Month: August 2019

Philip Halpern – Nominee to the U.S. District Court for the Southern District of New York

Jeanine Pirro is not only a former judge and television personality but is also close to the Trump Administration.  Her influence can be seen in the nomination of Philip Halpern to the Southern District of New York.

Background

Philip Morgan Halpern was born in Derby, CT on April 17, 1956.  Halpern attended Fordham University and Pace University School of Law.[1] 

After graduating, Halpern clerked for Judge Irving Ben Cooper on the U.S. District Court for the Southern District of New York and then joined the New York office of Kimmelman, Sexter & Sobel P.A. as an Associate.[2]  In 1984, he shifted to Collier, Halpern & Newberg LLP in White Plains, where he became a Partner in 1985 and Managing Partner in 1995.[3]  He is still with that office.

History of the Seat

Halpern has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Kevin Castel, who moved to senior status on August 5, 2017.  After being recommended to the White House by Pirro, Halpern interviewed with the White House Counsel’s Office in mid 2017.[4]  He was selected as a nominee in March 2018 and was nominated on October 10, 2018.[5]

Political Activity

While he is a registered Republican, Halpern has donated to both Democrats and Republicans.[6]  Among Republicans, Halpern gave $2000 to then-Sen. Al D’Amato in 1995 and $2500 to Republican Senate candidate Linda McMahon in 2012.[7]  Among Democrats, Halpern gave $300 to Sen. Robert Menendez (D-NJ) in 2011 and $650 to Sen. Cory Booker (D-NJ) in 2013.[8]

Legal Career

Halpern has spent virtually his entire legal career at the firm of Collier Halpern & Newberg.  One of his former partners at the firm was Albert Pirro, who was married at the time to Jeanine.[9]  Pirro left the firm in 2000 after being convicted of tax fraud.[10]  Halpern actually later represented his former partner before the State Bar, and successfully persuaded them to impose a lower remedy than revocation of Pirro’s law license.[11]

In other matters, Halpern represented an association of taverns and restaurants in challenging Westchester County’s smoking ban.[12]  He also represented Home Depot in trying to sue city officials in Rye, NY, for causing delays in building stores, a suit ultimately rejected by the New York Court of Appeals (despite its name the highest court in NY).[13]  In 2004, he represented a developer who had acquired an old Orthodox Jewish cemetery and faced legal obstacles to developing on the land.[14]

Writings

While not as prolific as other judicial nominees, Halpern has written occasionally on the law, generally in a descriptive manner.  For example, Halpern praises the use of motions for summary judgment as a strategic tool for litigators to present their best case before the judge.[15]  In another, Halpern describes the availability of jury trials in cases that mix principles of law with equitable relief.[16]

Overall Assessment

With a fairly bipartisan political history and nearly forty years of legal experience, Halpern would seem unlikely to draw significant controversy in the confirmation process.  However, Hapern’s confirmation process does not seem to have gone through Sens. Chuck Schumer and Kirsten Gillibrand, who represent New York, and, given the controversy over New York’s appellate nominees, they are unlikely to be receptive to the Administration’s nominees.  It is nonetheless possible that Halpern will be confirmed as part of a nominations deal.

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

[2] See id. at 2.

[3] Id.

[4] Id. at 45-46.

[5] See id.

[7] See id.

[8] Id.

[9] See Winnie Hu, After Tax Fraud Conviction, Pirro Leaves Law Practice, N.Y. Times, July 1, 2000.

[10] See id.

[11] Pirro’s Law License is Suspended for 3 Years, N.Y. Times, May 17, 2003.

[12] Elsa Brenner, Tough Smoking Law Survives Challenge, N.Y. Times, June 23, 1996.

[13] Thomas Crampton, A Body Blow to Retail Goliaths, N.Y. Times, May 23, 2004.

[14] Daniel J. Wakin, Lost in Yonkers: A Cemetery and 135 of its Children, N.Y. Times, July 7, 2004.

[15] See Philip Halpern, Unlocking a Valuable Tool: Summary Judgment Hearings on Issues of Fact, 33 Westchester B. J. 98 (Fall/Winter 2006).

[16] Philip M. Halpern, Mixing Law and Equity Causes of Action Does Not Preclude a Jury Trial, 35 Pace L. Rev. 807 (Spring 2015).

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Daniel Epstein – Nominee to the U.S. Court of Federal Claims

Dan Epstein, Special Assistant to President Trump, and a former anti-regulatory litigator, is the latest nominee to the Court of Federal Claims (“CFFC”).

Background

David Zachary Epstein was born in Houston in 1983.  Epstein received a B.A. from Kenyon College in 2005 and a J.D. from Emory University School of Law in 2008.[1]  After law school, Epstein joined the Charles Koch Foundation as a legal reform associate.[2]  He then joined the House Committee on Oversight & Government Reform in 2009, working under Rep. Darrell Issa (R-CA).[3]

In 2011, Epstein founded the Cause of Action, Institute, a nonprofit focusing on promoting conservative economic and regulatory positions.[4]  In 2016, he joined the Trump transition team as an Attorney.  After the Trump Administration came into office, he joined the White House as Associate Counsel, getting promoted to Senior Associate Counsel and Special Assistant to the President in 2018.[5] 

History of the Seat

Epstein 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 Epstein was nominated for opened up on October 22, 2013, with the with the retirement of Judge Edward Damich.  On May 21, 2014, Armando Bonilla, an Associate Deputy Attorney General was nominated for the vacancy by President Obama.[6]  Bonilla and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[7]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.[8]

In May 2017, Epstein was contacted by the White House to gauge his interest in an appointment to the CFC.  Epstein was nominated on June 24, 2019.

