Month: October 2019

Thirteen Candidates the Next Democratic President Should Seriously Consider For the Supreme Court

It’s been a busy week for SCOTUS-nerds.  Last Monday, the Supreme Court kicked off for another blockbuster session, and last Tuesday, the liberal judicial group Demand Justice kicked off the latest bout of SCOTUS fever with its list of 32 prospective nominees under a Democratic president.  The Demand Justice list has received some criticism for not being “realistic,” presumably by which the critics argue that the names of the list are likely to be overlooked for more mainstream candidates.  While I’ve discussed that argument elsewhere, it is worth wondering: what would a “realistic” Democratic shortlist look like?

If a Democratic presidential candidate is foolish enough to task me with compiling their Supreme Court shortlist, here are the names I would suggest. 

Chief Justice Cheri Beasley – North Carolina Supreme Court

Chief Justice Beasley made history earlier this year when she became the first African American woman to be Chief Justice of the North Carolina Supreme Court.  While she has never served on the federal bench, the 53-year-old Beasley has twenty years of judicial experience, as well as experience in indigent defense, which is lacking in all of the current Supreme Court justices.

Justice Richard Bernstein – Michigan Supreme Court

With diversity key on the minds of many Supreme Court watchers, Justice Richard Bernstein would be the first Supreme Court nominee who has been diagnosed as legally blind.  The 44-year-old Bernstein has demonstrated his intellect and his commitment for the rights of the disabled throughout his professional career and would add the perspective of a solo practitioner to the Supreme Court.

Judge Gregg Costa – U.S. Court of Appeals for the Fifth Circuit

The 47-year-old Costa currently serves on one of the most conservative courts in the country, where he has demonstrated a balanced and principled approach to the law.  Costa, who clerked for the strongly conservative Chief Justice William Rehnquist, won the support of Sen. Ted Cruz in his appointment to the Fifth Circuit, demonstrating his evenhanded approach to the law.

Justice Mariano-Florentino Cuellar – California Supreme Court

While there are several extraordinarily qualified SCOTUS candidates on the California Supreme Court, my personal favorite is Justice Tino Cuellar.  The 47-year-old Cuellar would be the first Hispanic male on the Supreme Court, and would bring extensive experience with administrative and constitutional law, providing a liberal intellectual counterweight to the originalists on the court.  It doesn’t hurt that he is arguably the most liberal voice on the court.

Judge Michelle Friedland – U.S. Court of Appeals for the Ninth Circuit

The 47-year-old Friedland is the youngest Democratic appointee on the federal appellate bench and, as such, cannot be ignored.  Friedland has stellar credentials for the Supreme Court, having clerked for Justice Sandra Day O’Connor and on the U.S. Court of Appeals for the D.C. Circuit.  Despite the Ninth Circuit’s reputation as a conservative bugbear, Friedland is hardly the second coming of William Douglas.  Rather, she has developed a moderate-liberal brand of jurisprudence on the Ninth Circuit, going where the law takes her and frequently getting the votes of more conservative judges.

Justice Melissa Hart – Colorado Supreme Court

The 49-year-old Hart has the least amount of judicial experience of any candidate on this list.  Yet, her stellar credentials (clerked for Judge Guido Calabresi and Justice John Paul Stevens) make her impossible to ignore.  Before she was appointed to the Colorado Supreme Court in 2017, Hart was a longtime legal academic, chairing the Byron White Center for the Study of American Constitutional Law at the University of Colorado Law School.  As such, many compare Hart to Justice Elena Kagan (also a longtime academic before she joined the bench), and the similarities may bear out on the bench.

Judge Jane Kelly – U.S. Court of Appeals for the Eighth Circuit

Judge Kelly is my personal favorite for the Supreme Court.  The Iowan graduated from Harvard Law School alongside President Obama in 1991.  However, rather than taking a traditional law firm position, Kelly chose to be a public defender, spending her entire career defending the rights of indigent defendants.  She continued this work even as she became a victim of crime herself, being attacked and left barely conscious while jogging.  Kelly would provide a refreshingly different perspective on the Supreme Court, particularly on criminal justice issues.

