Brantley Starr – Nominee to the U.S. District Court for the Northern District of Texas

Two years ago, the First Assistant Attorney General for the Texas Attorney General’s Office, Jeff Mateer, saw his nomination implode as several controversial comments he had made in the past surfaced.  President Trump has now nominated Mateer’s deputy, Brantley Starr, to fill a lifetime appointment in Texas, where Mateer’s litigation history is likely to be a cause of controversy.

Background

A native Texan, Brantley David Starr was born in San Antonio in 1979.  He attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2004 (overlapping at both institutions with fellow Northern District nominee Matthew Kacsmaryk).[1]  After graduating from law school, Starr spent a year at the Office of the Texas Attorney General and then clerked on the Texas Supreme Court for Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit).  

After his clerkship, Starr rejoined the Texas Attorney General’s Office as a Fellow and Assistant Solicitor General.  In 2008, he joined King & Spalding LLC in Austin as an associate.  In 2011 he returned to the Texas Supreme Court as a Staff Attorney for Justice Eva Guzman.  In 2015, he rejoined the Texas Attorney General’s Office for a third time and currently serves as Deputy First Assistant Attorney General, working directly under former judicial nominee Jeff Mateer.

History of the Seat

Starr 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 of the twelve allotted judgeships for the District currently vacant.  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 Starr has been nominated to fill opened on September 22, 2018, when Judge Sidney Fitzwater[2] moved to senior status.  For his part, Starr interviewed for a judicial appointment in early 2017, but was not recommended at that time.[3]  Rather, Starr’s name wasn’t sent to the White House until July 2018, when he interviewed with the White House Counsel’s Office.  Starr was finally nominated on March 11, 2019.

Legal Experience

Starr has worked in three primary legal positions in his career: as a Staff Attorney to Texas Supreme Court Justice Eva Guzman; at the Austin office of King & Spalding; and at the Texas Attorney General’s Office.  While Starr largely avoided controversy in the former two positions, his stints at the Attorney General’s Office have involved him in some of the most potent legal issues currently being litigated.

Litigation

At the Attorney General’s Office, Starr has been active in much of Attorney General Ken Paxton’s strategy of activist litigation.  For example, Starr participated in a suit against the Obama Administration’s guidelines supporting the rights of transgender students.[4]  He also defended Texas’ strict voter ID law against a ruling that it was intended to discriminate against minority voters.[5] 

Testimony

In addition to his litigation work, Starr has frequently testified before the Texas legislature about proposed legislation, representing the views of the Texas Attorney General.  Starr’s testimony on these matters has generally been strongly conservative, regardless of the underlying subject matter of the legislation.  For example, Starr testified that legislation protecting the rights of adoption agencies to refuse to place children with same-sex couples was needed to protect “religious rights of conscience.”[6]  Starr also testified on legislation protecting religious objections to same-sex marriage, and persuaded legislators to drop language narrowing the protections only to actions clergy took “in their official capacity.”[7]  In other testimony, Starr suggested that state lawmakers had the flexibility to punish immigration offenses as state crimes,[8] and urged them to pass laws exempting religious groups from nondiscrimination ordinances on hiring and housing, allowing businesses not to sell to same-sex couples, and allowing government employees not to comply with Supreme Court precedent supporting same-sex marriage.[9]  Furthermore, in another instance, Starr testified that local district attorneys were neglecting enforcing the law on electoral and abortion related crimes.[10]  In response, many local prosecutors wrote that Starr’s testimony was misleading and was part of a “false narrative.”[11]

Writings

In addition to the public testimony Starr has offered in his official capacity, Starr has occasionally written on the law as well.  For example, Starr spoke favorably of Mateer’s ill-fated judicial nomination, stating:

“Jeff Mateer leaves a legacy of service to the State of Texas and will now extend that service to all Americans”[12]

In another article which he authored on behalf of the Texas Attorney General’s Office, Starr spoke on the travel ban cases, arguing that the Constitution “cannot extend to someone who is both an alien and who has not yet been admitted into the country.”[13]  In the article, Starr also suggested that a suit against Trump Administration executive orders against “sanctuary cities” may be meritorious.[14] 

Political Activity

Starr has supported Ted Cruz’s campaigns, donating to him to 2011 and 2016.[15]  In addition, Starr was a volunteer for Gov. Greg Abbott’s campaign in 2014.[16]

Overall Assessment

Starr’s nomination has already been approved by the Senate Judiciary Committee on a party-line vote.  This means that, unless four Republican senators oppose Starr, his nomination will eventually be approved on the Senate floor.  For the reasons noted below, such approval is likely but not certain.