Legal Activity

Epstein’s primary litigation experience has been in his role at Cause of Action, in which he litigated cases, generally against administrative regulations or challenging administrative dispositions.  Epstein notably handled a number of cases seeking to use the Freedom of Information Act (FOIA) to test the boundaries of disclosure.  For example, in one case, Epstein successfully obtained a ruling that taxpayer confidentiality principles could not shield public disclosure of unauthorized inspections or disclosures by government officials.[9]

Among other matters, Epstein represented businesses challenging Federal Trade Commission (“FTC”) enforcement actions,[10] the provision of subsidies to vehicle companies,[11] and the authority of the Consumer Product Safety Commission (“CPSC”) to hold the CEO of Buckyballs personally liable for injuries caused by the magnets he produced.[12] 

Writings

Epstein has frequently written on the law, generally outlining an anti-regulatory perspective.[13]  However, he has also been critical of perceived cases of lack of transparency or corruption in government.  For example, in a 2014 article, Epstein criticizes the use of “fiscal sponsorship” among environmental nonprofits, suggesting that the common practice “not only allows donors to hide from the public, but to hide from the IRS as well…”[14]  Similarly, in a 2015 article, Epstein criticizes the Department of Energy for giving green energy subsidies to Tesla and Fisker while not granting them to other companies he represents.[15]  He concludes by arguing, not that the playing field for subsidies be level, but rather that such subsidy programs should be eliminated entirely as “the capacity for corruption is immense – and inevitable.”[16]

Political Activity

As noted above, Epstein was a part of the Trump transition team in 2016.  In addition, he also was a volunteer for the Trump campaign as well as one for the Romney campaign in 2012.[17]

Overall Assessment

Like many of Trump’s nominees to the CFC, Epstein is very young (only 36).  Additionally, Epstein does not seem to have litigated significantly within the CFC.  However, Epstein’s focus on government accountability and transparency are relevant to a court handling claims against the federal government.  In weighing Epstein’s nomination, senators may question him to ensure that he would follow the law and facts in evaluating claims rather than focus on policy considerations relating to government transparency.

[1]  Sen. Comm. on the Judiciary, 115th Cong., David Z. Epstein: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See id.

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

[7] 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.

[8] 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.

[9] See Cause of Action v. Treasury Inspector Gen. for Tax Admin., 70 F. Supp. 3d 45 (D.D.C. 2014).

[10] In the Matter of LabMD, Inc., No. 9357 (Nov. 13, 2015).

[11] See XP Vehicles, Inc. v. Dep’t of Energy, 118 F. Supp. 3d 38 (D.D.C. 2015).

[12] Zucker v. CPSC, No. 13-3355 (D. Md. 2013).

[13] See, e.g., Dan Epstein, Hounded Out of Business By Regulators, Wall St. Journal, Nov. 19, 2015, https://www.wsj.com/articles/hounded-out-of-business-by-regulators-1447978301.  

[14] Dan Epstein, The Dark Money Complex, Roll Call, Aug. 13, 2014, https://www.rollcall.com/news/the_dark_money_complex_commentary-235693-1.html.  

[15] Dan Epstein, A Case Study in Pay-to-Play Cronyism, The Hill, Aug. 4, 2015, https://thehill.com/blogs/congress-blog/the-administration/250109-a-case-study-in-pay-to-play-cronyism.  

[16] Id.

[17] See Epstein, supra n.1 at 32-33.

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Judge Kevin Sweazea – Nominee to the U.S. District Court for the District of New Mexico

Judge Kevin Sweazea, a federal magistrate judge, has been nominated for the federal bench in New Mexico.  His experience largely reverses that of other New Mexico nominee Kea Riggs.  While Riggs was a longtime U.S. magistrate judge before being appointed to the state bench, Sweazea was a longtime state court judge before being appointed as a magistrate.

Background

Kevin Ray Sweazea was born in McIntosh, South Dakota in 1963.  Sweazea attended the University of New Mexico and the Baylor University School of Law, graduating in 1988.[1] 

After graduation, Sweazea spent a year with the Albuquerque firm Pongetti Myers & Wilson and then joined Anthony J. Williams, Attorney At Law, as an Associate. After two years there, he became a solo practitioner in Los Lunas, expanding his firm in 2001, but maintaining status as a Partner.[2]  In 2001, Gov. Gary Richardson appointed Sweazea to be a district judge on the Seventh Judicial District Court in New Mexico.[3] 

From 2017, Sweazea became a U.S. Magistrate Judge in New Mexico and currently serves there.

History of the Seat

Sweazea has been nominated for a seat on the U.S. District Court for the District of New Mexico.  This seat opened on July 25, 2018, when Judge Robert Brack moved to senior status.  In May 2018, Sweazea was one of four candidates recommended by New Mexico’s Democratic Senators to the White House.[4]  While Sweazea was initially interviewed in May 2018, his formal vetting did not begin until February 2019.  Sweazea was nominated in June 2019.

Legal Career

Sweazea’s pre-bench legal career is primarily as a sole practitioner.  During his practice, Sweazea primarily handled transactional matters and civil litigation.  In particular, Sweazea handled cases involving property law, including a case in which he represented a property owner who sought an easement for access through his neighbor’s property,[5] and a suit involving breach of contract regarding the construction and sale of units in a subdivision.[6]  Interestingly, when asked to identify the top ten cases he had worked on as an attorney, Sweazea only identifies four, suggesting that he cannot name other matters on which he worked that he considers significant.[7]

Jurisprudence

Sweazea has served as a District Court judge in New Mexico between 2001 and 2017 and as a U.S. Magistrate Judge since his appointment in 2017.  In his former role as a state judge, Sweazea handled both criminal and civil actions, including approximately 11000 cases that proceeded to final judgment.[8] 

Early in his judicial career, Sweazea presided over the trial of David Parker Ray, who was charged with kidnapping and raping a Colorado woman.[9]  Sweazea sentenced Ray to 223 years in prison after Ray finally entered a guilty plea.[10]  Ray would later attempt to withdraw his plea but was blocked by the New Mexico Court of Appeals.[11]

Sweazea was also involved in the case against police officer Noah Pestak, the son of magistrate judge Thomas Pestak, who married a pregnant 15 year old girl he met while on duty.[12]  Sweazea approved the marriage license after two previous judges declined to do so.[13]  Sweazea faced a court complaint filed by Sheriff Joe Baca, who also charged Noah Pestak with statutory rape.[14]  In filing the complaint, Baca argued that New Mexico law required Sweazea to report the rape to the authorities and that he failed to do so.[15]  It is unclear whether Pestak was convicted of the charges (UPDATE: the charges against the Officer were dismissed with prejudice) or whether Sweazea faced any discipline from the complaint, but the complaint did not prevent Sweazea from being appointed as a U.S. Magistrate Judge or as a U.S. District Court Judge.