Judge Patricia Millett – U.S. Court of Appeals for the D.C. Circuit

It is my personal (and completely uninformed) belief that, had Hillary Clinton won the 2016 election, Millett would have been her choice to replace Justice Scalia on the Supreme Court.  The 56-year-old Millett is the oldest candidate on this list but still wins out due to quite possibly being the most qualified candidate in the country.  Not only is Millett on the second most important court in the country, but, at the time of her confirmation, she had argued more cases before the Supreme Court than any other female advocate.  Needless to say, there will be no learning curve for a Justice Millett.

Justice Raheem Mullins – Connecticut Supreme Court

The 41-year-old Mullins is the youngest candidate on this list.  Despite his youth, however, Mullins does not lack judicial experience, having already been on the bench for seven years.  Before he joined the bench, Mullins served as a prosecutor, but has proved to be a strong voice on the Connecticut Supreme Court, willing to go where the law takes him.  For example, Mullins wrote for the Court in ordering the release of police records regarding Adam Lanza, the shooter in the Sandy Hook shooting of 2012.  As a young, African American jurist, Mullins provides an intriguing possibility if Justice Clarence Thomas vacated his seat.

Justice Adrienne Nelson – Oregon Supreme Court

Justice Nelson has been breaking barriers throughout her life, including in high school, where she and her mother successfully sued to be named valedictorian of her graduating class, instead of a white student with a lower GPA.  Last year, the 52-year-old Nelson became the first African American on the Oregon Supreme Court.  If confirmed to the Supreme Court, Nelson would bring extensive experience working in indigent defense and in low income communities.  Furthermore, for those who may question her credentials, Nelson has been on the bench longer than both Justices Gorsuch and Kavanaugh.

Judge Robin Rosenbaum – U.S. Court of Appeals for the Eleventh Circuit

The 53-year-old Rosenbaum has developed a reputation as the conscience of the Eleventh Circuit.  A member of that court’s liberal wing, who frequently find themselves in dissent, Rosenbaum has won plaudits for her respectful and reasonable opinions.  While Justice Sonia Sotomayor became the first judge in decades to have experience as a trial court judge, a Justice Rosenbaum would beat her out by one step.  This is because Rosenbaum has served as a U.S. Magistrate Judge, a U.S. District Judge, and a U.S. Circuit Judge.  It is a testament to Rosenbaum’s stellar reputation in Florida that she has won near unanimous approval at each of those steps.

Judge Srikanth Srinivasan – U.S. Court of Appeals for the D.C. Circuit

There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated.  During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background.  On the D.C. Circuit, Srinivasan has served as a liberal counterweight, moderating the conservative trend of the court.  Additionally, if confirmed, Srinivasan would be the first Asian American, Indian American, and Hindu American on the Supreme Court.

Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit

The 52-year-old Watford is probably the most likely judge to see a promotion to the U.S. Supreme Court, with stellar credentials and a razor-sharp intellect.  When Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so.  Luckily for Watford, enough Republicans broke from the pack and supported him to allow him to clear the then-60 vote cloture threshhold and be confirmed.

While the former federal prosecutor, law firm partner, and SCOTUS clerk (Ginsburg) wouldn’t exactly be forging a new career path to the Supreme Court, it’s hard to deny Watford’s commitment to the law and his influence as a jurist.

 

In compiling any finite list, it is inevitable that qualified candidates are left out, and the exclusion of such names such as Justice Leondra Krueger, Judge David Barron, and Judge Adalberto Jordan is not a statement about their fitness.  Rather, the overall goal of any such list is, ultimately, marketability, which means that you have to create a broadly acceptable group.  Ultimately, each of these candidates has the ability and the experience to hit the ground running if confirmed to the Supreme Court.  And the nation would be well-served with each of them.

