Allison Rushing – Nominee to the U.S. Court of Appeals for the Fourth Circuit

At just 36 years old, Allison Jones Rushing is the youngest nominee Trump has put forward so far to an appellate seat.  While Rushing has a stellar resume, her youth will likely raise concerns in the confirmation process.

Background

Rushing was born Allison Blair Jones in Hendersonville, North Carolina in 1982.  She received a B.A. summa cum laude from Wake Forest University in 2002 and a J.D. magna cum laude from the Duke University School of Law in 2007.  As a law student, Rushing worked as a summer intern at the Alliance Defense Fund (ADF) (now Alliance Defending Freedom).[1]  ADF has drawn controversy for its advocacy involving “religious freedom” and has been labeled a hate group by the Southern Poverty Law Center.[2]

After graduating, Rushing clerked for then-Judge Neil Gorsuch on the Tenth Circuit, Judge David Sentelle on the D.C. Circuit, and for Justice Clarence Thomas on the U.S. Supreme Court, with a short stint as an Associate at Williams & Connolly in between.[3]

After her clerkships, Rushing rejoined the D.C. office of Williams & Connolly as an Associate.  In 2016, Rushing became a Partner at the firm, where she continues to serve.

History of the Seat

Rushing has been nominated to replace U.S. Circuit Judge Allyson Kay Duncan, who has indicated her intention to move to senior status upon the confirmation of her successor.  In June 2018, shortly after Duncan announced her departure, Rushing was contacted by the White House to gauge her interest in an appointment to the Fourth Circuit.[4]  After an interview, Rushing was informed by the White House that she would be nominated.[5]  Rushing was officially nominated on August 27, 2018.

Legal Experience

Other than her clerkships, Rushing has spent her legal career at the firm of Williams & Connolly, specifically focusing on appellate and commercial litigation.  Over the course of her career, Rushing has handled four trials in federal district court as well as over 47 briefs at the U.S. Supreme Court.[6]  In her litigation work, she has frequently collaborated with Williams & Connolly partner Kannon Shanmugam, himself a famous conservative attorney.

Among her more prominent clients, Rushing has represented the Bank of America corporation,[7] KPMG,[8] Ernst & Young,[9] and Eli Lilly.[10]  Rushing also represented Jesse Litvak, a bond trader convicted of securities fraud based on statements he had made during negotiations, on appeal, successfully reversing the convictions on the basis that Litvak’s misstatements were immaterial.[11]  Rushing also represented the New York City Council Black, Latino and Asian Caucus as amicus in a case involving New York City’s policy of preventing worship services in schools.[12]

Writings

As a law student, Rushing authored an article discussing the Rooker-Feldman doctrine, which bars lower federal courts from reviewing state court judgments.[13]  In the paper, Rushing outlines the doctrine, as well as changes to its contours in later decisions such as Exxon Mobil Corp. v. Saudi Basic Industries Corp., which clarified that the Rooker-Feldman doctrine does not bar “parallel suits.”[14]

Political Activity & Membersips

Rushing has been a member of the Federalist Society for Law and Public Policy Studies since 2012.[15]  Rushing also served as a legal advisor in the Mitt Romney Presidential Campaign, to which she also donated $500.[16]

On the flip side, Rushing campaigned for Democratic Maryland Delegate Sam Arora, a former aide to Senator Hillary Clinton.[17]

Overall Assessment

With her hearing today, Rushing is on track to be the  youngest appellate judge confirmed since Alex Kozinski was appointed in 1985.  As such, it is likely that much of the debate around Rushing will revolve around her qualifications and experience.

While Rushing falls narrowly short of the American Bar Association’s twelve years of practice requirement, she was nonetheless rated “Qualified” by the group.[18]  This is likely a testament to Rushing’s substantial litigation experience, including extensive practice in the courts of appeals.

However, this does not mean that no questions can be raised about Rushing’s background.  Specifically, North Carolina lawyers might question Rushing’s connection with the court and the state that she will be serving.  While Rushing is a native North Carolinian, she has not practiced law in the state since law school, is not a member of the North Carolina bar, and, according to her firm biography, is not admitted to practice in the Fourth Circuit, the court to which she has been appointed.[19]

Given these factors and her relative youth, many will argue that there are many more qualified and experienced candidates for this vacancy.  However, the ultimate question around Rushing, as around any other nominee, is not whether she is the “most qualified” candidate, but rather, whether she meets the requisite levels of qualifications to be an appellate judge.  As Rushing’s intellect and legal ability are unquestioned, how senators vote will ultimately depend on which factors they consider in answering that question.


[1] Sen. Comm. on the Judiciary, 115th Congress, Allison Jones Rushing: Questionnaire for Judicial Nominees 2.

[2] See Southern Poverty Law Center, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom (last visited Oct. 17, 2018).

[3] See Rushing, supra n. 1 at 2.

[4] Id. at 28.

[5] Id.

[6] Id. at 13-14.

[7] See United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 83 F. Supp. 3d 528 (S.D.N.Y. 2015).

[8] See Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, LLP, 798 F.3d 113 (2d Cir. 2015).

[9] Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[10] See Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357 (Fed. Cir. 2017).

[11] See United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) and 808 F.3d 160 (2d Cir. 2015).

[12] The Bronx Household of Faith et al. v. Bd. of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014).

[13] Allison B. Jones, The Rooker-Feldman Doctrine: What Does It Mean to be Inextricably Intertwined, 56 Duke L.J. 643 (Nov. 2006).

[14] Id. at 658-59.

[15] See Rushing, supra n. 1 at 5.

[17] See Rushing, supra n. 1 at 10.

[18] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Oct. 17, 2018).

[19] See Williams & Connolly, Allison Rushing, https://www.wc.com/Attorneys/Allison-Jones-Rushing (last visited Oct. 17, 2018).

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