summerhays authored an article discussing the scope of Corporate Attorney-Client privilege.[23] In the article, Summerhays criticizes the Fifth Circuit decision in Garner v. Wolfinbarger, which created an exception to attorney-client privilege in suits where corporate shareholders were suing management in derivative suits.[24] Summerhays notes that the “doctrinal underpinnings of the Garner exception are frustratingly ambiguous.”[25] He also criticizes the expansion of Garner to cover non-derivative suits and suits against majority shareholders.[26] Instead, he proposes limiting Garner only to suits where shareholders are seeking to vindicate either rights common to all shareholders or rights of the corporations.[27] Judge James “Jimbo” Stephens ultimately ruled that Doughty was not required to recuse himself from the case.[28]

Overall Assessment

Unlike fellow nominee Michael Juneau, who faced significant opposition in the Senate Judiciary Committee, Summerhays should face a relatively easy confirmation for three reasons. First, Summerhays has extensive experience with complex litigation including arbitrations and mediations, a good skill set for a federal trial judge. Second, Summerhays has a long and uncontroversial record on the bench, including a very low rate of reversal. Finally, Summerhays lacks a controversial paper trail and has managed not to offend any key judicial stakeholders.

As such, it is likely that Summerhays will be confirmed by this summer, adding another Trump appointment onto the Western District of Louisiana.

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

[2] Id. at 1.

[3] Id. at 2.

[4] Id.

[5] Id.

[6] Id.

[7] Tyler Bridges, 42 Parish Area of Western Louisiana Suffers From Vacant Federal Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.

[8] See Summerhays, supra n. 1 at 56.

[9] Id.

[10] See Summerhays, supra n. 1 at 44.

[11] In re Capstead Mortg. Secs. Litig., 258 F. Supp. 2d 533 (N.D. Tex. 2003).

[12] Chromalloy Gas Turbine Corp. v. United Tech. Corp., No. 95-CI-12541 (Bexas County, Tex. filed 1995).

[13] Boeing-Hughes Electronics Purchase Price Arbitration.

[14] See Summerhays, supra n. 1 at 14.

[15] 2006 WL 3873268 (Bankr. W.D. La. Dec 22, 2006), rev’d, 2008 WL 4003671 (W.D. La. Aug. 29, 2008).

[16] See id.

[17] 2012 WL 1144614 (Bankr. W.D. La. Apr. 04, 2012), report and recommendation adopted in part, rejected in part, Joyner v. S.F.L. & S.I.L., 485 B.R. 538 (W.D. La. 2013).

[18] See id.

[19] See id.

[20] No. 07-20542 (Bankr. W.D. La. Jan. 24, 2008), rev’d, 570 F.3d 633 (5th Cir. 2009).

[21] See id.

[22] See id.

[23] Robert R. Summerhays, The Problematic Expansion of the Garner v. Wolfinbarger Exception to the Corporate Attorney-Client Privilege, 31 Tulsa L.J. 275 (Winter 1995).

[24] Id. at 286.

[25] See id. at 302.

[26] See id.

[27] Id. at 315.

[28] Id.

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Unconfirmed: Sherman Unger

“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

On December 13, 2017, L. Steven Grasz became the first judicial nominee to be confirmed by the Senate despite being rated unanimously “Not Qualified” by the Standing Committee on the Federal Judiciary of the American Bar Association (ABA).[1] To appreciate the eroded power of the ABA with regard to nominations, we look back to a nomination that ABA opposition stopped: Sherman Unger.

Born in Chicago on October 9, 1927, Unger developed his legal career in Ohio, working as a Cincinnatti based partner at Frost & Jacobs. In 1969, the newly elected Richard Nixon chose Unger to be General Counsel to the U.S. Department of Housing and Urban Development.[2] Unger returned to private practice in 1971 and stayed there for the next ten years. In 1981, new President Ronald Reagan tapped Unger again to be General Counsel to the Department of Commerce.

In 1982, Congress created the U.S. Court of Appeals for the Federal Circuit, a specialized tribunal to hear patent case appeals from across the nation. In doing so, they elevated all the judges on the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims, and created an additional twelfth seat to round out the court. For appointment to this twelfth seat, U.S. Attorney General William French Smith recommended Unger.[3] In his recommendation letter to the White House, Smith indicated that an ABA rating on Unger was not yet available, but recommended the nomination nonetheless.[4] On December 15, 1982, Unger was formally nominated to the U.S. Court of Appeals for the Federal Circuit.[5]

Unfortunately, the ABA soon weighed in, and it wasn’t pretty: the Standing Committee unanimously found Unger “Not Qualified” for the judgeship.[6] Faced with the unfavorable rating as they entered the 97th Congress, the Reagan Administration hesitated to renominate Unger, waiting until April 21, 1983 before doing so.[7] Meanwhile, the Senate Judiciary Committee decided to undergo its own investigations and held hearings to allow the ABA to testify on the nomination.[8]

