Kenneth Bell – Nominee to the U.S. District Court for the Western District of North Carolina

Jonas Federal Building (site of the W.D.N.C. Courthouse in Charlotte).

A former Republican candidate for Congress, Ken Bell is Trump’s first nominee for the Western District of North Carolina.  Setting aside Bell’s political history, he is likely to face questions about his support for prosecuting Hillary Clinton in 2016.

Background

Kenneth Davis “Ken” Bell was born in Bedford, OH in 1958.[1]  Bell attended Wake Forest University and Wake Forest University School of Law.  He then joined the U.S. Attorney’s Office for the Western District of North Carolina as an Assistant U.S. Attorney.  He stayed in the office for the next 20 years, except for a 2-year hiatus at Womble Carlyle Sandridge & Rice in Winston-Salem.[2]

In 2003, Bell joined the Charlotte office of Mayer Brown as a Partner.  Three years later, Bell shifted to the Charlotte office of Hunton & Williams.[3]  In 2009, Bell moved again to McGuireWoods LLP in Charlotte, where he continues to work as a Partner.[4]

History of the Seat

Bell has been nominated for the U.S. District Court for the Western District of North Carolina.  This seat opened on August 31, 2017, when Judge Richard Voorhees moved to senior status.  Around the time the vacancy opened, Bell reached out to Sens. Richard Burr and Thom Tillis (R-NC) to interview for the seat.[5]

In November 2017, Bell was recommended to the White House for the vacancy.[6]  On April 12, 2018, Bell was officially nominated for the seat.

Legal Experience

Bell has practiced law for approximately thirty-five years, with that time evenly split between working as a federal prosecutor and in private practice.

Federal Prosecutor

Bell has two stints as a federal prosecutor in the U.S. Attorney’s Office for the Western District of North Carolina, from 1983 to 1988 and from 1990 to 2003.  While Bell has handled many cases as a federal prosecutor, he is perhaps most famous for his prosecution of a Hezbollah cell operating in Charlotte.  His prosecution produced the first trial conviction ever secured under the Material Support statute.  The cell consisted of individuals who would buy cigarettes in North Carolina and resell them illegally in Michigan, passing on to the profits to Hezbollah.[7]  In addition to securing the first trial convictions under the Material Support statute, Bell also secured the first trial convictions for a terrorist cell under the RICO statute.[8]  Bell’s work on the prosecution resulted in him being awarded the Attorney General’s John Marshall Award for Trial of Litigation.[9]

Among other matters, Bell prosecuted drug crimes,[10] voting fraud,[11] counterfeiting,[12] and civil rights violations.[13]

Private Practice

Bell has been in private practice since 2003, shifting between the firms of Mayer Brown, Hunton & Williams, and McGuire Woods in Charlotte.  In each of these positions, Bell worked primarily on defending individuals and corporations charged with white collar crimes.[14]

Notably, Bell was the chief defense counsel to James Black, the Speaker of the North Carolina House of Representatives, who faced federal charges of corruption.[15]  Black was charged, among other counts, with bribing Republican Rep. Michael Decker to switch parties in 2003, allowing Black to remain Speaker despite a narrow Republican majority.  As Black’s defense counsel, Bell negotiated a plea to one charge of receiving illegal gratuities.[16]  More recently, Bell also represented Rep. Robert Pittenger (R-NC) against corruption charges.[17]

Since 2012, Bell has served as a Receiver over the assets of the Rex Venture Group (also known as ZeekRewards), a Ponzi scheme whose closing created over $800 million in losses.[18]  As Receiver, Bell has filed suits against insiders and net winners from the scheme, seeking to recover the contributions put in by those who were defrauded.[19]

Political Activity

In the 1990 election cycle, Bell ran as a Republican for North Carolina’s 5th Congressional District against Democratic Incumbent Stephen Neal.  Bell won the primary against fellow Republican Steve Royal with 51% of the vote.[20]  During the campaign, Bell attacked Neal for his efforts in Congress on behalf of the Savings & Loan Industries.[21]  However, Bell in turn was attacked by Democrats for using $2500 in campaign funds to make mortgage and car payments.[22]  Rep. Beryl Anthony (D-Ark.), the then-Chairman of the Democratic Congressional Campaign Committee (DCCC) called the use of campaign funds “just plain wrong.”[23]  Bell and other Republicans engaged in the practice defended their actions, arguing that the use of campaign funds for personal expenses was legal and helped level the playing field against powerful incumbents.[24][25]  Ultimately, Bell took 41% of the vote in the ultimate election.[26]

Bell has been a frequent donor to Republicans, having given over $10000 over the last twelve years.[27]  Bell has given particularly generously to Burr, who has received over $4000.[28]  Others Bell has donated to include former Rep. Sue Myrick, Sen. Marco Rubio, and presidential candidate Mitt Romney.[29]

Writings

Throughout his legal career, Bell has written and spoken frequently on legal and public policy issues.   Of the many topics that Bell has written on, two are particularly notable.

First, Bell has repeatedly argued for the prosecution of Hillary Clinton for her use of unsecured email servers during her service as Secretary of State.  In a 2015 letter to the editor, Bell argued that Clinton’s use of the email servers violated the law, noting:

“If I had done what Ms. Clinton has done, I would have been prosecuted, and I would have been guilty.”[30]

After then-FBI Director James Comey announced his determination that Clinton had not broken any laws and that no “reasonable prosecutor” would indict her, Bell authored a second article, stating that he could find “an army of reasonable prosecutors” who would have indicted.[31]  In the second article, Bell argues that Clinton’s actions might suggest “disloyalty to the United States,” that Comey “got out of his lane” by recommending no prosecution, and that Attorney General Loretta Lynch was being unreasonable in not bringing charges.[32]

Bell’s article prompted a response from fellow Charlotte attorney David Tinkler, who noted that Clinton had used a secure server to transmit all information that was marked “classified” and that her behavior was no different than that of previous Republican Secretaries of State.[33]

Second, Bell was a strong advocate for the confirmation of Judge Robert Conrad to the U.S. Court of Appeals for the Fourth Circuit.[34]  Conrad was nominated by President George W. Bush in 2007 and blocked by the Democratic Senate due to concerns about his conservative ideology and previous comments opposing Planned Parenthood.[35]  In an interview, Bell described the blockade on Conrad as “embarrassing and outrageous” and urged Democrats to allow a hearing on Conrad.[36]

Overall Assessment

Like his fellow North Carolina nominee Thomas Farr, Bell is likely to face a rocky confirmation process.  In Bell’s case, the trouble is likely to come from his writings, rather than his legal activities.