 

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Initial Thoughts on the Demand Justice Shortlist

On May 19, 2016, then candidate Donald Trump unveiled a list of thirteen judges, pledging only to appoint candidates to the Supreme Court from that list.  The intent of the list was to shore up flagging conservative support for the candidate, and it worked.  The list, along with Senate Majority Leader Mitch McConnell’s refusal to fill the vacancy created by Justice Antonin Scalia’s death, meant that the Supreme Court was a key issue in the 2016 Presidential election, and conservative judicial voters carried Trump to a narrow victory.

So far, no Democratic presidential candidate has taken a page from Trump’s playbook and released their own list, but liberal judicial group Demand Justice has taken up that mantle, releasing a list of 32 lawyers, law professors, and judges for appointment to the Supreme Court.  The list has attracted both praise and criticism, including from those who have argued that the list is not even close to a plausible Democratic shortlist.  However, Demand Justice is not running for President.  Where Trump’s list was intended to convince conservatives that he can be trusted to appoint “safe” picks, Demand Justice’s shortlist is seeking something different: to remind progressives that there are alternatives to the traditional appellate hunting grounds for court appointments.  In that sense, the list has been successful.

That being said, let’s break down the names further.

Demographic Diversity

Demographic diversity was obviously important to Demand Justice’s compilers, as the list reflects nominees from across the racial and ethnic spectrum.  The list is majority female and majority POC.  In fact, there is only one cisgender straight white male on the list: Philadelphia D.A. Larry Krasner.  Rather than being a coincidence, this is likely a deliberate effort on Demand Justice’s part to craft a list that is more diverse than the names typically considered.

Geographic Diversity

Let us look at the home states of the last five Democratic nominees to the Supreme Court: Ginsburg (N.Y./D.C.); Breyer (Mass.); Sotomayor (N.Y.); Kagan (Mass./D.C.); Garland (D.C.).  In fact, the last Democratic SCOTUS nominee who was not from New York, D.C., or Massachusetts was Homer Thornberry in 1968, and the last successful appointment not from one of these three states/districts was Arthur Goldberg in 1962 (and even he was serving as a cabinet official in D.C. before his appointment).  Unfortunately, the Demand Justice list is also heavy with nominees from these three states, although you can also add California, which hosts a fair number of shortlisters.  Leaving out these four states, you have Krasner from Pennsylvania; Judge Jane Kelly from Iowa; Judge Carlton Reeves from Mississippi; Judge Richard Boulware from Nevada; and Justice Anita Earls from North Carolina.

Educational Diversity

Much has been made of the Harvard-Yale duopoly on the Supreme Court, and this list is unlikely to change that too much.  Of the 32 names on that list, 19 are alumni of either Harvard or Yale (or in some cases, both).  Of those who are not, only ONE attended a non-top 20 law school (ACLU attorney Brigitte Amiri, who attended Northeastern Law).

Experiential Diversity

Here’s where this list differs the most from Trump’s.  Every single candidate on Trump’s shortlist was a judge (either on state or federal court).  In contrast, the majority of Demand Justice’s list has no judicial experience.  Only two serve on the U.S. Court of Appeals (Judges Jane Kelly and Nina Pillard), while another two serve as U.S. District Court Judges (Judges Richard Boulware and Carlton Reeves).  Four serve on State Supreme Courts (Justices Liu, Cuellar, and Krueger from the California Supreme Court and Justice Earls on the North Carolina Supreme Court).  The remaining twenty four (75%) have no judicial experience.

Rather, the list is heavy with law professors, civil rights lawyers, and even includes three elected officials (one of whom, Rep. Katie Porter, was a former academic).  The list does include a fair number of former clerks.  Nine on the list clerked on the U.S. Supreme Court including:

  • 3 Blackmun clerks (Michelle Alexander; Pam Karlan; Cecillia Wang)
  • 1 Stevens clerk (Leondra Kruger)
  • 1 O’Connor clerk (James Forman)
  • 2 Ginsburg clerks (Goodwin Liu; M. Elizabeth Magill)
  • 1 Breyer clerk (Timothy Wu)
  • 1 Sotomayor clerk (Melissa Murray)

Age and Youth

One factor that Republican Administrations tend to prize in their appointments is youth, generally selecting nominees in their 40s and early 50s, while Democrats tend to choose older judges with more experience.  While there are a handful of younger picks on the list, for the most part, the Demand Justice continues the pattern of older Supreme Court picks.