As a U.S. Magistrate Judge, Sweazea oversees arraignments, bond hearings, and discovery disputes in federal court as well as handling federal citations and misdemeanors.  Among the more notable cases he handled as a federal magistrate judge, Sweazea held that, under the Armed Career Criminal Act, the elements of Third Degree Robbery under Oregon law do not qualify the crime as a violent offense.[16]  This ruling was reversed by U.S. District Judge James Browning who held that third degree robbery always involves the threat of violence or use of violent, and, as such, that the crime qualifies as a violence offense under the ACCA.[17]

Overall Assessment

While Sweazea was recommended by his Democratic home state senators, he may still face some obstacles in the confirmation process.  The most prominent will likely be his role in the Pestak case, where senators may probe why Sweazea granted judicial permission for the marriage and why he did not report suspicions of statutory rape.  However, as it is unclear whether Sweazea was found to have violated any judicial canons in New Mexico, and as the incident has not affected his future career, it may not prove dispositive for his confirmation.

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

[2] Id. at 2.

[3] See SANTA FE, Governor Appoints Sweazea to Seventh District, Associated Press State & Local Wire, Feb. 23, 2001.

[4] See Press Release, Office of Sen. Tom Udall, Udall, Heinrich, Pearce Recommend Candidates to Fill Two Vacancies on U.S. District Court (May 2, 2018).

[5] Burleson v. Cordova, No. N/A (N.M. 7th Jud. Dist. 2000).

[6] Quemado Lake Estates v. El Caso Ranch, Inc., No. N/A (N.M. 7th Jud. Dist. 2004).

[7] See Sweazea, supra n. 1 at 42-44.

[8] See id. at 14.

[9] Jeff Simons, Former Husband Testifies in Sex-Torture Trial, A.P. State & Local Wire, Apr. 11, 2001.

[10] TRUTH & CONSEQUENCES, NM, Ray Gets 223-Plus Years, A.P. State & Local Wire, Sept. 20, 2001.

[11] Deborah Baker, Court Refuses to Let Ray Withdraw Guilty Plea, A.P. State & Local Wire, Mar. 20, 2002.

[12] TRUTH & CONSEQUENCES, NM, NM Officer, 15-Year-Old’s Wedding Raises Eyebrows, A.P. State & Local Wire, June 25, 2012.

[13] See Ben Johnson, Former Cop Paid For Abortion to Hush Up 15-Year-Old Girl, Police Say, LifeSite, Jul. 30, 2012, https://www.lifesitenews.com/news/fmr.-cop-paid-for-abortion-to-hush-up-15-year-old-girl-police-say.  

[14] LAS CRUCES, NM, Ex-NM Officer Who Married 15-Year-Old Charged, A.P. State & Local Wire, July 28, 2012.

[15] See Johnson, supra n. 13 (quoting Sheriff Joe Baca).

[16] United States v. Hammond, 2017 WL 3098261 (D.N.M. June 23, 2017).

[17] See United States v. Hammond, 286 F. Supp. 3d 1270, 1290-91 (D.N.M. 2017).

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Judge Thomas Marcelle – Nominee to the U.S. District Court for the Northern District of New York

A couple of unsuccessful judicial nominees from the George W. Bush administration have seen new light under President Trump, with mixed degrees of success.  In New York, the Trump Administration has renominated Thomas Marcelle, who saw his previous nomination fail in 2008.

Background

An Albany native, Thomas James Marcelle was born there in 1962.  He received a Bachelor of Arts from Bowdoin College in 1984 and went on to earn his J.D. from Cornell Law School in 1988.[1]  Marcelle then maintained a solo practice in Albany, which continues to this day.[2]

In addition to his solo practice, Marcelle has worked as an Assistant Public Defender (working under Doug Rutnik, the father of Sen. Kirsten Gillibrand), a Trial Attorney for the Department of Justice, and, from 2002 to 2012, as Minority Counsel to the Minority Caucus of the Albany County Legislature.[3]  From 2012 to 2015, Marcelle served as Albany County Attorney, and in 2016, as Chief Counsel for the Albany County Sheriff’s Office.  Since 2016, Marcelle has served as a Judge on the Cohoes City Court.

On July 31, 2008, then President George W. Bush nominated Marcelle to an open seat on the U.S. District Court for the Northern District of New York.  With the nomination coming after the “Thurmond Rule” was initiated, it was not processed by the Democratic Senate and the vacancy was filled by President Obama in 2011 with Judge Mae D’Agostino.

History of the Seat

Marcelle has been nominated to a seat on the U.S. District Court for the Northern District of New York.  This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status.  While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration.  In February 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, Marcelle was interviewed by the White House.[4]  The White House announced Marcelle’s nomination on October 10, 2018.

