How to Fight a Supreme Court Nomination (And Win)

In case you were, like me, on a plane without wifi this afternoon, Justice Anthony Kennedy is retiring.  Many on Twitter and in the blogosphere (not to mention the mainstream news) are bemoaning the loss of the Supreme Court “swing vote,” and decrying the “shortlist” put forward by the Trump Administration.  Others, of course, are celebrating.  Setting aside the dubious labeling of Justice Kennedy’s “legacy” happening, I want to address one key question: can liberals defeat the confirmation of Kennedy’s successor? And if they can, how will such a defeat happen?

A gut answer is that they can’t.  Not that it’s impossible to defeat a Supreme Court nomination (see Merrick Garland), but it’s pretty difficult to do so while the President’s party controls the U.S. Senate.  Five out of the last six defeated Supreme Court nominees went down before a Senate controlled by the opposing party.  The exception, Harriet Miers, was doomed by conservative opposition, not the Democratic minority.  As such, many observers have resigned themselves to Trump’s next nominee replacing Kennedy.

However, this does not mean that liberals can’t defeat a Trump SCOTUS nominee.  In fact, I’d proffer that they can, provided that certain factors go their way.

1. Maintain Messaging Discipline

“I am not a member of any organized party – I am a Democrat”

The Will Rogers quote above may have been tongue in cheek, but it perfectly encapsulates Democrats’ current problem.  Compared to Republicans, Democrats have a greater amount of ideological diversity within their party.  This diversity has allowed Democrats to maintain a close gap in the Senate despite being sharply outnumbered in the number of states that lean in their direction.  However, this diversity also means that it is difficult to keep the caucus united.  However, if Democrats are to win a SCOTUS battle, it’ll be because they maintained, if not unity, then messaging discipline.

Take the example of Merrick Garland.  Within hours of Justice Scalia’s passing, Senate Majority Leader Mitch McConnell announced that he would leave that seat open until after the 2016 Presidential election.  That became the official stance of the Republican Party relatively quickly and stayed consistent throughout the election.  To win this battle, Democrats need to maintain a similar messaging discipline.

2. Highlight the Right Messenger

Let’s say you’re a swing voter who is undecided about the new nominee President Trump has sent forward for Kennedy’s seat.  The nominee seems smart, competent, and reminds you of your next door neighbor (the one who always has his lawn mowed).  Now, you hear your Democratic senator call the nominee a “conservative ideologue” and an “extreme right-wing jurist.”  Is that going to convince you to oppose the nominee?  More importantly, will it persuade you to pick up the phone and call your senator?  My guess is no.

Now, instead, let’s say you see the following ad on television:

A young man in a military uniform stands before an American flag.  He explains that he and his brother enrolled in the military together to serve their country; that they served several tours of duty together.  Then one day, his brother died.  Not because of the enemy, but because the military contractor in charge of making body armor cut corners and sent him shoddy equipment.  He goes on: his family sued the contractor, demanding justice, but that the case was thrown out by the judge on a technicality.  Another judge would have given them a chance to refile.  This judge didn’t care.  And now the President wants to give this judge a promotion.  

Isn’t that more likely to move you to action?

Even if you disagree with the example I’ve laid out, there is evidence that campaigns with a personal touch are remarkably effective.

In 2014, conservative groups successfully defeated the nomination of NAACP attorney Debo Adegbile to head the DOJ’s Civil Rights Division.  The opposition was largely based on Adegbile’s representation of Mumia Abu-Jamal, who was convicted of the 1981 murder of Philadelphia police officer Daniel Faulkner.  Conservatives effectively leveraged the testimony of Maureen Faulkner, the officer’s widow, who publicly urged senators to oppose Adegbile.

More recently, California voters threw out Judge Aaron Persky based on his sentencing Brock Turner, convicted of sexual assault, to a six months in prison.  Persky’s recall, while supported by political officials, was ultimately kickstarted by the victim’s statement going viral, reinforcing the theme: highlighting the right messenger is key.

If Democrats do defeat the next SCOTUS nominee, it’ll be because they stepped back and highlighted the right messengers to make these arguments.

3. Raise the Political Cost of a Yes Vote

 

In 2014, I was meeting with the staffer of a Senate Democrat, a moderate and key swing vote, to urge the support of a particularly embattled nominee.  I listed all the reasons that the nominee was well-qualified for the position, explained the spuriousness of the opposition’s charges, and detailed the importance of filling this position.  The staffer  listened to me politely.  As I finished, he stated that he understood my points and added:

“If you want the senator to ignore the fact that constituents contacting the office in opposition outnumber supporters 10:1, that’s one thing; when it’s 100:1, our hands are tied.”

The staffer’s point was clear.  The merits of a particular stance on a nominee don’t ultimately decide the vote.  The vote is dictated by the political cost of voting yes.  In this case, the senator couldn’t vote to support the nominee unless the political cost was lower.

Similarly, if liberals want to defeat a Trump SCOTUS nominee, their top priority needs to be to highlight the political costs of a “yes” vote.  And this requires erasing the engagement gap.

4. Erase the Engagement Gap

Conservatives care more about courts than liberals.  They have for years.  It is because of their view on judges that Donald Trump is now President.  It is because of their view on judges that McConnell felt politically safe in holding open a Supreme Court seat for a new President to fill, and why he feels safe in filling Kennedy’s vacancy, even though we are less than six months from an election.

There are many reasons why this engagement gap exists, not the least of which being that conservatives have carefully tilled the ground on court issues for the last forty years.  Liberals, having focused on a variety of other issues, are now trying to catch up.  I feel safe in predicting that, without erasing the engagement gap on judges, liberals cannot win a SCOTUS fight.  And to erase the engagement gap, liberals need to build the appropriate infrastructure.

5. Build the Infrastructure

Name a prominent conservative organization:

Some of you would name the Federalist Society, the conservative legal organization whose membership card can be found in the wallets of many judges and nominees.  Others might suggest the National Rifle Association (NRA), one of the most powerful pro-gun lobbying groups in the country.  Other names should come to mind quickly: Focus on the Family; Moral Majority; Christian Coalition of America; Family Research Council, etc.  What do all these organizations have in common?  They are all involved in judicial politics (Now, the Federalist Society does not take positions on judges, but prominent FedSoc leader Leonard Leo advises the President on judicial issues).