By mid-2021, which is the earliest that a Democrat can expect to fill a Supreme Court vacancy, seven members on the list would be sixty or above (Becerra; Earls; Karlan; Krasner; Minter; Pillard; Stevenson).  If we go to 2025, seventeen fall into that category.

Overall Analysis

Between the age issue and the judicial experience issue, one can see why some would criticize this list as being unrealistic.  However, as noted above, Demand Justice is not making appointments.  Its goal here is to push the conversation about Democrats towards nominating progressives for the bench, and it has done so here.

Furthermore, not everyone on Trump’s own lists was a plausible Supreme Court choice (did anyone realistically believe that Trump would appoint Michigan Supreme Court Justice Robert Young to the Supreme Court).  Rather, for many, placement on the list was intended to raise their profile before an expected lower federal appointment.  It is for this reason that so many names on the list found their way onto the federal bench.  Similarly, don’t be surprised if a President Warren or Sanders or Biden appoints Dale Ho to the Second Circuit; or Deepak Gupta to the D.C. Circuit; or Katie Porter to the Ninth Circuit.  As such, the greatest impact of this list may well be on the courts of appeals.

 

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Prof. Richard Myers – Nominee to the U.S. District Court for the Eastern District of North Carolina

The U.S. District Court for the Eastern District of North Carolina is home to one of the longest vacancies in the country, having opened in December of 2005.  Since then, conflicts between senators and the White House have kept this seat vacant through four presidential terms.  Now, Richard Myers, a professor with the University of North Carolina, is the fifth nominee to fill this vacancy.

Background

Richard Earnest Myers was born in Kingston, Jamaica, and grew up in Wilmington, NC.[1]  Myers attended the University of North Carolina at Wilmington and then became a reporter with the Star-News in Wilmington.  In 1995, Myers joined the University of North Carolina School of Law, graduating with high honors in 1998.  

After graduating, Myers clerked for Judge David Sentelle (a North Carolina native) with the U.S. Court of Appeals for the D.C. Circuit and then became an Associate with O’Melveny & Myers in Los Angeles.  In 2002, Myers became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California and later with the U.S. Attorney’s Office for the Eastern District of North Carolina.

In 2004, Myers joined the faculty of the University of North Carolina Law School, where he is currently a professor.

History of the Seat

Myers has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  In 2006, President George W. Bush nominated Thomas Farr, but, Farr’s nomination stalled after Democrats took control of the Senate after the 2006 elections.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[2]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[3]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[4]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[5]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[6]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[7]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[8] this time with the support of Burr and Senator Thom Tillis (R-NC).[9]  However, Farr’s nomination stalled on the Senate floor and was withdrawn due to lack of majority support when Republican Senators Tim Scott and Jeff Flake expressed their opposition based on Farr’s work with Sen. Jesse Helms at the time when the Senator worked to suppress African American votes in North Carolina.[10]  After Republicans picked up two seats in the 2018 Senate elections and Flake left the chamber, conservatives pushed to renominate Farr.[11]  However, Scott maintained his opposition and the White House decided not to move forward, instead choosing Myers.

Legal Experience

Before becoming a law professor, Myers has primarily worked in two legal positions: the first is as an Associate with O’Melveny & Myers; the second is as a federal prosecutor in two districts, the Central District of California and the Eastern District of North Carolina.  At O’Melveny, Myers worked in the White Collar Criminal Law and Environmental and Regulatory Compliance Practice Group.  At the firm, Myers most notably represented Wen Ho Lee, the Los Alamos scientist charged with stealing government secrets.[12]

Writings

As an academic, Myers has written extensively on the law, particularly focusing on criminal law and procedure, which is his area of expertise.