Bell is likely to face significant pushback over his view that Hillary Clinton should have been charged criminally for her use of personal email servers, a view rejected by legal observers in both parties (albeit embraced by some mainstream voices).  Democrats are unlikely to support a candidate who urged criminal charges against their last presidential nominee.  Additionally, some critics may charge Bell with hypocrisy, noting his use of campaign funds for personal expenses in his 1990 election (conduct that may have been legal at the time, but has more recently been firmly prohibited by the Federal Election Commission).[37]

Additionally, Bell’s strong endorsement of Conrad, a judge himself criticized for his strong statements against Planned Parenthood and the pro-choice movement,[38] is unlikely to endear Bell to Senate Democrats.

In his favor, Bell’s credentials for the bench are unquestionable given his extensive legal experience.  Furthermore, Bell can point to his representation of prominent Democrats such as Black to reinforce his bipartisan credentials.

As a bottom line, Bell is likely to face strong opposition from Senate Democrats.  However, if he can secure the support of all Senate Republicans, he will still be confirmed.  As such, barring another shoe dropping, Bell remains the favorite for confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Bell: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] See id.

[5] See Bell, supra n. 1 at 56.

[6] See id.

[7] See Jeffrey Goldberg, In the Party of God, New Yorker, Oct. 28, 2002, https://www.newyorker.com/magazine/2002/10/28/in-the-party-of-god-2.  

[8] See United States v. Hammoud, et al., CR-00-147-MU (W.D.N.C.).

[9] See Bell, supra n. 1 at 45.

[10] See, e.g., United States v. McChan, 101 F.3d 1027 (4th Cir. 1996); United States v. McManus, 23 F.3d 878 (4th Cir. 1994).

[11] See, e.g., United States v. Odom, 736 F.2d 104 (4th Cir. 1984).

[12] See, e.g., United States v. Ross, 844 F.2d 187 (4th Cir. 1988).

[13] See, e.g., United States v. Rathburn, 1:99-cr-00091-LHT (W.D.N.C.).

[14] See Bell, supra n. 1 at 28.

[15] United States v. Black, 5:07-cr-00042-BO (E.D.N.C.).

[16] See id.

[17] Tim Funk, Rep. Robert Pittenger, Challenger Mark Harris Target Character in New Ads, Charlotte Observer, May 23, 2016, https://www.charlotteobserver.com/news/politics-government/article79385082.html.  

[18] Securities and Exchange Comm’n v. Rex Venture LLC d/b/a ZeekRewards.com, and Paul Burks, 3:12-CV-519 (W.D.N.C.).

[19] McGuire Woods: Court-Appointed Receiver in ZeekRewards Case Sues Insiders, Net Winners of the Scheme, India Investment News, Mar. 3, 2014.

[20] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=187113 (last visited July 29, 2018).

[21] Nathaniel C. Cash, How Old Votes Become New Political Liabilities, Wash. Post, Aug. 24, 1990.

[22] See Miles Benson, Run for Congress Can Pay Mortgage, Seattle Times, Aug. 26, 1990, http://community.seattletimes.nwsource.com/archive/?date=19900826&slug=1089789.  

[23] Charles R. Babcock, Personal Use of Campaign Funds Sparks Dispute; Challengers Say System Allows the Practice, Improving their Chances Against Incumbents, Wash. Post, Aug. 3, 1990.

[24] See id.

[25] Coincidentally, another challenger attacked for the personal use of campaign funds was an Indiana candidate named Mike Pence.  See Benson, supra n. 29.

[26] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=34410 (last visited July 29, 2018).

[28] See id.

[29] See id.

[30] Kenneth D. Bell, Letter to the Editor, Clinton Offers Up A Meaningless Dodge, Charlotte Observer, Sept. 2, 2015, https://www.charlotteobserver.com/opinion/letters-to-the-editor/article33225267.html.  

[31] Kenneth D. Bell, A ‘Reasonable’ Case for Charging Hillary Clinton, Charlotte Observer, July 9, 2016, https://www.charlotteobserver.com/opinion/op-ed/article88564422.html.  

[32] See id.

[33] David Tinkler, Why the FBI Made the Right Choice on Hillary Clinton Probe, Charlotte Observer, July 14, 2016, https://www.charlotteobserver.com/opinion/op-ed/article89697407.html.

[34] Lisa Zagaroli, Conrad at Center of Partisan Fight, Charlotte Observer, July 22, 2008, https://www.charlotteobserver.com/news/local/article8994503.html.  

[35] See id.

[36] Guy Loranger, Court’s Open Seats Raise Concern in NC, North Carolina Lawyers Weekly, Aug. 4, 2008.

[37] Federal Election Commission, Personal Use, https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/ (last visited July 29, 2018) (“The campaign may not pay for mortgage, rent or utilities for the personal residence of the candidate or the candidate’s family even if part of the residence is being used by the campaign”).

[38] See Zagaroli, supra n. 34.

Judge Mary Kay Vyskocil – Nominee for the U.S. District Court for the Southern District of New York

Compared to federal magistrate judges, it is more uncommon for federal bankruptcy judges to elevated to an Article III appointment.  The Trump Administration, however, has already nominated two bankruptcy judges for elevation, including Judge Mary Kay Vyskocil, nominated for one of the prestigious courts in the country.

Background

A native New Yorker, Vyskocil was born in the city in 1958.  She received her B.A. summa cum laude from Dominican College of Blauvelt and then her J.D. from St. John’s University of Law.[1]

After graduation, Vyskocil joined Simpson Thacher & Bartlett LLP as an Associate.[2]  In 1990, she became a Partner at the firm.[3]  She stayed with the firm until 2016 when she was selected as a U.S. Bankruptcy Judge.[4]  Vyskocil currently serves in that capacity.

In 2014, when Judge Robert Smith on the New York Court of Appeals was set to retire, Vyskocil applied for the vacancy and was selected as one of seven finalists.[5]  Gov. Andrew Cuomo ultimately did not select Vyskocil, appointing Judge Eugene Fahey instead.  Vyskocil applied and was selected as a finalist again in 2017 when Judge Sheila Abdus-Salaam passed away, but Judge Paul Feinman was selected for the vacancy instead.[6]

History of the Seat

Vyskocil has been nominated for a seat on the U.S. District Court for the Southern District of New York.  This seat opened on March 1, 2017, when Judge Loretta Preska moved to senior status.

