Search Results for: Amy Barrett

When Judges Disagree – Judge Amy Coney Barrett’s Concurrences and Dissents

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  To that end, we have summarized key cases in which Judge Barrett concurred or dissented from the majority on her panel.  We’ll then follow up with a post where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018), rev’d en banc, 911 F.3d 469 (7th Cir. 2018).   – This was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.  Barrett’s view was ultimately vindicated by the en banc Seventh Circuit, where the full court held in a 8-3 decision that, while the ex parte hearing was “constitutionally dubious,” it could not be reversed under the deferential standard that federal courts must apply when reviewing state court decisions.

Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019).  – This was a collateral challenge to the defendant’s attempted murder conviction.  After his conviction, it came to light that the prosecutor had withheld evidence that the sole witness to identify the defendant had undergone hypnosis prior to trial to enhance his recollection of the incident.  On habeas review, the majority of the Seventh Circuit panel overturned the conviction, in an opinion by Judge William Bauer.  Bauer found that the evidence was required to be disclosed under the Supreme Court’s rulings in Brady v. Maryland and Giglio v. United States, and that the prosecutor’s case rested on the eyewitness testimony, making the disclosure essential.  Barrett dissented, arguing that, while the lack of disclosure did violate the defendant’s rights under Brady, the state court decisions refusing relief were not an unreasonable application of Supreme Court precedent, and, as such, there was no basis for the Seventh Circuit to grant relief.  

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019). – The question in this case was whether the petitioner’s conviction for “escape” qualified as a violent felony under the Armed Career Criminal Act.  Judge Michael Scudder wrote for the court in ruling that the conviction did not so qualify based on recent precedent narrowing the scope of the Act.  Barrett concurred, but wrote separately to argue that the court needs to simplify the caselaw addressing such petitions.

United States v. Rutherford, 810 Fed. App’x 464 (7th Cir. June 23, 2020). – This suit involved an appeal filed by an individual seeking resentencing under the First Step Act.  In an unpublished order, the Seventh Circuit exercised jurisdiction but affirmed the district court’s decision regarding the sentence.  Barrett dissented, arguing that the appeal was not timely, and, as such, the Seventh Circuit lacked jurisdiction over the appeal. 

United States v. Wilson, 963 F.3d 701 (7th Cir. 2020). – The question in this case was whether police had reasonable suspicion to stop and search the defendant based on a dispatch call description that did not match the defendant.  Judge Daniel Manion, writing for the court, found that the police had reasonable suspicion based on the totality of all the facts.  Barrett concurred, noting that, while the defendant “wasn’t even in the ballpark” when compared to the dispatch description, his flight from the police justified their subsequent stop and search under Supreme Court precedent. 

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. 2020) (en banc). – In this case, an 8-3 majority of the en banc Seventh Circuit held that the First Step Act could be applied to the benefit of a defendant who had committed his offense and was convicted before the Act’s passage, but had his sentence vacated and was resentenced after. Barrett authored a dissent joined by Judges Michael Brennan and Michael Scudder, arguing that the Act should not apply to the defendant because he was initially sentenced prior to the Act’s passage, and that the subsequent vacating of the sentence by the Seventh Circuit did not allow him to take advantage of the Act. 

Second Amendment

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). – This was a Second Amendment challenge to federal statutes that barred the plaintiff, who had been convicted of one count of mail fraud, from owning a gun as a felon.  Judge Joel Flaum, writing for the panel majority, rejected the challenge, finding that the Supreme Court had expressly noted the constitutionality of felon dispossession laws under D.C. v. Heller and McDonald v. City of Chicago.  Judge Flaum then found that historical evidence regarding the scope of felon dispossession was inconclusive, and, applying intermediate scrutiny, upheld the laws. Barrett dissented, arguing that the history of gun rights showed that felons were traditionally only barred from holding weapons when there was evidence of their dangerousness.  As such, Barrett argued that a blanket ban on felons owning weapons violated the Second Amendment. 

Section 1983 Suits

McCottrell v. White, 933 F.3d 651 (7th Cir. 2019). – This case involved a 1983 suit for injuries brought by inmates in an Illinois prison who were injured after guards fired warning shots with a shotgun over a crowded prison hall.  Judge Ilana Rovner, writing for the panel majority, held that the injuries suffered by the inmates were sufficiently serious to potentially violate the Eighth Amendment, and that disputes of material facts between the parties needed to be resolved by a jury.  Barrett dissented, arguing that, as plaintiffs admitted that the guards were not intentionally trying to hit anyone with the shotgun, they could not prove that the guards acted “maliciously and sadistically” and, as such, could not recover. 

Williams v. Wexford Health Sources, Inc., 957 F.3d 828 (7th Cir. 2020). – The question in this case was whether, under Illinois law, a prisoner exhausted his administrative claims by filing an emergency petition in the prison system. Judge Diane Wood, writing for the panel, held that the prisoner had exhausted his remedies as he reasonably believed that filing the emergency procedure was necessary.  Barrett concurred, disagreeing that the inmate had exhausted his remedies, but arguing that the prison had failed to prove lack of exhaustion under their burden. 

Reproductive Rights

Planned Parenthood of Ind. & Ky. v. Box, 949 F.3d 997 (7th Cir. 2019) (en banc). – After a district court judge granted an injunction banning a series of Indiana restrictions on abortion clinics, and a 2-1 panel of the Seventh Circuit affirmed, the state sought en banc rehearing before the 11 judge court.  The court denied rehearing by a 6-5 margin.  While Barrett did not write her own dissent, she joined a dissent to denial of en banc rehearing written by Judge Michael Kanne, who argued that the full court should have considered the scope of pre-enforcement challenges to state laws. 

Administrative Law

Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020). – This was a challenge to the Trump Administration’s “public charge” rule, which interpreted the Immigration and Nationality Act (“INA”) to deny admission to the U.S. or adjustment of status to any individual who receives certain cash and non-cash government benefits.  Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois granted an injunction against the regulation, and a divided panel of the Seventh Circuit denied to stay Judge Feinerman’s injunction.  Barrett dissented against the denial of stay.  After the Supreme Court stepped in and stayed the injunction, the Seventh Circuit affirmed Feinerman’s ruling striking down the regulation on the merits.  Barrett dissented again, arguing that the regulation is a reasonable interpretation of the INA’s ambiguity on defining a public charge. 

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Meet the Shortlisters: Amy Coney Barrett

Judge Amy Coney Barrett has undergone a meteoric rise.  On the bench for less than a year and having practiced law for only two, Barrett is now a leading contender for the U.S. Supreme Court.  In the jockeying among various candidates on the shortlist, Barrett is the favorite of social conservatives, which may both hurt and assist in the nomination process.

Vital Statistics

Name: Amy Vivian Coney Barrett

Age: 46

Current Position: Judge on the U.S. Court of Appeals for the Seventh Circuit (since 2017)

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School

Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit; Justice Antonin Scalia, U.S. Supreme Court

Prior Experience: Professor of Law at Notre Dame Law School from 2002 to 2017

Jurisprudence

Of all of Trump’s shortlist picks, Barrett has the least amount of judicial experience.  She has served on the U.S. Court of Appeals for the Seventh Circuit since October 2017, and has never been a judge before.  In her eight months on the bench, Barrett has authored just nine opinions, only one of which drew a dissent. Her opinions are outlined below:

Criminal

  • Schmidt v. Foster – This was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.
  • Perrone v. United States – The defendant sought to withdraw a plea agreement he had made, arguing that his counsel had been deficient.  The defendant argued that his counsel should have informed him that the government needed to show that his distribution of cocaine was the but-for cause of the victim’s death.  Barrett rejected this argument, noting that, under the Strickland standard, the defendant would be unable to show that his deficient counsel prejudiced him.
  • United States v. Barnes – The defendant, in this case, sought to challenge his sentence, arguing that the court incorrectly used his local marijuana conviction to enhance his sentence.  Barrett rejected this argument, noting that the defendant failed to properly object to the enhancement, and, as such, forfeited the claim.

