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.

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