In April 2017, Vyskocil was contacted by the White House to gauge her interest in a federal judgeship.[7]  After interviewing with the White House, Vyskocil’s name was broached to New York Senators Chuck Schumer and Kirsten Gillibrand.[8]  Vyskocil was officially nominated on May 15, 2018.

Legal Career

Before she ascended to the federal bench, Vyskocil spent 33 years at Simpson Thacher & Bartlett LLP in New York City.  At the firm, Vyskocil primarily handled a civil litigation docket, focusing on commercial tort and contract cases.[9]  Over the course of her time at the firm, Vyskocil has tried fifteen cases and has participated in briefing two cases at the U.S. Supreme Court.[10]

Among her trials, Vyskocil represented Swiss Re Group and affiliated insurance companies in a declaratory judgment action related to insurance payouts for the destruction of the World Trade Center on 9/11.[11]  In the case, which required a three month long trial, Vyskocil secured a ruling that the insurance policies created liability for $3.5 Billion as the attacks constituted one “occurence” (the lessees requested $7 Billion in payouts).[12]

Jurisprudence

Vyskocil has served as a U.S. Bankruptcy judge in New York since her appointment in 2016.  As a Bankruptcy Judge, Vyskocil supervises bankruptcy matters, and has handled over 1000 cases since her appointment.[13]  Among the cases she has handled, Vyskocil presided over the bankruptcies of an organization providing educational opportunities to students in China,[14] construction companies involved in the World Trade Center rebuilding,[15] and a retailer of organic juice cleanses.[16]

Impressively, none of the decisions Vyskocil has made in her two years on the bench has been reversed by a higher court.[17]

Political Activity

Vyskocil, a former member of the Federalist Society for Law and Public Policy Studies, has donated exclusively to Republican candidates, including former Sen. Al D’Amato, former Pres. George W. Bush, former Rep. Rick Lazio, and Sen. John McCain.[18]

Writings

Throughout her career, Vyskocil has been extremely prolific as both an author and a speaker.  In conjunction with her former law partner Barry Ostrager, Vyskocil has authored a number of handbooks on insurance and commercial law including Occurrence Policy Coverage for Tort Claims, Crisis Management – Commercial Litigation in New York State Courts, and Modern Reinsurance Law & Practice.[19]

Vyskocil has also authored a number of articles discussing developments in the law.  In one article, Vyskocil, along with the other members of the Committee on Federal Courts for the New York City Bar, recommended that rules of privilege should not be codified for use in federal court, arguing that the common law approach to privilege permits more flexibility and adaptability.[20]

Overall Assessment

Looking at her overall record, it  is hard to dispute Vyskocil’s qualifications for the federal bench.  With 33 years of federal practice, a solid and uncontroversial tenure on the bench, and a strong academic writing background, Vyskocil will likely be seen as a consensus nominee.  The fact that she has Schumer and Gillibrand in her corner won’t hurt either.

Given these factors, Vyskocil should sail to confirmation, much like the others in the New York package of nominees.


[1] Sen. Comm. on the Judiciary, 115th Cong., Mary Kay Vyskocil: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id.

[4] Id.

[5] Denise M. Champagne, COA Nominees Forwarded to Governor, The Daily Record of Rochester, Dec. 2, 2014.

[6] Christine Stuart, Seven Make Short List for Open Seat on NY’s High Court, Courthouse News Service, June 2, 2017, https://www.courthousenews.com/seven-make-short-list-open-seat-nys-highest-court/.  

[7] Vyskocil, supra n. 1 at 35.

[8] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[9] See Vyskocil, supra n. 1 at 71.

[10] See id.

[11] See S.R. Int’l Bus. Ins. Co. v. World Trade Center Props. LLC, 467 F.3d 107 (2d Cir. 2006).

[12] See id.

[13] See Vyskocil, supra n. 1 at 46.

[14] See In re ChinaCast Educ. Corp., No. 16-13121 (Bankr. S.D.N.Y. filed Nov. 9, 2016).

[15] See In re Collavino Constr. Co., Case Nos. 14-12908 & 15-10344 (Banr. S.D.N.Y. filed Oct. 17, 2014) (Jointly Administered).

[16] See In re Organic Ave. LLC, Case No. 15-12787 (Bankr. S.D.N.Y. filed Oct. 15, 2015).

[17] See Vyskocil, supra n. 1 at 67-68.

[19] See Vyskocil, supra n. 1 at 11-13.

[20] The Committee on Federal Courts, Revisiting the Codification of Privileges Under the Federal Rules of Evidence, 55 The Record 148, Jan/Feb 2000.

Eric Komitee – Nominee for the U.S. District Court for the Eastern District of New York

Eric Komitee who recently left a very lucrative position as General Counsel,[1]  is Trump’s newest nominee to the Brooklyn based Eastern District.

Background

Eric Ross Komitee was born in Freeport, New York on December 21, 1970.  Komitee received a B.A. with High Honors from Emory University in 1992 and a J.D. cum laude from New York University School of Law in 1995.[2]  Komitee then clerked for Judge J.L. Edmondson on the U.S. Court of Appeals for the Eleventh Circuit.[3]

After his clerkship, Komitee joined the New York office of Cravath Swaine & Moore as an Associate.[4]  In 1998, he moved to Skadden, Arps, Slate, Meagher & Flom LLP.  In 2000, he shifted again, joining the U.S. Attorney’s Office for the Eastern District of New York as a federal prosecutor.[5]

In 2008, Komitee left the U.S. Attorney’s Office to join Viking Global Investors LP, a New York based hedge fund, as General Counsel.[6]  Komitee left the fund in June 2018.

History of the Seat

Komitee has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on February 28, 2017, when Judge Eric Vitaliano moved to senior status.  In early February 2017, Komitee submitted a resume to the White House for the vacancy.[7]

In July 2017, Komitee’s name was broached by the White House as part of a package of nominees to New York Sens. Chuck Schumer and Kirsten Gillibrand.[8]  Komitee interviewed with Schumer in November 2017, and was officially nominated on May 15, 2018.

