Judge Amul R. Thapar – Nominee to the U.S. Court of Appeals for the Sixth Circuit

Judge Amul Roger Thapar has broken many barriers in his life.  He was the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first nominee to a lower court vacancy by the Trump Administration.  For each of these steps, Thapar has one man to thank, Senate Majority Leader Mitch McConnell (R-KY), who has carefully steered his protege’s career.  Nevertheless, setting aside McConnell’s influence, Thapar’s conservative record and relative youth make him an ideal candidate for a judgeship under a Republican Administration.

Background

Amul Roger Thapar was born to a family of Indian immigrants in Detroit, Michigan on Apr. 29, 1969.  Thapar attended Boston College and UC Berkeley School of Law, receiving his J.D. in 1994.  After graduating, Thapar clerked for Judge J. Arthur Spiegel on the Southern District of Ohio and Sixth Circuit Judge Nathaniel Jones.  After a short stint as an associate at Williams and Connolly, Thapar joined the U.S. Attorney’s Office in Washington D.C.

In 2002, Thapar joined the U.S. Attorney’s Office in the Southern District of Ohio.  During this time, Thapar volunteered for the campaigns of several Kentucky Republicans, including Gov. Ernie Fletcher, Sen. Jim Bunning, Secretary of State Trey Grayson, and Congressman Geoff Davis, as well as the re-election campaign of President George W. Bush.

Despite having no previous work experience in Kentucky, Thapar was handpicked by McConnell to serve as the U.S. Attorney for the Eastern District of Kentucky in 2006, replacing Gregory Van Tatenhove, who had been confirmed to a federal judgeship.  As the chief federal prosecutor in Eastern Kentucky, Thapar supervised all civil and criminal litigation in the district.

In May 2007, only a year after becoming the U.S. Attorney, the then 38-year-old Thapar was nominated for a federal district court seat vacated by Judge Joseph Hood.  The Democratic controlled Senate Judiciary Committee gave Thapar a hearing on Oct. 24, 2007.[1]  The Committee unanimously approved Thapar’s nomination on Nov. 15, 2007.[2]  Thapar was then unanimously confirmed by the Senate on Dec. 13, 2007, making him the then youngest Article III judge in the country.[3]

History of the Seat

Thapar has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened four years ago with the retirement of Judge Boyce Martin, a fierce liberal voice on the circuit.[4]  Martin’s retirement in 2013 gave then-President Barack Obama the first opportunity to fill the seat.  However, the Senate’s blue slip process allowed McConnell and Sen. Rand Paul (R-KY) veto power over Obama’s choices.  After negotiating with McConnell for two years, Obama nominated Kentucky Supreme Court Justice Lisabeth Tabor Hughes for the seat.[5]  Hughes, who would have been the first female judge from Kentucky on the Sixth Circuit, was blocked by McConnell, who argued that he was not consulted on the choice.[6]  Other observers believed, however, that McConnell was leaving the seat open for the candidate he wanted to fill the position: Thapar.[7]

Without McConnell’s support, Hughes’ nomination never received a hearing in the Republican-controlled Senate, and was returned at the end of the Obama Administration.  Less than two months later, Thapar was nominated for the seat.

Jurisprudence

In his nine years on the federal bench, Thapar has authored more than 600 orders and opinions.  These opinions are frequently peppered with colloquialisms, aphorisms, and other forms of folksy language.[8]  While Thapar’s record generally indicates a conservative judicial philosophy, there are some notable characteristics that suggest a more independent bent.

Willingness to Let Civil Cases Reach the Jury

A trial judge is supposed to grant summary judgment when there is no substantial dispute of facts between the parties for a jury to resolve.  In some cases, judges grant summary judgment to dismiss cases even where substantial factual disputes remain.[9]  While Thapar has granted summary judgement to defendants in many cases,[10]  his overall record indicates a willingness to allow juries to resolve factual disputes.[11]

For example, in one case, Thapar noted:

“In baseball, ties go to the runner. In summary judgment, ties go to the plaintiff. Why? Because civil litigants have a right to a jury trial. And when a case comes down to a close call, the jury must be the one to make it.”[12]

Similarly, Thapar noted in another case:

“Courts are ill-equipped to resolve disputes between experts about critical facts, and at the summary judgment stage, courts are not authorized to do so. So it should come as no surprise that the heavily factual dispute between the parties here must proceed to trial.”[13]

In yet another case, where the plaintiff sued Walmart for failure to adequately clear a spill, Thapar denied Walmart’s motion for summary judgement, arguing that a jury should decide if Walmart had sufficient time to notice and clean the spill.[14]

Mixed Record on Criminal Procedural Protections

As a former prosecutor, one would expect Thapar to take a narrow view of Fourth, Fifth, and Sixth Amendment protections.  While there are a handful of cases in which Thapar has granted suppression motions based on violations of procedural rights, his overall jurisprudence generally sides against defendants.

For example, Thapar has repeatedly upheld searches and seizures from Fourth Amendment challenges.[15]  In U.S. v. Frechette, while sitting by designation on the Sixth Circuit, Thapar held that the purchase of a one-month subscription to a child pornography site provided “probable cause” for a search warrant.[16]  Thapar’s opinion sparked a fierce dissent by Judge Karen Nelson Moore, who noted that Thapar’s “radical view of probable cause” was “far more expansive than any circuit had taken to date.”[17]

In another case, Thapar held that officers did not violate the Fourth Amendment where they took the suspect to a hospital to undergo a digital rectal exam.[18]  Specifically, Thapar relied on the fact that officers reasonably believed that the medical exam was necessary to the suspect, and that they did not ask for the rectal exam.[19]

However, in a few cases, Thapar has sided with defendants against law enforcement or prosecutorial overreach.[20]  In one case, Thapar found that DEA agents violated the Fourth Amendment by placing a GPS tracker on a defendant’s car without a warrant.[21]  In another, case, Thapar held that law enforcements erroneously relied on a warrant that was not supported by probable cause in searching a defendant’s home, and as such, all items found in the search must be suppressed.[22]

Willingness to Overrule Administrative Rulings on Disability Claims

The Eastern District of Kentucky covers many counties where residents rely on coal mining as the chief source of employment.  As a result, the judges of the Eastern District hear many appeals from denials of benefits from the Social Security Administration.  In these cases, judges are generally asked to defer to the findings of the Administrative Law Judges (ALJs) below.  As such, reversals are rare. 

Thapar’s cases generally follow this pattern.  In most of the social security appeals he has heard, Thapar has affirmed the decision of the ALJ below.[23]  However, in a number of cases, Thapar has reversed the ALJ, ruling that they have failed to support their ruling denying benefits.[24]  For example, in one case, Thapar held that the ALJ had failed to adequately support his ruling that the plaintiff was not disabled.[25]

Prominent Reversals

Over his eight year tenure on the Eastern District of Kentucky, approximately fifteen of Thapar’s opinions have been reversed by the Sixth Circuit, or the Supreme Court.  Here is a summary of the more prominent reversals.

Reversals by the Sixth Circuit

Hill v. Lappin – This case involved a prisoner, Hill, who brought a Bivens action arguing that he was placed in segregated housing in retaliation for grievances he had filed against prison staff.  Thapar dismissed the case, stating that prisoners did not have a constitutional right to avoid prison transfers or segregation.[26]  The Sixth Circuit reversed in an opinion by Judge Ronald Gilman.[27]  Judge Gilman argued that Hill had successfully pled a First Amendment retaliation claim.[28]

Turner v. Astrue – This case involved an appeal from denial of benefits by an ALJ.  While Thapar reversed the denial of benefits, he ruled that the plaintiff was not entitled to attorney’s fees.[29]  The Sixth Circuit reversed, holding that the plaintiff had earned attorney’s fees under the Equal Access to Justice Act.[30]

Sours v. Big Sandy Reg’l Jail Auth. – This case involved a suit against a state prison after an inmate died of complications from diabetes.  Thapar held that the prison nurse and other officials were entitled to summary judgment.[31]  The Sixth Circuit affirmed the grant of summary judgment against most prison officials, but reversed the grant with respect to the nurse.[32]

United States v. Badger – This case involved a $5000 fine imposed on a prisoner by Thapar.  To ensure collection of the fine, Thapar ordered the garnishment of funds from the prisoner’s prison account.[33]  The Sixth Circuit reversed the garnishment, holding that the law only permitted garnishment when the prisoner was already in default on the fine.[34]

United States v. Walli – This case involved three defendants who were opposed to the proliferation of nuclear weapons.  The defendants broke into a nuclear facility, and vandalized it with banners and human blood.  Thapar affirmed the defendants’ convictions for willful injury of national defense premises with intent to harm the national defense.[35]  The Sixth Circuit reversed in an opinion by Judge Raymond Kethledge, holding that the defendants did not “intend” to harm the national defense.[36]

Winter v. Wolnitzek – This case involved challenges to a number of canons in the Kentucky Code of Judicial Conduct.  Thapar struck down the canons, ruling that they violated the First Amendment.[37]  On appeal, the Sixth Circuit, in an opinion by Judge Jeffrey Sutton, affirmed most of the rulings, but held that one canon, which prohibited judges from holding political fundraisers, was not unconstitutional.[38]

Summary Reversals by the Supreme Court

Lovell v. Duffey – In this case, Thapar, sitting by designation on the Sixth Circuit, joined a decision by Judge Ronald Gilman rejecting a claim for ineffective assistance of counsel made by a state court prisoner.[39]  The Supreme Court summarily reversed the ruling, remanding it for consideration in light of its ruling in Cullen v. Pinholster.[40]

Overall Assessment

Being the first is not always ideal.  The first judicial nominee sent by a polarizing President often brings unwarranted scrutiny.  Judge David Hamilton, President Obama’s first nominee to the federal bench, was, by all accounts, a moderate, credentialed, and well-liked candidate.  He nevertheless faced a well-organized smear campaign smearing him as a radical extremist.

It remains to be seen if Thapar will face a similar campaign.  But, looking at his record, there is nothing to suggest that he will be an extremist on the bench.  Thapar has made decisions that have been reversed by higher courts, as has virtually every district judge in the country.  Nevertheless, there is no pattern in these reversals that suggest that Thapar is ruling based on his personal views.  Rather, his record suggests that, while Thapar is conservative, he is nonetheless a judge who takes the law seriously.

