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.

[5] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?cand=&cycle=&employ=&name=john+o%27connor&order=desc&sort=D&state=OK&zip= (last visited July 8, 2018).

[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).

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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. Carpenter – This 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. Gabrion – This 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. McCarthy – This 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.

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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.

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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. Foster – This 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 CCA – This 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.

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Meet the Shortlisters: Thomas Hardiman

Judge Thomas Hardiman was almost nominated to the Supreme Court last year to replace Justice Scalia. Hardiman, who sits on the U.S. Court of Appeals for the Third Circuit, was feted for his “blue-collar credentials” but was ultimately overlooked for the more privileged Judge Neil Gorsuch. This time around, Hardiman is once again a shortlister for a Supreme Court appointment.

Vital Statistics

Name: Thomas Michael Hardiman

Age: 52 (53 in five days)

Current Position: Judge on the U.S. Court of Appeals for the Third Circuit (since 2007)

Education: B.A. with Honors from the University of Notre Dame; J.D. from Georgetown University Law Center

Clerkships: None

Prior Experience: Private Practice in Washington D.C. & Pittsburgh 1989-2003; Judge on U.S. District Court for the Western District of Pennsylvania 2003-2007.

Jurisprudence

Hardiman is currently a judge on the U.S. Court of Appeals for the Third Circuit, where he has served since 2007 (and previously served from 2003 to 2007 on the U.S. District Court for the Western District of Pennsylvania). On the Third Circuit, Hardiman has authored about 600 opinions, including around 30 that sparked a concurrence or dissent. Here are some key opinions that reflect Hardiman’s judicial philosophy on constitutional issues:

First Amendment

B.H. ex rel. Hawk v. Easton Area School District – The Easton Area School District banned students from wearing breast cancer awareness bracelets that stated “I ♥ Boobies.” In response, students brought suit under the First Amendment and the Third Circuit struck down the ban on a 9-5 vote. In dissent, Hardiman noted that, in his opinion, it was “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.”

Kelly v. Borough of Carlisle – In a civil rights action, the plaintiff argued that he was unlawfully arrested for filming a police officer during a traffic stop. Writing for the panel, Hardiman found that, if a First Amendment right to film a police officer existed, it was not clearly established, and that the arresting officer was protected by qualified immunity in the case.
Lodge No. 5 of Fraternal Order of Police v. Philadelphia – In a First Amendment challenge, Hardiman held that the City of Philadelphia could not bar police officers from making campaign contributions to the PAC of the police union.

Second Amendment

Drake v. Filko – Under New Jersey law, individuals seeking to carry handguns in public must demonstrate a “justifiable need to carry a handgun.” A 2-1 vote of the Third Circuit upheld this requirement against a Second Amendment challenge. In dissent, Hardiman argued that the law violated the Second Amendment, arguing that the Supreme Court’s decisions in DC v. Heller and McDonald v. Chicago extend the right to bear firearms beyond the home.

Right to Privacy

Florence v. Bd. of Chosen Freeholders – This case involved the challenge to the policy of strip searching all arrestees, regardless of how minor the offenses were. Hardiman wrote for the panel in upholding the policy, holding that officials may strip-search all arrestees even without suspicion of carrying any contraband. This ruling was upheld by the U.S. Supreme Court on a 5-4 vote.

LGBT Rights

Prowel v. Wise Business Forms, Inc. – This case involved a Title VII gender stereotyping claim brought by a homosexual employee who alleged severe and pervasive harassment from coworkers. In response, the Defendant argued that the employee was attempting to claim discrimination based on sexual orientation, which is not cognizable under Title VII. Hardiman ruled that the employee’s claim was based, not on discrimination based on sexual orientation, but rather on gender stereotypes, finding “no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.”

Why Trump Could Choose Hardiman as His Nominee

Hardiman was almost the Supreme Court nominee last year because, in many ways, he was (and remains) a politically sound nominee. He is from Pittsburgh in the Rust Belt, has a (relatively) less-connected background, and has the support of Judge Maryanne Trump Barry, the President’s sister. Furthermore, Hardiman has a fairly conservative record on the federal bench, while also having two unanimous confirmations under his belt. Additionally, choosing Hardiman as the nominee may put pressure on Democratic Senator Bob Casey, who may choose to back his home-state nominee.

Why Trump Would Not Choose Hardiman as His Nominee

In his current nominee, Trump is looking for ivy league pedigrees and academic writings. Hardiman doesn’t bring either to the table. Furthermore, Hardiman’s opinion in Prowel may alienate social conservatives.

