Ryan Nelson – Nominee to the U.S. Court of Appeals for the Ninth Circuit

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Florida.[9]  As such, Nelson’s nomination was still pending when his name was announced for the Ninth Circuit, and was withdrawn as his new nomination reached the Senate.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.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Press Release, White House, President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts (July 31, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Timothy Cama, Durbin Blocks Interior Nominees From Confirmation, The Hill, Nov. 8, 2017, http://thehill.com/policy/energy-environment/359455-durbin-blocks-interior-nominees-from-confirmation.  

[9] Timothy Cama, Dem Senator Puts Hold on Trump Nominees Over Offshore Drilling Plan, The Hill, Jan. 18, 2018, http://thehill.com/policy/energy-environment/369509-dem-senator-puts-hold-on-trump-nominees-over-offshore-drilling-plan.  

[10] See Nelson, supra n. 1 at 40.

[11] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial nominees, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 15, 2018) (on file at www.whitehouse.gov/the-press-office).

[12] See Nelson, supra n. 1 at 8, 16.

[13] See id. at 16.

[15] Id.

[16] See Nelson, supra n. 1 at 8.

[17] Jama v. United States Immigration and Naturalization Servs., 334 F. Supp. 2d (D.N.J. 2004).

[18] See Utah v. Evans, 536 U.S. 452 (2002).

[19] Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).

[20] Trunk v. City of San Diego, 568 F. Supp. 2d 1199 (S.D. Cal. 2008).

[21] See 629 F.3d 1099 (9th Cir. 2011).

[22] Clara Jeffery and Monica Bauerlein, We Were Sued By a Billionaire Political Donor. We Won. Here’s What Happened, Mother Jones, Oct. 8, 2015, https://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit/.  

[23] Linda Greenhouse, Justices Appear Reluctant to Increase Land-Use Oversight, N.Y. Times, Feb. 23, 2005.

[24] See Melaleuca, Inc. v. Foundation for Nat’l Progress, No. CV-2013-532-OC (7th Jud. Dist. Idaho Oct. 6, 2015); Melaleuca, Inc. v. Zuckerman, No. CV-2014-2510 (7th Jud. Dist. Idaho Oct. 15, 2015).

[25] See DB, Judge Tosses Wealthy Idaho Conservative’s Defamation Lawsuit Against Mother Jones, TPM, Oct. 8, 2015, https://talkingpointsmemo.com/news/judge-tosses-frank-vandersloot-lawsuit-mother-jones.  

[26] Associated Press, Idaho Billionaire Settles Defamation Suit With Ex-Reporter, Pacific Northwest News, Oct. 21, 2015, https://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/10/idaho_billionaire_settles_defa.html.  

Stephen Clark – Nominee for the U.S. District Court for the Eastern District of Missouri

The area in white is covered by the Eastern District

St. Louis attorney Stephen Clark is Trump’s first nominee to the Missouri federal bench. Clark, who has the strong support of Sen. Roy Blunt (R-Mo.), may draw questions from senators regarding his work in pro-life circles.

Background

Clark was born in 1966 in Evanston, Illinois.  He attended Notre Dame University and received a J.D. from Saint Louis University School of Law.[1]  Clark then joined the St. Louis office of Greensfelder, Hemker & Gale P.C. as an Associate.  In 1998, Clark was elevated to be an Officer at the firm.[2]

In 1999, Clark moved to Polsinelli P.C. as a Shareholder.[3]  He stayed there for seven years before moving to Husch Blackwell LLP as a Partner.[4]  Finally, in 2008, he moved to start his own law practice, which was eventually renamed to RUNNYMEDE law group.[5]  Clark is still in that position.

History of the Seat

Clark has been nominated for a vacancy on the U.S. District Court for the Eastern District of Missouri.  This seat was opened by Judge Carol Jackson’s move to senior status on August 31, 2017.  In early 2017, Clark reached out to Sen. Roy Blunt (R-Mo.) to express his interest in the vacancy.[6]  After interviewing with Blunt, Clark was recommended to the White House in July 2017.  Clark was officially nominated for the seat on April 12, 2018.

