Month: May 2019

Jason Pulliam – Nominee to the U.S. District Court for the Western District of Texas

The lack of diversity of Trump’s judicial nominees has already drawn criticism.  Trump has been especially slow about nominating African American judges, naming just six to date.  As such, the nomination of Jason Pulliam, who will be the first African American judge on the Western District of Texas, is particularly welcome.

Background

Jason Kenneth Pulliam was born in 1971 in Brooklyn.  After getting a B.A. and an M.A. from Brooklyn College, CUNY, Pulliam received a J.D. Texas Southern University Thurgood Marshall School of Law in 2000.  After his graduation, Pulliam spent three years as a Judge Advocate in the U.S. Marine Corps.[1]

After leaving the Marines, Pulliam spent the next six years as an associate in private practice, moving between The Carlson Law Firm, Ball & Weed P.C. and Ford & Murray PLLC.  In 2011, Pulliam became a Judge with the Bexar County Court of Law No. 5.[2]  In 2015, he was appointed by outgoing Gov. Rick Perry as a Justice on the Fourth Circuit Court of Appeals.  However, in 2016, Pulliam lost re-election to fellow Bexar County Court judge Irene Alarcon Rios.  He then joined the San Antonio office of Prichard Young LLP as a Counsel.

In 2018, Pulliam once again ran for the Fourth Circuit, but again lost the election to incumbent judge Patricia Alvarez, a Democrat.

History of the Seat

Pulliam has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on December 31, 2017, when Judge Sam Sparks took senior status.  While Pulliam was previously considered for vacancies filled by Judges Walter Counts and Fernando Rodriguez, he was ultimately recommended in mid-2018 for the Sparks vacancy, based out of Austin.[3]  However, while Pulliam was selected as a nominee by the White House in August 2018, he was not formally nominated until March 2019.

Legal Experience

Pulliam started his legal career as a Judge Advocate in the U.S. Marine Corps, where he served as a criminal defense and legal assistance attorney while serving on active duty.  During this period, Pulliam was trial defense counsel for James D. Mohammad, who was convicted for failing to follow an order to get inoculated based on his Muslim faith.[4]  Mohammad appealed, arguing that Pulliam was ineffective in his defense, but the Court of Criminal Appeals found that Pulliam had adequately researched the defenses Mohammad sought and had declined to bring them because they were specious.[5]

From 2004 to 2010, Pulliam worked in private practice, where he handled a variety of cases, including personal injury, civil litigation, and malpractice.  In this period, Pulliam notably defended RV Insurance Solutions LLC, a collection agency, against allegations that it had illegally misappropriated customer funds.[6]

Jurisprudence

Pulliam served as a county court judge from 2011 to 2014 and as an appellate judge from 2015 to 2016.  In the latter position, Pulliam sat as part of 3-judge panels to oversee appeals in the Fourth Circuit, which covered much of Southern Texas.  As an appellate judge, Pulliam notably dismissed a class action suit by a team of 1400 plaintiffs who alleged that payday lenders had improperly used criminal prosecution against their debtors.[7]  In his opinion, Pulliam found that the suits were foreclosed by arbitration clauses in the payday contracts.[8]  However, Judge Rebeca Martinez dissented from Pulliam’s conclusion.[9]

In another notable case, Pulliam held that Dino Villareal, a transgender man[10], could not bring suit for a paternity action for the adoptive children of his female partner.[11]  This holding also drew dissents, including one on the merits from Judge Martinez.[12]

Political Activity

As noted earlier, Pulliam ran as a Republican in Texas judicial elections, losing to Democratic candidates in 2016 and 2018.  In addition, Pulliam donated to Rep. Cathy McMorris Rodgers in 2016.[13]

Speeches and Writings

While a sitting judge and judicial candidate in 2016, Pulliam appeared on an interview with the Black Video Network, where he discussed his role as a judge and key issues.[14]  Among the topics he is asked to address, Pulliam discusses police brutality and Black Lives Matter noting:

“[Protestors] have an absolute right to protest under the First Amendment.  They have a right to seek redress for grievances, and I think we should encourage that as long as it doesn’t ever become violent.  Folks probably need to have a specific agenda and list of items that they seek redress for those grievances.  They may want to petition their city council or their state legislature, and then seek to change by being part of the process.”[15]

Later in the interview, Pulliam contrasted himself with Judge Rios, his opponent, by noting that he has criminal and civil experience, while Rios only has civil experience.[16]

Overall Assessment

Pulliam was the first African American Republican to be a Bexar County judge when he was appointed in 2011.  He then became the first African American on the Fourth Circuit and, would, if confirmed, become the first African American on the U.S. District Court for the Western District of Texas.

