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. FosterThis 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 CCAThis 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.

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).

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.

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.

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/.  

Prof. Stephanos Bibas – Nominee to the U.S. Court of Appeals for the Third Circuit

The Trump Administration has nominated many academics and former academics to the bench.  Yet, even among them, no one is as prolific as Stephanos Bibas.  Bibas, a professor of law and criminology at the University of Pennsylvania Law School, enters the confirmation process as one of the nation’s foremost experts in criminal law and procedure.  If confirmed, he stands ready to shape a new era of criminal jurisprudence, with an increased focus on the morality of punishment and the rights of victims.

Background

Stephanos Bibas was born in New York City in 1969 in a Greek-American family.  While spending summers working in his family’s restaurant, Bibas graduated high school early and entered Columbia University at 16.[1]  At Columbia, Bibas became involved with Parliamentary Debate, and began to explore a career in law.[2]  Bibas graduated summa cum laude from Columbia in 1989 with a B.A. in political theory.

After graduating from Columbia, Bibas attended Oxford University, receiving a B.A. and M.A. in jurisprudence.  While at Oxford, Bibas participated in the 1991 World Debate Championships in Toronto, being awarded the title of 1st Place Speaker.[3]  Bibas then attended Yale Law School, graduating with a J.D. in 1994.

After graduation, and a clerkship with Judge Patrick Higginbotham on the U.S. Court of Appeals for the Fifth Circuit, Bibas joined Covington & Burling as a litigation associate.  In 1997, Bibas secured a prestigious clerkship with Justice Anthony Kennedy, clerking on the Supreme Court alongside future appellate judges Raymond Kethledge,[4] John Owens,[5] and Sri Srinivasan.[6]

After his Supreme Court clerkship, Bibas was hired as a federal prosecutor by Mary Jo White, the U.S. Attorney for the Southern District of New York.  In 2000, he left that position to join Yale Law School at a research fellow.[7]  In 2001, Bibas joined the faculty of the University of Iowa College of Law, teaching criminal law and criminal procedure.

In 2006, Bibas moved from the University of Iowa to the University of Pennsylvania Law School as a Professor of Law.  Bibas took on a secondary appointment as a Professor of Criminology in 2009.  He currently serves in both capacities.

History of the Seat

Bibas has been nominated for a Pennsylvania seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Marjorie Rendell.  Rendell, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 1, 2015.[8]  On March 15, 2016, President Obama nominated Rebecca Ross Haywood, the Appellate Chief of the Civil Division of the United States Attorney’s Office for the Western District of Pennsylvania, to fill the vacancy.[9]  However, Haywood was opposed by Sen. Patrick Toomey (R-PA) who refused to return a blue slip on her nomination.[10]  Without the blue slip, Haywood did not receive a hearing, and her nomination died at the end of the 114th Congress.

After his election, President Trump declined to renominate Haywood, instead nominating Bibas to the seat on June 7, 2017.

Political Activity

Bibas has made a few political donations in his lifetime, all to Republicans.  In 1996, Bibas donated $250 to the Presidential Campaign of Bob Dole.[11]  Similarly, in 2012, he gave $2500 to the Presidential Campaign of Mitt Romney, as well as $1000 to Romney’s Political Action Committee (PAC), Restore Our Future.[12]  Additionally, Bibas has given $1500 to Sen. Pat Toomey’s PAC, Citizens for Prosperity in America.[13]

Legal Experience

While Bibas has spent most of his legal career in academia, he has practiced law for two short periods: 1995-97, when he was a litigation associate at Covington & Burling; and 1998-2000, when he was a federal prosecutor with the U.S. Attorney for the Southern District of New York.  Additionally, Bibas has represented clients through his work at the University of Pennsylvania Supreme Court clinic.

As a litigation associate at Covington & Burling, Bibas handled a variety of cases, including representing a pro bono plaintiff in an employment discrimination trial and appeal in D.C. federal court.[14]  As a federal prosecutor, Bibas notably prosecuted Alastair Duncan, a dealer charged with conspiracy for stealing Tiffany Glass from mausoleums.[15]

More controversially, in 1999, Bibas led the aggressive prosecution of a cashier at the Veterans’ Affair Medical Center in the Bronx.[16]  The cashier in question, Linda Williams, lost her job and faced a misdemeanor charge (later dropped to a citation) for allegedly pocketing $7.00 given to her by a customer.[17]  Bibas led an aggressive prosecution, calling five government witnesses (none of whom had actually seen the entire transaction that Williams was charged with pilfering).[18]  Despite one of the government witnesses testifying that the missing money was later found in Williams’ cash register, Bibas pushed for a guilty verdict, stating in his closing that Williams “is guilty and she knows it.”[19]  Judge Douglas Eaton was unimpressed and acquitted Williams from the bench after Bibas’ closing.  Bibas’ conduct during the Williams trial has already drawn criticism from Alliance for Justice, a liberal-leaning nonprofit group.[20]

As a law professor at the University of Pennsylvania, Bibas also runs the Law School’s Supreme Court clinic.  In this capacity, Bibas has argued six cases before the U.S. Supreme Court:

Turner v. Rogers[21] – This case involved a challenge to civil contempt charges in a child support proceeding.  Turner challenged South Carolina’s refusal to provide him with counsel during a civil contempt proceeding, even though he faced the risk of incarceration.  Bibas represented Rebecca Rogers, the mother in the underlying child support action, and argued that, as Turner had already served the contempt sentence, the case was moot.  The Supreme Court unanimously disagreed with Bibas, finding that the case was not moot.  Furthermore, a five-justice majority found, in an opinion by Justice Stephen Breyer, that South Carolina needed to provide safeguards against the erroneous deprivation of liberty in civil contempt cases.