Legal Experience

Komitee started his legal career in the New York offices of big firms Cravath and Skadden.  At Cravath, Komitee focused primarily on mergers and acquisitions and other forms of corporate law, while at Skadden, Komitee focused largely on representing corporations in criminal and SEC investigations.[9]  Additionally, at Skadden, Komitee sued a local sheet metal union to secure back pay for workers suffering from racial discrimination.[10]

From 2000 to 2008, Komitee worked as an Assistant U.S. Attorney in the Eastern District of New York, focusing on prosecuting white collar and corporate crime.[11]  Komitee has also prosecuted a number of organized crime cases, including fighting scams linked to the Gambino crime family.[12]  Komitee also prosecuted the largest consumer fraud case ever brought by the Federal Trade Commission (as of 2006), related to a widespread telecommunications fraud.[13]

From 2008 to 2018, Komitee worked as General Counsel to Viking Global Investors LP, focusing on transactional and compliance work.  Komitee also handled contract and employment related matters for the hedge fund.

Political Activity

Komitee has a relatively limited political history, having made five donations over the past few years, all to Republicans.[14]  The recipients of Komitee’s donations are Rep. Trey Gowdy, former Sen. Scott Brown, Gov. Mitt Romney (during his 2012 Presidential campaign), Sen. Marco Rubio, and the National Republican Congressional Committee.[15]

Writings

As a law student, Komitee authored an article discussing the influence of dismissed charges on sentencing under the U.S. Sentencing Guidelines.[16]  In the article, Komitee argues that judges should not be permitted to depart upwards in a defendant’s sentence based on charges ultimately dismissed as a part of plea bargains.[17]  Komitee notes that allowing such upward departures would remove the incentive for defendants to plea-bargain and as such, “would have grave consequences for the ability of the criminal justice system to process cases and reach equitable results.”[18]

Overall Assessment

As he has already been pre-approved by Schumer and Gillibrand, it is unlikely that Komitee will face too much trouble through the confirmation process.  His record is fairly noncontroversial, and he has not written or spoken on any controversial issues.  As such, it is more a question of when, rather than if, Komitee will be confirmed.


[1] See C. Ryan Barber, Eric Komitee, Trump Pick for NY Court, Made Millions as Hedge Fund GC, Corporate Counsel, July 11, 2018, https://www.law.com/corpcounsel/2018/07/11/eric-komitee-trump-pick-for-ny-court-made-millions-as-hedge-fund-gc//.

[2] Sen. Comm. on the Judiciary, 115th Cong., Eric R. Komitee: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] See id.

[5] Id.

[6] See Barber, supra n. 1

[7] See Komitee, supra n. 2 at 28.

[8] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[9] See Komitee, supra n. 2 at 16.

[10] EEOC v. Local 638, 117 F. Supp. 2d 386 (S.D.N.Y. 2000).

[11] See Komitee, supra n. 2 at 15.

[12] See Greg B. Smith, Mob Dials for Dough Say Millions Swindled Using Tiny Midwest Firm, N.Y. Daily News, Sept. 19, 2004.  

[13] United States v. LoCascio, No. 1:03-cr-00304-CBA (E.D.N.Y.), aff’d, 185 F. App’x 88 (2d Cir. 2006).

[15] See id.

[16] See Eric R. Komitee, Bargains Without Benefits: Do the Sentencing Guidelines Permit Upward Depatures to Redress the Dismissal of Charges Pursuant to Plea Bargains?, 70 N.Y.U. L. Rev. 166 (April 1995).

[17] Id. at 194-95.

[18] See id. at 195.

Rachel Kovner – Nominee for the U.S. District Court for the Eastern District of New York

Despite being only 38 years old, Rachel Kovner is an extremely accomplished advocate.  A former Supreme Court clerk, Kovner currently represents the U.S. Government in the Solicitor General’s Office and has argued 11 cases before the U.S. Supreme Court.  This record along with the support of New York Senators Chuck Schumer & Kirsten Gillibrand makes Kovner a fairly noncontroversial nominee as well as a likely candidate for elevation to the Second Circuit and, potentially, the Supreme Court.

Background

Rachel Peter Kovner was born in New York on September 29, 1979.  Kovner attended Harvard University, graduating summa cum laude in 2001.[1]  While at Harvard, Kovner was an editor for the Harvard Crimson.[2]  After graduating, Kovner was hired by the New York Sun (her father Bruce Kovner was one of the paper’s investors) as a reporter.[3]

In 2003, Kovner joined Stanford Law School, graduating in 2006. She then clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Antonin Scalia on the U.S. Supreme Court.[4]

After her clerkships, Kovner was hired by incoming U.S. Attorney Preet Bharara to be a federal prosecutor in the Southern District of New York.[5]  After four years there, Kovner became Assistant to the Solicitor General in the U.S. Solicitor General’s Office.  Kovner currently practices there.

History of the Seat

Kovner has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on November 30, 2016, when Judge Carol Amon moved to senior status.  As the seat opened after the 2016 Presidential election, no nomination was made for the seat by President Obama.

Kovner received a call from the White House to gauge her interest in a federal judgeship in March 2017.[6]  After she confirmed her interest and interviewed with the White House, Kovner’s name was broached by the White House as part of a package of nominees.[7]  Kovner interviewed with Schumer in April 2018, and was approved.  Kovner was officially nominated on May 15, 2018.

Legal Experience

Kovner started her legal career by clerking for two of the most influential conservatives on the federal judiciary, Judge J. Harvie Wilkinson and Justice Antonin Scalia.  After those clerkships, Kovner joined the U.S. Attorney’s Office for the Southern District of New York, one of the most prestigious stations for a prosecutor.  At the office, Kovner started in the general crimes unit, and then moved to narcotics and finally the terrorism and international narcotics trafficking unit.[8]

At the U.S. Attorney’s Office, Kovner notably helped in prosecuting Khaled Al Fawwaz and Adel Abdel Bary for their role in the al Qaeda conspiracy to bomb the U.S. Embassies in Kenya and Tanzania.[9]  Kovner also helped try and secure a 63 month sentence for a tax preparer who assisted in preparing fraudulent tax returns.[10]

Since 2013, Kovner has worked as Assistant to the Solicitor General.  Having worked in the Solicitor General’s Office in both the Obama and Trump Administrations, Kovner has worked under four Solicitors General: Democrats Don Verrilli and Ian Gershengorn; and Republicans Jeff Wall and Noel Francisco.  Over her tenure, Kovner has argued the following eleven cases before the U.S. Supreme Court:

Prado Navarette v. California[11] – This was a Fourth Amendment challenge to the stop of a vehicle suspected of having an impaired driver.  The driver challenged the stop, which was based on an anonymous tip, as failing to meet the standard of reasonable suspicion of a crime as the officer had not witnessed any wrongdoing.  Kovner argued in support of California’s position that officers need not witness wrongdoing in order to meet the reasonable suspicion standard.  The Supreme Court ruled 5-4 that officers are not required to independently corroborate tips about illegal activity before pulling over a motorist.

