Thomas Alvin Farr – Nominee to the U.S. District Court for the Eastern District of North Carolina

In December 2006, Thomas Alvin Farr, a well-connected Republican attorney from Raleigh, was nominated for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  For the next two years, Farr waited for a hearing and a vote, neither of which came in the Democratic-controlled Senate.  Then, with the election of President Obama, Farr’s hopes of a federal judgeship died.  On July 13, 2017, however, President Trump revived Farr’s nomination, submitting him once again to the seat he had originally been nominated for, a seat studiously kept open by North Carolina’s Republican Senators.

Background

Thomas Alvin Farr was born in Cincinnati, OH on October 24, 1954.[1]  Farr attended Hillsdale College, a Christian liberal arts school in Michigan, graduating summa cum laude in 1976.  Farr proceeded to Emory University, graduating with a J.D. in 1979.

After graduating, Farr joined the National Right to Work Legal Defense Foundation as a staff attorney.  In 1981, upon the election of Republican senator John P. East,[2] Farr moved to Washington D.C. to serve as Counsel for the Senate Labor and Human Resources Committee.  Farr left D.C. in 1982 to serve as a law clerk to Judge Frank Bullock of the U.S. District Court for the Middle District of North Carolina.

In 1983, Farr joined the Raleigh law firm Maupin, Taylor, Ellis & Adams, P.A., working on civil litigation, with a focus on labor law.  During this period, Farr also served as a member of the North Carolina Elections Board.

In 2003, Farr and three other partners left Maupin for Haynsworth, Baldwin, Johnson & Greaves, a Greenville, SC based labor and employment firm.[3]  In 2006, Farr joined the Raleigh office of Ogletree Deakins, where he currently works as a partner.

In December 2006, President George W. Bush nominated Farr for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  Farr’s nomination came a month after Democrats took control of the U.S. Senate.  Incoming Chairman Patrick Leahy (D-VT) declined to process Farr’s nomination, despite moving and confirming three other North Carolina nominees.  Farr’s nomination was ultimately returned to the President unconfirmed.

History of the Seat

Farr has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[4]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[5]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[6]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[7]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[8]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[9]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[10] this time with the support of Burr and Senator Thom Tillis (R-NC).[11]

Legal Experience

Having been a lawyer since 1979, Farr has more experience litigating than any other nominee put forward by the Trump Administration.  The vast majority of his experience has been in the fields of labor and election law.

Labor Law

Farr has spent virtually his entire legal career in labor law, generally opposed to the positions of unions and unionized workers.  He started his legal career at the National Right to Work Legal Defense Foundation, litigating against unions and union-friendly regulation.  Furthermore, as Counsel for Sen. East, Farr worked on labor policy in the U.S. Senate.

In private practice, Farr fought claims by truck drivers seeking the rights of union membership,[12] and industrial workers seeking to take necessary measurements to file a grievance.[13]  Farr also successfully intervened in a suit blocking NLRB enforcement of its bargaining order against a pork product plant in North Carolina.[14]  He also filed suit to challenge an arbitration decision in favor of a unionized employee.[15]

Farr also filed a Supreme Court amicus brief on behalf of Helms urging affirmance of a decision holding that unions could not spend money on activities unrelated to collective bargaining.[16]

Election Law

In addition to his expertise in labor law, Farr is also known for his extensive litigation experience representing the Republican party, Republican elected officials, and conservative interests in election law litigation.[17]

Early in his career, Farr represented Sen. Jesse Helms (R-NC) and the North Carolina Republican Party in a suit challenging the constitutionality of North Carolina election laws.  The suit arose when Republican Congressman Bill Hendon lost a close election to Democrat James Clarke, and filed suit to challenge the election results, and the North Carolina straight-ticket statute.  After years of litigation, Judge David Sentelle (now on the U.S. Court of Appeals for the D.C. Circuit) found that the statute, which voided cross-over votes cast in opposition to a straight-ticket ballot, was unconstitutional, accepting Farr’s position.[18]

Following the 1990 census, Farr represented the Republican Party of North Carolina in its unsuccessful challenge against the state’s congressional map, alleging partisan gerrymandering.[19]  In 1995, Farr argued the case of Shaw v. Hunt before the U.S. Supreme Court.  The Supreme Court ended up siding with Farr on a 5-4 vote, striking down the congressional map as an unconstitutional racial gerrymander.[20]