Setting aside his contribution to the diversity of the federal bench, Pulliam’s record is conservative but not overly political.  While Pulliam may draw criticism for his decisions in the CASH BIZ and Sandoval cases, such concerns are unlikely to derail his nomination.

[1] Sen. Comm. on the Judiciary, 115th Cong., Jason K. Pulliam: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] See id. at 60-61.

[4] United States v. Mohammad, 2006 WL 1499986 (U.S. Navy-Marine Corps Ct. of Crim. App. May 31, 2006).

[5] See id. at *5.

[6] Motorhomebytel, Inc. v. RV Ins. Sols. LLC., Bexar Cnty. St. Dist. No. Cause 2007C105629.

[7] CASH BIZ, LP v. Henry, No. 04-15-00469-CV, 2016 WL 4013794 (Tex. App. – San Antonio, July 27, 2016, pet. filed).

[8] See id.

[9] Charles Kuffner, Appeals Court Blocks Litigation Against Payday Lenders, Off the Kuff, Aug. 7, 2016.

[10] Interestingly, while Mr. Villareal has obtained an Order Granting Change of Identity, and, while Pulliam’s original opinion refers to him as male, Pulliam’s SJC Questionnaire appears to misgender him.  See Pulliam, supra n. 1 at 26 (“The underlying matter involved two women who were in a relationship (Sandoval and another woman who identified as a man named Dino.”).

[11] In re Sandoval, No. 04-15-00244-CV, 2016 WL 353010 (Tex. App._San Antonio Jan. 27, 2016, orig. proceeding).

[12] Art Leonard, Texas Appeals Panel Denies Transgender Man Standing to Bring Paternity Action Concerning Children He Was Parenting, Art Leonard Observations, Jan. 30, 2016, https://www.artleonardobservations.com/texas-appeals-panel-denies-transgender-man-standing-to-bring-paternity-action-concerning-children-he-was-parenting/.  

[14] See Black Excellence – Jason Pulliam for Judge, https://www.youtube.com/watch?v=PJQY-FerUFM.  

[15] See id.

[16] Id.

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Daniel Bress – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Like fellow nominee Dan Collins, Daniel Bress is also a former clerk for the late Justice Antonin Scalia and also faces the joint opposition of home state senators Dianne Feinstein and Kamala Harris.

Background

Daniel Aaron Bress was born in Hollister, CA in 1979.  Bress received an A.B. from Harvard in 2001 and a J.D. from the University of Virginia Law School in 2005.[1]  After graduating from law school, Bress clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Antonin Scalia on the U.S. Supreme Court, clerking alongside future Sen. Mike Lee, and future Sixth Circuit Judge Eric Murphy.[2] 

After his clerkships, Bress joined the San Francisco Office of Munger, Tolles & Olson LLP.  He left a year later to join Kirkland & Ellis in Washington D.C. where he has been a Partner since 2011.[3] 

Additionally, Bress has taught courses on textualism as a method of constitutional and statutory interpretation at the University of Virginia and Catholic University Law Schools.[4]

History of the Seat

Bress has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 18, 2017 when Judge Alex Kozinski resigned from the bench in the midst of heavy controversy.  On October 10, 2018, Trump nominated Patrick Bumatay, a federal prosecutor who would have been the first openly gay judge on the Ninth Circuit.  Based on a disagreement with California’s Senators, however, Bumatay was withdrawn and nominated to the U.S. District Court for the Southern District of California.

In May 2017, Bress was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In late 2017 and early 2018, Bress interviewed with Advisory Committees set up by California’s Democratic Senators.[6]  Bress’ nomination was sent to the Senate on February 6, 2019.

Both of Bress’s home state senators, Sen. Dianne Feinstein and Sen. Kamala Harris, have expressed opposition to Bress’s nomination, citing Bress’ residence and career in DC and lack of ties to the California legal community.[7]

Political Activity & Memberships

Bress is a Republican who has donated to the campaigns of Mitt Romney, John McCain, and Sen. Jeff Flake.[8]  He was also a member of the D.C. Chapter of Lawyers for Romney in the 2012 elections.[9]

Furthermore, Bress has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 2003.[10] 

Legal Experience

Bress has spent his legal career as a civil litigator, most of it at the D.C. Office of Kirkland & Ellis.  Over the course of his 12 year legal career, Bress has not tried any cases to verdict but has participated in appellate matters before the U.S. Supreme Court and the federal courts of appeals.