Legal Experience

Clark began his legal career at Greensfelder, Hemker & Gale P.C. while also working as a municipal prosecutor in Black Jack, Missouri.  As a municipal prosecutor, Clark helped to enforce nuisance ordinances against a 146-year-old pig farm that released pungent odors onto the neighboring properties.[7]

From 1999 to 2006, Clark worked at Polsinelli, P.C. as a Shareholder.  While there, Clark focused on civil litigation, including defending plastics manufacturers against allegations that they had exposed their employee to toxic chemicals, resulting in his death.[8]  In another case, Clark defended Maytag Corporation against allegations that a defective clothes dryer had caused a fire in the plaintiff’s home.[9]

From 2008, Clark has practiced on his own (the firm is currently named RUNNYMEDE law group).  In this role, Clark has taken on some politically charged cases.  For example, Clark represented the Missouri Roundtable for Life in challenging the Missouri Science Innovation and Reinvestment Act (MOSIRA).[10]  MOSIRA set up a fund to provide state money for science research, but was criticized by the Roundtable for allowing funding to go to abortion, embryionic stem cell research, or human cloning.  MOSIRA was ultimately struck down as violating the Single-Subject Rule of the Missouri Constitution.[11]

Clark also notably represented Jalesia McQueen in a case involving disposition of two frozen pre-embryos created between her and her ex-husband.[12]  McQueen argued that the pre-embryos should be treated as “children” and, as such, custody of the embryos should be given to her.  After a trial court ruled that the embryos were marital property, and not children, Clark represented McQueen on appeal, arguing that, under Missouri law, life begins at conception and that unborn children should be treated as “persons.”[13]  The Court of Appeals disagreed, noting that any declarations in Missouri law must be “qualified by and subject to, the decisions of the U.S. Supreme Court, including but not limited to holdings that a woman’s right to an abortion remains a constitutionally protected right.”[14]  The Court of Appeals ultimately held that the pre-embryos could not be treated as children.[15]

Political Activity and Memberships

Clark has a fairly active political history, including memberships in the Republican National Lawyers Association and the Republican National Committee.[16]  Clark has also frequently volunteered for and fundraised for Missouri Republicans including Blunt.[17]  He has also donated multiple times to Blunt’s campaigns.[18]

Clark has been active in the pro-life movement, serving as the Director to Lawyers for Life since 2009.[19]  Clark has also been a member of the Federalist Society for Law and Public Policy Studies since 2009 and of the National Rifle Association since 2016.[20]

Writings

In 2013, Clark authored an article criticizing the Missouri and Kansas Supreme Courts for failing to adopt transparent procedures for the appointment of “special” judges to hear cases where justices had recused themselves.[21]  In the article, Clark uses the examples of dueling decisions from the Supreme Courts both striking down and upholding caps on noneconomic damages to illustrate the influence of “special” judges.[22]  Given their power, Clark argues that courts should “adopt a transparent and non-discretionary procedure for appointing special judges.”[23]

Clark has also written and spoken against abortion in his role in Lawyers for Life.[24]  For example, in a speech at Duke University titled “Pious & Professional: Living the Faith at Work,” Clark urged medical schools to stop partnering with Planned Parenthood, suggesting that such partnerships encouraged abortions.[25]

Overall Assessment

As Clark’s nomination winds its way through the confirmation process, expect focus to be on his political beliefs rather than his professional capability.  Specifically, senators may argue that Clark’s history of pro-life activism raises questions as to his commitment to pro-choice precedent.  For his part, Clark has already reaffirmed his commitment to enforcing Roe v. Wade.[26]  As long as 50 senators are willing to give Clark the benefit of the doubt, he is likely to join the federal bench.


[1] Sen. Comm. on the Judiciary, Questionnaire for Judicial Nominees: Stephen Clark 1.

[2] See id. at 2.

[3] See id. 

[4] Id.

[5] Id.

[6] See Clark, supra n. 1 at 42.

[7] See William C. Lhotka, Pig Farm Must Go, Court Decides: Black Jack Wins Effort to Oust Smelly Business, St. Louis Post-Dispatch, Dec. 11, 1996.

[8] See Bogner v. AIRCO, Inc. et al., Case No. 02-1157, 2003 U.S. Dist. LEXIS 26890 (C.D. Ill. Apr. 1, 2003).

[9] See Declue v. Maytag Corp., Case No. 4:03CV1371 HEA, 2005 U.S. Dist. LEXIS 34639 (E.D. Mo. Aug. 29, 2005).

[10] Missouri Roundtable for Life, Inc., et al. v. State, no. 11AC-CC00770 (Circuit Court of Cole Cnty. 2011), 396 S.W.3d 348 (Mo. 2013).

