Month: November 2020

Judge Raul Arias-Marxuach – Nominee to the U.S. Court of Appeals for the First Circuit

While President Trump has had a significant impact on most of the federal courts of appeals, he has yet to appoint any judges to the U.S. Court of Appeals for the First Circuit, which has remained moderately liberal under the influence of three appointees of President Obama and the pioneering Judge Juan Torruella.  However, Judge Torruella’s untimely death in October may give President Trump a chance to place his stamp on the court.

Background

Raul Manuel Arias-Marxuach was born in San Juan, Puerto Rico in 1967.  Arias-Marxuach received his B.S. cum laude from Boston College in 1989 and his J.D. from the University of Puerto Rico School of Law in 1992.[1]  After graduating, Arias-Marxuach clerked on the Supreme Court of Puerto Rico and then received an LLM from Harvard Law School.

After receiving his LLM, Arias-Marxuach joined the San Juan firm Fiddler Gonzalez & Rodriguez P.S.C. as a Litigation Associate.[2]  In 1995, Arias-Marxuach moved to McConnell Valdes LLC.  Arias-Marxuach became an Income Partner at the firm in 1999 and a Capital Partner in 2003.[3] 

In March 2017, Arias-Marxuach was contacted by the White House after being recommended for a federal judgeship by Resident Commissioner Jenniffer Gonzalez.[4]  Arias-Marxuach was selected as the primary candidate for a vacancy on the U.S. District Court for the District of Puerto Rico in April 2017, but was not officially nominated for the next year, until April 10, 2018.  The Senate confirmed Arias-Marxuach by a 95-3 vote on May 2, 2019, and he has served as a federal judge since.

History of the Seat

Arias-Marxuach has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit.  This seat opened with the death of Judge Juan Torruella, a pioneering judge who was the first from Puerto Rico to sit on the First Circuit, on October 26, 2020.

Political Activity

Arias-Marxuach has limited political experience, having worked as a volunteer attorney for the campaign of Governor Luis Fortuno in 2008 (Fortuno caucused with the GOP as a resident commissioner in Washington).[5]  He also served as a member of the Republican National Lawyers Association.[6] 

Legal Experience

Arias-Marxuach has spent almost his entire legal pre-judicial career at the same firm, working in a variety of subject areas including maritime law, product liability, and antitrust matters.[7]  During his career, Arias-Marxuach has tried three cases to verdict before the U.S. District Court for the District of Puerto Rico.[8] 

Among the most notable cases he handled, Arias-Marxuach represented the University of Puerto Rico in seeking legal remedies against 21 student “strikers” who sought to maintain collective action against the University.[9]  The case went all the way to the Puerto Rico Supreme Court, which found that students at the University do not have the right to strike.[10]

Judicial Experience

Arias-Marxuach has served as a federal district judge for a year and a half.  During this time, he has authored only one published opinion, granting the plaintiff’s motion to remand a gross negligence action to the Puerto Rico Court of First Instance.[11]

Among other matters over which he has presided, Arias-Marxuach reviewed the plea of Trevor Leslie Doyle, a radio host convicted of trying to solicit sex from a minor.[12]  He also presided over a civil suit against the Municipality of Guynabo, alleging that the former mayor’s son, Hector O’Neill Rosa, engaged in a pattern of sexual harassment.[13]

Overall Assessment

Judge Arias-Marxuach’s confirmation to the federal bench, while slow (taking more than 2 years from recommendation to confirmation) was widely bipartisan.  His record on the bench itself is also uncontroversial.  However, no President since Jimmy Carter has seen lame-duck confirmations to the court of appeals, and it is unclear whether the eight weeks remaining until the new Administration is enough time to process Judge Arias-Marxuach’s nomination.

[1] Sen. Comm. on the Judiciary, 115th Cong., Raul Arias-Marxuach: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[5] See id. at 8.

[6] See id. at 4.

[7] See id. at 1.

[8] See id. at 18.

