Idaho attorney Ryan Nelson was nominated by President Trump last year to be Solicitor (chief appellate attorney) for the Department of the Interior.  However, Nelson’s nomination was never confirmed by the Senate.  Now, Nelson is getting a shot at a different job: a lifetime appointment to the U.S. Court of Appeals for the Ninth Circuit.

Background

An Idaho native, Ryan Douglas Nelson was born in Idaho Falls in 1973.  Nelson received a B.A. from Brigham Young University in 1996 and a J.D. from the J. Reuben Clark Law School at Brigham Young University.[1]  After graduating from law school, Nelson clerked for Judge Karen Henderson on the U.S. Court of Appeals for the D.C. Circuit and for Judges Charles Brower and Richard Mosk on the Iran-United States Claims Tribunal.[2]

After his clerkships, Nelson joined Sidley Austin as an associate in their Washington D.C. Office.[3]  Five years later, he moved to the Department of Justice to be Deputy Assistant Attorney General for the Environment and Natural Resources Division.[4]  In 2008, Nelson moved to the Executive Office of the President as Deputy General Counsel and briefly worked as Special Counsel for the Senate Committee on the Judiciary, focusing on the nomination of Justice Sotomayor.

In 2009, Nelson returned to Idaho Falls to be General Counsel for Melaleuca, Inc, an online Wellness Product company.[5]  He is still with the company.[6]

On July 31, 2017, Nelson was nominated by Trump to be Solicitor to the Department of the Interior.[7]  On September 19, the nomination was unanimously voted out by the Senate Energy and Natural Resources Committee.  However, soon after, his nomination, alongside three others, was blocked by Sen. Richard Durbin (D-Ill.) as part of his objection to the Administration’s national monuments policy.[8]  At the end of 2017, senators were unable to reach an agreement to hold over Nelson’s nomination and it was returned to the President.

In 2018, Trump renominated Nelson to be Solicitor to the Department of the Interior.  However, his nomination was then blocked by Sen. Bill Nelson (D-Fla.) as part of negotiations with Zinke over drilling off the coast of Florida.[9]  As such, Nelson’s nomination was still pending when his name was announced for the Ninth Circuit, and was withdrawn as his new nomination reached the Senate.

History of the Seat

Nelson has been nominated for an Idaho seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on August 11, 2018 when Judge Norman Randy Smith moves to senior status.

In November 2017, while his nomination to be Solicitor for the Department of the Interior was pending, Nelson expressed his interest in the Ninth Circuit to Idaho senators.[10]  In February 2018, Nelson interviewed with the White House Counsel’s Office and was formally nominated on May 15, 2018.[11]

Political Activity & Memberships

Nelson has been a member of the Idaho Republican Party since 2010, including serving as the Chairman for the 2012 caucus in Idaho Falls.[12]  Nelson also volunteered on the Romney Presidential Campaign in 2012 and worked as a legal advisor for President Bush’s re-election campaign in 2004.[13]

Additionally, Nelson has occasionally donated to Republican candidates, including a $2000 donation to Romney in 2011.[14]  Nelson has also donated to U.S. Senators Mike Lee, James Risch, and Marco Rubio.[15]

Furthermore, Nelson has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[16]

Legal Experience

After his clerkship, Nelson spent five years working as an Associate at Sidley Austin.  In this role, Nelson handled primarily civil and appellate law.  Among the matters he handled at Sidley, Nelson defended a corrections contractor against a civil suit alleging the abuse of undocumented immigrants at the contractor’s facilities.[17]  Nelson was also part of the legal team supporting a suit brought by the State of Utah against efforts by the Census Bureau to fill in gaps in its work.[18]

From 2006 to 2008, Nelson served as Deputy Assistant Attorney General for the Department of Justice, defending agency decisions on land use, environmental, and energy issues.  In this role, Nelson personally argued 13 appeals, including the defense of using purse-seine nets in tuna farming despite the impact on dolphin populations.[19]

Notably, Nelson argued that the presence of a Latin cross in a San Diego war memorial did not violate the Establishment Clause of the U.S. Constitution.[20]  While U.S. District Judge Larry Burns upheld the cross’ constitutionality, the Ninth Circuit eventually reversed.[21]

Since 2009, Nelson has been Counsel to Melaleuca, Inc., an Idaho Falls based wellness company.  During Nelson’s tenure as Counsel, Melaleuca and its founder Frank VanderSloot filed a defamation suit against Mother Jones magazine for its coverage of VanderSloot’s political advocacy, including his alleged “outing” of Idaho investigative reporter Peter Zuckerman as gay.[22]  A second defamation suit was filed against Zuckerman after he complained about the outing on the Rachel Maddow Show.[23]  Ultimately, the suit against Mother Jones was dismissed on First Amendment grounds,[24][25] while the suit against Zuckerman was eventually settled.[26]

Overall Assessment

The Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  As such, the nomination of the conservative Nelson could be touted (in some circles) as an effort to shift the court to the right.  But setting the ideology of the pick aside, Nelson’s background in environmental law is particularly suited to the Circuit covering some of the country’s most scenic public lands.

This is not to say that Nelson will have an easy confirmation.  Specifically, senators may question Nelson’s role in the defamation actions against Mother Jones and reporter Peter Zuckerman.  Given the ultimate dismissal of the suit, senators may probe Nelson’s views of defamation litigation, as well as his perspective of New York Times v. Sullivan and the freedom the press is given in reporting on matters of public concern.  Ultimately, Nelson’s confirmation will likely turn on such questions.

---