Civil

  • Wisconsin Central Ltd. v. TiEnergy, LLC. – This case involved a suit to recover demurrage (statutory fees imposed when rail cars are unduly detained).  After a Wisconsin Central car was detained at TiEnergy’s facility, Wisconsin Central filed suit to recover the demurrage incurred.  Barrett wrote for the panel in finding that TiEnergy needed to reimburse the demurrage fees.
  • Goplin v. WeConnect, Inc. – This case turned on whether the plaintiff-employee was bound by an arbitration agreement in resolving his Fair Labor Standards Act (FLSA) claim against defendant-employer.  Barrett ruled that the arbitration agreement did not control, as the company mentioned in the agreement was AEI, not WeConnect. Barrett also rejected the defendant’s argument that AEI was merely the former name of WeConnect.
  • Fiorentini v. Paul Revere Life Insurance Co. – The plaintiff, a business owner, received total disability coverage through insurance while undergoing cancer treatment.  After being cancer-free for five years, the plaintiff returned to work, and the total disability coverage ceased. Plaintiff filed suit for breach of contract, arguing that the side effects from the cancer treatment still left him disabled under the insurance agreement.  Barrett disagreed, finding that the plaintiff was able to conduct most of the essential functions of his position, and, as such, he was not totally disabled.
  • Dalton v. Teva North America – The plaintiff sued the manufacturer of an intrauterine device (IUD) after it broke during its removal.  Barrett affirmed the dismissal of the plaintiff’s claims, noting that Indiana law requires the use of expert evidence to prove causation, and the plaintiff had failed to present expert evidence.
  • Boogard v. Nat’l Hockey League – This was a wrongful death action brought by parents of a NHL player who died of a drug overdose.  Barrett affirmed the dismissal of plaintiffs’ claims, noting that the plaintiffs had failed to respond to the defendant’s 12(b)(6) motion, and had, in doing so, forfeited their claims.
  • Webb v. Financial Indus. Regulatory Auth. – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims, the amount had been satisfied.
  • Walton v. EOS CCA – This suit challenged a debt collector’s practices under the Fair Debt Collection Practices Act.  Barrett held that the collector had met their requirements under federal law.

 

Academic Writing

As a law professor for sixteen years before she joined the bench, Barrett was fairly prolific in detailing and explaining her view of the law.  In her academic writings, Barrett occasionally took on controversial positions.

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.  Barrett argues that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.  Barrett was questioned on this “flexible” view of stare decisis during her confirmation hearings, and the issue is likely to come up again if she is elevated.

Additionally, in an article titled Catholic Judges in Capital Cases, Barrett debates whether a Catholic judge would be required to recuse themselves in capital cases based on their religious objections to the death penalty.  Barrett’s ultimate conclusion in the article is as follows:

“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.”

This conclusion led to criticism suggesting that Barrett was advocating that a judge base their decisions on church policy rather than the law.  Such criticism was, in turn, dismissed by some commentators as anti-Catholic.

Why Trump Could Choose Barrett as His Nominee

In his nominee, Trump is seeking someone with Ivy League credentials and a long academic record.  While Barrett is not an Ivy League alumnus, as a Supreme Court clerk, her credentials rival those of any Yale or Harvard graduate.  Furthermore, Barrett has a wider and stronger academic record than any of Trump’s other finalists.

Furthermore, Barrett’s selection makes sense politically.  First, Barrett is a woman, and thus, harder to caricature as a conservative extremist.  Second, Barrett has strong support from social conservatives, a key constituency in the Supreme Court fight.  Third, Barrett is from Indiana, putting Sen. Joe Donnelly (D-Ind.) in an impossible position.  If he opposes Barrett, he risks alienating the center-right voters he needs to win re-election.  If he supports Barrett, he risks alienating his own base, who he also needs.  In other words, a Barrett pick would vastly increase the chances of Donnelly losing re-election, and, as such, of Republicans holding the Senate.

Why Trump Would Not Choose Barrett as His Nominee

There are three main reasons why Barrett may not be chosen as the nominee.  First, Barrett does not yet have the requisite level of experience for the Supreme Court.  Republicans are still wary from the nomination of Justice David Souter (an expected conservative who became a reliably liberal vote) and may seek stronger confirmation of Barrett’s jurisprudence before elevating her.  Second, Barrett risks fracturing the Republican caucus.  Republican Sen. Susan Collins has already indicated that she will not back any nominee who opposes Roe v. Wade or who does not commit to stare decisis.  Given Barrett’s writings on the subject, her confirmation may end up being much more difficult than those of other shortlisters.  Third, given the comparative paucity of female Supreme Court candidates on the right, Trump may choose to “save” Barrett for a seat vacated by a female Justice (e.g. Justice Ruth Bader Ginsburg).

Expected Lines of Attack

Barrett has already undergone one grueling confirmation process, receiving just three Democratic votes.  If she is nominated again, expect emphasis on Barrett’s view on Roe v. Wade, given her status as the likely fifth vote on rehearing the case.

Likelihood of Nomination

Had the nomination come out this week, I’d have expected Barrett to be the nominee.  However, a brutal series of attacks by social conservatives on expected frontrunner Brett Kavanaugh may have had the side-effect of weakening Barrett as well.  Nevertheless, given the political benefits of nominating Barrett,a Barrett nomination should be no surprise.

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Professor Amy Coney Barrett – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The Seventh Circuit is known for attracting academics.  Three of its most prominent judges, Richard Posner, Frank Easterbrook, and Diane Wood, served as law professors before being elevated to the bench.  If confirmed, Prof. Amy Coney Barrett will continue that trend.

History of the Seat

Barrett has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened in February 2015 with the retirement of Judge John Daniel Tinder.[1]  Even though Tinder’s plans were leaked almost a year before his actual retirement,[2] the Obama Administration did not submit a nominee to the Senate until January 2016, when Myra Selby, a former justice on the Indiana Supreme Court, was nominated.[3] 

While Selby’s nomination was strongly supported by Sen. Joe Donnelly (D-IN), Sen. Dan Coats (R-IN) opposed the nomination, arguing that the nominee should be selected by a bipartisan commission for the state.[4]  With Coats declining to return a blue slip, the Senate Judiciary Committee did not take any action on Selby’s nomination, and it was returned unconfirmed at the end of the 114th Congress.  As such, the vacancy was left open for Trump to fill.

Background

Barrett was born as Amy Vivian Coney on Jan. 28, 1972 in New Orleans, Louisiana.  After getting a B.A. from Rhodes College, Barrett attended Notre Dame Law School, where she was executive editor of the Notre Dame Law Review.  After graudating from law school, Barrett clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and obtained a prestigious Supreme Court clerkship with Justice Antonin Scalia.  

After her clerkship, Barrett joined the D.C. office of Miller, Cassidy, Larocca & Lewin LLP, which merged into Baker Botts LLP.  While at Baker, Barrett was a part of the legal team representing then-Governor George W. Bush in Bush v. Gore.  

As an attorney at Baker, Barrett started working as an adjunct faculty member at the George Washington University Law School, co-teaching a class with fellow Baker attorney John Elwood (himself a distinguished Supreme Court practitioner).  Shortly after, Barrett joined the Law School as a John H. Olin Fellow in Law.  In 2002, Barrett moved to become a Professor of Law at Notre Dame Law School, her alma mater.  Other than a short stint as a Visiting Associate Professor of Law at the University of Virginia, Barrett has served at Notre Dame ever since.  

In February 2017, Barrett was contacted by the Office of Sen. Todd Young (R-IN), and asked about her interest in a Seventh Circuit opening.  After confirming her interest, Barrett completed an application, met with the Senator, the White House and the Department of Justice.[5]  On May 8, President Trump formally nominated Barrett to the Seventh Circuit.[6]

Legal Practice

Because Barrett has spent the vast majority of her professional life as a law professor, she has relatively little experience in litigation.  During her two years at Baker Botts, Barrett worked on cases in the trial and appellate courts, including the second-chairing of an accounting malpractice case in Virginia state court.[7]  As noted earlier, Barrett was also part of the legal team in Bush v. Gore.  

In 1999, Barrett assisted the appellate counsel for two individuals convicted of conspiracy to defraud several government agencies.[8]  Barrett, working with other attorneys, raised several challenges to the convictions and sentence, including challenges to the sufficiency of the evidence, and the jury instructions.  Ultimately, the Second Circuit affirmed the convictions and the sentences.[9]

In 2000, Barrett was part of the legal team representing the National Council of Resistance of Iran in challenging their designation as a “foreign terrorist organization” by the State Department.[10]  The D.C. Circuit sided with Barrett, holding that the designation violated the Council’s due process rights, reversing and remanding.[11]  The designation was eventually lifted by Secretary of State Hillary Clinton in 2012.[12]

Writings

As a law professor, Barrett has written exhaustively on a range of legal issues, often taking legal positions that call into question established legal doctrines.  For example, in one article, Barrett argues that the traditionally held view of the Supreme Court’s supervisory power over lower courts is flawed.[13]  In her confirmation, Barrett is particularly likely to face questions about her writings challenging the principle of stare decisis.