Prosecutorial Power

Myers has been particularly vocal on the growing power of prosecutors in the criminal justice system, speaking on the subject frequently in media.[13]  Myers has noted that this concentration of power can mean that the criminal justice system can be “held hostage” by rogue prosecutors.[14]  Myers’ work on this regard has been cited by African American journalist and author Ta-Nehisi Coates.[15] 

On a similar note, Myers has also criticized the American criminal justice system for making it difficult to “expand liberty” by repealing unjust or outdated criminal laws and penalties.[16]  Instead, Myers suggests that a constitutional amendment be passed that sunsets all criminal laws to expire after a period of twenty-five years unless renewed.[17]  Myers suggests that the proposed amendment would better reflect changes in society and would create a “pro-liberty bias” within criminal law.[18]

Fourth Amendment and the Exclusionary Rule

Myers has also written extensively on the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable searches and seizures.  In particular, Myers is a critic of the “exclusionary rule,” which requires that any evidence obtained through an illegal search be excluded from a criminal prosecution.  In one paper, Myers writes that the exclusionary rule only comes into play when evidence is found through the illegal searches, thus, ensuring that judges see only “guilty people trying to enforce their rights.”[19] 

Instead, Myers advocates for a separate court that oversees the executive branch’s searches and hears from victims of illegal searches who are both innocent and guilty of the underlying offenses.[20]  Myers notes:

“We need a new range of remedies because, to an important segment of the populace, the exclusionary rule clearly benefits the guilty, while providing such an attenuated benefit to the innocent in the form of deterrence that it extracts a high price from the system in terms of perceived legitimacy.”[21]

Political Activity

Myers is a Republican, and a member of the Federalist Society and the National Rifle Association.  However, his only political contribution of record was a $250 contribution in 2016 to Rep. George Holding.[22] 

Overall Assessment

Given how long this seat has sat vacant, and the number of nominees who have fallen by the wayside in the attempt to fill it, one can start to wonder if this seat is cursed.  However, if there is a nominee primed to end this “curse,” it is Myers.  Not only does Myers, as a African American attorney, not attract the same degree of opposition that Farr did, but his record should win him bipartisan approval.  In fact, Myers’ criminal justice jurisprudence largely accords with that of many liberals in its criticism of prosecutorial power and overcriminalization.

This is not to say that Myers will be a liberal on the bench.  He will likely be a conservative voice.  However, his criminal justice jurisprudence may well end up surprising many who thought they could pigeonhole the nominee, and despite being a former prosecutor, defense attorneys may well have a friend in Myers.

[1] AP, Trump Nominates Law Professor for Judicial Vacancy, Associated Press, Aug. 15, 2019, https://www.apnews.com/858d3a46c016451cad351b24eb1cc292.  

[2] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[3] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[4] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[5] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[6] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[7] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[8] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Press Release, Burr and Tillis Welcome Nomination of Thomas Myers as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[10] Marianne Levine and Burgess Everett, Tim Scott Sinks Trump Judicial Nominee, Politico, Nov. 29, 2018, https://www.politico.com/story/2018/11/29/senate-confirms-farr-judicial-nominee-1027236.  

[11] Emma Dumain, SC’s Tim Scott Still Opposes Thomas Farr, Has Sharp Words for Conservative Critics, McClatchy DC, Jan. 30, 2019, https://www.mcclatchydc.com/news/politics-government/congress/article225279815.html.  

[12] James Sterngold, Lee’s Dream Team High on Case, Low on Compensation; The Lawyers, Largely Unpaid, Say They’ve Become Fond of Los Alamos Scientist, Contra Costa Times, Sept. 11, 2000.

[13] See, e.g., Richard A. Oppel, Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. Times, Sept. 26, 2011.

[14] See id. (quoting Richard E. Myers).

[15] See Ta-Nehisi Coates, The Collapse of American Criminal Justice, Atlantic Online, Sept. 26, 2011.

[16] Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. Rev. 1327 (Nov. 2008).

[17] See id. at 1361-62.

[18] Id. at 1380.

[19] Richard E. Myers II, “The Exclusionary Rule: Is it On Its Way Out? Should It Be?”, 10 Ohio St. J. Crim. L. 571, 577 (Spring 2013).