First of all, Trump judicial nominees have generally drawn approval from most Republican senators unless there are any particularly controversial or injudicious actions in their past.  While Starr’s record is strongly conservative, he does not have such actions.  Secondly, while Starr is young, his legal ability is largely beyond debate.

However, Starr’s advocacy and testimony on behalf of the Texas Attorney General’s Office may still draw fire.  For many, “religious conscience” laws are increasingly seen as licenses to discriminate.  As such, Starr’s assertive advocacy on their behalf, and his endorsement of Mateer, may ultimately become an issue.


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

[2] Fitzwater himself was nominated to the Northern District amidst controversy due to his youth and alleged participation in voter suppression efforts.  Fitzwater’s later nomination to the Fifth Circuit was never confirmed.

[3] Id. at 35.

[4] See Daily Signal, Texas Sues Obama Administration Over Transgender Bathroom Directive, Western Free Press, May 26, 2016.

[5] See Paul J. Weber, Judge Again Finds Discrimination in Texas’ Voter ID Law, Salt Lake Tribune, Apr. 10, 2017.

[6] Newstex, Committee Weighs ‘License to Discriminate’ Adoption Bill, Texas Observer, Apr. 16, 2015.

[7] Chuck Lindell, Religious Objections Bill Heads to Senate, Austin American Statesman, May 5, 2015.

[8] Laws Can Be Written to Secure Border: US Attorney, Legal Monitor Worldwide, Dec. 19, 2015.

[9] Chuck Lindell, Senate Panel Weighing ‘Religious Freedom’ Laws, Austin American-Statesman, Feb. 18, 2016.

[10] Emma Platoff, Texas Attorney General Ken Paxton is Seeking More Power This Session to Prosecute Voter Fraud and Abortion-Related Crimes, Texas Tribune, Feb. 4, 2019.

[11] See id.

[12] See Press Release, Office of the Texas Attorney General, Attorney General Paxton Releases Statement on First Assistant Attorney General Jeff Mateer’s Nomination By President Trump to Federal Bench (Sept. 7, 2017).

[13] See Brantley Starr, Executive Power Over Immigration, 22 Tex. Rev. Law & Pol. 283, 285-86 (Winter, 2017).

[14] See id. at 289-93.

[16] See Starr, supra n. 1 at 16.

Judge Peter Phipps – Nominee to the U.S. Court of Appeals for the Third Circuit

The 46-year-old Peter Phipps faced an uncontentious confirmation to the U.S. District Court for the Western District of Pennsylvania last year.  Now, just a few months later, Phipps is up for a seat on the U.S. Court of Appeals for the Third Circuit.

Background

Peter Joseph Phipps was born on April 8, 1973 at Dyess Air Force Base in Abilene, TX.[1]  Phipps attended the University of Dayton, getting a B.A. in History and a B.S. in Physics.[2]  He continued on to the Stanford University Law School, graduating with a J.D. in 1998.  He then joined the Washington D.C. Office of Jones Day (a firm that has sent many alumni to the Trump Administration and the federal bench).[3]

In 2001, Phipps left Jones Day to clerk for Judge R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.[4] 

Phipps was nominated in February 2018 to a seat on the U.S. District Court for the Western District of Pennsylvania.  He was confirmed by voice vote on October 11, 2018, and has served on the federal bench since then.

History of the Seat

Phipps has been nominated to Judge Thomas Vanaskie’s seat on the U.S. Court of Appeals for the Third Circuit.  Vanaskie, a Democrat, was appointed to the U.S. District Court for the Middle District of Pennsyvania by President Bill Clinton in 1994 and to the Third Circuit by President Obama in 2010.

Phipps’ nomination is opposed by Democratic Senator Bob Casey, who argues that Phipps lacks the experience on the bench for a seat on the Court of Appeals.[5] 

Legal Experience

While Phipps’s primary legal occupation has been as a litigator at the Department of Justice, he began his career as an Associate in the Washington D.C. Office of Jones Day, representing corporations in civil litigation.[6]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[7]

As Senior Trial Counsel at the Federal Programs Branch of the Department of Justice, Phipps litigated many contentious cases.  In one case, Phipps defended the U.S. Department of Housing and Urban Development against a class action suit brought by African American plaintiffs alleging racial discrimination in public housing.[8]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[9] 

In another notable case, Phipps defended the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy, which barred individuals engaging in homosexual conduct from serving openly in the armed forces.[10]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[11] 

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[12]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[13]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[14]