Tapia v. United States[22] – Tapia, convicted of bail jumping and bringing illegal aliens into the United States, was sentenced to a 51-month sentence, in part, to permit Tapia to take part in drug rehabilitation while incarcerated.  Tapia challenged her extended sentence, arguing that a judge could not lengthen a sentence for a rehabilitative goal.  With the United States declining to defend the sentence, Bibas was appointed as amicus to do so.  Ultimately, the Supreme Court, in a unanimous opinion by Justice Elena Kagan, found that Tapia’s sentence violated the Sentencing Reform Act of 1984.

Vartelas v. Holder[23] – In this case, Bibas represented Vartelas, an immigrant who had been convicted of conspiracy to make or possess a counterfeit security in 1994.  In 2003, Vartelas visited Greece for a week and was denied re-entry based on his 1994 conviction.  Representing Vartelas, Bibas argued that the Illegal Immigration Reform and Immigrant Responsibility Act, which was passed after Vartelas’ conviction and barred his re-entry, could not be retroactively applied against convictions of record before the law’s passage.  In a 6-3 opinion by Justice Ruth Bader Ginsburg, the Supreme Court agreed.

Petrella v. MGM, Inc.[24] – This case involved a copyright claim filed over the movie Raging Bull.  Bibas represented the plaintiffs in the case who sought to overcome the defense of “laches” against their copyright claim.  In an opinion by Ginsburg, a six-justice majority agreed with Bibas that laches did not bar the copyright claim in this case.

Bank of America v. Caulkett[25] – In this case, Bibas represented debtors who had taken out second mortgages on an already underwater property, and sought to avoid foreclosure.  In an opinion by Justice Clarence Thomas, a unanimous Supreme Court rejected Bibas’ arguments and found that debtors could not void junior mortgages where senior mortgages on the same property were underwater.

Encino Motorcars, LLC. v. Navarro, et al.[26] – In this case, Bibas represented a group of “service advisors” at a car dealership who sought overtime compensation under the Fair Labor Standards Act.  While the Department of Labor had held that service advisors were exempt from overtime protections in 1987, it reversed its position in 2011.  The Supreme Court found, in a 6-2 opinion by Justice Anthony Kennedy, that the Labor Department’s new position should not be according controlling weight in determining whether overtime should be offered.

Scholarship

Summarizing Bibas’ scholarship is not an easy task.  Not only is he a thought leader on issues of criminal law, he is also one of the most prolific academics to be nominated for the bench.[27]  Below are summaries of his writings, organized by general topic.

Habeas Corpus

One of Bibas’ earliest writings is a “Letter to the Editor” that he authored as an associate at Covington & Burling.  In the Letter, written in response to an editorial opposing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Bibas argues that the writ of habeas corpus should be significantly limited.[28]  Specifically, Bibas notes that habeas was originally limited to those held by military police and was not available in civilian courts.  Bibas goes on to argue that “there is no reason to allow prisoners who make no claim that they are innocent to hog the justice system at the expense of law-abiding citizens.”[29]

Bibas’ letter sparked a response from Boston University Law School Prof. Larry Yackle, who disagreed with Bibas’ historical analysis, noting:

“[S]tate convictions have been subject to re-examination in Federal court virtually since the founding of the Republic.”[30]

Yackle’s letter also calls out Bibas by name, accusing him of thinking that “Federal court enforcement of the Bill of Rights is a bad idea.”[31]

Plea Bargaining

Bibas is a strong advocate of reforming the current plea bargaining system, arguing that plea bargaining, as it currently exists, fails to protect defendants’ rights, while simultaneously failing to impose adequate punishment on the guilty.

In particular, Bibas is a strong critic of Alford or nolo contendre pleas (plea deals that allow the defendant to avoid admitting guilt).  In a 2003 article, Bibas argued for the abolishment of Alford pleas, arguing that they detract from the moral clarity that should be the main feature of the criminal sentencing process.  Bibas notes that Alford pleas “undermine the procedural values of accuracy and public confidence in accuracy and fairness by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty.”[32]  Bibas also argues that Alford pleas “allow guilty defendants to avoid accepting responsibility for their wrongs” and “muddy the criminal law’s moral message.”[33]  In another article, Bibas argues that the public will lose confidence in a criminal justice system that uses Alford pleas to convict the innocent.[34]  Elsewhere, Bibas notes that “most defendants who balk at accepting guilt are not innocent, but guilty criminals in denial” and that Alford pleas “harm not only offenders’ rehabilitation, but also victims’ healing.”[35]

