Month: November 2018

Judge Clifton Corker – Nominee to the U.S. District Court for the Eastern District of Tennessee

Judge Cliff Corker (no relation to Sen. Bob Corker) is Trump’s first nominee to the federal court that covers much of Eastern Tennessee.  While Corker is an experienced judge and advocate, some intemperate writings from his college years may cause him some heartburn.

Background

Clifton Leland Corker was born in Richmond, VA in 1967.  He graduated from James Madison University in 1990 and then attended William & Mary Law School, graduating in 1993.[1]  Corker then clerked for Judge Cynthia Kinser, then a magistrate on the U.S. District Court for the Western District of Virginia.[2]

After his clerkship, Corker worked as a volunteer for the Public Defender in Greenville, Tennessee for a year and then as an Associate at Terry, Terry & Stapleton briefly before opening his own law practice in Johnson City.[3]  Corker stayed at the practice until he became a U.S. Magistrate Judge for the Eastern District of Tennessee in 2015, where he serves today.[4]

History of the Seat

Corker has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on June 30, 2018, when Judge J. Ronnie Greer moved to senior status.  In June 2018, Corker was interviewed for the vacancy by the White House and was nominated on October 10, 2018.[5]

Legal Career

Corker started his legal career by clerking on the U.S. District Court for the Western District of Virginia.  He then worked as a Public Defender and at a small litigation practice.  Overall, Corker tried approximately 25 jury trials before joining the bench.[6]

From 1996 to 2005, Corker handled litigation matters in Johnson City, including the representation of indigent defendants on a court-appointed basis.[7]  During this time, he represented Gary Moore, an indigent defendant charged with conspiracy to distribute crack cocaine.[8]  Corker was able to successfully get the evidence of the crack cocaine suppressed by arguing that the officers lacked probable cause for a search incident to arrest.[9]  Similarly, Corker was able to get a search warrant issued by an associate municipal judge in Johnson City overturned, forcing a ruling that municipal judges had no authority to issue search warrants.[10]

However, Corker was less successful in arguing before the Tennessee Supreme Court that the Tennessee Constitution provides broader protections for defendants seeking access to counsel than the U.S. Constitution.[11]

Political Activity

Corker has a modest political history working for Republican candidates.  He volunteered for George H.W. Bush as a college student and has supported Tennessee Republicans more recently.[12]  Corker also contributed to the Presidential campaign of Mike Huckabee in 2008.[13]

Jurisprudence and Reversals

Corker has served as a U.S. Magistrate Judge since his appointment in 2015.  In his three years on the bench, Corker has presided over 149 cases where parties have consented to his jurisdiction, a remarkably high number.[14]

Over his three years on the bench, Corker has only had his reports and recommendations rejected twice.  In the first, Judge Greer rejected Corker’s recommendation that an ALJ’s denial of social security benefits be affirmed.[15]  In the second, Judge Pamela Reeves rejected Corker’s ruling that the criminal statute defendant was charged upon was not unconstitutionally vague.[16]

Writings

As a college student, Corker frequently wrote articles and letters to the editor for The Breeze, the JMU college paper.  In these writings, Corker takes strongly conservative positions, frequently employing hyperbolic language to lampoon the perceived weaknesses of ideological opponents.  For example, in one piece, Corker writes that the “evil spirit of liberalism is beginning to ooze out of the hearts and minds of those it holds captive, seeking to add more to its chains of slavery.”[17]  In another piece, Corker defends Col. Oliver North as “the victim of a prosecutor with an unlimited budget” and describes the U.S. Congress as the “enemy” for investigating North and interfering with the Reagan Administration’s foreign policy.[18]  In another column announcing a debate over the Reagan Administration’s Strategic Defense Initiative (SDI), Corker takes the first paragraph to dismiss the designation of Nov. 9-16 as Nuclear Awareness Week and Gay Rights Week, noting:

“This leads me to question as to whether it is the gays who want more nuclear awareness or the nuclear awareness persons who want more gay rights?”[19]

In other articles, Corker praises the Supreme Court candidacy of Robert Bork, arguing that “[w]omen’s rights will not suffer at all” by recognizing that, unlike with race, there are “reasonable differences between genders,”[20] and criticizes the push for divestment from South Africa due to apartheid, arguing that current sanctions “are neither helping blacks nor aiding in the abolishment of apartheid.”[21]

Overall Assessment

Is Corker a consensus nominee?  If we look at Corker’s record starting with his time in law school, the answer would unquestionably be “yes.”  His record as a judge is truly impressive with a very low rate of reversal.  Additionally, his background working to expand the rights of criminal defendants is fairly unique among federal judicial nominees, among whom prosecutors tend to be more common.

However, when you bring in Corker’s college writings, in which he calls liberals “evil”, suggests that opponents of Reagan are un-American, and mocks the designation of “Gay Rights Week” they paint a different picture.  To be fair, individuals change and grow throughout their lives, and it is likely that Corker is a different person today than when he wrote those statements.  As such, it remains to be seen how relevant senators find his college writings when contrasted with the rest of his record.  It is also important to see if Corker is willing to distance himself from these writings (at least in tone if not in substance).

[1] Sen. Comm. on the Judiciary, 114th Cong., Clifton L. Corker: Questionnaire for Judicial Nominees 1.

[2] Kinser would later serve on the Virginia Supreme Court.

[3] Id. at 2.

[4] Id.

[5] See id. at 51.

[6] Id. at 42.

[7] Id. at 40-41.

[8] See United States v. Brown, 390 F. App’x 503 (6th Cir. 2010).

[9] See id.

[10] United States v. Hall, No. 2:01-cr-0027-1 (E.D. Tenn. Aug. 6, 2001).

[11] See State v. Saylor, 117 S.W.3d 239 (Tenn. 2003).

[12] See Corker, supra n.1 at 39.

[14] See Corker, supra n.1 at 18.

[15] McMillan v. Colvin, Comm’r of Social Security, No. 2:15-cv-167 (E.D. Tenn. Aug. 30, 2016).

[16] See United States v. Lopez, No. 2:17-cr-62 (E.D. Tenn. Dec. 12, 2017).

[17] See Letter to the Editor, Evil Liberal Spirit Returns, The Breeze, Mar. 24, 1988, at 35, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1481&context=i19801989.

[18] Letter to the Editor, Anti-North Groups Really Resent ‘Success of Reagan Revolution’, The Breeze, Jan. 30, 1989, at 12, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1528&context=i19801989.

[19] Letter to the Editor, National Defense Debated: Two Sides to Arms Build-Up Discussed By High-Ranking Officers, The Breeze, Nov. 12, 1987, at 21, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1457&context=i19801989.

[20] Letter to the Editor, Bork Views Based on Sound Judgment, The Breeze, Oct. 8, 1987, at 27, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1448&context=i19801989.

[21] Clifton Corker, End Apartheid: Invest in South Africa, The Breeze, Feb. 23, 1989, at 10, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1535&context=i19801989.

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Brian Buescher – Nominee to the U.S. District Court for the District of Nebraska

In 2014, Brian Buescher ran as a strong conservative for the Nebraska Attorney General’s office, but came in second to Doug Petersen.  Four years later, Buescher has an opportunity for an incredible consolation prize: a lifetime appointment to the federal bench.

