Month: December 2018

Judicial Nominations 2018 – Year in Review

2018 is at an end.  One of the most active years in judicial nominations in recent memory ended with a whimper, as a singular blockade by outgoing Sen. Jeff Flake delayed all judicial confirmations.  As we look forward to the new Congress in 2019, it’s worth looking back at the previous year to see how the judicial landscape has evolved.

Nominations and Confirmations

This year, the Senate confirmed one supreme court justice, 18 appellate judges and 47 district court judges.  Adding in the one supreme court, 12 appellate, and six district court judges confirmed in 2017, the 115th Congress has racked up a total of 85 Article III judicial confirmations.  In comparison, President Obama saw 60 confirmations in his first Congress, President Bush saw 100, and President Clinton saw 126.

While an overall look at confirmations doesn’t look very impressive, where this Administration stands out is in appellate confirmations.  So far, Trump has seen 30 appellate confirmations.  In comparison, Clinton and Obama took their entire first terms to have 30 appellate judges confirmed, and President Bush took until December of his third year to reach his 30th confirmation.  Plus, with another 15 appellate vacancies still pending, Trump looks likely to cross 40 or even 50 appellate confirmations before the end of his first term.  Particularly impressively, only two of the current pending vacancies are still waiting on nominees, one of which opened just last month.

Failed Nominations

That being said, the Trump Administration has also seen an unusually large number of failed nominees.  In the past two years, the Trump Administration has seen seven nominees withdrawn or stalled due to lack of majority support: Ninth Circuit nominee Ryan Bounds; district nominees Brett Talley, Jeff Mateer, Matthew Petersen, Thomas Farr; and Court of Federal Claims nominees Damien Schiff and Steven Schwartz (I’m not including nominees who had home state senatorial trouble such as Jon Katchen or Gordon Giempietro).  This is particularly remarkable because the Trump Administration was facing a Senate controlled by his own party and unencumbered by the filibuster.

Another way to look at it is that the Trump Administration essentially faced at least 2 negative votes on each of the above nominees.  In comparison, throughout the entire Obama Administration, only 15 nominees drew even a single negative vote from Democrats, and only six drew 2 or more: appellate nominees Cornelia Pillard and Pamela Harris and district judges Gerald McHugh, Edward Smith, Victor Bolden, and Joseph Leeson (Smith and Leeson drew opposition from the left).  The entire Bush Administration saw just six nominees draw same party opposition: Justice Sam Alito; appellate judges Roger Gregory, Priscilla Owen, and Helene White; and district judges J. Leon Holmes and Janet Neff (three of those judges were Democrats).  The Clinton Administration saw just one nominee attract same party opposition: Judge Brian Stewart (a Republican named upon the insistence of Sen. Orrin Hatch).  In other words, in two years, the Trump Administration has drawn at least two Republican no votes on more nominees than the Clinton and Bush Administrations combined and more than the Obama Administration drew in its entire tenure.

A Vacancy Crisis?

One of the most forgotten parts of the judicial confirmation news cycle is the sheer number of judicial vacancies currently pending.  As of December 31, 2018, 144 of the 890 Article I and Article III judgeships are vacant, approximately one in six.  In comparison, approximately 10% of judgeships were vacant in 2016 when the Washington Post reported on the alarming judicial vacancy rate.  As such, objectively, our federal courts are overstretched.

That being said, not all judicial vacancies are created equal.  The Trump Administration and the Republican Senate have focused their attention on filling vacancies on the court of appeals, frequently replacing judges who have not yet left their seats.  However, the court of appeals are not where the judges are most needed.  Rather, it is trial level courts that are stretched particularly thin.  For example, five out of twelve judgeships on the Northern District of Texas are currently vacant with only one nominee pending.  Similarly, the Central District of California currently has a quarter of its 28 judgeships open, while the Southern District of California is expecting its fifth vacancy (out of 13 judgeships) to open next year.  The situation in the District of North Dakota is even more dire, with the only judge on the court scheduled to retire next year, and no nominees pending to either of the two pending vacancies.

Perhaps nowhere is the vacancy crisis more apparent than in the Court of Federal Claims.  This specialized court has a limited docket and non-lifetime appointments, an ideal venue for bipartisan agreements on nominees.  However, the Court currently has less than 1/3 occupancy, with only five out of sixteen judgeships filled.  Much of the blame for this can go to Sen. Tom Cotton, who singlehandedly blocked five uncontroversial Obama nominees to this court during the 114th Congress.  However, even since that point, the court hasn’t seen a single confirmation even as vacancies continue to pile up.  Additionally, rather than choosing uncontroversial nominees, the Trump Administration has chosen lawyers with political backgrounds or little experience practicing before the specialized court, leaving little room for bipartisan agreement.

