Joshua Kindred – Nominee to the U.S. District Court for the District of Alaska

Last year, the nomination of Jon Katchen to the federal bench in Alaska failed amidst opposition from Alaskan lawyers regarding Katchen’s relative inexperience.  The Trump Administration has responded by nominating an even younger lawyer with less experience.  This time, with a broader Senate majority, Republicans look to push through Joshua Kindred to the Alaska federal bench.

Background

        Joshua Michael Kindred was born in Goldsboro, North Carolina in 1977.[1]  He earned his B.A. from the University of Alaska at Anchorage in 1999 and his J.D. from the Willamette School of Law in 2005.[2]  He  clerked for Chief Justice Paul Demuniz on the Oregon Supreme Court before joining Lane Powell LLC in Anchorage as an associate.[3] 

In 2008, Kindred became a state prosecutor in Anchorage, a role which he held for five years.  In 2013, Kindred became Environmental Counsel at the Alaska Oil and Gas Associate, where he worked on both litigation and government relations on behalf of the Association.[4]  In 2018, he joined the U.S. Department of the Interior’s Office of the Regional Solicitor, where he currently serves.

History of the Seat 

        Katchen has been nominated to a vacancy on the U.S. District Court for the District of Alaska.  The vacancy opened with Judge Ralph Beistline’s move to senior status on December 31, 2015.  No nomination was put forward to the vacancy during the Obama Administration.

The Trump Administration initially nominated Jon Katchen, an Anchorage based attorney who was one of five candidates recommended by Alaska Senators Lisa Murkowski and Dan Sullivan.[5]  Katchen’s nomination drew sharp criticism from Alaskan attorneys, with Alaska Superior Court Judge Elaine Andrews, who presided over Alaska’s Anchorage courts, noting: “We should be taking the very best we have, and he may be decent, he may be very good, but he’s not the best we have.”[6]  Katchen ranked 13th out of 20 applicants on the Alaska Bar Association poll, with 31 percent rating him “extremely qualified” or “well qualified,” compared to 66 percent who gave those ratings to the top applicant, Eric Aarseth, a highly rated state judge since 2005.[7]  For whatever reason, Katchen never received a hearing, instead withdrawing his nomination on August 28, 2018.[8]

In August 2019, Kindred was contacted by Sullivan to gauge his interest in a federal judgeship.[9]  Kindred was selected as a nominee in August 2019 and was nominated on November 21, 2019.

Legal Career

Kindred’s legal experience largely derives from two positions, his time as an Assistant District Attorney in Anchorage, and his time with the Alaska Oil and Gas Association.

In the former role, Kindred was responsible for litigating misdemeanors and felonies in Alaska state court.  During this time, Kindred tried around 40 jury trials to verdict.[10]  In one of his most prominent trials, Kindred tried a defendant for First Degree Murder, seeking to get around the defendant’s self-defense argument.[11]  The case ended with an acquittal on the Murder charge, albeit with a conviction on a lesser Manslaughter charge.[12] 

In the latter role, Kindred participated in regulatory rulemaking processes, including commenting on proposed regulations of the Alaska oil and gas industries.  For example, in 2015, Kindred testified before the Senate Committee in favor of further oil and gas development under the Alaska National Interest Lands Conservation Act (ANILCA).[13]  He also opposed potential state regulations on fracking, arguing that the regulations are “unnecessary” and “provide delays and increased costs.[14]                  

Overall Assessment

        In 2018, Katchen’s nomination faced sharp criticism on the grounds that he was rated 13th out of 20 applicants before the Alaska Bar Association.  Today, Kindred has been nominated for the position despite having an even worse rating of 16th.[15]  Comparatively, while only 31% of respondents rated Katchen as Extremely Qualified or Well Qualified for a federal judgment, only 15% similarly rated Kindred.  As such, the same criticisms of youth and inexperience that dogged Katchen could be applied to Kindred.

        That being said, unlike Katchen, Kindred does have some experience with criminal law, including extensive experience litigating before juries.  Additionally, Kindred’s supporters will argue that his experience with the oil and gas industry is uniquely suited to Alaska.  In contrast, opponents will question Kindred’s commitment to enforcing environmental laws fairly.[16] 

        Overall, it is likely that Alaska Senators are tired of the extended vacancy on their courts.  While the Trump Administration could have picked a more experienced candidate, Kindred will be approved as long as senators find that he meets the minimum threshold to be a district court judge.


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

[2] Id.

[3]Id. at 2.

[4] Id. at 14.

[5]Charles Wohlforth, How Connections Trumped Qualifications to be Alaska’s New Federal Judge, Anchorage Daily News, Apr. 24, 2018, https://www.adn.com/opinions/2018/04/24/how-connections-trumped-qualifications-to-be-alaskas-new-federal-judge/.  

[6]Id.

[7]Id.