Furthermore, Bibas has advocated for a more general reform of the plea bargain process, noting that the current process often has outcomes dependant on the quality of counsel, with poorer defendants often being stuck with inept attorneys.[36]  He also notes that courts have stopped relying more heavily on trials and “unequivocal” guilty pleas.[37]  As such, Bibas endorses a “consumer protection” model of regulating plea bargains, allowing defendants some protections against bad advice from defense counsel.[38]

Apprendi

In 2000, the Supreme Court ruled in Apprendi v. New Jersey that any facts used to enhance a defendant’s sentence beyond the prescribed statutory maximum must be found by the jury beyond a reasonable doubt.[39]  Bibas has been critical of Apprendi since the decision came out, arguing that requiring enhancing facts to be proven by a jury puts defendants in an impossible position: plead guilty and give up the right to a jury determination of enhancement; or go to trial and risk enhanced trial penalties.[40]  Furthermore, Bibas argues that, by removing sentencing power from judges, Apprendi empowers prosecutors to “charge bargain.”[41]

In 2004, the Supreme Court applied and reaffirmed Apprendi in Blakely v. Washington.[42]  Bibas wrote in response that Blakely would lead to the invalidation of the Sentencing Guidelines, and that, while this would benefit defendants “who could afford first-rate lawyers,” it would also increase “arbitrariness, disparity, and variations in sentences.”[43]  After the Supreme Court struck down the mandatory sentencing guidelines in United States v. Booker,[44] Bibas once again criticized the decision, noting that it undercuts Congress’ desire to punish white collar criminals harshly, and would lead to more leniency by judges in their sentencing.[45]  Specifically, Bibas notes that, if left up to the discretion of judges, “sentencing judges may be indulging unconscious racial and class stereotypes by going easy on defendants who remind judges of themselves or with whom judges can identify.”[46]

Fifth Amendment

Bibas is also strongly critical of the Supreme Court’s decision in Miranda v. Arizona and the “right to remain silent” framework it set up.  In response to an article praising the right to remain silent, Bibas notes that many guilty defendants do not remain silent, and instead choose to confess or lie and make up an alibi.  Remaining silent is often treated as evidence of guilt by police and investigators, and, with the prominence of plea bargaining, their inferences may matter more than those of juries.[47]  As such, there is a strong incentive for defendants, guilty or innocent, to co-operate with the police.[48]  In another article, Bibas argues that Miranda failed to adequately regulate coercive police interrogations, and criticizes the Rehnquist Court for failing to overturn Miranda in its decision in United States v. Dickerson.[49]

Gideon and Right to Counsel

Bibas has also written about the right to counsel, as guaranteed by the Supreme Court in Gideon v. Wainwright.  Specifically, Bibas argues that Gideon has spread the resources of lawyers too thin, thus diluting their effectiveness in capital cases.[50]  Furthermore, Bibas argues that the bar for effectiveness of lawyers is set too low, and as such, “many defendants have lawyers in name only.”[51]  Bibas also attacks the Strickland test for determining effectiveness of counsel, arguing that courts have a “hindsight bias” that prevents them from finding prejudice in cases with ineffective attorneys.[52]

Prosecutorial Regulation

A former prosecutor himself, Bibas has written extensively on prosecutorial discretion, and reform of prosecutorial incentives.  In one paper, Bibas advocates for the use of compensation to encourage prosecutors to model appropriate conduct.  For example, Bibas notes:

“A prosecutor who regularly burns the midnight oil deserves to be paid more than one who who leaves the office every day at 5 p.m.”[53]

Bibas also advocates an evaluation model to encourage judges, defense attorneys, and the public to provide feedback of prosecutors’ work, and to base compensation on such feedback.[54]  Bibas has also advocated reforming the culture in prosecutor’s offices to encourage self-regulation.[55]  Interestingly, Bibas cites the New Orleans District Attorney’s Office under the leadership of Harry Connick Sr. as an example of self-regulation by prosecutors, noting:

“The New Orleans District Attorney’s Office used centralized screening, close supervisory review, and information technology to restrict overcharging and plea bargaining.  By doing so, District Attorney Harry Connick, Sr. fulfilled his campaign pledge to crack down on plea bargaining.”[56]

Bibas fails to note that Connick and the New Orleans D.A.’s Office have come under repeated scrutiny for failing to disclose relevant exculpatory evidence,[57] and using prosecutorial power to intimidate defense witnesses.[58]

Sentencing Reform

Most academics and attorneys who discuss sentencing reform focus on mandatory minimum sentences or overly harsh sentencing laws.  In contrast, Bibas has been a strong advocate for more unorthodox sentencing procedures.  For example, in 2004, Bibas co-authored a paper expressing the need for “remorse and apology” in the sentencing process.[59]  Specifically, Bibas argued that courts at sentencing should use defendant’s conduct at trial, during pleas, and in mediation with the victim to tailor the sentence based on the level of remorse and apology demonstrated.[60]  In another paper, Bibas also encourages the incorporation of mercy and forgiveness, through greater victim involvement, in the criminal justice system.[61]