Background

A native cornhusker, Brian Craig Buescher was born on January 16, 1975 in Beatrice, Nebraska.  Buscher attended the University of Nebraska at Lincoln and then Georgetown University Law Center, getting his J.D. in 2000.[1]  During law school, Buescher worked as a summer associate at Kutak Rock LLP, the largest law firm in Nebraska.  He was hired by the firm as an Associate upon graduation.[2]  Buescher became a Partner in 2007 and Chair of Agribusiness Litigation in 2009.[3]

In 2014, Buescher joined the race to be Nebraska Attorney General, replacing Jon Bruning, who was running for Governor of Nebraska.  Buescher ultimately got approximately 25% of the vote, coming in second in the five way race and losing to eventual winner Doug Peterson.

History of the Seat

Buescher has been nominated for a vacancy on the U.S. District Court for the District of Nebraska.  This seat will open on December 1, 2018, when Judge Laurie Smith Camp moves to senior status.  In early 2018, Buescher expressed his interest in a judgeship with representatives of Sen. Ben Sasse.[4]  Buescher interviewed with Sasse, Sen. Deb Fischer, and the White House in May 2018.  Buscher was selected as a preliminary nominee in early June and was nominated in October 2018.

Legal Experience

Buescher has spent virtually his entire legal career at the firm of Kutak Rock LLP in Omaha.  Barring a short stint working on detail as a Douglas County Domestic Violence Unit prosecutor, Buescher has worked in commercial litigation, primarily focusing on agribusiness cases.  Over the course of his career, Buescher has tried 10 cases.[5]

Notably, Buescher represented Lee Simmons, a Nebraska landowner who challenged the National Park Service’s designation of boundaries that implicated some of his properties.[6]  Both the district court and the Eighth Circuit rejected the challenge, arguing that the boundary designation was not arbitrary or capricious under the Administrative Procedure Act.[7]  Buescher touted his representation of Nebraska farmers and landowners in suits against the federal government in his fight for the Attorney General seat.[8]

Writings and Public Positions

Having run for Attorney General in 2014, Buescher’s public positions on many issues are well-known and are strongly conservative.  Some of the key ones are highlighted below.

Attorney General Campaign

During his campaign for the Republican nomination to be Nebraska Attorney General, Buescher ran as a strong conservative.[9]  In his campaign, Buescher repeatedly emphasized four platform positions: fighting federal regulations;[10] opposing Obamacare;[11] support for pro-life policies;[12] and reforming Nebraska’s good time law to prevent repeat offenders from leaving their prison sentences early.[13]  Buescher ran campaign commercials promising to “protect the rights of the unborn” and “stand up to the Obama Administration.”[14]  He also praised the concept of a “limited government”[15] and described himself as “very passionate about conservative, pro-life politics.”[16]

Conflict of Interest

As a law student, Buescher authored two articles discussing conflicts of interest and legal ethics.[17]  In the first, he discussed Nebraska’s bright line rule preventing representations where an appearance of impropriety can be raised due to a potential conflict of interest.[18]  Buescher argued that the rule’s strictness limited the mobility of lawyers and staff and had caused an exodus of lawyers from the state.[19]  Instead, Buescher recommended the adoption of the looser Model Rules approach to conflict of interest.[20]

In the second paper, Buescher addressed ABA Model Rule 7.6 which prevents political contributions made with the intention of procuring legal work.[21]  Buescher argues that the rule is ineffective because a violation is nearly impossible to prove, and that, instead, the burden should rest on lawyers to prove that their contributions were made for reasons other than to secure legal work.[22]

Political Activity

Other than his Attorney General campaign, Buescher has a long and active history in the Nebraska Republican Party, including serving on the State Central Committee from 2004 to 2018.[23]  In addition, Buescher has served as Counsel for the Nebraska Republican Party, for Gov. Pete Ricketts’ campaign in 2014, and has volunteered for numerous Nebraska Republicans including Sasse, Fischer, Ricketts, Rep. Don Bacon, and former Sen. Mike Johanns.[24]

Overall Assessment

Overall, while Buescher’s legal career reinforces his legal credentials, he is nonetheless likely to face some questions regarding his political activity.  Specifically, Buescher is likely to be closely questioned on his expressed commitment to “conservative, pro-life” politics.  While advocates are generally supposed to set aside their policy views upon ascension to the bench, opponents may argue that, given his own description of his beliefs, Buescher will be unable to do so.

In comparison, Buescher’s supporters will nonetheless argue that a past political career should not be a barrier to joining the judiciary and that many distinguished judges had previously run for office.

Ultimately, Buescher’s nomination shows the risks of appointing former candidates for office to the bench.  Statements that are encouraged for elected representatives to make usually raise eyebrows when made by a judge.  It remains to be seen if Buescher will, in his hearing, dispel any concerns about the kind of judge he will be.

[1] Sen. Comm. on the Judiciary, 115th Cong., Brian C. Buescher: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] Id. at 40.

[5] See id. at 29-30.

[6] Simmons v. Smith, 888 F.3d 994 (8th Cir. 2018).

[7] Id. at 1002.

[8] NTVNews, Brian Buescher 4-30-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=NcyJFZMr2BA.

[9] See Elizabeth Anna Valla, Buescher Opposes Federal Government’s Overreach, Columbus Telegram, Apr. 18, 2014.

[10] See, e.g., yorknewstimes, Brian Buescher Interview, YouTube (Mar. 7, 2014), https://www.youtube.com/watch?v=yqo0DaYH6wE (noting Buescher’s opposition to “undue interference from the federal government.”).  See also Brian Buescher, Brian Buescher for Attorney General, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

[11] Brian Buescher, Brian Buescher for Attorney General, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

[12] NTVNews, Brian Buescher 3-17-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=IbWctFT9ZLU.

[13] See NBC Nebraska, News 5 at 10 – Attorney General Candidates Talk Prison Reform/ April 29, 2014, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=eL5Z51SdwgE.  See also NTVNews, Brian Buescher 3-17-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=IbWctFT9ZLU; NTVNews, Brian Buescher 4-30-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=NcyJFZMr2BA.

[14] Brian Buescher, Brian Buescher for Attorney General, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

[15] NTVNews, Brian Buescher 4-30-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=NcyJFZMr2BA.

[16] NTVNews, Brian Buescher 3-17-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=IbWctFT9ZLU.

[17] See Brian Buescher, ABA Model Rule 7.6: The ABA Pleases the SEC, But Does Not Solve Pay to Play, 14 Geo. L. J. Ethics 139 (Fall 2000); Brian Buescher, Out With the Code and In With the Rules: The Disastrous Nebraska “Bright Line” Rule for Conflict of Interest: A Direct Consequence of th Shortcomings in the Model Code, 12 Geo. L. J. Ethics 717 (Summer 1999).

[18] See Brian Buescher, Out With the Code and In With the Rules: The Disastrous Nebraska “Bright Line” Rule for Conflict of Interest: A Direct Consequence of th Shortcomings in the Model Code, 12 Geo. L. J. Ethics 717, 727 (Summer 1999).

[19] See id. at 728-31.

[20] Id. at 737-38.

[21] Brian Buescher, ABA Model Rule 7.6: The ABA Pleases the SEC, But Does Not Solve Pay to Play, 14 Geo. L. J. Ethics 139 (Fall 2000).

[22] Id. at 154.