Among the most notable cases he handled, Bress sued under California’s Parent Empowerment Act to challenge the denial of a petition to convert Palm Lane Elementary School (a public school) into a charter school.[11]  Bress, who handled the case on a pro bono basis, argued successfully that the school’s decision to reject the petition was arbitrary.[12]

In other cases, Bress is defending Honeywell Int’l in a suit against a government alleging that anti-ballistic products they manufactured were defective.[13]  He also represented an Alabama death row inmate in challenging an Alabama procedural rule on successive habeas petitions.[14]

Writings

Of Bress’ writings on the law, two are particularly notable.  As an associate at Munger, Bress coauthored an article alongside other Supreme Court clerks at the firm (including future Ninth Circuit Judge Michelle Freidland) on the death penalty.[15]  The article focused on Justice Stevens’ dissent from a 7-2 decision upholding Kentucky’s death penalty protocol in Baze v. Rees, and the changed position from Justice Stevens’ affirmation of the death penalty in Gregg v. Georgia thirty years earlier.[16]  The article posits that “constant exposure to the horrors of capital crimes and the utter finality of executions” motivated Stevens’ change in position.[17]

In the other notable article, authored as a law student, Bress argues that the inherent power of administrative agencies to reconsider their final decisions (barring any statutory authority) must be limited and proscribed.[18]

Overall Assessment

Bress may be the youngest of Trump’s three California nominees to the Ninth Circuit, but that’s not what makes him the most controversial.  Rather, the issue is geography.  Traditionally, circuit nominees have been tied to individual states within a circuit (and statutorily, each state is required to have at least one judge on a circuit).  Bress has been nominated to a California seat but has spent almost his entire legal career in Washington D.C.  In a Judiciary Committee meeting earlier this year, Chairman Lindsay Graham acknowledged the legitimacy of concerns regarding Bress’ ties to California.  Furthermore, Bress’ legal ties are primarily to the D.C. legal community and he resides in Alexandria, Virginia.  On the flip side, Bress has litigated in California courts, was born in California, and is a member of the state bar.  Nevertheless, the Alliance for Justice has already noted that Bress’ firm biography has been edited to emphasize California ties, suggesting that his supporters are concerned about the attack.[19]

Overall, Bress’ substitution for Bumatay suggests that the White House considered the former less controversial for an appellate seat.  In the unlikely event that Bress’ nomination is derailed by questions of geography, the White House could, in theory, substitute Bumatay back for the Ninth Circuit, giving the court its first openly gay judge.

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

[2] Id. at 2.

[3] Id. at 3.

[4] Id. at 30.

[5] See id. at 33.

[6] Id.

[7] See Press Release, Office of Sen. Dianne Feinstein, Feinstein: Don’t Confirm a D.C. Lawyer to California’s Seat on Ninth Circuit (May 16, 2019); Press Release, Office of Sen. Kamala Harris, Harris on Trump’s Ninth Circuit Nominee: Daniel Bress Is Not a California Lawyer (May 17, 2019).

[8] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=daniel+bress&order=desc&sort=D (last visited May 21, 2019).

[9] See Bress, supra n. 1 at 12.

[10] See id. at 5.

[11] See Ochoa v. Anaheim City Sch. Dist., 11 Cal. App. 5th 209 (2017).

[12] Joseph Pimental and Roxana Kopetman, Court to Rule on Parents’ Charter School Demand, Chico Enterprise-Record, Mar. 2, 2017.

[13] United States v. Honeywell Int’l Inc., Case No. 08-cv-961 (D.D.C.).

[14] Kuenzel v. Alabama, 137 S. Ct. 375 (No. 16-213).

[15] Jeffrey Bleich, Aimee Feinberg, Michelle Freidland, Daniel Bress, and David Han, Change of Heart – Justice Stevens Reassesses the Death Penalty, 34 San Francisco Att’y 32 (Fall 2008).

[16] Id. 

[17] Id. at 34.

[18] Daniel Bress, Administrative Reconsideration, 91 Va. L. Rev. 1737 (Nov. 2005).

[19] Press Release, Alliance for Justice, Bress is Wrong for the Ninth Circuit (May 17, 2019).