Jurisprudence

Phipps has served as a U.S. District Judge on the Western District of Pennsylvania since late October 2018.  In his short time on the bench, Phipps has presided over just one case that has gone to verdict or judgment, a $125,000 jury verdict for a plaintiff in a workplace injury trial.[15]  In other notable opinions, Phipps granted summary judgment against a plaintiff who was injured in a slip-and-fall, finding that there was not enough evidence to support plaintiff’s contention that there was a wet floor on the premises.[16]

Overall Assessment

When Phipps was nominated for the district court, we predicted a painless confirmation due to his relatively apolitical background and strong background.  Notwithstanding Casey’s opposition, there is still little in Phipps’ record to warrant strong opposition to the Third Circuit.  Phipps’ record does not suggest that he is particularly conservative, let alone an activist.  While the White House should have accommodated Casey’s concerns regarding Phipps’ level of experience, the nominee has more judicial experience than five out of the last six nominees selected for the Third Circuit.  As such, I predict a swift, if not entirely painless, confirmation for Phipps to the Third Circuit, and a relatively centrist tenure on the court.


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

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Press Release, Alliance for Justice, Peter Phipps Should Not Be Confirmed to Third Circuit (May 31, 2019).

[6] Id. at 10.

[7] Id. at 11-12.

[8] Thompson v. HUD, No. 95-395 (D. Md.) (Garbis, J.) (Grimm, J.).

[9] See id.

[10] Witt v. United States Air Force, No. 06-5195 (W.D. Wash.) (Leighton, J.).

[11] American Civil Liberties Union of Northern California v. Hargan, No. 16-3539 (N.D. Cal.) (Beeler, M.J.).

[12] See NCAA v. Christie, Nos. 3:12-4947; 3:14-6450 (D.N.J.) (Shipp, J.); Nos. 13-1713,-1714,-1715 (3d Cir.); Nos. 14-4546,-4568,-4569 (3d Cir.) (subsequently en banc); Nos. 13-967; -979; -980, Nos. 16-476,-477 (U.S.).

[13] See id.

[14] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

[15] Powers v. Norfolk Southern Ry. Co., Case No. 2:17-cv-648 (W.D. Pa.).

[16] Wood v. Speedway LLC, Civil Action No. 2:17-cv-1408, 2019 WL 2248671 (W.D. Pa. May 24, 2019).

William Shaw Stickman IV – Nominee to the U.S. District Court for the Western District of Pennsylvania

Sen. Pat Toomey is adept at recommending young male lawyers with bright futures to serve on the Western District of Pennsylvania.  After Judge Peter Phipps and Nicholas Ranjan, he has now recommended William Shaw Stickman IV.  In Stickman’s case, assertive letters to the editor he authored in his youth may cause him difficulty in the confirmation process.

Background

William Shaw Stickman IV was born in Pittsburgh PA in 1979.[1]  Stickman graduated summa cum laude from Duquesne University in 2002 and from Duquesne University Law School in 2005.[2]  He spent a year at the Pittsburgh office of Reed Smith LLP and then clerked for Chief Justice Ralph Cappy on the Pennsylvania Supreme Court.  He then joined the Pittsburgh Office of Del Sole Cavanaugh Stroyd LLC as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Stickman has been nominated for opened on December 6, 2018, with Judge Joy Flowers Conti’s move to senior status.  

Stickman applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Stickman interviewed with Toomey and Casey shortly after but did not start the process with the White House until February 2019.  He was formally nominated on May 13, 2019.

Legal Experience

Stickman has spent entire legal career post clerkship at the Pittsburgh office of Del Sole Cavanaugh Stroyd LLC, handling a litigation practice on both civil and personal injury cases.  Overall, Stickman has litigated six jury trials to verdict.[6]  Notably, Stickman (with Third Circuit Judge Stephanos Bibas as his co-counsel) represented the mother of Ryan Maseth, a Pittsburgh-native soldier who was electrocuted in an Iraqi military base.[7]  Stickman’s case against the military contractor responsible for the barracks was dismissed by Judge Nora Barry Fischer,[8] but was reinstated by the Third Circuit.[9]  The case was ultimately settled.

In another matter, Stickman served as Counsel for the Pennsylvania Reapportionment Commission in defending redistricting plans developed after the 2010 census.[10] 

Political Activity

Stickman is a Republican and has served on the Alleghany County Republican Committee from 2014 to 2019.[11]  He also ran for the Alleghany County Council as a college student in 2001, losing the election to Democratic incumbent Wayne Fontana.[12]  During the election, the Pittsburgh Post-Gazette endorsed Fontana, describing Stickman as “earnest and diligent” but noting his youth and that he “lacks an adequate grasp of specific issues facing the county.”[13]

Writings

In the early 2000s, Stickman authored a number of Letters to the Editor for the Pittsburgh Post Gazette.  Three of these letters are particularly notable for revealing Stickman’s views on key social issues.

