Month: February 2020

Knut Johnson – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short five judges.  The Trump Administration and California’s Democratic senators have settled on a package of five nominees to fill the vacancies.  One of the Democratic picks is Knut Johnson, one of the most prominent criminal defense attorneys in San Diego.

Background

Knut Sveinbjorn Johnson was born in Chicago in 1957.  Johnson grew up in New Mexico and then attended Tulane University.[1]  He then received a J.D. cum laude from the University of San Diego School of Law in 1986.[2]

After law school, Johnson spent two years as an associate at Jenkins & Perry before joining the Federal Defenders of San Diego, Inc..[3]  In 1994, he moved to McKenna & Cuneo as an Associate before opening his own law practice in 1996.[4]  Johnson maintains that practice to this day.  

History of the Seat

Johnson has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on February 6, 2018, by Judge John Houston’s move to senior status.  Johnson applied with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris and interviewed with each in 2018.[5]  In February 2019, Johnson interviewed with the White House and was selected as a nominee.  Johnson was nominated on November 2, 2019.

Legal Experience

Johnson has spent virtually his entire career in criminal defense, making a name for himself as one of the most prominent criminal defense attorneys in San Diego, including service as the President of the San Diego Criminal Defense Bar Association.  Over the course of his career, Johnson has tried over 70 criminal cases, although he has only tried one civil bench trial.[6] 

Over the course of his career, Johnson has represented clients in some of San Diego’s most colorful cases.  For example, Johnson has represented a military officer who was charged with the beating of an illegal immigrant,[7] the “tattoo bandit” who robbed 22 people in San Diego,[8] the executive of a bidet company that faced charges of alleged false advertising,[9] and an individual who allegedly paid babysitters to bring him children to molest.[10]

Among his more significant cases, Johnson was court appointed to represent Everardo Arturo Paez, an accused Mexican drug kingpin.[11]  He also represented Jason Sullivan, the former social media advisor for Roger Stone.[12]

Political Activity

Throughout his career, Johnson has occasionally made political donations, all to Democrats.[13]  For example, Johnson donated $1625 to the presidential campaign of Hillary Clinton.[14]  Johnson also gave to Rep. Scott Peters and Sen. Kamala Harris.[15] 

Writings

Johnson has occasionally written on the law, generally focused on providing guidance in navigating the criminal justice process.  For example, in 1997, Johnson authored an article on subpoenas.[16]  The article advises criminal defendants on their rights relating to subpoenas and potential issues raised under the Fourth Amendment.[17]  He also authored another article advising solo practitioners on managing their practice.[18]

Overall Assessment

Criminal defense attorneys are vital to the orderly and effective operation of the criminal justice system.  Unfortunately, when put up for judgeships, defense attorneys often face demonization because of the clients they represent.  However, Johnson’s nomination by the Trump Administration should insulate him from the worst of the attacks.  As his background demonstrates both the legal experience and the acumen to be a federal judge, Johnson should be confirmed comfortably.

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

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] Id. at 46-47.

[6] Id. at 32.

[7] Dana Calvo, Civil Rights Indictment Unsealed, A.P. Online, Dec. 20, 1997.

[8] Kelly Wheeler, San Diego’s Alleged ‘Tattoo Bandit’ Goes On Trial, City News Service, Apr. 29, 1998.

[9] Don Bauder, Firm’s Bidet Claims Flush With Falsehoods, Regulators Allege, San Diego Union-Tribune, July 22, 1998.

[10] Kelly Wheeler, Man Who Got Babysitters to Bring Him Children to Molest Gets 45 Years to Life, City News Service, Aug. 5, 2010.

[11] Robert J. Caldwell, An Uncooperative Drug Kingpin and a Curious Plea Bargain, Copley News Service, Oct. 26, 2001.

[12] Kate Sullivan, Roger Stone Says He is ‘Prepared’ for Possibility of Special Counsel Indictment, CNN.com, May 20, 2018.