[8] Erica Martinson, Anchorage Attorney, Nominated By Trump, Withdraws From Federal Judgeship, Anchorage Daily News, Aug. 28, 2018, https://www.adn.com/politics/2018/08/28/anchorage-attorney-nominated-by-trump-withdraws-from-federal-judgeship/.  

[9]  See Kindred, supra n. 1 at 26.

[10]See id. at 15-16.

[11]See State of Alaska v. Josiah Darroux, 3AN-07-05280 CR (Alaska Super. Ct.).

[12] Id.

[13] See Testimony of Joshua Kindred, Sen. Comm. on Energy and Natural Resources, as reported by CQ Congressional Testimony, Dec. 3, 2015.

[14] Alaska Fracking Projects Could Get New Comment Period, A.P. State & Local, Jan. 27, 2017.

[15] See Alaska Bar Association Poll Results, https://s3-us-west-2.amazonaws.com/ktoo/2019/12/2017-Results-4.pdf (last visited Dec. 13, 2019).

[16] See, e.g., Kindred Won’t Protect Alaska’s Environment, States News Service, Dec. 3, 2019.

Lawrence VanDyke – Nominee to the U.S. Court of Appeals for the Ninth Circuit

The Senate votes today on one of the most controversial Trump nominees of this year: Lawrence VanDyke.

Background

Lawrence James Christopher VanDyke was born in 1972 in Midland TX.  After getting a B.S. from Montana State University in 1997, VanDyke attended Harvard Law School, where he graduated magna cum laude in 2005.  After graduating from law school, VanDyke clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit and then became an associate at Gibson Dunn in Dallas.[1] 

In 2012, VanDyke served as Assistant Solicitor General in Texas for a year before being selected by newly elected Attorney General Tim Fox as Attorney General in Montana.[2]  In 2014, VanDyke ran for a seat on the Montana Supreme Court but was not elected.  He then moved to Nevada to become Nevada’s Solicitor General under Attorney General Paul Laxalt.[3] 

In 2019, after Laxalt left and the Nevada Attorney General’s Office fell to Democrats, VanDyke joined the Department of Justice as Deputy Assistant Attorney General in the Environmental Division.

History of the Seat

VanDyke has been nominated for a future vacancy that will open upon the retirement of Judge Jay Bybee on December 31, 2019.  VanDyke was contacted by the White House to gauge his interest in a Ninth Circuit appointment in July 2019 and was nominated on September 19, 2019.

Legal Career

While VanDyke started his legal career as an associate at Gibson Dunn, the bulk of his career has been spent at the Solicitor General’s Offices in Texas, Montana, and Nevada.  Over his career, VanDyke has litigated extensively in state and federal courts.

In addition, VanDyke has also represented a number of conservative organizations and entities, including Alliance Defending Freedom, First Liberty, and Gays & Lesbians for Individual Liberty.

In particular, VanDyke has litigated against federal regulations, successfully enjoining a Department of Labor rule that reduced the number of employees who were exempt from overtime pay under the Fair Labor Standards Act.[4]

Writings

Consistent with the rest of his legal career, VanDyke’s writings generally reflect a conservative legal and political philosophy.  For example, as a law student, VanDyke authored a book review of Francis Beckwith’s Law, Darwinism, & Public Education: The Establishment Clause and the Challenge of Intelligent Design.[5]  In the article, VanDyke discusses Beckwith’s view on intelligent design, and suggests that it can be taught in the classroom without violating the Establishment Clause, arguing that intelligent design should be treated as akin to empirical fact rather than treating it as a religion.  VanDyke’s view drew sharp criticism from commentators who noted that intelligent design relies on Biblical principles rather than empirically determined facts.[6]

Additionally, while at Harvard, VanDyke authored a defense of Prof. Mary Ann Glendon, who had authored an editorial against gay marriage.[7]  The post, written in 2004, argues that social science research from Scandinavia suggests that same-sex marriage hurts “families, and consequently children and society.”[8]  He also notes that an expansion of rights for same-sex couples, including marriage, would infringe upon the rights of those with religious objections to such unions.[9]

Political Activity

In 2014, VanDyke challenged incumbent Montana Supreme Court Justice Mike Wheat.  VanDyke resigned as Solicitor General shortly before his challenge to Wheat, noting that he had “disagreements with co-workers over his approach to the job.”[10]  The campaign was heated, and VanDyke received a fair amount of criticism for his prior writings and speeches, particularly his views on intelligent design and on LGBT rights.[11]  During the election, VanDyke sought the endorsement of the National Rifle Association, endorsing a broad view of gun rights and noting that he had avoided becoming a member of the NRA in order to avoid recusal issues in his office.[12]  Wheat ultimately won the election by a comfortable margin.[13]

ABA Controversy

As it has done for every judicial nominee since the Eisenhower Administration, the American Bar Association Standing Committee on the Federal Judiciary conducted a review of VanDyke’s record.  After reviewing his record and conducting around 60 interviews with colleagues, judges, and attorneys, the ABA rated VanDyke as “Not Qualified.”[14]  In the letter, the ABA noted that some of the interviewees described VanDyke as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.”[15]  The ABA’s rating and letter has drawn criticism from Republicans who argue that the organization is biased against Trump nominees.[16]  For his part, the criticism raised complaints from VanDyke himself who argued that he was not given adequate time to explain the criticisms during his interview.