Heien v. North Carolina[12] – In this case, a North Carolina sheriff pulled over a motorist for a broken tail light and found cocaine in the vehicle.  However, it was later discovered that a single broken tail light was not against the law in North Carolina, and that, as such, the sheriff made a mistake in pulling the car over.  The Supreme Court was asked to determine if the mistake of law justified excluding any evidence found during the stop.  Kovner argued as amicus in support of North Carolina’s position that the evidence should not be excluded.  The Supreme Court agreed in an 8-1 decision.

Mellouli v. Lynch[13] – This case asked if, under the Immigration and Nationality Act, the government could deport an alien convicted of a drug paraphernalia crime without proving a connection with items on the federal Controlled Substances Act?  Kovner argued for the government that they could deport Mellouli, an immigrant from Tunisia, who was convicted of possessing drug paraphernalia in Kansas for possessing four Adderall.  The Supreme Court disagreed in a 7-2 decision.

Sturgeon v. Frost[14] – John Sturgeon was traveling on a hovercraft in the Yukon-Charley River, an Alaska navigable river that runs through the Yukon-Charley River National Preserve, owned and managed by the National Park Service.  When Sturgeon was cited for using the hovercraft, he filed suit.  At the Supreme Court, Kovner defended the lower court decisions supporting the federal government’s authority over the river, but the Supreme Court unanimously reversed, holding that the Park Service could not enforce a hovercraft ban on state waterways.

Kansas v. Carr[15] – This case involving the constitutionality of death penalty convictions in Kansas had Kovner arguing only in an amicus capacity supporting the Kansas convictions.  The Supreme Court ultimately upheld the convictions by an 8-1 vote.

Pena-Rodriguez v. Colorado[16] – After Miguel Pena-Rodriguez was convicted of unlawful sexual conduct in Colorado, two jurors revealed racially biased statements made by a juror during deliberations.  However, the Colorado Supreme Court refused to grant Pena-Rodriguez a new trial, arguing that the secrecy of jury deliberations required excluding the jurors’ testimony.  As amicus at the Supreme Court, Kovner argued in support of Colorado’s position.  However, the Supreme Court struck down the conviction in a 5-3 vote.

McLane Company, Inc. v. EEOC[17] – This case involved whether a district court’s decision not to enforce an EEOC subpoena is reviewed de novo or with deference to the trial judge.  Kovner argued for the federal government that no deference should be given to trial court decisions not to enforce subpoenas, but the Supreme Court ruled otherwise in a 7-1 opinion (with only Justice Ginsburg dissenting).

Bristol-Myers Squibb Co. v. Super. Ct. of Cal.[18] – The State of California sought to establish jurisdiction over a class action of claims against Bristol-Myers, including claims from plaintiffs in Texas and New York whose claims were not related to California.  Kovner argued for the United States that California could not exercise jurisdiction over the unrelated claims.  The Supreme Court agreed in a 8-1 decision (Justice Sotomayor dissented).

Nat’l Ass’n of Mfrs. v. Dep’t of Defense[19] – This case involved the interpretation of the Clean Water Act, and whether it gave the federal courts of appeals the authority to directly review the EPA’s Waters of the United States Rule (which defined which waters were covered under the Act’s authority).  While Kovner argued, for the government, that the Rule should fall under a provision that triggers direct appellate review, a unanimous Supreme Court disagreed in an opinion by Justice Sotomayor.

Hughes v. United States[20] – In 2011, the U.S. Supreme Court held 4-1-4 in Freeman v. U.S. that district judges could modify sentences after the Sentencing Commission changes the Sentencing Guidelines even where the sentence was based on a plea bargain.  This case involved the application of the plurality opinion from Freeman to pleas under Fed. R. Crim. Pro. 11(c)(1)(c).  Kovner argued that, as the relevant rule requires the government to agree to a specific sentence, future Sentencing Guideline amendments could not be used to amend the sentence.  The Supreme Court disagreed 6-3 (with Justice Kennedy writing for the Court).

Wis. Cent. Ltd. v. United States[21] – In this case, senior employees of the Canadian National Railway Company argued that, under the Railroad Retirement Tax Act, their stock options should not be considered “taxable income.”  Kovner argued for the government that the stock options should be considered “taxable.”  Ultimately, the Court split 5-4, with Justice Gorsuch writing for the five most conservative Justices on the Court in siding with the employees.

Writings

Before entering law school, Kovner worked as a journalist at the New York Sun,and before that, interned and wrote for the Harvard Crimson, the Charlotte Observer, and the St. Louis Post-Dispatch.  In these roles, Kovner wrote hundreds of articles covering a variety of news stories.  Kovner has reported on issues including gun control,[22] Israel policy,[23] and workplace harassment,[24] among others.

Overall Assessment

At 38, Kovner is one of the youngest Trump nominees so far, and the youngest nominee put forward for the New York bench since Judge Alison Nathan in 2011.  However, unlike Nathan, who narrowly scraped through to confirmation in a party-line vote, Kovner is likely to be approved comfortably.  Setting aside her support from Schumer and Gillibrand, Kovner’s credentials are unquestionable.  Furthermore, Kovner does not have a partisan background and does not seem to be a member of the Federalist Society.  As such, it is likely that Kovner will, when her time comes, be approved with bipartisan support.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rachel P. Kovner: Questionnaire for Judicial Nominees 1.

[2] Sridhar Pappu and Gabriel Snyder, New York Sun Editors Discuss Their Game Plan, the Risk, and Their Four Employees, New York Observer, Jan. 21, 2002. 

[3] See id.

[4] See Kovner, supra n. 1 at 2.

[5] See id.

[6] See id. at 55.

[7] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[8] See Kovner, supra n. 1 at 34.

[9] United States v. Fawwaz, 98-cr-1023 (S.D.N.Y.) (LAK) No. 15-1731 (2d Cir. 2017).

[10] United States v. Jackson, No. 10-cr-298 (S.D.N.Y.) (CM), No. 11-4031 (2d Cir. 2012).

[11] 134 S. Ct. 1683 (2014).

[12] 

[13] 135 S. Ct. 1980 (2015).

[14] 136 S. Ct. 1061 (2016).

[15] 136 S. Ct. 633 (2016).

[16] 137 S. Ct. 855 (2017).

[17] 137 S. Ct. 1159 (2017).