Now name a prominent liberal organization:

Most of you would name the ACLU, which is one of the only organizations on the left whose fundraising and membership rival the conservative groups mentioned above.  However, unlike the groups noted above, the ACLU does not take a position on nominations and steers clear of judicial politics.

While other organizations, including Planned Parenthood, NARAL, the Leadership Conference, and People for the American Way, do get involved on judges, their ability to mobilize voters and constituents still pales in comparison.

Take an example:

The Judicial Crisis Network, run by Justice Thomas clerk Carrie Severino, has raised and spent millions to fight Obama judges and promote Trump’s picks.  Yet, no liberal equivalent existed until this year, when Demand Justice was founded.

To be clear, the infrastructure gap will not go away overnight, but Democrats will only be able to win a SCOTUS fight if they have managed to significantly narrow it.

 

As the SCOTUS fight unfolds and both sides flex their muscle, keep an eye on the five factors highlighted above.  Conservatives have shown how to win on judges for decades, but if liberals can maintain unity, highlight the right messenger, raise the political cost of a yes vote, erase the engagement gap, and build the infrastructure, they may be able to pull off an upset.

 

Roy Altman – Nominee for the U.S. District Court for the Southern District of Florida

A former federal prosecutor, Roy Altman was on the shortlist to be the top federal prosecutor in the Southern District of Florida before getting the nod for a judgeship instead.  Today, at age 36, Altman is the youngest judge Trump has nominated, and the youngest judicial nominee put forward since Judge David Bunning was nominated in 2001.

Background

Roy Kalman Altman was born in Caracas, Venezuela in 1982.  Altman received his B.A. cum laude from Columbia University in 2004 and his J.D. from Yale Law School in 2007.[1]  After receiving his J.D., Altman clerked for Judge Stanley Marcus on the U.S. Court of Appeals for the Eleventh Circuit.

After finishing his clerkship, Altman became a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Florida, staying with the office for six years.[2]  During his last year at the office, Altman served as Deputy Chief of the Special Prosecutions Section of the office.[3]  In 2014, Altman joined the Miami office of Podhurst Orseck, P.A. as a Partner.[4]  He continues to work there to this day.

In 2017, Altman’s name was floated as a candidate to be U.S. Attorney for the Southern District of Florida by the newly elected Trump Administration.[5]  The Administration ultimately ended up nominating Miami-Dade Circuit Judge Ariana Fajardo Orshan to that position.[6]

History of the Seat

Altman has been nominated for a vacancy on the U.S. District Court for the Southern District of Florida.  This seat opened when Judge Joan Lenard moved to senior status on July 1, 2017.  In October 2017, Altman interviewed with the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson.  The JNC chose Altman as one of ten finalists to be passed onto the Senators.[7]  After interviews with Rubio and Nelson, Altman Altman was contacted by the Trump Administration in February 2018.[8]  After interviewing with the White House Counsel’s Office and the Department of Justice, Altman was formally nominated on May 8, 2018.

Legal Experience

Altman’s legal career can be divided into two primary segments: working as a federal prosecutor; and being a Partner at Podhurst Orseck.  As a federal prosecutor, Altman handled a wide variety of cases, including drug crimes, white collar crimes, and immigration cases.[9]  During his time at the office, Altman had 22 jury trials (two as sole counsel, and 15 as lead counsel), and argued three appeals before the Eleventh Circuit.[10]  Among his more prominent cases, Altman prosecuted sex-trafficker Damian St. Patrick Baston and obtained a twenty-seven year sentence.[11]  During the trial, Altman’s cross-examination prompted Baston to accuse the attorney of being “an evil dude,” an outburst which did not ultimately help him either in the guilt or sentencing phases.[12]

From December 2014 onwards, Altman has worked as a Partner at Podhurst Orseck, working primarily in aviation disaster litigation.[13]  Notably, Altman represents the families of passengers killed in the disappearance of Malaysia Airlines Flight MH370, handling a multidistrict litigation before Judge Ketanji Jackson in Washington D.C.[14]

Writings

Over the last few years, Altman has occasionally voiced his opinion on public policy issues, usually advocating for conservative positions.

Border Security

In 2013, Altman authored an op-ed criticizing the recent Ninth Circuit decision in United States v. Cotterman.[15]  The Cotterman decision held that border patrol agents could not conduct a forensic search of a laptop seized at the border without reasonable suspicion of criminal activity.[16]  In his op-ed, Altman sharply criticizes the opinion, stating that the reasonable suspicion standard “will severely restrict the ability of federal agents to protect America’s borders.”[17]  He also argues that the opinion is “unworkable” and suggests that the Supreme Court should overturn the opinion (the Supreme Court denied to review the Cotterman decision, which remains good law to this day).

Search Incident to Arrest

In 2014, Altman authored an article advocating for an expansion of the search-incident-to-arrest doctrine (a doctrine that permits warrantless searches of items found on or around an arrestee’s person) to cover cell phones.[18]  In the article, Altman argues that, despite the storage capacity of modern cell phones, that:

“There is likewise little reason to treat cell phones differently because they may contain more “personal” information than a briefcase, suitcase, or address book.”[19]

Altman goes on to argue that criminals frequently use cell phones to “facilitate their illegal enterprises” and as such, they should not be granted protection against searches incident to arrest.[20]

Iran Deal

Altman has also been sharply critical of the Joint Comprehensive Plan of Action (Iran Nuclear Deal).  In a 2015 editorial, Altman urged Senator Chuck Schumer to fight the deal, stating:

“…wrongdoers must be punished, not rewarded; liars must be checked, not trusted; and terrorists must remain the objects of our enmity and the targets of our aggression, not our partners in negotiations or the subjects of our contrition.”[21]

Altman goes on to argue that the Deal will “embolden our enemies and discourage our allies” and urges Schumer to abandon his leadership ambitions to kill the deal.[22]

Political Activity

Altman has been fairly active as a donor and volunteer for Republican campaigns.  For example, Altman supported the campaigns of Miami Mayor Francis Suarez, Lt. Gov. Carlos Lopez Cantera, Rep. Mario Diaz-Balart, and Sen. Marco Rubio, all Republicans.[23]  Altman has also donated exclusively to Republicans, giving $4750 over the last five years.[24]

Additionally, Altman is also a member of the Republican Jewish Coalition, the American Enterprise Institute Enterprise Club, and the Federalist Society for Law and Public Policy Studies.[25]

Overall Assessment

While Altman is undoubtedly an intelligent and talented attorney, his nomination looks likely to draw opposition due to a number of factors.