[20] Id. at 578.

[21] Id. at 585.

[22] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=richard+myers&cycle=&state=NC&zip=&employ=&cand= (last visited Sept. 27, 2017).  

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Daniel Traynor – Nominee to the U.S. District Court for the District of North Dakota

Dan Traynor, a longtime North Dakota Republican, had set his sight on a judicial appointment in the Trump Administration, and, after having been passed over previously, has now been picked for the District Court in North Dakota.

Background

Daniel Mack Traynor was born in Devils Lake, North Dakota in 1970, the son of longtime state senator John T Traynor.  Traynor graduated from the University of North Dakota in 1994 and then attended the University of North Dakota Law School, graduating with distinction in 1997.[1]

After graduating, Traynor clerked for Chief Justice Gerald VandeWalle on the North Dakota Supreme Court and then started a solo practice, which he still maintains.  Traynor has also worked as the City Attorney of Devil’s Lake since 1998.

History of the Seat

While Traynor has been tapped for a seat expected to open with the retirement of Judge Daniel Hovland on November 10, 2019, his name was previously under consideration for the U.S. Court of Appeals for the Eighth Circuit.[2]  However, Traynor was not nominated for that seat, which went to U.S. District Judge Ralph Erickson.  Traynor was also passed over for the seat that Erickson vacated, but has now been tapped for Hovland’s seat.

Legal Experience

Traynor has primarily worked for himself in his hometown of Devil’s Lake, working on personal injury cases on both the plaintiff’s and defendant’s side.  Over the course of his career, Traynor has tried fifteen cases before a jury.  Among those, Traynor represented the defendant in a trial for “timber trespass” for the defendant’s cutting down of trees on the plaintiff’s property.[3] 

Among his other notable cases, Traynor defended the Norman Lutheran Church in Kindred, ND against  a suit brought by disgruntled parishioners who opposed the Church’s use of homosexual clergy.[4]  He also prosecuted, after an appointment from Gov. Doug Burgam, Ward County Sheriff Steven Kukowski after the death of an inmate in his jail facility.[5] 

Political Activity

Traynor is a Republican and has a long history with the North Dakota branch of the party, including having served as the Chairman from 2001 to 2003.[6]  Interestingly, as a Party delegate in the 1990s, Traynor pushed back against resolutions against same-sex marriage and supporting “parental rights.”[7]  Traynor has also served as Chair of the North Dakota chapter of the Republican National Lawyers Association since 2000, as well as being active within the American Bar Association (ABA).

Overall Assessment

The District of North Dakota is one of only three districts in the country that have just two active judgeships attached.  It’s already seen a fair amount of turnover with Ericksen’s elevation and replacement with Peter Welte.  With a largely mainstream record, Traynor looks favored to join the bench without too much controversy.

[1] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Daniel Mack Traynor 1.

[2] See David Lat, More Judicial Nominations From the Trump Administration, Above the Law, May 8, 2017, https://abovethelaw.com/2017/05/more-judicial-nominations-from-the-trump-administration/.  

[3] Haider v. Moen, Ward County Civil No. 51-2014-CV-00890.

[4] Grabanski v. Evangelical Lutheran Church in America, et al., Cass County Civil No. 09-2016-CV-00022.

[5] Jill Schramm, Kukowski’s Criminal and Civil Cases May Be Settled, The Bismarck Tribune, Apr. 12, 2017.

[6] See Traynor, supra n. 1 at 28.

[7] Compare John MacDonald, It’s No to Tax Hikes, Bismarck Tribune, Mar. 29, 1996, with Frederic Smith, GOP Panel OKs ‘Parental Rights,’ Bismarck Tribune, Mar. 30, 1996.

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Judge Danielle Hunsaker – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Last July, Ryan Bounds became a first appellate nominee to be rejected due to lack of majority support since the enactment of the nuclear option in 2013.  Bounds faced particular opposition due to the lack of support from his home-state senators.  With the senators in support of the newest candidate to that seat, Judge Danielle Hunsaker will likely be confirmed comfortably.