[11] See 396 S.W.3d 348 (Mo. 2013).

[12] See McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. 2016).

[13] Id. at 139.

[14] Id. at 142-43.

[15] Id. at 158.

[16] See id. at 26.

[17] Id. 

[19] See Clark, supra n. 1 at 6.

[20] See id. at 5-6.

[21] See Stephen R. Clark, Avoiding the Appearance of Impropreity: Missouri and Kansas Supreme Court Decisions on the Constitutionality of Caps on Noneconomic Damages Demonstrate the Need for Objective Procedures in the Selection of Special Judges, 77 Alb. L. Rev. 1441 (2013/2014).

[22] Id. 

[23] Id. at 1453.

[24] See Clark, supra n. 1 at 7-24.

[25] See Brandi Buchman, Judicial Nominees Taken to Task for Views on Abortion, Climate, Courthouse News, July 11, 2018, https://www.courthousenews.com/judicial-nominees-taken-to-task-for-views-on-abortion-climate/.

[26] See id.

Mary McElroy – Nominee for the U.S. District Court for the District of Rhode Island

When the 114th Congress adjourned, it left 59 Obama nominees unconfirmed.  In 2017, President Trump renominated eight of those nominees.  After a long hiatus in the first few months of the year, Trump has sent forward and sent an additional four renominations, the first of which is Mary McElroy.

Background

A native Rhode Islander, Mary Susan McElroy was born in Providence in 1965.  McElroy attended Providence College, graduating with a Bachelor of Arts degree in 1987.  After a year working at The Personnel People, McElroy attended Suffolk University School of Law, graduating in 1992.[1]

After graduating, McElroy clerked for Justice Donald Shea on the Rhode Island Supreme Court and then worked as an Associate at the Providence firm Tate & Elias LLC.[2]  In 1994, McElroy joined the Rhode Island Public Defender’s Office as an Assistant Public Defender.

In 2006, McElroy moved to join Federal Defender for the Districts of Massachusetts, New Hampshire, and Rhode Island.[3]  In 2012, McElroy moved back to the state-law side to become the Public Defender for the State of Rhode Island.  She continues to serve in that capacity.

History of the Seat

McElroy has been nominated for a vacancy on the U.S. District Court for the District of Rhode Island.  This seat opened with Judge Mary Lisi’s move to senior status on October 1, 2015.  McElroy was first recommended for this vacancy by Sen. Jack Reed (D-RI) and was nominated by the Obama Administration on September 8, 2015.[4]

McElroy received a hearing before the Senate Judiciary Committee on December 9, 2015, and was approved without objection on January 28, 2016.  However, McElroy’ nomination stalled on the floor due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.  Without floor action, it was returned unconfirmed on January 3, 2017.

After the election of President Trump, Reed and Sen. Sheldon Whitehouse (D-RI) (a member of the Senate Judiciary Committee) pushed the new Administration to renominate McElroy for the vacancy.  After a long period of inaction, McElroy was renominated on April 10, 2018 by President Trump, with the support of Reed and Whitehouse.

Legal Experience

McElroy has spent virtually her entire legal career in indigent defense, working as a public defender on both the state and federal levels.  From 1994 to 2006, McElroy worked as an Assistant Public Defender on the state side.  In 2006 to 2012, McElroy served as Assistant Federal Defender, practicing in the U.S. District Court for the District of Rhode Island.  Since 2012, McElroy has served as the Public Defender for the State of Rhode Island, focusing on the administration of indigent defense services throughout the state.

In her twelve years as an Assistant Public Defender in Rhode Island, McElroy represented defendants charged with both misdemeanors and felonies.[5]  In that capacity, McElroy secured an acquittal for a defendant charged with accidentally shooting a colleague.[6]

In her time as an Assistant Federal Defender, McElroy represented defendants in federal court.  During her tenure, she helped successfully suppress evidence obtained through an unconstitutional search by a police officer.[7]  She was also able to turn back a sentencing enhancement under the Armed Career Criminal Act for a different client.[8]

Political Activity

McElroy has a relatively brief political history.  In high school and college, McElroy supported the campaigns of Democrats Julius Michaelson for U.S. Senate and James O’Neil for Rhode Island Attorney General.[9]  Additionally, McElroy also was a member of Rhode Island Young Democrats from 1984 to 1986.[10]

Overall Assessment

Given her history in representing indigent defendants, her left-of-center credentials, and her previous nomination by President Obama, it was unclear that McElroy would be renominated by the Trump Administration.  Now that her name has been sent back to the Senate, McElroy faces better odds at confirmation than she did the first time around. If confirmed, McElroy will join the small pool of judges who have experience with indigent defense.