As such, despite remarkable success on the confirmation front, the Trump Administration has barely made a dent in reducing judicial vacancies as a whole.

Demographics of Confirmed Nominees

Let’s take a look at demographics of the 85 confirmed Trump appointees.

Age

I noted last year that, despite press reporting on the supposed youth of Trump nominees, they are largely similar in age to those of previous presidents.  With a larger pool of nominees to look at now, that conclusion largely holds up.  The average birth year of Trump’s judicial nominees is 1967, making their average age 51 years, fairly comparable to the average birth years of the previous few presidents.  Additionally, Trump’s appellate judges, also alleged to be significantly younger than those of previous presidents, come out to an average age of 50, hardly unusual.

The oldest Trump appointee tapped for the federal bench is Judge Mark Bennett, who was nominated and confirmed to the 9th Circuit at age 65.  The youngest is Judge Holly Lou Teeter on the U.S. District Court for the District of Kansas, who is just 39 years old.

Race

As noted earlier, the vast majority of Trump’s appointees are white.  Only seven of the 85 judges confirmed this Congress were non-white: five Asian; one Hispanic; and one African American judge respectively.

Gender

This blog has previously criticized the gender diversity (or lack thereof) of Trump appointees.  Unfortunately, the situation has not improved.  Only 20 of the 85 confirmed judges are female.  The numbers are even worse among appellate nominees, where only 6 out of 30 judges are female.  Both numbers are lower than those seen in the last three presidents.

What is particularly alarming is that the gender ratio on the federal judiciary, which significantly narrowed under President Obama, is now backsliding.  Over the last two years, 29 female federal judges have left active status, meaning that there are now nine fewer female judges on the federal bench than there were when Trump took office.

Looking Ahead

When the Senate recessed, it left 73 judicial nominees unconfirmed.  Most, if not all, of these nominees will be renominated in January, giving the Senate a significant number of nominees to work through.  As such, many of the nomination fights that were deferred from this year will take place next year, this time, with Republicans having a slightly wider majority on judge votes.  As such, it is likely that many controversial picks who were not confirmed this year will be approved next year, including Matthew Kacsmaryk and Howard Nielson.

However, with incoming Senate Judiciary Committee Chairman Lindsay Graham announcing his intent to continue the blue slip policy of his predecessor, the White House cannot push through its picks for district court vacancies.  As such, achieving a meaningful reduction in the number of judicial vacancies will require cooperation between the White House and senators of both parties to select judges everyone can get behind.  We can only hope that such cooperation occurs and produces mainstream judges committed to the rule of law.

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Judge John Milton Younge – Nominee for the U.S. District Court for the Eastern District of Pennsylvania

When Judge John Milton Younge was nominated to the federal bench by President Obama, Senate Judiciary Committee Chairman Chuck Grassley killed the nomination by refusing to give it a final Committee vote.  With Younge renominated by President Trump, Grassley appears to have dropped his opposition and scheduled the vote, making it significantly more likely that Younge will be confirmed.

Background

A native of Philadelphia, John Milton Younge was born there in 1955.  He attended Boston University, graduating in 1977 and then getting a J.D. from Howard University School of Law in 1981.[1]

After graduation, Younge worked as a solo practitioner for three years and then joined the Philadelphia Redevelopment Authority as a Staff Attorney.[2]  He moved up through the ranks of the organization, becoming General Counsel in 1990 and Deputy Executive Director in 1991.[3]

In 1996, Younge ran for and won a seat on the Pennsylvania Court of Common Pleas as a Democrat.[4]  He has served in that position ever since.  Younge made two unsuccessful runs for the Superior Court, losing elections in 2007 and 2009 to Republican candidates.

History of the Seat

Younge has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on November 18, 2013, when Judge Mary McLaughlin moved to senior status.  Younge, who had applied for a judgeship with Pennsylvania Sens. Bob Casey and Pat Toomey back in 2011, was nominated on July 30, 2015.[5]  Younge received a hearing before the Senate Judiciary Committee on December 9, 2015, but never received a vote to move to the floor.  In blocking Younge, Chairman Chuck Grassley cited Younge seeking the endorsement of Planned Parenthood during his judicial campaigns.[6]  As such, Younge was never confirmed and the seat remained open throughout the Obama Presidency.