[18] 136 S. Ct. 1773 (2017).

[19] 138 S. Ct. 617 (2018).

[20] No. 17-155 (June 4, 2018).

[21] No. 17-530 (June 21, 2018).

[22] See, e.g. Gun Control Group Plans An Attack on Bush in “Battleground States” Of Missouri, Illinois; Members of Organization Say Gore Can Use The Gun Issue To His Advantage, St. Louis Post-Dispatch, Aug. 2, 2000.

[23] See, e.g., Anti-Israel Drive Seeks to Revive Financial Tactic, N.Y. Sun, May 13, 2002.

[24] See, e.g. Employees Say Hennekens Harassed Them, Harvard Crimson, May 10, 1999.

John Sinatra – Nominee for the U.S. District Court for the Western District of New York

No woman has ever served as a federal judge in Buffalo.  In fact, the entire Western District of New York got its first and only female judge in 2013, when Judge Elizabeth Wolford was appointed to a Rochester-based seat.  The Buffalo-based vacancy on the court, which is the oldest judicial vacancy in New York, saw a tussle over two female candidates during the Obama Administration.  Now, the Trump Administration has put forward a male attorney for the position: John Sinatra.

Background

A Buffalo native, John Sinatra was born there in 1972.  He received a Bachelor of Arts magna cum laude from the State University of New York at Buffalo in 1993 and went on to earn his J.D. from the State University of New York at Buffalo Law School in 1996.[1]  Sinatra then clerked on the New York Court of Appeals (despite its name, New York’s top court) for two years, and then joined the Cleveland office of Jones Day.[2]

In 2007, Sinatra joined the U.S. Department of Commerce in Washington D.C. as a Senior Counsel.  He left a year later to become a Partner at Hodgson Russ, LLP. in Buffalo.  He continues to work there to this day.

Sinatra has periodically applied, unsuccessfully, for state and federal judgeships.  In 2012 and 2013, Sinatra applied to be on the New York Court of Appeals but was not selected.[3]  Sinatra also applied to be a U.S. Magistrate Judge on the Western District in 2015 but Michael Roemer was selected instead.[4]

History of the Seat

Sinatra has been nominated to a seat on the U.S. District Court for the Western District of New York.  This seat opened on March 8, 2015, when Judge William Skretny moved to senior status.  Skretny had actually announced his move to senior status in early 2014, and Sen. Chuck Schumer (D-NY) recommended former U.S. Attorney Denise O’Donnell for the seat.[5]  However, the Obama Administration never nominated O’Donnell.  Many observers speculated that the White House was concerned with O’Donnell’s age (67) and political history.[6]  Facing no action from the Administration, O’Donnell withdrew her candidacy in October 2015.[7]

Determined to seat a female candidate in the Buffalo-based judgeship, Schumer recommended Kathleen Sweet, a civil litigator.  This time, the Obama Administration concurred, nominating Sweet on March 15, 2016.[8]  Sweet received a hearing from the Republican-controlled Senate Judiciary Committee in June 2016, and was voted out unanimously on September 5, 2016.  However, Sweet was blocked from a floor vote by Senate Majority Leader Mitch McConnell, ultimately being returned unconfirmed at the end of the 114th Congress.

After the election of Donald Trump in 2016, Schumer pushed the Administration to renominate Sweet.[9]  However, the Administration interviewed Sinatra, who was proposed by Congressman Chris Collins (R-NY), in early 2017.[10]  After the White House firmly declined to renominate Sweet, Schumer accepted Sinatra’s nomination as part of a package of eight New York judicial nominees.[11]  Sinatra was formally nominated on May 15, 2018.

Legal Experience

Sinatra began his legal career as an associate at Jones Day, a firm that has produced many Trump judicial nominees.  Working in their Cleveland office, Sinatra primarily practiced civil litigation.  For example, Sinatra represented the manufacturer of welding electrodes used in building construction.[12]  The manufacturer was sued after the 1994 Northridge earthquake allegedly damaged a building structure, and Sinatra helped manage the manufacturer’s defense.

After a year at the Department of Commerce, Sinatra became a Partner at Hodgson Russ LLP in Buffalo.  At Hodgson, Sinatra has primarily focused on bringing qui tam cases under the False Claims Act, a federal statute allowing private citizens to sue to recover money fraudulently obtained from the government.  Sinatra notably sued DHL Express, Inc., a shipping company, for improperly charging fuel surcharges to the federal government.[13]  The qui tam suit, defended by attorney Lawrence Vilardo (who was later appointed to the Western District by President Obama), was ultimately unsuccessful.[14]  Sinatra also brought a False Claims Act suit against Columbia University for the alleged defrauding related to federal grants for studying HIV.[15]

Political Activity

Sinatra, a Republican, has a fairly limited political record.  Sinatra has four donations of record, two to then-Sen. Mike DeWine (R-OH), one to Mitt Romney in 2012, and one to Collins.[16]  Sinatra has also contributed to national Republicans, giving to the presidential campaigns of Mitt Romney and John Kasich, as well as to the Republican National Committee.[17]  Additionally, Sinatra volunteered for the campaign of Republican Rep. Tom Reynolds in 2006.[18]

Overall Assessment

Sinatra has one of the most powerful assets he will need for a smooth confirmation, the support of Schumer and fellow New York Democrat Kirsten Gillibrand.  With Schumer serving as leader of the Senate Democratic Caucus and Gillibrand a likely presidential contender in 2020, Democrats are unlikely to undercut either one by opposing a nominee they endorse.  As such, as long as Sinatra continues to maintain support by both senators, he is likely to see a comfortable confirmation.


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

[2] Id. at 2.

[3] Id. at 13.

[4] Id.

[5] Phil Fairbanks and Jerry Zremski, Denise O’Donnell Nominated for Federal Bench, Buffalo News, June 25, 2014, https://buffalonews.com/2014/06/25/denise-odonnell-nominated-for-federal-bench/.   

[6] Jerry Zremski, How Schumer Tried and Failed to Get a Woman on Buffalo’s Bench, Buffalo News, May 14, 2018, https://buffalonews.com/2018/05/14/the-briefing-how-schumer-tried-and-failed-to-get-a-woman-judge-on-buffalos-bench/.  

[7] Jerry Zremski, Vilardo Confirmed as Federal Judge as O’Donnell Bows Out, Buffalo News, Oct. 26, 2015, https://buffalonews.com/2015/10/26/vilardo-confirmed-as-federal-judge-as-odonnell-bows-out/.  