Expected Lines of Attack

Hardiman’s judicial record can be mined for opposition. Opponents may attack Hardiman, for example, for permitting the strip searching of all arrestees, even those charged with minor violations. They may also raise his dissent in Easton and his opinion in Kelly to suggest that Hardiman would defer to government judgments on First Amendment restrictions.

Additionally, gun control advocates are likely to attack Hardiman as a Second Amendment absolutist, based on his dissent in Drake and his view that Heller and McDonald establish a right to bear firearms outside the home (a right not yet endorsed by the U.S. Supreme Court).

Likelihood of Being Nominated

Despite the ringing endorsement of Judge Barry, Hardiman was not chosen for the Supreme Court last term. His chances are, if anything, slightly worse this time around. Supreme Court selections are ultimately about chemistry as much as they are about ideology. In 2009, President Obama chose then 2nd Circuit Judge Sonia Sotomayor based largely on Sotomayor’s strong performance in her personal interview. Given that Trump has already overlooked Hardiman once, his odds may not be as high as those of fresher faces.

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Meet the Shortlisters: Amul Thapar

This is the second time that Judge Amul Roger Thapar has been considered by President Trump for a Supreme Court appointment. Last year, Thapar was interviewed by Trump and White House Counsel Don McGahn for the seat opened by Justice Scalia’s death, despite only being a District Court judge at the time.[1] Shortly after, Thapar was nominated to the U.S. Court of Appeals for the Sixth Circuit (Trump’s first lower court judicial nominee) and was confirmed on a party-line 52-44 vote.

Vital Statistics

Name: Amul Roger Thapar

Age: 49

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

Education: B.S. from Boston College; J.D. from U.C. Berkeley School of Law

Clerkships: Judge S. Arthur Spiegel on the U.S. District Court for the Southern District of Ohio; Judge Nathaniel Jones on the U.S. Court of Appeals for the Sixth Circuit

Prior Experience: Associate at Williams & Connolly; Assistant U.S. Attorney for the Southern District of Ohio; U.S. Attorney for the Eastern District of Kentucky; U.S. District Judge for the Eastern District of Kentucky

Jurisprudence

Thapar has served on the U.S. Court of Appeals for the Sixth Circuit since May 25, 2017. In the past thirteen months on the Sixth Circuit, Thapar has authored approximately forty opinions. These opinions are mostly unanimous, with only two sparking a dissent by a panel judge.[2] In one case, Thapar reversed summary judgment against plaintiffs in a civil rights case for a warrantless entry, but held that a malicious prosecution claim was forfeited.[3] In dissent, Judge Eric Clay noted:

“While it is true that Plaintiffs could have done a better job presenting their argument as to this claim, the brief is not so lacking in support and development as to consider the argument forfeited or waived. Indeed, Plaintiffs discussed the issue for four pages, throughout which they cited the standard for a malicious prosecution claim and identified sections of the record purportedly showing that elements of the claim are disputed. Plaintiffs also identified statements in the police report that they contend are false. Therefore, Plaintiffs have done enough in their brief for their argument not to be considered forfeited or waived.”[4]

In criminal and civil rights cases, Thapar has generally struck a conservative tone. For example, in Fields v. Henry County, Tenn. (decided while he was sitting by designation), Thapar held that the Constitution did not prohibit the automatic detention of domestic violence arrestees, holding that there is no constitutional right to speedy bail.[5] In another notable case, while sitting by designation on the Sixth Circuit, Thapar held that a defendant’s purchase of a one-month subscription to a child pornography website sixteen months earlier created probable cause for a search of his home.[6] Thapar’s reasoning was lambasted in dissent by Judge Karen Nelson Moore, who suggested that Thapar had a “radical view of probable cause” that was “far more expansive than any circuit had taken to date.”[7]

Thapar has, on occasion, issued decisions that could be considered more “liberal.” For example, Thapar held that police officers were protected by the First Amendment in exposing illegal wiretapping of private conversations conducted by law enforcement.[8] In another case, Thapar affirmed the suppression of evidence where the searching officer did not abide by the conditions of the anticipatory warrant issued.[9]

Before his elevation, Thapar served on the U.S. District Court for the Eastern District of Kentucky for nine years. During this time, Thapar maintained a fairly conservative record, particularly on criminal issues.[10] In civil cases, Thapar also developed a reputation for denying motions for summary judgment in cases where factual disputes required cases to go to the jury.[11]