In early 2017, Casey and Toomey asked the White House to renominate Younge for the position.[7]  Younge was initially interviewed by the White House in April 2017, but then sat in limbo for a year before the vetting process began.[8]  President Trump announced Younge’s nomination to the vacancy on July 17, 2018.

Jurisprudence

From 1996, Younge has served as a Judge on the Philadelphia County Court of Common Pleas, which are the primary trial courts in Pennsylvania.  As a Judge, Younge presided over cases in civil and criminal matters, as well as domestic relations, juvenile, and family law matters.  Over the last twenty two years, Younge has presided over approximately 2300 cases.[9]

Among his more notable cases, Younge presided over a settlement between victims of gun violence and WalMart in relation to charges that WalMart negligently sold ammunition.[10]  Younge also presided over the settlement of claims arising from the sex abuse of Sean McIlmail by a priest at the Philadelphia Archdiocese.[11]

Over his twenty two years on the bench, Younge’s rulings have been reversed by higher courts twenty times.  Of these reversals, the most significant is in Zenak v. Police Athletic League City of Philadelphia.[12]  In that case, Younge allowed whistleblower claims brought by a police officer to proceed in a jury action against the City.[13]  The Pennsylvania Commonwealth Court reversed the decision, finding that the claims needed to statutorily be decided by a judge, not a jury.[14]

Political Activity

Younge has been involved with the Philadelphia Democratic Party since 1984, when he served on the Ward Executive Committee for the Party.[15]  Younge won election to the bench as a Democrat and ran twice unsuccessfully as a Democrat for the Pennsylvania Superior Court.

Overall Assessment

While the Trump Administration has renominated a fair number of Obama judicial nominees, Younge is a particularly unusual choice for renomination.  This is because, unlike the other picks renominated, Younge was actively opposed by Judiciary Committee Chairman Chuck Grassley.  As such, Younge could potentially not be considered a mainstream choice and could attract strong opposition from Republican senators.

However, even in the (slightly) more Republican senate of 2019, it is still likely that Younge gets confirmed.  Assuming all Democrats support Younge, he only needs three Republican votes to be confirmed.  One of those votes will undoubtedly come from Sen. Toomey, who pushed for his renomination.  Sens. Collins and Murkowski will likely provide the other two.  In addition, there are probably a fair number of Republicans who do not wish to see a Trump nominee fail on their watch.

Nevertheless, Younge will likely attract more opposition than most other Trump nominees, and does face a non-zero chance of being blocked by conservative opposition.

[1] Sen. Comm. on the Judiciary, 115th Cong., John M. Younge.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 65.

[6] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominees Fail to Advance, The Daily Signal, Jan. 29, 2016, https://www.dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[7] See Younge, supra n. 1 at 65.

[8] Id.

[9] See Younge, supra n. 1 at 32.

[10] Peter Hall, Wal-Mart, Victims’ Families Settle, The Morning Call, Apr. 7, 2017.  

[11] Craig R. McCoy, In Largest Reported Payout Yet, Philadelphia Archdiocese Settles Abuse Suit, June 25, 2018.

[12] 132 A.3d 541 (Pa. Cmnwlth 2016).

[13] See id. 

[14] Id.

[15] See Younge, supra n. 1 at 58.

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Judge J.P. Boulee – Nominee for the U.S. District Court for the Northern District of Georgia

Jones Day has generally been referred to as President Trump’s favorite law firm, given that they represented his campaign and many veterans have found spots in the Administration.  Additionally, a lot of Trump judicial nominees have Jones Day DNA.  J.P. Boulee, a state court judge tapped for the federal bench in Georgia is also a Jones Day alum.

Background

Jean-Paul Boulee was born in Kankakee, IL in 1971.  Boulee graduated magna cum laude from Washington & Lee University with a Bachelor of Arts degree, and continued on to UGA Law School graduating cum laude in 1996.[1]

After graduating, Boulee clerked for Judge Orinda Evans on the U.S. District Court for the Northern District of Georgia.  He then became a Judge Advocate with the U.S. Army, working for four years.

In 2001, Boulee joined the Atlanta Office of Jones Day as an Associate.[2]  He became a Partner in 2006.[3]  In 2015, Boulee was appointed by Republican Governor Nathan Deal to serve on the DeKalb County Superior Court to replace Judge Cynthia Becker.[4]  Boulee currently serves as a judge on that court.

In 2018, Boulee applied to fill vacancies on the Georgia Supreme Court created by Justice Britt Grant’s elevation to the Eleventh Circuit and Justice Harris Hines’ retirement.[5]  However, he withdrew his name upon nomination to the federal bench, and Sarah Hawkins Warren and Charlie Bethel were selected instead.