Legal Experience

While Marcelle has held many different legal positions in his career, his most significant cases have revolved around religious rights.  Notably, the only case that Marcelle argued before the Supreme Court involved religious rights.[5]  In that case, Marcelle represented a Good News Club, which was not permitted to use school facilities because of its inclusion of worship and prayer.[6]  The Supreme Court ultimately sided with Marcelle’s clients on a 6-3 basis.[7]

In other cases, Marcelle represented a kindergartener who sought to pray out loud before meals at her school.[8]  He also sued for the restoration of bricks bearing evangelical messages to a public school.[9] 

Jurisprudence

Since 2016, Marcelle serves as a City Court Judge in Cohoes.  In this capacity, Marcelle presides over small civil cases and criminal misdemeanors.  In the last two years, Marcelle has presided over approximately 200 bench trials.[10]  Among his more notable cases, Marcelle found that a defendant who struck and killed a sixteen-year-old girl was Not Guilty of violating the traffic codes for driving at an unreasonable or unsafe speed, as he was traveling at 53 mph in a 40 mph zone.[11]

Political Activity

Marcelle, a Republican, has been very politically active including running for office (unsuccessfully) twice, and successfully once (for the Bethlehem Town Council).[12]  Marcelle has also served on the Albany County Republican Committee between 1993 and 2011.[13]

In addition, Marcelle has been a member of the Federalist Society for Law and Public Policy Studies since 1990 and has worked as an Allied Attorney Coordinator for Alliance Defending Freedom, a conservative Christian nonprofit which has been designated as a hate group by the Southern Poverty Law Center for their work defending state sanctioned sterilization of transgender individuals abroad.

Overall Assessment

On paper, Marcelle’s nomination should be set for a comfortable confirmation.  Unlike in 2008, Republicans control the U.S. Senate, and, despite his strongly conservative record, it appears that New York’s Democratic senators have signed off on Marcelle’s nomination.[14]  However, perhaps in response to the Trump’s Administration decision to move Second Circuit nominees over the objections of Sens. Schumer & Gillibrand, Marcelle’s nomination has yet to receive a hearing.  It is possible that the Senators and the Administration will reach an agreement to fill the remaining New York vacancies.  Until then, it remains to be seen if Marcelle’s second nomination will be any more successful than his first.

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

[2] Id. at 2.

[3] Id.

[4] Id. at 48.

[5] See Good News Club v. Milford Central School, 533 U.S. 98 (20010.

[6] See Shannon McCaffrey, Justices Debate Church-State Case, Associated Press Online, Feb. 28, 2001.

[7] Good News Club, 533 U.S. at 98.

[8] SARATOGA SPRINGS, Judge Orders School to Allow Kindergartener to Say Grace, A.P. State & Local Wire, Feb. 6, 2002.

[9] Michael Virtanen, Judge Orders School District to Replace Bricks That Mention Jesus, A.P. State & Local Wire, Apr. 4, 2006.

[10] See Marcelle, supra n. 1 at 21.

[11] See People v. Lamb, 72 N.Y.S.3d 799 (Cohoes City Ct. 2018).

[12] See Marcelle, supra n. 1 at 33-34.

[13] See id. at 34.

[14] See Robert Gavin, Marcelle Seen in Line for Federal Judgeship, Albany Times Union, May 4, 2018, https://www.timesunion.com/local/article/Marcelle-seen-in-line-for-federal-judgeship-12889507.php.  

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Judge Stanley Blumenfeld – Nominee to the U.S. District Court for the Central District of California

Of the seven candidates nominated to California federal courts so far, Judge Stanley Blumenfeld is the only one with judicial experience, having been a judge for the last thirteen years.

Background

Stanley Blumenfeld Jr. was born in Patchogue, NY in 1962.  Blumenfeld got a B.A. from Binghampton University in 1984, an M.A. from New York University in 1985 and a J.D. from UCLA School of Law in 1988.[1]  He then clerked for Judge Cynthia Holcomb Hall on the U.S. Court of Appeals for the Ninth Circuit.[2]

In 1989, Blumenfeld joined the U.S. Attorney’s Office for the Central District of California as a federal prosecutor.[3]  In 1993, he moved to the Los Angeles office of O’Melveny & Myers LLP.[4]  He became a Partner with the firm in 1998.

In 2006, Blumenfeld was named by Gov. Arnold Schwarzenegger to the Los Angeles Superior Court, where he currently serves.[5] 

History of the Seat

Blumenfeld has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on August 1, 2014, by Judge Audrey Collins’ move to senior status.  On July 17, 2015, President Obama nominated Judge Mark A. Young, a colleague of Blumenfeld’s on the Los Angeles Superior Court, to fill the vacancy.  While Young’s nomination was unanimously approved by the Senate Judiciary Committee on November 5, 2015, he was blocked from a final vote for over a year by Senate Majority Leader Mitch McConnell, leaving the seat open for the Trump Administration.  

In August 2017, Blumenfeld was contacted by the White House to gauge his interest in a federal judgeship.[6]  He interviewed with the White House in September 2017 and then with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris.[7]  In October 2018, Blumenfeld was nominated by the White House.

Legal Experience

Blumenfeld has held two primary legal positions before joining the bench: as a federal prosecutor; and as an attorney at O’Melveny & Myers.  In the former position, Blumenfeld was in the civil division, and, as such, handled civil and constitutional claims in which the federal government was the defendant.  In the latter, Blumenfeld handled commercial and environmental litigation, as well as some white collar defense.  