[23] See Buescher, supra n. 1 at 24-25.

[24] See id.

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Chad Readler – Nominee to the U.S. Court of Appeals for the Sixth Circuit

DOJ Attorney Chad Readler would have been controversial simply by the nature of his work for the Trump campaign, and in defending some of the White House’s most controversial initiatives.  However, the strong opposition by home-state Sen. Sherrod Brown doesn’t ease his path any further.

Background

Chad Andrew Readler was born in Pontiac Michigan in 1972.  Readler received his B.A. from the University of Michigan in 1994 and his J.D. cum laude from the University of Michigan Law School in 1997.[1]  He then clerked for Judge Alan Norris on the U.S. Court of Appeals for the Sixth Circuit.[2]

After his clerkship, Readler joined the Columbus office of Jones Day as an Associate.[3]  In 2007, he became a Partner at the firm.[4]

In 2017, after the election of Donald Trump, Readler joined the Department of Justice as Acting Assistant Attorney General for the Civil Division.[5]  He maintained that position until the confirmation of Jody Hunt in September 2018, and now serves as Principal Deputy.

History of the Seat

Readler has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Deborah Cook has indicated that she will vacate the seat upon the confirmation of a successor.

Readler was directly contacted by the White House to gauge his interest in an appointment to the Sixth Circuit.[6]  After interviews with the White House, Readler interviewed with Brown and Republican Senator Rob Portman in late 2017.[7]  He was officially nominated on June 18, 2018.  Brown has indicated his strong opposition to Readler’s nomination and has indicated that he will not return a blue slip.[8]

Political Activity

Readler had served as Outside Counsel for the Trump campaign in 2016.[9]

He was also the Ohio Co-Chair of Lawyers for Romney in 2012 and assisted with several Republican judicial election campaigns.[10]  Readler has also donated frequently to Republican candidates, giving over $12000 over the last twelve years.[11]

Private Practice

Until he joined the Department of Justice last year, Readler was a Partner in the Columbus office of Jones Day, frequently described as Trump’s favorite law firm, which has produced many Trump judicial nominees.  During his time at the firm, Readler represented a habeas petitioner seeking review of his “actual innocence” based habeas claim despite a time-bar, arguing on the petitioner’s behalf at the Supreme Court, and obtaining a limited 5-4 victory for his client.[12]

Charter School

One of Readler’s most significant cases at Jones Day involved the constitutionality of Ohio’s public funding for charter schools.[13]  The case involved a challenge to public funding of Ohio charter schools, which critics argued could not be considered “public” as they were administered by private entities and managed by for-profit corporations.[14]  Readler defended the designation of charter schools as public because the schools did not discriminate in admissions and were funded with public money.[15]  The Ohio Supreme Court ultimately narrowly sided with Readler, upholding the constitutionality of charter schools by a 4-3 vote.[16]

Later, Readler continued to defend charter schools against efforts by the Ohio government to shut down public schools that were underperforming.[17]  He also served as co-chair of the Ohio Constitutional Modernization Commission, which provided recommendations for constitutional changes, and recommended eliminating a requirement that the state fund a “thorough and efficient” system of schools.[18]

Trump Campaigns

During the 2016 campaign, Readler was one of the attorneys at Jones Day representing the Trump campaign.  Notably, Readler defended comments made by Trump during the campaign suggesting that the election was “rigged” as protected political speech in a suit over voter intimidation by the Trump campaign.[19]

Department of Justice

Since 2017, Readler has served as Acting Assistant Attorney General and Principal Deputy Assistant Attorney General under the Trump Administration.  In these roles, Readler has been to court to defend some of the Administration’s most controversial positions.

Travel Ban

Perhaps the most controversial case that Readler handled is the legal defense of the Trump travel bans, which were ultimately upheld narrowly by the Supreme Court in their third iteration.[20]  Early in the Administration, Readler argued (unsuccessfully) that the Ninth Circuit should reinstate the Trump Administration’s ban on travel with seven Muslim-majority countries (enjoined by Judge James Robart).[21]  He also successfully defended the ban before Judge Anthony Trenga in the U.S. District Court for the Eastern District of Virginia.[22]

CFPB

In 2018, after President Trump replaced outgoing Consumer Financial Protection Bureau head Richard Cordray with Mick Mulvaney, Readler helped defend the constitutionality of the appointment against a challenge from Cordray’s deputy Leandra English.[23]  Readler successfully argued that the President retained the authority to name Mulvaney and persuaded Judge Timothy Kelly to deny a preliminary injunction.[24]

Sanctuary Cities

Readler was also called to defend the legality of a Trump Administration initiative to deny federal funds to  “sanctuary cities” (cities that limit their cooperation with federal immigration enforcement).  In a hearing before Judge William Orrick, Readler argued that the denied grants were relatively minor and disputed arguments by the City of San Francisco that it could lose up to $1.7 Billion in federal funding.[25]  Orrick ultimately disagreed, enjoining the initiative.[26]

Writings

Throughout his legal career, Readler has opined on the law.  Two of his writings are highlighted below.

Non-Discrimination Ordinances

As a young lawyer, Readler wrote an article discussing the impact of local and municipal anti-discrimination protections, specifically arguing that such protections are ineffective.[27]  Specifically, Readler notes that local non-discrimination ordinances are not publicized as well to employers, rarely enforced, and, thus, are less effective.[28]  As an example, Readler suggests that stringent ordinances protecting same-sex couples in Columbus would force companies with offices in Columbus and other cities (such as Cincinnati) to adopt company wide anti-discrimination policies, and that such adoption would override “the will of the people of Cincinnati.”[29]

As such, Readler recommends federal control of anti-discrimination laws, and suggests that having private companies “free to choose their own employment policies” would be even better as that would avoid the resources needed to debate such issues on the governmental level.[30]

Charter Schools

In 2014, Readler co-authored a paper with fellow Jones Day attorney Ken Grose, in which he described and discussed recent legal victories on behalf of charter schools, suggesting that the rulings have reaffirmed the legitimacy of charter schools and comparing the wins to the victory of David over Goliath.[31]  In the paper, Readler also accuses charter school opponents of “ignoring the law” and of treating charter schools as “second class citizens.”[32]

Overall Assessment

Let’s get the obvious out of the way first: Readler is a controversial nominee.  His record is likely to be strongly objectionable to Democrats, given his close affiliation with Trump and the Administration’s initiatives.  Add to that the fact that Democratic Sen. Sherrod Brown is opposed, and it’s likely that every single Democratic vote at the end of the day will come down against Readler.  As such, his confirmation will depend on how many Republicans join them.

As of right now, there is little reason to think that any will.  Readler’s intellectual capacity and his intelligence are unquestionable, and Republicans have generally backed even controversial Trump nominations.  Furthermore, Readler’s backers can also argue that he should not be penalized for defending the positions taken by his client.

As such, Readler remains a favorite to be confirmed.  If and when he is, he will add a strongly conservative voice to the Sixth Circuit, continuing the Trump Administration’s efforts to reshape the federal bench.

[1] Sen. Comm. on the Judiciary, 115th Cong., Chad A. Readler: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] See Readler, supra n. 1 at 81.

[7] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[9] See Readler, supra n. 1 at 60-61.

[10] See id.

[12] See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).