History of the Seat

The seat Boulee has been nominated for opened on July 1, 2018, with Judge William Duffey’s retirement.  In January 2018, Boulee applied for the vacancy with a Screening Committee set up by Georgia senators.  After interviewing with the Committee and the senators, Boulee was recommended to the White House in late March.  Boulee was nominated by the White House on August 28, 2018.

Legal Career

Boulee spent approximately fourteen years at the Atlanta office of Jones Day.  At the firm, Boulee focused on corporate, commercial litigation, and white collar defense.  Boulee also served in the JAG Corps of the U.S. Army, handling court-martials, both as a prosecutor and as a defense counsel.  As part of this latter duty, Boulee helped acquit a single mother accused of burning her child with a curling iron by explaining that the mother (who could not afford her heating bills) was using the iron under a blanket to help keep her son warm.[6]

Notably, while at Jones Day, Boulee represented Wilbur Ross (now the Secretary of Commerce) in a class action and derivative shareholder lawsuit challenging the merger of the International Textile Group and Safety Components International.[7]  Boulee worked on case strategy and the development of defense expert testimony for the case, which ultimately settled on the eve of trial.[8]

Jurisprudence

Boulee has served on the DeKalb County Superior Court since 2015, during which time, he presided over thirty-three jury trials, including twenty capital felonies.[9]  Notably, Boulee presided over the case of DeKalb County police officer Robert Olsen, who fatally shot Anthony Hill, an Afghanistan war veteran, who was “unarmed, unclothed and under severe mental duress.”[10]  Hill, who was African American, suffered from bipolar disorder, was nude and had his hands up when he was shot.[11]  While the officer argued that he had fired in self-defense, after Hill did not comply with instructions not to advance, Boulee declined to dismiss the murder charges, noting that the officer’s accounts had been inconsistent and that there was no evidence suggesting that Hill posed a threat of death or serious bodily harm to the officer.[12]

In his three years on the bench, Boulee has been reversed twice.[14]  In the first, Boulee was reversed for failing to grant a motion for a new trial to a defendant whose attorney had failed to request a relevant jury charge (Boulee found that the defendant had failed to show that the error had prejudiced him).[15]  In the second, Boulee was reversed for holding that a plaintiff’s voluntary dismissal without prejudice in response to a procedural defect barred the subsequent filing under the doctrine of res judicata.[16]

Political Activity

Boulee has been active with the Republican Party, maintaining membership in the Georgia Republican Party, the Republican National Lawyers Association, and other Republican groups until his ascension to the bench.[17]

Overall Assessment

Boulee’s record, both as an attorney and on the bench, reads as that of a moderate conservative.  However, it does not suggest that he is judicial activist or an extremist. To his credit, on a politically charged and sensitive case involving a police shooting, Boulee rejected the officer’s plea of self-defense where the evidence failed to support it.

As such, Boulee is unlikely to be a nominee that draws much partisan fire and will likely be confirmed early next year.

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

[2] Id. at 2.

[3] Id.

[4] See Mark Niesse, 2 DeKalb Judges Appointed By Gov. Deal, Atlanta Journal Constitution, May 12, 2015, https://www.ajc.com/news/local-govt–politics/dekalb-judges-appointed-gov-deal/FtMIOvcgZT0TXqpk6M0KVL/.  

[5] Nick Watson, Judge Deal Withdraws Name From Ga. Supreme Court Consideration, The Times, Gainesville Ga., Aug. 2, 2018.

[6] United States v. Boelter (1st Jud. Cir.).

[7] In re Int’l Textile Grp., Inc., Inc. Merger Litig., C.A. No. 2009-CP-23-3346 (S.C. Ct. Common Pleas). 

[8] See Boulee, supra n.1 at 45.

[9] Id. at 19-20.

[10] Christian Boone, AJC Digging Deeper Police Shooting; Case Shows Challenge of Prosecuting Police, Atlanta Journal-Constitution, May 18, 2018.

[11] See id.

[12] See Christian Boone, AJC Continuing Coverage Police Shooting; Ex-Cop Will Stand Trial For Shooting Unarmed Veteran, Aug. 17, 2018.

[13] See id. at 793.

[14] See Burns v. State, 803 S.E.2d 79 (Ga. Ct. App. 2017); Wentz v. Emory Healthcare, Inc., No. A18A0908, 2018 WL 4403345 (Ga. Ct. App. Sept. 17, 2018).