Overall Assessment

Today, the Senate will vote on and likely confirm Lawrence VanDyke to the Ninth Circuit.  Ironically, in framing its criticism of VanDyke in unusually candid terms, the ABA has likely ensured that VanDyke will ultimately be confirmed by making themselves a bugbear.

Let us set out the obvious: VanDyke has the academic qualifications for an appellate seat.  Even the ABA does not dispute this point.  As such, the real question is whether VanDyke’s history suggests that he would be a fair and impartial judge on the Ninth Circuit.  Opponents will find plenty in VanDyke’s record to argue that he will not, including his history of advocacy for conservative causes, his writings, and his NRA questionnaire.  

As such, this confirmation, like so many before in this Administration, will come down to a vote of Republicans v. Democrats.  In this Senate, that means that Republicans win.


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

[2] Id. at 2.

[3] Id.

[4] Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795 (E.D. Tex. 2017).

[5] Lawrence VanDyke, Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964 (2004).

[6] See Don Pogreba, A Creationist for the Montana Supreme Court? A Review of Lawrence VanDyke, The Montana Post, March 17, 2014, https://themontanapost.com/blog/2014/03/17/a-creationist-for-the-montana-supreme-court-a-review-of-lawrence-vandyke/.  

[7] Lawrence VanDyke, One Student’s Response to “A Response to Glendon”, Harvard Law Record, Mar. 11, 2004, http://hlrecord.org/one-students-response-to-a-response-to-glendon/.  

[8] See id.

[9] Id.

[10] Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47, 96 (Spring 2015).

[11] See John D. Echeverria, State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington, and Wisconsin, 16 Vt. J. Envr. L. 363, 365-66 (Spring 2015).

[12] See Lawrence Van Dyke, Questionnaire for the National Rifle Association, https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20-%20NRA%20Questionnaire.pdf.  

[13] See id.

[14] See Letter from William C. Hubbard, https://src.bna.com/Msq.  

[15] Id.

[16] See Madison Adler and Melissa Heelan Stanzione, Judicial Ratings Draw Ire of Left, Right After Tearful Hearing, Bloomberg Law, Nov. 6, 2019, https://news.bloomberglaw.com/us-law-week/judicial-ratings-draw-ire-of-left-right-after-tearful-hearing.  

Judge John Hinderaker – Nominee to the U.S. District Court for the District of Arizona

Sen. Kyrsten Sinema has generally supported President Trump’s judicial nominees, backing Arizona nominee Michael Liburdi even as many liberals actively opposed him.  Her relationship with the Administration has resulted in the nomination of her recommendation: Judge John Hinderaker.

Background

John Charles Hinderaker was born in 1968 in Indio, CA.  Hinderaker graduated from the University of California Santa Barbara in 1991 and then from the University of Arizona College of Law n 1996.[1]

After graduation, Hinderaker clerked for Judges John Roll and Raymond Terlizzi on the U.S. District Court for the District of Arizona. He then joined the Tucson office of Lewis Roca Rothgerber Christie LLP as an Associate.[2]  In 2003, he became a Partner with their office.  In 2018, Hinderaker was appointed to the Pima County Superior Court by Republican Gov. Doug Ducey.[3]  He continues to serve on that Court.

History of the Seat

Hinderaker has been nominated for a seat on the U.S. District Court for the District of Arizona.  This seat opened on March 4, 2019, when Judge Raner Collins moved to senior status.

In May 2019, Hinderaker was contacted by the Office of Sen. Kyrsten Sinema (D-AZ) to inquire as to his interest in a federal appointment.[4]  Hinderaker was recommended to the White House for appointment in late July 2019.  Hinderaker interviewed with the White House Counsel’s Office on August 14, 2019.  President Trump nominated him on December 2, 2019.

Legal Career

Hinderaker has spent virtually his entire pre-bench career as an attorney with Lewis Roca Rothgerber Christie LLP.  At the firm, Hinderaker worked primarily with complex civil litigation, focusing on issues of land use, property law, contract law, and torts.[5]

Notably, Hinderaker represented the City of Tucson in seeking to condemn a parcel of real property in order to widen the road.[6]  He also represented Walmart in defending against a tort suit brought by a woman who was attacked in the Walmart parking lot.[7] 

Jurisprudence

Hinderaker has served as a Superior Court judge since her appointment in 2018.  In this role, he serves as a primary trial judge, supervising criminal and civil cases.  Over the last year on the bench, Hinderaker has presided over approximately 19 cases that have proceeded to verdict or judgment.[8]  Among her more notable decisions, Hinderaker sentenced a man sentenced a man to eight years in prison for driving a vehicle while intoxicated and killing a bicyclist in an accident.[9]  Furthermore, given his short tenure on the bench, Hinderaker has never been reversed by a higher court.