[1] Sen. Comm. on the Judiciary, 114th Cong., Mary S. McElroy: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Press Release, White House, President Obama Nominates Three to Serve on the United States District Courts (September 8, 2015) (on file at https://obamawhitehouse.archives.gov).  

[5] See McElroy, supra n. 1 at 15.

[6] State v. Tabor, No. P1-1998-3839A (R.I. Super. Ct.).

[7] See United States v. Arias, Case No. 08-CR-002T (D.R.I.).

[8] United States v. Cruz, No. 06-CR-105ML (D.R.I.).

[9] See McElroy, supra n. 1 at 13.

[10] Id.

John O’Connor – Nominee for the Eastern, Northern, and Western Districts of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

John O’Connor, a Tulsa based attorney, is Trump’s latest nominee to fill an Oklahoma-based vacancy.  O’Connor, a civil litigator in his 60s, is unlikely to draw the sustained opposition that two other Oklahoma judicial nominees have received.

Background

A Tulsa native, John Michael O’Connor was born in 1954.  O’Connor received a B.A. from Oklahoma State University in 1977 and a J.D. from the University of Tulsa in 1980.[1]  After graduating, O’Connor joined the Tulsa law firm Rosenstein, Fist & Ringold as an Associate.

In 1983, O’Connor moved to help found the firm Newton, O’Connor, Turner & Ketchum P.C.[2]  He served as President and Board Chair at the firm from 1985 to 1996 and then from 1999 to 2005.

In 2018, O’Connor joined the Tulsa office of Hall Estill as a Shareholder.  It is a position he currently holds.

History of the Seat

O’Connor has been nominated for the only judgeship in the country that traverses three districts: the Eastern, Northern, and Western Districts of Oklahoma.  Judge James Payne, who previously held this seat, moved to senior status on August 1, 2017.  In September, O’Connor reached out to Oklahoma’s U.S. Senators to express his interest in filling Payne’s seat.[3]  After interviews with Senators James Inhofe and James Lankford, O’Connor was recommended to the White House.  O’Connor was ultimately nominated on April 12, 2018.

Political Activity

O’Connor has been fairly active in Oklahoma Republican politics, having served as a State Delegate to the Oklahoma Republican Convention in 2015 and 2016, and having hosted fundraisers for many state and local Republican candidates, including Oklahoma Insurance Commissioner John Doak.[4]  O’Connor has also donated to both Oklahoma Senators, giving $500 to Inhofe and $2000 to Lankford[5].  Other politicians O’Connor has supported include former Rep. Jim Bridenstine and Republican Congressional candidate Kevin Hern.[6]

Legal Experience

Whether at Rosenstein, Fist & Ringold, at Newton, O’Connor, Turner & Ketchum P.C., or in his most recent post at Hall Estill, O’Connor has based his career primarily around commercial litigation.  In his thirty seven years in practice, O’Connor has handled 25-35 trials.[7]  Notably, O’Connor was tapped as outside counsel by Insurance Commissioner Doak in a number of cases involving the fraud and mismanagement of insurance companies.[8]

In a notable case, O’Connor represented Kirk of the Hills Presbyterian Church, as it severed ties with the Presbyterian Church USA and filed suit to hold onto its church properties.[9]  The dispute eventually settled with Kirk of the Hills retaining its property but paying a $1.75 million settlement.[10]  The case prompted reconsideration of Oklahoma’s church property statutes, with some advocates criticizing the suit and corresponding legislation as infringing on the autonomy of churches.[11]

Writings and Advocacy

In 2009, O’Connor testified before the Oklahoma State Legislature’s Adoption Review Task Force in favor of reforms to the adoption of foster children.  Specifically, O’Connor urged the passage of a law allowing parents who adopt a child from the state to return the child to the state’s custody if the child develops violent tendencies or severe mental health problems.[12]  O’Connor noted that, under current law, the state would only take back custody in cases of abuse or neglect, and that the current situation “threatens the health and welfare of siblings [and parents].”[13]

Overall Assessment

Out of the three Trump Oklahoma nominees processed thus far, two have faced significant opposition, while one has faced moderate objections.  Given O’Connor’s age, experience, and relatively uncontroversial record, it is unlikely that he will face the same degree of opposition as his fellow nominees.