Originalism

Unlike other academics with Federalist Society backgrounds, Bibas is not an advocate of originalism.  Instead, Bibas argues that, while originalism can be helpful, in many cases, historical evidence is unclear and cannot be the foundation for workable rules.[62]  For example, Bibas notes that originalism contradicts long-held doctrines such as the exclusionary rule.[63]  Further, he argues that many of the defendant-friendly doctrines brought about by an originalist interpretation, including a strict interpretation of the Confrontation Clause, do not take into account evolving views in the law during the 18th Century.[64]  Adopting an originalist framework on the Confrontation Clause, Bibas notes, “freezes in place a snapshot of law that was changing in the late eighteenth century.”[65]  Furthermore, Bibas notes that historical propositions cannot be analogized to all present day situations:

“…today’s issues do not involve the same set of considerations that concerned the Framers.”[66]

Overall Assessment

Some may describe Bibas as a solid conservative.  His writings demonstrate a deep interest with the moral element of crime and punishment, focusing on a belief that the criminal justice system can and should identify and punish “morally wrong” actors.  Furthermore, his aggressive (and politically unwise) prosecution of a popular cashier over $7 in cash makes it easy to caricature Bibas as a modern-day Javert.

At the same time, Bibas’ criticisms of the current criminal justice system are based not only on its failure towards victims, but also towards defendants.  His writings show a strong concern with ensuring that defendants receive adequate representation, and that constitutional protections are not limited to the small fraction of defendants who go to trial, but extend to the vast majority who plead their cases.  As such, others can argue that Bibas holds more moderate-liberal views.

This combination makes Bibas’ ideology hard to pin down.  Rather, Bibas’ most apparent characteristic is his willingness to challenge traditional thought on criminal law and jurisprudence.  From demanding the greater involvement of remorse in the sentencing process, to the advocacy of offering prosecutors financial incentives to perform well, Bibas is definitely an outside-the-box thinker.

If there is a jurist that Bibas looks likely to model, it is recently-retired Seventh Circuit Judge Richard Posner.  Like Bibas, Posner was a brilliant path-breaking academic when he was tapped to the federal bench.  On the bench, Posner was notoriously unpredictable, with little ideological commitment, but a deep concern nonetheless for the practical application of decisions, famously noting:

“A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?”

Bibas’ own concern about the practical effect of the Supreme Court’s criminal decisions, especially their effects both for defendants and victims, can be described as Posnerian.  It is up to the Senate Judiciary Committee to determine if that is a quality to be encouraged on the federal bench.


[1] See Steven Bibas, Letter to the Editor, Early Entry to College Demands Maturity, N.Y. Times, Mar. 12, 1989, http://www.nytimes.com/1989/03/12/opinion/l-early-entry-to-college-demands-maturity-885089.html.

[2] Stephanos Bibas, CrimProf Blog Professor Spotlight: Stephanos Bibas, CrimProf Blog, Nov. 27, 2004, http://lawprofessors.typepad.com/crimprof_blog/2004/11/profesor_spotli.html.

[3] See id.

[4] Kethledge also clerked for Justice Kennedy.

[5] Owens clerked for Justice Ruth Bader Ginsburg.

[6] Srinivasan clerked for Justice Sandra Day O’Connor.

[7] See Bibas, supra n. 2

[8] Jeremy Roebuck, Judge Rendell to Take On ‘Senior Status’, Philadelphia Inquirer, Jan. 31, 2015, http://www.philly.com/philly/news/politics/20150131_3rd_Circuit_Judge_Rendell_to_take_on__quot_senior_status_quot_.html.

[9] Obama Nominates McKeesport Native to Federal Bench, Pittsburgh Action News 4, Mar. 15, 2016, http://www.wtae.com/article/obama-nominates-mckeesport-native-to-federal-bench/7478509.

[10] Jonathan Tamari and Jeremy Roebuck, Obama’s Pick for Judgeship Here Draws Toomey’s Ire, Philadelphia Inquirer, Mar. 15, 2016, http://www.philly.com/philly/news/politics/20160316_Obama_nominates_Pittsburgh_federal_prosecutor_for_Third_Circuit_vacancy.html.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=stephanos+bibas (last visited Sept. 27, 2017).

[12] See id.

[13] Id.

[14] See Prof. Stephanos Bibas, Curriculum Vitae, https://www.law.upenn.edu/cf/faculty/sbibas/cv.pdf (last visited Sept. 28, 2017).

[15] See Greg B. Smith, Robber’s Ghoulish Tale Sold Cemetery Treasure to Art Pro, N.Y. Daily News, Aug. 4, 1999, http://www.nydailynews.com/archives/news/robber-ghoulish-tale-sold-cemetery-treasure-art-pro-article-1.849599.  

[16] Benjamin Weiser, A Federal Case of Small Change; U.S. Prosecutes a Hospital Cashier Over $7 and Loses, N.Y. Times, Oct. 6, 1999, http://www.nytimes.com/1999/10/06/nyregion/a-federal-case-of-small-change-us-prosecutes-a-hospital-cashier-over-7-and-loses.html?mcubz=1.  

[17] Id.

[18] See id.

[19] Id. (quoting Stephanos Bibas).

[21] 564 U.S. 431 (2011).