The legal doctrine of stare decisis is the foundation of a common law system.  The doctrine asks courts to generally follow the precedent made by previous courts, even where a judge may disagree with the previous outcome.  As Justice Louis Brandeis once noted, “it is more important that the applicable rule of law be settled than that it be settled right.”[14]  While stare decisis is not inflexible (Brandeis goes on to note that courts have an obligation to reverse incorrect constitutional rulings),[15] judges generally will follow rulings from previous panels, even where they might have ruled differently.[16]

For her part, Barrett has repeatedly questioned stare decisis, and whether the doctrine should be applied as broadly as it is.  In a 2013 article, Barrett argued that a weakened form of stare decisis in constitutional cases helps promote pluralism on the Supreme Court and mitigates disagreements.[17]

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process, posits that, in many instances, the application of stare decisis violates the due process rights of litigants, as it denies them the opportunity to litigate the merits of their own claim.[18]  Specifically, Barrett argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.[19]  Barrett notes that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.[20]  In other words, as Barrett notes, she suggests using precedent in a way analogous to the way it is used in civil law systems, as a “shortcut” in figuring out how to reach a decision.[21]

Barrett also questions stare decisis in the statutory context in a separate article, where she urges that the doctrine is “an ill fit in the inferior courts.”[22]

Overall Assessment

As an academic, Barrett is paid to push the envelope on legal thought and theory.  While this makes her a prolific and talented writer, it leaves little sign of how she would rule on the bench.  Barrett’s experience in litigation is fairly limited.  By her own admission, Barrett has never tried a case as first chair, never argued an appeal, and never been counsel of record in an appellate case.  This may cause critics to suggest that she is unqualified for the federal bench.

On the other hand, Barrett’s academic credentials are beyond question.  Her clerkships to two legal luminaries, Judge Silberman and Justice Scalia, are enough to put to rest any questions about her legal ability.  While she may lack litigation experience, the Seventh Circuit is full of former academics who have distinguished themselves on the bench.

A bigger question is Barrett’s commitment to following precedent that she disagrees with.  Given her repeated questioning of stare decisis, it is reasonable to expect Senators to explore her willingness to abide by it.  

Another point which may hurt Barrett is her likely status as a future Supreme Court nominee.  Barrett is young (only 45), a woman, and has impeccable academic credentials.  It remains to be seen if Democrats will attempt to handicap her ascent by attacking her appellate confirmation.  

Provided Barrett manages to allay concerns about her experience and her views on precedent, there is little reason to oppose her nomination.  In all likelihood, Barrett will avoid the fate of Myra Selby and be confirmed in due course to the Seventh Circuit.

[1] Dave Stafford, Tinder Departs 7th Circuit, The Indiana Lawyer, July 29, 2015, http://www.theindianalawyer.com/tinder-departs-7th-circuit/PARAMS/article/37799.

[2] Dave Stafford, Judge Tinder’s Retirement Plans Leaked, The Indiana Lawyer, Mar. 12, 2014, http://www.theindianalawyer.com/judge-tinders-retirement-plans-leaked/PARAMS/article/33639.  

[3] Press Release, White House Archives, President Obama Nominates Two to Serve on the United States Court of Appeals (January 12, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).  

[4] Press Release, Office of Sen. Dan Coats, Coats Responds to President’s Nominations for Indiana Judicial Vacancies (Jan. 12, 2016) (on file at www.legistorm.com).  

[5] There are no indications of any meetings or consultations with Sen. Joe Donnelly (D-IN).

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

[7] Tassi Drywall Construction Co., Inc. v. Turner Jones & Assoc., P.C. et al., No. L190384 (Va. Cir. Ct.).

[8] United States v. Berger, 224 F.3d 107 (2d Cir. 2000).

[9] Id. at 111.

[10] Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001).

[11] Id.

[12] Shane Scott, Iranian Dissidents Convince U.S. to Drop Terrorist Label, N.Y. Times, Sept. 21, 2012, http://www.nytimes.com/2012/09/22/world/middleeast/iranian-opposition-group-mek-wins-removal-from-us-terrorist-list.html.

[13] Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006).

[14] Burnet v. Coronodo Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).

[15] Id. at 407.

[16] See, e.g., United States Inter. Revenue Serv. v. Osborne, 76 F.3d 306 (9th Cir. 1996).  

[17] Amy Coney Barrett, Symposium: Constitutional Foundation: Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1737 (2013).

[18] Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).

[19] See id. at 1035.

[20] Id. at 1074 (“To the extent, however, that precedent is well-established in a court of appeals, it is unlikely that many litigants would press for overruling it, even with a flexible system of stare decisis in place.”).

[21] Id. at 1069.

[22] Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 351 (2005).

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When Judges Disagree – Dissents From Judge Barrett’s Positions

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  Last post, we looked at key cases in which Judge Barrett concurred or dissented from the majority on her panel.  Today, we review cases where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Reynolds v. Hepp, 902 F.3d 699 (7th Cir. 2018) – This was a collateral challenge to a conviction where the state of Wisconsin cut off payment to the plaintiff’s attorney during his appeal.  Barrett joined the majority opinion by Judge David Hamilton dismissing the suit under the deferential standard of review.  Judge Diane Wood dissented, arguing that the attorney had prejudiced the petitioner by ceasing work on the appeal after the state had cut off funding, and that the state court decision denying relief was an unreasonable application of Supreme Court precedent.

Immigration Appeals

Alvarenga-Flores v. Sessions, 901 F.3d 922 (7th Cir. 2018) – Mr. Alvarenga-Flores was seeking asylum in the United States, arguing that he was under threat from gang members in El Salvador.  An immigration judge ruled against him, finding him not credible, and the Board of Immigration Appeals affirmed.  Barrett wrote for the panel majority in affirming the Board.  Judge Thomas Durkin, sitting by designation, dissented in part, disagreeing that the adverse credibility determination was justified.

Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019) – In this case, the plaintiff, a U.S. citizen, challenged the denial of a visa to his wife, alleging that the consular official made up a claim that his wife had attempted to smuggle children into the United States.  Barrett wrote for the majority in dismissing the claim under the consular non-reviewability doctrine, which holds that visa decisions cannot be challenged in federal court.  Judge Kenneth Ripple dissented, arguing that the doctrine departed from Supreme Court precedent and was read too broadly by the majority.  The Seventh Circuit later denied en banc rehearing over the opinion, with Judges Diane Wood, Ilana Rovner, and David Hamilton dissenting, stating that the majority opinion was “a dangerous abdication of judicial responsibility.”  Barrett authored a concurrence, joined by Judge Joel Flaum, defending her opinion.  In the concurrence, Barrett argued that her position was compelled by Supreme Court precedent.

Civil Procedure

Webb v. Financial Indus. Regulatory Auth., 889 F.3d 853 (7th Cir. 2018) – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims at the pleading stage, the amount had been satisfied.

Employment Law

United States EEOC v. Autozone, Inc., 875 F.3d 860 (7th Cir. 2017) – The question in this case was whether a business’ decision to intentionally segregate their employees by race between stores violated Title VII of the Civil Rights Act.  A panel of the Seventh Circuit held that, without evidence that such division adversely affected the employees, there was no Title VII violation.  The Seventh Circuit then denied en banc rehearing, with Barrett voting not to rehear the decision.  In her dissent from denial of rehearing, Judge Diane Wood argued that the decision essentially enshrined “separate but equal” into Title VII.

Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc) – The key question in this case was whether the Age Discrimination in Employment Act (“ADEA”) allowed job applicants to sue under a disparate impact theory of discrimination.  A seven-judge majority on the court, including Barrett, joined the opinion of Judge Michael Scudder, who held that job applicants, unlike employees, were not permitted to file disparate impact claims under ADEA.  Judge David Hamilton dissented on behalf of four judges.

Equal Protection

St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003 (7th Cir. 2019) – This case involved a challenge to the Milwaukee School District’s policy of adding extra restrictions to private schools who wished to participate in the district’s busing program.  Barrett joined Judge Amy St. Eve in finding the differential treatment to be constitutional under rational basis review.  Judge Diane Sykes dissented.