Political Activity

While Hinderaker is a Democrat, he was appointed as a district judge by a Republican Governor.[10]  He also has a mixed contribution history, having contributed both to Democratic Rep. Gabby Giffords and Republican congressional candidate Lea Marquez Petersen.[11]

Overall Assessment

As Hinderaker is a Democrat appointed by a Republican president and supported by his Democratic and Republican home state senators, he is likely to have a relatively uncontroversial nomination.


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

[2] Id.

[3] Id.

[4] See id. at 49.

[5] Id. at 31.

[6] City of Tucson v. Han, No. C20151491 (Ariz. Super. Ct.).

[7] Sklias v. WalMart, No. C20145321 (Ariz. Super. Ct.).

[8] See Hinderaker, supra n. 1 at 16.

[9] State v. Corral, CR2016-3731-001 (Ariz. Super. Ct. 2018).

[10] Jeremy Duda, Judicial Nominees Announced, Yellow Sheet Report, Dec. 19, 2017.

Judge Scott Rash – Nominee to the U.S. District Court for the District of Arizona

Judge Scott Rash has built a conservative reputation on the Pima County Superior Court.  Now, he has been nominated for a seat on the federal bench in Arizona.

Background

Rash was born in 1963 in Minneapolis, MN.  Rash graduated from the University of Arizona in 1985 and then attended the University of Arizona Law School and Graduate School, getting a J.D. in 1991.[1]

After graduation, Rash joined the Arizona Attorney General’s Office as an Assistant Attorney General.[2]  In 1999, he joined Bosse Rollman P.C. in Tucson as a Shareholder.[3]  In 2010, Rash was appointed to the Pima County Superior Court by Republican Governor Jan Brewer.  He continues to serve on that Court.  

History of the Seat

Rash has been nominated for a seat on the U.S. District Court for the District of Arizona.  This seat opened on April 6, 2018, when Judge Cindy Jorgensen moved to senior status.  In January 2018, Rash was contacted by then Sen. Jeff Flake to gauge his interest in a judicial appointment.[4]  After interviews with Flake and Sen. John McCain, Rash interviewed with the White House on August 17, 2018 and was selected as a nominee in early September.

Despite having been selected as a nominee in September 2018, Rash saw no real movement on his nomination for the next few months, potentially because of Flake and McCain’s replacement by Sens. Kyrsten Sinema and Martha McSally.  Instead, Rash reinterviewed with McSally in April 2019 and then with Sinema in July 2019.  After getting their approval, Rash was nominated on October 15, 2019.

Legal Career

In his nineteen years in practice before becoming a state judge, Rash worked both for the Arizona Attorney General handling criminal law and in private practice, working on civil matters such as contract disputes, land use cases, and employment matters.  Over his time in practice, Rash tried 32 cases.[5]

Among his more significant cases, Rash represented the City of Tucson in prosecuting violations of municipal code signs and in defending against First Amendment challenges brought by Clear Channel Outdoor, Inc.[6]  The case ultimately settled after an extensive eight year long litigation.

Jurisprudence 

Rash has served as a Superior Court judge since his appointment in 2010.  In this role, he serves as a primary trial judge, supervising criminal and civil cases.  Over the last nine years, Rash has presided over approximately 208 cases that have proceeded to verdict and judgment.[7]

On the bench, Rash has developed a fairly conservative jurisprudence, frequently interpreting criminal laws expansively and protections narrowly.  For example, in one case, Rash barred a defendant from using the entrapment defense where the defendant was approached by an officer who asked him to help him obtain crack cocaine and who had expressed reluctance in performing the act.[8]  In another case, Rash held that a Defendant could be convicted of burglary for stealing from the bed of a pickup truck, ruling that the burglary statute covered such activity.[9]

Political Activity

In 2012, while Rash was a sitting state judge, he made a $250 contribution to Flake’s campaign, his only contribution of record.[10]  Further, Rash has been a member of the Federalist Society since 2018.

Overall Assessment

Given Rash’s extensive experience with litigation both as an attorney and as a judge, it is hard to dispute that he possesses the basic qualifications to be a federal judge.  While he may draw a few negative votes for his conservative jurisprudence, this is unlikely to seriously damage his confirmation.


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

[2] Id. at 2.

[3] Id.

[4] Id. at 53-54.

[5] Id. at 36.

[6] City of Tucson v. Clear Channel Outdoor, Inc., No. C20003722 (Ariz. Super. Ct.).