Background

Hunsaker was born Danielle Jo Forrest in 1977 in Roseburg, OR.  Hunsaker received her B.A. from the University of Idaho in 2001 and a J.D. from the University of Idaho Law School summa cum laude in 2004.[1]  After graduating from law school, Hunsaker clerked for Judge Paul Kelly on the U.S. Court of Appeals for the Tenth Circuit, Judge Michael Mosman on the U.S. District Court for the District of Oregon, and for Judge Diarmund O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit.[2] 

After her clerkships, Hunsaker joined Stoel Rives LLP in Portand as a Litigation Associate, and moved after a year to Larkins Vacura Keyser LLP, where she became a Partner in 2014.[3]  In 2017, Hunsaker was nominated by Gov. Kate Brown to the Washington County Circuit Court, where she currently serves.

History of the Seat

Hunsaker has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with O’Scannlain’s move to senior status.  In 2017, Oregon attorney Ryan Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.  Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez as a potential nominee to the White House.  However, the White House nominated Bounds on September 7, 2017.

In response, both Wyden and Merkley declined to return blue slips on Bounds, noting, in a letter to White House Counsel Don McGahn, that Bounds had not been approved by the state’s bipartisan judicial selection committee as of his nomination date, and that they had not been adequately consulted.  McGahn disputed the lack of consultation and instead criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.  Nonetheless, the Senate Judiciary Committee processed Bounds’ nomination.  However, the nomination failed on the Senate floor when Sen. Tim Scott announced his opposition based on writings from Bounds’ past that contained racially fraught statements.[4]

For her part, Hunsaker had applied for the vacancy with Democratic Sen. Ron Wyden.[5]  She interviewed with the White House in January 2018 (while Bounds was already the nominee) and again in July 2018 (after the defeat of Bounds’ nomination).  In June 2019, Hunsaker reapplied with Wyden and was selected as one of four finalists by Oregon’s Democratic Senators.[6]  Hunsaker’s nomination was subsequently announced by the White House.

Legal Experience

Before joining the bench, Hunsaker worked primarily as a commercial civil litigator.  Hunsaker notably represented the rideshare company Lyft in a suit to keep information on riders and drivers collected by Seattle regulators secret from access to media companies.[7]  She also represented investors in derivative actions and similar suits.  Furthermore, Hunsaker represented a prisoner injured in an excessive force claim against the guards who injured him.[8]

Jurisprudence

Hunsaker has spent the last two years serving as a circuit judge in Oregon, where she presides over criminal and civil cases on the trial level.  In this role, Hunsaker has presided over approximately 23 jury trials.  Among her more prominent cases, Hunsaker acquitted parents of a baby testing positive for methamphetamine of child abuse, ruling that the state had failed to prove the “knowing” element of child abuse.[9]

Writings

As a law student, Hunsaker authored a note discussing the Supreme Court’s decision in Ring v. Arizona and the subsequent Idaho remedial death penalty statute passed.[10]  Ring ruled that, where the death penalty is imposed, any additional aggravating factores leading to exposure to the death penalty must be determined by the jury and not by a judge.[11]  Hunsaker notes that this decision invalidated the death penalty scheme in Idaho, leading to a revised scheme wherein the jury convenes for a sentencing hearing after a determination of guilt in capital cases.[12]  Overall, Hunsaker commends the legislature for adapting the death penalty scheme post-Ring but adds that further tweaks may be necessary to ensure a role for the jury in capital sentencing.[13]

Overall Assessment

Hunsaker was not the Administration’s first choice for the Ninth Circuit, but she is nonetheless likely to get a comfortable confirmation.  Hunsaker’s Federalist Society credentials are likely to endear her to Republicans while her appointment by a Democratic Governor will ensure support from Democrats.

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

[2] Id. at 2.

[3] Id.

[4] Nina Totenberg and Jessica Taylor, Appeals Court Nomination Withdrawn Before An Expected Failure on Senate Floor, Nat’l Pub. Radio, Jul. 19, 2018, https://www.npr.org/2018/07/19/630552662/appeals-court-nomination-withdrawn-before-it-was-expected-to-fail-on-senate-floo.  

