Justin Walker – Nominee to the U.S. District Court for the Western District of Kentucky

The 2018 confirmation of Justice Brett Kavanaugh left its scars upon the nation, as acknowledged by the Justice’s supporters and detractors.  During the battle, one of Kavanaugh’s top surrogates in the media was a former clerk and law professor named Justin Walker.  Now, Walker has been tapped for the federal bench in Kentucky.  

Background

A native of the Bluegrass state, Justin Reed Walker was born in 1982 in Louisville.  He attended Duke University and Harvard Law School, getting his J.D. in 2009.[1]  After, Walker worked as a summer associate at Gibson Dunn & Crutcher LLP in Washington D.C.  He was hired by the firm as an Associate upon graduation.[2]  Walker left the firm on hiatus to clerk for Justice Brett Kavanaugh (when he was on the D.C. Circuit) and then for Justice Anthony Kennedy.[3]

In 2013, Walker returned to Louisville to practice law on his own.  He left in 2019 to join Dinsmore & Scholl LLP as a Partner of Counsel.  Additionally, since 2015, Walker has been a Professor with the University of Louisville Brandeis School of Law.

History of the Seat

Walker has been nominated for a vacancy on the U.S. District Court for the Western District of Kentucky.  This seat opened on June 9, 2019, when Judge Joseph McKinley moves to senior status.  In June 2018, Walker expressed his interest in a judgeship with of Sen. McConnell.[4]  In March 2019, Walker began the vetting process with the White House and was nominated in June 2019.

Legal Experience

Unusually for a federal nominee, Walker’s limited litigation experience almost entirely consists of practicing on his own.  His stints at firms are limited to a short time as an Associate at Gibson Dunn (where he represented Philip Morris in a RICO action with the federal government)[5] and his current position at Dinsmore & Scholl LLP.

Most of his time as a solo practitioner, Walker was a full time law professor.  As such, by his own account, Walker has not tried a single case as primary counsel.[6]  Additionally, he has served as associate counsel in only a single criminal case.[7] 

Writings

As a law professor, Walker has been fairly vocal on legal and policy issues.  In fact, Walker was an active writer even as a college student, where he commented on national politics.

Kavanaugh Confirmation

During the campaign to confirm Brett Kavanaugh in 2018, Walker was one of his former boss’ most prominent surrogates on tv and in the media.  In some of his appearances, Walker argued that Kavanaugh would comply with judicial precedents such as Roe v. Wade.[8]  In others, Walker argued that Kavanaugh was a solid conservative whose vote on important issues was beyond question.[9]  Furthermore, after the allegations by Dr. Blasey Ford were released, Walker questioned the process around the disclosure of the allegations and the credibility of the allegations themselves.[10]

FBI Independence

In July 2018, Walker authored an article criticizing calls for independence in the Federal Bureau of Investigation (FBI), arguing that similar to the military, civilian control of the FBI was necessary to prevent civil liberties violations.[11]  In the article, Walker chronicles the history of civilian control of the military as well as abuses committed by the FBI, noting that the agency engaged in “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African Americans.”[12]  In conclusion Walker argues: “…the FBI Director should not think of himself as the Nation’s Protector; instead, he must think of himself as an agent of the President.”[13] 

Political Reporting

Notably, as a college student, Walker spent two months crossing the country trailing Democratic presidential candidates during the 2004 election and writing missives from his experiences.[14]  In his posts, Walker discusses the state of the race, the relative merits of the candidates he covers, and his views on their ultimate match-up against President Bush.  For example, in one post, Walker describes an incident in which Rep. Dennis Kucinich visited a homeless man sleeping in a garage.[15]  In another, he suggests that Howard Dean “sabotaged his own campaign with a loose temper and a glib mouth.”[16] 

Interestingly, some of his posts display a broader critique of the Democratic Party.  For example, in one post describing the liberal town of Yellow Springs, Ohio, Walker calls it “a haven for hippies who never grew upm”[17]  noting that “every person is unusual” in the town.[18]  At the same time, Walker criticizes the town for lacking “what liberals celebrate: tolerance, diversity, and change.”[19]

Similarly, in a 2002 article provocatively titled “Worthless Democrats”, Walker excoriates the party for not taking a position on the upcoming Iraq War, stating:

“[Democrats] are weak leaders who speak softly and carry a rubber stamp.  They neither agree with the president, nor oppose him.”[20]

Overall Assessment

Walker has accomplished much in his thirty-seven years.  Given his obvious intellect, youth, and conservative bona fides, there’s little doubt why Republicans are working to advance him onto the bench.  However, Walker faces a couple of obstacles to confirmation.

First, Walker has been nominated for a trial court position.  A federal trial court judge is primarily focused on case management, sentencing, and motions practice, all areas where Walker, by his own acknowledgement, has little experience.  Not only does Walker fall short of the American Bar Association’s recommendation of 12 years of practice, he has only tried a single case (and that too as associate counsel).  Furthermore, he has handled only one expert deposition and has primarily served as a full time professor.  As such, Walker’s legal ability, while impressive, seems ill equipped for a trial level position.