[9] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[10] See Univ. of Puerto Rico v. Labarde Torres, 180 D.P.R. 253 (P.R. 2010).

[11] See Carrillo v. Marina Puerto Del Ray Operations, LLC., 432 F. Supp. 3d 7 (D.P.R. 2019).

[12] See Radio Host Reaches Plea Agreement, Court Docs Say, The Telegraph-Journal, Jan. 11, 2020.

[13] See Judge Reserves the Ruling on Dismissal, CE Noticias Financieras English, Oct. 29, 2019.

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Joseph Dawson – Nominee to the U.S. District Court for the District of South Carolina

The J. Waites Waring Judicial Center in Charleston, SC

There has never been an African American judge on the South Carolina federal bench appointed by a Republican President.  If confirmed, Charleston County attorney Joseph Dawson would break that notable barrier.

Background

Born in 1970, Joseph Dawson III received a B.A. from The Citadel in 1991 and a J.D. from the University of South Carolina Law School in 1997.[1]  While a law student, Dawson worked as a clerk at the Charleston County Attorney’s Office.  Upon graduation, Dawson was hired there as an Assistant County Attorney.  In 2000, Dawson became Deputy County Attorney and has served as County Attorney since 2001.[2] 

Additionally, Dawson has also maintained a part-time solo practice since 2001.

History of the Seat

The seat Dawson has been nominated for opened on February 28, 2019, with Judge Terry Wooten’s move to senior status.  Dawson was nominated on October 23, 2020 at the recommendation of U.S. Sen. Tim Scott.

Legal Experience

Dawson’s primary role is as County Attorney for Charleston County.  In this capacity, Dawson oversees all legal matters for the County and manages the County Attorney’s Office, with a budget of approximately $1.7 million.[3]  Among Dawson’s more prominent cases, he was the primary lawyer defending the County Assessor in a suit challenging tax assessments laid against a new Hampton Inn & Suites.[4]  After losing the suit at trial, Dawson appealed the matter to the South Carolina Court of Appeals and the South Carolina Supreme Court, which ultimately upheld the assessment.[5]

However, Dawson’s tenure as County Attorney has not been without some controversy.  In 2011, Dawson drew criticism for drawing an income of over $300,000 a year from the County, significantly more than other County Attorneys across the state.[6]  Dawson’s contract maintained a fixed salary of $172,500 but permitted compensation for additional legal services, which allowed for the greater income.[7] 

Overall Assessment

Salary issues aside, there is little in Dawson’s background that should attract controversy during his confirmation.  Rather, the biggest issue Dawson is facing is the depleting Senate calendar.  Nonetheless, I expect that, as Dawson has already received a hearing and the Judiciary Chairman is his home-state senator, his nomination will be one of the last confirmed before the end of the Congress.

[1] Sen. Comm. on the Judiciary, 116th Cong., Joseph Dawson III: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 17-18.

[4] See Charleston Cnty. Assessor v. Univ. Ventures, LLC, 427 S.C. 273 (2019).

[5] Id. 

[6] Bill Sharpe, Charleston County Attorney Dodges Questions About His Salary, Live 5 News, May 3, 2011, https://www.live5news.com/story/14566073/charleston-county-attorney-dodges-questions-about-his-salary/.

[7] See id.

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Charles Atchley – Nominee to the U.S. District Court for the Eastern District of Tennessee

Longtime federal prosecutor Charles Atchley is President Trump’s latest nominee to the U.S. District Court for the Eastern District of Tennessee.  While Atchley has the support of his home-state senators, he has a very short confirmation window before the end of the year.

Background

A Tennessee native, Charles Edward Atchley Jr. was born in Knoxville in 1966.  He graduated from the University of Tennessee in 1989 and then attended Cumberland School of Law at Samford University, graduating in 1993.[1]  Atchley then joined the Office of the District Attorney General as a state prosecutor in 1994.

In 2001, Atchley became a federal prosecutor at the U.S. Attorney’s Office for the Eastern District of Tennessee.[2]  Atchley became First Assistant with the Office in 2018 and has served in that capacity since.  