[22] 564 U.S. 319 (2011).

[23] 132 S. Ct. 1479 (2011).

[24] 134 S. Ct. 1962 (2013).

[25] 135 S. Ct. 1995 (2015).

[26] 136 S. Ct. 1538 (2016).

[27] Jonathan Adler, Professor Bibas Writes Letters (and Lots of Articles Too), Wash. Post, June 13, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/13/professor-bibas-writes-letters-and-lots-of-articles-too/?utm_term=.1a5e03bafa9d.  

[28] Stephanos Bibas, Framers Never Intended Habeas Corpus As We Know It, N.Y. Times, Mar. 20, 1996.  

[29] Id.

[30] Larry Yackle, History of Habeas Corpus Didn’t Begin With 20th Century, N.Y. Times, Mar. 25, 1996.

[31] Id.

[32] Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendre Pleas, 88 Cornell L. Rev. 1361, 1364 (July 2003).  

[33] Id. 

[34] Stephanos Bibas, Bringing Moral Values Into a Flawed Plea Bargaining System, 88 Cornell L. Rev. 1425 (July 2003).  

[35] Stephanos Bibas, Exacerbating Injustice, 157 U. Pa. L. Rev. PENNnumbra 53, 55-56 (2008).  

[36] Stephanos Bibas,Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2481-82 (June 2004).  

[37] See Bibas, n. 33 at 56.

[38]Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Calif. L. Rev. 1117, 1152 (August 2011) (“What defendants need is more robust consumer protection, much like the laws that regulate consumer contracts.”).  

[39] Apprendi v. New Jersey, 530 U.S. 466 (2000).

[40] Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097 (May 2001).  

[41] Stephanos Bibas, Symposium: Legal Issues and Sociolegal Consequences of the Federal Sentencing Guidelines: How Apprendi Affects Institutional Allocations of Power, 87 Iowa L. Rev. 465, 470-74 (January 2002).

[42] Blakely v. Washington, 542 U.S. 296 (2004).

[43] Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent. R. 333, 350 (June 2004).

[44] United States v. Booker, 543 U.S. 220 (2005).

[45] Stephanos Bibas, White Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L. Rev. 721 (December 2005).

[46] See id. at 724.

[47] Stephanos Bibas, The Right to Remain Silent Helps Only the Guilty, 88 Iowa L. Rev. 421, 424-28 (January 2003).

[48]See id.

[49] Stephanos Bibas, The Rehnquist Court’s Fifth Amendment Incrementalism, 74 Geo. Wash. L. Rev. 1078 (August 2006).

[50]  Stephanos Bibas, Gideon at 50: Reassessing the Right to Counsel: Panel 4: The Future of the Right to Counsel: Shrinking Gideon and Expanding Alternatives to Lawyers, 70 Wash. & Lee L. Rev. 1287 (Spring 2013).

[51] Id. at 1288.

[52]  Stephanos Bibas, The Psychology of Hind-sight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L. Rev. 1 (2004).

[53] Stephanos Bibas, Prosecutorial Discretion: Rewarding Prosecutors for Performance, 6 Ohio St. J. Crim. L. 441, 443 (Spring 2009).

[54] Id. at 447.

[55] Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev, 959 (April 2009).  

[56] Id. at 1004.

[57] The Editorial Board, Justice Gone Wrong in New Orleans, N.Y. Times, Oct. 20, 2015, https://www.nytimes.com/2015/10/20/opinion/justice-gone-wrong-in-new-orleans.html?mcubz=1.

[58] Radley Balko, New Orleans’ Persistent Prosecutor Problem, Wash. Post, Oct. 27, 2015, https://www.washingtonpost.com/news/the-watch/wp/2015/10/27/new-orleanss-persistent-prosecutor-problem/?utm_term=.b276413d45b6.  

[59]  Stephanos Bibas & Richard A. Biershbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85 (October 2004).

[60] Id. at 144-45.

[61] Stephanos Bibas, Mercy and Clemency: Forgiveness in Criminal Procedure, 4 Ohio St. J. Crim. L. 329 (Spring 2007).  

[62] Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Geo. L.J. 183 (Nov. 2005).  

[63] Stephanos Bibas, Originalism in Criminal Procedure: Ancient Checks or Newfangled Rights?: Two Cheers, Not Three, for Sixth Amendment Originalism, 34 Harv. J.L. & Pub. Pol’y 45, 46 (Winter 2011).

[64] Id. at 51.

[65] Id.

[66] Id. 

Michael Juneau – Nominee to the U.S. District Court for the Western District of Louisiana

The Western District of Louisiana is a court desperately short of judges.  Due to retirements and resignations, the District, which is assigned a complement of seven active judges, will be down to two by the end of the year.  Today, we look at one of two nominees offered by the Trump Administration: Michael Juneau.

Background

Michael Joseph Juneau was born in Monroe, LA on June 29, 1962, the son of prominent attorney Patrick Juneau.  Juneau attended Louisiana State University in Baton Rouge, graduating magna cum laude in 1984.  He went straight from college to Harvard Law School, getting his J.D. in 1987.