Setting aside his demographic fame as the first Indian American to take a Sixth Circuit seat, Thapar is unquestionably qualified for this appointment, and likely would be a credit to the court.


[1] Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 110th Cong. Serial No. J-110-15 (2007) (Statement of Sen. Patrick Leahy).

[2] Executive Business Meeting Before the S. Comm. on the Judiciary, 110th Cong. Serial No. J-110-15 (2007) (Statement of Sen. Patrick Leahy).

[3] This record would be broken by the confirmation of Judge Edmond Chang three years later.

[4] Sam Roberts, Boyce F. Martin, Jr., Liberal U.S. Judge in Seminal Cases, Dies at 80, N.Y. Times, Jun 7, 2016, https://www.nytimes.com/2016/06/08/us/boyce-f-martin-jr-liberal-federal-appellate-judge-dies-at-80.html?_r=0.

[5] Press Release, The White House, President Obama Nominates Justice Lisabeth Tabor Hughes to Serve on the United States Court of Appeals (Mar. 17, 2016) (on file with the White House).

[6] Joseph Gerth, McConnell Rejects Obama Choice of Ky. Judge, Louisville Courier Journal, Mar. 18, 2016, http://www.courier-journal.com/story/news/politics/2016/03/18/mcconnell-says-he-kill-6th-circuit-nomination/81971446/ (quoting Robert Steurer, spokesperson for McConnell) (“Rather than work with [McConnell] to fill this vacancy, [the Obama White House] submitted Justice Hughes without even notifying Leader McConnell.  He will not support action on this nomination.”).

[7] Id. (“Louisville lawyer Sheryl Snyder said that he believes that McConnell is backing U.S. District Judge Amul Thapar…”).

[8] See, e.g., Nationwide Mut. Fire Ins. Co. v. Nelson, 912 F. Supp. 2d 452, 453 (E.D. Ky. 2012) (“After Nelson’s lie, he quickly learned that Nationwide was no longer on his side.”).

[9] See, e.g., Burgess v. Bowen, 466 F. App’x 272, 284 (4th Cir. 2012) (reversing grant of summary judgment in a case with “an abundance of genuine factual disputes on material issues”).

[10] See, e.g., Collins v. Penske Truck Leasing Corp., No. CV 13-181-ART, 2015 WL 5698536, at *1 (E.D. Ky. Sept. 28, 2015); Mountain Motorsports Paving & Const. LLC v. Yamaha Motor Corp., U.S.A., No. CIV. 14-76-ART, 2014 WL 5341865, at *1 (E.D. Ky. Oct. 20, 2014); Perry v. Corr. Corp. of Am., No. CIV. 11-150-ART, 2012 WL 5289413, at *1 (E.D. Ky. Oct. 23, 2012); Boggs v. 3M Co., No. CIV. 11-57-ART, 2012 WL 3644967, at *1 (E.D. Ky. Aug. 24, 2012), aff’d, 527 F. App’x 415 (6th Cir. 2013).

[11] See, e.g., Worldwide Equip. Enterprises, Inc. v. Broan-Nuton LLC, 191 F. Supp. 3d 684, 691 (E.D. Ky. 2016); City of Pikeville, Kentucky v. Broan-Nutone, LLC, No. CV 15-71-ART, 2016 WL 2843916, at *1 (E.D. Ky. May 10, 2016) (holding that the plaintiff did not need expert evidence to prove damages); Griffith v. Conn, No. CV 11-157-ART-EBA, 2016 WL 1029331, at *1 (E.D. Ky. Mar. 14, 2016); Holder v. Saunders, No. CV 13-38-ART, 2015 WL 6756374, at *1 (E.D. Ky. Nov. 4, 2015); Adler v. Elk Glenn, LLC, No. CIV. 12-85-ART, 2013 WL 6632057, at *1 (E.D. Ky. Dec. 17, 2013); EQT Gathering, LLC v. A Tract of Prop. Situated in Knott Cty., Ky., 970 F. Supp. 2d 655, 657 (E.D. Ky. 2013); Nevels v. Deerbook Ins. Co., No. CIV. 10-83-ART, 2011 WL 3903209, at *1 (E.D. Ky. Sept. 6, 2011); Recycling Sols. Tech., LLC v. Rosenberg, No. CIV.A. 10-55-ART, 2011 WL 1696826, at *1 (E.D. Ky. May 4, 2011); Ziarko v. Crawford Law Offices, PLLC, No. CIV 10-153-ART, 2010 WL 5059569, at *1 (E.D. Ky. Dec. 6, 2010).  See also Brown v. Travelers Cas. Ins. Co. of Am., No. 15-50-ART, 2016 WL 1644342, at *4 (E.D. Ky. Apr. 25, 2016) (denying a motion for judgment on the pleadings).

[12] Bentley v. Highlands Hosp. Corp., No. CV 15-97-ART, 2016 WL 7234757, at *1 (E.D. Ky. Dec. 13, 2016) (internal citations omitted).

[13] Am. Towers LLC v. BPI, Inc., No. CIV. 12-139-ART, 2014 WL 3818193, at *1 (E.D. Ky. Aug. 4, 2014).

[14] Stanley v. Walmart Stores E., LP, No. 15-86-ART, 2016 WL 3079837, at *3 (E.D. Ky. May 31, 2016).

[15] See United States v. Herrera, 636 F. App’x 250, 254 (6th Cir. 2016); United States v. Lovell, No. CRIM. 14-25-ART-10, 2014 WL 7069317, at *1 (E.D. Ky. Dec. 12, 2014); United States v. Roos, No. CRIM. 12-09-2-ART, 2013 WL 1136629, at *1 (E.D. Ky. Mar. 18, 2013); United States v. Cunnagin, No. CRIM. 10-31-ART, 2011 WL 4072817, at *1 (E.D. Ky. Sept. 13, 2011); United States v. Marcum, No. CRIM. 10-53-ART, 2011 WL 1115000, at *1 (E.D. Ky. Mar. 25, 2011); United States v. Polly, No. CRIM. 10-25-ART, 2010 WL 3984936, at *1 (E.D. Ky. Oct. 8, 2010); United States v. Pennington, No. CRIM.10-11-ART, 2010 WL 3724841, at *1 (E.D. Ky. Sept. 17, 2010); United States v. Dadanovic, No. CRIM. 09-63-ART, 2010 WL 3620251, at *1 (E.D. Ky. Sept. 10, 2010); U.S. Taylor, No. CRIM. 09-43-ART, 2010 WL 3190740, at *1 (E.D. Ky. Aug. 11, 2010); United States v. Goetting, No. CRIM.09-60(1)&(2)ART, 2010 WL 989035, at *1 (E.D. Ky. Mar. 15, 2010).

[16] United States v. Frechette, 583 F.3d 374, 376 (6th Cir. 2009).

[17] Id. at 381 (Moore, J., dissenting).

[18] United States v. Shepherd, No. CRIM. 13-25-ART-EBA-, 2014 WL 4594565, at *1 (E.D. Ky. Sept. 15, 2014), aff’d, 646 F. App’x 385 (6th Cir. 2016).

[19] Id.

[20] See, e.g., United States v. Sydnor, No. CR 16-21-ART-HAI-(2), 2017 WL 772341, at *6 (E.D. Ky. Feb. 28, 2017) (suppressing non-Mirandized statement as elicited in violation of the Fifth Amendment).

[21] United States v. Lee, 862 F. Supp. 2d 560, 562 (E.D. Ky. 2012).

[22] See United States v. Rice, 704 F. Supp. 2d 667, 668 (E.D. Ky. 2010).

[23] See, e.g., Oaks v. Colvin, No. CV 15-249-ART, 2016 WL 6133859, at *1 (E.D. Ky. Mar. 30, 2016); Eaton v. Colvin, No. CV 15-111-ART, 2015 WL 12683970, at *1 (E.D. Ky. Dec. 23, 2015); Roberts v. Colvin, No. CV 15-164-ART, 2015 WL 12661963, at *1 (E.D. Ky. Dec. 22, 2015); Morgan v. Colvin, No. CV 15-45-ART, 2015 WL 12672119, at *1 (E.D. Ky. Dec. 7, 2015); Rolf v. Colvin, No. CV 14-56-ART, 2014 WL 12567181, at *1 (E.D. Ky. Oct. 24, 2014); Morgan v. Astrue, No. CIV. 12-36-ART, 2012 WL 6623266, at *1 (E.D. Ky. Dec. 19, 2012). 

[24] Buchanan v. Colvin, No. CV 13-133-ART, 2014 WL 12649006, at *1 (E.D. Ky. May 12, 2014) (reversing the ALJ for failing to follow the “treating physician” rule); Thomas v. Colvin, No. CIV. 12-157-ART, 2013 WL 2103143, at *1 (E.D. Ky. May 13, 2013); Coleman v. Astrue, No. CIV. 12-172-ART, 2013 WL 173196, at *1 (E.D. Ky. Jan. 16, 2013);

[25] Pike v. Colvin, No. CV 13-154-ART, 2014 WL 12573849, at *1 (E.D. Ky. Feb. 11, 2014).

[26] Hill v. Lappin, No. CIV.A. 09-07-ART, 2009 WL 1036127, at *1 (E.D. Ky. Apr. 17, 2009), rev’d, 630 F.3d 468 (6th Cir. 2010).

[27] Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010).

[28] Id. at 471-72.

[29] Turner v. Astrue, 764 F. Supp. 2d 864, 866 (E.D. Ky. 2010).

[30] Turner v. Comm’r of Soc. Sec., 680 F.3d 721 (6th Cir. 2012).

[31] Sours v. Big Sandy Reg’l Jail Auth., 946 F. Supp. 2d 678, 681 (E.D. Ky. 2013).

[32] Sours v. Big Sandy Reg’l Jail Auth., 593 F. App’x 478 (6th Cir. 2014).

[33] United States v. Badger, No. CRIM. 13-3-ART, 2013 WL 5529329, at *2 (E.D. Ky. Oct. 1, 2013).

[34] United States v. Badger, 581 F. App’x 541 (6th Cir. 2014).