[5] See Hunsaker, supra n. 1 at 45.

[6] The other three finalists included two Oregon Court of Appeals judges, Judge James Egan, and Judge Erin Lagesen, and appellate attorney Bruce Campbell.

[7] See Lyft v. King Broadcasting Co., No. 16-2-26971-1 (Wash. Circ. Ct., King Cnty.).

[8] See Tilahun v. Oregon Dep’t of Corr., No. 2:13-cv-01074 (D. Or.).

[9] State v. Richelle Seamster, No. 18CR35682 (Or. Cir. Ct. Wash. Cnty.); State v. Andre Wamulumba, No. 18CR40953 (Or. Cir. Ct. Wash. Cnty.).

[10] Danielle J. Hunsaker, The Right to a Jury “Has Never Been Efficient; But It Has Always Been Free”: Idaho Capital Juries After Ring v. Arizona, 39 Idaho L. Rev. 649 (2003).

[11] Id. at 661-62.

[12] Id. at 669-70.

[13] Id. at 688.

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Jodi Dishman – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Jodi Dishman, an Oklahoma City based attorney, is Trump’s fourth pick for the Western District of Oklahoma, and will be the first woman appointed to the court after twenty five years.

Background

Dishman was born Jodi Marie Warmbrod in Memphis, TN in 1979.  Dishman attended Southern Methodist University, where she served as Student Body President.[1]  Dishman then attended the University of Oklahoma College of Law, where she graduated summa cum laude.[2]  After graduation, Dishman clerked on the U.S. Court of Appeals for the Fifth Circuit for Judges Carolyn Dineen King and Edward Prado.

After her clerkships, Dishman joined the San Antonio office of Akin Gump Strauss Hauer & Feld LLP as an Associate.  She become Counsel in 2010.  In 2012, she moved to Oklahoma City to join McAfee & Taft, where she became a Shareholder in 2014.  It is a position she currently holds.

History of the Seat

Dishman has been nominated to the U.S. District Court for the Western District of Oklahoma.  Judge Vicki Miles-LeGrange, who was the first African American appointed to this court when she joined in 1994, vacated this seat on November 5, 2018.  Dishman had previously interviewed with Oklahoma Senators in January 2017 to fill one of three other vacancies on the Western District, but was not selected.[3]  After Judges Miles-LeGrange moved to senior status, Dishman again expressed her interest.[4]  After another interview with an advisory committee set up by the senators, Dishman was selected as the nominee.

Legal Experience

Whether at Akin Gump or at McAfee & Taft, Dishman’s career has focused on commercial litigation.  Dishman has tried three cases as chief counsel and one as associate counsel in her career.[5]  The most prominent of these involved a lawsuit against an insurance company (her client) alleging that they breached their agreement in failing to make needed claim payments.[6]  Dishman also represented the company on appeal after a split verdict from the jury.

In another notable case, Dishman represented the Oklahoma City Landfill, LLC in a class action case by property owners who alleged that the landfill interfered with their properties.[7]  The case eventually settled.  

Overall Assessment

While most of Trump’s Oklahoma nominees have been fairly controversial, it’s unlikely that Dishman will be one of them.  While she is very young, Dishman has cut their teeth on some fairly complex cases, and, at forty, Dishman is the same age as the judge she will be replacing, Judge Miles-LeGrange, was at the time of her nomination.

[1] NBC News Broadcast, Attack on America, 12:00 Midnight, NBC, Sept. 15, 2001.

[2] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Jodi Dishman 1.

[3] Those seats were all filled with male candidates, Scott Palk, Charles Goodwin, and Patrick Wyrick.

[4] See id. at 32-33.

[5] See id. at 17.

[6] See Lavoy v. USAA General Indemnity Co., Case No. CJ-2014-131, District Ct., Jackson Cnty., Okla.

[7] See McCarty et al. v. Oklahoma City Landfill, LLC, et al., Case No. 5:12-cv-01152-C, W.D. Okla.

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