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Kenneth Lee – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Jenner & Block Partner Kenneth Lee is President Trump’s first nonwhite nominee to the Ninth Circuit.  He has drawn strong opposition based largely on college writings that lay out controversial views.

Background

Kenneth Kiyul Lee was born in Seoul on August 30, 1975.  Lee received a B.A. from Cornell University in 1997 and a J.D. from the Havard Law School in 2000.[1]  After graduating from law school, Lee clerked for Judge Emilio Garza on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Lee joined Wachtell Lipton Rosen & Katz as an associate in their New York City Office.[3]  Five years later, he moved to the White House Counsel’s Office in the Bush Administration.[4]  In 2009, Lee moved to Jenner & Block’s Los Angeles Office as a Partner and has served there since.

History of the Seat

Lee has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on March 29, 2018 when Judge Stephen Reinhardt, a liberal lion, passed away.

However, Lee had been under consideration for a judicial appointment over a year earlier, when he interviewed with the White House Counsel’s Office and the Department of Justice.[5]  In November 2017, Lee interviewed with a Judicial Advisory Commission set up by Sen. Dianne Feinstein (D-CA) and in March 2018, with a Commission set up by Sen. Kamala Harris (D-CA).  Lee was formally nominated on November 13, 2018, without the support of either senator.

Political Activity & Memberships

Lee is a Republican who has occasionally donated to Republican candidates, including a $2000 donation to Sen. Tom Cotton in 2014.[6]  Lee has also donated to U.S. Sen. Ted Cruz and Rep. Elise Stefanik.[7]

Furthermore, Lee has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[8]

Legal Experience

After his clerkship, Lee has spent his career focusing on both trial and appellate level litigation.  He has served as Chief Trial Counsel in four cases, as well as serving as Second Chair in one additional case.

Wachtell

From 2001 to 2006, Lee served as as Associate at Wachtell Lipton Rosen & Katz where he primarily handled commercial litigation.  Lee notably second-chaired a trial securing $4.6 billion in insurance damages for his client, the leaseholder of the World Trade Center, after the September 11 attacks.[9]

White House Counsel

From 2006 to 2009, Lee served as Associate Counsel to President Bush.  In that role, Lee defended the White House against investigations for the incoming Democratic Congress while working on litigation strategy in cases implicating the White House.

Jenner & Block

Since 2009, Lee has been a Partner with Jenner & Block handling matters of complex civil litigation.  During this time, Lee notably represented Kraft Foods in defending against a putative class action suit alleging false advertising relating to the fruit content in Newtons.[10]  Lee also defended Clorox in false advertising suits relating to Fresh Step cat litter ads.[11]

Writings

Like previous appellate nominees Ryan Bounds and Neomi Rao, Lee has his share of controversial writings, primarily based in his college years.  For example, in a 1993 article titled “Is America Evil,” Lee argued against criticism of racism, sexism, and homophobia in the United States.[12]  In the article, Lee suggests that criticism of structural racism arises from “statistical chicanery” and that charges of sexism are “irrelevant pouting.”[13]  Lee also writes against criticisms of sexism, noting:

“Unfortunately, no matter how many times they cry that both genders are equal, the reality is that men and women are biologically different…Anyone who disputes that fact disputes nature.  Some tasks are better suited for men, and others for women.  This is not sexism; it is reality.”[14]

Lee goes on to suggest that sexism is worse in other cultures than in America, noting that the Koran “states that ‘men have authority over women because Allah has made the one superior to the other.’”[15]

In another article, Lee wrote that “nine out of 10 people with AIDS are gay or drug users.”[16]

To be fair, Lee has walked back from many of his college writings, stating before the Judiciary Committee that he was “embarrassed” of them.[17]  His disavowal was sufficient to secure the support of Sen. Tim Scott, whose opposition killed other Trump nominees.[18]

Overall Assessment

As the Senate prepares for a final vote on Lee’s nomination, his confirmation looks likely. (While, in theory, the opposition of four GOP senators is enough to kill a nomination, the actual hurdle is higher, since many Democratic senators have been missing votes while campaigning for the Presidential nomination.)

Looking at Lee’s record overall, it reads (setting aside the college writings) as that as a mainstream (albeit conservative) nominee.  That being said, the college writings can reasonably be described as sexist, homophobic, and Islamophobic, and may be enough, in and of themselves, to persuade senators not to support Lee.  As such, senators must determine how heavily they must weigh such writings in their review of his overall record.