Van Dyke v. Vill. of Alsip, 2020 U.S. LEXIS 27943 (7th Cir. Sept. 2, 2020) – This case involved a challenge to a zoning restriction that prevented the plaintiff from renting out her garden apartment.  The Seventh Circuit, with Barrett joining, rejected the plaintiff’s takings and equal protection claims in an unsigned order.  Judge Ilana Rovner dissented, finding that the plaintiff had stated a claim on her equal protection challenge.

Tort Litigation

Chronis v. United States, 932 F.3d 544 (7th Cir. 2019) – The question in this case was whether the district court erred in dismissing the plaintiff’s tort claim against the federal government for failure to send a demand letter before suing.  Barrett wrote for the panel majority in dismissing the claim, finding that the plaintiff had failed to make a proper demand before suing.  Judge Ilana Rovner dissented, arguing that the court should adopt a more flexible standard to permit plaintiffs to be able to not have cases thrown out because of “technical deficiencies.” 

1983 & Prisoner Suits

J.K.J. v. Polk Cty., 960 F.3d 367 (7th Cir. 2020) (en banc) – This case involved a civil rights suit brought by two women who were repeatedly sexually assaulted by a correctional officer.  A panel of the Seventh Circuit overturned a jury verdict in favor of the plaintiffs, and the Seventh Circuit reversed the panel on a 7-4 vote.  Barrett joined the majority opinion by Judge Michael Scudder upholding the jury verdict in favor of the women.  Judges Frank Easterbrook and Michael Brennan authored separate dissents.

Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (en banc) – This was a class action suit brought by inmates at Lincoln Correctional Center who were subjected to mass strip searches as part of cadet training exercises.  Barrett joined the majority on the en banc court in holding that the Fourth Amendment protected the right of bodily privacy to the inmates, and thus, summary judgment should not have been granted against the plaintiffs.  Judge Frank Easterbrook was the sole dissenter, finding that there was no evidence of bad intent by the prison official.

Hildreth v. Butler, 2020 U.S. App. LEXIS 26377 (7th Cir. Aug. 19, 2020) – In this case, a 2-1 panel of the Seventh Circuit denied the appeal of a prisoner alleging that prison officials failed to refill needed medication, holding that there was insufficient evidence of deliberate indifference.  A judge sought an en banc vote, and the court denied rehearing 7-4, with Barrett voting to deny en banc rehearing.  

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Thoughts on the Sept. 6th Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee.  Here are my preliminary thoughts on the proceedings, which can be watched here.  (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER:  These are just my opinions.  Reasonable observers of the hearing can obviously disagree on any of these points.

  1. Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism.  Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.
  2. Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee.  Over the course of the hearing, it was clear why.  Larsen was poised and comfortably conversed with senators on several legal issues.  She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence.  She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there.  As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation.  Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.
  3. Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.”  Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism.  For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law.  However, much of the posturing was undone by two key missteps.  First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution.  Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge?  Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF).  When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF.  She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group.  It was an unnecessarily defensive performance and undermined her careful answers until that point.
  4. Franken Remains the Minority’s Best Questioner – In the last “big” hearing,  Franken helped lead the Democrat’s charge against John Bush and Damien Schiff.  This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed.  Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.
  5. Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all.  This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees.  He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so.  Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions.  Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round.  At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.
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Julie Rikelman – Nominee to the U.S. Court of Appeals for the First Circuit

One of the foremost advocates for legal protections for a woman’s right to choose, Julie Rikelman, has been tapped for an appellate seat on the First Circuit.

Background

A native of the Ukraine, Rikelman was born in Kyiv in 1972 and immigrated to the United States in 1979. Rikelman attended Harvard College, getting her B.A. in 1993 and then her J.D. from Harvard Law School in 1997. Rikelman then clerked for Justice Dana Fabe on the Alaska Supreme Court and then for Judge Morton Ira Greenberg on the U.S. Court of Appeals for the Third Circuit.

After her clerkships, Rikelman joined the Center for Reproductive Rights as a Blackmun Fellow. After her fellowship, she joined Feldman & Orlansky in Anchorage. In 2006, Rikelman returned to New York to join Simpson Thatcher & Bartlett and after two years there, she joined the litigation team at NBC Universal.

In 2011, Rikelman became senior litigation director for the Center for Reproductive Rights, where she currently serves.

History of the Seat

Rikelman has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. This seat opened when Judge Sandra Lea Lynch announced her desire to take senior status upon the confirmation of a successor.

Legal Experience

Outside her clerkships, Rikelman started her legal career as a fellow at the Center for Reproductive Rights. During her fellowship, Rikelman represented Victoria, who sued Terrebonne Parish for failure to obtain a timely abortion while she was incarcerated. See Victoria W. v. Larpenter, 205 F. Supp. 2d 580 (E.D. La. 2002). Rikelman also notably assisted Priscilla J. Smith in successfully overturning a state hospital’s taking of mandatory drug tests from pregnant women as a violation of the Fourth Amendment. See Ferguson v. City of Charleston, 532 U.S. 67 (2001).

After her fellowship, Rikelman shifted to Anchorage where she represented Friends of Mark Begich, who was running for Mayor of Anchorage, in a suit challenging ballot placement in the election. See DeNardo v. Municipality of Anchorage, 105 P.3d 136 (Alas. 2005). Rikelman then shifted to New York where she represented NBC employees sued by Doug Copp for allegedly defamatory statements they made about him. See Copp v. Ramirez, 62 A.D.3d 23 (N.Y. App. Div. 2009).

Since 2011, Rikelman has worked on abortion rights litigation at the Center for Reproductive Rights. Among her notable cases, she has handled the following:

  • A First Amendment challenge to informed consent provisions for abortion in Texas. See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).
  • A First Amendment challenge to North Carolina laws requiring pregnant women to be informed about the state’s preference for childbirth over abortion. Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014).
  • A Fourteenth Amendment challenge to restrictions on reproductive medications in Arizona. See Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014).
  • A challenge to a Mississippi requirement that abortion clinics have “admitting privileges” with local hospitals as an “undue burden” to the right to choose. Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014).
  • A First Amendment challenge to a North Carolina law requiring that physicians perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions. Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).
  • A challenge to North Carolina’s 20-week abortion ban. Bryant v. Woodall, 306 F. Supp. 3d 611 (M.D.N.C. 2019).
  • A challenge to South Carolina’s exclusion of Planned Parenthood from Medicaid providers. Planned Parenthood S. Atl. v. Baker, 941 F.3d 687 (4th Cir. 2019).

Most notably, Rikelman argued two notable abortion cases before the U.S. Supreme Court. In 2019, Rikelman argued that the Constitution prohibited a Louisiana law requiring abortion providers to have admitting privileges in local hospitals. See June Medical Servs. LLC v. Russo, 591 U.S. __ (2020). The Supreme Court, in a 5-4 vote, agreed and reversed a judgment in favor of the state. See id. Two years later, Rikelman argued that the Court should not overturn Roe v. Wade. The Court, however, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg, overturned Roe v. Wade. See Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).

Writings

In her role at the Center for Reproductive Rights, Rikelman has frequently spoken out on abortion rights. For example, in 2017, Rikelman was a panelist on a Woman’s Reproductive Rights panel at Rutgers University. See Panel Five: Women’s Reproductive Rights and Health: Beijing+20, 38 Women’s Rights L. Rep. 304 (Spring/Summer 2017). In her remarks, Rikelman criticized abortion restrictions being passed across the country for limiting “access to safe and legal abortion.” See id. at 305.

Rikelman has also frequently commenting in opposition to abortion restrictions in the media and in favor of decisions protecting abortion rights. For example, she praised a decision by Judge B. Lynn Winmill to strike down Idaho’s “fetal pain” bill, noting: “Today’s ruling has overturned a legislative assault by politicians who seek to interfere with [a woman’s] decision and deny women this fundamental right.” See Rebecca Boone, Idaho First State to Have Fetal Pain Law Rejected, A.P. Online, Mar. 8, 2013 (quoting Julie Rikelman). Similarly, Rikelman criticized Mississippi restrictions requiring abortion clinics to have “admission privileges,” stating: “There’s no medical justification; states should not be able to restrict a constitutional right based on pretext.” See Sophie Novack, Mississippi’s Only Abortion Clinic Will Remain Open, National Journal, July 29, 2014 (quoting Julie Rikelman).