After graduating, Juneau returned to Lafayette, joining his father’s law firm Juneau, Judice, Hill & Adley as an Associate.  After six years as an Associate there, Juneau co-founded the firm Juneau David, APLC in Lafayette.  He currently serves as a Shareholder there.

History of the Seat

Juneau has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana.  The Western District is facing a vacancy crisis, with four of the seven allotted judgeships for the District currently vacant, and a fifth scheduled to open later this year.[1]  This crisis has been exacerbated by the Republican Senate’s failure to confirm any Obama nominations to Louisiana seats in the 114th Congress.

The seat Juneau has been nominated for opened on March 6, 2015, with Judge Richard Haik’s move to senior status.[2]  On February 4, 2016, President Obama nominated Stephanie Finley, the then-serving U.S. Attorney for the Western District of Louisiana, to fill the vacancy.[3]  While Finley, who would have been the first African American judge on the Western District,[4] had the enthusiastic support of Republican senators David Vitter and Bill Cassidy,[5] and was approved by the Senate Judiciary Committee unanimously,[6] her nomination was blocked from the floor by Senate Majority Leader Mitch McConnell.

After the election of President Donald Trump, Juneau submitted his resume for a federal judgeship to Sen. John Kennedy (R-LA).  In March 2017, Kennedy submitted Juneau’s name to the White House.  Trump formally nominated Juneau on Aug. 3, 2017.

Legal Experience

Juneau has only held two positions since graduating from law school: as an associate at Juneau, Judice, Hill & Adley, and as a Shareholder at Juneau David APLC.  In the former position, Juneau focused primarily on civil litigation, maritime law and product liability cases, including representing a child in a suit against a pastor who had committed sexual abuse.[7]

After moving to Juneau David, Juneau focused on maritime law and product liability actions.  Juneau handled many maritime accident cases, including a consolidated law suit over the explosion of an offshore oil rig,[8] and the suit over a boat accident on the way to an oil and gas facility.[9]

In 2012, Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana appointed Juneau’s father, Patrick, to supervise two mass-tort court-supervised settlements: the Deepwater Horizon Economic and Property Damages Settlement; and the Halliburton & Transocean Punitive Damages Settlement.  Patrick Juneau then hired Michael to assist him with the settlement.[11]  While British Petroleum (BP), the defendant in the Deepwater Horizon case, initially approved Juneau’s appointment, the relationship soured amidst allegations that the Administrators were approving claims too readily.[12]  Ultimately, BP ended up suing to remove Patrick Juneau,[13] with the support of some plaintiff’s attorneys.[14]  The decision to appoint Michael Juneau to the case drew particular criticism, with plaintiff’s attorney Daniel Becnel calling it “unconscionable.”  Ultimately, BP failed to remove the Juneaus from the claims process, which continues to this day.[15]

Memberships and Affiliations

As noted in a colloquy between Sen. Mike Lee (R-UT) and Sen. Dick Durbin (D-IL) during the Sept. 20th confirmation hearing, a judicial nominee’s professional affiliations can sometimes become an issue in the confirmation process.  As such, two of Juneau’s affiliations could draw criticism.  First, Juneau has been a member of the Krewe of Gabriel from 1993 to 2017.  The Krewe, a social club that organizes Mardi Gras events, restricts its membership to men (it also, in the past, restricted membership by race).  Second, Juneau has noted an affiliation with the Alliance Defending Freedom (ADF) on his Judiciary Questionnaire.  As previously noted, ADF has been designated as a hate group by the Southern Poverty Law Center.  As such, the exact nature of Juneau’s relationship with ADF will likely be probed in his hearing.

Political Activity

While he has never run or held political office, Juneau, a registered Republican, has been a frequent donor to Louisiana politicians.  The vast majority of Juneau’s donations are directed to Republicans.[16]  Among the more targets are former senator David Vitter, current senators Bill Cassidy and John Kennedy, and Congressman Garret Graves.[17]  Juneau has also donated to the presidential campaigns of Mitt Romney, Rick Santorum, Rick Perry, and Marco Rubio.[18]

Earlier in his career, Juneau donated almost exclusively to Democrats, including a $1000 contribution to the presidential campaign of Al Gore.[19]   However, since 2000, Juneau has only donated once to a Democrat, a $2400 contribution to former senator Mary Landrieu in 2009.[20]

Overall Assessment

In the rough-and-tumble world of judicial politics, Juneau has one key advantage that should help him win confirmation: the support of Sen. John Kennedy.  Kennedy, as noted in the past, is one of the more aggressive questioners on the Judiciary Committee, and is likely the most “gettable” of the Judiciary Committee Republicans for opponents of Trump nominees.  As such, having Kennedy in his corner virtually ensures Juneau’s passage through Committee.

This is not to say that Juneau will necessarily have a smooth confirmation.  He faces two potential lines of criticism: the first based on his (allegedly nepotistic) appointment to the Deepwater Horizon case; and the second based on his affiliation with ADF.  The first may draw criticism from Republicans who believe that the Deepwater settlement unfairly penalized BP.  The second will raise concerns among Democrats, similar to those they raised with Prof. Barrett.