First, Altman is remarkably young.  As noted above, Altman is only 36 years old, younger than any judicial nominee in the last sixteen years.  While Altman has gained a significant degree of experience in his 36 years, he still falls short of the twelve years of practice requirement the ABA recommends (an admittedly arbitrary cutoff).  Second, Altman has spoken and written in support of conservative legal and policy outcomes.  While Altman’s opposition to the Iran Nuclear Deal could be dismissed as a personal view irrelevant to his jurisprudence, his endorsement of broad law enforcement powers to search suspects could draw the ire of civil liberties groups and those rightfully distrustful of granting broad police powers to law enforcement.

Taking together his age, his writings, and his political activism Altman may face a tougher confirmation process than his fellow Southern District nominees.


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

[2] See id. at 2.

[3] Id.

[4] Id. at 1.

[5] David Markus, Candidate List for U.S. Attorney Expands (UPDATED), Southern District of Florida Blog, June 7, 2017, http://sdfla.blogspot.com/2017/06/candidate-list-for-us-attorney-expands.html.  

[6] Jay Weaver, Trump Nominates First Woman Ever to be U.S. Attorney in South Florida, Miami Herald, June 7, 2018, https://www.miamiherald.com/news/local/article212767819.html.  

[7] David Markus, Breaking — JNC Makes the Cut to 10 Finalists for District Judge, Southern District of Florida Blog, Nov. 29, 2017, http://sdfla.blogspot.com/2017/11/breaking-jnc-makes-cut-to-10-finalists.html.

[8] See Altman, supra n. 1 at 40.

[9] Id. at 20.

[10] Id. at 20, 23-24.

[11] United States v. Baston, No. 13-20914-CR-CMA (S.D. Fla. 2013).

[12] Jay Weaver, Jamaican Man Denies Being Global Pimp in Miami Sex-Trafficking Trial, Miami Herald, June 24, 2014, http://www.miamiherald.com/news/local/community/miami-dade/article1968022.html.  

[13]See Altman, supra n. 1 at 22.

[14] See Air Crash Over the S. Indian Ocean, No. 16-mc-00184-KBJ (D.D.C. 2016) (Jackson, J.) (pending).

[15] Roy Altman, Judges for Lax Border Security, Wall St. Journal, Apr. 3, 2013, https://www.wsj.com/articles/SB10001424127887323296504578397382773377250.  

[16] See United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc).

[17] See Altman, supra n. 15.

[18] Roy K. Altman, The Case for Incident-to-Arrest Searches of Cell Phones, 29 Crim. Just. 28 (Spring 2014).

[19] See id.

[20] See id.

[21] Roy K. Altman, Schumer Says the Right Thing on the Iran Deal – Now He Needs to Persuade Eleven More Senators, Nat’l Rev., Aug. 10, 2015, https://www.nationalreview.com/2015/08/charles-schumer-obama-iran-deal-senate-democrats/.

[22] See id.

[23] See Altman, supra n. 1 at 17-18.

[25] See Altman, supra n. 1 at 5-6.

Judge Rudy Ruiz – Nominee for the U.S. District Court for the Southern District of Florida

Rudy Ruiz, a state court judge in South Florida joined the bench at just 33 years old. Today, at age 39, he has been nominated to the federal bench.

Background

Rodolfo Armando Ruiz II was born in Miami in 1979.  Ruiz graduated from Duke University in 2002 and then from the Georgetown University Law Center in 2005.[1]

After graduation, Ruiz clerked for Judge Federico Moreno on the U.S. District Court for the Southern District of Florida, and then joined the Miami Office of White & Case as an Associate.[2]  In 2009, he moved to the Miami-Dade County Attorney’s Office.[3]

In 2012, Ruiz became a County Court Judge, appointed to the position by Republican Governor Rick Scott.  In 2015, Ruiz was appointed by Scott to be a Circuit Court Judge on the Eleventh Judicial Circuit of Florida, where he sits to this day.

History of the Seat

Ruiz has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on January 31, 2017, when Judge William Zloch moved to senior status.  In October 2017, Ruiz applied and interviewed with the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson.  The JNC chose Ruiz as one of ten finalists to be passed onto the Senators.[4]  After interviews with Rubio and Nelson, Ruiz was contacted by the Trump Administration in February 2018.[5]  After interviewing with the White House Counsel’s Office and the Department of Justice, Ruiz was formally nominated on May 8, 2018.

Legal Career

Ruiz began his legal career as a law clerk on the U.S. District Court for the Southern District of Florida.  After he left that position, Ruiz joined the Miami office of White & Case, working in the Corporate Latin America transactional practice group.[6]  While his work at the firm was primarily transactional, his next position at the Miami-Dade County Attorney’s Office focused on litigation.

As an Assistant County Attorney, Ruiz worked in the Tax & Finance, Torts, & Federal Litigation sections, handling tax, defense of tort claims, and civil rights cases respectively.  During his time at the office, Ruiz tried two cases in Florida state court as associate counsel, while trying six other cases as lead counsel before administrative agencies.[7]

Ruiz’s most prominent cases involved the defense of civil rights claims brought against Miami-Dade County.[8]  In one of the cases, which went to trial, the jury found for the plaintiff, but Ruiz successfully petitioned for a new trial, and defended the grant on appeal.[9]

Jurisprudence

Ruiz served as a County Court Judge in Florida from 2012 to 2015 and has served as a Circuit Judge since 2015.  In the former capacity, Ruiz heard criminal misdemeanor and traffic matters, civil protective orders, and landlord-tenant and small claims litigation.[10]  As a Circuit Judge, Ruiz handles major felonies and any civil cases with more than $15000 in controversy.  Over his six year tenure on state court, Ruiz has heard approximately 300 cases.

Among his more notable decisions, Ruiz vacated a jury award for a plaintiff who had slipped and fallen in the lobby of the defendant’s building,[11] denied a criminal defendant immunity under Florida’s Stand Your Ground law after he had stabbed his colleague,[12] and presided over a plaintiff’s vicarious liability victory in a case where the decedent was electrocuted by a hydraulic conveyor belt boom.[13]

During his tenure as a Circuit Judge, only one case has been overruled by a higher court, a relatively low reversal rate.