Outside the abortion context, Rikelman authored a law review article discussing appellate decisions permitting mandatory blood collection for DNA testing under the Fourth Amendment, arguing that such mandatory collection was prohibited by the Constitution. See Julie Rikelman, Justifying Forcible DNA Testing Schemes Under the Special Needs Exception to the Fourth Amendment: A Dangerous Precedent, 59 Baylor L. Rev. 41 (Winter 2007).

Overall Assessment

Out of all of Biden’s appellate nominees, Rikelman is likely one of the most controversial. This is not necessarily based on concerns about her qualifications, intellect, or temperament. However, Rikelman has spent the last decade working in one of the most contentious legal issues in today’s environment: abortion rights. As such, Rikelman’s nomination will likely turn on whether she can retain support from all fifty Senate Democrats. While she is still (slightly) favored to get confirmed, it is possible that the senate calendar may claim Rikelman’s nomination as a casualty.

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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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The Post-RBG World

Justice Ruth Bader Ginsburg: trailblazing icon; civil rights veteran; judicial superstar; the Notorious RBG.  Justice Ginsburg was an institution in American law and popular culture, and it’s difficult to imagine a world, let alone a court, without her characteristic witty asides and sharp questions.  Given Justice Ginsburg’s current status as a liberal icon, it’s hard to believe that she was actually considered a conservative choice when President Clinton picked her for the Supreme Court in 1993, pushed by Sen. Orrin Hatch (R-UT) as a moderate consensus-builder.  Now, whether Justice Ginsburg shifted leftwards on the court or whether the court moved to the right depends on who you talk to, but Justice Ginsburg’s passing certainly leaves a void on the Supreme Court’s left flank.  Sadly, we, as a country, don’t have much time to mourn and reflect upon her life and legacy.  You see, the battle is coming.

“Hypocrisy” v. Politics

The last Supreme Court Justice to die on the Court was Justice Antonin Scalia.  The conservative powerhouse passed away on February 13, 2016, and Senate Majority Leader Mitch McConnell almost immediately declared that, because it was an election year, the Senate would not consider a nomination to fill the vacancy.  Surprising almost no one, McConnell now has vowed that the Senate will vote on President Trump’s nominee, even though this vacancy opened more than seven months later into the year than the vacancy from Justice Scalia, and though Americans are already voting to potentially replace President Trump.

Now, some have decried the hypocrisy of this, while others have defended his stance, following the principle that it is reasonable for a Senator to set different standards for members of your own party versus another party.

Regardless, McConnell has a thin needle to thread here.  As of this writing, already two Senate Republicans have come out in opposition to considering any nominee before the November elections, which means McConnell can afford only one more defection before he loses his leverage.  Now, some  argue that McConnell would not take such a firm stance if he did not have the votes to back it up.  However, those individuals would do well to look at Sen. John McCain’s defeat of the ACA Repeal in 2017 and the last-minute sinking of Ryan Bounds’ nomination to the Ninth Circuit in 2018.  The Majority Leader, masterful as he is, is not infallible.

Additionally, the timing of this vacancy is not great for Republicans.  We are now six weeks to November 3, election day.  No nominee has been confirmed within six weeks of announcement since Justice John Paul Stevens in 1975.  Simply put, there isn’t enough time.  The modern confirmation process (at least on the Supreme Court level) takes too long.

So, even if President Trump announces a nominee today, the vote on confirmation isn’t coming until the lame duck, at which point, either Trump has won re-election, which eases the pressure, or he has lost, which opens a new Pandora’s box.

The Front-Runners

Ever since her confirmation to the Seventh Circuit in 2017, Judge Amy Coney Barrett has been considered heir apparent to the Supreme Court.  It’s understandable why: Judge Barrett is well-credentialed, young (48), and very conservative.  She is rightly deemed the frontrunner to fill this vacancy.  She will also probably be the nominee.  President Trump, for all his mercurial temperament, has been fairly stolid in his Supreme Court choices, both times picking the conventional frontrunners over less conventional choices.  In any other year, one could confidently say that Judge Amy Coney Barrett will be the nominee.

However, this is an election year.  Specifically, it’s an election year in which the President has been consistently trailing his opponent in polls and one where he needs to use the nomination as a tool to upend the stability of the race.  As such, it would not surprise me to see the President turn to two more unconventional choices from his Supreme Court list.

One is Judge Barbara Lagoa from the Eleventh Circuit.  Lagoa was specifically identified by the President as a possible nominee for this seat, and has two major plus points going for her.  First, Lagoa is from Florida, a key swing state where the President needs to win in order to secure re-election.  Second, Lagoa is Hispanic (in fact, the only Hispanic nominee to the Court of Appeals made by President Trump).  In an election where Hispanics make up a key voting bloc, nominating Lagoa could be a key strategic move by the President to seek an advantage.

The other is Judge Bridget Bade from the U.S. Court of Appeals for the Ninth Circuit. Although she is also on the President’s shortlist, Bade’s name doesn’t come up as often as Lagoa’s or Barrett’s.  However, Bade could neutralize a key ticking time bomb for the President.  Namely, in Arizona, appointed Sen. Martha McSally is consistently running behind Democratic candidate Mark Kelly in the polls.  If Kelly defeats McSally, he could, in theory, be appointed to replace her immediately (as this race is a special election), which would cut the GOP majority they’ll need to confirm a nominee.  Appointing Bade could put both Kelly and Sen. Kyrsten Sinema in a tricky position, as they’d have to stand against a popular judge from their own state.  Even if one of them flips to support Bade, that’d ease the path to confirmation quite significantly.

The Storm to Come

As noted above, regardless of who the nominee will be, the risks to moving forward on a nominee are great.  Gone are the days when Supreme Court  confirmations were largely intellectual exercises.  It is now a body sport where nothing less than total victory is celebrated.  Unfortunately, regardless of whoever wins this particular nomination fight, the country as a whole is likely to have lost.

One can only hope that advocates and senators avoid bombast and brinksmanship, set out clear lines of principle in nominations and confirmations that apply equally to nominees of either party, and take us back to a bipartisan and nonpartisan confirmation process.  Then again, I’m not holding my breath.  The era of RBG is truly over.

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Gordon Giampietro – Nominee for the U.S. District Court for the Eastern District of Wisconsin

Last year, Gordon Giampietro was nominated by President Trump to be a federal judge upon the recommendation of Wisconsin’s U.S. Senators, indicating a comfortable nomination.  As such, when news broke of controversial statements made by Giampietro in interviews and online comments and of allegations that the statements were not properly disclosed in the nomination process, many felt that this latest controversy had derailed his nomination.  However, even without the reported statements, Giampietro’s record shows involvement in several political flashpoints, suggesting that his confirmation was always unlikely to be smooth.

Background

Gordon Peter Giampietro was born on October 19, 1965, in Washington D.C.  Giampietro spent much of his formative years in D.C., attending The Catholic University of America and The Catholic University Columbus School of Law, getting his J.D. in 1992 with a Comparative and International Law Certificate.  In between his undergraduate education and law school, Giampietro worked at The Connecticut Avenue Club Hotel as the Assistant Manager.[1]  After graduating law school, Giampietro moved to Wisconsin to clerk for Judge Rudolph Randa on the U.S. District Court for the Eastern District of Wisconsin, serving as the newly appointed conservative’s first law clerk.[2]

After his clerkship, Giampietro joined the Milwaukee Office of Michael, Best & Friedrich LLP as a Litigation Associate.[3]  In 2000, he was named a Litigation Partner at the firm.  In 2002, Giampietro left the firm to join the U.S. Department of Justice Criminal Division, serving as an Assistant U.S. Attorney in the Eastern District of Wisconsin.[4]  Additionally, in 2007, Giampietro became the Bankruptcy Fraud Coordinator for the Office.  In 2010, Giampietro gave up that position and became the Criminal Health Care Fraud Coordinator and Deputy Elections Officer.[5]

In 2015, Giampietro left the government to join the Northwestern Mutual Life Insurance Company as Assistant General Counsel.[6]  He serves in that role today.

History of the Seat

Giampietro has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on February 5, 2016, by Judge Rudolph Randa (for whom Giampietro had clerked).  Interestingly, Randa had expressed his interest in moving to senior status back in 2007, and the Bush Administration had nominated state judge Timothy Dugan to replace him.[7]  However, Dugan was never confirmed by the then-Democratic senate, and, after the election of President Obama, Randa reversed his desire to go on senior status.