Overall, Juneau’s record confounds efforts to pigeonhole him on either side.  His Republican record of donations and alliance with ADF paint him as a judicial conservative, while his willingness to pay out billions in claims in the Deepwater Horizon case and his support for some Democrats, including Gore and Landrieu suggest moderation.  Overall, his testimony at his confirmation hearing on Oct. 4th will help us further understand the kind of judge he would be.


[1] Tyler Bridges, 42 Parish Area of Western Louisiana Suffers From Vacant Federal Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.

[2] Leslie Turk, Judge Haik Assuming Senior Status in March, The Independent, Sept. 11, 2014, http://theind.com/article-18588-judge-haik-assuming-senior-status-in-march.html.

[3] Press Release, White House, President Obama Nominates Two to Serve on the United States District Courts (Feb. 04, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] Leslie Turk, Finley Could Be First African American on Western District Bench, Acadiana Business, Feb. 5, 2016, http://theind.com/article-22647-finley-could-be-first-african-american-on-western-district-bench.html.

[5] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615 (quoting David Vitter) (describing Finley as a “great Louisianian”).

[6] Michael Macagnone, Senate Panel Advances 4 Federal Judges, Hints at Floor Votes, Law 360, June 16, 2016, https://www.law360.com/articles/807489/senate-panel-advances-4-federal-judges-hints-at-floor-votes.

[7] In the Matter of a Minor Child, et ux v. Louisiana District Council of the Assemblies of God et al., 16th Judicial Dist. Ct., St. Martin Parish, Louisiana, Judge Michael McNulty (1990-1992).  

[8] In re: The Matter of Mallard Bay Drilling, as Owner and Operator of Mr. Beldon, otherwise designated as Mallard Rig 52, Praying for Exoneration from and/or Limitation Liability, Docket No. 97-1223, (W.D. La. 1997).  

[9] Lincoln v. Goodrich Petroleum Corp., et al., 25th Judicial Dist., Plaquemines Parish, Louisiana, Docket No. 50-620, Judge Joy Lobrano (2004-2011).

[10] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[11] Campbell Robertson and John Schwartz, How a Gulf Settlement That BP Once Hailed Became its Target, N.Y. Times, April 27, 2014.  

[12] Tom Young, BP to Blame for Payment Delays, Not Deepwater Claims Administrator Juneau, The Legal Examiner, March 21, 2016, http://neworleans.legalexaminer.com/toxic-substances/bp-to-blame-for-payment-delays-not-deepwater-claims-administrator-juneau/.

[13] Jonathan Stempel, Patrick Juneau, BP Spill Claims Administrator, Urges Dismissal of Company’s Lawsuit, Huff. Post, April 1, 2013, http://www.huffingtonpost.com/2013/04/01/patrick-juneau-bp-spill-settlement_n_2994406.html.

[14] Kyle Barnett, Prominent Plaintiff Attorney Backs BP’s Bid to Remove Claims Administrator Patrick Juneau, Louisiana Record, Feb. 4, 2015, http://louisianarecord.com/stories/510585593-prominent-plaintiff-attorney-backs-bp-rsquo-s-bid-to-remove-claims-administrator-patrick-juneau.

[15] Richard Thompson, After 4 Years, 300K Claims, $9.2B, BP Claims Administrator Nearing Finish Line, New Orleans Advocate, Sept. 29, 2016, http://www.theadvocate.com/new_orleans/news/business/article_965235aa-8682-11e6-8181-0b5297cc5994.html.

[16] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=michael+juneau&order=desc&sort=D (last visited Sept. 27, 2017).  

[17] See id.

[18] Id.

[19] Id.

[20] Id.

[21] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.

The Age Question

Earlier this year, various news reports announced that the White House Counsel’s Office was interviewing several lawyers in their late 30s and early 40s for judgeships.  The youth of these prospective nominees became the fodder of much consternation for liberals, and enthusiasm for conservatives.  Six months into the Trump Administration, it is worth looking at the nominees submitted to see if they are, on the age front, out of the mainstream for judicial nominations.

Court of Appeals Nominees:

President Trump has selected nine nominees to the federal appellate bench. They (along with their year of birth) are:

  • Stephanos Bibas (1969) – Third Circuit
  • Judge Amul Thapar (1969) – Sixth Circuit
  • John Bush (1964) – Sixth Circuit
  • Joan Larsen (1968) – Sixth Circuit
  • Prof. Amy Coney Barrett (1972) – Seventh Circuit
  • Justice David Stras (1974) – Eighth Circuit
  • Judge Ralph Erickson (1959) – Eighth Circuit
  • Justice Allison Eid (1965) – Tenth Circuit
  • Kevin Newsom (1972) – Eleventh Circuit

The average birth year of these nominees is 1968, giving them an average age of 49.

In comparison, the first nine nominees submitted by the Obama Administration were:

  • O. Rogeriee Thompson (1951) – First Circuit
  • Judge Gerald Lynch (1951) – Second Circuit
  • Judge Joseph Greenaway (1957) – Third Circuit
  • Judge Thomas Vanaskie (1953) – Third Circuit
  • Judge Andre Davis (1949) – Fourth Circuit
  • Justice Barbara Milano Keenan (1950) – Fourth Circuit
  • Jane Stranch (1953) – Sixth Circuit
  • Judge David Hamilton (1957) – Seventh Circuit
  • Judge Beverly Martin (1955) – Eleventh Circuit

The average birth year of these nominees is 1952.9, which, in 2009, gave them an average age of 56.1.