[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Lee: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Lee, supra n. 1 at 27.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kenneth+lee&cycle=&state=CA&zip=&employ=&cand= (last visited May 11, 2019).  

[7] Id.

[8] See Lee, supra n. 1 at 5.

[9] SR Int’l Bus. Ins. Co., et al. v. World Trade Cntr. Props. LLC, et al., No. 01-CV-9291 (S.D.N.Y.), 345 F.3d 154 (2d Cir. 2003).

[10] Evangeline Red v. Kraft Foods, 754 F. Supp. 2d 1137 (2010); Manchouk v. Mondelez, 603 Fed. App’x 632 (9th Cir. May 18, 2015).

[11] In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (2012).

[12] Kenneth Lee, Is America Evil, The Cornell Review, Nov. 11, 1993, https://afj.org/wp-content/uploads/2019/02/Is-America-Evil.pdf.  

[13] See id.

[14] Id.

[15] Id. 

[16] Emma Dumain and Emily Cadei, Trump Pick on Track to Join Californias 9th Circuit Despite Feinstein, Harris Opposition, Sacramento Bee, Mar. 13, 2019, https://www.sacbee.com/latest-news/article227517189.html..  

[17] Id.

[18] Id.

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Matthew Solomson – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down to just five that are filled.  There are multiple reasons behind the high number of vacancies, including the obstruction of five qualified nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC.  Additionally, three of the nominees the Administration has put forward have withdrawn before confirmation.  In comparison, Matthew Solomson, the latest nominee, looks to have a brighter future.

Background

Matthew Hillel Solomson was born in Hartford, Connecticut in 1974.  Solomson graduated cum laude from Brandeis University in 1995 and received a joint JD/MBA from the University of Maryland Law School/School of Business in 2002.[1]

After graduating law school, Solomson clerked on the CFC for Judge Francis Allegra, and then joined the D.C. office of Arnold & Porter as a Government Contracts Associate, where he stayed until 2007 (barring a year at Skadden Arps doing patent work).  In 2007, Solomson joined the Commercial Litigation Branch of the Department of Justice.[2]

In 2011, Solomson joined Sidley Austin as Counsel and a year later moved to Booz Allen Hamilton as Associate General Counsel.  Since 2015, Solomson has served as Chief Legal Officer of Federal Governmental Solutions at Anthem, Inc., a health insurance company.[3]

History of the Seat

Solomson 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 Solomson was nominated for opened up on October 21, 2013, with the retirement of Judge Emily Hewitt.  On May 21, 2014, President Obama nominated Patricia McCarthy, a lawyer with the U.S. Department of Justice, to fill the vacancy.[4]  While McCarthy and four other nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[5]  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 more vacancies on the Court, leaving six of the sixteen judgeships vacant by the end of the 114th Congress.[6]

In late 2016, Solomson submitted his resume to the Presidential Transition team, expressing his interest in an appointment to the CFC.[7]  Solomson interviewed with the White House in April 2017, and was selected for further vetting in April 2018.[8]  Solomson was officially nominated on March 5, 2019.

Legal Experience

Solomson’s specialty is government contracts law.  Throughout his career, Solomson has focused on procurements, regulatory compliance, and other areas involved in government contracts at Sidley Austin, Booz Allen, and Anthem.  Over his career, Solomson has tried four cases, including two as counsel of record.[9]

Among his more prominent cases, Solomson successfully argued before the Federal Circuit that a federal employee’s due process rights were violated when he was removed without having an opportunity to challenge ex parte communications against him.[10]

Political Activity

Solomson has a limited political history, having donated $1000 to then candidate Mitt Romney in 2012.[11]

Overall Assessment

Given Solomson’s focus on government contracts law, and his lack of a paper trail on controversial issues, he is unlikely to draw the same degree of controversy as other CFC nominees.  However, given the general lack of emphasis on CFC nominations under the Administration and the Senate, I wouldn’t expect a quick confirmation for Solomson.

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

[2] Id. at 2.

[3] See id.

[4] Press Release, White House, Presidential Nominations Sent to the Senate (May 21, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[5] 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.

[6] 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.

[7] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Solomson: Questionnaire for Judicial Nominees 29-30.

[8] See id.

[9] Id. at 17.

[10] Young v. Dep’t of Hous. and Urban Dev., 706 F.3d 1372 (Fed. Cir. 2013).