[13] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[14] Ohio Supreme Court to Rule on Charter Law; Fate of Nearly 300 Charter Schools May Hinge on Decision, Education Week, Dec. 7, 2005.

[15] See id.

[16] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[17] Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. Times, Nov. 8, 2007.

[18] Jeremy P. Kelley, School Funding Plan Brings Sharp Debate; Some Education Boards in Ohio Oppose Proposal; Vote Possible., Dayton Daily News, July 10, 2014.

[19] Mark Gillespie, Judge Orders Trump Backers to Stop Voter Harassment, Charleston Gazette-Mail, Nov. 5, 2016.

[20] District of Columbia v. Heller, 554 U.S. 570 (2008).

[21] David J. Lynch, Federal Appeals Court Refuses to Reinstate Seven-Nation Travel Ban; U.S. Executive Order, Financial Times, Feb. 6, 2017.

[22] Rachel Weiner, Va. Judge: Trump’s New Travel Ban Likely to Pass Muster, Wash. Post, Mar. 26, 2017.

[23] See English v. Trump, 279 F. Supp. 3d 307 (D.D.C. 2018).

[24] See id.

[25] See Maura Dolan, Trump Lawyer Says Sanctuary City Rule Won’t Pummel Cities, Augusta Chronicle, Apr. 15, 2017.

[26] See Bloomberg News, Crackdown Confronts Sanctuary Cities in Court, Telegram & Gazette, Apr. 15, 2017.

[27] Chad A. Readler, Local Government Anti-Discrimination Laws: Do They Make a Difference?, 31 U. Mich. J. L. Reform 777 (Spring 1998).

[28] Id. at 805-08.

[29] Id. at 808.

[30] Id. at 811-812.

[31] Chad A. Readler and Kenneth M. Grose, Adjudging Education Policy: How the Courts Shaped Ohio’s Charter School Movement, 45 U. Tol. L. Rev. 601, 603 (Spring 2014).

[32] See id. at 604, 617.

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Judge Karin Immergut – Nominee to the U.S. District Court for the District of Oregon

Judge Karin Immergut has built a largely mainstream record as a state court judge in Oregon and has the support of her Democratic home-state senators.  Nevertheless, her involvement in working under former Independent Counsel Ken Starr as well as questions raised from her tenure as U.S. Attorney may cause her heartburn in the confirmation process.

Background

Karen Johanna Immergut was born on December 22, 1960 in Brooklyn, NY.  Immergut graduated from Amherst University in 1982 and then worked for two years with the New York City Department of Juvenile Justice and Corrections.[1]  She then received her law degree from the University of California Boalt Hall School of Law in 1987.[2]

After graduation, Immergut spent a year working as a litigation associate at Covington & Burling in Washington D.C.  She then joined the U.S. Attorney’s Office for the Central District of California as an Assistant U.S. Attorney.[3]  In 1992, she was designated Deputy Chief of the Narcotics Section.

In 1994, she left to join Gravel & Shea’s Burlington, Vermont office as a litigation associate.  She then joined the Multnomah County District Attorney’s Office in 1996.[4]  In 1998, Immergut left for a brief stint working under Independent Counsel Ken Starr on the Monica Lewinsky investigation (working alongside now Justice Brett Kavanaugh).[5]  She returned to Multnomah County after the investigation.

In 2001, Immergut joined the U.S. Attorney’s Office for the District of Oregon as an Assistant U.S. Attorney.[6]  In 2003, President George W. Bush appointed her to be U.S. Attorney for the District of Oregon, replacing Michael Mosman, who had been appointed to the federal bench.[7]

In 2008, when Judge Garr King moved to senior status, Republican Sen. Gordon Smith recommended Immergut to fill the vacancy.[8]  Ultimately, Immergut was not selected and Bush chose Washington County Circuit Judge Marco Hernandez to fill the seat on July 23, 2008.  With Hernandez’s nomination coming late in the Presidency, it never received a hearing or a vote in the Democratic Senate.  Hernandez was ultimately renominated for the vacancy by President Obama, and confirmed at that time.

In 2009, Immergut resigned as U.S. Attorney after the election of Barack Obama to the presidency.  She was appointed by Democratic Gov. Ted Kulongoski to be Multnomah County Circuit Judge in 2009, where she currently serves.[9]

History of the Seat

Immergut has been nominated for a seat on the U.S. District Court for the District of Oregon.  This seat opened on July 27, 2017, when Judge Anna J. Brown moved to senior status.

In October 2017, Immergut applied for the judgeship with a selection committee put together by Senators Ron Wyden and Jeff Merkley.[10]  She then interviewed with the committee in January 2018 and was selected as a finalist for the District Court, alongside three other candidates in February.[11]  Immergut interviewed with the White House Counsel’s Office in February 2018.[12]  President Trump nominated her on June 6, 2018.

Legal Career

Immergut has had a fairly varied career, including working in private practice, and as a state and federal prosecutor.  However, the two highlights of her career before joining the bench are her role in the Monica Lewinsky investigation and her tenure as U.S. Attorney.

Ken Starr

In 1998, Immergut served under Independent Counsel Ken Starr in the Monica Lewinsky investigation .  Specifically, Immergut conducted the deposition of Monica Lewinsky, where Lewinsky detailed the sexual relationship between herself and President Bill Clinton.[13]  Immergut also worked alongside Justice Brett Kavanaugh.  Shortly after her tenure, Immergut defended the Independent Counsel law (now expired) as a powerful tool to ensure that crimes committed by the President can be investigated.[14]

U.S. Attorney

Immergut served as U.S. Attorney for the District of Oregon between 2003 and 2009.  Notably, Immergut investigated Brandon Mayfield, an Oregon attorney and convert to Islam who was jailed after his fingerprints were erroneously matched to the Madrid bombing.[15]  Mayfield argued that his imprisonment was based on his religion.[16]  Immergut denied that Mayfield’s religion played any role in the investigation, but an FBI internal report found that Mayfield’s Muslim faith had contributed to the investigation and that this was acknowledged by both FBI and DOJ officials.[17]

Jurisprudence

Immergut has served as a Circuit Court Judge since her appointment in 2009.  In this role, she serves as a primary trial judge, supervising criminal and civil cases.  Over the last nine years, Immergut has presided over approximately 250 cases.[18]  Among her more notable decisions, Immergut sentenced a man convicted of forcing disabled women to 190 months of incarceration,[19] sentenced a grandfather for sexually abusing his five-year-old granddaughter,[20] and, in a bench trial, found that a defendant who poses as a magazine salesman to rape his victim was not guilty of attempted murder where there was little evidence that the defendant intended to kill his victim.[21]

Political Activity

Early in her career, Immergut was a registered Democrat.[22]  She re-registered as an Independent shortly before going to work for Starr, and then became a Republican in 2001 around the time she joined the U.S. Attorney’s Office.[23]  She has been described as a “moderate, pro-choice Republican.”[24]

Immergut has a fairly limited political donation history, having donated $300 to Smith in 2002, and, as a sitting state judge, having given $750 to Rep. Susan Brooks in the 2011-12 cycle.[25]

Overall Assessment

As a nominee, Immergut is a study in contradictions.  On one side, she has the strong support of her Democratic home state senators, was appointed to the state bench by a Democratic Governor, and has a long history as a Democrat.  On the other hand, Immergut was intimately involved in the Lewinsky investigation, and has been accused of prosecuting a Muslim attorney based on his religion.  Overall, while Immergut remains a favorite to be confirmed, she may draw more controversy than a shallow look at her record would suggest.