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

[2] See id. at 2.

[3] See id. at 29.

[4] See id. at 19.

[6] See id.

[7] See O’Connor, supra n. 1 at 16.

[8] See, e.g., Oklahoma ex rel. Doak v. AmCare Health Plans of Oklahoma, Inc., No. CJ-2003-5311 (Okla. Dist. Ct. Okla. Cty.); Oklahoma ex rel. Doak v. Park Ave. Prop. and Cas. Ins. Co., No. CJ-2009-11178 (Okla. Dist. Ct. Okla. Cty.); Oklahoma ex rel. Doak v. Imperial Cas. and Indem. Co., No. CJ-2010-2340 (Okla. Dist. Ct. Okla. Cty.).

[9] See Kirk of the Hills Corp. v. Presbyterian Church USA, No. CJ-2006-5063 (Okla. Dist. Ct. Tulsa Cnty.).

[10] See Been et al. v. OK Indus., Inc., 495 F.3d 1217 (10th Cir. 2007).

[11] See id.

[12] See Michael McNutt, Attorney Seeks Legislation to Support Adoptive Parents, The Oklahoman, Nov. 21 2009.

[13] Id. (quoting John O’Connor).

Meet the Shortlisters: Raymond Kethledge

Judge Ray Kethledge may not have as much media buzz as his competitors Kavanaugh or Barrett, but he remains one of the frontrunners for a Supreme Court nomination.  His conservative record, alongside excellent credentials and a midwestern background, make him a strong candidate for the nomination.

Vital Statistics

Name: Raymond Michael Kethledge

Age: 51

Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit (since 2008)

Education: B.A. from the University of Michigan; J.D. from the University of Michigan Law School

Clerkships: Judge Ralph Guy on the U.S. Court of Appeals for the Sixth Circuit; Justice Anthony Kennedy on the U.S. Supreme Court

Prior Experience: Judiciary Counsel to Sen. Spencer Abraham (R-Mich.); Counsel at Ford Motor Company; Private Practice in Detroit and Troy, Mich.

Jurisprudence

Kethledge has served on the U.S. Court of Appeals for the Sixth Circuit since 2008.  In his time, he has authored over 500 opinions, in which he has lain out a conservative-libertarian judicial philosophy.  Here are some of the key cases that Kethledge has decided:

Criminal Law

  • United States v. CarpenterThis case involved a challenge to the use of cell tower locational data, obtained from phone companies without a warrant, to convict a Defendant.  Kethledge wrote for the panel majority in holding that the obtaining of cell tower locational data without a warrant did not violate the Fourth Amendment.  The Supreme Court reversed Kethledge in a 5-4 vote.
  • United States v. GabrionThis case involved a murder that was committed in Michigan.  The defendant was convicted in the federal death penalty trial, and, in the penalty phase, sought to present evidence that the murder was committed in the state of Michigan, not on federal park grounds.  The defendant argued that this location evidence was mitigating as Michigan did not have a death penalty. Kethledge wrote for an en banc court in holding that the evidence was properly excluded as it was “irrelevant to a reasoned moral response to Gabrion’s background, character, and crime.”  In dissent for four judges, Judge Karen Nelson Moore noted that Kethledge’s opinion prevents the defendant from presenting constitutionally relevant evidence based on the judge’s view of its “moral relevance.”

Suits Against Government

  • Wheaton v. McCarthyThis case involved a challenge to the Ohio Department of Medicaid’s policy of not including the spouse as part of a Medicaid benificiary’s families in calculating aid.  Kethledge wrote for the panel in holding that this interpretation was inconsistent with federal law.
  • United States v. NorCal Tea Party Patriots – In declining to grant a writ of mandamus to the IRS blocking the District Court’s discovery order, Kethledge sharply criticized the conduct of the IRS in allegedly discriminating against conservative groups in 501(c)(3) applications.