Blumenfeld notably represented General Telephone and Electric Co. in defending a lawsuit brought by O.J. Simpson seeking access to phone records he claimed would exonerate him.[8]  Blumenfeld was able to get the lawsuit dismissed, with Judge Dean Pregerson finding that the suit “borders on being frivolous.”[9]

Jurisprudence

Since 2006, Blumenfeld has served as a judge on the Los Angeles Superior Court.  In this role, Blumenfeld presides over trial court matters in criminal, civil, family, and other state law matters.  By his estimation, Blumenfeld has presided over around 200 trials in his judicial career.[10] 

Notably, Blumenfeld presided over the trial of the so-called “kitty litter” killer, Isaac Campbell.[11]  Campbell was so named for dumping the body of his victim into a trash can full of cat litter.[12]  Campbell was found “not guilty” of murder by a jury but was convicted of voluntary manslaughter, and Blumenfeld sentenced him to the maximum penalty, 11 years in prison.[13]

In other cases, Blumenfeld has shown a willingness to impose strict criminal penalties.  For example, he sentenced Richard Tauch, convicted of killing his ex-girlfriend and her new boyfriend, to life in prison without the possibility of parole.[14]  In another case, he sentenced Carlos Andres Lopez to four years in prison for stealing a custom-made tricycle from a young boy with cerebral palsy.[15]

Political Activity

Blumenfeld is a Republican and has contributed to the campaign of President George W. Bush and to the Republican National Committee.[16]

Writings & Commentary

As a law student, Blumenfeld authored a note attempting to parse out the tension between two competing legal principles: the “master of the complaint” doctrine and the “artful pleading” doctrine.[17]  The former doctrine emphasizes the plaintiff’s right to dictate in their complaint which laws and jurisdictions they wish to avail themselves of whereas the latter allows state law claims to be moved to federal court where courts find that the complaint is essentially asserting a federal right.[18]  Blumenfeld argues in the note that the “artful pleading” doctrine serves no real purpose and undermines other legal principles that allow plaintiffs to shape “the face” of their lawsuit.[19]  As such, he recommends that the doctrine be abandoned.[20]

Overall Assessment

An overall review of Blumenfeld’s record does not suggest any characteristics that would make him controversial.  Rather, Blumenfeld was likely picked as a nominee because he was seen as acceptable to California’s Democratic senators.  However, with all California nominees in a temporary limbo, it remains to be seen if and when the confirmation process will start for Blumenfeld.

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

[2] See id. at 2.

[3] See id. 

[4] His tenure at O’Melveny overlapped with that of fellow CDCA nominee Mark Scarsi.

[5] See id. 

[6] Id. at 42.

[7] Id.

[8] Linda Deutsch, Federal Judge Throws Out O.J. Simpson Lawsuit, A.P. State & Local Wire, Apr. 25, 2000.

[9] See id. (quoting Judge Dean Pregerson).

[10] See Blumenfeld, supra n. 1 at 10.

[11] People v. Campbell, No. GA0707040 (L.A. Sup. Ct.).

[12] Lauren Gold, Alhambra ‘Kitty Litter’ Killer Gets Maximum Sentence, San Gabriel Valley Tribune, July 16, 2012.

[13] See id.

[14] ALHAMBRA, Man Sentenced to Life Without Parole For Murdering Ex-Girlfriend, Her New Boyfriend, City News Service, June 19, 2014.

[15] PASADENA, Man Sentenced to Four Years in Prison For Stealing Disabled Boy’s $5300 Tricycle, City News Service, June 20, 2016.

[17] Stanley Blumenfeld Jr., Artful Pleading and Removal Jurisdiction: Ferreting out the True Nature of a Claim, 35 UCLA L. Rev. 315 (Dec. 1987).

[18] See id. at 317-20.

[19] Id. at 366-67.

[20] Id.

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Lee Rudofsky – Nominee to the U.S. District Court for the Eastern District of Arkansas

Lee Rudofsky finds himself in an unusual position for a judicial nominee: one of backing off of a legal position he previously took.  However, his reversal is from a position ultimately supported by the Supreme Court, the constitutional basis of same-sex marriage.

Background

Lee Philip Rudofsky was born in New York City in 1979.  Buscher attended the Cornell University, getting a B.A. in 2001 and an M.P.A. in 2002.[1]  He then attended Harvard Law School, graduating in 2005.[2]  Rudofsky then clerked for Justice Robert Cordy on the Supreme Judicial Court of Massachusetts and then for Judge Andrew Kleinfeld on the U.S. Court of Appeals for the Ninth Circuit.[3]

After his clerkships, Rudofsky joined the D.C. office of Kirkland & Ellis, where he would stay on and off until 2015.  While at the firm, however, Rudofsky took hiatuses to work for Steve Poizner’s campaign for Governor of California in 2010 and for Mitt Romney’s campaign for President in 2012.[4]

In 2015, the newly elected Republican Attorney General of Arkansas Leslie Rutledge hired Rudofsky to be Arkansas’ Solicitor General.  Rudofsky held the post until 2018 when he joined Walmart as Senior Director of their Global Anti-Corruption Compliance team.

History of the Seat

Rudofsky has been nominated for a vacancy on the U.S. District Court for the Eastern District of Arkansas.  This seat opened on March 31, 2018, when Judge Leon Holmes moved to senior status.  In late 2017, after Holmes had announced his departure, Rudofsky expressed his interest in a judgeship with Sens. John Boozman and Tom Cotton.[5]  Rudofsky interviewed with the Senators, a selection committee set up by Cotton and the White House in October 2018.[6]  However, he wasn’t selected as a nominee until February 2019, after numerous other candidates had been rejected.[7]  Rudofsky was finally nominated in June 2019.

Legal Experience

Rudofsky has spent his legal career divided between private practice and working as the Solicitor General of Arkansas, in which capacity Rudofsky served as the state’s top appellate attorney.

As Solicitor General, Rudofsky defended Arkansas’ Voter ID scheme against a challenge under the Arkansas Constitution.[8]  He also unsucessfully defended Arkansas’ policy of not placing same-sex parents on the birth certificates of children, a policy reversed by the U.S. Supreme Court.[9]  Rudofsky also argued against a Fayetteville ordinance protecting against discrimination, arguing that it was pre-empted by state law.[10]

In private practice, Rudofsky notably joined a brief supporting a constitutional right to same-sex marriage.[11]  Surprisingly, despite the Supreme Court’s adoption of his position, Rudofsky walked away from his support of same-sex marriage in his confirmation hearing, stating that he regretted joining the brief.[12]

Political Activity

Rudofsky has been active with the Republican Party since his college years, having been a member of Cornell Republicans.[13]  He then served as President of the Harvard Law Republicans as a law student.[14]  He has also worked on several Republican campaigns including those of Romney, Poizner, Cotton, and Rutledge.