[8] See Zremski, supra n. 4.

[9] Jerry Zremski, Schumer: White House Insisted on Sinatra, Not Sweet, As Federal Judge, Buffalo News, May 10, 2018, https://buffalonews.com/2018/05/10/schumer-white-house-insisted-that-sinatra-not-sweet-be-federal-judge/.  

[10] See Sinatra, supra n. 1 at 27.

[11] See Zremski, supra n 7.

[12] See Westside Assocs, Ltd. v. Lincoln Electric Co., No. SC 045651 (Los Angeles Cnty. Super. Ct. 2000) (Judge Edward Kakita).

[13] See U.S. ex rel. Grupp v. DHL Express (USA), Inc., 47 F. Supp. 3d 171 (W.D.N.Y. 2014) (Judge John Curtin), aff’d, 604 F. App’x 40 (2d Cir. 2015).

[14] See id.

[15] See U.S. ex rel. Love v. Trustees of Columbia Univ. in the City of New York, No. 11-cv-4353 (S.D.N.Y.) (Judge Lorna Schofield).

[17] See id.

[18] See Sinatra, supra n. 1 at 13.

Jonathan Kobes – Nominee for the U.S. Court of Appeals for the Eighth Circuit

So far, President Trump’s nominees to the Eighth Circuit have included a state supreme court justice with an extensive judicial and academic record, a long-serving federal judge, and a private attorney with a lengthy paper trail.  By contrast, his latest nominee, Jonathan Kobes, a Senate staffer with a varied resume, has virtually no writings or opinions revealing his views on the law.

Background

Jonathan Allen Kobes was born in Sioux City, Iowa, on August 25, 1974.  Kobes attended Dordt College, a small Christian liberal arts school based in Sioux Center, Iowa.  After graduating in 1996, Kobes spent a year in Chicago working for Zurich Kemper Investments.[1]  He then attended Harvard Law School and clerked for Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.

After his clerkship, Kobes spent a year working as an Honors Attorney with the Central Intelligence Agency (CIA).  He then became a federal prosecutor with the U.S. Attorney’s Office for the District of South Dakota, working there until 2005.[2]  Kobes then joined the Sioux Falls firm Murphy, Goldammer & Prendergast LLP as an Associate.

In 2008, Kobes transitioned to be Counsel at POET LLC, a biofuel company based in Sioux Falls.[3]  In 2012, he shifted to DuPont Pioneer, a seed manufacturer, serving as Senior Regulatory Counsel.  Finally, in 2013, he shifted, again, to Raven Industries, a manufacturer of agricultural products, to be Director of Corporate Compliance.[4]  In that position, Kobes worked for former Democratic Representative Stephanie Herseth Sandlin.[5]

In 2014, after South Dakota Governor Mike Rounds was elected to the U.S. Senate, Rounds hired Kobes to be his Deputy Chief of Staff and his Counsel.[6]  He currently works for Rounds as his General Counsel.

History of the Seat

Kobes has been nominated to replace his former boss, Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.  According to Kobes, he was contacted directly by the White House to gauge his interest in an appointment to the Eighth Circuit (before Judge Wollman’s move to senior status was public).[7]

After confirming his interest, Kobes interviewed with the White House in November 2017.  Kobes was formally nominated on June 11, 2018.[8]

Political Activity

Working as a staffer for Rounds, Kobes is participating in a political position.  However, setting his relationship to Rounds aside, Kobes does not have an extensive political history.  Kobes, a Republican, volunteered for both Rounds’ senate campaign and the campaign of Republican Secretary of State Shantel Krebs.[9]  Kobes also served as a Republican Precinct Committeeman in Sioux Falls.

Kobes served as a member of the Federalist Society for Law & Public Policy from 1999 to 2004 and of the National Rifle Association from 2013 to 2014, but is not presently a member of either organization.[10]

Legal Experience

Kobes’ first legal position out of law school was clerking on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Kobes worked for the CIA in Washington D.C, working on maintaining the security of classified information in pending litigation.[11]

In 2003, Kobes joined the U.S. Attorney’s Office for the District of South Dakota as a criminal prosecutor.  During his tenure, Kobes primarily focused on prosecuting cases coming out of the Pine Ridge Indian Reservation.[12]  For example, Kobes prosecuted a Pine Ridge School student for making a bomb threat to blow up the school.[13]  The student argued on appeal that he could not be federally prosecuted for making an intrastate phone call, but the Eighth Circuit sided with Kobes, holding that even intrastate phone calls could be prosecuted as long as they were connected to interstate phone lines.[14]

In 2005, Kobes joined Murphy, Goldammer & Prendergast LLP as an associate, working in civil litigation.  While at the firm, Kobes represented a group of crisis pregnancy centers in seeking to intervene to uphold a South Dakota law requiring the physician to read every woman seeking an abortion a predetermined script and to give them the contact information for a pregnancy help center.[15]  Kobes successfully intervened in the suit but the law was enjoined by Judge Karen Schreier upon suit from Planned Parenthood.[16]  Kobes also participated in the defense of the Corporation of the President Church of Jesus Christ of Latter-Day Saints against a suit by a man who was sexually abused by a missionary of the church.[17]

From 2008 to 2014, Kobes has worked in-house, shifting between three different companies.  From 2008 to 2012, Kobes worked at POET, managing general litigation, as well as handling policy and regulatory issues.[18]  In 2012, Kobes worked on handling legal issues around the sale and export of genetically engineered farm products at DuPont Pioneer.[19]  From 2013 to 2014, Kobes worked at Raven Industries, handling compliance and regulatory work primarily.[20]

Since 2014, Kobes has worked for Rounds in the U.S. Senate.  As Rounds’ General Counsel, Kobes manages the legal, ethics, and compliance of the Office.[21]  He also manages a legislative portfolio dealing with judiciary issues, civil rights, and immigration.[22]

Overall Assessment

Of the three nominees that Trump has put on the Eighth Circuit so far, two have been fairly controversial, while one has sailed through with barely a ripple.  So far, it is unclear if Kobes will follow the Ericksen model or the Grasz one.

Unlike Stras and Grasz (the more controversial Eighth Circuit picks), Kobes does not have a long paper trail on controversial issues.  He has no academic writings, has not directly litigated any hot-button cases, and does not have any current ties to contentious legal groups.  Furthermore, as a legislative staffer, Kobes, presumably, has built up a residual level of trust among his colleagues: trust that can be leveraged in the confirmation process.