Civil Law

  • In re Dry Max Pampers Litigation – This case involved a class action suit against Proctor & Gamble Co. (P&G), which produces Pampers diapers.  After a certain kind of Pampers diapers proved to cause severe diaper rash, consumers brought a class action suit against P&G, and the District Court approved a settlement that released $1000 per affected child to all named class members, and included a legal fee of $2.7 million.  Kethledge wrote for the panel majority in rejecting the settlement, finding that it benefited counsel more than the members of the class. Judge R. Guy Cole dissented, stating that Kethledge “does not apply this Court’s established multi-factor tests for settlement fairness and the reasonableness of fee awards. [citations omitted]  Instead, the majority fashions a new test based largely on dicta from other circuits…”

Why Trump Could Choose Kethledge as His Nominee

As a young, strongly conservative judge, Kethledge seems almost tailor-made for a judicial nomination from the Trump Administration.  Furthermore, while he lacks the Harvard/Yale pedigree Trump is seeking, Kethledge still has a Supreme Court clerkship, as well as success as one of the best law schools in the country.  Additionally, sources claim that Kethledge’s interview with the President (always a key criteria) went exceedingly well.

Why Trump Would Not Choose Kethledge as His Nominee

Overall, Kethledge’s record has reflected a libertarian philosophy.  As such, Kethledge has shown a willingness to rule against the government when he perceives that it has exceeded its authority.  This could make Kethledge a more unpredictable presence on the Supreme Court, which may lead Trump to another candidate.

Expected Lines of Attack

Having both ruled for and against the government, Kethledge may draw criticism for his criminal justice rulings both from the left and the right. He will likely also draw criticism for his Carpenter ruling being overturned by the Supreme Court.

Likelihood of Nomination

Kethledge may not have gotten the attention that Kavanaugh and Barrett have, but he is just as likely to get the nomination.  Given his strongly conservative record, impressive credentials, and his favorable interview, we would not be surprised if Kethledge was the ultimate choice.

Meet the Shortlisters: Brett Kavanaugh

Judge Brett Kavanaugh currently serves on the second most powerful court in the country: the D.C. Circuit.  Since 2006, Kavanaugh has served as the intellectual center of the D.C. Circuit’s conservative wing.  This record of jurisprudence has set Kavanaugh to replace the Justice he once clerked for: Justice Kennedy.

Vital Statistics

Name: Brett Michael Kavanaugh

Age: 53

Current Position: Judge on the U.S. Court of Appeals for the D.C. Circuit (since 2006)

Education: B.A. from Yale; J.D. from Yale Law School

Clerkships: Judge Walter Stapleton, U.S. Court of Appeals for the Third Circuit; Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit; Justice Anthony Kennedy, U.S. Supreme Court.

Prior Experience: Solicitor General’s Office, Department of Justice; Associate Independent Counsel, Whitewater Investigation; Private Practice; Associate Counsel and Assistant to the President for President George W. Bush

Jurisprudence

Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit since 2006.  During his twelve years on the court, Kavanaugh has authored approximately 270 majority opinions, concurrences, and dissents.  These opinions generally establish Kavanaugh as one of the most conservative judges on the court.

Given the D.C. Circuit’s jurisdiction over many administrative law cases, Kavanaugh has written extensively in evaluating agency regulations and decisions.  For example, after a panel of the D.C. Circuit upheld net neutrality regulations passed by the Federal Communications Commission, Kavanaugh dissented from denial of rehearing en banc, arguing that net neutrality violated both Congress’ grant of power to the agency and the First Amendment.  See United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 417 (D.C. Cir. 2017).  In another case, Kavanaugh found that the Environmental Protection Agency was statutorily required to consider the costs of emission control in issuing regulations.  White Stallion Energy Cntr. LLC v. EPA, 748 F.3d 1222, 1259 (D.C. 2014).  This holding was ultimately affirmed by the Supreme Court.  Michigan v. EPA, 135 S. Ct. 2699, 192 L. Ed. 2d 674 (2015).

In other cases Kavanaugh:

  • Dissented from a ruling requiring an immigrant minor who sought access to an abortion to be provided one.  Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
  • Dissented from denial of en banc rehearing of a decision upholding a requirement that religious organizations not wishing to provide contraceptive coverage for employees participate in the opt out process.  Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015).
  • Ruled that the structure of the Consumer Financial Protection Bureau (CFPB), which required the President to have cause before dismissing the head, was unconstitutional.  PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 165 (D.C. Cir. 2018).  This ruling was overturned by the D.C. Circuit en banc.  881 F.3d 75 (D.C. Cir. 2018).
  • Held that the Anti-Injunction Act barred plaintiffs from challenging the individual mandate of the Affordable Care Act.  Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  • Held the Affordable Care Act did not violate the Origination Clause of the Constitution.  Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1049 (D.C. Cir. 2015).