In February 2017, Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively, announced the renewal of their bipartisan Judicial Nominating Commission.  Giampietro submitted an application to the Committee on May 30th.[8]  He interviewed with the Committee in July and his name, alongside three others, was submitted to the White House in August 2017.[9]  After interviews with the White House Counsel’s Office and the Department of Justice, Giampietro was nominated on December 20, 2017.

Legal Experience

Excluding his time as a clerk, Giampietro has split his career between working as a federal prosecutor and working in private practice.

Private Practice

In his first position out of his clerkship, Giampietro managed corporate litigation as an associate and a partner at Michael Best.[10]  Notably, Giampietro was able to dismiss a tort action brought by the estate of a worker killed by a vertical boring mill, by successfully arguing, as a matter of first impression, that Wisconsin law did not permit suits against brokers of second hand industrial equipment.[11]

In addition to his corporate work, Giampietro also participated in more controversial cases.  For example, Giampietro represented the Republican leaders in the Wisconsin House and Senate in the lawsuit over Wisconsin’s legislative districts.[12]  Giampietro also represented the Metropolitan Milwaukee Association of Commerce in an unsuccessful challenge to a Milwaukee labor ordinance requiring county contractors to sign “labor peace agreements” with unions.[13]

However, Giampietro’s most politically charged case was his representation of Munir Hamdan, a grocery store owner seeking the right to carry a concealed weapon to protect his store.[14]  Hamdan was charged with carrying a concealed weapon in violation of Wisconsin law, but his conviction was reversed in a 5-2 vote of the Wisconsin Supreme Court, who held that Hamdan’s conviction violated the Right to Bear Arms in the Wisconsin Constitution.[15]

Department of Justice

From 2002 to 2015, Giampietro worked as a prosecutor at the Department of Justice through the U.S. Attorney’s Office for the Eastern District of Wisconsin.  In this role, Giampietro handled the prosecutions of both violent offenders and white collar criminals.[16]  Notably, Giampietro prosecuted Kimberly Prude, a convicted felon, for casting a ballot in the 2004 elections.[17]  Prude had cast a ballot while on supervised release from a forgery conviction.[18]  Upon discovering that she was ineligible to vote, Prude contacted the Election Commission and attempted to withdraw her ballot only to be told “not to worry about it.”[19]  Despite the fact that she herself had reported the mistake and had attempted to withdraw the ballot, Prude was nonetheless prosecuted and convicted of voter fraud.[20]  During the trial, Prude was not permitted to present witnesses to testify as to her efforts to withdraw her ballot, while the government was allowed to testify on the subject.[21]  On appeal, the Seventh Circuit agreed that Judge Rudolph Randa had erred in his evidentiary rulings but found that the errors did not require reversal under “plain error” review.[22]

Giampietro was also central to a conflict between the U.S. Attorney’s Office and federal judge J.P. Stadtmueller.  In 2008, Giampietro was prosecuting Rashid Salahuddin for being a felon in possession of a firearm, a case that had, at the time, been pending for three years.[23]  On October 9, 2008, Stadtmueller, who was overseeing the case, called U.S. Attorney Steven Biskupic and Federal Defender Daniel Stiller into his chambers for a meeting without the court reporter present.[24]  At the meeting, Stadtmueller expressed concern as to the length and litigation costs in the case and suggested that the parties resolve the issue without further litigation.[25]  In response to this meeting, the U.S. Attorney’s Office filed a motion for Stadtmueller to recuse himself from the case, alleging bias against Giampietro and the U.S. Attorney’s Office.[26]  Stadtmueller, a former U.S. Attorney, declined to recuse himself and granted motions to suppress in the defendant’s favor.[27]  Giampietro appealed the recusal motion to the Seventh Circuit, who forced Stadtmueller off the case, citing that Stadtmueller “suggested that the case was an embarrassment to the justice system and an inefficient allocation of taxpayer resources” in his remarks.[28]  The removal prompted Stadtmueller to take the unprecedented step of declining all future criminal cases, suggesting that the U.S. Attorney’s Office was using recusal to engage in “judge shopping.”[29]

Writings, Interviews, and Expressed Views

Over his career, Giampietro has occasionally commented on issues of law and policy, both in writing, and through interviews and speeches.

Expressed Political Views in Interviews

On February 2015, 2018, Zoe Tillman at Buzzfeed broke the story that Giampietro had, in his writings and interviews, made “disparaging comments about diversity, same-sex relationships, and birth control.”[30]  Specifically, in a 2015 radio interview, Giampietro stated that it was “irrefutable” that children were best-raised by heterosexual couples and that same-sex relationships were troubled.[31]  In other comments, Giampietro referred to the birth control pill as an “assault on nature” and suggested that diversity was “code for relaxed standards.”[32]  In response to the story, Baldwin indicated that the statements had not been disclosed to the Evaluation Commission and that they “raise serious questions about whether this nominee would be able to serve as a fair and impartial judge.”[33]

In response, Giampietro wrote to Baldwin privately arguing that the article “reads like an attack on my Catholic faith.”[34]  Additionally, five Wisconsin based Catholic bishops wrote to Baldwin arguing that Giampietro was “not receiving a fair hearing because of his Catholic faith.”[35]  Furthermore, members of the Evaluation Commission disagreed as to the significance of the undisclosed statements, with Republican member Rick Esenberg arguing that the statements were irrelevant while Democratic member Barbara Quindel indicating that the Commission would not have recommended Giampietro if they had known about the statements.[36]

“Moral Force” of Judicial Decisions

In 2003, the Wisconsin Supreme Court, in a 4-3 decision, upheld a $3.5 million punitive damages award against an insurance company, finding as a matter of law, that the insurance company had acted in bad faith in failing to inform the insured of a mutual mistake in the insurance contract.[37]  The decision was criticized by some attorneys, including many conservatives.[38]  In response to the criticism, George Burnett, President of the Wisconsin Bar, authored a President’s Message urging members of the Bar to defend the Court against “political attacks.”  In response, Giampietro wrote a response, arguing that Burnett overstepped in arguing that Courts rule by “moral force.”[39]  He noted that “[w]hen the judicial branch abandons ‘the idea of law,’ it forfeits the right to claim that its decisions are imbued with a ‘moral force.’”[40]  In response, Burnett countered that Giampietro’s piece misinterpreted his own and noted that “when one ascribes political motives as a substitute for a legal critique of judicial decisions, one undermines public confidence in our judiciary.”[41]

Political Activity & Memberships

On May 22, 2017, Giampietro donated $1000 to Sen. Ron Johnson.[42]  The contributions were made approximately a week before Giampietro applied for a federal judgeship with Johnson and Baldwin’s Selection Committee.

Giampietro has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 1989, serving as the President of the Milwaukee Chapter between 1995 and 1997.[43]

Overall Assessment

It is undeniable that Giampietro is an exceptional lawyer, with significant experience in both civil and criminal law.  As such, it is unlikely that critics of the nomination will raise substantive objections to his qualifications.  Instead, they may object to Giampietro’s temperament and impartiality, relying on the statements reported on by Buzzfeed, his membership in the Federalist Society, his involvement in politically charged cases including the Hamdan case, and, potentially, his conduct in the Prude and Salahuddin cases.

In contrast, Giampietro’s supporters are likely to try a tactic that worked well for then-nominee Amy Coney Barrett in 2017: accusing Giampietro’s critics of anti-Catholic bias.  They will argue, as Giampietro already has, that his views on LGBT relationships and birth control are integral to his faith and that attacking those views is tantamount to imposing a religious test for federal judges.

Ultimately, the Constitution forbids a religious test for public office, and, additionally, public opinion stands strongly by that principle.  As such, to disqualify Giampietro, critics will have to make an additional point in their case, that Giampietro would be unable to set aside his views (religious or otherwise) to rule based on the law and precedent.  The future of Giampietro’s nomination ultimately depends on whether Sen. Baldwin is convinced on this point.

[1] Sen. Comm. on the Judiciary, 115th Cong., Gordon Giampietro: Questionnaire for Judicial Nominees 2.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Giampietro had applied to fill that vacancy but was not selected.

[8] See id. at 28.

[9] See id.

[10] See id. at 12.