[35] United States v. Walli, 976 F. Supp. 2d 998, 1006–07 (E.D. Tenn. 2013).

[36] United States v. Walli, 785 F.3d 1080 (6th Cir. 2015).

[37] Winter v. Wolnitzek, 56 F. Supp. 3d 884, 889 (E.D. Ky. 2014).

[38] Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

[39] Lovell v. Duffey, 629 F.3d 587, 588 (6th Cir. 2011), cert. granted, judgment vacated, 566 U.S. 902, 132 S. Ct. 1790, 182 L. Ed. 2d 613 (2012).

[40] Lovell v. Duffey, 566 U.S. 902, 132 S. Ct. 1790, 182 L. Ed. 2d 613 (2012).

President Trump Announces His First Circuit Court Nomination – Judge Amul R. Thapar

Today, President Trump announced his intent to nominate Judge Amul R. Thapar to a Kentucky seat on the Sixth Circuit Court of Appeals.  Judge Thapar, who was the first Indian-American federal judge upon his confirmation in 2007, is currently serving on the U.S. District Court for the Eastern District of Kentucky.  This is President Trump’s first nomination for a lower court seat.  There are currently over 135 vacancies in the federal judiciary.

Senate Invokes Cloture on Thapar’s Nomination

Today, the U.S. Senate invoked cloture on Judge Amul Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit.  The 52-48 vote was surprisingly close, with every Democrat voting against cloture.

Democrats’ unified opposition to Thapar is notable, as his record is not particularly extreme, and several mainstream legal groups, including the National Asian Pacific American Bar Association support his nomination.  If anything, Thapar’s record is more moderate than that of Justice Neil Gorsuch.  Yet, the four Democrats who supported cloture for Gorsuch all voted against Thapar.  Three factors may explain the unanimity:

  1. Thapar is Trump’s first lower court nomination.  By establishing firm opposition to him, Democrats are setting a baseline for their standards, refusing to vote for any nominee to Thapar’s right.
  2. Thapar is a prospective Supreme Court nominee if Justice Kennedy retires.  Voting against him unanimously gives Democratic Senators cover to reject Thapar if he is ever elevated.
  3. Thapar’s nomination has moved incredibly quickly.  He spent a mere five days on the Senate Executive Calendar before cloture was filed.  In contrast, during the Obama Administration, Republicans made even non-controversial Obama appointees wait months before a confirmation vote.  By voting no, Democrats are registering their opposition to the speed of Thapar’s confirmation.

At any rate, Thapar’s nomination can be compared to that of Judge David Hamilton, the first circuit court nominee President Obama sent to the Senate.  Hamilton, who had a relatively moderate profile, and strong support from Indiana Republicans, faced intense Republican opposition and accusations of being a judicial activist.  After languishing on the floor for over five months, Hamilton was confirmed with the support of just one Republican Senator (his home state Senator Richard Lugar).

Tomorrow, we will see if Thapar can manage even the one cross-party vote that Hamilton got.  Based on the vote today, I wouldn’t count on it.

Understanding Blue Slips: What Are They and Why Do They Matter?

On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.[1]  With over 136 current and future vacancies on the federal bench,[2] more nominees will likely follow.  With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations, and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

The History of the Blue Slip (From Cumberland to Biden)

Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on.  When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the Senators representing the nominee’s home state.  The Senators then return the blue slip, indicating either approval or disapproval of the nominee.  If a home state Senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

The blue slip practice has a long history, going back at least one hundred years.[3]  The first example of a Senator using a blue slip to oppose a nominee dates back to the Wilson Presidency, when Senator Thomas Hardwick (D-GA) objected to the nomination of U. V. Whipple.[4]  Whipple’s nomination was subsequently rejected by the full Senate.

While the practice of using blue slips dates back a century, there is no consistent practice as to the effect of a negative blue slip on a nominee.  For approximately the first forty years of blue slip practice, a negative blue slip did not stop all action on a nominee.[5]  However, in 1956, Chairman James Eastland (D-MS) modified committee policy, indicating that a negative blue slip (or failure to return one) would act as a veto on committee consideration of a nominee.[6]In 1979, the rule changed again under new Chairman Edward Kennedy (D-MA), who stated that, in the absence of positive blue slips, he would have the committee vote on whether to proceed on consideration of the nominee.[7]  In 1980, the Committee held a hearing on the nomination of James Sheffield despite a negative blue-slip from home state Senator James Byrd (I-VA).[8]

In 1981, with President Ronald Reagan in office with a new Republican Senate, incoming Chairman Strom Thurmond (R-SC) announced that he would continue Kennedy’s blue slip policy, and would not necessarily view negative blue slips as reasons not to proceed on a nomination.[9]  In 1983, Thurmond processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Senator Alan Cranston (D-CA).[10]  In 1986, he held a hearing on the nomination of Albert Moon despite the objections of both his home state Senators, Daniel Inouye (D-HI) and Spark Matsunaga (D-HI).[11]

In 1987, Democrats retook the majority, and Joseph Biden (D-DE), the incoming Chairman, announced a new blue slip policy.  Under Biden’s policy, negative blue slips would only block committee consideration in cases where the White House failed to adequately consult with home state Senators before choosing the nominee.[12]  Under this new policy, the Committee processed (and the Senate confirmed) Vaughn Walker to a seat on the Northern District of California over the objection of Senator Cranston.[13]

The Blue Slip in the Clinton and Bush Presidencies

In 1994, the “Republican Revolution” swept a new majority into the U.S. Senate, and propelled Senator Orrin Hatch (R-UT) to the Chairmanship of the Judiciary Committee.  While Hatch indicated that he would continue to follow Biden’s modified blue slip policy, in application, his policy allowed Senators could veto judicial nominations from their home state.

Notably, Senator Jesse Helms (R-NC) blocked the nominations of three Clinton choices for North Carolina seats on the Fourth Circuit, Judges James Beaty, James Wynn and J. Rich Leonard.[14]  Similarly, Judge Helene White and Kathleen McCree Lewis, both nominated to Michigan seats on the Sixth Circuit were blue-slipped by Senator Spencer Abraham (R-MI), while Jorge Rangel and Enrique Moreno, nominated for Texas seats on the Fifth Circuit were blocked by Senator Phil Gramm (R-TX).[15]

In 2001, when President Bush came to office, Hatch announced a modification in his blue slip policy, indicating that he would move forward on nominees, even without blue slips, provided that the White House had consulted with the home state Senators over the vacancies.[16]

In 2003, Hatch moved the nomination of Carolyn Kuhl to the Ninth Circuit through Committee despite not receiving a blue slip from Senator Barbara Boxer (D-CA).[17]  Later that year, Hatch moved three Michigan nominees to the Sixth Circuit over the objections of Senators Debbie Stabenow (D-MI) and Carl Levin (D-MI).[18]  All four nominees, however, were blocked through filibusters by Senate Democrats.

In 2006, Democrats retook control of the U.S. Senate.  Incoming Judiciary Committee Chairman Patrick Leahy (D-VT) announced that he would only move on judicial nominees that had two blue slips returned.  As such, during the last two years of the Bush Presidency, a number of nominees were blue-slipped by Democratic Senators.  For example, Senators Jack Reed (D-RI) and Sheldon Whitehouse (D-RI) blocked consideration of Judge William Smith for a seat on the First Circuit.[19]  Similarly, Senator Mary Landrieu (D-LA) blocked the nomination of David Dugas to a judgeship on the Middle District of Louisiana.[20]

The pressure of blue slip approval forced the White House to start making “package deals” with Democratic Senators, offering them a chance to recommend nominees in exchange for their support for the White House’s picks.  In one notable instance, the Administration agreed to nominate previously blue-slipped Clinton nominee Helene White for the Sixth Circuit, in exchange for Michigan’s Democratic Senators supporting Raymond Kethledge, who had been nominated for a second seat.[21]  In another case, the White House agreed to withdraw the nomination of Judge Gene Pratter to a seat on the Third Circuit, instead nominating Judge Paul Diamond, who was deemed acceptable to Senator Bob Casey (D-PA).[22]

Blue Slips in the Obama Presidency

In 2009, with the Obama Administration making judicial nominations, Leahy reiterated his blue slip policy, indicating that he would not move any nominees without blue slips from both the home state senators.  This strict policy gave Republican Senators significant leverage over the Obama Administration in discussions over judicial nominations.  The first Senator to exercise the blue slip privileges was Senator David Vitter (R-LA), who blocked the nomination of Brian Anthony Jackson to a seat on the Middle District of Louisiana until the White House committed to keeping Bush-era U.S. Attorney Jim Letten on the job.[23]  Upon a White House commitment to keep Letten, Vitter returned his blue slips and allowed Jackson to be confirmed.