Why Trump Could Choose Kavanaugh as His Nominee

Trump has indicated that he is looking for a nominee with Ivy League credentials and a strong academic record.  Kavanaugh ticks off both boxes. Furthermore, Kavanaugh is generally strongly regarded as a judge and has developed a solidly conservative record on the D.C. Circuit.

Additionally, White House Counsel Don McGahn is particularly focused on Administrative Law when selecting judges.  Specifically, McGahn is looking for judges who oppose deference to administrative agencies and prefer a greater degree of judicial involvement in judging agency policy.  Kavanaugh’s record, more than that of any other shortlister, reflects this hostility to agency deference.

Why Trump Would Not Choose Kavanaugh as His Nominee

Kavanaugh is already facing a lot of pushback from social conservatives, who argue that his record shows an insufficient commitment to overturning Roe v. Wade.  Additionally, some senators have pushed back regarding Kavanaugh’s opinion in the Affordable Care Act cases, arguing that Kavanaugh failed to overturn the Act when he had a chance.

Expected Lines of Attack

While Kavanaugh is currently facing criticism from social conservatives, it is unlikely that such criticism would continue in a sustained fashion if he was selected as the nominee.  Rather, if nominated, Kavanaugh is more likely to face criticism from the left, who will criticize his willingness to overturn regulations (that they would argue are) needed to protect health and safety.  Kavanaugh may also be attacked for his work as part of the Whitewater Investigation, in the Bush Administration, and for writings on executive power and authority.

Likelihood of Nomination

Kavanaugh is likely the preferred candidate of White House Counsel Don McGahn.  In general, he is a candidate who is likely to unite the Republican caucus and has the best chance (of the current shortlisters) of securing Democratic support.  As such, despite the social conservative pushback, I expect Kavanaugh to be a strong contender for the nomination.

Meet the Shortlisters: Amy Coney Barrett

Judge Amy Coney Barrett has undergone a meteoric rise.  On the bench for less than a year and having practiced law for only two, Barrett is now a leading contender for the U.S. Supreme Court.  In the jockeying among various candidates on the shortlist, Barrett is the favorite of social conservatives, which may both hurt and assist in the nomination process.

Vital Statistics

Name: Amy Vivian Coney Barrett

Age: 46

Current Position: Judge on the U.S. Court of Appeals for the Seventh Circuit (since 2017)

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School

Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit; Justice Antonin Scalia, U.S. Supreme Court

Prior Experience: Professor of Law at Notre Dame Law School from 2002 to 2017

Jurisprudence

Of all of Trump’s shortlist picks, Barrett has the least amount of judicial experience.  She has served on the U.S. Court of Appeals for the Seventh Circuit since October 2017, and has never been a judge before.  In her eight months on the bench, Barrett has authored just nine opinions, only one of which drew a dissent. Her opinions are outlined below:

Criminal

  • Schmidt v. FosterThis was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.
  • Perrone v. United States – The defendant sought to withdraw a plea agreement he had made, arguing that his counsel had been deficient.  The defendant argued that his counsel should have informed him that the government needed to show that his distribution of cocaine was the but-for cause of the victim’s death.  Barrett rejected this argument, noting that, under the Strickland standard, the defendant would be unable to show that his deficient counsel prejudiced him.
  • United States v. Barnes – The defendant, in this case, sought to challenge his sentence, arguing that the court incorrectly used his local marijuana conviction to enhance his sentence.  Barrett rejected this argument, noting that the defendant failed to properly object to the enhancement, and, as such, forfeited the claim.