Abortion

During the 2004 election, Stickman wrote a response to another letter comparing the number of abortions in the U.S. to the number of deaths in Iraq.  In the letter, Stickman describes the abortion industry as “grotesque,” stating that “since Roe vs. Wade more than 39 million babies have been killed by abortion.”[14]  Stickman also criticizes the comparison between abortion and the Iraq war, stating:

“To argue that there is moral equivalence between the accidental deaths of Iraqi civilians while liberating them from a murderous tyrant and the intentional deaths of many millions of babies is specious at best.”[15]

Gay Rights

In 2003, shortly after the Supreme Court struck down anti-sodomy laws in its Lawrence v. Texas decision, Stickman wrote a letter defending the disapproval and anti-LGBT views of Sen. Rick Santorum.[16]  In the letter, Stickman describes gay rights groups criticizing Santorum as “leftist sharks” and states:

“Even if the senator did equate homosexual intercourse with adultery, bigamy and incest, isn’t that his prerogative?  Are we and the leaders we elect no longer allowed to disagree with the activities of certain groups?”[17] 

Anti-Catholic Bias

In a 2002 letter, Stickman criticized the Post-Gazette’s coverage of sexual abuse cases involving Catholic priests.[18]  Stickman suggested that the coverage sensationalized the scandal and was motivated by anti-Catholic prejudice, comparing it to the Ku Klux Klan burning crosses to intimidate his Catholic grandmother.[19]  Stickman also alludes to the campaign against anti-Muslim bigotry after the September 11 attacks, asking: “is anti-Catholicism the last acceptable prejudice in our society?”[20]  Stickman notes that only 1.8 percent of Catholic priests have been implicated in scandal, noting:

“…the PG [Post-Gazette] should apologize to the 98.2 percent of priests who have suffered due to one-sided coverage.”[21]

Overall Assessment

The 40-year-old Stickman is young, conservative, and seems to have the support of his home state senators (even Democratic Sen. Bob Casey).  Furthermore, his career as a lawyer has not attracted much controversy, and he has accrued the requisite level of experience for a federal trial judge.  As such, his confirmation seems fairly assured.  

However, senators are likely to raise concerns about Stickman’s letters to the editor, suggesting that such letters do not reflect an appropriate judicial temperament.  Furthermore, Stickman’s beliefs, as divined from those letters, can be read to suggest that abortion is equivalent to murder, that homosexuality is equivalent to incest, that criticism of the Catholic church for its role in covering up child abuse is motivated solely by anti-Catholic animus, and that criticism of homophobia is an attempt to suppress speech.  While a nominee’s personal views shouldn’t necessarily dictate their judicial decisions, the boundary is nonetheless appropriate for senators to explore.

Of course, as with any nominee whose previous writings come under scrutiny, the key question is whether the nominee maintains the same views today or if his views have evolved with time.  That will be the question that must be explored regarding Stickman.


[1] Sen. Comm. on the Judiciary, 115th Cong., William S. Stickman IV: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 15.

[7] See Joe Mandak, Judge: No Iraqi Law in Pa. Soldier’s Shower Death, Associated Press, Oct. 3, 2011.

[8] Joe Mandak, Judge Nixes Pa. Soldier’s Iraq Electrocution Suit, Associated Press, July 16, 2012.

[9] Joe Mandak, Suit Over Pa. Soldier’s Death  in Iraq is Revived, Associated Press, Aug. 1, 2013.

[10] See Angela Couloumbis, Pa. Justices Hear Arguments Over New Legislative Plans, Philadelphia Inquirer, Sept. 13, 2012.

[11] See Stickman, supra n. 1 at 13-14.

[12] Id. at 13.

[13] Editorial, Fontana for District 12; More a Worker than a Reformer on County Council, Pittsburgh Post-Gazette, Oct. 26, 2001.

[14] See William S. Stickman IV, Accidental Deaths Vs. Intentional Deaths: No Comparison, Pittsburgh Post-Gazette, Oct. 29, 2004.

[15] Id.

[16] William S. Stickman IV, Free to Disagree, Pittsburgh Post-Gazette, Apr. 30, 2003.

[17] See id. 

[18] William Stickman, An Acceptable Prejudice?, Pittsburgh Post-Gazette, Mar. 29, 2002.

[19] See id.

[20] Id.

[21] Id.