[7] See Rash, supra n. 1 at 9.

[8] See State v. Gray, 372 P.3d 999 (Ariz. 2016).

[9] See State v. Bon, 338 P.3d 989 (Ariz. Ct. App. 2014).

Judge Bernard Jones – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Judge Bernard Jones, while only forty, has already been on the bench for seven years.  His level of experience, alongside a relatively moderate record, should ensure a comfortable confirmation.

Background

Bernard Maurice Jones II was born in Oklahoma City in 1979.[1]  Jones attended Southern Methodist University in Dallas, graduating with a B.A. in 2001.  He then attended Notre Dame Law School, graduating in 2004.

After graduating, Jones joined Porter Wright Morris & Arthur LLP as an Associate.[2]  In 2006, he moved to Oklahoma City to be an Associate at McAfee & Taft.  In 2008, Jones joined the Oklahoma City University of Law as an Associate Dean.

In 2012, Jones was appointed to be a District Judge in Oklahoma by Governor Mary Fallin.[3] In 2015, Jones became a federal magistrate judge on the U.S. District Court for the Western District of Oklahoma.  He currently serves in that capacity.

History of the Seat

The seat Jones has been nominated for opened on July 1, 2019, with Judge Joe Heaton’s move to senior status.  Jones applied to fill the vacancy in February 2019.[4]  After interviews with Oklahoma Senators James Inhofe and James Lankford, as well as with the White House and the Department of Justice, Jones was selected as a nominee in July 2019.  Jones was officially nominated on October 17, 2019.

Political Activity

Jones’ only political record is as a campaign worker for Democrat Tony Sanchez, who was running for the Governor of Texas in 2002.[5]

Legal Experience

Jones’ litigation experience before he became a judge was relatively brief, consisting of his stints in private practice between 2004 and 2008.  In this time, Jones tried two cases before a judge and one before a jury.  His sole jury trial involved a fraud case concerning commercial real estate, which ended in a jury verdict against Jones’ client.[6]

Jurisprudence

Jones has served as a U.S. Magistrate Judge on the U.S. District Court for the Western District of Oklahoma since 2015, and served as a state court judge from 2012 to 2015.  In his time on the bench, Jones has presided over approximately twenty cases that proceeded to verdict or judgment.

State Court

As a state court judge between 2012 and 2015, Jones handled both civil and criminal matters under Oklahoma law.  In one notable case, Jones was asked to order the replaying of the last sixty-four seconds of a high school football match in response to an alleged poor call by a referee.[7]  Jones ultimately denied an injunction in the case, finding that plaintiffs could not meet the extraordinary burden needed before requiring court intervention into high school football matches.[8] 

U.S. Magistrate Judge

As a U.S. Magistrate Judge, Jones oversaw pretrial detention and settlement matters, as well as offering recommendations to district court judges on substantive rulings.  In one case, Jones recommended that a plaintiff’s civil rights claims concerning denial of medical treatment be dismissed, which was accepted by the district court.[9]  The Tenth Circuit, however, reversed the dismissal, finding that the district court had erred in not allowing the plaintiff to amend his complaint.[10]

Writings

Jones has only one published article to his name.  In 2008, Jones wrote an opinion piece in favor of stricter bans of public smoking.[12]  The piece countered arguments that such bans infringed on people’s freedom, stating:

“We agree that freedom is of utmost importance, but the freedom we seek is for the 75 percent of Oklahomans who do not smoke.”[13]

Overall Assessment

Despite his youth and relative lack of litigation experience as an attorney, Jones is still likely to be an uncontroversial nominee.  This is partially because he has extensive judicial experience, but it is also because Jones has not made any high-profile rulings and has avoided associations with controversial stances.  As such, Jones is poised to join the Western District.


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

[2] See id. at 2.

[3] Sheila Stogsdill, Fallin Names District Judge, The Daily Oklahoman, Sept. 18, 2012.

[4] Sen. Comm. on the Judiciary, 116th Cong., Bernard Jones: Questionnaire for Judicial Nominees 44-45.

[5] See id. at 34.

[6] Nudeal Enters. LLC v. Founder’s Tower Condos., LLC, CJ-2007-2454 (Okla. Cty. Dist. Ct. Mar. 26, 2007).

[7] Indep. Sch. Dist. No. I-89 of Okla. Cnty., Okla. v. Okla. Secondary School Activities Ass’n, CV-2014-2235 (Okla. Cty. Dist. Ct. Dec. 11, 2014).

[8] Scott Wright, Key Points in Judge Bernard Jones’ Ruling to Deny Douglass’ Injunction Request, The Daily Oklahoman, Dec. 11, 2014.

[9] See Gray v. GEO Group, Inc., 727 F. App’x 940 (10th Cir. 2018).

[10] See id.

[11] Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674 (W.D. Okla. Mar. 31, 2015).