Second, Walker’s candidacy may relitigate some of the most contentious portions of the Kavanaugh confirmation.  With Kavanaugh insulated by lifetime tenure, his opponents may choose to question Walker on the bases of his defense of the nominee and his dismissal of Dr. Ford’s narrative.  

Ultimately, Walker is still favored for confirmation (he has, after all, Mitch McConnell in his corner).  But, one should not discount the chance that some Republicans may find voting for him a bridge too far.


[1] Sen. Comm. on the Judiciary, 116th Cong., Justin Walker: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] Id. at 49-50.

[5] See United States v. Philip Morris USA Inc., 561 U.S. 1025 (2010).

[6] See Walker, supra n. 1 at 32-33.

[7] Id. See also United States v. Todd, 3:17-cr-77 (W.D. Ky.).

[8] See, e.g., Fox News @ Night, July 17, 2018, Fox News Network.

[9] See Ryan Lovelace, Ex-Clerk to Kavanaugh: Potential Pick “Would Not Go Wobbly” on Conservatives, Nat’l Law Journal, June 29, 2018, https://www.law.com/nationallawjournal/2018/06/29/ex-clerk-to-kavanaugh-potential-pick-would-not-go-wobbly-on-conservatives/.  

[10] Evening Edit, Sept. 28, 2018.

[11] See Justin Walker, FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military, 86 Geo. Wash. L. Rev. 1012 (July 2018).

[12] See id. at 1041.

[13] Id. at 1070.

[15] Justin Walker, Compassion for a Homeless Man, Justin Walker’s Campaign Diary, Jan. 10, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_compassion.html.  

[16] Justin Walker, Who Sabotaged Howard Dean’s Campaign, Feb. 4, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_deancamp.html.  

[17] Justin Walker, Closed-Minded Liberals, Feb. 18, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_yellowsprings.html.  

[18] Id.

[19] Id.

[20] Justin Walker, Worthless Democrats, The Duke Chronicle, Sept. 26, 2002, https://issuu.com/dukechronicleprintarchives/docs/the_chronicle_2002-09-26_sm.  

Charles Eskridge – Nominee to the U.S. District Court for the Southern District of Texas

A former Supreme Court clerk and a longtime judge picker in Texas, Charles Eskridge now has any opportunity to join the bench he selected many of the judges for.

Background

Eskridge was born in Cleveland, OH in 1963.  Eskridge graduated from Trinity University in 1985 and received a J.D. summa cum laude from Pepperdine University School of Law in 1990.[1]  After graduating, Eskridge clerked for Judge Charles Clark on the U.S. Court of Appeals for the Fifth Circuit and then for Justice Byron White on the U.S. Supreme Court.[2]  After his Supreme Court clerkship, Eskridge spent three years as a Special Assistant to Iran-U.S. Claims Tribunal Arbitrator Howard Holtzmann.[3] 

In 1994, Eskridge joined Susman Godfrey LLP in Houston as an Associate.[4]  He became a Partner in 1997.  In 2015, Eskridge moved to the Houston Office of Quinn Emanuel Urquhart & Sullivan, LLP as a Partner, where he currently practices.

History of the Seat

Eskridge has been nominated to fill a vacancy opened by Judge Gray Hampton Miller’s move to senior status on December 9, 2018.  However, he actually applied and interviewed with the Federal Judicial Evaluation Committee (FJEC) created by Texas Senators John Cornyn and Ted Cruz for a previous vacancy created by Judge Melinda Harmon’s move to senior status.[5]  However, upon determining that he could not commute to the judgeship based in Galveston, Eskridge chose not to pursue that nomination, which went to Texas Supreme Court Justice Jeff Brown.  Instead, Eskridge was shortlisted for the next Houston-based vacancy that would open.[6]  When Miller announced his move to senior status, Eskridge was recommended to the White House and was nominated on May 13, 2019.

Legal Experience

Eskridge’s career in private practice was primarily at the firm of Susman Godfrey LLP, where he worked closely with Steve Susman, a Democrat and fellow member of the FJEC.[7]  At the firm, Eskridge notably represented death row inmate Anthony Graves in seeking to get the prosecutor who convicted him, Charles J. Sebesta, disbarred for prosecutorial misconduct.[8]  Eskridge’s representation led to Sebesta’s disbarment for hiding evidence of Graves’ innocence.[9]  It also led to Eskridge’s receipt of awards from the Texas Defender Service and the Texas Fair Defense Project.  In another case, Eskridge also represented Caldera, Inc in an antitrust claim against Microsoft.[10]

Since 2015, Eskridge has been a Partner with Quinn Emanuel, where he represented Vantage Deepwater Company, a deepwater driller, in a contract dispute with Petrobras America, Inc. regarding the operation of deepwater drilling rigs.[11]

Political Activity

Eskridge has been very active in the Texas Republican Party for many years, including volunteering for the campaigns of Cornyn, Cruz, and former Senator Kay Bailey Hutchison.[12]  In addition, Eskridge was a prolific donor to Republicans, giving over $100,000 since 2000.[13]

Furthermore, Eskridge was a member of the FJEC set up by Cornyn and Cruz from 2013 to 2018, during which time the Committee processed and approved over fifteen nominations to Texas federal courts.