By this comparison, Trump’s appellate nominees are, on average, about seven years younger than Obama’s, a significant difference.

However, to have a truly accurate comparison, we have to look at previous presidents as well.

President Bush announced his first eleven appellate nominees in a joint ceremony on May 9, 2001.  Setting aside Judges Roger Gregory and Barrington Daniels Parker, who were both Democrats chosen for bipartisanship, we can look to the other nine conservatives as a comparison.  They were:

  • Miguel Estrada (1961) – D.C. Circuit
  • John Roberts (1955) – D.C. Circuit
  • Judge Terrence Boyle (1945) – Fourth Circuit
  • Judge Dennis Shedd (1953) – Fourth Circuit
  • Judge Edith Brown Clement (1948) – Fifth Circuit
  • Justice Priscilla Owen (1954) – Fifth Circuit
  • Justice Deborah Cook (1952) – Sixth Circuit
  • Jeffrey Sutton (1960) – Sixth Circuit
  • Prof. Michael McConnell (1955) – Tenth Circuit

These nine have an average birth year of 1953.7, which, in 2001, translates to an average age of 47.3.  This not only makes them younger than Trump’s nominees, it also makes them, in absolute terms, younger than Obama’s as well.

President’s Clinton’s first nine appellate nominees were:

  • Judge Judith Ann Wilson Rogers (1939) – D.C. Circuit
  • Judge Pierre Leval (1936) – Second Circuit
  • M. Blane Michael (1943) – Fourth Circuit
  • Judge Diana Gribbon Motz (1943) – Fourth Circuit
  • Fortunato Benavides (1947) – Fifth Circuit
  • Judge Robert Manley Parker (1937) – Fifth Circuit
  • Judge Carl Stewart (1950) – Fifth Circuit
  • Justice Martha Craig Daughtrey (1942) – Sixth Circuit
  • Justice Rosemary Barkett (1939) – Eleventh Circuit

These nine nominees had an average birth year of 1941.8 and an age (in 1993) of 51.2.

In other words, the average age of President Trump’s appellate appointees, 49, falls squarely between those of President Bush’s (47.3), and President Clinton’s (51.2).  The only outlier is the group of nominees submitted by President Obama, who are significantly older than the norm.

District Court Nominees

As of July 3, 2017, President Trump has announced seven district court nominees.  The oldest of the nominees is Judge David Nye, born in 1958.  The youngest is Trevor McFadden, born in 1978.  The seven nominees have an average birth year of 1967, and an average age of 50.

In comparison, the average birth year of the first six nominees made by President Obama is 1960, with an average age of 49.

The average birth year of the first seven nominees made by President Bush is 1949, with an average age of 52.

The average birth year of the first ten nominees made by President Clinton is 1943.5, with an average age of 49.5,

In other words, the age of President Trump’s district court nominees is within the mainstream of the previous three presidents.

Setting aside the hype on both sides, Trump’s judicial nominees, at least so far, are not significantly younger than the nominees of previous presidents.  Rather than spending more ink criticizing the youth of Trump’s nominees, it may be worth pondering why the Obama Administration squandered its own opportunity to appoint young liberals to the bench, instead choosing judges in their late 50s and early 60s.

President Trump Announces Ten Nominees to the Federal Bench

Today, President Trump nominated five judges to the U.S. Court of Appeals.  They are:

John K. Bush, a partner at the Louisville office of Bingham, Greenebaum, Doll LLP. and the President of the Louisville Chapter of the Federalist Society, was nominated to the Sixth Circuit Court of Appeals.

Justice Joan Larsen of the Michigan Supreme Court, a former clerk of Justice Antonin Scalia, was nominated to the Sixth Circuit Court of Appeals.

Amy Coney Barrett, a professor at the University of Notre Dame Law School, and a former clerk of Justice Antonin Scalia, was nominated to the Seventh Circuit Court of Appeals.

Justice David Stras of the Minnesota Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Eighth Circuit Court of Appeals.

Kevin Newsom, a partner at Bradley Arant Boult, and a former clark of Justice David Souter, was nominated to the Eleventh Circuit Court of Appeals.

Trump also nominated four judges to the U.S. District Courts.  They are:

Terry Moorer, a U.S. Magistrate Judge, was nominated to the U.S. District Court for the Middle District of Alabama.

Dabney Friedrich, a former member of the U.S. Sentencing Commission, was nominated to the U.S. District Court for the District of Columbia.

David Nye, a judge on the Sixth District Court of Idaho, was nominated to the U.S. District Court for the District of Idaho.

Scott L. Palk, an assistant law dean at the University of Oklahoma Law School, was nominated to the U.S. District Court for the Western District of Oklahoma.

Finally, Trump nominated Damien Schiff, a senior attorney with the Pacific Legal Foundation, was nominated to the U.S. Court of Federal Claims.