[14] Id.

[15] Id.

[16] Knut S. Johnson, Responding to Subpoenas: Constitutional and Practical Issues, 21 Champion 10 (Jan/Feb 1997).

[17] See id.

[18] Knut S. Johnson, Practice Management, on Your Own Solo and Small Firm Practices, 18 GP Solo 22 (Sept. 2001).

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Kathryn Davis – Nominee to the U.S. Court of Federal Claims

Kathryn Davis may only be 42, but her time with the Federal Programs Branch has involved her in some very significant cases.  

Background

Born Kathryn Celia Mason in Miami in 1978, Davis received a B.S. from Boston University and a J.D. from Temple University Beasley School of Law.[1]  After graduation, Davis joined McKissock & Hoffman P.C. in Philadelphia as an associate.[2]

After two years at McKissock and a year at Burns White LLC, Davis moved to Washington D.C. to become a trial attorney with the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.  Since 2014, Davis serves as a Senior Counsel in that Branch.[3] 

Additionally, Davis has been a Professor at the George Washington University School of Law since 2018, where she teaches Legal Research and Writing.[4]

History of the Seat

Davis 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 Davis was nominated for opened up on July 13, 2018, with the conclusion of the term of Judge Charles Lettow.

In February 2018, Davis was contacted by the White House regarding a vacancy on the CFC.  While she was interviewed in February 2018, she wasn’t selected as a nominee at the time.[5]  In June 2019, Davis was contacted again by the White House, and, this time, her nomination moved forward.  Davis was ultimately nominated on February 4, 2020.

Legal Experience

As an attorney with the Federal Programs Branch, Davis litigates cases across the country that challenge the Administration’s policies and initiatives.  To this end, Davis has litigated some very contentious political issues, defending both Obama and Trump Administration policies.

Detention in Guantanamo Bay

Across the Bush, Obama, and Trump Administrations, Davis handled a number of challenges to detention brought by detainees held in the Guantanamo Bay Detention Facility.[6] Notably, Davis defended the government’s policy of force-feeding Guantanamo Bay detainees who were on hunger strikes to protest government policies.[7]  Judge Rosemary Collyer sided with Davis’ position and denied an injunction to block the Government policy.[8]

Policy Defense

In addition to her work on Guanatanamo detention cases, Davis has litigated a number of contentious challenges to Administration policies.  For example, Davis defended the Administration’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program.[9]  She also defended the Administration’s building of border fencing and barriers against a court challenge brought by the U.S. House of Representatives.[10]

Writings

As a law student, Davis authored a law review article discussing the Supreme Court’s decision in Sattazahn v. Pennsylvania.[11]  The article was critical of the 5-4 opinion, which held that the State of Pennsylvania was not barred from seeking the death penalty for a defendant when a previous jury had deadlocked and was unable to decide whether to impose the death penalty.[12]  Specifically, Davis argued that the court “failed to safeguard the interests of a defendant who receives a life sentence, as mandated by state law, after a jury deadlocks on the life or death question in a capital sentencing proceeding.”[13]

Additionally, Davis noted the “unique, final nature of the death penalty” which “increases the need for double jeopardy protection” for defendants.[14]  Davis notes:

“Disregarding the Double Jeopardy Clause in capital sentencing does not mean just a wrongful conviction; it could mean the wrongful imposition of death.”[15]

Instead, Davis advocates that the Supreme Court hold that the Double Jeopardy Clause bars a state from seeking the death penalty in a subsequent trial where the initial sentencing jury failed to impose the death penalty.[16]

Overall Assessment

Trump’s CFC nominees in particular have drawn criticism for their youth and inexperience.  Davis, in contrast, may be young, but also has substantial experience with complex litigation.  While Davis may draw some criticism for her role in defending the Trump Administration’s initiatives, it must be noted that she is a career attorney who also played a role in defending the Obama Administration’s priorities as well.