Overall Assessment

Going back to his Supreme Court clerkship, his extensive litigation experience, and his impressive academic record, Eskridge has strong qualifications for the federal bench.  As such, few would disagree that Eskridge possesses the base level of intellectual ability to be a federal judge.  Some may even argue that Eskridge is more qualified to serve on the Fifth Circuit than some of the other nominees the Administration has extended to that court.

Eskridge may draw some opposition based on his partisan record, as Eskridge has donated more money than almost every other judicial candidate put forward by the Trump Administration.  As such, some may argue that Eskridge is seeking to “purchase” a judicial seat.  However, such arguments ignore the fact that, even independent of his contributions, Eskridge is one of the most qualified nominees the Administration has put forward.  Furthermore, his legal record is not that of an ideologue, as he has worked closely with Texas Democrats and has litigated in favor of accountability for prosecutors who violate the rights of others.  As such, Eskridge should, notwithstanding his donation records, be considered a consensus nominee.


[1] Sen. Comm. on the Judiciary, 116th Cong., Charles Eskridge, Questionnaire for Judicial Nominees 1.

[2] Among Eskridge’s clerk class, five are already federal judges: Jeffrey Meyer (Blackmun); Jeffrey Sutton (Scalia); Daniel Collins (Scalia); Greg Katsas (Thomas); Greg Maggs (Thomas).

[3] Id. at 2.

[4] See id.

[5] Id. at 48.

[6] Id.

[7] PR Newswire, Steve Susman of Susman Godfrey L.L.P. Speaks to a Group of Local Attorneys About Restoring a Fully Functioning Judiciary (Sept. 12, 2012). 

[8] See Michael Graczyk, Texas Prosecutor of Death-Row Inmate Loses Law License, Associated Press, June 12, 2015.

[9] See id.

[10] Caldera, Inc. v. Microsoft Corp.,  87 F. Supp. 2d 124 (D. Utah 1999).

[11] In re Arbitration Between Vantage Deepwater Co. v. Petrobras America Inc., Case No. 01-15-0004-8503 (International Center for Dispute Resolution).

[12] Id. at 20.

Justice Jeff Brown – Nominee to the U.S. District Court for the Southern District of Texas

Being on a state supreme court is a pretty amazing job.  As the highest authority on state laws, you can essentially shape the jurisprudence of your state’s code.  That Justice Jeff Brown is giving that up for a federal trial court seat speaks to the prestige that comes with a lifetime tenure.

Background

Jeffrey Vincent Brown was born in Dallas on March 27, 1970.  Brown graduated from the University of Texas at Austin in 1992 and received a J.D. magna cum laude from the University of Houston Law Center in 1995.  After graduating, Brown spent a year as a briefing attorney for the Texas Supreme Court before joining the Houston office of Baker Botts LLP.[1]

In 2001, the 30-year-old Brown was appointed by Gov. Rick Perry to the 55th District Court.[2]  Brown was elected to a full term in 2002 and again in 2006.[3]  In 2007, Perry promoted Brown to the Fourteenth Court of Appeals based in Houston, to which he won election to in 2008 and 2012.[4]

In 2013, Brown was appointed by Perry to serve out the unexpired term of Justice Nathan Hecht, who was elevated to be Chief Justice.  Brown was elected in 2014 and re-elected in 2018, and currently serves as a Supreme Court Justice.

History of the Seat

Brown has been nominated to fill a vacancy opened by Judge Melinda Harmon’s move to senior status on March 31, 2018.  In April 2018, Brown interviewed with the Federal Judicial Evaluation Committee (FJEC) created by Texas Senators John Cornyn and Ted Cruz.[5]  Brown then interviewed with the Senators and the White House before being nominated on March 11, 2019.

Legal Experience

Brown’s career in private practice was a relatively short five year stint at Baker Botts LLP (compared to his 18 year career as a judge).  At the firm, Brown worked a civil trial litigation docket, trying fourteen cases over his five years there.[6]  In particular, Brown represented defendants in a number of trials of personal injury matters, generally relating to automobile injury cases.[7]

Jurisprudence

Brown has been on the state bench since 2001, and on the Texas Supreme Court since 2013.  In the latter role, Brown sits on the highest civil court in the state of Texas and has an opportunity to weigh in on issues of Texas civil law.  

On the Texas Supreme Court, Brown established a conservative record.  For example, in a case involving same sex marriage in Texas, Brown sharply criticized a lawyer for a same sex couple for trying to “cynically manipulating” Texas law in an effort to get his clients a marriage license.[8]  In another case, Brown held for a unanimous Supreme Court that restrictive covenants in title deeds requiring homes to be used for a “residential purpose” could not restrict short-term rentals through AirB&B and similar sites.[9] 

Writings & Speeches

Outside of his judicial rulings, Brown has both spoken and written on the law.