[12] Bernard Jones, Don’t Forget Nonsmoker’s Rights, The Oklahoman, Apr. 5, 2008.

[13] Id.

Grace Obermann – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is seeing rapid turnover currently, largely the result of stalled nominations during the Obama Administration and unforced errors by the Trump Administration.  However, Grace Obermann, who is an administrative judge, should sail onto the CFC bench.

Background

Obermann was born Grace Stewart Karaffa in Rahway, NJ in 1961.  She received a B.A. from Rutgers University in 1984, and her J.D. from the George Washington University Law School in 1989.[1]  After graduation, Obermann joined Fish & Neave’s New York City Office.[2]

In 1990, Obermann completed a clerkship for Judge Raymond Clevenger on the U.S. Court of Appeals for the Federal Circuit and then joined the Department of Justice Commercial Litigation Branch, rising to become Assistant Director of the Intellectual Property Section.[3]  In 2012, she moved to the McLean, VA office of Davidson Berquist Jackson & Gowdey LLP, where she was of counsel.[4] 

In 2012, Obermann returned to D.C. to be an administrative patent judge with the U.S. Patent and Trademark Office.[5]  She currently holds that position.

History of the Seat

Obermann 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 Obermann was nominated for opened up on July 13, 2018, with the move to senior status of Judge Susan Braden.

In June 2019, Obermann’s name was forwarded by a former high school classmate to be considered for appointment to the CFC. Obermann interviewed with the White House in early July, and was nominated on October 3, 2019.[6] 

Legal Experience

Obermann’s career has largely focused on intellectual property law, approaching this from both the federal government and private practice sides.  In her career, Obermann has tried approximately 20 cases.  Among her more prominent cases, Obermann defended a patent infringement case filed by Exxon alleging that the United States had infringed its patents for synthesizing alternative fuels.[7]  After a grant of summary judgment in their favor and an appeal, Obermann’s client, the United States, ultimately settled the case for $2583, significantly less than the $400,000,000 value in open court.[8]

Judicial Experience

Since 2012, Obermann has served as an Administrative Patent Judge with the U.S. Patent & Trademark Office (PTO).  In this role, Obermann conducts administrative patent trials and resolves disputes and challenges.  Since 2017, Obermann has also sat on the Patent Trial and Appeal Board, which serves as an appellate review court for trial decisions.  In her tenure, Obermann has overseen over 300 trial proceedings.[9]

Overall Assessment

Obermann’s extensive experience with administrative law and particularly with issues of intellectual property should serve her well on this highly specialized court.  Unlike some other CFC nominees, Obermann likely will have few issues regarding experience and will be confirmed with bipartisan support.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See id.

[6] See Obermann, supra n. 1 at 47-48.

[7] Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371 (Fed. Cir. 2001).

[8] See Obermann, supra n. 1 at 35.

[9] See id. at 12.

Judge Andrew Brasher – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Six months ago, Judge Andrew Brasher was narrowly confirmed to be a U.S. District Court Judge.  Now, the 38-year-old Brasher is ready to move on from the position to the U.S. Court of Appeals for the Eleventh Circuit.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General of Alabama.[3] 

In April 2018, Brasher was nominated to the U.S. District Court for the Middle District of Alabama, filling a longstanding vacancy opened by the resignation of Judge Mark Fuller.  Brasher was confirmed by the Senate in a 52-47 vote on May 1, 2019, and has served on the Middle District since then.

History of the Seat

Brasher has been nominated for a seat on the U.S. Court of Appeals for the Eleventh Circuit.  The seat is being vacated by Judge Edward Carnes, who has a reputation as one of the most conservative judges on an already conservative court.

Legal Experience

Setting aside his clerkship, Brasher had two main legal jobs before he joined the federal bench: as an associate at Bradley Arant; and as Deputy Solicitor General and Solicitor General of Alabama.  During his time at Bradley Arant, Brasher worked in complex civil litigation, including product liability cases.  At the firm, he notably represented Republican Gov. Bob Riley in defending a controversial line item veto (later overturned by the Alabama Supreme Court).[12]

As the Deputy Solicitor General and Solicitor General of Alabama, Brasher defended Alabama laws and convictions before state and federal courts.  As such, Brasher argued three cases before the U.S. Supreme Court.  