[1] Sen. Comm. on the Judiciary, 115th Cong., Karen Immergut: Questionnaire for Judicial Nominees 2.

[2] Id. at 1.

[3] Id. at 2.

[4] Id.

[5] Id.

[6] Id.

[7] See James Gordon Meek, Mull Bill Prober for Fed Bench, New York Daily News, June 6, 2003.

[8] James Pitkin, Judgement Call: Gordon Smith’s Choice for a Plum Federal Court Job May Be in Trouble. Hint: It Has More than a Little to do with Monica Lewisnky, Willamette Week, January 15, 2008, https://www.wweek.com/portland/article-8295-judgment-call.html.

[9] Bryan Denson, U.S. Attorney Lands Job as Oregon Circuit Judge, The Oregonian, May 9, 2009, https://www.oregonlive.com/news/index.ssf/2009/05/us_attorney_lands_job_as_orego.html.  

[10] Immergut, supra n. 1 at 68-69.

[11] Nigel Jaquiss, Oregon Senators on a Collision Course with White House Over Openings on Federal Courts, Willamette Week, Feb. 12, 2018, https://www.wweek.com/news/2018/02/12/oregons-senators-on-a-collision-course-with-white-house-over-openings-on-federal-courts/.

[12] See Immergut, supra n. 1 at 26.

[13] Body of Evidence, Monica Talks to the Grand Jury, New York Daily News, Sept. 22, 1998 (detailing deposition transcript).

[14] MetNews Staff Writer, Starr Aides Tell Attorneys Independent Counsel Law Should Be Renewed, Deny Involvement in Leaks, Metropolitan News Enterprise, Feb. 8, 1999.

[15] See Sarah Kershaw and Eric Lichtblau, Bomb Case Against Lawyer is Rejected, N.Y. Times, May 25, 2004.

[16] See FBI Apologizes to Detained Attorney, York Dispatch, May 25, 2004.

[17] See Dan Eggen, Report Links Lawyer’s Religion to FBI’s Zeal, Wash. Post, Jan. 7, 2006.

[18] See Immergut, supra n. 1 at 40.

[19] State v. Paye, No.15CR50132 (Cir. Ct. Multnomah Cty).

[20] State v. Saunders, No. 14CR20839 (Cir. Ct. Multnomah Cty).

[21] State v. Washington, No. 0904-31605 (Cir. Ct. Multnomah Cty), aff’d, 337 P.3d 859 (2014), rev. denied, 345 P.3d 456 (2015).

[22] Bryan Denson, U.S. Attorney Lands Job as Oregon Circuit Judge, The Oregonian, May 9, 2009, https://www.oregonlive.com/news/index.ssf/2009/05/us_attorney_lands_job_as_orego.html.  

[23] See id.

[24] Id.

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Richard Hertling – Nominee to the U.S. Court of Federal Claims

So far, the Trump Administration has largely chosen relatively young attorneys to name to the U.S. Court of Federal Claims (CFC), a specialized court focusing on claims against the U.S. government.  This hasn’t worked out too well for the Administration, which has been forced to withdraw two nominees due to bipartisan opposition, and has seen two more stuck.  As such, their latest nominee, Richard Hertling, can be seen as a bit of a retooling.  While Hertling possesses the requisite level of experience for the position, his long tenure in Washington may nonetheless open him up to attacks.

Background

Richard Alan Hertling was born in New York City on January 25, 1960.  Hertling graduated magna cum laude from Brown University in 1982 and from the University of Chicago Law School in 1985.[1]  After graduation, Hertling clerked for Judge Henry Politz for the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Hertling joined the Federal Programs Branch of the Department of Justice.  In 1990, he joined the House Judiciary Committee as Minority Counsel for the Subcommittee on the Constitution.[3]  Three years later, he became Minority Chief Counsel and Staff Director for the Subcommittee on Technology and the Law.  After Republicans took control of the House in 1994, Hertling became Chief Counsel and Staff Director for the Subcommittee on Terrorism, Technology, & Government Information.[4]

In 1997, Hertling moved over to the Senate to work for the Committee on Governmental Affairs as Chief Counsel.  Two years later, newly elected Republican Senator Peter Fitzgerald hired Hertling to serve as his Chief of Staff.[5]  He held this position until 2002, when he became Minority Staff Director on the Committee on Governmental Affairs.

In 2003, after a brief stint working for Sen. Lamar Alexander (R-TN), Hertling became Deputy Assistant Attorney General at the Office of Legal Policy.[6]  He became the Principal Deputy in 2005.

In 2007, Hertling moved to the Office of Legislative Affairs at DOJ, before leaving to join Friends of Fred Thompson, who was running for President.  In 2008, after Thompson’s loss, Hertling joined the House Judiciary Committee, where he stayed for the next five years.

Since 2013, Hertling has served as Of Counsel at Covington & Burling.

History of the Seat

Hertling has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Hertling was nominated for opened up on August 6, 2013, with the with the retirement of Judge George Miller.  On May 14, 2014, Jeri Kaylene Somers, a judge on the Civilian Board of Contract Appeals, was nominated for the vacancy by President Obama.[7]  Somers and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[8]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court in the 114th Congress, leaving six of the sixteen judgeships vacant.[9]

The Trump Administration nominated Damien Schiff, a Senior Attorney at the Pacific Legal Foundation, on May 8, 2017, to fill this vacancy.[10]  However, Schiff quickly drew fire for his controversial blog posts, including one where he referred to Supreme Court Justice Anthony Kennedy as a “judicial prostitute.”[11]  While Schiff’s nomination narrowly passed through the Senate Judiciary Committee, bipartisan opposition meant that the nomination lacked the votes to be confirmed.  As such, Schiff decided to withdraw after his nomination was sent back to the Administration at the end of 2017.[12]

For his part, Hertling reached out to the White House to express interest in a CFC nomination in February 2017.[13]  The White House reached out to confirm his interest in January 2018 (shortly after Schiff had withdrawn).  Hertling was nominated on May 7, 2018.

Legal Experience

Throughout his career, Hertling has built an extraordinary level of legal and policy experience, having spent almost twenty years on Capitol Hill working on Judiciary issues, as well as litigating with the Department of Justice and lobbying for DOJ and with Covington & Burling.  We’ve noted some highlights.