Overall Assessment

Rudofsky is a talented attorney who will, similar to other Solicitor Generals appointed to the bench, face questions regarding the controversial laws he has defended, but will likely overcome that obstacle on the strength of the Republican majority.  However, the more interesting issue is how Rudofsky’s volte face on the issue of same-sex marriage will affect his confirmation.

Rudofsky signed onto a brief supporting the right to same-sex marriage under the Fourteenth Amendment, a position he has now rejected as misguided.  While lawyers can and do change positions on legal issues, Rudofsky’s justification for his reversal is that he has gained a better understanding of the Fourteenth Amendment since joining the brief.  However, the position Rudofsky has taken is one embraced by the U.S. Supreme Court and enshrined in U.S. law.  As such, his reversal creates two problems: first, it suggests that Rudofsky does not take much care in choosing the briefs he signs onto, casting doubt on his judgment; second, it suggests that his understanding of the Constitution is not informed by Supreme Court precedent, casting doubt on his neutrality.

To be more charitable to Rudofsky, it is possible that his expressed “regrets” are merely a way of ensuring that he does not become the next Michael Bogren, a lawyer rejected for taking a position that a senator disagreed with and of reconciling his prior positions with the more conservative ones he has embraced as Solicitor General.  It is also possible that Rudofsky has genuinely become more conservative since he signed onto the brief.  In any case, senators are sure to consider this issue closely in evaluating his nomination/

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

[2] See id. 

[3] Id. at 2.

[4] See id.

[5] Id. at 53.

[6] Id.

[7] Max Brantley, The Latest on that Vacant Judgeship: Focus on a Newcomer to Arkansas, Arkansas Times, Mar. 18, 2019, https://arktimes.com/arkansas-blog/2019/03/18/the-latest-on-that-vacant-federal-judgeship-focus-on-a-newcomer-to-arkansas.

[8] Haas v. Martin, 60CV-18-752 (Pulaski County, Arkansas).

[9] Pavan et al. v. Smith, 582 U.S. ___ (2017).

[10] Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49.

[11] See Emma Roller, Why Only Two Republicans in Congress Admit to Supporting Gay Marriage, Slate, Feb. 26, 2013, https://slate.com/news-and-politics/2013/02/gay-marriage-legal-brief-two-republicans-in-congress-support-lgbt-rights.html.  

[12] Frank E. Lockwood, Arkansas Up For Seat on U.S. Court Queried; Ex-Solicitor General Admits Regrets on Joining Briefs Supporting Gay Marriage, Northwest Arkansas Democrat Gazette, Aug. 1, 2019, https://www.nwaonline.com/news/2019/aug/01/arkansan-up-for-seat-on-u-s-court-queri/.  

[13] See Rudofsky, supra n. 1 at 25-26.

[14] See id.

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Mark Scarsi – Nominee to the U.S. District Court for the Central District of California

The U.S. District Court for the Central District of California is a very busy court.  However, it is particularly shorthanded at present, as a mix of retirements and deaths have left the court nine judges short. Ongoing negotiations between California’s Democratic senators and the White House, as well as mistrust from the White House’s Ninth Circuit nominations, have left the few district court picks in California hanging in limbo.  Among them is Mark Scarsi, an experienced intellectual property attorney in Los Angeles.

Background

Mark Christopher Scarsi was born in Syracuse, NY in 1964.  Scarsi attended Syracuse University, getting a B.A. in 1987 and an M.S. in 1993.[1]  He then received a J.D. magna cum laude from the Georgetown University Law Center in 1996.[2]

After law school, Scarsi joined Christie, Parker & Hale LLP in Pasadena as an Associate.[3]  In 1998, he moved to the Los Angeles office of O’Melveny & Myers LLP.  He became a Partner with the firm in 2003.

In 2007, Scarsi joined Milbank Tweed Hadley & McCloy LLP in L.A. as a Partner and serves as Managing Partner of the L.A. office since 2013.[4] 

History of the Seat

Scarsi has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on January 6, 2017, by Judge George King’s move to senior status.  Scarsi had broached his interest in a judicial appointment in April 2017 with the White House.[5]  He interviewed with the White House in August 2017 and then with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris.[6]  In October 2018, Scarsi was nominated by the White House.

Legal Experience

Scarsi has spent virtually his entire career focusing on intellectual property law, and has tried twenty eight cases throughout his career, including fifteen jury trials.[7]  Notably, Scarsi has served as Apple’s attorney in defending a number of patent infringement claims.  For example, Scarsi helped defend Apple against an infringement suit brought by California inventor Richard Ditzik based on his 1997 patent for a wireless handset device.[8]  He also represented Apple in defending a suit brought by Netairus Technologies relating to the ability of Apple smartphones to communicate with cell towers and wifi signals.[9]  He also successfully defended Apple against an infringement suit brought by Wi-LAN Inc. relating to Apple’s alleged infringement of patents relating to the use of 3G technology.[10]

In other cases, Scarsi has represented Google,[11] and Lockheed Martin.[12] 

Writings & Commentary

Scarsi has occasionally commented on issues of law and policy through his career, including weighing in on the confirmation process for Justice Elena Kagan.[13]  Notably, Scarsi expressed his optimism following the 2010 midterm elections that a divided Congress would be able to enact patent reform, stating:

“Maybe a divided Congress creates a perfect storm in which patent reform can be passed.”[14]

Overall Assessment

The White House and California’s Democratic Senators have already had some public clashes over the three California Ninth Circuit nominees confirmed so far.  While Feinstein and Harris had limited control over appellate confirmations, they have considerable power over Scarsi.  As such, his confirmation will ultimately turn on whether the White House can reach an agreement with the senators over California’s district court judges.  Such a deal may ultimately include a nominee to fill a Fourth California seat on the Ninth Circuit as well.