Role of a Judge

In 2007, as a trial court judge, Brown authored an article comparing the judicial philosophies of Chief Justice Earl Warren, who focused on ensuring fundamental fairness and justice, and Justice John Marshall Harlan, who held a more limited and restrained view of a judge’s role.[10]  In the article, Brown endorses Harlan as the ideal judge, criticizing in particular Warren’s rulings in Miranda v. Arizona and in Reynolds v. Sims.[11]

Abortion Speech

In January 2016, Brown addressed the Northeast Tarrant County Tea Party regarding the issue of abortion rights in Texas.  Specifically, Brown addressed Texas H.B. 3994, which amended judicial bypass provisions for minor abortions in Texas.[12]  In his speech, he criticized Supreme Court rulings on abortion rights, specifically as they relate to judicial bypass provisions, noting:

“Now, you may be wondering where any of those words [relating to judicial bypasses] appear in the United States Constitution.  They don’t, but…the court at that time, and, to a large extent, still today, finds things in the Constitution that aren’t there.”[13]

He went on to criticize organizations such as Jane’s Due Process, which assist minors in obtaining judicial bypasses, for engaging in “forum shopping.”[14]

Political Activity

Brown has been active in the Texas Republican Party for many years, including volunteering for the campaigns of Cornyn, Abbott, and President George W. Bush.[15]  In addition, Brown was a Republican candidate for judge in each of his campaigns (Texas elects judges on a partisan ballot).

Overall Assessment

Brown has experience on all levels of the Texas court system and looks poised for confirmation to the federal bench.  Given his long tenure as a judge, few can question his legal ability or intelligence.  However, critics may argue that Brown’s criticism of Roe and its progeny, may lead to his disregarding of its dictates.  Given the current majority, it’s unlikely that such questions will block his confirmation.


[1] Sen. Comm. on the Judiciary 115th Cong., Jeffrey Vincent Brown, Questionnaire for Judicial Nominees 1.

[2] See id. at 27.

[3] See id.

[4] See id.

[5] Id. at 61.

[6] See id. at 51.

[7] See, e.g., Bonnie Allen v. Ed King and Charles King d/b/a Chuck’s Water Well Srv., No. 97-06-02278, 359th Dist. Ct., Montgomery Cnty., Tex. (tried Oct. 1998); Esteban Velasco v. Irene Stern d/b/a Stella Ranch, No. C95-14, Waller Cnty. Ct. of Law No. 1, Waller Cnty., Tex. (tried Oct. 1998); Eldrige Gee v. Galina Bencowitz, No. 95-CV-0447, 56th Dist. Ct., Galveston Cnty., Tex. (tried Jan. 1999). 

[8] See Chuck Lindell, Texas High Court Rejects Bid to Invalidate Early Gay Union, Austin American-Statesman, Apr. 16, 2016.

[9] See Emma Platoff, Texas Supreme Court Sides With Short-Term Renters, Likely Bolstering State’s Fight Against Austin Ordinance, Texas Tribune, May 25, 2018.

[10] Judge Jeff Brown, The Platonic Guardian and the Lawyer’s Judge: Contrasting the Judicial Philosophies of Earl Warren and John M. Harlan, 44 Hous. L. Rev. 253 (Summer 2007).

[11] Id. at 265-276.

[12] See Justice Brown on Recent Abortion Ruling, https://www.youtube.com/watch?v=PsNPbzKcRB0, Jan. 12, 2016 (last visited July 26, 2019).

[13] Id.

[14] Id.

[15] Id. at 48-49.

Judge Ada Brown – Nominee to the U.S. District Court for the Northern District of Texas

Judge Ada Brown is only the second African American woman appointed by the Trump Administration to the federal bench, and would be the first African American woman on the Northern District of Texas.

Background

Ada Elene Brown was born in 1974 in Oklahoma City.  She received a Bachelor of Arts from Spellman College in 1996 and a J.D. from Emory University School of Law in 1999.[1] After graduating from law school, Brown joined the Dallas County District Attorney’s Office, working first as a Family Violence Advocate and then as an Assistant District Attorney.

In 2005, Brown was appointed to be a trial court judge in Dallas County.  She left this position in 2007 to be a Litigation Attorney at McKool Smith P.C. in Dallas.[2] 

In 2013, Gov. Rick Perry appointed Brown to the Fifth District Court of Appeals based in Dallas, where Brown currently serves.[3]

History of the Seat

Brown 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 four of the twelve allotted judgeships for the District currently vacant.

The vacancy Brown has been nominated to fill opened on July 3, 2013, when Judge Terry Means moved to senior status, making it one of the oldest vacancies in the country.  On March 15, 2016, Obama nominated Judge Irma Ramirez, a federal magistrate judge, to fill the vacancy.[4]  While Judge Ramirez had the support of her home state senators and received a hearing in September 2016, her nomination never moved to the floor and thus was not confirmed.  She was not renominated to the Court by President Trump.

In April 2018, Brown interviewed with the Federal Judicial Evaluation Committee (FJEC) set up by Senators Cornyn and Cruz.  Upon Cornyn and Cruz’s recommendation, Brown was interviewed by the White House in July 2018, and officially nominated on March 26, 2019.