Department of Justice

Hertling had an initial stint at DOJ from 1986 to 1990, where he handled the government’s civil enforcement trials.  During that stint, he was involved in the defense of the Reagan Administration’s policies of random drug testing of government weather forecasters.[14]

During his second stint, Hertling served as the liaison between DOJ and Congress on a number of investigations led by Democrats in 2007.  For example, as Acting Assistant Attorney General for Legislative Affairs, Hertling was responsible for coordinating responses to Congressional oversight involving the Dismissal of U.S. Attorneys scandal.[15]  The scandal arose after the Bush DOJ dismissed several U.S. Attorneys in the middle of their terms and Democrats argued that the dismissals were made for “political reasons.”[16]  During his tenure, Hertling was forced to retract inaccurate testimony previously provided to Congress about the appointment of Tim Griffin to be U.S. Attorney for the Eastern District of Arkansas.[17]

Lobbyist

Since 2013, Hertling has worked as a lobbyist at Covington & Burling, focusing largely on representing interests before the House and Senate Judiciary Committees.[18]  Among the highlights of his lobbying, Hertling successfully advocated for the passage of the Defend Trade Secrets Act, which was signed by President Obama in 2016.[19]  The bill created a cause of action in federal court for the theft of trade secrets.  Additionally, Hertling has lobbied on behalf of a variety of organizations, business entities, and nonprofits, including Anheuser-Busch, Inc., Bacardi North America, Inc., Merck & Co., Inc., Microsoft Corp., and Samsung Electronics Co. Ltd.[20]

Political Activity

As noted above, Hertling served as Director of Special Projects and Legal Policy for the Fred Thompson for President campaign in 2007 and 2008.[21]  Other than this, Hertling has also been a prolific donor to Republican campaigns, having given over $14000 in contributions.[22]  Among the recipients of Hertling’s generosity are Sens. Ben Sasse, Marco Rubio, and Mitt Romney, as well as Rep. Barbara Comstock and Virginia gubernatorial candidate Ed Gillespie.[23]

Overall Assessment

So far, every single nominee put forward by the Trump Administration for the CFC has proven controversial.  While Hertling’s qualifications and experience is unquestionable, he may not escape this trend.  Specifically, Hertling is likely to be questioned on his time at the Department of Justice, and his role (if any) in providing inaccurate information to Congress during the investigation of the Dismissal of U.S. Attorneys scandal.

For his part, Hertling can argue that he is qualified to serve on the CFC, and that he deserves credit for correcting any inaccuracies in Congressional testimony during his DOJ tenure.

Ultimately, Hertling’s background and level of experience makes him almost overqualified for the CFC, especially compared to previous nominees like Schiff.  It is an open question as to whether Congress will disagree.

[1]  Sen. Comm. on the Judiciary, 115th Cong., Richard A. Hertling: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] See id.

[5] Id.

[6] Id.

[7] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[8] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[9] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[10] Press Release, White House, President Donald J. Trump Announces Judicial Candidate Nominations (May 8, 2017) (on file at https://www.whitehouse.gov/the-press-office/).

[11] Zoe Tillman, The Judicial Nominee Who Called Justice Kennedy A “Judicial Prostitute” Pulled Out of Contention, Buzzfeed, May 7, 2018, https://www.buzzfeednews.com/article/zoetillman/judicial-prostitute-nominee-pulled-out.  

[12] Id.

[13] See Hertling, supra n. 1 at 35.

[14] AP, Court Bars Drug Tests for U.S. Meteorologists, N.Y. Times, Aug. 17, 1988.

[15] See Robert Gehrke, Sampson to Accept Blame for “Ugly, Undignified Spectacle”, Salt Lake Tribune, Mar. 28, 2007.  

[16] Id.

[17] See id.

[18] See Hertling, supra n. 1 at 31-32.

[19] Pub.L. 114-153, codified at 18 U.S.C. § 1836 et seq.

[20] See Hertling, supra n. 1 at 32.

[21] Id. at 15.

[23] See id.

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Damon Leichty – Nominee to the U.S. District Court for the Northern District of Indiana

A South Bend based civil litigator, Damon Leichty will likely see a smooth confirmation given his relatively uncontroversial background.

Background

A native Hoosier, Leichty was born In Rensselear, Indiana in 1971.[1]  After getting an B.A. from Wabash College in 1994, Leichty received a Master of Letters from the University of Aberdeen in Scotland and his J.D. from Indiana University Maurer School of Law in 1999.  Following his graduation, Leichty joined the South Bend law office of Barnes & Thornburg LLP, where he has stayed, other than a short clerkship with Judge Robert Miller on the U.S. District Court for the Northern District of Indiana.[2]

History of the Seat

Leichty has been nominated for a seat on the U.S. District Court for the Northern District of Indiana.  This seat was vacated on January 11, 2015, when Judge Robert Miller, his old boss, moved to senior status.

In early 2017, Leichty submitted an application to fill the vacancy.[3]  While he interviewed with Republican Sen. Todd Young in April, he wasn’t selected as the primary candidate by the White House until April 2018 when he interviewed with Democratic Sen. Joe Donnelly.[4]  Leichty was officially nominated on July 17, 2018.

Legal Experience

Leichty has spent virtually his entire legal career at the firm of Barnes & Thornburg, where he worked as a litigator.  Through his career, Leichty has served as lead counsel in five trials, as well as associate counsel in two.[5]  One of his key trials involved successfully defending Interbake Foods, a subsidiary of Mrs. Fields, against a brand damage suit brought by the parent company.[6]

One of his most prominent cases involved the level of public scrutiny that should be imposed on private police departments.  ESPN filed suit against the University of Notre Dame, when the University police department refused to turn over reports under public records laws.[7]  Leichty represented the University, arguing, as an issue of first impression that the university police department draws its authority from trustees, not the state, and as such, is not subject to public records law.[8]  Leichty won the case before Judge Steven Hostetler, but the verdict was overturned by the Indiana Court of Appeals, which was itself overturned by the Indiana Supreme Court.[9]  In another unique case, Leichty defended TASER International against a products liability suit brought by a Massachusetts State Trooper, who suffered injuries by being tased during his training.[10]  Leichty was able to successfully obtain summary judgment by using admissions by the plaintiff’s expert during discovery.[11]

Overall Assessment

For the most part, the cooperation between Young and Donnelly on district court nominees has largely produced a team of relatively uncontroversial nominees.  Leichty is no different, with no partisan history, and a long record as a litigator.  With neither his experience nor his impartiality under serious question, it is likely that Leichty will join his old boss on the bench in the coming months.

[1] Sen. Comm. on the Judiciary, 115th Cong., Damon R. Leichty: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 32-33.

[4] See id.

[5] Id. at 17.

[6] The Mrs. Fields Brands, Inc. v. Interbake Foods LLC., C.A. No. 12201-CB (Del. Ch. 2016-18) (Bouchard, J. Andre).

[7] ESPN Inc. v. Univ. of Notre Dame Police Dept., 62 N.E.3d 1192 (Ind. 2016).

[8] Jeff Parrott, ESPN, ND Case in Court, South Bend Tribune, Apr. 2, 2015.

[9] ESPN Inc. v. Univ. of Notre Dame Police Dept., 62 N.E.3d 1192 (Ind. 2016).

[10] Foley v. TASER International, Inc., No. 4:09-CV-10155 (D. Mass. 2011).

[11] Id. 

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James Cain – Nominee to the U.S. District Court for the Western District of Louisiana

A Democrat-turned-Republican from a political family, Cain is the fourth Trump nominee to the Western District of Louisiana, which has undergone a significant amount of turnover in the last two years.

Background

James David Cain Jr. was born in DeRidder, LA on November 30, 1964.  Cain’s father, James David Cain Sr., was a politician who had served as a Democrat in the Louisiana State House and Senate before switching parties in 2003.[1]  Cain attended McNeese State University in Lake Charles, Louisiana, graduating in 1990.  He went straight from college into Southern University Law Center, getting his J.D. in 1993.

After graduating, Cain returned to Lake Charles, joining Lundy & Davis LLP, becoming a Partner in 1998.[2]  In 2007, Cain left and co-founded the firm Loftin, Cain & LeBlanc LLC in Lake Charles.  He currently serves as a Partner there.