While Vitter used the blue slip process to secure support for an unrelated nomination, other Senators used it to protect their prerogative to choose nominees for the state.  Senators James Inhofe (R-OK) and Tom Coburn (R-OK) used the blue slip process to block confirmation on Arvo Mikkanen’s nomination to a seat on the Northern District of Oklahoma, claiming they were not consulted before the nomination was made.[24]  Similarly, Senators John Cornyn (R-TX) and Kay Bailey Hutchison (R-TX) refused to approve any nomination to Texas courts that was not vetted through their selection committee, cutting Democrats out of the process.[25]  Senators Ron Johnson (R-WI) and Dan Coats (R-IN) blocked the nominations of Victoria Nourse and Myra Selby respectively to seats on the Seventh Circuit Court of Appeals, arguing that the nomination should emerge from a bipartisan nominating committee.[26]

Other Senators used blue slips to block nominees based on substantive objections.  Senators Lindsay Graham (R-SC) and Tim Scott (R-SC) blocked Judge Alison Renee Lee’s nomination to serve on the U.S. District Court for South Carolina based on allegations that she was “soft-on-crime”.[27]  Senator Dean Heller (R-NV) blocked the nomination of Judge Elissa Cadish for the U.S. District Court in Nevada based on her pre-Heller opinion that the Second Amendment does not protect the right to bear arms for an individual.[28]

On rare occasions, the White House was able to successfully use leverage to force a blue-slipping Senator to give way.  Senator Robert Menendez (D-NJ), for example, was forced to withdraw his blockade of Judge Patty Shwartz for a seat on the Third Circuit under pressure from liberal groups.[29]  Similarly, pressure from civil rights groups pushed Sen. Marco Rubio (R-FL) to return a blue slip on Judge Brian Davis’ nomination to the Middle District of Florida.[30]

Not all Republican Senators exercised their blue-slip leverage s vigorously.  Some took a more hands-off approach, allowing the White House and their Democratic colleagues to take the lead on judicial nominees for their state.  Sen. John Boozman (R-AR), for example, supported the nominations of five Arkansas judges proposed by his colleague Sen. Mark Pryor (D-AR).[31]  Similarly, Senators Lamar Alexander (R-TN) and Bob Corker (R-TN) backed two circuit and six district court appointments by the Obama Administration.[32]  Additionally, they supported the Administration’s unsuccessful nomination of Edward Stanton to a seat on the U.S. District Court for the Western District of Tennessee.[33]  Senator Roy Blunt (R-MO) returned blue slips on every judicial nominee for his state, regardless of whether he supported the nominee on the merits.  Notably, he opposed the nomination of Judge Ronnie White to serve on the the Eastern District of Missouri, and Stephen R. Bough to serve on the Western District of Missouri, but nonetheless allowed the nominees to be considered by the committee, and eventually confirmed.[34]

Other Republican Senators used the leverage of blue slips to work out nomination deals with their Democratic colleagues.  Senators Bob Casey (D-PA) and Pat Toomey (R-PA) worked out a deal that would allow Toomey to put forward one district court judge for every three that Casey named.  Under this deal, Toomey was able to secure the confirmation of several Republican judges.[35]   Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) had a similar deal, which allowed Kirk to name a number of Republicans to the Northern District of Illinois.[36]

In other states, the White House was forced to work out package deals with Republican Senators that would allow long-vacant judgeships to be filled.  By 2013, the overworked court in Arizona, had six out of its thirteen judgeships vacant due to an impasse between Senator John McCain (R-AZ) and the White House over the nomination of Rosemary Marquez.[37]  Marquez was eventually confirmed as part of a package deal with five other nominees, including McCain protege Diane Humetewa.[38]  Similarly, the White House was able to appoint David Hale, a Democrat, to the Western District of Kentucky only when paired with Greg Stivers, a Republican.[39] 

The Administration’s willingness to work with Republican Senators on nominations was tempered by pressure from its own base.  For example, in 2013, the White House and Senators Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) announced a deal that would fill two seats on the Eleventh Circuit and four seats on the Northern District of Georgia.[40]  One of the nominees proposed by the Senators, Judge Michael Boggs, attracted fierce opposition from civil rights groups due to his anti-gay rights stances as a state legislator.[41]  Ultimately, the White House was forced to jettison Boggs, and leave the seat vacant.

At times, even pre-approving nominees with Republican Senators did not guarantee their future support.  Notably, Senator Pat Roberts (R-KS) initially expressed support for the nomination of Steve Six to the Tenth Circuit.  However, under pressure from conservative groups, he and Sen. Jerry Moran (R-KS) came out in opposition to Six shortly after his hearing, essentially killing his nomination.[42]  Similarly, Obama’s nomination to the Northern District of Georgia after Boggs, Judge Dax Erik Lopez, a Republican and a member of the conservative Federalist Society, was blocked by Sen. David Perdue (R-GA) after conservative groups objected to Lopez’s membership in Latino civic organizations.[43]  Sen. Rubio blocked two nominees to the Southern District of Florida, Judge William Thomas, and Mary Barzee Flores, after initially indicating his support to the White House.[44]

Ultimately, Leahy’s strict adherence to blue slips placed the Obama Administration in an impossible situation.  Republican Senators frequently rejected nominees proposed by the Administration while either failing to offer names of their own, or suggesting picks that were too conservative.  As negotiations over nominees fell apart, many states with Republican Senators saw vacancies linger unfilled for years.

Blue Slips in the Age of Trump

Shortly after the election of President Trump, Judiciary Committee Chairman Chuck Grassley (R-IA) announced that he would continue to honor the strict blue slip policy that Leahy set out.[45]  This theoretically gives Democrats the same leverage over judicial nominations that Republicans had in the Obama Administration.  In previous Republican administrations, Democratic Senators generally took a hands-off approach to judicial nominations, rejecting nominees only when they were viewed as too extreme.  However, after the increased use of blue slipping under the Obama Administration, it is possible that Democrats will be emboldened to demand pre-approval of judicial nominees.  As such, the Administration may have to rely on package deals in states with Democratic Senators, agreeing to nominate Democrats to some seats on the federal bench.

Additionally, Republican Senators are themselves pushing for the renomination of Obama nominees left unconfirmed at the end of the 114th Congress.  Senators Mike Crapo (R-ID) and Jim Risch (R-ID) have already asked Trump to renominate Judge David Nye, the unconfirmed Obama selection for a vacancy on the U.S. District Court in Idaho.[46]  Senator Toomey has asked Trump to renominate Judge Susan Paradise Baxter, a Democrat nominated by Obama for a seat on the Western District of Pennsylvania.[47]

With Republicans in the majority, and the filibuster for lower court nominations abolished, the blue slip is one of the only tools Democrats have to temper the ideology of Trump’s judicial nominations.  While Republicans used it to great effectiveness to prevent Obama from filling vacancies, it remains to be seen how aggressively Democrats will wield the blue slip.


[1] Press Release, The White House, President Donald J. Trump Announces Intent to Nominate Judge Amul R. Thapar for the U.S. Court of Appeals for the Sixth Circuit (Mar. 21, 2017) (on file with the White House).

[3] See Mitchel A. Sollenberger, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, CRS Report for Congress (Oct. 22, 2003), http://congressionalresearch.com/RL32013/document.php.

[4] Id. 

[5] See id. (noting that the objections of Senator Theodore Bilbo did not stop the confirmation of Judge Edwin Holmes to the Fifth Circuit).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10]See id.

[11] Id. (noting that Moon was never confirmed).

[12] Id.

[13] Id.

[14] See J. Rich Leonard, I Got the Merrick Garland Treatment: Appeals Court Nominee, USA Today, Apr. 6, 2016, http://www.usatoday.com/story/opinion/2016/04/07/former-nominee-modern-confirmation-process-judicial-nominees-senate-constitution-column/82446356/.

[15] Amy Steigerwalt, Battle Over the Bench: Senators, Interest Groups, and Lower Court Nominations 62 (University of Virginia Press 2010).

[16] See Sollenberger, supra n. 3.

[17] Id.

[18] Id.

[19] Cf. Zachary McCune, Federal Judge Appointment Stalled for Flanders ‘71, The Brown Daily Herald, Feb. 6, 2007, http://www.browndailyherald.com/2007/02/06/federal-judge-appointment-stalled-for-flanders-71/ (noting the Senators’ support for another candidate, Robert Flanders).

[20] Avery Davidson, Sen. Landrieu Admits to Blocking the Appointment of David Dugas, WAFB 9NEWS, Feb. 15, 2008, http://www.wafb.com/story/7881770/sen-landrieu-admits-to-blocking-the-appointment-of-david-dugas?clienttype=printable&redirected=true.

[21] Ken Thomas, Bush Nominates Michigan Appellate Judge to Sixth Circuit, Foxnews.com, Apr. 15, 2008, http://www.foxnews.com/printer_friendly_wires/2008Apr15/0,4675,JudicialNominees,00.html.  

[22] The Associated Press, Bush Backs Five For Bench in State, Pittsburgh Tribune, July 25, 2008, http://triblive.com/x/pittsburghtrib/news/regional/s_579380.html.

[23] Sen. David Vitter Holding Up Obama Nominations for Word on Jim Letten, The Times-Picayune, Jan. 10, 2010, http://www.nola.com/politics/index.ssf/2010/01/sen_david_vitter_holding_up_ob.html.

[24] Editorial Board, Mystery Surrounds Rejection of Mikkanen Judicial Nomination, The Oklahoman, Dec. 20, 2011, http://newsok.com/article/3633391.

[25] Gary Martin, Texas Democrats Rap Obama on Judicial Posts, MySA, July 2, 2011, http://www.mysanantonio.com/opinion/columnists/gary_martin/amp/Texas-Democrats-rap-Obama-on-judicial-posts-1449451.php.

[26] See Craig Gilbert, Ron Johnson ‘Filister’ of Nourse Nomination to Federal Bench Draws Fire, Milwaukee Journal Sentiel July 18, 2011, http://archive.jsonline.com/blogs/news/125741928.html; Marilyn Odendahl, Indiana’s Judicial Nominees Headed Toward Disappointment, The Indiana Lawyer, Dec. 28, 2016, http://www.theindianalawyer.com/indianas-judicial-nominees-headed-toward-disappointment/PARAMS/article/42372.

[27] Ali Watkins, S.C. Sen. Tim Scott Joins Opposition to Nomination of State Judge, McClatchy D.C. Bureau, July 17, 2014, http://www.mcclatchydc.com/news/politics-government/congress/article24770623.html.  

[28] Laura Myers and Steve Tetreault, Heller Stands Firm Against Nevada Judicial Nominee, Las Vegas Review Journal, Apr. 10, 2012, http://www.reviewjournal.com/news/government/heller-stands-firm-against-nevada-judicial-nominee.

[29] Humberto Sanchez, Menendez Bows to Political Pressure, Backs Obama’s Judicial Nominee, Roll Call, Jan 13, 2012, http://www.rollcall.com/news/menendez_bows_to_pressure_backs_obamas_judicial_nominee-211490-1.html.

[30] Alex Leary, Rubio Releases Hold on African-American Judicial Candidate But Continues to Block Another, The Tampa Bay Times, Sept. 19, 2013, http://www.tampabay.com/blogs/the-buzz-florida-politics/rubio-releases-hold-on-african-american-judicial-candidate-but-continues/2142787.