Legal Experience

Brown has worked both as a state prosecutor and in private practice at the firm of McKool Smith.  In the former position, Brown focused on criminal matters while handling an exclusively civil docket at the latter.[5]  Over the course of her career, Brown has tried over 200 cases, including approximately 100 jury trials.[6] 

In addition to her role as an attorney, Brown has served on the Texas Commission on Law Enforcement Standards and Education, which governs and supervises state law enforcement officials.  While a Commissioner, Brown voted to uphold the firing of Edwin Lang, a state trooper accused of falsifying DWI reports.[7]  She also voted to examine state trooper hiring policies after receiving evidence that officers who had failed polygraph tests were nonetheless hired.[8]

Jurisprudence

Brown served as a trial judge in Dallas from 2005 to 2007 and as an appellate judge since 2013.  In this role, Brown has written approximately 500 opinions as part of over 1500 cases.  Of Brown’s more prominent cases, she held that a defendant’s rights were violated when a trial judge denied a criminal defense attorney the opportunity to question prosecutors in an open hearing regarding potential Brady violations.[9] 

As a judge, Brown has shown a willingness to affirm summary dismissals of cases, even dissenting from opinions where colleagues found otherwise.  For example, in one case, the Court of Appeals affirmed the denial of dismissal for a libel case where the plaintiff had been accused of committing welfare fraud.[10]  However, Brown dissented, arguing that dismissal was appropriate as the article was satirical and thus not false, noting: “the substance of the article, especially viewed within its structure and tone, persuades me its primary purpose was to critique the food-stamps benefits system.”[11]  In another case, Brown wrote for the court in reversing a jury verdict for plaintiff after an electrical fire at their facility, holding that the evidence was insufficient to show that defendant’s negligence had caused the fire.[12]

Political Activity

Brown has been elected as a Republican to the state bench.  In addition, she has volunteered with the Dallas GOP and for local Republicans.[13]

Overall Assessment

The Northern District of Texas currently has only one African American judge serving actively on the court: Judge Sam Lindsay.  Brown is strongly favored to join Lindsay on the bench, given her youth, conservative credentials, and judicial experience.


[1] Sen. Comm. on the Judiciary, 116th Cong., Ada Brown: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] States News Service, Gov. Perry Appoints Brown As Justice Of 5th Court of Appeals, States News Service, Sept. 3, 2013. 

[4] See supra n. 1.

[5] See Brown, supra n. 1 at 37-38.

[6] See id. at 38.

[7] Mike Ward, Firing of Star Trooper Upheld, Austin American-Statesman, July 16, 2010.

[8] Mike Ward, Some DPS Troopers Failed Polygraph Test, Austin American-Statesman, Feb. 20, 2009.

[9] Brantley v. State, No. 05-13-01060-CR, 2015 WL 846749 (Tex. App. Dallas Feb. 26, 2016 no pet.).

[10] D. Magazine Partners, L.P. v. Rosenthal, 475 S.W.3d 470 (Tex. App. Dallas 2015).

[11] See id. at 492 (Brown, J., dissenting).

[12] Oncor Elec. Delivery Co. LLC v. Southern Foods Group, LLC., 444 S.W.3d 699 (Tex. App. Dallas 2014).

[13] See Brown, supra n. 1 at 36.

John Kness – Nominee to the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

John Kness has had a varied career, including as a musician and in law enforcement.  Now, Kness hopes to add “judge” to his resume.

Background

A native Illinoisan, John Fitzgerald Kness was born in Chicago in 1969.  Kness graduated from Northwestern in 1991 and then spent seven years as a musician and two years as a Patrol Officer in Oak Park, Illinois, before matriculating at Northwestern Law.[1]

After graduating, Kness rapidly switched jobs, spending a year with the Chicago office of Jenner & Block, a year clerking for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit, a year at Winston & Strawn, and then a year at Tabet DiVito & Rothstein in Chicago.[2] 

In 2007, Kness returned to Winston & Strawn, working as an Associate for two years before becoming a federal prosecutor in the Northern District of Illinois.[3]  In 2016, he left that role when he was hired (by a narrow 4-3 margin) to be the first in-house attorney at the College of DuPage.[4]  He currently holds that position.

History of the Seat

Kness has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on February 17, 2018, when Judge Samuel Der-Yeghiayan moved to senior status.  

In early 2018, Kness was contacted by the White House to gauge his interest in a federal judgeship.[5]  He subsequently interviewed with the White House and was tentatively selected as a nominee in June 2018.  In August 2018, he applied with a screening committee set up by Sens. Dick Durbin and Tammy Duckworth, both Democrats.  Kness was nominated with the agreement of the senators in June 2019.

Legal Career

Kness has spent his legal career approximately evenly divided between private practice and criminal prosecution.  In the former, Kness primarily worked in general litigation, while in the latter, Kness worked exclusively on criminal prosecutions.  Over the course of his legal career, Kness handled seven jury and one bench trials, all criminal.[6]

Notably, Kness prosecuted Hasan and Jonas Edmonds, cousins who sought to join ISIL in Syria and commit acts of terrorism.[7]  He was able to secure long sentences against both defendants.[8]  In other matters, Kness also prosecuted eight defendants who had engaged in the trading, production, and/or distribution of child pornography.[9]

Political Activity

Kness has been a longtime member of both the Federalist Society and the National Rifle Association, suggesting a conservative ideology.[10]  His only contribution of record is a $1000 donation to Rudolph Giuliani’s campaign in 2008.[11]

Overall Assessment

Overall, Kness’ background reveals little that should trouble his confirmation.  Given the support offered by Durbin and Duckworth, Kness will likely be confirmed without too much hassle.