History of the Seat

The seat Cain has been nominated for opened on July 31, 2017, with Judge Patricia Minaldi moved to senior status seeking treatment for “severe alcoholism.”[3]  Shortly after, Cain contacted Louisiana senators Bill Cassidy and John Kennedy to express his interest in a judicial appointment.[4]  After interviewing with a Committee set up by Cassidy, Cain was recommended to the White House in late November 2017.  Trump formally nominated Cain on Aug. 28, 2018.

Legal Experience

Cain has only worked in two positions since graduating from law school: at Lundy & Davis LLP. and at Loftin, Cain & LeBlanc LLC.  In the former position, Cain focused primarily on civil litigation, business litigation, and products liability, including representing $350000 in damages for a woman injured when she hit a defective stretch of the highway.[5]

After moving to Loftin Cain, Cain focused on representing the Lake Charles City Police Department and the Calcasieu Parish Sheriff’s Department against civil rights suits.[6]  One of Cain’s most notable cases at Loftin involved a suit against the City of Lake Charles for granting building permits for the construction of a retaining wall that ended up damaging a neighboring estate.[7]  Cain represented the City through trial, at which it was found to be 2% at fault for the damages for issuing the building permit.[8]

Political Activity

As noted above, Cain comes from a political family as his father served in the state legislature for almost thirty years.  For his own part, Cain started his career giving to Democrats but has given exclusively to Republicans over the last ten years.[9]  For example, Cain gave $5000 to Sen. Kennedy’s PAC in 2017, as well as donating $1800 to Rep. Stave Scalise (R-LA).[10]  In the past, Cain gave $2000 to Sen. John Edwards’ presidential campaign in 2003 and donated to Democratic Sen. Donald Cravins in 2008.[11]

Cain is also a member of the Federalist Society for Law and Policy.

Overall Assessment

Cain brings twenty-five years of legal experience to the federal bench in Louisiana and, as such, can be considered qualified for a judicial appointment.  Having represented both plaintiffs and defendants in civil cases, Cain’s career does not suggest a bias for one position over another.

That being said, Cain’s Federalist Society affiliations may raise some questions in the confirmation process.  Nevertheless, Cain looks fairly likely to win a comfortable confirmation.

[1] As a legislator, Cain notably sponsored a bill, approved by the House, to reduce the penalties for attacking a flag burner to $25.  See Peter Applebombe, A Dash of Flamboyance in the Lawmaking Stew, N.Y. Times, Jun 29, 1990.

[2] Sen. Comm. on the Judiciary, 115th Cong., James D. Cain: Questionnaire for Judicial Nominees 2.

[3] Michael Kunzelman, Louisiana Federal Judge Retires After Taking Leave for Treatment of Severe Alcoholism, The Advocate, Aug. 2, 2017, https://www.theadvocate.com/baton_rouge/news/article_b6ae40bc-7797-11e7-ada4-e392c1d133c8.html.

[4] See Cain, supra n. 1 at 21.

[5] Benoit v. State of Louisiana, through the Dep’t of Transp. And Development and Thomas, 805 So.2d 428. Judge David Painter (2000-2001).  

[6] 

[7] D. Husers and L. Husers v. The City of Lake Charles et al., 14th Judicial District Ct., Calcasieu Parish, Louisiana, Case No. 2006-5675.

[8] See id.

[10] Id.

[11] Id.

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J. Nicholas Ranjan – Nominee for the U.S. District Court for the Western District of Pennsylvania

While President Trump has received much criticism about the relative paucity of nominees of color among his judicial appointments, he has outpaced previous Administrations with regard to Asian-American nominees.  One such nominee is J. Nicholas Ranjan, who is of Indian origin.

Background

Jagan Nicholas Ranjan was born in Lancaster Ohio in 1978.[1]  Ranjan graduated summa cum laude from Grove City College in 2000 and cum laude from the University of Michigan Law School in 2003.[2]  He spent a year at the Office of the Ohio Solicitor General and then clerked for Judge Deborah Cook on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Pittsburgh Office of K&L Gates as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Ranjan has been nominated for opened on June 3, 2016, with Judge Kim Gibson’s move to senior status.  While the seat opened in the Obama Administration, no nomination was put forward to fill the vacancy.

Ranjan applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Ranjan interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on July 24, 2018.

Legal Experience

Ranjan began his career with a fellowship in the Ohio Solicitor General’s Office and a clerkship on the Sixth Circuit, but he’s spent his entire legal career since then at the Pittsburgh office of K&L Gates, handling commercial and appellate litigation.  Overall, Ranjan has worked as counsel of record in fourteen civil trials, including two jury trials.[6]  Both jury trials involved representations of prisoners suing guards for civil rights violations: one involving an excessive force claim;[7] the other involving inappropriate sexual contact.[8]

In another significant case, Ranjan represented Joseph Ruggieri, a Plum Borough teacher convicted for sex abuse of a student in a civil suit brought by the student.[9]  The suit was ultimately resolved through a confidential settlement.[10]

Writings and Statements

Over his legal career, Ranjan has written on and made public statements about legal and policy issues.  We have summarized his major positions below:

Medicaid and “Prior Authorization”

As a law student, Ranjan authored a note discussing the constitutionality of the Maine Rx program, which offered prior authorization of non-complying drugs to drug manufacturers as long as they offered rebates on those drugs to Maine residents.[11]  In the note, Ranjan argues that the program and similar programs are unconstitutional because they are pre-empted by federal Medicaid law, and because they violate the Dormant Commerce Clause, a controversial doctrine holding that states cannot discriminate against interstate commerce in their regulations.[12]

Legal Diversity

Ranjan serves as Chair of the Pittsburgh Office Diversity Committee at K&L Gates, and has used his role to improve legal diversity.  During his tenure, K&L Gates received a perfect score in a Human Rights Campaign survey tracking employer benefits and protections for LGBTQIA employees.[13]  Ranjan has also supported the Pittsburgh Legal Diversity & Inclusion Coalition, an initiative that seeks to improve diversity among the legal profession.[14]

Clarence Thomas

As a law student at the University of Michigan, Ranjan authored a book review of Andrew Peyton Thomas’ biography of Justice Clarence Thomas.[15]  In the book review, Ranjan posits an unusual theory: that the Justice’s life and jurisprudence, as well as the often-vitriolic response to him, is best understood by viewing the Justice as a “political figure rather than as merely a jurist.”[16]  Specifically, Ranjan argues that Justice Thomas’ jurisprudence on race is inconsistent with the originalist lens he takes with other issues, and that this disparity can be perceived as political, rather than judicial.[17]  Additionally, he notes that the Justice effectively politicized his race in his confirmation battle, stating that Thomas “changed the tone of the hearings from a sexual harassment investigation [to] a racist manhunt for Thomas by fiendish political lynchers.”[18]  At the same time, Ranjan criticizes much of the criticism of Thomas as “unreasoned, bitterly partisan, and grossly propagandized.”[19]  He suggests that viewing Thomas as a political, rather than a judicial, figure helps explain the level of opposition he faces.

Overall Assessment

In comparison to other, more controversial nominees sent forward by the Trump Administration recently, Ranjan should sail to confirmation.  His efforts on legal diversity are generally laudable and his legal career has been generally uncontroversial.  While Ranjan may face some questions regarding his description of Justice Thomas as a “political figure,” it is unlikely that this would derail his confirmation.  As such , it is even possible that Ranjan may see confirmation by the end of the year.