History of the Seat

Atchley has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on March 10, 2020, when Judge Harry Mattice moved to senior status.  Atchley applied for a federal judgeship and was recommended by Tennessee’s senators to the White House in September 2019.[3]  However, he was not formally nominated until September 2020, more than a year later.

Legal Career

Atchley has spent virtually his entire legal career as a prosecutor, spending seven years at the state level and nineteen at the federal level.  In this time, Atchley has tried more than 50 cases to judgment or verdict.[4]

During his time as a prosecutor, Atchley has handled a number of high profile cases, most notably prosecuting Allen Ho for trying to recruit nuclear experts to help the Chinese government.[5]  Atchley also prosecuted Tennessee Rep. Joseph Armstrong, a Democrat, for allegedly manipulating the state’s cigarette tax system to make more than $300,000.[6]  Additionally, Atchley prosecuted four Campbell County Sheriff’s deputies for the beating and torture of a suspected drug dealer.[7] 

Overall Assessment

As a relatively apolitical career prosecutor, Atchley’s nomination is likely to be fairly uncontroversial, except for its timing.  With the Trump Administration’s term winding down, Democrats are likely to oppose any nominee at this late stage, arguing that these seats deserve to be filled by President Biden.  If Republicans stick together and prioritize the nomination, they are likely to be able to push Atchley onto the bench.

[1] Sen. Comm. on the Judiciary, 116th Cong., Charles E. Atchley Jr: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 30-31.

[4] Id. at 17.

[5] See Robin Pagnamenta, Nuclear ‘Spy’ Claims FBI Tricked Him Into Confession, The London Times, Aug. 18, 2016.

[6] Erik Schelzig, Prosecutors: Tennessee Lawmaker Acted ‘Above the Law’, A.P. State & Local, Aug. 2, 2016.

[7] See Four Former Campbell Officers Sentenced in Torture Case, A.P. State & Local Wire, July 13, 2005.

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Katherine Crytzer – Nominee to the U.S. District Court for the Eastern District of Tennessee

36-year-old Katherine Crytzer was already before the Senate seeking an executive appointment when she was nominated for a federal judgeship.  While Crytzer’s nomination to be Inspector General was never confirmed by the Senate, her nomination to be a federal judge remains an open question.

Background

Born in 1984, Katherine A. Crytzer graduated from Middle Tennessee State University in 2006 and attended George Mason University Law School, graduating in 2009.  Crytzer then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.

After her clerkship, Crytzer joined Kirkland & Ellis as an associate.  In 2014, Crytzer joined the U.S. Attorney’s Office for the Eastern District of Kentucky as a federal prosecutor.  In 2017, Crytzer joined the Office of Legal Policy at the Department of Justice.  Since 2020, Crytzer has served as Principal Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In 2020, Crytzer was nominated to be the Inspector General for the Tennessee Valley Authority, replacing acting Inspector General Jill Matthews.[1]  However, Crytzer’s nomination came under fire for her refusal to disavow the Administration’s practice of dismissing Inspector Generals for their investigation and oversight activities.[2]  Crytzer’s nomination cleared the Senate Environment and Public Works Committee by a narrow 12-11 vote, but never received a vote on the Senate floor.

History of the Seat

Crytzer has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on September 10, 2020, with the untimely death of Judge Pamela Reeves.