Notably, as a District Judge, Thapar struck down several canons of the Kentucky Code of Judicial Conduct, including restrictions on holding political fundraisers.[12] The Sixth Circuit affirmed most of Thapar’s opinion but reversed his striking of the political fundraiser restriction.[13]

Why Trump Could Choose Thapar as His Nominee

By all accounts, Trump is looking for credentialed young conservatives for the Supreme Court. Thapar meets all three criteria: he has strong academic credentials; is younger than every Supreme Court nominee since Clarence Thomas; and has a relatively conservative record on the bench. Furthermore, Thapar is strongly supported by Senate Majority Leader Mitch McConnell, and would likely be confirmed smoothly, given his mentor’s strong reputation among the Senate Republican Caucus. Finally, Thapar would make history as the first Indian American, Asian American, and South Asian American Supreme Court Justice, potentially blunting the effectiveness of attacks painting him as a conservative ideologue.

Why Trump Would Not Choose Thapar as His Nominee

Trump has apparently asked that his nominee have stellar academic credentials and a strong body of academic writings.[14] In contrast with other shortlisters, Thapar did not attend Harvard or Yale, did not clerk on the U.S. Supreme Court, and has authored just three academic articles in his entire career.

Furthermore, Thapar’s jurisprudence, while conservative, also includes a fair share of liberal anomalies. This may lead Trump to more “reliably” conservative nominees.

Expected Lines of Attack

If Thapar is nominated, expect ads to focus on his connection to McConnell, who remains significantly less popular than Trump. Furthermore, Thapar may face criticism for his overturning of canons in Kentucky’s Code of Judicial Conduct, which may be paralleled to the Supreme Court’s ruling in Citizens United.

Likelihood of Being Nominated

Thapar would not be where he is today without the support of Senate Majority Leader Mitch McConnell (R-KY), who was Thapar’s sponsor as he became the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first Indian American judge on the Sixth Circuit. As such, one can only assume that the powerful McConnell is (at least partially) responsible for Thapar’s consideration for the Supreme Court.

However, given his limited academic record and his (relatively) unpredictable jurisprudence, I’d predict that Thapar is the least likely of the five finalists to be nominated.

[1] Shane Goldmacher, Eliana Johnson, & Josh Gerstein, How Trump Got to Yes on Gorsuch, Politico, Jan. 31, 2017, https://www.politico.com/story/2017/01/trump-supreme-court-gorsuch-234474.

[2] See Stein v. Atlas Indus., Inc., No. 17-3737, 2018 WL 1719097, at *6 (6th Cir. Apr. 9, 2018) (Batchelder, J., dissenting) (dissenting from majority opinion reversing dismissal of plaintiff’s ERISA claim); Brenay v. Schartow, 709 F. App’x 331, 337 (6th Cir. 2017) (Clay, J., dissenting) (stating that Plaintiffs did not waive their malicious prosecution claims).

[3] Brenay v. Schartow, 709 F. App’x 331.

[4] Id. at 338 (Clay, J., dissenting).

[5] See Fields v. Henry Cnty., Tenn., 701 F.3d 180, 185 (6th Cir. 2012).

[6] See United States v. Frechette, 583 F.3d 374, 376 (6th Cir. 2009).

[7] Id. at 381 (Moore, J., dissenting).

[8] Kiessel v. Oltersdorf, 459 Fed. Appx. 510 (6th Cir. 2012).

[9] United States v. Perkins, 887 F.3d 272 (6th Cir. 2018).

[10] See Harsh Voruganti, Judge Amul R. Thapar – Nominee to the U.S. Court of Appeals for the Sixth Circuit, The Vetting Room, Apr. 26, 2017, https://vettingroom.org/2017/04/26/judge-amul-r-thapar-nominee-to-the-u-s-court-of-appeals-for-the-sixth-circuit/.

[11] See Voruganti, supra n. 2.

[12] Winter v. Wolnitzek, 56 F. Supp. 3d 884, 889 (E.D. Ky. 2014).

[13] Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

[14] Michelle Mark, Trump Has Narrowed His Supreme Court Nominee Shortlist to 5 Candiates – And There Are Reportedly 3 Qualities the Winner Must Embody, Business Insider, June 30, 2018, http://www.businessinsider.com/trump-supreme-court-nominee-shortlist-3-main-qualities-2018-6.

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