On the other hand, Kobes’ involvement in the South Dakota Planned Parenthood suit may raise questions about his commitment to pro-choice precedent, while his previous involvement with the National Rifle Association and the Federalist Society may suggest to critics that Kobes will bend to the organizations’ legal positions on the bench.

Additionally, Kobes may receive criticism for having more limited litigation experience as compared to other nominees.  By his own admission, Kobes rarely appeared in court during his time in-house.  As such, Kobes’ litigation experience is limited to the six years he spent working as a federal prosecutor and at Murphy, a time that covers only six trials and even fewer appeals.[23] While appellate litigation experience is not required for a judicial nominee, the lack of it is particularly notable here given that Kobes does not have compensating academic experience.  However, Kobes’ supporters may note that he will bring regulatory, compliance, and legislative experience to the bench, skills that other judges don’t have.

Looking at Kobes’ record as a whole, he remains a favorite for confirmation.  However, given his limited paper trail, senators will likely push Kobes to elucidate his legal views during the confirmation process.  Kobes’ answers to these questions will give an indication of the kind of judge he will be.


[1] Sen. Comm. on the Judiciary, 115th Cong., Jonathan Kobes: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id.

[4] Id. at 12.

[5] David Montgomery, Rounds Hires Campaign Manager as Chief of Staff, Argus Leader, Dec. 18, 2014, https://www.argusleader.com/story/davidmontgomery/2014/12/18/rounds-skjonsberg-staff/20585699/.  

[6] See id.

[7] See Kobes, supra n. 1 at 23-24.

[8] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Nominees, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 11, 2018) (on file at www.whitehouse.gov/the-press-office).

[9] See Kobes, supra n. 1 at 10.

[10] See id. at 6

[11] See id. at 13.

[12] Id. 

[13] United States v. R.J.S. Jr., 366 F.3d 960 (8th Cir. 2004)

[14] Id. 

[15] Planned Parenthood Minnesota et al. v. Rounds, 2006 U.S. Dist. LEXIS 72778 (D.S.D. Oct. 4, 2006).

[16] See id. at *2.

[17] Joseph v. Corp. of the Pres. Church of Jesus Christ of Latter-Day Saints, 2008 U.S. Dist. LEXIS 7767 (D.S.D. Jan. 31, 2008).

[18] See Kobes, supra n. 1 at 13.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See Kobes, supra n. 1 at 15.

Joshua Wolson – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

Joshua Wolson, a nominee to the Eastern District of Philadelphia, continues the trend of Federalist Society leaders being nominated to the federal bench by the Trump Administration.

Background

Joshua David Wolson was born in Ann Arbor, Michigan in 1974.  He attended the University of Pennsylvania, graduating magna cum laude in 1996 and then received a J.D. cum laude from Harvard Law School in 1999.[1]

After graduating, Wolson clerked for Judge Jan DuBois on the U.S. District Court for the Eastern District of Pennsylvania.[2]  He then joined the Washington D.C. Office of Covington & Burling LLP as an Associate.[3]

In 2008, Wolson moved to Philadelphia to become an Associate at Dilworth Paxson LLP.[4]  He became a Partner at the firm in 2010, and continues to work there to this day.[5]

History of the Seat

Wolson has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on April 3, 2017, when Judge James Knoll Gardner moved to senior status (Gardner himself replaced Judge Jan DuBois, for whom Wolson clerked).

In February 2017, Wolson discussed an appointment to the federal bench with the White House.[6]  Wolson then applied for and interviewed with the Judicial Nomination Advisory Panel for the Eastern District of Pennsylvania.  Wolson then interviewed with Sen. Pat Toomey (R-Pa), Sen. Bob Casey (D-Pa), and the White House.  President Trump announced Wolson’s nomination to the vacancy on May 10, 2018.[7]

Legal Experience

Wolson has spent his entire post-clerkship career in two firms: Covington in Washington D.C.; and Dilworth in Philadelphia.  At the former, Wolson focused on commercial litigation, including intellectual property, contract disputes, and antitrust matters.[8]  Notably, Wolson represented the National Football League (NFL) in defending against an antitrust case brought by Maurice Clarett.[9]  Clarett, a former player with the Ohio State Buckeyes, sought to enter the NFL Draft despite his dismissal from Ohio State.[10]  Judge Shira Scheindlin found in favor of Clarett, but the Second Circuit reversed (in an opinion by then-Judge Sonia Sotomayor), finding that the non-statutory labor exception covered the NFL.[11]

Since 2008, Wolson has worked at Dilworth in Philadelphia.[12]  At the firm, Wolson continued his practice in business litigation, while adding a government practice as well.  Notably Wolson represented the City of Butler, Pennsylvania in suing phone companies for undercharging 911 fees (a case presided over by fellow Pennsylvania judicial nominee Marilyn Horan).[13]  Wolson also Philadelphia Newspapers LLC in bankruptcy proceedings.[14]

Political Activity

In addition to volunteering with the Philadelphia Republican Party and serving as President of the Philadelphia Lawyers Chapter of the Federalist Society of Law & Public Policy Studies, Wolson has been an active donor to Republicans, having given approximately $8000 to candidates over the last eight years.[15]  In comparison, Wolson has also donated to two Democrats, U.S. Representatives Steny Hoyer and Eliot Engel.[16]

Overall Assessment

Given his youth and his Federalist Society pedigree, it is unlikely that Wolson will receive unanimous approval from the Senate Judiciary Committee.  However, his background yields nothing likely to significantly impede his nomination, and Wolson should see himself on the federal bench within the year.


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

[2] Id. at 2.

[3] Id. 

[4] Id.

[5] Id. at 3.

[6] Id. at 33.

[7] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial Candidates, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 10, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[8] See Wolson, supra n. 1 at 15.

[9] Clarett v. Nat’l Football League, 306 F. Supp. 2d 379 (S.D.N.Y. 2004), rev’d, 369 F.3d 124 (2d Cir. 2004).

[10] See id.

[11] See 369 F.3d 124 (2d Cir. 2004).

[12] Jan Murphy, Charter School Advocates Think Gov. Tom Wolf Is Out to Shut Their Schools Down, Penn Live, Mar. 4, 2015, http://www.pennlive.com/politics/index.ssf/2015/03/charter_school_advocates_think.html.  

[13] Cty. of Butler v. Centurylink Commc’ns LLC, 163 A.3d 504 (Pa. Cmwlth. 2017).

[14] In re Phila. Newspapers LLC, 423 B.R. 98 (E.D. Pa. 2010).

[16] See id.