Civil

  • Wisconsin Central Ltd. v. TiEnergy, LLC.This case involved a suit to recover demurrage (statutory fees imposed when rail cars are unduly detained).  After a Wisconsin Central car was detained at TiEnergy’s facility, Wisconsin Central filed suit to recover the demurrage incurred.  Barrett wrote for the panel in finding that TiEnergy needed to reimburse the demurrage fees.
  • Goplin v. WeConnect, Inc. – This case turned on whether the plaintiff-employee was bound by an arbitration agreement in resolving his Fair Labor Standards Act (FLSA) claim against defendant-employer.  Barrett ruled that the arbitration agreement did not control, as the company mentioned in the agreement was AEI, not WeConnect. Barrett also rejected the defendant’s argument that AEI was merely the former name of WeConnect.
  • Fiorentini v. Paul Revere Life Insurance Co.The plaintiff, a business owner, received total disability coverage through insurance while undergoing cancer treatment.  After being cancer-free for five years, the plaintiff returned to work, and the total disability coverage ceased. Plaintiff filed suit for breach of contract, arguing that the side effects from the cancer treatment still left him disabled under the insurance agreement.  Barrett disagreed, finding that the plaintiff was able to conduct most of the essential functions of his position, and, as such, he was not totally disabled.
  • Dalton v. Teva North America – The plaintiff sued the manufacturer of an intrauterine device (IUD) after it broke during its removal.  Barrett affirmed the dismissal of the plaintiff’s claims, noting that Indiana law requires the use of expert evidence to prove causation, and the plaintiff had failed to present expert evidence.
  • Boogard v. Nat’l Hockey League – This was a wrongful death action brought by parents of a NHL player who died of a drug overdose.  Barrett affirmed the dismissal of plaintiffs’ claims, noting that the plaintiffs had failed to respond to the defendant’s 12(b)(6) motion, and had, in doing so, forfeited their claims.
  • Webb v. Financial Indus. Regulatory Auth. – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims, the amount had been satisfied.
  • Walton v. EOS CCAThis suit challenged a debt collector’s practices under the Fair Debt Collection Practices Act.  Barrett held that the collector had met their requirements under federal law.

 

Academic Writing

As a law professor for sixteen years before she joined the bench, Barrett was fairly prolific in detailing and explaining her view of the law.  In her academic writings, Barrett occasionally took on controversial positions.

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.  Barrett argues that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.  Barrett was questioned on this “flexible” view of stare decisis during her confirmation hearings, and the issue is likely to come up again if she is elevated.

Additionally, in an article titled Catholic Judges in Capital Cases, Barrett debates whether a Catholic judge would be required to recuse themselves in capital cases based on their religious objections to the death penalty.  Barrett’s ultimate conclusion in the article is as follows:

“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.”

This conclusion led to criticism suggesting that Barrett was advocating that a judge base their decisions on church policy rather than the law.  Such criticism was, in turn, dismissed by some commentators as anti-Catholic.

Why Trump Could Choose Barrett as His Nominee

In his nominee, Trump is seeking someone with Ivy League credentials and a long academic record.  While Barrett is not an Ivy League alumnus, as a Supreme Court clerk, her credentials rival those of any Yale or Harvard graduate.  Furthermore, Barrett has a wider and stronger academic record than any of Trump’s other finalists.

Furthermore, Barrett’s selection makes sense politically.  First, Barrett is a woman, and thus, harder to caricature as a conservative extremist.  Second, Barrett has strong support from social conservatives, a key constituency in the Supreme Court fight.  Third, Barrett is from Indiana, putting Sen. Joe Donnelly (D-Ind.) in an impossible position.  If he opposes Barrett, he risks alienating the center-right voters he needs to win re-election.  If he supports Barrett, he risks alienating his own base, who he also needs.  In other words, a Barrett pick would vastly increase the chances of Donnelly losing re-election, and, as such, of Republicans holding the Senate.

Why Trump Would Not Choose Barrett as His Nominee

There are three main reasons why Barrett may not be chosen as the nominee.  First, Barrett does not yet have the requisite level of experience for the Supreme Court.  Republicans are still wary from the nomination of Justice David Souter (an expected conservative who became a reliably liberal vote) and may seek stronger confirmation of Barrett’s jurisprudence before elevating her.  Second, Barrett risks fracturing the Republican caucus.  Republican Sen. Susan Collins has already indicated that she will not back any nominee who opposes Roe v. Wade or who does not commit to stare decisis.  Given Barrett’s writings on the subject, her confirmation may end up being much more difficult than those of other shortlisters.  Third, given the comparative paucity of female Supreme Court candidates on the right, Trump may choose to “save” Barrett for a seat vacated by a female Justice (e.g. Justice Ruth Bader Ginsburg).

Expected Lines of Attack

Barrett has already undergone one grueling confirmation process, receiving just three Democratic votes.  If she is nominated again, expect emphasis on Barrett’s view on Roe v. Wade, given her status as the likely fifth vote on rehearing the case.

Likelihood of Nomination

Had the nomination come out this week, I’d have expected Barrett to be the nominee.  However, a brutal series of attacks by social conservatives on expected frontrunner Brett Kavanaugh may have had the side-effect of weakening Barrett as well.  Nevertheless, given the political benefits of nominating Barrett,a Barrett nomination should be no surprise.