[15] Burns v. State, 803 S.E.2d 79 (Ga. Ct. App. 2017).

[16] Wentz v. Emory Healthcare, Inc., No. A18A0908, 2018 WL 4403345 (Ga. Ct. App. Sept. 17, 2018).

[17] See Boulee, supra n. 1 at 38.

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Judge Bridget Bade – Nominee to the U.S. Court of Appeals for the Ninth Circuit

A federal magistrate judge for the District of Arizona, Bade was selected to serve on the Ninth Circuit after the White House rejected the top candidate suggested by Arizona senators and two candidates the White House considered never made it to nomination.  As a “compromise” candidate, Bade is likely to see a smooth confirmation.

Background

An Arizona native, Bade was born Bridget Ann Shelton in Phoenix in 1965.  Bade received a B.A. summa cum laude from Arizona State University in 1987 and a J.D. from the Sandra Day O’Connor College of Law at Arizona State University in 1990.[1]  After graduating from law school, Bade clerked for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit and then joined the Department of Justice in the Environmental Torts Litigation Section of the Civil Division.[2]

In 1995, Bade returned to Arizona to be a Shareholder at Beshears Wallwork Bellamy in Phoenix (the firm would later merge with Steptoe and Johnson).[3]  Eleven years later, she moved to become a federal prosecutor with the U.S. Attorney’s Office for the District of Arizona.[4]

In 2012, Chief Judge Roslyn Silver selected Bade to be a U.S. Magistrate Judge on the U.S. District Court for the District of Arizona.  Bade serves on that court currently.

History of the Seat

Bade has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on October 11, 2016 when Judge Barry Silverman moved to senior status.  With the vacancy opening three weeks before the 2016 Presidential election, President Obama made no nomination to fill the vacancy.

In April 2017, Arizona senators John McCain and Jeff Flake, both Republicans, recommended Assistant U.S. Attorney Dominic Lanza to fill the vacancy, alongside Bade and Arizona Supreme Court Justice Ann Scott Timmer as secondary choices.[5]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[6]

The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on former U.S. Attorney Paul Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[7]  Instead, Lanza was nominated and confirmed to a district court seat.

As for the Ninth Circuit vacancy, the White House vetted but declined to nominate Langhofer, as well as their next choice, DOJ Attorney (and White House Counsel alum) James Burnham.[8]  Finally, in April 2018, over a year after her name was originally sent to the White House, Bade was interviewed to fill the vacancy.[9]  She was nominated on August 27, 2018.

Political Activity

Bade has a fairly limited political history, having hosted a political reception for Mike Bailey, a Republican candidate for Maricopa County Attorney in 2004.[10]  Additionally, Bade gave a $250 contribution to Sen. Jon Kyl, a Republican, in 2006.[11]

Unlike most of Trump’s appellate nominees, Bade does not appear to be a member of the Federalist Society for Law and Policy.[12]

Legal Experience

Before joining the bench, Bade worked both in private practice and as a government attorney.  In this role, Bade handled primarily civil and appellate law.  Over the course of her career, Bade has tried three bench trials in federal court and two state court jury trials.[13]  Early in her career, Bade was part of a legal team defending the United States against a class action alleging that leaks from a defense facility had contaminated their groundwater.[14]

Notably, Bade handled two catastrophic tort suits against the U.S. Border Patrol, involving injuries suffered from passengers in vehicles crossing the border as they attempted to evade Border Patrol agents.[15]  Bade was able to successfully settle both cases and received a commendation from the Border Patrol from her work on the matters.

Jurisprudence

Bade has spent the last six years serving as U.S. Magistrate Judge in the District of Arizona.  In this role, Bade presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues.  In her six years, Bade has presided over three bench trials and one jury trial.[16]  The lone jury trial that Bade has presided over involved a personal injury suit arising from an automobile accident.[17]

Notably, Bade ruled that an Arizona Supreme Court rule that required attorneys seeking admission in Arizona to have reciprocal admission for Arizona attorneys was valid under the Dormant Commerce Clause and the First Amendment.[18]

In her time as a judge, Bade has had her reports and recommendations rejected by district judges in six cases.[19]  In an additional six cases, Bade’s reports and recommendations have been partially rejected by district judges.[20]  Furthermore, in four cases, Bade’s rulings were reversed on appeal.[21]

Overall Assessment

Bade may not have been the Administration’s first choice for the Ninth Circuit, but she may nonetheless prove to be the right one.  As a (relatively) older nominee with judicial experience, Bade is unlikely to attract the lightning rod of opposition that Langhofer or Burnham could have.  In fact, had it not been for her home-state senator’s blockade on judicial confirmations, it is likely that Bade would have been confirmed before the end of the year.