[1] Sen. Comm. on the Judiciary, 116th Cong., John F. Kness: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Robert Sanchez, COD Votes to Hire In-House Attorney, Chicago Daily Herald, Sept. 16, 2016.

[5] See Kness, supra n. 1 at 23-24.

[6] See id. at 13.

[7] See U.S. Fed. News, 2 Illinois Cousins Sentenced to Decades-Long Prison Terms For Conspiring to Provide Material Support to a Foreign Terrorist Organization – ISIL, Sept. 20, 2016. 

[8] See id.

[9] See States News Service, Eight Self-Identified “Boy Lovers” Sentenced to Federal Prison For Sexual Exploitation Crimes After FBI Investigation, Oct. 15, 2012.

[10] See Kness, supra n.1 at 5.

David Barlow – Nominee to the U.S. District Court for the District of Utah

At first glance, the Trump Administration’s appointment of David Barlow, an Obama-era U.S. Attorney, to the federal bench may seem odd.  However, as Barlow is a conservative Republican, his nomination speaks more to the Obama Administration’s approach to appointments than to Trump’s.

Background

David Bruce Barlow was born in 1971 in Provo, UT.  Barlow attended Brigham Young University, graduating summa cum laude in 1995.  He then received his J.D. from Yale Law School in 1998.[1]

After law school, Barlow clerked for Judge Peter Dorsey in the U.S. District Court for the District of Connecticut and then joined Lord Bissell & Brook in Chicago as an Associate.[2]  In 2000, Barlow moved to Sidley Austin in Chicago, where he became a partner in 2006.

In 2011, the newly elected Sen. Mike Lee asked Barlow to move to D.C. as his Chief Counsel.[3]  Shortly after, President Obama chose Barlow to be U.S. Attorney for the District of Utah.  The pick was controversial, largely because Obama bypassed the recommendations of several Democrats from U.S. Rep. Jim Matheson to name Barlow, and because Barlow had no experience with criminal law.[4]  Barlow left the U.S. Attorney’s Office in 2014 to rejoin Sidley Austin as a Partner.

In 2016, Barlow applied to be a judge on the Utah Court of Appeals.  While he was selected as a finalist for the seat, he was not picked by Gov. Gary Herbert, who chose Judge David Mortensen and attorney Jill Pohlman instead.[5]

In 2017, Barlow joined WalMart as Vice President of Compliance and, in 2018, returned to Utah to be a Partner at Dorsey & Whitney LLP, where he serves currently.

History of the Seat

Barlow has been nominated for a vacancy on the U.S. District Court for the District of Utah.  This seat was opened by Judge Clark Waddoups’ move to senior status on January 31, 2019.  He was directly contacted by Lee and the White House in early 2019 to gauge his interest in the judgeship and was nominated in May after an unusually swift vetting process.

Legal Experience

Barlow’s legal career can be divided into two halves for analysis: his time as a U.S. Attorney; and his work in private practice.

U.S. Attorney

From 2011 to 2014, Barlow served as U.S. Attorney for the District of Utah, supervising the federal prosecutor’s office on behalf of Attorney General Eric Holder.  As U.S. Attorney, Barlow led his office in a series of high profile prosecutions, including securing convictions against members of the Tongan Crip gang.[6]

However, Barlow’s tenure was not without controversy.  Notably, Barlow’s office was pushed to recuse itself from investigating Utah Attorney General John Swallow in favor of the DOJ Public Integrity Division.[7]  Additionally, Barlow’s office was sharply criticized by Judge Waddoups in a different case for their conduct, with the judge stating that prosecutors had failed to “conform their own conduct to the Constitution, the applicable ethical standards, rules and statutes.”[8]  Furthermore, Barlow’s office was criticized for settling criminal charges based on the Crandall Canyon Mine collapsed for two misdemeanor pleas and a $500,000 fine.[9] 

Private Practice

From 1998 to 2010 and since 2014, Barlow has worked in private practice, largely focused on complex civil actions.  Notably, Barlow represented the drug manufacturer AstraZeneca in defending against actions filed against it based on the drug Seroquel, which was alleged to cause diabetes.[10]  The action eventually ended with a jury verdict in AstraZeneca’s favor.  In another matter, Barlow represented General Electric (GE) in defending against lawsuits suggesting that asbestos exposure had caused plaintiffs to develop mesothelioma.[11]

Political Activity

Barlow is a Republican and was a supporter of Lee in his campaigns.[12]

Overall Assessment

Barlow comes to the confirmation process with extensive experience with both civil and criminal litigation.  Furthermore, Barlow’s work in the Obama Administration and his enthusiastic endorsement of Loretta Lynch to be Attorney General in 2015 may blunt charges that he is a doctrinaire conservative.  As such, while Barlow may draw questions regarding his tenure as a U.S. Attorney, he should be able to avoid the controversy drawn by previous Utah nominee Howard Nielson.