[31] See Press Release, Office of Sen. John Boozman, Senate Clears P.K. Holmes to Serve as U.S. District Judge for Western District (Feb. 7, 2011) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Announce Nomination of Susan Hickey for U.S. District Judge for the Western District of Arkansas (Apr. 6, 2011) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Senate Confirms Kris Baker for U.S. District Judge for the Eastern District of Arkansas (May 7, 2012) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Applaud Confirmation of Judge Jay Moody as U.S. District Judge for the Eastern District of Arkansas (Feb. 25, 2014) (on file at www.boozman.senate.gov); Press Release, Office of Sen. John Boozman, Pryor, Boozman Congratulate Timothy Brooks on Confirmation as U.S. District Judge for the Western District of Arkansas (Mar. 5, 2014) (on file at www.boozman.senate.gov).

[32] See Tom Humphrey, Nashville Lawyer Stranch Confirmed for 6th Circuit Judgeship, Knoxville Blogs, Sept. 14, 2010, http://knoxblogs.com/humphreyhill/2010/09/14/nashville_lawyer_stranch_confi/; Tom Humphrey, Senate Confirms Memphis Judge for 6th Circuit Court of Appeals, Knoxville Blogs, Sept. 7, 2011, http://knoxblogs.com/humphreyhill/2011/09/07/_washington_-_us_senator/; Kevin Sharp ‘93 Confirmed to Seat on U.S. District Court for the Middle District of Tennessee, Vanderbilt Law School Blog, May 3, 2011, https://law.vanderbilt.edu/news/kevin-sharp-93-confirmed-to-seat-on-u-s-district-court-for-the-middle-district-of-tennessee/; Press Release, Office of Sen. Bob Corker, Alexander, Corker on Upcoming Senate Vote on Judge John Thomas Fowlkes Jr., of Memphis, to be U.S. District Judge for the Western District of Tennessee (Jun. 20, 2012) (on file at www.boozman.senate.gov); Georgiana Vines, Pamela Reeves, Federal Court Nominee, Draws Praise, Knoxville News Sentinel, May 18, 2013, http://archive.knoxnews.com/news/columnists/georgiana-vines/georgiana-vines-pamela-reeves-federal-court-nominee-draws-praise-ep-358247730-355838351.html; Tom Humphrey, Senate Confirms Appointment of University of Memphis Administrator as Federal Judge in West Tennessee, Knoxville Blogs, Apr. 30, 2014,http://knoxblogs.com/humphreyhill/2014/04/; Zack Petersen, Mayor Berke’s Former Chief-of-Staff Unanimously Confirmed as Federal Judge, Chattanooga Times Free Press, Dec. 7, 2015, http://www.timesfreepress.com/news/local/story/2015/dec/07/chattanoogas-travis-mcdonough-confirmed-federal-judge/339361/; Mary Troyan, Senate Confirms Waverly Crenshaw for Federal Judgeship, Tennessean, Apr. 11, 2016, http://www.tennessean.com/story/news/2016/04/11/senate-confirms-waverly-crenshaw-federal-judgeship/82898132/.     

[33] Michael Collins, Edward Stanton Unlikely to be Confirmed as Federal Judge, USAToday, Nov. 10, 2016, http://www.tennessean.com/story/news/politics/2016/11/10/edward-stanton-unlikely-confirmed-federal-judge/93598860/.

[34] See Chuck Raasch, Senate Confirms St. Louis’ Ronnie White as Federal Judge, St. Louis Post-Dispatch, Jul. 16, 2014, http://www.stltoday.com/news/local/govt-and-politics/senate-confirms-st-louis-ronnie-white-as-federal-judge/article_c758368a-534d-59e1-8ad6-5367e272c5e6.html; Steve Kraske, Senate Confirms Kansas City Lawyer Steve Bough for Federal Judgeship, Kansas City Star, Dec. 16, 2014, http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article4541083.html.

[35] Judge Matthew Brann for the Middle District of Pennsylvania; and Judges Jeffrey Schmehl, Edward Smith, and Jerry Pappert to the Eastern District of Pennsylvania.

[36] Judges John Tharp, Thomas Durkin, Manish Shah, and John Robert Blakey.

[37] Lee Fang, After Blocking a Judicial Nominee to the Arizona District Court, McCain Falsely Claims the Nomination Was Never Made, ThinkProgress, Sept. 1, 2011, https://thinkprogress.org/after-blocking-a-judicial-nominee-to-arizona-district-court-mccain-falsely-claims-the-nomination-was-ff2c0ee9280d.

[38] William Peacock, Esq., AZ’s 6 New Federal Judges Include 1st Female Native American Fed. Judge, FindLaw, May 16, 2014, http://blogs.findlaw.com/ninth_circuit/2014/05/arizs-6-new-judges-include-1st-female-native-american-fed-judge.html.

[39] Andrew Wolfson, 2 Judges Confirmed in Ky’s Western District, Louisville Courier-Journal, Dec. 4, 2014, http://www.courier-journal.com/story/news/local/2014/12/04/judges-confirmed-kys-western-district/19910589/.

[40] See Daniel Malloy, Obama Nominates Leslie Abrams – Stacey’s Sister – for Federal Judgeship, Atlanta Journal Constitution, Mar. 11, 2014, http://politics.blog.ajc.com/2014/03/11/obama-nominates-leslie-abrams-staceys-sister-for-federal-judgeship/.

[41] Jonathan Allen, Civil Rights Leaders to Hit Obama, Politico, Dec. 23, 2013, http://www.politico.com/story/2013/12/civil-rights-leaders-to-hit-obama-on-judges-101473.

[42] Editorial Board, Steve Six Deserved Better, The Wichita Eagle, July 29, 2011, http://www.kansas.com/opinion/editorials/article1078676.html.

[43] Greg Bluestein, David Perdue Blocks Latino Judicial Nominee, Atlanta Journal Constitution, Jan. 21, 2016, http://politics.blog.ajc.com/2016/01/20/david-perdue-wont-back-dax-lopezs-judicial-nomination/.

[44] See Lizette Alvarez, Rubio Withdraws Support for Gay Black Judge’s Nomination for Federal Bench, N.Y. Times, Sept. 23, 2013, http://www.nytimes.com/2013/09/24/us/politics/rubio-withdraws-support-for-gay-black-judges-nomination-to-the-federal-bench.html; Jay Weaver, Sen. Marco Rubio Blocks Confirmation of Judge He Recommended, Miami Herald, Jun 4, 2016, http://www.miamiherald.com/news/politics-government/article81786967.html.

[45] Joe Palazzolo, Donald Trump Looks to Put His Stamp on Federal Courts, Wall Street Journal, Nov. 11, 2016, https://www.wsj.com/articles/donald-trump-looks-to-put-his-stamp-on-federal-courts-1478892603.

[46] Betsy Russell, Sens. Crapo, Risch Standing By Nye Nomination; Trump Administration Also May Support It, Eye on Boise, Nov. 14, 2016, http://www.spokesman.com/blogs/boise/2016/nov/14/sen-crapo-risch-standing-nye-nomination-trump-administration-also-may-support-it/.

[47] Ed Palatella, Nomination Process Reset for Erie Federal Judgeship, GoErie.com, Feb. 28, 2017, http://www.goerie.com/news/20170228/nomination-process-reset-for-erie-federal-judgeship.

John Nalbandian – Nominee for the U.S. Court of Appeals for the Sixth Circuit

So far, the Trump Administration has moved relatively quickly to fill vacancies on the Court of Appeals.  However, the nomination of John Nalbandian to the Sixth Circuit was seemingly finalized in supernatural speed, coming just two days after Judge John Rogers announced his intent to move to senior status.  This speed is a sign that Nalbandian was being vetted before the vacancy was announced, potentially for the Ohio seat vacated by Judge Alice Batchelder.

Background

John Baylor Nalbandian was born in 1969 in Fort Ord, California.[1]  After getting a B.S. magna cum laude from the University of Pennsylvania and a J.D. from the University of Virginia Law School, Nalbandian clerked for Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.[2]  After his clerkship, Nalbandian joined the Washington D.C. office of Jones Day.

In 2000, Nalbandian moved from Jones Day to the Cincinnati office of Taft Stettinius & Hollister LLP.[3]  He became a partner there in 2004 and continues to serve in that capacity today.

In 2010, upon the recommendation of Senate Republican Leader Mitch McConnell (R-KY), Nalbandian was appointed by President Obama to serve on the board of directors of the State Justice Institute (SJI), a nonprofit organization focused on improving resources for judges and court staff.[4]  Nalbandian continues to serve as a director.

History of the Seat

Nalbandian has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in January 2018 with Judge John Rogers’ announcement that he would move to senior status upon confirmation of his successor.  However, Nalbandian had been under consideration for a federal judgeship as far back as November 2016, when he first began talking to McConnell about a judicial appointment.[5]  While he interviewed with McConnell in January 2017, he wasn’t contacted by the White House until September (approximately when Judge Alice Batchelder announced her move to senior status in an Ohio seat).  Nalbandian interviewed with the White House and the Department of Justice in October 2017, and was nominated on January 24, 2018.