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Judge Robert Colville – Nominee to the U.S. District Court for the Western District of Pennsylvania

When the Obama Administration ended, four district court nominees in Pennsylvania were left unconfirmed before the Republican Senate.  With the nomination of Judge Robert Colville to the Western District, all four have now been renominated by President Trump.

Background

A Western Pennsylvania native, Colville was born in Pittsburgh in 1965, the son of Robert E Colville.[1]  The senior Colville was a longtime Alleghany County District Attorney and Pennsylvania Judge.  The younger Colville attended Pennsylvania State University, graduating with a B.A. in 1989.  Colville went on to get a Juris Doctor from Duquesne University School of Law.[2]

After graduating, Colville clerked for Pennsylvania Supreme Court Justice Ralph Cappy and then joined the Pittsburgh Office of Pietragallo Bosick & Gordon as an Associate.

In 2000, Colville became a judge on the Court of Common Pleas for Alleghany County.[3]   Colville continues to serve in that position today.

On July 30, 2015, President Obama nominated Colville to the U.S. District Court for the Western District of Pennsylvania to fill a vacancy opened by the death of Judge Gary Lancaster.  Colville received a hearing before the Senate Judiciary Committee but was never voted out by the Committee, where Republican Senators objected to Colville’s answers relating to Roe v. Wade and abortion rights.[4]

History of the Seat

As noted above, Colville’s nomination to the Lancaster seat on the Western District of Pennsylvania stalled in the Obama Administration.  President Trump chose not to renominate Colville to that seat, instead choosing another failed Obama nominee, Judge Marilyn Horan, who was confirmed.

Nevertheless, in August 2018, the White House reached out to Colville to vet him for a federal judgeship.[5]  Colville was nominated on March 5, 2019 for a seat that opened on January 1, 2018, with the move to senior status of Judge Arthur Schwab.

Legal Experience

From 1994 to 1999, Colville worked as an associate and a partner at Pietragallo Bosick & Gordon in Pittsburgh.  At the firm, Colville tried approximately four cases in Pennsylvania state court, focusing on general civil litigation.[6]  Among the most significant matters that Colville handled at the firm, he represented Universal Underwriters, an insurance company, in defending against a reimbursement action before the Pennsylvania Supreme Court.[7]

Jurisprudence

Colville has served as a state court judge in Alleghany County since 2000.  He spent his first two years in the Juvenile Division, the third year in the Family Division, and has been with the Civil Division since 2003.[8]  Colville has presided over around 400 civil trials.[9]

Among his more prominent cases, Colville presided over a medical malpractice case arising from the death of a patient from a perforated bowel.[10]  In another notable case, Colville presided over a $5.7 million verdict for the plaintiff in a medical malpractice case where a patient was not adequately screened for liver cancer and died as a result.[11]

Political Activity

Colville comes from a prominent Western Pennsylvania Democratic family and has only one donation of record, a $600 contribution to the Pennsylvania Democratic Party.[12]

Overall Assessment

As noted before, any nominee found worthy of nomination by two administrations of different political parties is likely to be fairly uncontroversial.  While Colville has bipartisan support, however, he is nonetheless likely to draw some opposition.  His initial nomination failed to make it out of Committee due to his (perceived) support for abortion rights, and his second nomination has already drawn Republican opposition.  None of this is to say that Colville will not be ultimately confirmed, but it does suggest that Colville will not attract the level of support that other Pennsylvania nominees have drawn.

[1] Sen. Comm. on the Judiciary, 116th Cong., Robert J. Colville: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] 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/.  

[5] See Colville, supra n. 1 at 60.

[6] See Colville, supra  n. 1 at 53-54.

[7] See State Farm Mutual Auto Ins. Co. v. Universal Underwriters, 701 A.2d 1330 (Pa. 1997).

[8] See Colville, supra n. 1 at 1-2.

[9] Id. at 25.

[10] See Cunning v. Ellwood City Hospital, No. GD12-020914, Alleghany Cnty., May 14, 2015 (trial date).

[11] See Kander v. Agha, No. GD 13-007761, Alleghany Cnty., Apr. 9, 2015 (jury verdict).

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Steven Grimberg – Nominee to the U.S. District Court for the Northern District of Georgia

A former prosecutor focused on economic crimes, Steven Grimberg currently serves in an unusual capacity for a judicial nominee, as General Counsel for a global investigations firm.