[1] Sen. Comm. on the Judiciary, 115th Cong., David B. Barlow Jr.: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Matt Canham, Lee Picks Top Lobbyist to Lead Its Staff, Salt Lake Tribune, Nov. 11, 2010.

[4] See Matt Canham, Obama Picks Republican Barlow As U.S. Attorney For Utah, Salt Lake Tribune, Aug. 4, 2011.

[5] Nominees Announced For Two Utah Court of Appeals Vacancies, Salt Lake Tribune, Mar. 29, 2016.

[6] Jeffrey Rosen, Conscience of a Conservative, N.Y. Times, Sept. 9, 2007, http://www.nytimes.com/2007/09/09/magazine/09rosen.html.  

[7] Dennis Romboy, U.S. Attorney For Utah Removed From Swallow Investigation, Deseret Morning News, May 6, 2013.

[8] Tom Harvey, How Rick Koerber Beat Federal Charges Alleging a Ponzi Scheme, Salt Lake Tribune, Aug. 25, 2014 (quoting Judge Clark Waddoups).

[9] Mike Gorrell, Crandall Canyon: Fines Don’t Satisfy Families of Mine Disaster Victims, Salt Lake Tribune, Mar. 11, 2012.

[10] Baker v. AstraZeneca Pharms. LP, MIDL 1099 07 MT 274 (N.J. Super. Ct.).

[11] In re Asbestos Litig., 77-C-ASB-2 (Del. Super. Ct.).

[12] See Barlow, supra n. 1 at 17.

Judge Halil Ozerden – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Frequently reversed? A faux conservative? Judge Halil “Sul” Ozerden is getting hit hard from the right as a nominee to the Fifth Circuit.  As he is not guaranteed support from Democrats, it is an open question whether Ozerden can be confirmed.  However, he does bring a significant amount of judicial experience as a nominee.

Background

Halil Suleyman Ozerden was born in Hattiesburg, MS on December 5, 1966, the son of Turkish immigrants.  Ozerden graduated from the Georgetown University School of Foreign Service in 1989 and then spent six years as a fighter pilot in the U.S. Navy.  Ozerden then attended Stanford Law, graduating in 1998.

After graduating, Ozerden clerked for Judge Eldon Fallon on the U.S. District Court for the Eastern District of Louisiana and then joined the Gulfport firm, Dukes, Dukes, Keating & Faneca, P.A. as an Associate.  In 2003, Ozerden became a Partner at the firm.

In 2006, Ozerden, then only 39, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Southern District of Mississippi vacated by Judge David Bramlette.  Ozerden was confirmed unanimously by the Senate on April 24, 2007.  He serves in that capacity today.

History of the Seat

Ozerden has been nominated for a Mississippi seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on October 3, 2017 with Judge E. Grady Jolly’s move to senior status.  

In April 2017, Ozerden conducted meetings with Mississippi’s U.S. Senators and was recommended to the White House.[1]  However, despite interviewing with the White House in July 2017, Ozerden was not selected as the nominee until April 2018.[2]  Even after that point, there was no action on Ozerden’s nomination for a year.  During this time, some grumbled that Ozerden was not conservative enough to be nominated.[3]  Nevertheless, Ozerden was finally nominated after the intervention of White House Chief of Staff Mick Mulvaney, who served as a groomsman in Ozerden’s wedding.[4]

Political Activity

Ozerden was active in the Mississippi Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as a Board Member of the Harrison County Republican Club.[5]  Compared to other appellate nominees, Ozerden is a latecomer to joining the Federalist Society, only doing so in 2019 when his nomination was under consideration.

Legal Career

Between 1999 and 2007, Ozerden worked in Gulfport, MS, handling general civil litigation.  During this time, he defended the Harrison County Sheriff against a civil rights action alleging that the plaintiff was wrongfully arrested and incarcerated.[6]  He also represented the office after a Sheriff’s Investigator caused a car accident which triggered severe medical injuries for the plaintiff.[7]

Jurisprudence

Ozerden has served as a judge on the U.S. District Court for the Southern District of Mississippi for the last twelve years.  In this role, Ozerden has presided over hundreds or criminal and civil cases, including sixty nine that have gone to verdict or judgment.[8]  We have summarized some of Ozerden’s most significant cases below:

Religious Rights

Ozerden has drawn criticism for conservative groups for his alleged “hostility” to religious rights.  The opposition is largely based on his ruling in Catholic Diocese of Biloxi v. Sebelius, in which he dismissed a challenge to the Obamacare contraceptive mandate on ripeness grounds.[9]

However, Ozerden’s record overall does not reflect a hostility to religious rights.  For example, Ozerden reviewed a claim of religious discrimination against the Woodland Village Nursing Home Center.[10]  In the claim, the plaintiff, a Jehovah’s Witness, was fired after she refused to pray the rosary with a Catholic nursing home resident.[11]  The nursing home moved to dismiss the lawsuit, arguing that the plaintiff had never identified the basis of her religious belief or objection to her employer, but had merely stated that it was religious.  Ozerden held that this was not a barrier and that the religious discrimination claim could move forward.[12]

However, the Fifth Circuit reversed, holding that the employee had failed to inform the employers of the specific nature of her religious belief, and that, as such, her claim wasn’t viable.[13]