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

[2] Id. at 2.

[3] Id.

[4] See id. at 22.

[5] See Davis, supra n. 1 at 24.

[6] See, e.g., Al Madhwani v. Obama, No. 04-cv-1194 (D.D.C.) (Hogan, J.); Al-Qahtani v. Bush, No. 05-cv-1971 (D.D.C.) (Collyer, J.); Esmail v. Obama, No. 05-cv-1254 (D.D.C.) (Kennedy, J.); Mingazov v. Obama, No. 05-cv-2479 (D.D.C.) (Kennedy, J.) (Hogan, J.).

[7] Rabbani v. Obama, 76 F. Supp. 3d 21 (D.D.C. 2014).

[8] See id. at 22.

[9] See NAACP v. Trump, 139 S.Ct. 2779 (2019).

[10] See U.S. House of Representatives v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019).

[11] Kathryn C. Mason, Life Or Limb: The Supreme Court’s Apathy Toward Capital Offenders Sentenced to Life Imprisonment By Operation of Law, 14 Temp. Pol. & Civ. Rts. L. Rev. 307 (Fall 2004).

[12] See Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).

[13] See Mason, supra n. 11 at 320.

[14] See id.

[15] Id.

[16] See id. at 321.

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Anna Manasco – Nominee to the U.S. District Court for the Northern District of Alabama

An Alabama-based attorney who worked closely with Eleventh Circuit Judge Kevin Newsom before the former’s appointment to the federal bench, Anna Manasco has been tapped for the U.S. District Court for the Northern District of Alabama.

Background

An Alabama native, Anna Marie Manasco was born in Montgomery in 1980.  She was involved in public service from a young age, attending Girls Nation in Washington D.C. and having a chance to meet President Bill Clinton and Vice President Al Gore.[1]  Manasco received a B.A. summa cum laude from Emory University, a Masters of Science and a Doctor of Philosophy degree from the University of Oxford and a J.D. from Yale Law School.[2]  After graduating, Manasco clerked for Judge William Pryor on the United States Court of Appeals for the Eleventh Circuit.

After her clerkship, Manasco joined the Birmingham office of Bradley Arant Boult Cummings LLP, where she became a Partner in 2019.  She is currently with the firm.

History of the Seat

Manasco has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat will open on April 25, 2020, when Judge Karen Bowdre is scheduled to take senior status.  While this seat hasn’t opened yet, Judge Bowdre announced her departure months in advance and Manasco had been recommended to fill the seat back in July 2019.[3]  Manasco’s nomination was sent to the Senate in February 2020.

Legal Experience

Manasco has spent our entire legal career at the firm of Bradley Arant Boult Cummings LLP, where she practiced in trial and appellate litigation in state and federal court.  However, Manasco has never tried a case to a jury in either state or federal court.[4] 

Among her more notable cases, Manasco represented the drug company Wyeth in seeking to defend against lawsuits alleging a failure to warn of long term use risks for the drug Reglan.[5]  Manasco argued that plaintiffs could not seek damages against Wyeth where they had been injured from taking the generic version of Reglan made by a different manufacturer.  However, the Alabama Supreme Court disagreed in an 8-1 vote, finding that Alabama law could justify liability under such circumstances.[6]

In other cases, Manasco worked on a number of cases alongside then-Partner Kevin Newsom, who now serves on the U.S. Court of Appeals for the Eleventh Circuit.  Manasco also represented the travel website Priceline.com in seeking to defend against tax charges levied against them in New Hampshire.[7]

Overall Assessment

Despite her youth, Manasco has cut her teeth on some fairly complex cases.  This experience, combined with her support from Alabama’s senators and her relatively apolitical background, makes Manasco a fairly uncontroversial nominee.

Nonetheless, Manasco could face some criticism for her lack of trial experience, but given the fact that nominees with significantly less litigation experience have been approved, Manasco shouldn’t face too many issues.

