A West Virginia legislative attorney and labor and employment lawyer, Thomas Kleeh is the first federal judicial nominee in sixty years to be proposed by a West Virginia Republican senator.  While Kleeh shares strong conservative bona fides, he is also supported by his Democratic home state senator.

Background

A West Virginia native, Thomas Shawn Kleeh was born in Wheeling on September 14, 1974.  He graduated summa cum laude from West Virginia University in 1996 and received a Juris Doctor from the West Virginia University College of Law in 1999.[1]  After graduating from law school, Kleeh joined the Bridgeport, WV office of Steptoe & Johnson as an Associate and became a Partner with the firm in 2006.[2]  He continues to work there today.

Additionally, from 2015 to 2017, Kleeh served as a Per Diem Staff Attorney to the West Virginia Senate Judiciary Committee.  In 2018, Kleeh serves as Staff Attorney to Senate President Mitch Carmichael.[3]

History of the Seat

Kleeh has been nominated to fill a vacancy on the U.S. District Court for the Northern District of West Virginia.  The seat opened on August 12, 2017, when Judge Irene Keeley moved to senior status.  Interestingly, Kleeh did not apply to be considered for the judgeship.  Rather, he was contacted by Senator Shelley Moore Capito (R-WV) in May 2017.[4]  After interviews with Capito, Rep. David McKinley (R-WV), and Sen. Joe Manchin (D-WV), Kleeh’s name was submitted to the White House.  Kleeh was nominated on February 15, 2018.

Legal Experience

While Kleeh has served as a Staff Attorney in the West Virginia Senate for the past three years, his primary legal experience has been with the Labor and Employment Department at Steptoe & Johnson.  In his 19 years at the firm, Kleeh has handled six jury trials and three bench trials.[5]

As a labor and employment attorney, Kleeh defended many employers in discrimination and wrongful termination suits filed by their employees.[6]  For example, Kleeh successfully defended West Virginia State University against a wrongful termination suit filed by an employee who was dismissed for allegedly abandoning her duties to chaperone a group field trip.[7]  Kleeh has also frequently defended schools and school boards against suits brought by students.[8]

Writings

As a law student, Kleeh authored an article criticizing the common law distinction between invitees and licensees with regard to property owner liability.[9]  West Virginia common law, also followed by many other states, lays out different duties of care that a landowner must abide by with regard to guests on his property based on whether the guest is a trespasser, licensee (present for their own pleasure), or invitee (present for the benefit of the property owner).  In his article, Kleeh criticizes this distinction, suggesting that injured parties shouldn’t go uncompensated “because of the purpose of their particular visit[.]”[10]

Interestingly, Kleeh also criticizes the longetivity of the distinction, noting that it was developed “in feudal England.”[11]  Instead, Kleeh suggests that the distinction be abandoned and the duty of care be left to juries, noting:

“Perhaps West Virginia should place more trust in juries to decide what constitutes reasonable behavior rather than relying on eighteenth century common law to do so.”[12]

Political Activity

Kleeh has frequently supported Republican West Virginia candidates as a donor, including donating $1750 to Capito’s senate run in 2014.[13]  Kleeh has also given to $1000 each to McKinley and fellow Republican Rep. Evan Jenkins, as well as donating to the Congressional Campaign of controversial West Virginia Supreme Court Justice Spike Maynard.[14]  Additionally, Kleeh supported the Supreme Court campaign of Justice Beth Walker, who challenged and defeated Justice Brent Benjamin by running as a conservative.[15]

Overall Assessment

As he has attracted little media attention so far and is strongly supported of both his home state senators, Kleeh looks likely to be confirmed on a bipartisan vote.  (Even if some Democrats are skeptical of Kleeh’s conservative political background, they are unlikely to embarrass Manchin by airing such concerns publicly).

Interestingly, Kleeh’s paper on property owner liability suggests that he supports basing rules of jurisprudence on the practicalities of modern litigation rather than “eighteenth century common law.”  While views expressed in a 20-year-old article cannot be given excessive importance, the article’s reasoning suggests that Kleeh’s jurisprudence may be adaptable to legal and practical changes.

While District Court judges do not have the same scope to shape jurisprudential rules that Circuit Court judges do, it will be interesting to see if Kleeh shows a similar willingness to adapt the law to modern considerations as a judge.

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