Writings

As a law student, Ruiz co-authored an article laying out the law governing Securities Fraud.[14]  The article breaks down the offenses that fall under the Securities Fraud umbrella, including Fraud and Insider Trading, as well as describing common defenses and enforcement mechanisms.[15]

Overall Assessment

While the 39-year-old Ruiz is on the younger end of judicial nominees put forward by the Administration, it is unlikely that Ruiz will attract too much opposition through the confirmation process.  First, Ruiz lacks a paper trail on controversial issues, having avoided op-eds and political activism.  Second, his record on the bench is relatively mainstream, with a low reversal rate.  Third, Ruiz is one of Trump’s few Hispanic nominees, and has a record of supporting minority lawyers, including membership in the Cuban American Bar Association and the Florida Muslim Bar Association.[16]

Furthermore,despite his youth, Ruiz narrowly meets the ABA cutoff of twelve years of legal experience to take the federal bench.  As such, Democrats are likely to keep their powder dry and focus their fire on other nominees.

 


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

[2] Id. at 2.

[3] Id.

[4] David Markus, Breaking — JNC Makes the Cut to 10 Finalists for District Judge, Southern District of Florida Blog, Nov. 29, 2017, http://sdfla.blogspot.com/2017/11/breaking-jnc-makes-cut-to-10-finalists.html.

[5] See Ruiz, supra n. 1 at 40.

[6] Id. at 41.

[7] Id. at 43.

[8] See Rolle v. Miami-Dade Cnty., Case No. 02-219101 CA 01 (25) (Fla. 11th Cir. Ct.), aff’d, 138 So. 3d 457 (Fla. 3d DCA 2014) (per curiam); Isaac v. Miami-Dade Cnty., Case No. 11-22698-CIV-PAS (S.D. Fla. 2011).

[9] See Rolle, supra n. 8.

[10] See Ruiz, supra n. 1 at 17.

[11] Gavers v. Espacio Miami Prop., LLC, Case No. 14-10879 CA 01 (22), 2017 WL 3047581 (Fla. 11th Cir. Ct. June 8, 2017).

[12] State v. Quintana, Case No. F12-23033 (Fla. 11th Cir. Ct. Mar. 2, 2016).

[13] Aldana v. Miami Tile Deliveries Corp., Case No. 15-6122 CA 01 (22) (Fla. 11th Cir. Ct.).

[14] XueMing Jimmy Cheng, Ryan Harrington and Rodolfo Ruiz II, Securities Fraud, 41 Am. Crim. L. Rev. 1079 (2004).

[15] See id.

[16] See Ruiz, supra n. 1 at 5-6.

Jay Richardson – Nominee for the U.S. Court of Appeals for the Fourth Circuit

On June 17, 2015, Dylann Roof, a 21-year-old white supremacist murdered nine African Americans during a prayer service at Emanuel African Methodist Episcopal Church in Charleston.  During Roof’s subsequent capital trial, the lead federal prosecutor was a well-connected South Carolinian named Jay Richardson.  On April 26, 2018, approximately sixteen months after Roof received the death penalty, Richardson was tapped by President Donald Trump for a seat on the U.S. Court of Appeals for the Fourth Circuit.

Background

A native South Carolinian from a well-connected family with a history in the Palmetto State, Julius Ness Richardson was born on October 26, 1976 in Columbia.  He received a B.S. from Vanderbilt University in 1999 and a J.D. from the University of Chicago Law School in 2003.  After graduating, Richardson worked for the prolific Judge Richard Posner on the U.S. Court of Appeals for the Seventh Circuit and then for Chief Justice William Rehnquist on the U.S. Supreme Court (clerking alongside fellow judicial nominee Martha Pacold and Deputy Solicitor General Jeff Wall).[1]

After his clerkship, Richardson joined the D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel as an Associate.  In 2009, Richardson moved to the U.S. Attorney’s Office for the District of South Carolina, where he continues to serve as an Assistant United States Attorney.[2]

History of the Seat

Richardson has been nominated to replace U.S. Circuit Judge Dennis Shedd, who moved to senior status on January 30, 2018.  In June 2017, a few months before Shedd would announce his departure, Richardson was contacted by the White House to gauge his interest in an appointment to the Fourth Circuit.[3]  Richardson was nominated on May 7, 2018, after interviews with the White House and South Carolina Senators Tim Scott and Lindsey Graham.[4]

Legal Experience

Richardson has held two main legal positions after finishing his clerkships: working as an associate at Kellogg Huber; and working as a federal prosecutor.  In the former position, Richardson focused primary on commercial litigation.  Among the matters he handled at Kellogg Huber, Richardson represented Standard Iron Works, a steel purchaser, in a Sherman Act antitrust action against a series of defendant iron producers, alleging coordinated supply cuts.[5]

As a federal prosecutor, Richardson’s most famous case was the prosecution of Dylann Roof, the aforementioned white supremacist who had murdered nine churchgoers in Charleston.[6]  In the case, Richardson handled all pre-trial matters, as well as the trial and the sentencing phase, successfully leading to the imposition of the death penalty against Roof.[7]  Richardson also successfully defended a challenge based on the constitutionality of the death penalty brought by Roof’s attorneys.[8]

In other cases he handled as a federal prosecutor, Richardson prosecuted MS-13 gang members in a murder-for-hire case,[9] and the longest-serving sheriff in South Carolina for bribery.[10]

Writings

In 2002, as a student at the University of Chicago Law School, Richardson authored an article discussing Federal Rule of Civil Procedure 4(k)(2).[11]  Rule 4(k)(2) allows federal courts to exercise jurisdiction over defendants who would otherwise not fall under the jurisdiction of any state jurisdiction.  Richardson notes that courts vary in interpreting which party has the burden of production to determine that a defendant falls under the purview of 4(k)(2), with at least one court (the Seventh Circuit) placing the burden on the Defendant.[12]

In his paper, Richardson advocates a burden-shifting mechanism, in which plaintiffs bear an initial burden to present a prima facie case that a defendant falls under the purview of 4(k)(2), at which point the burden shifts to the defendant to demonstrate that a state jurisdiction can exercise jurisdiction over themselves.[13]  Richardson notes that this burden-shifting “minimizes the costs of dispute resolution.”[14]

Memberships

Richardson has been a member of the Federalist Society for Law and Public Policy Studies since 2017 (approximately the time that he has been under consideration for a federal judgeship).[15]  Richardson has also been a member of the Palmetto Club and the Forest Lake Club, two private clubs that previously restricted African Americans from membership (the Forest Lake Club admitted its first African American member in 2017).[16]

Overall Assessment

Given his fame as the prosecutor who successfully convicted Dylann Roof, Richardson is not an easy nominee for senators to oppose (the attack ads write themselves).  Nevertheless, even setting the Roof case aside, it is hard to deny that Richardson is qualified for a seat on the federal bench.