Legal Career

Crytzer started her legal career by clerking on the U.S. Court of Appeals for the Eighth Circuit and then in private practice at Kirkland & Ellis.  While at the firm, Crytzer was part of a legal team that challenged California’s Low Carbon Fuel Standard as being pre-empted by federal law, and discriminating against interstate commerce in violation of the Dormant Commerce Clause.[3]

From 2014 to 2017, Crytzer worked as a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Kentucky.  As a prosecutor, Crytzer argued before the Sixth Circuit in support of the stop, detention, and frisk of suspected drug traffickers.[4]  A 2-1 decision of the Sixth Circuit held that the Officer lacked probable cause for the frisk, and vacated the conviction.[5] 

Since 2017, Crytzer has worked at the Department of Legal Policy, working primarily on judicial nominations.  In this role, Crytzer helped “shepherd” the nomination of Justice Brett Kavanaugh through the Senate.[6]

Writings

As a law student, Crytzer authored a law review article considering when, under Supreme Court precedent, the publication of unfavorable information about a public employee implicates their due process interests.[7]  Crytzer argued that the Supreme Court should confirm an “actual publication” test adopted by two circuits, holding that the only way that an employee’s due process rights would be harmed is with the “actual publication” of the unfavorable information to third parties.[8]

Overall Assessment

With less than ten weeks left in the Trump Presidency, Crytzer faces a narrow window for confirmation.  Additionally, given her youth, the opposition to her executive appointment, and her work on Justice Kavanaugh’s confirmation process, Crytzer is likely to be considered a controversial nominee.

[1] Georgiana Vines, Katie Crytzer Introduced as Potential TVA Inspector General, Knox News, May 31, 2020, https://www.knoxnews.com/story/news/columnists/georgiana-vines/2020/06/01/katie-crytzer-introduced-potential-tva-inspector-general/5284749002/.

[2] Newswire, Democrats Balk at TVA Inspector General Pick, Greenwire, July 1, 2020.

[3] See Rocky Mt. Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2012).

[4] See United States v. Noble, 762 F.3d 509 (6th Cir. 2014).

[5] See id. at 529.

[6] See Jerry Lambe, Trump’s Latest Judicial Nominee Is DOJ Attorney Who Helped Kavanaugh’s Confirmation to Supreme Court, Newstex Blogs, Sept. 16, 2020.

[7] Katherine Crytzer, You’re Fired! Bishop v. Wood: When Does a Letter in a Former Public Employee’s Personnel File Deny a Due Process Liberty Right, 16 Geo. Mason L. Rev. 447 (Winter 2009).

[8] See id. at 449.

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Thomas Kirsch – Nominee to the U.S. Court of Appeals for the Seventh Circuit

U.S. Attorney Thomas Kirsch, nominated to replace now-Justice Amy Coney Barrett, has an exceedingly narrow time window to confirmation.  Nonetheless, with the Presidency switching parties in two months, Republicans are nonetheless expected to prioritize the nomination.

Background

Thomas Lee Kirsch II was born on January 25, 1974.  He attended Indiana University, graduating in 1996.  He then received his J.D. from Harvard Law School in 1999.  After graduating, Kirsch clerked for Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana.[1] 

After his clerkship, Kirsch spent a year at the firm of Jenner & Block and then joined the U.S. Attorney’s Office for the Northern District of Indiana as a federal prosecutor.  In 2006, Kirsch was detailed to Main Justice as Counsel for the Office of Legal Policy.

In 2008, Kirsch left to join the Chicago office of Winston & Strawn as a Partner.  He worked as the firm until he was chosen to be U.S. Attorney for the Northern District of Indiana by the Trump Administration in 2017.[2]  He continues to work in that capacity today.

History of the Seat

Kirsch has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on October 26, 2020, when Judge Amy Coney Barrett was elevated to the U.S. Supreme Court.  Kirsch’s nomination was announced five days earlier on October 21, 2020.

Political Activity

Kirsch has occasionally donated to political candidates, exclusively Republicans.[3]  Among the recipients are Sen. John McCain, Sen. Richard Lugar, Sen. Mitt Romney, Rep. Todd Rokita, and Sen. Todd Young.

Legal Practice

Kirsch’s first legal position after his clerkship was at Jenner & Block.  Since that point, he has extensive experience in two primary roles: as a federal prosecutor; and as a defense attorney at Winston & Strawn.