In McWilliams v. Dunn, Brasher defended the imposition of the death penalty on James McWilliams, who alleged that he had serious mental health issues.[13]  McWilliams argued that Supreme Court precedent required him to have access to a defense expert to provide evidence of mental incapacity, which Brasher disputed.  The Supreme Court ultimately sidestepped the question of whether McWilliams was entitled to a defense expert, ruling instead that the judge erred in denying any expert examination of McWilliam’s mental state.[14] 

In Alabama Legislative Black Caucus v. Alabama, Brasher defended the constitutionality of Alabama’s state legislative districts.  The districts were ultimately struck down by the Supreme Court as an unconstitutional racial gerrymander intended to disenfranchise African American voters.[15]  Additionally, in Alabama Department of Revenue v. CSX Transp., Inc., Brasher defended an Alabama tax on diesel for rail carriers while exempting competitor industries against charges that it was discriminatory.  The Court ultimately held that Alabama had violated federal law.[16]

In addition to his Supreme Court work, Brasher has also litigated extensively in Alabama state and federal courts.  Notably, Brasher defended the constitutionality of “admission privilege” requirements for abortion providers in Alabama, struck down by Judge Myron Thompson, and ultimately enjoined after the Supreme Court struck down a virtually identical law in Whole Woman’s Health.[17]  Brasher also successfully defended Alabama’s ban on PAC-to-PAC transfers against allegations that it violated the First Amendment.[18]

Jurisprudence

Brasher has served on the U.S. District Court for the Middle District of Alabama since May 2019.  In the six months that he has served on the bench, Brasher has issued a number of orders and opinions in cases.  Many of the cases in which Brasher has authored opinions have been cases of employment discrimination.  In most of these, Brasher has sided with the employer, granting summary judgment in their favor in cases alleging racial,[19] age-based,[20] and disability-based discrimination.[21] 

However, Brasher has shown himself to be open to employee claims in some cases.  For example, in one case, Brasher allowed the sexual harassment claims of a male employee against Koch Foods to move to trial, noting that the employee had offered evidence that his female boss had terminated his employment shortly after he denied her sexual advances.[22]  Similarly, he granted summary judgment in favor of restaurant workers who were improperly denied minimum wages and overtime payments under the Fair Labor Standards Act.[23]

In other cases, Brasher ruled against a Dothan-based doctor who sued the federal government seeking refunds of tax payments,[24] and held that the Commodity Futures Trading Commission (CFTC) could not seek the maximum statutory penalty of disgorgement against corporations who had violated the Commodity Exchange Act.[25] 

Writings and Speeches

Setting aside the official positions he took as Alabama Solicitor General, Brasher had written and spoken extensively on legal and political issues before he joined the bench.  

Charitable Donations

On July 21, 2015, Brasher moderated a debate titled “Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations.”  The discussion was between Dr. Craig Holman from Public Citizen and Hans Von Spakovsky of the Heritage Foundation.[26]  While Brasher did not interject often in the debate, he did ask a couple of questions to each panelist.[27]

Federal Regulation

On February 4, 2017, Brasher served on a Federalist Society panel titled “Combating Federal Overreach.”[28]  The panel consisted of Brasher and the Solicitor Generals of Florida, West Virginia, and Texas, moderated by Allen Winsor, a former Florida Solicitor General who is now up for a federal judgeship.  Brasher specifically discussed the litigation over the EPA’s control of “navigable waters” as defined by the Clean Water Act and interpreted by the Army Corps of Engineers.  Brasher criticizes the rule as overly broad and beyond the statutory intent of Congress.  Later, Brasher also criticizes local regulations, noting:

“…oftentimes, you actually see a locality within a state that’s really, sort of, in league with the federal government against the state’s authority.”[29]

Same-Sex Marriage

In 2015, while defending Alabama’s ban on same-sex marriage before the U.S. Supreme Court, Brasher wrote an article on the subject on SCOTUSBlog.[30]  In the piece, Brasher argues that the Supreme Court “should at least reject the argument that these laws serve no legitimate state interest.”[31]  Instead, he argued that states maintained a legitimate interest in limiting marriage to opposite sex couples, noting:

“I hope that . . . [the Court] does not malign the majority of voters in a majority of states as irrationally prejudiced.”[32] 

Death Penalty

Shortly after the Supreme Court narrowly upheld Oklahoma’s lethal injection procedure in Glossip v. Gross, Brasher authored an article in SCOTUSBlog supporting the decision.[33]  In the article, Brasher argues that disputes about the method of administering the death penalty are actually about the legality of the penalty itself, stating:

“Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?”[34]

However, Brasher also acknowledges some of the arguments of death penalty opponents, noting:

“It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process.”

Redistricting

Shortly after the U.S. Supreme Court struck down North Carolina’s redistricted maps in Cooper v. Harris, Brasher published an article critical of the decision.[35]  Brasher suggested that the decision would lead to more judicial intervention in redistricting without providing adequate standards for them to do so, and suggested that courts impose a requirement on plaintiffs to offer a map that would meet the partisan goals of the legislature.[36]

Political Activity

Brasher, a Republican, has worked as a volunteer on the 2010 campaigns of Luther Strange to be Attorney General and of Bradley Byrne (now a U.S. Representative) to be Governor of Alabama.[37]  Brasher also served on the Trump Transition Team, coordinating criminal justice policy with the incoming Administration.[38]

In addition, Brasher donated $300 to the Alabama Republican Party in 2015, his only notable political contribution.[39]

Overall Assessment

Despite Brasher’s significant experience with litigation, his youth and strongly conservative writings and experience made him a controversial nominee at the district court level and caused his nomination to sit for over a year before confirmation by a narrow vote.  Now, as an appellate nominee, Brasher may well have a faster confirmation, simply because Republicans tend to prioritize appellate nominees.  Nonetheless, Brasher’s brief tenure as a district court judge, as well as his youth and conservative ideology, is likely to make him a controversial nominee.