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

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] See id. at 24.

[6] Id.

[7] Id. at 15.

[8] Jason Frankovitz, Apple Patent Trial Goes to Jury: Why Fight When You Can License, TechZulu, Nov. 20, 2013.

[9] Netairus Technologies, LLC v. Apple Inc., Civ. No. 2:10cv03257-JAK-E (C.D. Cal.), aff’d, 587 F. App’x 658 (Fed. Cir. 2014).

[10] Wi-LAN Inc. v. Apple Inc., et al., Civ. No. 2:12-cv-600-JRG (E.D. Tex.), aff’d, 811 F.3d 455 (Fed. Cir. 2016).

[11] See Callwave Communications v. Google, Inc. et al., C.A. No. 12-cv-1701, 1704, 1788-RGA, 207 F.Supp.3d 405 (D. Del. 2016).

[12] See Space Sys./Loral, Inc. v. Lockheed Martin Corp., C-95-3530 SI (N.D. Cal.).  

[13] If I Were a Senator, I’d Ask Kagan . . . , Law360, May 10, 2010.

[14] Mark Scarsi Comments on the Impact of the Elections on Intellectual Property Law and Policy, Milbank.com, Nov. 4, 2010, https://www.milbank.com/en/news/mark-scarsi-comments-on-the-impact-of-the-elections-on.html.  

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Eleni Roumel – Nominee to the U.S. Court of Federal Claims

As noted before, the U.S. Court of Federal Claims (CFC) is facing a vacancy crisis.  One of the factors exacerbating the situation is the Trump Administration’s slow pace in nominations and their predilection for naming young attorneys with little background in the court’s specialized docket.  The nomination of Eleni Roumel follows that pattern.

Background

Eleni Maria Roumel was born in Washington D.C. in 1974.  She received a B.A. from Wake Forest University in 1996, and a joint J.D. and M.B.A. from Tulane in 2000.[1]  After graduation, Roumel joined Skadden Arps’ New York City Office.[2]

After two years at Skadden, Roumel completed a two-year clerkship for Judge William Pauley on the U.S. District Court for the Southern District of New York, and then joined the New York office of Wilmer Hale.  In 2006, she moved to the Charleston, SC office of Nelson Mullins Riley & Scarborough LLP, where she was a Partner.[3] 

In 2012, Roumel returned to D.C. to be Assistant General Counsel to the U.S. House of Representatives, then under Republican control.[4]  In 2018, she left to join Vice President Mike Pence’s Office as Deputy Counsel.[5]

History of the Seat

Roumel 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 Roumel was nominated for opened up on July 14, 2018, with the conclusion of the term of Judge Mary Ellen Coster Williams.

In November 2018, Roumel interviewed with the White House regarding a vacancy on the CFC.  She was preliminarily selected as a nominee in January 2019 and nominated on June 24, 2019.[6] 

Legal Experience

For the past year, Roumel has served as Deputy Counsel to Pence, providing legal advice to his office.  However, she has prior experience working for the U.S. House of Representatives and in private practice.

U.S. House of Representatives

From 2012 to 2018, Roumel was Assistant General Counsel in the U.S. House of Representatives.  In this role, Roumel was notably involved in the House’s lawsuit to prevent the Obama Administration from making payments to insurance companies under the Affordable Care Act.[7]  The case eventually ended in a settlement after a ruling in favor of the House’s position.[8]  She also represented Rep. Eric Cantor in seeking to block subpoenas in a terrorism financing case involving the Bank of China and the Israeli government.[9]

Private Practice

From 2004 to 2012, Roumel worked in private practice in New York City and Charleston, primarily working in intellectual property and commercial litigation.  For example, Roumel represented a candle manufacturer in a breach of contract action against grocery store chains Supervalu and New Albertson’s Inc.[10]  However, she also handled some pro bono cases during this time.  For example, she represented a state prisoner who had been seriously injured in a beating by a prison guard.[11]

Overall Assessment

In reviewing another CFC nominee, Richard Hertling, we said the following:

“Ultimately, the more interesting fact about Roumel is the fact that he was nominated for the CFC rather than the U.S. District Court for the District of Columbia.  Given his intense legislative experience, the latter would seem like a better perch for such a legislative expert.”

The same analysis applies to Roumel, whose expertise does not, at immediate glance, suggest appointment to a court primarily known for handling government contract issues and vaccine injury claims.  Nonetheless, her experience and lawyerly ability is reflected through the high level positions she has enjoyed, and, while she is unlikely to attract much Democratic support, she will likely be confirmed in due course.

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

[2] Id. at 2.

[3] Id.

[4] See id.

[5] See Statement of Speaker Paul Ryan, Apr. 5, 2018.

[6] See Roumel, supra n. 1 at 29-30.

[7] See Jonathan Turley, Federal Court to Hear Historic Challenge Over Separation of Powers, Res Ipsa Loquitor, May 27, 2015.

[8] See Mary Ellen McIntire, House, Administration Settle Lawsuit Over Health Law Payments, RollCall, May 16, 2018, https://www.rollcall.com/news/politics/house-administration-settle-lawsuit-health-law-payments.  

[9] Yonah Jeremy Bob, Eric Cantor Fights Subpoena While Ex-Israeli Agent Pushes to Testify in Bank of China Terror Financing Case, Oct. 2, 2014.

[10] MVP Group Int’l, LLC v. Supervalu, Inc., 2:09-cv-2636 (D.S.C.).

[11] See Orange v. Fielding, 06-cv-2601 (D.S.C.).

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Judge Matthew McFarland – Nominee to the U.S. District Court for the Southern District of Ohio

A longtime Ohio state court judge, Matthew McFarland has drawn the support of home-state senator Sherrod Brown despite his strongly conservative background.

