The vacancy on the U.S. District Court for the Eastern District of Wisconsin left open by Judge Rudolph Randa is one of the oldest unfilled vacancies in the country.  The Trump Administration’s first nominee for this seat, Gordon Giampietro, failed to fill confirmation after controversial writings from his past came to light during the confirmation process.  The Trump Administration is now trying again by nominating U.S. Bankruptcy Judge Brett Ludwig.

Background

Brett H. Ludwig was born in Marshfield in central Wisconsin in 1969.^[1]  Ludwig received his B.A. with Highest Honors from the University of Wisconsin in 1991 and his J.D. magna cum laude from the University of Minnesota in 1994.^[2]  After graduating law school, Ludwig clerked for Judge George Fagg on the U.S. Court of Appeals for the Eighth Circuit.^[3]

After his clerkship, Ludwig joined the Milwaukee Office of Foley & Lardner.^[4]  Ludwig eventually rose to become a Partner in 2003 and Vice Chair of the firm’s Insurance & Reinsurance Litigation Practice.^[5]  Ludwig held that position until 2017, when he was appointed to be a U.S. Magistrate Judge, in which role he serves today.

History of the Seat

Ludwig has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on February 5, 2016, by Judge Rudolph Randa.  Interestingly, Randa had expressed his interest in moving to senior status back in 2007, and the Bush Administration had nominated state judge Timothy Dugan to replace him.^[6]  However, Dugan was never confirmed by the then-Democratic senate, and, after the election of President Obama, Randa reversed his desire to go on senior status.

In February 2017, Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively, announced the renewal of their bipartisan Judicial Nominating Commission.  The Committee produced four names to the White House in August 2017.^[7]  After interviews with the White House Counsel’s Office and the Department of Justice, Gordon Giampietro was nominated on December 20, 2017.

On February 2015, 2018, Zoe Tillman at Buzzfeed broke the story that Giampietro had, in his writings and interviews, made “disparaging comments about diversity, same-sex relationships, and birth control.”^[8]  Specifically, in a 2015 radio interview, Giampietro stated that it was “irrefutable” that children were best-raised by heterosexual couples and that same-sex relationships were troubled.^[9]  In other comments, Giampietro referred to the birth control pill as an “assault on nature” and suggested that diversity was “code for relaxed standards.”^[10]  In response to the story, Baldwin indicated that the statements had not been disclosed to the Evaluation Commission and that they “raise serious questions about whether this nominee would be able to serve as a fair and impartial judge.”^[11] 

In response, Giampietro wrote to Baldwin privately arguing that the article “reads like an attack on my Catholic faith.”^[12]  Additionally, five Wisconsin based Catholic bishops wrote to Baldwin arguing that Giampietro was “not receiving a fair hearing because of his Catholic faith.”^[13]  Furthermore, members of the Evaluation Commission disagreed as to the significance of the undisclosed statements, with Republican member Rick Esenberg arguing that the statements were irrelevant while Democratic member Barbara Quindel indicating that the Commission would not have recommended Giampitro if they had known about the statements.^[14]

Faced with this new information, Baldwin declined to return a blue slip on Giampietro, and no hearing was ever held on his nomination.  After Baldwin won re-election in 2018, Giampietro’s nomination was not sent back to the Senate.

After the Trump Administration declined to nominate any of the other candidates recommended by Baldwin and Johnson, the Senators sent a new list of four candidates to the White House in December 2019.^[15]  Trump nominated Ludwig from that list on February 27, 2020.^[16]

Legal Experience

Excluding his time as a clerk, Ludwig has spent his entire pre-bench career at the firm of Foley & Lardner, where he focused primarily on insurance litigation.  For example, Ludwig represented Hamlin Inc., an insurance company seeking to recover liability costs from its liability insurers.^[17]  In his career, Ludwig has tried around 13 cases to verdict, including cases before arbitration tribunals.^[18]

Among his more prominent cases, Ludwig represented the Ford Motor Company in a jury trial concerning a “Lemon Law” claim regarding a Ford semi-tractor.^[19]  Ludwig has also represented criminal defendants in federal court, notably representing a defendant challenging his 58-month sentence for armed robbery.^[20]   

Jurisprudence

Since 2017, Ludwig has served as a U.S. Bankruptcy Judge.  In this role, Ludwig reviews federal bankruptcy filings and proceedings.  In one of his earlier rulings as a bankruptcy judge, Ludwig held that a litigant who had filed six bankruptcy proceedings but had failed to comply with requirements under the code was abusing the bankruptcy process.^[21]  In another, Ludwig allowed creditors to recover for claims filed on an untimely basis, finding that a previously entered bankruptcy order in the case permitted reorganization and payment on the creditor’s proof of claims.^[22]

Overall Assessment

While the Trump Administration may be burned from its previous failure at filling this seat, Ludwig lacks all the factors that made Giampietro’s confirmation difficult.  Ludwig lacks a strong record of controversial statements, has little to no involvement in politics, and has spent his entire career in insurance and bankruptcy litigation, an area that generally attracts little controversy.  As such, Ludwig looks likely to keep the support of his home-state senators and to be confirmed in due course.

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