That being said, Bade may still ultimately draw negative votes in both committee and on the floor as her hearing was held over a recess, with no Democrats present.  Despite that factor, however, Bade is likely to be confirmed early next year (assuming that Senator-elect Kyrsten Sinema raises no objections).

[1] Sen. Comm. on the Judiciary, 115th Cong., Bridget Bade: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[6] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[7] See id.

[8] Betsy Woodruff, Alleged Mueller Witness James Burnham Is On Trump’s Judicial Wish List, Daily Beast, Oct. 8, 2017, https://www.thedailybeast.com/alleged-mueller-witness-james-burnham-is-on-trumps-judicial-wish-list.  

[9] See Bade, supra n. 1 at 64.

[10] See id. at 44-45.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=bridget+bade&cycle=&state=&zip=&employ=&cand= (last visited Nov. 15, 2018).  

[12] See Bade, supra n. 1 at 4-6 (listing her professional affiliations).

[13] See id. at 47.

[14] See Bates v. Tenco Services, Inc., et al., CV 87-1313-SB (D.S.C.).

[15] Castillejos v. United States, CV 08-1645-DKD (D. Ariz.); Lopez-Sauceda v. United States, CV 07-2267-DGC (D. Ariz.).

[16] See Bade, supra n.1 at 23.

[17] Valejo v. Grietl, et al., Case No. CV-13-01687-PHX-BSB (D. Ariz.).

[18] Nat’l Assoc. for the Advancement of Multijurisdictional Practice v. Berch, 973 F. Supp. 2d 1082 (D. Ariz. 2013), aff’d, 773 F.3d 1037 (9th Cir. 2014), cert. denied, 135 S. Ct. 2374 (2015).

[19] Pouncey v. Maricopa Cnty. Sheriff’s Off., No. CV-17-723-PHX-JAT (BSB) (D. Ariz. Sept. 11, 2017); Dominguez-Rojas v. United States, No. CV-16-2179-PHX-SRB (BSB), (D. Ariz. Apr. 25, 2017); Brinkman v. Ryan, 2016 WL 7474014 (D. Ariz. Dec. 27, 2016); Grant v. United States, 2016 WL 6327762 (D. Ariz. Oct. 31, 2016); Muktadir v. Donahue, No. CV-15-2009-PHX-ROS (BSB), 2017 WL 4349390 (D. Ariz. Mar. 31, 2016); Gibson v. Sternes, No. CV-14-8156-PHX-DLR (BSB) (D. Ariz. May 1, 2015).  

[20] Amaral v. Ryan, No. CV-16-594-PHX-JAT (BSB), 2017 WL 6463052 (D. Ariz. Dec. 19, 2017); Flowers v. O’Neil, No. CV-15-2670-PHX-JAT (BSB), 2017 WL 6276367 (D. Ariz. Dec. 11, 2017); Hiland v. Ryan, No. CV-13-8110-PHX-PGR (BSB), 2017 WL 3953945 (D. Ariz. June 29, 2015); Bosquez v. Ryan, No. CV-13-1714-PHX-PGR (BSB), (D. Ariz. Mar. 10, 2015); Equal Employment Opportunity Comm’n v. Recession Proof, No. CV-11-1355-PHX-BSB, 2013 WL 6327994 (D. Ariz. Dec. 5, 2013); Olmos v. Ryan, No. CV-11-344-PHX-GMS (BSB)(D. Ariz. June 24, 2013).

[21] Velasco v. United States, No. CV-15-1389-PHX-NVW (BSB), 2018 WL 947667 (9th Cir. Feb. 5, 2018; Colter v. Berryhill, 685 F. App’x 616 (9th Cir. 2017); Miller v. Parties, No. CV-16-1427-PHX-DGC (BSB), 2017 WL 6210796 (9th Cir. July 27, 2017); Baxla v. Colvin, 671 F. App’x 477 (9th Cir. 2016)

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Judge Thomas Barber – Nominee for the U.S. District Court for the Middle District of Florida

A well-respected state court judge in Florida, Judge Thomas Barber is a fairly uncontroversial choice for the federal bench.

Background

Thomas Patrick Barber was born on December 1, 1966 in Pittsburgh, Pennsylvania.  Barber graduated from the University of Florida in 1989 and from the University of Pennsylvania Law School in 1992.[1]  After graduating, Barber joined the Tampa office of Carlton Fields P.A. as an Associate.