Political Activity

Nalbandian is a Republican and has a long history with the Kentucky Republican party, including serving as the Party’s General Counsel between 2010 and 2016, and serving as a Delegate to the 2016 Republican National Convention.[6]  Nalbandian also advised and volunteered on the campaigns of several Kentucky Republicans including those of McConnell, Sen. Rand Paul, Rep. Andy Barr, Rep. James Comer, and former State Senate President David Williams.[7]

Nalbandian has also been an active donor to Republicans, having given almost $15000 over the last thirteen years.[8]  Barr has been a particular beneficiary of the donations, having received $3250 of the donations.[9]  Nalbandian has also donated to other Republicans including Senators Todd Young and Tom Cotton.[10]

Nalbandian has been active in the Federalist Society for the past twenty seven years, including serving as President of the Cincinnati Lawyers Chapter from 2000 to 2008, and serving as an Advisory Board Member from 2010 to the present.[11]

Legal Experience

Nalbandian has practiced law for around twenty five years, cutting his teeth by representing a habeas petitioner as a law student at the University of Virginia.[12]  In his time at Jones Day and at Taft Stettinius, Nalbandian has specialized in appellate practice, representing businesses on commercial, environmental, labor, and other matters.[13]  For example, Nalbandian helped defend the brand name manufacturers of Percocet in a series of class-action lawsuits borne out of injuries caused by the drug.[14]  Throughout his career, Nalbandian has handled a vast array of cases.  We summarize some of them below:

Criminal Defense

Nalbandian has developed a thriving criminal defense practice, working on many white collar criminal defense matters.[19]  Notably, he has also represented capital and habeas defendants pro bono.  For example, Nalbandian represented an Ohio death penalty petitioner in seeking a new sentencing hearing.[20]  In challenging the death penalty sentence, Nalbandian successfully argued that the petitioner did not receive the effective assistance of his counsel at the penalty phase of his trial, leading to the Sixth Circuit reversing the death penalty on a 2-1 vote.[21]

Environmental Pollution & Toxic Torts

Nalbandian has represented many businesses in suits over environmental pollution or toxic torts, typically seeking to shield the business from penalties or civil damages.  In one suit, Nalbandian represented a steel company seeking to reverse damages assigned to plaintiffs based on “fugitive dust” that had migrated to the plaintiffs’ properties.[15]  However, Nalbandian has also represented plaintiffs in contamination and toxic tort actions, in one case, suing on behalf of plaintiffs who had consumed contaminated water in West Virginia.[16]

Local Government

Throughout his career, Nalbandian has also occasionally represented municipalities in zoning and other such suits.[17]  In one of his more prominent cases, Nalbandian represented Northern Ohio municipalities in an unsuccessful challenge to the regional stormwater management program implemented by the Sewer District.[18]

Election Law

As part of his election law practice, Nalbandian represented Hamilton County Judge John Williams in a contentious election challenge.[22]  In the 2010 elections, Williams was challenged by Democrat Tracie Hunter, and was certified as the winner with a narrow lead in the final vote count.  However, Hunter challenged the results, arguing that 849 provisional ballots were erroneously thrown out due to poll worker error.[23]  When outgoing Ohio Secretary of State Jennifer Brunner, a Democrat, stepped in to offer guidance in reviewing the 849 disputed ballots, Nalbandian sued on Williams’ behalf, successfully getting the Republican-dominated Ohio Supreme Court to step in and block Brunner’s guidance.[24]

In response to the Ohio Supreme Court’s intervention, Hunter filed a federal suit, and U.S. District Judge Susan Dlott granted a preliminary injunction in Hunter’s favor to count the disputed ballots.[25]  When Nalbandian appealed, a divided panel of the Sixth Circuit affirmed the injunction,[26] and with the recounting of 149 additional ballots, Hunter was declared the winner of the election.

Academic Judgment

In one of his more unusual cases, Nalbandian represented the Case Western Reserve University in seeking to revoke a medical school diploma given to one of its students.[27]  The plaintiff in the case, Amir Al-Dabagh, had fulfilled all the academic requirements for a medical degree.[28]  However, the Medical School declined to give him a degree, citing numerous “professionalism” violations, including incurring a DUI in North Carolina.[29]  Al-Dabagh filed suit, arguing that the failure to give him a medical degree violated its state law duties of fair dealing and good faith, and U.S. District Judge James Gwin ruled in his favor.[30]  However, Nalbandian filed an appeal and was able to convince the Sixth Circuit to reverse the ruling.  Writing for the court, Judge Jeffrey Sutton found that the Medical School’s decision not to award the degree based on “professionalism” was an “academic judgment” that could not be second-guessed by the court.[31]

Overall Assessment

Kentucky nominees to the Sixth Circuit have not had the smoothest confirmations under Trump, with both Judges Thapar and Bush being confirmed by narrow partisan margins.  While Nalbandian has already been unanimously confirmed by the senate once, this does not necessarily portend an easy confirmation for him this time around.  The State Justice Institute, while important, focuses on education rather than shaping law or policy.  As such, it is unlikely that Democrats, who were willing to confirm Nalbandian to the SJI, will be equally accommodating when the prize is a lifetime appointment one step below the supreme court.

Furthermore, Nalbandian is active in the Federalist Society, and the conservative legal organization has become a a bete noire for Senate Democrats.  As such, it is likely that Nalbandian will see significantly more opposition to this nomination than he did eight years ago.

That being said, unlike the previous two nominees to the Sixth Circuit from Kentucky, Nalbandian lacks both a judicial paper trail and a bevy of controversial statements that can be mined for opposition research.  Furthermore, unlike most Trump nominees, Nalbandian has worked with diversity-based legal organizations, including as an active member of the Greater Cincinnati Minority Counsel Program  and the National Asian Pacific American Bar Association.  His active role in the Asian American legal community and his pro bono work should also deflect criticism.

Overall, while Nalbandian may not see the unanimous support he received eight years ago, he will likely be confirmed with a bipartisan majority.  His expected confirmation will make him the second Asian Pacific American on the Sixth Circuit, and will help secure the court’s conservative majority.


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

[2] Id. at 2.

[3] See id.

[4] See The Salt Lake Tribune, Utah Court Official Appointed by Obama to National Board, The Salt Lake Tribune, July 1, 2010.

[5] See Nalbandian, supra n. 1 at 25.

[6] See id. at 11.

[7] See id. at 11-12.

[9] See id.

[10] See id.

[11] See Nalbandian, supra n. 1 at 4.

[12] In re: Burnley, 998 F.2d 1 (4th Cir. 1992).

[13] See Nalbandian, supra n. 1 at 13.

[14] See Germain et al. v. Teva Pharmaceuticals USA Inc., 756 F.3d 917 (6th Cir. 2014).

[15] Ellis et al. v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004).

[16] See Rhodes et al. v. E.I. Du Pont De Nemours & Co., 636 F.3d 88 (4th Cir. 2011).

[17] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[18] See Northeast Ohio Regional Sewer Dist. v. Bath Twnship, 44 N.E.3d 246 (Ohio 2015).

[19] See, e.g., United States v. Romanini, 502 Fed. Appx. 503 (6th Cir. 2012).

[20] See Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003).

[21] See Frazier v. Huffman, 343 F.3d 780, 801 (6th Cir. 2003).

[22] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[23] See id. at 226.

[24] The State ex rel. Painter et al. v. Brunner, 941 N.E.2d 782 (Ohio 2011).

[25] See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-00820-Dlott, 2010 U.S. Dist. LEXIS 128434 (S.D. Ohio, Nov. 22, 2010).

[26] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[27] See Al-Dabagh v. Case Western Reserve University, 777 F.3d 355 (6th Cir. 2015).

[28] See id. at 358.

[29] See id.

[30] See id. at 358-59.

[31] See id. at 360.

Judge Robert Wier – Nominee to the U.S. District Court for the Eastern District of Kentucky

As the senior senator from Kentucky and the most powerful Republican in the Senate, Senate Majority Leader Mitch McConnell has had tremendous influence over the federal bench of his home state.  Since 1985, McConnell has recommended numerous judges to the federal bench, almost all of them conservative and very young.  While the average age of appointees to the federal bench is 50-52, the ten Kentucky judges appointed by Republican presidents since McConnell joined the senate have an average age of just 43.  At 50, U.S. Magistrate Judge Robert Wier is a more conventional nominee than McConnell’s usual recommendations.

Background

Robert Earl Wier was born in Harlan, KY in 1967.  After getting a B.A. with High Distinction from the University of Kentucky in 1989, Wier stayed and received a J.D. with High Distinction from the University of Kentucky Law School in 1992.  After his graduation, Wier served as a law clerk to Sixth Circuit Judge Eugene Siler.

In 1993, Wier joined the Lexington Law Firm Stoll, Keenon & Park LLP. as an associate.  Two years later, he co-founded the firm Ransdall & Wier, PLLC. as a partner.  After ten years at the firm, in 2006, Wier was tapped to be a U.S. Magistrate Judge for the U.S. District Court for the Eastern District of Kentucky.  He currently serves in that capacity.

In 2006, Wier contacted McConnell to express his interest in a federal judicial appointment.[1]  The appointment ultimately went to then-U.S. Attorney (and current Sixth Circuit Judge) Amul Thapar.

History of the Seat

Wier has been nominated for a vacancy on the U.S. District Court for the Eastern District of Kentucky.  This seat opened on May 25, 2017, when Judge Amul Thapar was elevated to the U.S. Court of Appeals for the Sixth Circuit.  Wier had maintained contact with McConnell and Senator Rand Paul through the Obama Administration regarding Kentucky federal judicial vacancies.[2]  He interviewed with McConnell’s staff in late 2016 and with McConnell in early 2017.  Wier interviewed with the White House and Department of Justice on Feb. 23, 2017.[3]  He was nominated on August 3, 2017.

Legal Experience

Wier has practiced as an attorney in two different positions.  First, after finishing his clerkship, Wier worked at Stoll, Keenon & Park, LLP. as an associate in their commercial litigation group.  In this position, which he held for two years, Wier represented businesses in pre-trial matters.  Second, from 1996 to 2006, Wier worked at Ransdall & Wier, P.C., a firm he founded and managed.

At Ransdall & Wier, P.C., Wier represented both businesses and individuals in commercial and employment cases.[4]  Among his more notable cases, Wier represented a plaintiff in establishing a cause of action for negligent hiring in Kentucky.[5]

Jurisprudence

Wier has served as a U.S. Magistrate Judge since 2006.  In this capacity, Wier has handled approximately 400 misdemeanor and civil cases that have proceeded to judgment, including approximately 200 jury trials.[6]  Among the more prominent cases that Wier has handled, he presided over the first extradition proceeding based on war crimes charges in the Eastern District of Kentucky,[7] and the discovery proceedings over a massive gender discrimination case brought against Wal-Mart.[8]  In another notable case, Wier found that compelling an Amish defendant to pose for a photograph in violation of his religious beliefs would violate the Religious Freedom Restoration Act (RFRA).[9]

Reversals

In his Senate Judiciary Questionnaire, Wier notes ten cases where his recommendations or rulings were reversed by the district court or by the U.S. Court of Appeals for the Sixth Circuit.[10]  Among these cases, the more substantive reversals generally fall into two categories: motions to suppress evidence under the Fourth Amendment; and motions for resentencing under 28 U.S.C. §2255.