[1] Pres. Clinton to Greet 96 Girls Nation Senators, U.S. Newswire, July 17, 1997.

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

[3] See id. at 42.

[4] See id. at 19.

[5] Wyeth Inc., et al. v. Weeks et al., No. 1101397 (Ala. Sup. 2013).

[6] See id.

[7] New Hampshire v. Priceline.com, Inc., 2016 A.3d 333 (N.H. 2019).

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Drew Tipton – Nominee to the U.S. District Court for the Southern District of Texas

Baker Hostettler partner Drew Tipton, who has focused his career on employment and labor litigation, is poised to fill the last judicial vacancy on the Texas federal bench.

Background

Tipton was born in Angleton TX in 1967.  Tipton graduated from Texas A&m University in 1990 and received a J.D. from South Texas College of Law in 1994.[1]  After graduating, Tipton clerked for Judge John Rainey on the U.S. District Court for the Southern District of Texas.  He then joined the Houston office of Littler Mendelson P.C. as an Associate.

In 1997, Tipton moved to Victoria, Texas, to the firm of Houston, Marek, & Griffin LLP.[2] In 1999, Tipton moved to the Houston office of Baker Hostettler, where he became a Partner in 2001, and where he still practices.

History of the Seat

Tipton has been nominated to fill a vacancy opened by Judge Sim Lake’s move to senior status on July 5, 2019.  In late 2019, Tipton applied and interviewed with the Federal Judicial Evaluation Committee (FJEC) created by Texas Senators John Cornyn and Ted Cruz to fill federal judicial vacancies.[3]  Tipton interviewed with the White House in November 2019 and was subsequently selected as a nominee.

Legal Experience

Tipton’s career in private practice is primarily at the firm of Baker Hostettler, where he primarily practices in labor and employment law.[4]  While he started his career in representing plaintiffs in employment matters, he currently primarily represents defendants.[5]  Tipton has tried six cases as lead counsel and an additional six as associate counsel.[6]

In one of his most significant cases, Tipton represented a company sued by its employee, who alleged an attempt to murder him.[7]  The Plaintiff in the case, Andy Olmeda, was a machinist who was shot at with a shotgun by two employees, both of whom were intoxicated at the time.[8]  Olmeda brought a number of charges against his employer, including assault and battery.  However, all claims were dismissed after discovery by Judge Martin Feldman.[9]

Political Activity

Tipton has been fairly active with the Republican Party, serving as a member of the Republican National Lawyers Association and of the Federalist Society.  He’s also been a frequent donor to Republicans, giving over $8000 to Cornyn and approximately $3000 to Cruz.[10]

Overall Assessment

While many of Trump’s nominees in Texas have drawn sharp criticism, Tipton’s relatively noncontroversial background and lack of controversial statements should grease his path to confirmation.

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

[2] See id.

[3] Id. at 25.

[4] See id. at 13-14.

[5] Id. at 14.

[6] See id.

[7] Olmeda v. Cameron Int’l Corp., 139 F. Supp. 3d 816 (E.D. La. 2015).

[8] Id. at 821.

[9] Id. at 837.

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Judge John Badalamenti – Nominee to the U.S. District Court for the Middle District of Florida

A longtime public defender, Judge John Badalamenti is President Trump’s fourth nominee to the U.S. District Court for the Middle District of Florida.

Background

The 45-year-old Badalamenti received a B.A. in Criminology and an M.A. in Sociology from the University of Florida.[1]  Badalamenti then received his J.D. from the University of Florida Levin College of Law, after which he joined the U.S. Attorney General’s Honors Program, where he was placed with the Federal Bureau of Prisons in Atlanta.[2]

After his time with the Honors Program, Badalamenti clerked for Judges Frank Hull and Judge Paul Roney on the U.S. Court of Appeals for the Eleventh Circuit before joining the Federal Public Defender’s Office for the Middle District of Florida.[3] 

In 2015, Badalamenti was appointed to the Second District Court of Appeal in Florida by Governor Rick Scott.  He still holds the judgeship.