Over the course of five hearings, Unger, the ABA, and other witnesses testified on the nomination.[9] ABA Representatives Brooksley Born and William Thaddeus Coleman Jr. claimed that Unger “lacked the personal integrity” to be a federal judge, citing several instances of misconduct.[10] Specifically, they argued that Unger had a history of unethical behavior, including “falsifying affidavits, making improper contact with a bankruptcy judge, receiving improper payments in a bankruptcy case and failing to report $40,000 in income on his 1968 federal tax returns.”[11] In response, the White House noted that many prominent lawyers, including Carter Administration officials Lloyd Cutler and Griffin Bell, had reached out to the Committee and the ABA in support of Unger’s nomination.[12]

In a hearing before the Committee on October 27, 1983, Unger acknowledged “mistakes” that he had made in the past but argued that he was a “good trial lawyer” and “an honest man.”[13] Despite his plea, the Committee did not take further action on the nomination.[14] Shortly after Congress adjourned that year, Unger passed away from cancer: he was 56 years old.[15]

Looking back on the Unger nomination and his untimely death, one can argue that the Senate Judiciary Committee’s refusal to process his nomination was particularly cruel. However, at least one scholar has speculated that the lack of action was intended as a courtesy to Unger in his final months.[16] After all, the Committee was aware of Unger’s cancer diagnosis (Unger himself acknowledged it in the Oct. 27 hearing).[17] Furthermore, even though the Committee was controlled by Republicans, the lack of ABA support and the seriousness of the allegations against him made it likely that Unger would have been rejected on a direct vote.[18]

As for the Reagan Administration, they chose South Carolina lawyer Jean Galloway Bissell for the unfilled vacancy, and Bissell was swiftly confirmed. However, the lingering anger against the ABA for its treatment of Unger remained. While Unger was the only appellate nominee to get a unanimous “Not Qualified” rating in the Reagan presidency, his treatment, alongside those of other nominees, provided the motivation for the Bush Administration’s rejection of ABA pre-screening of nominees, a move the Trump Administration followed.[19] In a sense, we are still living with the post-Unger universe with regard to judicial nominees and the ABA.

[1] AP, Leonard Steven Grasz, Trump Judicial Nominee Rated As “Not Qualified,” Oked By Senate, CBS, Dec. 13, 2017, https://www.cbsnews.com/news/leonard-steven-grasz-trump-judicial-pick-not-qualified-okd-senate/.

[2] Abstracts, N.Y. Times, Jan. 17, 1969.

[3] See Sheldon Goldman, Picking Federal Judges 324 (Yale University Press 1997).

[4] See id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See id.

[10] See id.

[11] See J.Y. Smith, Sherman Unger, 56, Nominee to U.S. Court, Dies, Wash. Post, Dec. 4, 1983.

[12] See Sheldon Goldman, Picking Federal Judges 324 (Yale University Press 1997).

[13] J.Y. Smith, Sherman Unger, 56, Nominee to U.S. Court, Dies, Wash. Post, Dec. 4, 1983 (quoting Sherman Unger).

[14] See id.

[15] See id.

[16] See Sheldon Goldman, Picking Federal Judges 324 (Yale University Press 1997).

[17] Id.

[18] See Al Kamen, Inside: the Federal Judiciary: More and More Judges, Wash. Post, Oct. 25, 1985 (suggesting that Unger was about to be rejected before his death).

[19] Amy Goldstein, Bush Curtails ABA Role in Selecting U.S. Judges, Wash. Post, Mar. 24, 2001, https://www.washingtonpost.com/archive/politics/2001/03/23/bush-curtails-aba-role-in-selecting-us-judges/ebfe106c-344d-40a0-8dff-ccf0a2e411fe/?utm_term=.f3a578d2b7ec.

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The Vetting Room

Month: April 2018

UPDATED – Michael Truncale – Nominee for the U.S. District Court for the Eastern District of Texas

Judge Susan Brnovich – Nominee to the U.S. District Court for the District of Arizona

Unconfirmed: Prof. Wenona Whitfield

On the “Correctness” of Brown v. Board of Education

Mark Bennett – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Eric Tostrud – Nominee to the U.S. District Court for the District of Minnesota

Judge Nancy Brasel – Nominee to the U.S. District Court for the District of Minnesota

Wendy Vitter – Nominee to the U.S. District Court for the Eastern District of Louisiana

Judge Robert Summerhays – Nominee for the U.S. District Court for the Western District of Louisiana

Unconfirmed: Sherman Unger