Motions to Suppress

Wier has been reversed by the Sixth Circuit twice on motions to suppress.  In one case, upon Wier’s recommendation, Judge Danny Reeves denied a defendant’s motion to suppress cocaine and a firearm found in the passenger compartment of his vehicle.[11]  The Sixth Circuit, in a unanimous opinion by Judge Raymond Kethledge, reversed, finding that the Supreme Court’s intervening decision in Arizona v. Gant rendered the search unconstitutional.[12]  In another case, Reeves denied a motion to suppress, relying on Wier’s finding that the good-faith exception prevented suppression of child pornography found through a search lacking probable cause.[13]  The Sixth Circuit, in an opinion by Judge Alice Batchelder, reversed, finding that the good-faith exception did not apply.[14]

§2255 Motions

§2255 of Title 28 of the U.S. Code allows prisoners to collaterally challenge sentences that violate the Constitution, statutes, or are improperly decided.  Of the many §2255 rulings that Wier has made, a handful have been rejected by a district judge or the Sixth Circuit.  Notably, the Sixth Circuit reversed Reeves’ denial, upon Wier’s recommendation, of a §2255 motion involving interrelated sentences.[15]  In another case, Wier recommended that a prisoner originally sentenced under the Armed Career Criminal Act be resentenced, only to have his recommended rejected by Reeves.[16]

Political Activity

Wier has a relatively limited political history.  In 1997, Wier donated $200 to the Jonathan Scott Miller, a Democrat running for Kentucky State Treasurer (Miller was ultimately elected and served until 2007 as Treasurer).[19]  In 2003 and 2004, Wier served as Treasurer on the Campaign of former Kentucky State Senator Tim Philpot, a Republican, who was running to retain his appointed seat on the Fayette County Circuit Court.[20][21]

Overall Assessment

Overall, Wier is unlikely to attract major opposition.  He has a fairly non-controversial record of jurisprudence, and a long tenure as a U.S. Magistrate Judge.  Furthermore, he has a powerful advocate on his side.  No Kentycky judge recommended by McConnell has ever lost a vote for confirmation.  The streak is unlikely to end with Wier.


[1] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 46.

[2] See id.

[3] See id.

[4] See id. at 35-36.

[5] Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky. App. 1998).

[6] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 9-10.

[7] United States v. Basic, No. 5:11-MJ-05002-REW, 2012 WL 3067466 (E.D. Ky. July 27, 2012).

[8] EEOC v. Wal-Mart Stores, Inc., No. 6:01-CV-339-KKC.

[9] United States v. Girod, 159 F. Supp. 3d 773, 784 (E.D. Ky. 2015).

[10] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 27-28.

[11] United States v. Lopez, No. 6:06-120-DCR, 2006 WL 3827468 (E.D. Ky Dec. 27, 2006).

[12] United States v. Lopez, 567 F.3d 755 (6th Cir. 2009).

[13] United States v. Hodson, No. 6:06-CR-117-DCR (E.D. Ky Dec. 13, 2006).

[14] U.S. v. Hodson, 543 F.3d 286 (6th Cir. 2008).

[15] Maxwell v. United States, 617 F. App’x 470 (6th Cir. 2015).

[16] United States v. Potter, No. 7:03-21-DCR, 2016 WL 6135433 (E.D. Ky Oct. 20, 2016).

[17] Id.

[18] Id.

[19] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=robert+wier&order=desc&sort=D (last visited Jan. 1, 2018).

[20] Sen. Comm. on the Judiciary, 115th Cong., Robert E. Wier: Questionnaire for Judicial Nominees 46.

[21] Philpot, a social conservative, later came under fire for anti-same sex marriage comments that some interpreted to be homophobic.  See Andrew Wolfson, Family Judge: Gay Marriage Like “Jumbo Shrimp”, Louisville Courier Journal, Sept. 21, 2016, https://www.courier-journal.com/story/news/local/2016/09/21/family-judge-gay-marriage-like-jumbo-shrimp/90729048/.  

Judicial Nominations 2017 – Year in Review

Percentage of Nominees Confirmed in 1st Year of Presidency

As 2017 draws to a close, let us look back at the Trump Administration’s push to fill judicial vacancies, and compare the numbers from his first year to those of the past few presidents (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Trump submitted 69 nominees to Article III courts, more than any other modern president.  Compare the following:

Nominations

Nominations sent to the Senate in 1st Year of Presidency

As seen from the table above, Trump has submitted more district court nominees in the first year of his presidency than any of the last five presidents.  He also submitted more court of appeals nominees than any president other than George W. Bush.  While this is partially a function of a higher number of vacancies that Trump inherited at the beginning of his term, it is nonetheless a testament to the focus on judges by White House Counsel Don McGahn and his team.

Confirmations

In 2017, the Senate confirmed 19 of Trump’s nominees: Supreme Court Justice Neil Gorsuch; 12 judges to the U.S. Court of Appeals, and 6 to the U.S. District Courts.

Confirmations

Nominees Confirmed in 1st Year of Presidency

As seen from the chart, while Trump has had more appellate nominees confirmed than the other modern presidents, he has also had the fewest district court nominees confirmed.  This is largely the result of Senate Majority Leader Mitch McConnell’s prioritizing of appellate nominees when calling a vote.  In general, McConnell has largely ignored district court nominees, focusing on quick votes on the appellate picks.

This prioritization means that, as a whole, Trump has seen a smaller percentage of his judicial nominees confirmed than any of the last five presidents.

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Of the 69 nominees sent to the senate this year, three have already been (informally) withdrawn by the Administration: Jeff Mateer; Matthew Petersen; and Brett Talley.  This is unusual for two reasons: first, as of this point in their presidencies, none of the past five presidents had withdrawn a single nominee; and second, in general, this represents a higher percentage of “nominee failure” than previous presidents.

In comparison, out of all the nominations made in their first year, Presidents Reagan, and George H.W. Bush saw every single nominee confirmed.  Presidents Clinton and Obama each submitted one nomination in their first year that was ultimately not confirmed: Theodore Klein to the U.S. District Court for the Southern District of Florida; and Louis Butler to the U.S. District Court for the Western District of Wisconsin.  While President George W. Bush had to eventually withdraw four of his first year nominees: Terrence Boyle; Miguel Estrada; Charles Pickering; and Henry Saad, all of these nominees were blocked either through home-state opposition, or through the filibuster.  As such, the defeat of three nominees in a post-filibuster universe is particularly notable.

Diversity

I wrote earlier in the year that the Trump’s administration’s nominees have been relatively less diverse than those of previous presidents.  At the time of that post, Trump had nominated 36 federal judges.  Looking at all 69 of his appointments, it is important to re-evaluate the picture:

Trump has nominated four women to the courts of appeals, and twelve women to the district courts.  As such, 23% of Trump’s judicial nominees are women.  In comparison, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Trump has nominated one African American nominee: Judge Terry Moorer, one Hispanic nominee: Fernando Rodriguez; and four Asian American nominees: Judge Amul Thapar; Judge James Ho; Karen Gren Scholer; and Jill Otake.  As such, 9% of Trump’s judicial nominees are lawyers of color.

Age

While Trump nominees have drawn some criticism for their youth and inexperience, overall, their ages are not significantly different than those of prior appointees.

Trump’s appellate nominees so far have an average age of 49.5, while his district court nominees have an average age of 52.5.  As noted earlier, this is comparable to the ages of Bush, Clinton, and Obama nominees.

Overall Assessment

Reviewing his first year in office,  many observers agree that judicial appointments constituted an area of success for President Trump.  Looking at the empirical evidence, it is clear the Trump Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  However, when it comes to confirmations, they still lag behind other recent presidents.

Furthermore, the data suggests that declarations of a “flood” of young conservatives reaching the bench are hyperbole.  As noted above, on average, Trump’s nominees are comparable in age to those of other recent presidents.  Furthermore, McConnell’s focus on appellate confirmations has caused district confirmations to lag.  As such, the district courts, where a significant portion of American caselaw is decided, remain, as of yet, untouched by Trump.

 

Racial Diversity on the Federal Bench: Have We Hit the High Water Mark?

Last week, we discussed the low percentage of women among Trump’s judicial nominees.  This week, we address an equally concerning phenomenon: the low percentage of racial minorities.  President Trump’s first few batches of judicial nominees have the lowest proportion of “nonwhite” judges since the Kennedy Administration.  This portends a dramatic drop in the percentage of minority judges in the federal judiciary.

According to the Congressional Research Service (CRS), as of August 1, President Trump has nominated only one non-white judge to the federal bench: Judge Amul Thapar. (The nominees submitted on August 3d were not analyzed but are also overwhelmingly white).  This means that under 4% of Trump’s nominees have been racial minorities.  In comparison, 36% of President Obama’s judicial nominees were racial minorities.

Traditionally, Democratic presidents have been more sensitive to racial diversity in federal judicial appointments.  Presidents Carter, Clinton, and Obama all emphasized diversity when selecting federal judges, and racial minorities achieved key milestones in the federal judiciary during their presidencies.  Nevertheless, Republican presidents in the modern era, including Presidents Reagan, George H.W. Bush, and George W. Bush, all produced a group of judicial nominees more diverse than those of President Trump.  In fact, even Presidents Nixon and Ford had a slightly higher percentage of nonwhite nominees than President Trump.

According to CRS, minority judges are seeing the first sustained decline of their numbers from the peak they reached in early 2015.  Much of the decline is due to the Republican Senate’s refusal to confirm President Obama’s judicial nominees in the 114th Congress, and cannot be blamed on President Trump.  Nevertheless, unless this Administration makes an affirmative commitment to racial diversity, they will oversee a federal bench with far fewer minority judges.

It is still early and the Trump Administration can rectify this problem.  They can demonstrate a commitment to judicial diversity by identifying and nominating qualified minority candidates to the federal bench.  Such an effort does not have to be at the expense of ideology, as many judicial conservatives on the federal bench are of minority background, include Judges Janice Rogers Brown and Jerome Holmes.  The Administration can identify similar candidates, such as Arizona Supreme Court Justice John Lopez and U.S. District Court Judges Diane Humetawa and Marco Hernandez, and elevate them to the federal court of appeals.

With the end of the August recess, a new wave of nominees is expected next week.  The new nominations will either confirm the trend noted above, or mitigate it.