In 1997, Barber became a state prosecutor at the State’s Attorney’s Office, and, after two years, became an Assistant Statewide Prosecutor with the Florida Attorney General’s Office.[2]  In 2000, Barber moved back to Carlton Fields, becoming a Partner in 2002.[3]

In 2004, Barber was appointed to be a County Court Judge for the Thirteenth Judicial Circuit.[4]  He was elevated to be a Circuit Judge in 2008.  He still holds the judgeship.

History of the Seat

Barber has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 29, 2017, when Judge James Whittemore moved to senior status.

Barber was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio.[5]  Barber was formally nominated on May 7, 2018.

Legal Experience

Barber has spent his entire pre-bench career either at the firm of Carlton Fields or as a state prosecutor.  Over the course of his career, Barber has tried approximately seventy cases, including approximately twenty jury trials.[6]

Among the highlights of his career, Barber helped prosecute the leaders of a theft ring that stole baby formula from Florida drug stores for resale in Texas.[7]  The case, which ended with a 76-month prison sentence for the ringleader, revealed links between the operation and the funding for the 1993 terrorist attacks at the World Trade Center.[8]  In other matters, Barber represented a whistleblower who uncovered numerous improprieties at the Florida Department of Health & Rehabilitative Services[9] and represented a family in supporting an elderly patient’s right not to receive skin graft procedures in accordance with her living will.[10]

Judicial Experience

Barber served as a County Judge in Florida from 2004 to 2008 and has served as a Circuit Judge since 2008.  In this role, Barber handles civil cases involving more than $15000 and felony prosecutions.  Over the course of his career, Barber has handled approximately 700 cases.[11]  Among his more prominent cases, Barber ruled that the new Florida “stand your ground” law could not apply to cases currently pending when the law passed.[12]

Over the course of his judicial career, Barber has been reversed approximately thirteen times.  For example, Barber was reversed in two cases for granting motions to dismiss on behalf of criminal defendants.[13]

In one notable case, Barber granted a motion to suppress evidence, finding that the warrant was based on information based on an officer’s nonconsensual entry into a backyard.[14]  The Florida Court of Appeals for the Second District reversed, finding that the affidavit supporting the warrant still met the probable cause requirement without the officer’s personal observations.[15]

Overall Assessment

Looking at Barber’s record overall, senators are unlikely to find his nomination controversial.  His judicial record reflects a relatively low rate of reversal and does not suggest a bias towards either prosecutors and defendants.

However, Barber was among a group of nominees who received his hearing during the October recess, when Democrats were not present.  As such, unless Barber is given a second hearing, he may get some votes against him from Democrats who are protesting their lack of input in the confirmation process.  Barber may also receive questions regarding his ruling limiting the scope of Florida’s “stand your ground” law and for his work representing an elderly woman’s “right to die.”

Nevertheless, Barber faces a strong likelihood of a bipartisan support next year, and will likely be confirmed in due course.

 

[1] Sen. Comm. on the Judiciary, 114th Cong., Thomas P. Barber: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 46.

[6] See id. at 36.

[7] William R. Levesque, 3 Receive Probation in Baby Formula Theft Ring, St. Petersburg Times, Aug. 25, 1999.

[8] See Barber, supra n. 1 at 37.

[9] See Irven v. Dep’t of Health & Rehab. Servs., Case No. GC-G-95-2652 (Fla. Cir. Ct. 1997).

[10] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[11] See Barber, supra n. 1 at 14. 

[12] State v. Smith, 16-CF-007477 (Fla. Cir. Ct. 2017).

[13] See State v. Ramirez, 198 So.3d 52 (Fla. App. 2d. 2015); State v. Codore, 59 So.3d 1200 (Fla. App. 2d. 2011).

[14] State v. Rodriguez, 56 So. 3d 848 (Fla. Ct. App. 2d. 2011).

[15] See id.

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Corey Maze – Nominee for the U.S. District Court for the Northern District of Alabama

The 40-year-old Corey Maze has, like two other Trump judicial nominees from Alabama, served as Alabama Solicitor General.  His tenure in that office, and his subsequent tenure with the Alabama Attorney General, has prepared him well for the federal bench.

