Last year, the White House’s nomination of Matthew Petersen self-destructed during his Judiciary Committee hearing after an embarrassing exchange with Sen. John Kennedy (R-La.) revealed the nominee’s lack of courtroom experience.  In attempting to mitigate that issue, the White House’s next nominee to the seat has extensive litigation experience: Carl Nichols.

Background

Carl John Nichols was born in Rhinebeck, NY on June 25, 1970.  Nichols graduated cum laude from Dartmouth University in 1992 and then spent a year as a paralegal at McKenna & Kuneo in Washington D.C.[1]  He then attended the University of Chicago Law School, serving as Editor of the University of Chicago Law Review and graduating with high honors.[2]

After graduating, Nichols clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.  In the latter position, Nichols clerked alongside Solicitor General Noel Francisco, and federal appellate judges Sri Srinivasan, Stephanos Bibas, Raymond Kethledge, and John Owens.

After finishing up his clerkships, Nichols joined the D.C. office of Boies Schiller Flexner LLP as an associate.[3]  Four years later, he became a partner at the firm.  In 2005, Nichols left the firm to join the Department of Justice as Deputy Assistant Attorney General for the Civil Division, where he worked with future D.C. Circuit Judge Greg Katsas.[4]  Nichols became Principal Deputy Associate Attorney General in 2008.

In 2010, Nichols joined Wilmer Cutler Pickering Hale & Dorr LLP as a Partner.  He continues to serve in that role today.

History of the Seat

The seat Nichols has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[5]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On September 11, 2017, President Trump nominated Matthew Petersen, a Commissioner with the Federal Election Commission, to fill the vacancy.  Petersen was prominent as a Republican election lawyer, was close to White House Counsel Don McGahn, and initially looked slated for a swift confirmation.  However, during his confirmation hearing, Petersen faced a sharp series of questions from Sen. John Kennedy, revealing that the nominee had never tried a case, taken fewer than five depositions over his career, and could not identify basic legal concepts including the definition of a motion in limine.[6]  With the video of Petersen’s inability to answer going viral, Petersen quietly withdrew his nomination on December 18, 2017.[7]

On December 21, 2017, three days after Petersen withdrew, Nichols was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[8]  Nichols was interviewed by the White House on January 5, 2018 and was preliminarily selected as a nominee on February 12, 2018.[9]  Nichols was officially nominated on June 18, 2018.

Legal Experience

Nichols’s legal career can be broken down into three distinct periods for analysis: the first is from 1998-2005, where he worked as an associate and partner at Boies Schiller;  the second is from 2005-2009, where Nichols worked as a DOJ attorney; the final is from 2010-present, where Nichols has worked at WilmerHale.

From 1998 to 2005, Nichols worked in the D.C. office of Boies Schiller focusing on civil litigation.  For example, Nichols represented Philip Morris in defending against a Sherman Act suit brought by rival tobacco companies seeking damages based on Philip Morris’ retail marketing programs.[10]  Nichols successfully defended summary judgment in favor of Philip Morris at the district court and court of appeals levels.[11]

From 2005 to 2008, Nichols served as Deputy Assistant Attorney General for the Civil Division, supervising the Federal Programs Branch, which handled civil cases across the nation.  During his tenure, Nichols was responsible for handling lawsuits related to the warrantless wiretapping of Americans.  For example, Nichols argued that a lawsuit brought by the Electronic Frontier Foundation against AT&T should be dismissed for infringing on national security.[12]  In another case, Nichols sued Maine officials and Verizon to prevent the release of information related to Verizon’s participation in warrantless wiretapping.[13]

From 2008 to 2009, Nichols served as the Principal Deputy Associate Attorney General for the Civil Division, working directly under Assistant Attorney General Kevin McDonald.  In this role, Nichols helped supervise and run the entire Civil Division.[14]  During his tenure, the Democratic-controlled House of Representatives sued the White House to seek access to subpoenaed information regarding the dismissal of U.S. Attorneys.  Nichols defended against the suit in D.C. federal courts.  Ultimately, Judge John Bates ruled in favor of the House of Representatives, but the decision was stayed by the D.C. Circuit until the end of the Bush Presidency.

Since 2010, Nichols has been a partner at WilmerHale, working in the Government and Regulatory Litigation Group.  Notably, Nichols represented Florida Attorney General Bill McCollum in defending against a suit filed by Governor Rick Scott to invalidate Florida’s campaign finance laws.[15]  Nichols also represented the Association of California Egg Farmers in defending a California law banning the sale of eggs that do not conform to certain safety regulations.[16]

Political Activity

Nichols has an extensive record of political contributions to Republicans.  Since joining WilmerHale in 2010, Nichols has given almost $9000.[17]  Among the recipients included Sens. Rob Portman, Mike Lee, former Sen. Scott Brown, and Congressmen Darrell Issa and Liz Cheney.[18]  Additionally, Nichols served as a transition team advisor for the Romney-Ryan campaign in 2012.[19]

Overall Assessment

After Petersen, the White House is looking to ensure that no questions can be raised as to the next nominee’s qualifications.  By that standard, they have succeeded with Nichols.  Nichols has extensive litigation experience and has been described by former Clinton White House Official Jamie Gorelick as a “spectacular” nominee.[20]

This is not to say that Nichols will not face any controversy in his confirmation.  Nichols may face questions regarding his work at the Department of Justice, particularly focused on his involvement in defending warrantless wiretapping and in fighting the House suit against the White House.  While Nichols will argue that any controversial positions he took were solely those of the Department, senators will nonetheless probe his views of warrantless surveillance and the role of Congress in enforcing subpoenas.

As a bottom line, given Nichols’ extensive experience, he is likely to fare better than Petersen and will likely add a conservative voice to the D.C. bench.

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