P.S. Special Thanks to Glenn Sugameli of Judging the Environment for linking me to the CRS data on diversity in judicial nominations.

 

John K. Bush – Nominee to the U.S. Court of Appeals for the Sixth Circuit

John K. Bush, a distinguished commercial litigator, is the second Kentucky nominee named by President Trump to the Sixth Circuit.  Like the first, Judge Amul Thapar, Bush has a close connection with the Federalist Society.  However, unlike Thapar, Bush has no judicial record, making his conservative legal background even starker.

Background

John Kenneth Bush was born on Aug. 24, 1964 in Hot Springs, Arkansas.  After getting a B.A. from Vanderbilt University and a J.D. from Harvard Law School, Bush clerked for Judge J. Smith Henley on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Bush joined the Washington D.C. office of Gibson, Dunn & Crutcher LLP, working primarily in federal appellate matters.

In 1996, Bush moved to the Louisville office of Bingham, Greenebaum & Doll LLP, becoming a member in 1998, and a partner in 2012.  At Bingham, Bush served as Co-Chair of the Litigation Department, as well as Team Leader of the Antitrust Team.

Starting in 1997, Bush has served as President of the Louisville Lawyers Chapter of the Federalist Society, an organization dedicated to shaping the American legal system in accordance with originalist and textualist principles.

In November 2016, Bush indicated his interest in serving as a federal judge to Senate Majority Leader Mitch McConnell (R-KY).  After meetings with McConnell, Senator Rand Paul (R-KY), and officials in the White House Counsel’s Office and the Department of Justice, Bush was formally nominated on May 8, 2017.[1]

History of the Seat

Bush has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in February 2017 with Judge Danny Julian Boggs’ move to senior status.[2]  Boggs, an appointee of President Ronald Reagan, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2009, but did not announce the move until shortly before President Trump’s inauguration.

Legal Experience

In almost thirty years as an attorney, Bush has primarily worked on commercial litigation, both on the trial and the appellate level.  As the head of Bingham’s Antitrust team, many of Bush’s most prominent cases involve antitrust litigation.  Early in his year, Bush was chief trial counsel for Hillerich & Bradsby Co. (H&B.), a baseball bat manufacturer in Louisville, in multidistrict litigation involving NCAA rules governing aluminium baseball bats.[3]

In one of his most significant cases, Bush represented Vibo Corporation, a tobacco manufacturer, in challenging its payment obligations under the Master Settlement Agreement (MSA) negotiated between the tobacco industry and state attorney generals in the 90s.  In the suit, Bush challenged the MSA, arguing that the agreement violated federal antitrust law.  The primary suit, brought in the Western District of Kentucky, resulted in both trial and appellate rulings against Bush’s client.[4]

Despite his primary focus on commercial litigation, Bush has also worked on some more controversial cases.  Alongside Theodore Olson, Bush was part of President Ronald Reagan’s defense team during the Iran-Contra investigation.[5]  Bush also worked with law school classmate Mark Nielson to sue the State of Connecticut and force implementation of a voter-approved constitutional limit on state spending.[6]  Bush was also part of the legal team that successfully defended a low sentence for Stacey C. Koon, the Los Angeles police sergeant convicted of civil rights violations for his role in the beating of Rodney King.[7]

Furthermore, Bush’s participation as amicus counsel in two politically charged cases may also be brought up at his confirmation hearing.  In 2007, Bush filed an amicus brief on behalf of the Louisville Area Chamber of Commerce, Inc. urging the Supreme Court to uphold the Louisville school district’s desegregation plan.[8]  Despite drafting a brief aimed at drawing conservative votes, the Supreme Court voted 5-4 to strike down the desegregation plan for relying too closely on race.[9]  Furthermore, last year, Bush participated as amicus counsel in Susan B. Anthony List v. Driehaus, a landmark First Amendment case which struck down Ohio’s ban of false statements in political campaigning.[10] 

Political Activity

Bush, a registered Republican,[11] has a long history of involvement with the Republican party.  Bush has contributed to the campaigns of numerous Republicans including McConnell, Paul, Congressman Andy Barr, and former Congresswoman Anne Northup.[12]  Over the course of his career, Bush has contributed $4500 to McConnell and $1050 to Paul, as well as volunteering for both Senators’ re-election campaigns.[13]

Bush has also made two small contributions to the Louisville and Jefferson County Republican Committee, as well as serving as an Executive Committee Member for the Jefferson County Republican Party for the last year.  Bush also served on Republican Governor Matt Bevin’s Transition Team.

Speeches and Writings

Over his thirty year long legal career, Bush has both spoken and written extensively on legal issues.  While most of Bush’s speeches and writings focus on the practice of litigation[14] and antitrust law,[15] two in particular may draw controversy.

Right to Privacy and the Kentucky Supreme Court

In 2006, Bush co-authored a paper for The Federalist Society of Law and Public Policy Studies alongside Prof. Paul E. Salamanca of the University of Kentucky School of Law.  The paper, titled “Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?” criticized a series of rulings made by the Kentucky Supreme Court that the authors felt had expanded judicial authority at the expense of the legislature, and had disregarded precedent.  Among the areas of criticism, the authors noted the Kentucky Supreme Court’s tendency “to find rights in the state constitution above and beyond those in the U.S. Constitution.”[16]  Specifically, they highlighted that the Court “immunized consensual sodomy from criminal prosecution” despite the U.S. Supreme Court’s ruling to the contrary in Bowers v. Hardwick.[17]

Bush and Salamanca also criticized the Court’s abortion jurisprudence, noting that while the Court was initially willing to defer to state regulation of abortion, it’s “affirmance of the state’s efforts to protect unborn life was short-lived.”[18]  They also chided former Justice Charles Leibson, stating that “Justice Leibson’s interpretation of Roe gave little, if any, weight to the protection of unborn life.

Originalist Interpretation of Libel Law

On March 7, 2009, Bush spoke at the Symposium on Constitutional Law at the University of Louisville Brandeis School of Law.  His speech, titled “The Constitution and the Importance of Interpretation: Original Meaning” included an endorsement of originalism: a method of interpretation that gives primacy to the words of the constitution as they were understood by the authors.[19]  In his speech, Bush singled out the Supreme Court case of New York Times v. Sullivan as a case inconsistent with originalism.[20]  Sullivan, which insulated news articles that criticized public figures, has been cited as a case that protects freedom of the press.[21]  As such, Bush’s criticism of the case may raise questions about his willingness to interpret and apply it as a federal judge.  Bush’s remarks have already drawn concern from liberal groups, who argue that they could be used as a blueprint by the Trump Administration to target independent journalists.[22]

Overall Assessment

Unlike the previous nominees featured on the Vetting Room, Bush has no experience as a judge.  While there is nothing innately disqualifying about this, Bush’s lack of judicial experience makes it more difficult to gauge what kind of a judge he will be.  However, looking at his extensive history with the Federalist Society, his endorsement of originalism, and his long involvement with the Republican party, it is reasonable to conclude that Bush will be a deeply conservative addition to the Sixth Circuit.

While partisan activity should not be a bar to judicial service, Bush’s background makes it easy for progressive legal groups to build a case against his confirmation.  In particular, Bush’s criticism of both Sullivan and an expanded right to privacy, as well as his defense of Koon, a white police officer charged with violating the civil rights of a black man, could be used as grounds for concern.[23]

Overall, there is enough in Bush’s record to draw concern from the Judiciary Committee Democrats.  If and when Bush’s nomination comes up for Committee consideration, I expect a partisan battle over his confirmation.


[1] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[3] See, e.g., Baum Research & Dev. Co. v. Hillerich & Bradsby Co., No. 98-72946, 2003 WL 25775524, at *1 (E.D. Mich. Nov. 23, 2003).  

[4] See VIBO Corp. v. Conway, 594 F. Supp. 2d 758 (W.D. Ky. 2009), aff’d 669 F.3d 675, 680 (6th Cir. 2012).

[5] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[6] Jack Ewing, Frustrated Lawmaker Asks Court for Assist, Hartford Courant, Sept. 11, 1993, http://articles.courant.com/1993-09-11/news/0000004890_1_spending-cap-legislator-courts.

[7] Koon v. United States, 518 U.S. 81 (1996).

[8] See Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

[9] Andrew Wolfson, President Trump Taps Louisville Conservative John K. Bush for Court, Louisville Courier-Journal, May 8, 2017, http://www.courier-journal.com/story/news/politics/2017/05/08/donald-trump-taps-louisville-conservative-john-k-bush-court/101426196/. See also Robert Barnes, Three Years After Landmark Court Decision, Louisville Still Struggles With School Desegregation, Wash. Post, Sept. 20, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html?sid=ST2010091904357.

[10] Susan B. Anthony List v. Driehaus, 814 F.3d 466, 469 (6th Cir. 2016).

[12] While Bush takes the unusual step of reporting his campaign contributions on his Senate Judiciary Questionnaire, he omits some small donations, including a $500 contribution to McConnell made on Aug. 31, 2005, and a $200 contribution to Northup on July 26, 2004.  

[13] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=john+bush (last visited May 18, 2017).

[14] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[15] See, e.g., John K. Bush, So You Have a Big Antitrust Problem: Now What?, Antitrust Law Client Strategies, 2007.  

[16] John K. Bush, Paul E. Salamanca, Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?, The Federalist Society of Law and Public Policy Studies, Sept. 2006, 5.  

[17] Id.

[18] Id. at 6.

[19] John K. Bush, Speech at the Brandeis School of Law’s Symposium on Constitutional Law (Mar. 7, 2009).

[20] Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[21] New York Times Editorial Bd., The Uninhibited Press, 50 Years Later, N.Y. Times, Mar. 8, 2014, https://www.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html (“[Sullivan] rejected virtually any attempt to squelch criticism of public officials – even if false – as antithetical to the ‘central meaning of the First Amendment.’”).

[22] See Justice Watch, Trump Judicial Nominee John K. Bush Has Advocated Stripping First Amendment Protections from the Press, Alliance for Justice, May 11, 2017, http://www.afj.org/blog/trump-judicial-nominee-john-k-bush-has-advocated-stripping-first-amendment-protections-from-the-press; Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[23] Although Bush’s defenders may note his defense of aggressive desegregation plans as amici in Parents Involved.