The Fifth Circuit’s ruling was reversed and remanded by the U.S. Supreme Court.[14]  After the remand, the Fifth Circuit once again held for the defendant.[15]

State Farm

Ozerden presided over a qui tam lawsuit brought by State Farm insurance adjusters claiming that State Farm had instructed them to falsely identify wind damage as flood damage, so that the federal government would be responsible for the losses.[16]  State Farm attempted to secure dismissal of the lawsuit due to the plaintiff’s failure to keep the complaint under seal for 60 days, a motion that Ozerden denied.[17]  The Fifth Circuit affirmed Ozerden’s ruling and the Supreme Court affirmed in a unanimous opinion by Justice Anthony Kennedy.[18]

Reversal Rates

Ozerden has also been criticized for his high reversal rate, estimated by Severino at around 25%.[19]  Ozerden, for his part, has claimed that his reversal rate is around 4%.  Generally, the reversal rate of a judge can be determined in many ways: one is by comparing the number of cases in which a judge has been reversed to the total number of decisions issued by the judge; another is by comparing the number of cases in which a judge has been reversed to the total number of decisions issued by the judge that have been appealed.    

According to Ozerden’s questionnaire, his rulings have been wholly or partially reversed in seventeen cases.  In comparison, he has issued approximately 1400 opinions, leaving a reversal rate of around 2%.  However, because most interlocutory opinions are not appealable, a better comparison may be to focus on the number of cases that have actually been appealed (351).  This would give him a reversal rate of approximately 4%.  One could also use the number of cases that proceeded to verdict or judgment (69) , which would give you a rate of 25%. 

All in all, consider the following: Trump has nominated eight federal district court judges other than Ozerden to be appellate judges.  Of those, Thapar had 15 reversals in nine years; Erickson had 30 reversals in fourteen years; Engelhardt had 12 reversals in sixteen years; St. Eve had 43 reversals in sixteen years; Sullivan had 24 reversals in eleven years; Bianco had 13 reversals in twelve years; and Quattlebaum and Phipps had not been reversed in their short tenures.  As such, Ozerden’s seventeen reversals are fairly comparable to those of Trump’s other nominees.

Overall Assessment

Unlike Trump’s other nominees to the Fifth Circuit, Ozerden has attracted a fair amount of opposition from conservative groups.  This opposition is based largely on two arguments: first, that Ozerden’s high reversal rate shows a lack of “judicial competence”; second, that Ozerden has not been a conservative “leader” on the bench.  As noted earlier, while reasonable minds can differ, we don’t see Ozerden’s reversal rate as substantially different than those of Trump’s other nominees.  

Regarding the second complaint, the fundamental quality that litigants seek in judges is fairness.  As such, one expects that a judge will comport their rulings with the law rather than with politics or any judicial ideology or philosophy.  Ozerden’s record, overall, is conservative.  However, if it does not reflect conservative “leadership”, then it is to the judge’s credit.

Overall, it will be particularly interesting to see how Democrats choose to vote on Ozerden.  Will they see Ozerden as the best nominee they can expect from this Administration, or will they oppose Ozerden, forcing Republicans to find the votes to push him through?


[1] Sen. Comm. on the Judiciary, 116th Cong., Ozerden: Questionnaire for Judicial Nominees 55-56.

[2] See id. at 56.

[3] See Carrie Severino, Conservatives Voice Concerns Over Potential Fifth Circuit Nominee, Nat’l Review, Aug. 21, 2018, https://www.nationalreview.com/bench-memos/conservatives-voice-concerns-over-potential-fifth-circuit-nominee/.

[4] Eliana Johnson and Marianne Levine, Mulvaney Pushed Judicial Nominee Over Objections of White House Lawyers, Politico, June 13, 2019, https://www.politico.com/story/2019/06/13/mulvaney-halil-suleyman-fifth-circuit-1362794.

[5] See id. at 41-42.

[6] See Harris v. Forrest Cnty., Miss., No. 2:03-cv-604-KS-MTP (S.D. Miss.).

[7] See Mullins v. Haden, No. A2401-2002-0672 (Miss. Cir. Ct.).

[8] See Ozerden, supra n.1 at 15.

[9] Catholic Diocese of Biloxi Inc. et al. v. Sebelius et al., Civil No. 1:12CV158-HSO-RHW (Dec. 20, 2012).

[10] Nobach v. Woodland Village Nursing Cntr, Inc., 2013 WL 2145723 (S.D. Miss. May 15, 2013).

[11] See id.

[12] See id.

[13] Nobach v. Woodland Village Nursing Cntr, Inc., 762 F.3d 442 (5th Cir. 2014).

[14] Nobach v. Woodland Village Nursing Cntr, Inc., 135 S. Ct. 2803 (2015).

[15] Nobach v. Woodland Village Nursing Cntr, Inc., 799 F.3d 374 (5th Cir. 2015), cert. Denied, 136 S. Ct. 1166 (2016).

[16] See United States ex rel. Rigsby v. State Farm Fire & Cas. Co., 794 F.3d 457 (5th Cir. 2015).

[17] See id.

[18] See State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 137 S. Ct. 436 (U.S. 2016).

[19] See Severino, supra n.3.