[1] Sen. Comm. on the Judiciary, 115th Cong., J. Nicholas Ranjan: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 19.

[7] Byrnes v. Moody, No. 2:15-cv-00570 (W.D. Pa. 2017).

[8] Caldwell v. Folino, No. 2:08-cv-00122 (W.D. Pa. 2012).

[9] See Natasha Lindstrom, Plum Reaches Tentative Settlement in Sex-Abuse Lawsuit, Pittsburgh Tribune Review, July 29, 2017.

[10] See id.

[11] Jagan Nicholas Ranjan, Medicaid and the Unconstitutional Dimensions of Prior Authorization, 101 Mich. L. Rev. 602 (Nov. 2002).

[12] See id. At 608.

[13] See Tracy Carbasho, Five Local Firms Score Well in LGBT Equality, 16 Lawyers J. 3 (Dec. 26, 2014).

[14] See Susan Yohe, Pittsburgh Legal Diversity & Inclusion Coalition to Launch Model Career Advocate Program: Charting a Path to a More Diverse Pittsburgh, 20 Lawyers J. 1 (Oct. 12, 2018).

[15] Jagan Nicholas Ranjan, The Politicization of Clarence Thomas Clarence Thomas: A Biography. By Andrew Peyton Thomas, 101 Mich. L. Rev. 2084 (May 2003).

[16] Id. at 2086.

[17] See id. at 2094-95.

[18] Id. at 2096.

[19] Id.

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New Fronts in the Judicial War: Will Progressives Adopt the Conservative Model on State Courts and Solicitors General?

The 2018 elections have come and gone, with both sides finding something to smile about in the results.  For Republicans, the reinforced Senate majority ensures that Trump can continue to fill federal vacancies with conservatives.  However, all is not lost for Democrats.  Rather, they can adopt the successful model used by conservatives during the Obama Administration and use the states to advance progressive jurisprudence.  Both state court appointments and solicitor general appointments have generally been used effectively by Republicans to build a bench of conservative judges and legal leaders.  With electoral victories on the state level, it remains to be seen if progressives will catch up on these fronts.

State Courts

Let’s throw out a hypothetical.  Imagine we are back in 2017: President Trump has just been elected with a Republican Senate.  Let’s say that Justice Anthony Kennedy announces his retirement in March 2017, announcing that he will retire in September of that year, giving the President six months in which to appoint his successor.  It is a golden opportunity for Republicans to take a solid majority on the Supreme Court.  However, instead of nominating Brett Kavanaugh, the Trump Administration nominates no one.  The months tick down, one by one, and no nomination comes forward from the Trump Administration.  September 2017 comes by, the Justice steps down, and still no nomination has come.  The Supreme Court is forced into a 4-4 split, and important decisions are deadlocked.  And still, no nominee is put forward.  Now imagine we are in the present day and the Court is still split 4-4, with no nomination coming from the Administration and no explanation.

This hypothetical may seem absurd, but it is exactly what is currently happening in California, where Gov. Jerry Brown has essentially forfeited a golden opportunity to reshape the California Supreme Court, letting the court’s swing seat remain vacant for well over a year for no reason at all.

State Supreme Courts, which interpret state laws and constitutional provisions, are immensely powerful.  In fact, many of their decisions are unreviewable, even by the Supreme Court.  As such, it is remarkable to see the lack of attention given their way by progressives.  Alongside Brown’s failure to make an appointment to the California Supreme Court, Colorado Gov. Hickenlooper appointed two Republicans to the Colorado Supreme Court, resulting in the partisan balance on the court actually becoming more conservative during his tenure as Governor.  Similarly, in New York, Gov. Andrew Cuomo has largely avoided appointing outspoken liberals to the New York Court of Appeals, instead choosing moderates and conservatives including Judge Michael Garcia, a Republican who previously served as U.S. Attorney under President Bush.  In Connecticut, Gov. Dannel Malloy’s nominee to be Chief Justice of the Connecticut Supreme Court was rejected by the Democratic Senate after moderate Democrats defected.

In contrast, Republican Governors have used their appointment power effectively to choose young conservatives for the state benches.  Gov. Pete Ricketts, for example, tapped Justice Jonathan Papik, only 36, to the Nebraska Supreme Court in 2018.  Similarly, Gov. Nathan Deal in Georgia has appointed a bevy of young conservatives, Justices Nels Petersen, Britt Grant (now on the 11th Cir.), Sarah Hawkins Warren, and Charlie Bethel.  From Texas to Ohio to Indiana, Republican Governors have cemented conservative majorities on the high court through their appointments.

Now that the 2018 elections has resulted in the largest increase in new Democratic Governors since 1986, progressives have a strong opportunity to reshape the bench in many states.  With the vacancy on the California Supreme Court still pending, it provides an early sign of how seriously they will take this challenge.

Solicitors General

The 2018 election also saw Democrats taking control of the majority of state attorney general’s offices in the country.  Attorneys general are important not just because of their investigative and prosecutorial powers, but because they are able to, through their appointment of state solicitors general, shape the legal landscape of their states.

State solicitors general are the leading appellate advocate for their states, shaping and directing arguments before state and federal courts.  So far, most solicitors general are appointed by the attorney general.  Most Republican attorneys general have taken this opportunity and chosen young conservatives and future legal pioneers.  For example, Alabama Solicitor General Andrew Brasher is only 37, Florida Solicitor General Amit Agarwal is 42, Georgia Solicitor General Andrew Pinson is around 32, and Oklahoma Solicitor General Mithun Mansinghani is only 31 (and was just 29 when he was selected as Solicitor General).  In comparison, Democratic attorneys general have selected senior attorneys already established in their career.  For example, New York Solicitor General Barbara Underwood is 74, California Solicitor General Edward DuMont is 57, and Connecticut Solicitor General Jane Rosenberg is around 60 (an exception to this is Washington Solicitor General Noah Purcell, who is 38).

While the level of experience that Underwood, DuMont, and Rosenberg bring is undeniable, choosing younger solicitors general makes more sense from a movement perspective.  First, it helps season young attorneys early in their career.  Second, it builds a pipeline of potential judicial candidates.  The Trump Administration has been very effective at tapping current and former state solicitors general for the federal bench, building the next generation of conservative legal leaders.

Ohio Gubernatorial candidate Richard Cordray was a politician who understood this well, having himself served as Ohio Solicitor General in his early 30s.  As Attorney General, Cordray tapped Benjamin Mizer to serve as Ohio Solicitor General.  Mizer, who was only 31 at the time of his appointment, went on to serve the Obama Administration as Principal Deputy Assistant Attorney General for the Civil Division, and is poised to be a Sixth Circuit and Supreme Court candidate under a Democratic Administration.

So far, newly elected New York Attorney General Tish James has chosen to reappoint Underwood to serve as Solicitor General.  It’ll be interesting to see if other Attorneys General will follow James’ lead or Cordray’s.

Overall, despite the attention it gets, the federal bench is not the only front that legal conservatives and progressives fight over.  Even as the federal bench shifts under the weight of Trump appointees, state benches can provide a countervailing force.  As such, they are an important front to observe in the coming months.

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