[11] See Geboy v. TRL, Inc., 976 F. Supp. 1202 (E.D. Wis. 1997), aff’d, 159 F.3d 993 (7th Cir. 1998).

[12] See Arrington v. Elections Bd., 173 F. Supp. 2d 856 (E.D. Wis. 2001).

[13] See Metropolitan Milwaukee Assoc. Of Commerce v. Milwaukee Cnty., 201 F. Supp. 2d 942 (E.D. Wis. 2002).

[14] See State of Wisconsin v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

[15] See id. at 478 (concluding that the right to keep and bear arms is at an apex when protecting a home or a business).

[16] See Giampietro, supra n. 1 at 11.

[17] See United States v. Prude, 489 F.3d 873 (7th Cir. 2007).

[18] See id. at 875.

[19] Id.

[20] See id. at 876.

[21] See id. at 878-81.

[22] See id. at 881.

[23] See In re: United States of America, 572 F.3d 301, 305 (7th Cir. 2009).

[24] See id. 

[25] See id.

[26] See id. at 305-06.

[27] See United States v. Salahuddin, 607 F. Supp. 2d 930 (E.D. Wis. 2009), motion for reconsideration denied, 608 F. Supp. 2d 1061 (E.D. Wis. 2009).

[28] In re: United States of America, 572 F.3d 301, 311 (7th Cir. 2009).

[29] John Diedrich, U.S. Judge Stadtmueller Not Taking New Criminal Cases, Milwaukee Journal Sentinel, Aug. 23, 2009, http://archive.jsonline.com/news/milwaukee/54417857.html/.  

[30] Zoe Tillman, One of Trump’s Judicial Nominees Once Wrote That Diversity is “Code for Relaxed Standards”, BuzzFeed News, Feb. 15, 2018, https://www.buzzfeed.com/zoetillman/one-of-trumps-judicial-nominees-once-wrote-that-diversity?utm_term=.bunlpv57b#.ferWeqXP9.  

[31] See id.

[32] See id. (citing Giampietro’s comments).

[33] See id. (quoting Sen. Tammy Baldwin’s spokesperson).

[34] Bill Glauber and Daniel Bice, Catholic Bishops Call on Tammy Baldwin Not to Block Judicial Nomination of Gordon Giampietro, Milwaukee Journal Sentinel, Feb. 27, 2018, https://www.jsonline.com/story/news/politics/2018/02/27/catholic-bishops-call-tammy-baldwin-not-block-nomination-gordon-giampietro-federal-bench/377622002/.

[35] See id. (quoting Letter from The Bishops of the State of Wisconsin to Sen. Tammy Baldwin (Feb. 20, 2018)).

[36] See id.

[37] See Trinity Evangelical v. Tower Ins. Co., 661 N.W.2d 789 (Wis. 2003).

[38] See, e.g., Robert J. Dreps & Katherine Stadler, Insurance Bad Faith: Failure to Reform Policy Based on Agent Error May Constitute Bad Faith as a Matter of Law, Godfrey & Kahn S.C. Blog, May 28, 2003, http://www.gklaw.com/newsupdatespressreleases/Insurance-Bad-Faith-Failure-to-Reform-Policy-Based-on-Agent-Error-May-Constitute-Bad-Faith-as-a-Matter-of-Law-2003-05-28-1.htm (describing decision as “puzzling” and “at odds” with Supreme Court precedent).

[39] Gordon P. Giampietro, Ruling by Moral Force?, Wis. Lawyer (Feb. 2004), https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=77&Issue=2&ArticleID=734.  

[40] See id.

[41] See George Burnett, Response to Ruling by Moral Force?, Wis. Lawyer (Feb. 2004), https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=77&Issue=2&ArticleID=734.

[42] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=gordon+giampietro (last visited Feb. 25, 2018).

[43] See id. at 4.

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Howard Nielson – Nominee for the U.S. District Court for the District of Utah

A conservative Washington D.C. based attorney, Howard Nielson’s ties to Utah, where he grew up and where his father served as a state legislator and congressman, have secured him a nomination for the federal bench.  However, Nielson will find his confirmation complicated by his participation in many hot-button cases, including his role in defending California Proposition 8.

Background

Howard Curtis Nielson Jr. was born in 1968 in Provo, UT.  Nielson’s father (also named Howard C. Nielson) was a professor at Brigham Young University who went on to serve in the U.S. House of Representatives as a Republican between 1983 and 1990.[1]  Nielson Jr. attended Brigham Young University, graduating summa cum laude in 1992.  He went on to spend two years at Kobe University in Japan as a Mombusho Scholar.[2]

In 1994, Nielson joined the University of Chicago Law School, where he served as articles editor at the University of Chicago Law Review.  Nielson graduated Order of the Coif in 1997, and clerked for the conservative luminary Judge J. Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit.[3]  After completing his clerkship with Luttig, Nielson was hired by Supreme Court Justice Anthony Kennedy to clerk for him, joining other notable clerks that year including civil rights litigator Jeffrey Fisher, law professor Noah Feldman, Seventh Circuit Judge Amy Coney Barrett, and University of Georgia Law School Dean Bo Rutledge.

After his clerkship, Nielson joined the Washington D.C. Office of Jones Day as an Associate.[4]  After the election of President Bush, Nielson moved to the Department of Justice as Special Assistant to Deputy Attorney General Larry Thompson.[5]  He later became Counsel to Attorney General John Ashcroft and in 2003, became Deputy Assistant Attorney General in the Office of Legal Counsel, serving under then-head Jack Goldsmith.[6]

In 2005, Nielson left the Department of Justice to join the conservative law firm Cooper & Kirk as Of Counsel.  Nielson was made a Partner in 2010 and continues to serve in that capacity.  In addition to his work at Cooper & Kirk, Nielson also served as a Legal Consultant to The Boeing Company[7] between 2008 and 2014.  Nielson also taught at the J. Reuben Clark Law School at Brigham Young University between 2007 and 2014.

History of the Seat

Nielson has been nominated for a vacancy on the U.S. District Court for the District of Utah.  This seat was opened by Judge Ted Stewart’s move to senior status on September 1, 2014.  On December 16, 2015, Obama nominated former Centreville mayor Ronald G. Russell to fill the vacancy.[8]  Russell, a Republican, had the support of Utah Senators Orrin Hatch and Mike Lee.[9]

Russell received a hearing before the Senate Judiciary Committee on April 20, 2016, and was approved without objection on May 19.  However, Russell’ nomination stalled on the floor due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell, and Democratic objections to expediting Russell’s nomination without confirming longer-pending Democrats.  Without floor action, Russell’s nomination was returned unconfirmed on January 3, 2017.

Shortly after the election of President Donald Trump, Lee reached out to Nielson to gauge his interest in a judicial appointment.[10]  In April 2017, Nielson interviewed with Hatch and was recommended by him as part of a slate of candidates to the White House.[11]

After interviews with the White House Counsel’s Office and the Department of Justice, Nielson was officially nominated on September 28, 2017.[12]

Legal Experience

Nielson began his legal career with clerkships at the U.S. Court of Appeals for the Fourth Circuit and the U.S. Supreme Court.  After the clerkships, Nielson spent two years in the Issues and Appeals Practice Group at Jones Day.  At Jones Day, Nielson primarily represented corporations in commercial litigation matters.[13]  However, he also represented the Michigan government in dismissing a suit charging the failure to provide adequate screening, diagnosis, and treatment services for Michigan children under Medicaid.[14]

Office of Legal Counsel

From 2003 to 2005, Nielson worked at the Office of Legal Counsel (OLC), which advises the Attorney General and the U.S. Government as to the legality of its actions and initiatives.  Nielson’s tenure at OLC coincided with a tumultuous time at the agency including the initial withdrawal of the Bybee memo and torture memos, the resignation of OLC head Jack Goldsmith, and the reinstatement of the Bybee memo by acting head Daniel Levin.[15]

Cooper and Kirk

In 2005, Nielson joined the Washington D.C. Office of Cooper & Kirk, a firm founded by Republican luminary Charles J. Cooper.  In his twelve years at the firm, Nielson has participated in many cases representing conservative causes.