First, Richardson has impeccable academic credentials, including having clerked for two of the most influential judges in the country.  Second, Richardson boasts complex litigation experience on both the civil and criminal side.  Additionally, Richardson’s relative reticence on public policy issues and his relative lack of controversy also favor his confirmation.  Furthermore, while Richardson is a member of the Federalist Society, his membership is relatively recent and has not been accompanied by any extensive speaking or political activity.

Overall, barring any unexpected developments, Richardson will likely be confirmed in due course.  On the bench, Richardson looks likely to chart a conservative course, but may, like Posner before him, surprise.


[1] Sen. Comm. on the Judiciary, 115th Congress, Julius Ness Richardson: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id. at 30.

[4] Id.

[5] Standard Iron Works v. Arcelormittal et al., 639 F. Supp. 2d 877 (N.D. Ill. 2009) (denying Defendant steel producers’ motion to dismiss).

[6] See Matt Zapotosky, Roof’s Journal of Racist Rants Revealed on Emotional Day, Wash. Post, Jan. 6, 2017.

[7] Alan Blinder and Kevin Sack, Dylann Roof is Sentenced to Death in Charleston Church Massacre, N.Y. Times, Jan. 10, 2017.

[8] United States v. Roof, 225 F. Supp. 3d 413 (D.S.C. 2016).

[9] United States v. Teran, 496 Fed. App’x. 287 (4th Cir. 2012).

[10] Chris Dixon, Judge Rejects Plea Deal for South Carolina Sheriff, N.Y. Times, Dec. 18, 2014.

[11] Julius Ness Richardson, Shifting the Burden of Production Under Rule 4(k)(2): A Cost-Minimizing Approach, 69 U. Chi. L. Rev. 1427 (Summer 2002).

[12] Id. at 1431

[13] See id. at 1437-39.

[14] Id. at 1441.

[15] See Richardson, supra n. 1 at 5.

[16] Id. at 5-6.

Raul Arias-Marxuach – Nominee for the District of Puerto Rico

President Trump has received some criticism for the lack of diversity in his judicial candidates.  As of June 18, 2018, out of the 125 nominations made to the Article III courts, just four have been Hispanic.  One of those four is Raul Arias-Marxuach, who joins a federal bench composed entirely of Hispanic judges, serving a population where 95% of citizens speak Spanish as their first language.

Background

Raul Manuel Arias-Marxuach was born in San Juan, Puerto Rico in 1967.  Arias-Marxuach received his B.S. cum laude from Boston College in 1989 and his J.D. from the University of Puerto Rico School of Law in 1992.[1]  After graduating, Arias-Marxuach clerked on the Supreme Court of Puerto Rico and then received an LLM from Harvard Law School.

After receiving his LLM, Arias-Marxuach joined the San Juan firm Fiddler Gonzalez & Rodriguez P.S.C. as a Litigation Associate.[2]  In 1995, Arias-Marxuach moved to McConnell Valdes LLC.  Arias-Marxuach became an Income Partner at the firm in 1999 and a Capital Partner in 2003.[3]  He continues to practice at the firm.[4]

History of the Seat

Arias-Marxuach has been nominated for a vacancy on the U.S. District Court for the District of Puerto Rico.  This seat opened when Judge Jose Fuste moved to senior status on June 1, 2016.  No nomination was made to this seat during the Obama Administration.

In March 2017, Arias-Marxuach was contacted by the White House after being recommended for a judgeship by Resident Commissioner Jenniffer Gonzalez.[5]  Arias-Marxuach was selected as the primary candidate for the vacancy in April 2017, but was not officially nominated for the next year, until April 10, 2018.

Political Activity

Arias-Marxuach has limited political experience, having worked as a volunteer attorney for the campaign of Governor Luis Fortuno in 2008 (Fortuno caucused with the GOP as a resident commissioner in Washington).[6]  He also served as a member of the Republican National Lawyers Association in 2003.[7]

Legal Experience

Arias-Marxuach has spent his almost entire legal career atMcConnell Valdes LLC,  working in a variety of subject areas including maritime law, product liability, and antitrust matters.[8]  During his career, Arias-Marxuach has tried three cases to verdict before the U.S. District Court for the District of Puerto Rico.[9]

Among the most notable cases he handled, Arias-Marxuach represented the University of Puerto Rico (UPR) in seeking legal remedies against 21 student “strikers” who sought to maintain collective action against the University.[10]  The case went all the way to the Puerto Rico Supreme Court, which found that students at the University do not have the right to strike.[11]

Overall Assessment

When nominated, Commissioner Gonzalez described Arias-Marxuach as “very professional…conservative, and his character is impeccable.”[12]  A review of his record mostly confirms her assessment.  Arias-Marxuach brings a long record with complex civil litigation to the bench, along with a generally non-controversial background.  While Arias-Marxuach may draw some questions based on his role in ending the UPR student strike, Democrats are unlikely to target his nomination, focusing on more conservative targets.


[1] Sen. Comm. on the Judiciary, 115th Cong., Raul Arias-Marxuach: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] Id.

[5] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[6] See id. at 8.

[7] See id. at 4.

[8] See id. at 1.

[9] See id. at 18.

[10] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[11] See Univ. of Puerto Rico v. Labarde Torres, 180 D.P.R. 253 (P.R. 2010).

[12] See Noticel, Supra n. 10.

Andrew Brasher – Nominee for the U.S. District Court for the Middle District of Alabama

Late last year, the Trump Administration suffered an unusual and embarrassing defeat when Alabama judicial nominee Brett Talley withdrew in the face of bipartisan opposition.  Among the many knocks against Talley were his youth and inexperience.  Now, the Administration has replaced Talley with Alabama Solicitor General Andrew Brasher, who is just as young, but brings a significantly greater amount of courtroom experience.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General (working with Talley in the office).[3]  Brasher continues to serve in the office.