Background

Steven Daniel Grimberg was born in New York City in 1974.[1]  After getting an B.A. from the University of Florida in 1995, Grimberg attended Emory University Law School, graduating in 1998.  Following his graduation, Grimberg spent a year at Vial, Hamilton, Koch & Knox LLP in Dallas, three years at Muller Mintz P.A. in Miami, and three years at Hunton & Williams in Atlanta.[2]

In 2005, Grimberg joined the Department of Justice in Washington D.C. as a trial attorney in the Tax Division.  In 2010, he moved to the U.S. Attorney’s Office for the Northern District of Georgia to be Deputy Chief of the Economic Crimes Division under then U.S. Attorney Sally Yates.[3]

In 2018, Grimberg became General Counsel at Nardello & Co, a global investigations firm.

History of the Seat

Grimberg has been nominated for a seat on the U.S. District Court for the Northern District of Georgia.  This seat was vacated on December 1, 2018, when Judge Richard Story moved to senior status.  Grimberg had applied with the Georgia senators for the vacancy that opened with Judge William Duffey’s move to senior status, but was not selected for that seat.[4]  However, in October 2018, when Story announced his intention to take senior status, the White House began vetting Grimberg.[5]  Grimberg was nominated on April 2, 2019.

Legal Experience

While Grimberg began his legal career in private practice, he has spent the most critical portion of his career as a prosecutor.  As a federal prosecutor, Grimberg prosecuted Becky McCord, a Georgia Superior Court clerk, of stealing $134,000 in fees and funds.[6]  He also prosecuted Annamalai Annamalai, a self-proclaimed spiritual leader who defrauded much of the Georgian Hindu community through fraudulent credit card transactions, which he used to finance a lavish lifestyle.[7]

Since 2018, Grimberg has served as General Counsel for the Americas at Nardello & Co, a global investigations firm.  In this role, Grimberg serves as the primary legal guide for the firm, which conducts investigations on behalf of law firms and financial institutions.

Political Activity

Grimberg is a member of the Federalist Society for Law & Public Policy.[8]  He has also donated to the Presidential campaign of Sen. Marco Rubio.[9]

Writings

In 2018, Grimberg co-authored a paper with former FBI Agent Mark Ray discussing cybersecurity measures that should be taken by corporations.[10]  The article suggested that corporations should conduct a cybersecurity assessment to determine their level of vulnerability to a data breach and then implement and test incident response plans to respond to such data breaches.[11]

Overall Assessment

While Grimberg’s current position in house with an investigations firm is unusual for a judicial nominee, his background as a prosecutor is not.  Grimberg is now the third (of four) Trump nominee to the Northern District with prosecutorial experience.  If confirmed, Grimberg is expected to add another conservative voice to that court.

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

[2] Id. at 2.

[3] Id.

[4] That nomination went to State Judge J.P. Boulee.

[5] Id. at 37.

[6] Andria Simmons, Crime and Punishment; Court Clerk Accused of Fraud, Atlanta Journal-Constitution, Apr. 27, 2011.

[7] United States v. Annamalai Annamalai, et al., No. 1:13-CR-00437-TCB-CMS (N.D. Ga.).

[8] See Grimberg, supra n. 1 at 7.

[9] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=steven+grimberg&cycle=&state=&zip=&employ=&cand= (last visited Apr. 29, 2019).  

[10] Steven Grimberg and Mark Ray, A Call to Action: Cybersecurity Due Diligence in Today’s Business Climate, 5 Emory Corp. Accountability Rev. 73 (2018).

[11] Id. at 75.

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Judge Mark Pittman – Nominee to the U.S. District Court for the Northern District of Texas

A young state court judge with a conservative pedigree, Judge Mark Pittman is right out of central casting for the Trump Administration in its judicial nominees.

Background

A native Texan, Mark Timothy Pittman was born in Big Spring in 1975.  Pittman attended Texas A&M University, receiving his Bachelor of Arts magna cum laude in 1996 and a Juris Doctor from the University of Texas School of Law in 1999.  After graduating from law school, Pittman clerked for Judge Eldon Brooks Mahon on the U.S. District Court for the Northern District of Texas and then joined the Fort Worth office of Kelly, Hart and Hallman LLP as an associate.[1]

In 2004, Pittman joined the U.S. Department of Justice Civil Division in Washington D.C. as a Trial Attorney.  In 2007, he returned to Texas as a federal prosecutor.  In 2009, Pittman joined the Federal Deposit Insurance Corporation in Dallas as a Senior Attorney and in 2011, moved to the Securities and Exchange Commission as an Enforcement Attorney (from 2014 to 2015, he also served as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office).[2]

In 2015, outgoing Gov. Rick Perry appointed Pittman to serve as a District Judge on the 352d District in Texas.  Pittman won re-election in 2016 unopposed as a Republican.  In 2017, Gov. Greg Abbott appointed Pittman to the Texas Second District Court of Appeals, where he won re-election, unopposed, in 2018, and where he currently serves.