In perhaps his most notable case, Nielson joined Cooper in defending Proposition 8 (“Prop 8”), the California voter initiative that restricted marriage to opposite-sex couples.  As defense counsel in the case, Nielson developed the arguments in defense of the Proposition, citing a state interest in the longstanding definition of marriage, and arguing that opposite-sex couples provide an optimal child-rearing environment.[16]  Nielson notably motioned (unsuccessfully) for the recusal of Judge Vaughn Walker from the case, noting that Walker was a “practicing homosexual” who could theoretically benefit from the expansion of same-sex marriage.[17]  During the subsequent trial, Nielson cross-examined Columbia professor Ilan Meyer, challenging his argument that Prop 8 causes stress to LGBT minorities.[18]  Nielson also challenged the conclusions of UC Davis Professor Gregory Herek, who argued that same-sex attraction is immutable.[19]  Instead, Nielson “attempted to show that gay [sic] and lesbians opt for their sexual preference at different points in their lives.”[20]  Nielson also argued, by citing a 1935 paper by Sigmund Freud, that homosexuals could change their sexual orientation through therapy.[21]

In addition to the Prop 8 case, Nielson has been involved in many other hot-button cases.  In King v. Burwell, the challenge to subsidies on state-run exchanges under the Affordable Care Act, Nielson represented a team of conservative lawmakers including Sen. Ted Cruz as amici.[22]  Nielson was also involved, as amicus, in challenging enforcement actions taken by the Consumer Financial Protection Bureau,[23] and served as part of the legal team on a successful challenge to D.C.’s restrictions on obtaining handgun permits.[24]  Nielson also represented Harvey Lembo, a resident in Maine affordable housing, who sought to avoid eviction for keeping a firearm at his residence for self-defense.[25]  Finally, Nielson represented Safe Streets Alliance in their challenge to Amendment 64, a Colorado ballot initiative decriminalizing marijuana.[26]

Writings

Two of Nielson’s writings may be brought up during his confirmation hearing.  While at Cooper & Kirk, Nielson joined a letter to the editor alongside eight other former OLC employees defending the actions of Steven Bradbury, who was then serving as the acting head of OLC.[27]  At the time, Bradbury was criticized for failing to maintain the professionalism of OLC and deferring to the legal pronouncements coming from the White House.  Nielson’s letter pushed back against that perception, arguing that Bradbury was “a careful lawyer of unimpeachable integrity and sound judgment.”[28]

As a law student, Nielson authored a law review article on the First Amendment protections offered to recklessly false statements made by public employees.[29]  The article argues that any recklessly false statements of fact made by public employees should not be protected under the First Amendment.[30]  In order to avoid a chilling effect on free speech, Nielson endorses proving the reckless falsity of a statement by “clear and convincing” evidence.[31]

Political Activity

Nielson has a long and active history of advocacy in the Utah Republican Party, going back to the 1980s when he campaigned alongside his father.[32]  As an adult, Nielson was a County and State Delegate for the Utah Republican Party, as well as a member of the Party’s Central Committee.[33]  Nielson also worked with Mitt Romney’s Presidential Campaigns in 2008 and 2012, advising them on justice related issues.[34]

Additionally, Nielson has supported Republicans financially, including contributions to the RNC, the NRCC, and the NRSC.[35]  Additionally, Nielson has donated to the campaigns of Trump, Hatch, Lee, and Sen. Ted Cruz (R-TX).[36]

Overall Assessment

In a recent release, LGBT rights organization Lambda Legal claimed that a third of Trump’s judicial nominees have anti-LGBT records.[37]  Regardless of whether you agree with that conclusion, Nielson’s nomination will likely be used to buttress it.  Specifically, Nielson has already drawn criticism for moving for Walker’s recusal in the Prop 8 case.[38]  He is likely to draw additional criticism for his reliance, as Prop 8 counsel, on studies from the 1930s to suggest that LGBT individuals can change their sexual orientation.  Overall, opponents will likely argue that Nielson’s record in the Prop 8 case reflects an anti-LGBT bias.

Opponents will likely also attack Nielson based on his participation in the King case, as well as his fight against gun regulations in the Wrenn and Lembo cases.  His push in the latter case to require an affordable housing unit to accommodate gun possession may also draw criticism from property rights activists.

In response, Nielson’s supporters will likely argue that his advocacy in the Prop 8 case was made on behalf of his client and pursuant to his ethical responsibilities to be a zealous representative.  They may also argue, as some did with the Barrett nomination, that criticizing Nielson’s opposition to same-sex marriage is an attack on his faith.

Overall, Nielson has a narrow margin in the Senate.  To avoid the fate of other failed nominees, he will need to demonstrate that he can separate his advocacy as an attorney from his behavior as a judge.  If he does so, his nomination should be able to unite Republicans and be confirmed.

[1] William E. Schmidt, 5 States Re-Elect Incumbents, N.Y. Times, Nov. 4, 1982.

[2] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] White House Counsel Don McGahn, who handles the selection of judicial nominees, is also a Jones Day alumnus.

[5] See id. at 2.

[6] Id.

[7] The General Counsel of Boeing at the time was Luttig, Nielson’s old boss.

[8] Press Release, White House, President Obama Nominates Four to Serve on the United States District Court (December 16, 2015) (on file at https://obamawhitehouse.archives.gov).  

[9] Press Release, Office of Senator Orrin Hatch, Hatch Applauds Nomination of Ronald G. Russell to U.S. District Court (December 17, 2015) (on file at https://www.hatch.senate.gov/public/index.cfm/2015/12/hatch-applauds-nomination-of-ronald-g-russell-to-u-s-district-court).

[10] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 43.

[11] Id. at 44.

[12] Press Release, White House, President Donald J. Trump Announces Eighth Wave of Judicial Candidates (September 28, 2017) (on file at www.whitehouse.gov/the-press-office).  

[13] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 26.

[14] See Westside Mothers, et al. v. Haveman et al., 133 F. Supp. 2d 549 (E.D. Mich. 2001).

[15] Jeffrey Rosen, Conscience of a Conservative, N.Y. Times, Sept. 9, 2007, http://www.nytimes.com/2007/09/09/magazine/09rosen.html.  

[16] See Perry v. Schwarzenegger, No. C 09-2292 VRW, 2009 U.S. Dist. LEXIS 555594 (N.D. Cal. June 30, 2009).

[17] Christianna Silva, Trump Judicial Nominee Howard Nielson: Gay Judges Shouldn’t Hear LGBT Cases, Towleroad, Jan. 5, 2018, http://www.towleroad.com/2018/01/howard-nielson/.  

[18] See Howard Mintz, Prop. 8 Trial Day 4: Live Coverage From the Courtroom, Contra Costa Times, Jan. 14, 2010.

[19] See Howard Mintz, Prop 8 Trial Sees Joust Over Whether Homosexuality is a Product of Choice or Nature, Inland Valley Daily Bulletin, Jan. 22, 2010.

[20] See id.

[21] See Howard Mintz, Prop 8 Trial Day 9: Live Coverage From the Courtroom, San Jose Mercury News, Jan. 22, 2010.

[22] See King v. Burwell, 759 F.3d 358 (4th Cir. 2014).

[23] Consumer Financial Protection Bureau v. Gordon, 819 F.3d 1179 (9th Cir. 2016).

[24] Wrenn v. Dist. of Columbia, 864 F.3d 650 (D.C. Cir. 2017).

[25] Stephen Betts, Rockland Man Told He Couldn’t Have Gun in Apartment Says He Suffered Emotional Damage, Bangor Daily News, April 19, 2016.

[26] Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).

[27] John C. Eisenberg and Howard C. Nielson, In Defense of the Office of Legal Counsel, Wash. Post, Oct. 12, 2007.

[28] See id.

[29] Howard C. Nielson Jr., Recklessly False Statements in the Public-Employment Context, 63 U. Chi. L. Rev. 1277 (Summer 1996).

[30] Id. at 1279.

[31] Id. at 1307.

[32] Sen. Comm. on the Judiciary, 115th Cong., Howard C. Nielson Jr.: Questionnaire for Judicial Nominees 24.

[33] See id.

[34] Id. at 23-24.

[36] Id.

[37] Lydia Wheeler, Advocacy Group: Nearly a Third of Trump Judicial Nominees are Anti-LGBT, The Hill, Dec. 20, 2017, http://thehill.com/regulation/court-battles/365784-advocacy-group-nearly-a-third-of-trump-judicial-nominees-are-anti.  

[38] Christianna Silva, Trump Judicial Nominee Howard Nielson: Gay Judges Shouldn’t Hear LGBT Cases, Towleroad, Jan. 5, 2018, http://www.towleroad.com/2018/01/howard-nielson/.  

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