History of the Seat

Badalamenti has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on December 14, 2018, when Judge Elizabeth Kovachevich moved to senior status.  

Badalamenti was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio in December 2017.[4]  Badalamenti was formally nominated on February 4, 2020.

Legal Experience

Badalamenti has most of his pre-bench career as a federal public defender, an unusual background for a judicial nominee, particularly one in a Republican administration.  In his role as a federal public defender, Badalamenti practiced before the U.S. Court of Appeals for the Eleventh Circuit, as well as the U.S. District Court for the Middle District of Florida.  For example, in one case, Badalamenti successfully got the sentences of his client reversed on the grounds that a prior conviction for carrying a concealed weapon should not be considered a “violent” crime for sentencing enhancement.[5] 

However, Badalamenti’s most notable case was Yates v. United States, which he argued before the U.S. Supreme Court.[6]  In the case, his client was caught catching grouper that were too small to fit under federal regulations, and subsequently disposed of the small fish before federal authorities could inspect the catch.[7]  Yates was prosecuted and convicted for destruction of evidence under a provision in the Sarbanes-Oxley Act that criminalized destroying “tangible objects” while impeding federal investigations.[8]  Ultimately, the Supreme Court, in a 5-4 ruling, agreed with Badalamenti that the Sarbanes-Oxley charges were improper.[9]  The ruling cut across ideological lines with Justice Ruth Bader Ginsburg writing the opinion striking down the conviction, which was joined by Chief Justice John Roberts, and Justices Stephen Breyer, Samuel Alito, and Sonia Sotomayor.[10]  Meanwhile, Justice Elena Kagan dissented, joined by Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

Judicial Experience

Badalamenti served as an appellate judge in Florida since 2015.  In this role, Badalamenti serves as an intermediate appellate judge, reviewing criminal and civil appeals from the county courts and the circuit courts.  

Among his most notable cases while sitting as an appellate judge, Badalamenti joined an opinion finding that the state of Florida needed to reimburse Lee County homeowners for cutting down healthy citrus trees, an act committed to slow down the spread of citrus-canker disease.[11]  Badalamenti agreed with the trial court that the Takings Clause of the Florida Constitution required repayment even where the repayment had not been authorized by the Florida legislature.[12]

Overall Assessment

Much ink has been spelled on the relative paucity of public defenders on the federal bench compared to prosecutors, and the brutal campaign against Judge Jane Kelly, another former public defender, during her brief consideration for the Supreme Court helps explain why that gap exists.  

Nonetheless, public defenders perform an important constitutional duty in the criminal justice process.  Given his support from Trump and Florida’s Republican senators, Badalamenti should be able to avoid any negative comment from his work.

[1] Florida Second Circuit Court of Appeal, Judge John L. Badalamenti, Biography (available at https://www.2dca.org/Judges/Judge-John-L.-Badalamenti),

[2] Id.

[3] Id. 

[4] Fellow nominees Thomas Barber and Wendy Berger were also finalists.

[5] United States v. Canty, 570 F.3d 1251 (11th Cir. 2009).

[6] See 135 S. Ct. 1074.

[7] See Robert Barnes, Justices Tackle the Case of the Missing Grouper: Federal Prosecutors Used a Portion of the Law to Tackle a Commercial Fisherman Who Threw Some Back, Wash. Post, Nov. 5, 2014.

[8] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[9] Supreme Court: One Fish, Two Fish, Red Fish, Blue Fish, CNN Wire, Feb. 25, 2015.

[10] See id.

[11] See Jim Saunders, Court Says State Should Pay in Citrus Fight, The News Service of Florida, Nov. 13, 2019, https://cbs12.com/news/local/court-says-state-should-should-pay-in-citrus-fight.

[12] See id.

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