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.

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