Background

A native Ohioan, McFarland was born in Portsmouth in 1967.[1]  McFarland received a B.A. from Capital University in 1989 and his J.D. from Capital University Law School in 1992.[2]  Following his graduation, McFarland worked as an Associate with the Faulkner Law Office in Wheelersburg and as Assistant City Solicitor for the City of Portsmouth.

In 1994, McFarland became a state prosecutor, working first for the Licking County Prosecutor’s Office and then for the Scioto County Prosecutor’s Office, as well as working for the Ohio Attorney General’s Office as a Special Counsel and as a solo practitioner.[3]

From 1999 to 2004, McFarland worked as a Magistrate in the Scioto County Common Pleas Court.[4]  In 2004, he was elected as a Republican to the Fourth District Court of Appeals, where he still serves.

History of the Seat

McFarland has been nominated for a seat on the U.S. District Court for the Southern District of Ohio.  This seat was vacated on June 30, 2017, when Judge Thomas Rose moved to senior status.  McFarland applied with a selection commission put together by Ohio Senators Sherrod Brown, a Democrat, and Rob Portman, a Republican.[5]  McFarland interviewed with the Commission in late August of 2017, and was recommended to the White House by the senators in September.[6]  He was nominated in November 2018.  

Legal Experience

While McFarland started his career in civil practice, he primarily worked as a state prosecutor before he joined the bench.  By his own account, McFarland tried four cases to verdict as lead counsel and an additional five as co-counsel.  Interestingly, the three most significant cases that McFarland has tried, by his own account, all ended in “Not Guilty” verdicts on behalf of the defendants.[7]

Jurisprudence

Since 2004, McFarland has served as a judge on the Fourth District Court of Appeals in Ohio, which covers much of Southern Ohio.  In that capacity, McFarland sits on three judge panels in reviewing appeals from Ohio’s trial courts.

Among his more notable rulings, McFarland overruled a district court judge and held that parents had no obligation to pay for their adult children’s legal expenses, and thus finding that an adult could be found to be indigent even where their parents could pay their legal fees.[8]  In another case, McFarland dissented from a Fourth District decision overturning Bryan Martin’s conviction of robbery for lack of sufficient evidence.[9]

Political Activity

McFarland has a few donations of record, all to Ohio Republicans.[10]  In addition, McFarland has been a member of many conservative organizations, including the Federalist Society, the National Rifle Association, and the Scioto County Right to Life.[11]

Overall Assessment

Despite a fairly conservative jurisprudential record and a Republican background, McFarland has secured the support of Democratic Sen. Sherrod Brown.  As such, he remains favored to win confirmation before the full Senate.

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 49.

[6] See id.

[7] See State v. Barnett, Scioto County Common Pleas Court Case No. 93CR6, 1/11/93; State v. Blanton, Scioto County Common Pleas Court Case No. 93CR307, 10/4/93; State v. Cheatwood, Jr., Jackson County Common Pleas Court Case No. 92CR10.

[8] Ohio: Judges Rule Parents Don’t Have to Pay Adult Child’s Legal Fees, U.S. Official News, Sept. 10, 2013.

[9] See Amber Gillenwater, Bidwell Man Released Following Overturned Conviction, Gallipolis Daily Tribune, Apr. 5, 2012.

[11] See McFarland, supra n. 1 at 7-8.

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R. Austin Huffaker – Nominee to the U.S. District Court for the Middle District of Alabama

The Middle District of Alabama was largely static over the last decade, with no new judges joining the court between 2005 and 2018.  Now, in the last year, all three of the court’s judgeships look set to be replaced, including by securities attorney Austin Huffaker.

Background

Robert Austin Huffaker was born in Montgomery, AL in 1973.  Huffaker graduated cum laude from Vanderbilt University in 1996.[1]  Huffaker went on to the University of Alabama Law School, graduating magna cum laude in 1999.

Upon graduation, Huffaker joined the Montgomery office of Rushton, Stakely, Johnston & Garrett P.A.  He is still with the firm today.  Additionally, Huffaker has been a Commissioner with the Alabama Securities Commission, which regulates securities in the state, since 2016.

History of the Seat

Huffaker has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on January 31, 2019, when Judge W. Keith Watkins moved to senior status.

For Huffaker’s part, he had been under consideration for a federal judgeship in the Obama Administration when he interviewed with Alabama Republican senators about replacing Judge Mark Fuller (the seat was filled earlier this year by Solicitor General Andrew Brasher).[2]  In January 2019, Huffaker interviewed with Alabama Senator Richard Shelby about the upcoming vacancy.[3]  He then interviewed with Democratic Sen. Doug Jones and with the White House, and was nominated in July 2019.

Legal Experience

Huffaker has spent his career as a business attorney at Rushton, Stakely, Johnston & Garrett P.A.  Over the course of his career, Huffaker has tried 16 cases in state and federal court, as well as 20 cases in private arbitrations.[4] 

Among the most significant areas that Huffaker has practiced in, he handled a series of legal malpractice cases, usually defending attorneys against claims raised by their clients.  For example Huffaker successfully found that plaintiffs’ claims against their attorneys for inadequate representation in mesothelioma actions were time-barred.[5]  In another notable case, Huffaker represented a mental health worker in proceedings relating to the alleged homicide of a patient under his care.[6]  Huffaker was able to secure a defense verdict against the allegations of wrongdoing.[7]

Overall Assessment

As a lawyer with a focus in business and commercial litigation, Huffaker has an opportunity to avoid the controversies that have entangled other Alabama nominees.  As such, Huffaker will likely be confirmed fairly comfortably.

[1] Sen. Comm. on the Judiciary, 115th Cong., Robert Austin Huffaker: Questionnaire for Judicial Nominees 1.

[2] Id. at 27-28.

[3] Id. at 28.

[4] Id. at 14.

[5] Frazier v. Jackson et al., 563 F. App’x 435 (6th Cir. 2014).

[6] Verrett et al v. Alabama Dep’t of Mental Health, et al., Case No. 2:03-cv-012301-MEF-CSC.

[7] See id.

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