Background

Corey Landon Maze was born in Gadsden, Alabama on January 4, 1978.  Maze graduated summa cum laude from Auburn University in 1996 and cum laude from Georgetown University Law Center in 2003.[1]

After graduation, Maze joined the Alabama Attorney General’s Office, working under then-AG William Pryor as Assistant Attorney General in Criminal Trials and Appeals.[2]  In 2008, Attorney General Troy King selected Maze to be Solicitor General of Alabama.  He held the position until 2011, when he became Special Deputy Attorney General for Civil Litigation, a position he still holds.

History of the Seat

Maze has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat opened on June 22, 2018, when Judge Virginia Emerson Hopkins moved to senior status.  However, Maze had contacted Alabama Senator Richard Shelby in November 2016 to express his interest in an appointment to the federal bench.[3]  Maze interviewed with Shelby and then-Sen. Luther Strange in 2017, and with the White House in early 2018.  Maze was officially nominated on May 10, 2018.[4]

Legal Experience

Maze has spent his entire legal career at the Alabama Attorney General’s Office, working as Assistant Attorney General in Criminal Trials and Appeals, as Solicitor General, and, currently, as Special Deputy Attorney General for Civil Litigation.

As Assistant Attorney General, Maze prosecuted both non-capital and capital murder cases in Alabama state courts.  Notably, Maze prosecuted Daniel Wade Moore for the stabbing death of Karen Croft Tipton in 1999.[5]  Moore’s initial conviction was overturned by Judge Glenn Thompson, but was reinstated on appeal.[6]  Moore’s second trial ended in a hung jury, and, in his third, Maze was admonished by Judge Steve Haddock for failing to disclose a disk of FBI evidence to the defense, stating that the conduct of the investigators constituted “willful and intentional misconduct.”[7]  Moore was ultimately acquitted in his third trial.

As Solicitor General, Maze served as Alabama’s chief appellate attorney.  In this role, Maze argued three cases before the U.S. Supreme Court.  In one, Maze successfully defended a death penalty conviction under federal habeas review, as dictated by the Antiterrorism and Effective Death Penalty Act.[8]  In another, the Supreme Court ruled 5-4 against Maze’s position, holding that an inmate who had successfully obtained habeas relief was permitted to raise a challenge to his second death sentence on the same constitutional grounds.[9]  In a third case, the Supreme Court ruled 7-2 against Maze’s position that a railroad transportation company cannot challenge the imposition of Alabama sales tax on the purchase of diesel fuel.[10]

As Special Deputy Attorney General for Civil Litigation, Maze handles complex civil litigation for the state.  For example, Maze has served as Chief Counsel for Alabama’s suit against British Petroleum (BP) for damages resulting from the 2011 oil spill in the Gulf of Mexico.[11]  The suit led to a settlement with approximately $950 million in damages to be paid to the State.[12]

Overall Assessment

Despite his youth, Maze has built an impressive legal career.  Given his experience arguing before the Supreme Court and managing multi-million dollar settlements, Maze can argue that he has the legal and organizational ability to excel on the federal bench.

That being said, Maze may still be questioned regarding his time at the Attorney General’s Office.  Specifically, Maze may receive questions about his conduct in the Moore case, and whether he agrees that his office’s actions constituted misconduct.

Overall, Maze remains a favorite for confirmation.  While Sen. Flake’s blockade on judicial nominees will likely prevent Maze’s confirmation this year, he should be confirmed in due course next Congress.

[1] Sen. Comm. on the Judiciary, 115th Cong., Corey L. Maze: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id. at 33.

[4] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial Nominees, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 10, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[5] Sheryl Marsh, Spending 4 Weeks on a Jury: Judge Quizzes Potential Jurors About Lengthy Trial in Tipton Murder Case, Decatur Daily, Feb. 12, 2008.

[6] See id.

[7] Sheryl Marsh, Tipton Judge Cites Misconduct; Haddock Says Prosecutors Withheld Evidence, But Delays Motion to Dismiss Charges; Jury Selection Begins, Decatur Daily, Apr. 14, 2009.

[8] See Wood v. Allen, 130 S.Ct. 841 (2010).

[9] Magwood v. Patterson, 130 S.Ct. 2788 (2010).

[10] CSX Transp. Inc. v. Alabama Dep’t of Revenue, 131 S.Ct. 1101 (2011).

[11] Kyle Barnett, Ala. AG’s Office Re-Deputized Private Firm to Avoid Legal Challenge From BP, Has Always Intended to Use Firm for Trial, Legal News Line, June 2, 2015.

[12] Jessica Karmasek, Alabama’s $1B Settlement with BP Over 2010 Gulf Oil Spill ‘Officially Approved By All Parties’, Legal News Line, Oct. 15, 2015.

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