Federal Prosecutor

From 2001 to 2008, Kirsch worked as a federal prosecutor in the Northern District of Indiana.  During his time with the office, Kirsch prosecuted James Fife, an aide to East Chicago Mayor Robert Pastrick, for hiding hundreds of thousands of dollars in public money.[4]

Winston & Strawn

In 2008, Kirsch joined the Chicago Office of Winston & Strawn as a partner.  At Winston, Kirsch primarily focused on white collar criminal defense, including advising companies that were targets of government investigations.  

Among the most notable cases he handled at Winston, Kirsch represented William Cellini, an Illinois Republican with close ties to former Gov. Rod Blagojevich who was convicted for extorting campaign contributions from Blagojevich.[5]  Kirsch also represented TV pitchman Kevin Trudeau, who was convicted of lying in his infomercials.[6] 

U.S. Attorney

Since 2017, Kirsch has served as U.S. Attorney for the Northern District of Indiana.  In this role, Kirsch leads all federal prosecutors in the district, sets enforcement priorities, and handles high profile matters.  Notably, shortly after his confirmation, Kirsch had to oversee a series of high-profile prosecutions related to the use of pipe bombs.  For example, Kirsch prosecuted GOP activist Eric Krieg for mailing a pipe bomb to an attorney (the bomb exploded at a post office).[7]  More recently, Kirsch has led investigations into scammers targeting individuals during the coronavirus pandemic.[8]

Writings

As an associate at Jenner & Block, Kirsch authored an article discussing the difficulties of securing victim cooperation in prosecuting domestic violence.[9]  In the article, Kirsch discusses various factors that might lead victims not to cooperate with prosecutors, and evaluates the possibility of forcing victims to testify.  Kirsch ultimately concludes that the costs of forcing a victim to participate, which include the possibility of retraumatizing the victim, ultimately outweigh the benefits.[10]

Overall Assessment

As Barrett was undergoing confirmation to the U.S. Supreme Court, the White House vetted a number of candidates for the Seventh Circuit, including White House attorney Kate Todd.[11]  In choosing Kirsch over a younger, more ideological choice like Todd, the White House is recognizing the political reality.  No President since Jimmy Carter has seen a post-election confirmation of an appellate nominee (and the confirmation of Judge Stephen Breyer late in 1980 was only done with the acquiescence of Senate Republicans).  With Democrats unlikely to endorse filling judgeships this late in the Trump Presidency, Republicans will have to stick together to confirm Kirsch.  The good news for Kirsch backers is that the nominee is unlikely to incite much opposition and, barring any unexpected developments, Republicans are likely to squeeze him through.

[1] Tinder was later elevated to the Seventh Circuit and held the seat that Kirsch now seeks appointment to.

[4] See A.P., Former East Chicago Mayor Aide Gets Prison Time for Hiding Money, A.P. State & Local Wire, Apr. 3, 2006.

[5] See Michael Tarm, Prosecutors: Cellini Deserves 8 Years in Prison, A.P. State & Local Wire, July 13, 2012.

[6] See Michael Tarm, TV Pitchman Jailed After Jurors Find Him Guilty, A.P. State & Local Wire, Nov. 12, 2013.

[7] A.P., Man Gets 29 Years for Post Office Pipe Bomb Addressed to Lawyer, The Indiana Lawyer, Apr. 5, 2019, https://www.theindianalawyer.com/articles/49911-man-gets-29-years-for-post-office-pipe-bomb-addressed-to-lawyer.

[8] See Marek Mazurek, Scammers Capitalize on Virus Fears, South Bend Tribune, Apr. 13, 2020.

[9]Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims Be Forced to Participate in the Prosecution of Their Abusers?, 7 Wm. & Mary J. of Women & L. 383 (Winter 2001).

[10] See id. at 426-27.

[11] Chip Somodeville, Trump and McConnell Are Reportedly Already Discussing Amy Coney Barrett’s 7th Circuit Replacement, The Week, Sept. 28, 2020, https://theweek.com/speedreads/940066/trump-mcconnell-are-reportedly-already-discussing-amy-coney-barretts-7th-circuit-replacement.   

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