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.

[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).

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.

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).