History of the Seat

Brasher has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on August 1, 2015, when Judge Mark Fuller resigned after his arrest for domestic violence.[4]  Despite the seat opening in President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[5]

In September 2017, the Trump Administration nominated Talley to the court.[6]  Unfortunately, Talley’s nomination quickly drew criticism from Democrats for his youth and lack of experience.  Shortly after his nomination passed through the Judiciary Committee on a party-line vote, it became public that Talley did not disclose his marriage to Ann Donaldson, the chief of staff to White House Counsel Don McGahn in his paperwork.[7]  Soon after, news broke of undisclosed posts and comments written by Talley under a pseudonym,[8] including message board comments defending “the first KKK.”[9]  Facing increasing bipartisan pushback to Talley’s nomination, the White House agreed to withdraw Talley’s nomination.[10]

On December 9, 2017, Sen. Richard Shelby (R-AL) reached out to Brasher to schedule an interview for the Middle District vacancy.[11]  Shelby recommended Brasher to the White House in late December.  Brasher was officially nominated on April 10, 2018.

Legal Experience

Setting aside his clerkship, Brasher has had two main legal jobs: as an associate at Bradley Arant; and as Deputy Solicitor General and Solicitor General of Alabama.  During his time at Bradley Arant, Brasher worked in complex civil litigation, including product liability cases.  At the firm, he notably represented Republican Gov. Bob Riley in defending a controversial line item veto (later overturned by the Alabama Supreme Court).[12]

As the Deputy Solicitor General and Solicitor General of Alabama, Brasher defended Alabama laws and convictions before state and federal courts.  As such, Brasher argued three cases before the U.S. Supreme Court.

In McWilliams v. Dunn, Brasher defended the imposition of the death penalty on James McWilliams, despite the latter’s alleged serious mental health issues.[13]  McWilliams argued that Supreme Court precedent required him to have access to a defense expert to provide evidence of mental incapacity, which Brasher disputed.  The Supreme Court ultimately sidestepped the question of whether McWilliams was entitled to a defense expert, ruling instead that the judge erred in denying any expert examination of McWilliam’s mental state.[14]

In Alabama Legislative Black Caucus v. Alabama, Brasher defended the constitutionality of Alabama’s state legislative districts.  The Supreme Court ultimately reversed the lower court ruling upholding the districts, suggesting that many of whom constituted racial gerrymanders.[15]  Additionally, in Alabama Department of Revenue v. CSX Transp., Inc., Brasher defended an Alabama tax on diesel for rail carriers while exempting competitor industries against charges that it was discriminatory.  The Court ultimately held that Alabama had violated federal law.[16]

In addition to his Supreme Court work, Brasher has also litigated extensively in Alabama state and federal courts.  Notably, Brasher defended the constitutionality of “admission privilege” requirements for abortion providers in Alabama, struck down by Judge Myron Thompson, and ultimately enjoined after the Supreme Court struck down a virtually identical law in Whole Woman’s Health.[17]  Brasher also successfully defended Alabama’s ban on PAC-to-PAC transfers against allegations that it violated the First Amendment.[18]

Writings and Speeches

Setting aside his official positions as Alabama Solicitor General, Brasher had written and spoken extensively on legal and political issues.

 

Federal Regulation

On February 4, 2017, Brasher served on a Federalist Society panel titled “Combating Federal Overreach.”[19]  The panel consisted of Brasher and the Solicitor Generals of Florida, West Virginia, and Texas, moderated by Allen Winsor, a former Florida Solicitor General who is now up for a federal judgeship.  On the panel, Brasher discussed the litigation over the EPA’s control of “navigable waters” as defined by the Clean Water Act and interpreted by the Army Corps of Engineers.  Brasher criticizes the rule as overly broad and beyond the statutory intent of Congress.  Later in the discussion, Brasher also criticized local regulations, noting:

“…oftentimes, you actually see a locality within a state that’s really, sort of, in league with the federal government against the state’s authority.”[20]

Charitable Donations

On July 21, 2015, Brasher moderated a debate titled “Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations.”  The discussion was between Dr. Craig Holman from Public Citizen and Hans Von Spakovsky of the Heritage Foundation and discussed IRS interference in not-for-profits and political organizations.[21]

Same-Sex Marriage

In 2015, while defending Alabama’s ban on same-sex marriage before the U.S. Supreme Court, Brasher wrote an article on the subject on SCOTUSBlog.[22]  In the piece, Brasher argues that the Supreme Court “should at least reject the argument that these laws serve no legitimate state interest.”[23]  Brasher suggests that states maintain a legitimate interest in limiting marriage to opposite sex couples, noting:

“I hope that . . . [the Court] does not malign the majority of voters in a majority of states as irrationally prejudiced.”[24]

Death Penalty

Shortly after the Supreme Court narrowly upheld Oklahoma’s lethal injection procedure in Glossip v. Gross, Brasher authored an article in SCOTUSBlog supporting the decision.[25]  In the article, Brasher argues that disputes about the method of administering the death penalty are actually about the legality of the penalty itself, stating:

“Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?”[26]

However, Brasher also acknowledges some of the arguments of death penalty opponents, noting:

“It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process.”

Redistricting

Shortly after the U.S. Supreme Court struck down North Carolina’s redistricted maps in Cooper v. Harris, Brasher published an article critical of the decision.[27]  Brasher suggests that the decision would lead to more judicial intervention in redistricting without providing adequate standards for them to do so.  Brasher also suggests that courts impose a requirement on plaintiffs to offer a map that would meet the partisan goals of the legislature.[28]

Political Activity

Brasher, a Republican, has worked as a volunteer on the 2010 campaigns of Luther Strange to be Attorney General and of Bradley Byrne (now a U.S. Representative) to be Governor of Alabama.[29]  Brasher also served on the Trump Transition Team, coordinating criminal justice policy with the incoming Administration.[30]

In addition, Brasher donated $300 to the Alabama Republican Party in 2015, his only notable political contribution.[31]

Overall Assessment

While Brasher is the exact same age as Brett Talley, he approaches the confirmation process with several key advantages that the latter did not have.