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

[2] Id. at 2.

[3] Id.

[4] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[5] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[6] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[7] Matt Apuzzo and Michael S. Schmidt, Trump Judicial Pick Did Not Disclose He is Married to a White House Lawyer, N.Y. Times, Nov. 13, 2017, https://www.nytimes.com/2017/11/13/us/politics/trump-judge-brett-talley-nomination.html?_r=0.  

[8] Zoe Tillman, A Trump Judicial Nominee Appears to have Written About Politics on a Sports Website and Didn’t Disclose It, Buzzfeed News, Nov. 13, 2017, https://www.buzzfeed.com/zoetillman/a-trump-judicial-nominee-appears-to-have-written-about?utm_term=.lfJaLQm8G#.atjgYrER6.

[9] Mark Joseph Stern, Trump Judicial Nominee Brett Talley Appears to Have Defended “the First KKK” in Message Board Post, Slate, Nov. 15, 2017, http://www.slate.com/blogs/the_slatest/2017/11/15/trump_nominee_brett_talley_appears_to_have_defended_the_first_kkk.html.  

[10] Zoe Tillman, The White House Says Two of Trump’s Controversial Judicial Nominees Won’t Go Forward, BuzzFeed News, Dec. 12, 2017, https://www.buzzfeed.com/zoetillman/trump-is-suddenly-facing-a-significant-republican-roadblock?utm_term=.bo9w8BdnA#.siJmaqzpA.  

[11] See Brasher, supra n. 1 at 40-41.

[12] McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

[13] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

[14] See id.

[15] See 135 S. Ct. 1257 (2015).

[16] 135 S. Ct. 1136 (2015).

[17] See Planned Parenthood Southeast v. Strange, 2:13cv405-MHT (M.D. Ala.).

[18] Alabama Democratic Conference v. Attorney Gen., 838 F.3d 1057 (11th Cir. 2016).

[19] James v. City of Montgomery, Case No. 2:17-cv-528-ALB, 2019 WL 3346530 (M.D. Ala. July 25, 2019).

[20] See Knowles v. Inzi Controls Alabama, Inc., Case No. 1:17-cv-839-ALB, 2019 WL 4551609 (M.D. Ala. Sept. 19, 2019).

[21] See Hughes v. Wal-Mart Stores East, LP, Case No. 2:17-cv-225-ALB, 2019 WL 6048878 (M.D. Ala. Nov. 14, 2019).

[22] See Fuller v. Koch Foods, Inc., Case No. 2:17-cv-96-ALB, 2019 WL 3072633 (M.D. Ala. July 12, 2019).

[23] See Moulton v. W.W.I., Inc., Case No. 1:18-cv-67-ALB, 2019 WL 3558032 (M.D. Ala. Aug. 5, 2019).

[24] Turnham v. United States, 383 F.Supp.3d 1288 (M.D. Ala. 2019).

[25] U.S. Commodity Futures Trading Comm’n v. Dinar Corp., Inc., Case No. 1:15-cv-538-ALB, 2019 WL 3842069 (M.D. Ala. May 30, 2019).

[26] Andrew Brasher, Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations (July 21, 2015) (video available at https://www.youtube.com/watch?v=_1tFCp-rYGQ).  

[27] Id. at 41:22.

[28] Andrew Brasher, Combatting Federal Overreach (Feb. 4, 2017) (video available at https://www.youtube.com/watch?v=s-71pu5xnOA).

[29] Id. at 1:19:45.

[30] Andrew Brasher, Good Faith and Caution, Not Irrationality or Malice, SCOTUSBlog, Jan. 16, 2015, http://www.scotusblog.com/2015/01/symposium-good-faith-and-caution-not-irrationality-or-malice/.

[31] See id.

[32] Id.

[33] Andrew Brasher, The Death Penalty Lives to Fight Another Day, SCOTUSBlog, June 29, 2015, http://www.scotusblog.com/2015/06/symposium-the-death-penalty-lives-to-fight-another-day/.  

[34] Id.

[35] Andrew Brasher, A Recipe for Continued Confusion and More Judicial Involvement in Redistricting, SCOTUSBlog, Mar. 23, 2017, http://www.scotusblog.com/2017/05/symposium-recipe-continued-confusion-judicial-involvement-redistricting/.  

[36] Id.

[37] See Brasher, supra n. 1 at 20.

[38] See id.