History of the Seat

Pittman has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five nominees currently pending before the Senate.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Pittman has been nominated to fill opened on October 9, 2018, when Judge John McBryde moved to senior status.  McBryde himself replaced Judge Mahon, and, as such, if confirmed, Pittman would fill the seat of his once-boss.

Legal Experience

Pittman has had a varied legal career, having worked in six different positions in the approximately 15 years of pre-bench legal work.  Overall, Pittman primarily focused on prosecuting securities and economic crimes, including at the SEC, the FDIC, and at the U.S. Attorney’s Office.  Pittman has tried 11 cases including a three-week long bench trial on a discrimination claim against the Federal Aviation Commission.[3]

In other notable cases, Pittman led investigations that led to prosecutions of an individual defrauding seniors in real estate investments,[4] and a defendant who created straw men to run an oil-and-gas Ponzi scheme.[5]

Jurisprudence

Pittman served as a state district judge from 2015 to 2017 and as an appellate judge since 2017.  In the former position, Pittman presided over approximately 75 trials among approximately 1000 cases.  Among the cases he handled, Pittman faced a motion to dismiss a tort claim brought against the University of North Texas Health Science Center.[6]  The issue was whether the hospital had adequately received notice under Texas law within six months of the underlying incident.  Pittman ruled that notes made in the hospital records reflected the hospital’s notice of potential tort claims.  However, this ruling was overturned by the Court of Appeals, who instructed Pittman to dismiss the action for lack of subject matter jurisdiction.[7]

As an appellate judge, Pittman has generally maintained a conservative record.  For example, in one case, Pittman found that a $10,000 fine assessed by a jury could still be assessed against a defendant where the judge left the fine out of his oral pronouncement.[8]  In dissent, Judge Elizabeth Kerr, a fellow Republican, noted that there was no “ambiguity” where a judge did not pronounce a fine at sentencing.[9]

However, in another case, Pittman affirmed the trial court grant of a motion to suppress a traffic stop based solely on information from the state vehicle insurance database, finding that the trial court had correctly credited testimony regarding the high incidence of error in the database.[10]

Political Activity

Pittman is a Republican who has run for judicial elections as such.  Before he joined the bench, Pittman volunteered with many Texas Republican campaigns, including those of then Governor George Bush, then Senator Phil Gramm, and then Attorney General Greg Abbott.[11]  Pittman is also a Founding Member of the Tarrant County chapter of the Federalist Society.[12]

Overall Assessment

Given the strong concern raised by many Democrats towards participation in the Federalist Society, it is unlikely that Pittman’s involvement with the group will be seen as a positive.  However, setting that aside, Pittman’s record as a judge is that of a mainstream conservative.  As such, while Pittman may not see a bipartisan confirmation, he is unlikely to be a nominee who is fought particularly aggressively.

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

[2] Id.

[3] See Bland v. LaHood, 2010 WL 1328148 (N.D. Tex. Jan. 8, 2010).

[4] United States v. Battie, 3:16-cr-00051-D-1 (N.D. Tex.).

[5] Securities and Exchange Commission v. Halek, et al., 3:14-cv-01106-D (N.D. Tex.).

[6] University of North Tex. Health Science Cntr. v. Jimenez, 2017 WL 3298396 (Tex. App-Fort Worth, pet. Filed Sept. 15, 2017).

[7] See id.

[8] Ette v. State, 551 S.W.3d 783, 789-91 (Tex. App. 2017).

[9] Id. at 797-98 (J. Kerr, dissenting).

[10] See State v. Binkley, 541 S.W.3d 923 (Tex. App. 2018).

[11] See Pittman, supra n. 1 at 28-29.

[12] See Press Release, Office of Governor Greg Abbott, Governor Abbott Appoints Pittman to Second Court of Appeals (Jan. 6, 2017) (available at https://gov.texas.gov/news/post/governor_abbott_appoints_pittman_to_second_court_of_appeals).  

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