First, Brasher has served as Solicitor General, a position that has given him significant litigation experience, including three Supreme Court oral arguments.  In recognition of this fact, a substantial majority of the American Bar Association Standing Committee on the Judiciary rated Brasher “Qualified” for the judicial appointment, with a minority finding him “Well Qualified.” (In comparison, the Committee had unanimously found Talley “Not Qualified.”)

Second, Brasher has not, to our knowledge, ever blogged, anonymously or otherwise, on his personal political views.  Rather, his writings, while revealing a conservative judicial philosophy, focus on interpreting and understanding Supreme Court precedent.

That being said, Brasher will still likely attract significant opposition to his confirmation.  First, having defended many controversial positions as Solicitor General (and having lost repeatedly before the Supreme Court), Brasher will no doubt be called upon to answer for the stances he took.  Second, Brasher’s involvement in the Federalist Society will likely draw criticism, given much scrutiny over the conservative organization’s outsized influence over Trump’s court nominees.  As such, given Brasher’s background and expected longevity on the bench, Brasher will likely be opposed by most Democrats.  Nevertheless, unlike his predecessor, Brasher remains a favorite to be confirmed.


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

[2] Id. at 2.

[3] Id.

[4] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[5] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[6] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[7] Matt Apuzzo and Michael S. Schmidt, Trump Judicial Pick Did Not Disclose He is Married to a White House Lawyer, N.Y. Times, Nov. 13, 2017, https://www.nytimes.com/2017/11/13/us/politics/trump-judge-brett-talley-nomination.html?_r=0.  

[8] Zoe Tillman, A Trump Judicial Nominee Appears to have Written About Politics on a Sports Website and Didn’t Disclose It, Buzzfeed News, Nov. 13, 2017, https://www.buzzfeed.com/zoetillman/a-trump-judicial-nominee-appears-to-have-written-about?utm_term=.lfJaLQm8G#.atjgYrER6.

[9] Mark Joseph Stern, Trump Judicial Nominee Brett Talley Appears to Have Defended “the First KKK” in Message Board Post, Slate, Nov. 15, 2017, http://www.slate.com/blogs/the_slatest/2017/11/15/trump_nominee_brett_talley_appears_to_have_defended_the_first_kkk.html.  

[10] Zoe Tillman, The White House Says Two of Trump’s Controversial Judicial Nominees Won’t Go Forward, BuzzFeed News, Dec. 12, 2017, https://www.buzzfeed.com/zoetillman/trump-is-suddenly-facing-a-significant-republican-roadblock?utm_term=.bo9w8BdnA#.siJmaqzpA.  

[11] See Brasher, supra n. 1 at 40-41.

[12] McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

[13] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

[14] See id.

[15] See 135 S. Ct. 1257 (2015).

[16] 135 S. Ct. 1136 (2015).

[17] See Planned Parenthood Southeast v. Strange, 2:13cv405-MHT (M.D. Ala.).

[18] Alabama Democratic Conference v. Attorney Gen., 838 F.3d 1057 (11th Cir. 2016).

[19] Andrew Brasher, Combatting Federal Overreach (Feb. 4, 2017) (video available at https://www.youtube.com/watch?v=s-71pu5xnOA).

[20] Id. at 1:19:45.

[21] Andrew Brasher, Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations (July 21, 2015) (video available at https://www.youtube.com/watch?v=_1tFCp-rYGQ).

[22] Andrew Brasher, Good Faith and Caution, Not Irrationality or Malice, SCOTUSBlog, Jan. 16, 2015, http://www.scotusblog.com/2015/01/symposium-good-faith-and-caution-not-irrationality-or-malice/.

[23] See id.

[24] Id.

[25] Andrew Brasher, The Death Penalty Lives to Fight Another Day, SCOTUSBlog, June 29, 2015, http://www.scotusblog.com/2015/06/symposium-the-death-penalty-lives-to-fight-another-day/.  

[26] Id.

[27] Andrew Brasher, A Recipe for Continued Confusion and More Judicial Involvement in Redistricting, SCOTUSBlog, Mar. 23, 2017, http://www.scotusblog.com/2017/05/symposium-recipe-continued-confusion-judicial-involvement-redistricting/.  

[28] Id.

[29] See Brasher, supra n. 1 at 20.

[30] See id.

David Porter – Nominee to the U.S. Court of Appeals for the Third Circuit

While the Trump Administration has displayed a tendency to nominate conservative judges to courts in blue and purple states, the selection of David Porter marks one of the most aggressive moves by the Trump Administration on this front. Porter’s nomination, which comes over the repeated objections of Pennsylvania Senator Bob Casey, sends a clear signal that the White House will not accommodate senatorial objections to their preferred candidates on the circuit court level.

Background

David Porter was born in Kittanning, Pennsylvania on March 8, 1966. He graduated from Grove City College in Northwest Pennsylvania in 1988 and graduated from George Mason Law School in 1992. Upon earning his J.D., Porter went to clerk for Judge D. Brooks Smith on the U.S. District Court for the Western District of Pennsylvania for two years. Following his clerkship, Porter joined the law firm Buchanan Ingersoll & Rooney and has stayed at the firm ever since.[1]

In 2014, Porter’s name was floated by Sen. Pat Toomey to fill a vacancy on the U.S. District Court on the Western District of Pennsylvania.[2]  While Toomey had struck a deal with Sen. Bob Casey to nominate one judge for every three that Casey put forward, Porter’s nomination was ultimately scrapped due to progressive backlash (legal groups were able to raise 40,000 signatures against Porter) and Casey’s opposition.[3]

History of the Seat

Porter is nominated to take the seat of Judge D. Michael Fisher, another GOP stalwart from Western Pennsylvania who in 2002 served as the GOP nominee for governor, who moved to senior status on February 1, 2017.[4]  Porter had been in contact with the White House and was selected as a prospective nominee early in 2017.[5]  However, Casey informed the White House of his opposition to the nomination soon after and indicated that he had “serious concerns” with Porter.[6]  As Casey’s opposition was clear, the White House sat on the nomination for a year, only nominating Porter after Chairman Chuck Grassley substantially cut back the blue slip policy for Circuit Court nominees, indicating that he would only block action on nominees where home state senators had not been adequately consulted.[7]

Legal Career

Porter’s legal career at Buchanan Ingersoll consists mostly of defense side commercial litigation work and First Amendment work for media and broadcasters.[8]  However, he notably represented former Sen. Rick Santorum in sorting out a residency challenge during his 2006 re-election campaign (which coincidentally was won by Casey).[9]

Political Activity and Affiliations

Porter has been a frequent GOP political donor since 2000. Over the last two decades, He has made 29 donations to GOP candidates and/or the Republican National Committee. He has no recorded donations to a Democrat. His donations to the GOP and GOP candidates totaled $13,550.

Porter has been a particular supporter of Santorum; making eight donations worth $4150 to Santorum’s campaigns over the years. From 2010 to 2016, he also has made four donations of $500 each to Pat Toomey.[10]

Porter also leads the Pittsburgh Chapter of the Federalist Society, a conservative legal advocacy group,[11] and is a member of the Republican National Lawyers Association. He served as a counsel on the Bush-Cheney 2004 reelection campaign.

Writings and Advocacy

While Porter has not been as prolific a writer as other Trump nominees, he has frequently advocated for conservative legal positions.  In 2009, Porter co-founded the Pennsylvania Judicial Network, which opposed the nomination of then-Judge Sonia Sotomayor to the U.S. Supreme Court, branding her nomination a sign of “judicial elitism.”[12]

Additionally, Porter was a strong opponent of the constitutionality of the Affordable Care Act as challenged in NFIB v. Sebelius. In the Pittsburgh Post-Gazette, he wrote a piece titled “Is the health care law constitutional? No, strike it down.”  In the piece, Porter emphasizes originalist arguments, writing that “[t]he framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable.”[13] He adds that original understandings of the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause made clear “the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.”[14]

In another piece on the Commerce Clause, Porter stressed that a ruling for the ACA would “break the Framers’ structural design that for 225 years has preserved individual liberty and served as a check on unlimited federal power.”[15]

Porter likewise found fault with the externality and tax arguments in favor of the ACA. He called the notion that we are all part of the healthcare marketplace a “metaphysical abstraction,”[16] and claimed that such a reading could “require people to buy a car.”[17] He said of the tax argument “that the Supreme Court is not likely to adopt it, either. Nor should it.”[18]  Ultimately, the Supreme Court upheld the individual mandate of the Affordable Care Act as a tax.

Overall Assessment

Looking at his overall record, there is little doubt that Porter will be a conservative judge on the Third Circuit.  His writings also suggest a strong leaning towards an originalist judicial philosophy.  This philosophy, combined with his advocacy against the Affordable Care Act and Justice Sotomayor’s nomination, has already drawn the strong opposition of liberal groups and, likely, will draw the opposition of senators as well.

However, one cannot talk about Porter without addressing the procedural problems with his nomination.  During the 114th Congress, the Obama Administration nominated Rebecca Ross Haywood, a well-respected appellate prosecutor, to the Third Circuit.  Haywood was blocked by Toomey, and Grassley respected his use of a blue slip and declined to give Haywood a hearing.  Grassley’ has now refused to extend the same courtesy to Casey.

While three appellate nominees have been given hearings in this Congress without home-state senatorial support, there is something different about Porter.  Namely, when the White House nominated Porter, Casey’s opposition was clearly (and publicly) laid out.  While the White House is under no obligation to honor a senator’s preferences on appellate nominees, one would expect the Judiciary Chairman to uphold the standards he himself laid out.  Grassley previously indicated that he would move forward on circuit court judges without blue slips only where the recalcitrant home state senators had been adequately consulted.  It is hard to demonstrate meaningful consultation in a case like this, where the home state senator has repeatedly and consistently expressed his opposition to a prospective nominee, and the nominee was put forward anyway.

Overall, it is unclear whether Casey’s objections will carry any weight among his Republican colleagues.  Assuming they don’t, Porter remains a favorite for confirmation, adding an assertive conservative voice to the relatively collegial Third Circuit.


[1] Sen. Comm. on the Judiciary, 115th Cong., David James Porter Questionnaire for Judicial Nominees, at 1-2.

[2] Jennifer Bendery, Pennsylvania Progressives Race to Stave Off Potential Republican Obama Nominee, HuffPost, March 27, 2014, https://www.huffingtonpost.com/2014/03/27/obama-judicial-nominee-david-porter_n_5042326.html.  

[3] Jennifer Bendery, Pennsylvania Progressives Torpedo Nomination of Potential GOP Obama Pick, HuffPost, June 2, 2014, https://www.huffingtonpost.com/2014/06/02/david-porter-toomey-obama-nominee_n_5433446.html.  

[5] See Porter, supra n. 1 at 28-29.

[6] Jennifer Bendery, Democrats Can’t Stop Trump’s Agenda. But They Can Block His Judicial Nominees., HuffPost, May 10, 2017, https://www.huffingtonpost.com/entry/trump-judicial-nominees-democrats-blue-slips_us_59137061e4b0bc71ddae8749?section=us_politics.  

[7] See Harsh Voruganti, “Bending Blue Slips: Grassley’s Strategic Error,” Vetting Room (Nov. 24, 2017) at  https://vettingroom.org/tag/blue-slips/.

[8] Supra Porter, note 1 at 15.

[9] Andrew Conte, “Santorum’s lawyer rebuffs challenge to residency,” Pittsburgh Tribune Review (May 26, 2006).

[11] Supra, note 1, at 4.

[12] See Letter from Vanita Gupta, President & CEO, Leadership Conference on Civil and Human Rights to U.S. Senate (June 4, 2018) (available at https://civilrights.org/oppose-confirmation-david-porter-u-s-court-appeals-third-circuit/#_ftn14).

[13] Porter, “Is the health care law constitutional? No, strike it down.”  Pittsburgh Post-Gazette (Mar 25. 2012) at http://www.post-gazette.com/opinion/Op-Ed/2012/03/25/Is-the-health-care-law-constitutional-No-strike-it-down/stories/201203250223.

[14] Id.

[15] Porter, “A Whirlwind Tour of the Supreme Court’s Commerce Clause Jurisprudence,” Center for vision and values (Apr. 2, 2012) at http://www.visionandvalues.org/2012/04/a-whirlwind-tour-of-the-supreme-courts-commerce-clause-jurisprudence/.

[16] Id.

[17] Supra, note 13.

[18] Supra, note 13.