In 2001, Farr and future U.S. District Judge James Dever once again challenged the maps drawn by North Carolina’s Democratic legislature, alleging that they were a partisan gerrymander.[21]

In contrast to his litigation against partisan gerrymandering by Democrats, Farr has defended gerrymandering by Republicans.  For example, Farr was a part of the legal team defending the North Carolina legislature’s gerrymandering of the Guilford County Board of Commissioners.[22]

Farr also defended the congressional map and state legislative maps drawn by the Republican legislature against charges that they were unconstitutional racial gerrymanders.[23]  He also defended “election reform” measures enacted by the legislature that, critics argued, would disenfranchise minority voters.[24]

Controversially, Farr’s firm was hired at taxpayer expense to defend North Carolina’s restrictive voter id law against suit by the Department of Justice, who argued that the law disenfranchised minority voters.[25]  In court, Farr argued that voter id was a “minor inconvenience” for voters.[26]  Ultimately, the appeals were dismissed by Democratic Governor Roy Cooper, and Farr was dismissed from the case.[27]

Other Representations

In addition to the cases mentioned above, Farr has defended business interests against civil rights and other actions in court.[28]  Early in his career, Farr successfully defended a railroad accused of promoting white candidates over an experienced black conductor.[29]  Farr also successfully defended American Safety Products, Inc. against breach of contract and RICO claims,[30] as well as defending Dow Corning Corp. against wrongful termination claims.[31]

Political Activity

As may be evident from his frequent appointments by the Republican legislature, Farr is well connected in the North Carolina Republican Party and has been a generous donor to Republicans.  Through his career, Farr has donated to Sen. Lauch Faircloth (R-NC), President George W. Bush, Sen. Elizabeth Dole (R-NC), Sen. Bob Smith (R-NH), Sen. Richard Burr (R-NC), Rep. Renee Ellmers (R-NC), Rep. George Holding (R-NC), Rep. Richard Hudson (R-NC), Mitt Romney, Newt Gingrich, Speaker Paul Ryan, Sen. Thom Tillis (R-NC), and Senate Majority Leader Mitch McConnell, among others.[32]  Farr has also been a strong supporter of President Trump, donating almost $2500 to Trump’s campaign, and an additional $1100 to the Make America Great Again PAC.[33]  While most of his donations are to Republicans, Farr did donate $1000 to Rep. Mike McIntyre (D-NC) in 2009.

Overall Assessment

Both Farr’s supporters and detractors will likely turn to one-word arguments for their position.  For Farr’s supporters, the word is “qualified.”  For his opponents, it’s “partisan.”

As noted, Farr has more experience practicing law than any other Trump nominee.  With almost forty years of legal experience, including work in government, nonprofits, and private practice, Farr is certainly well qualified for a federal judgeship.

However, Farr also has a deeply partisan history.  His switch from attacking partisan gerrymanders drawn by Democrats to defending partisan gerrymanders drawn by Republicans allows detractors to paint him as a partisan ideologue.  Furthermore, his dismissal of the burdens of voter id as a “minor inconvenience” is sure to draw opposition from civil rights groups.

As a bottom line, Democrats, civil rights plaintiffs, and labor unions will argue that, given Farr’s partisan past, he cannot be fair to them in court.  Unlike his first nomination, however, this time, Farr will get a hearing to defend himself and try and put those doubts to rest.


[2] East later gained notoreity as one of the principal opponents of a federal holiday honoring Rev. Martin Luther King, Jr.  Frances Romero, A Brief History of Martin Luther King Jr. Day, Time, Jan. 18, 2010, http://content.time.com/time/nation/article/0,8599,1872501,00.html.

[3] Kim Nilsen, Eillis [sic] Leaves Maupin Taylor & Ellis, Triangle Business Jrnl., Mar. 24, 2003, https://www.bizjournals.com/triangle/stories/2003/03/24/daily11.html.

[4] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[5] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[6] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[7] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[10] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[11] Press Release, Burr and Tillis Welcome Nomination of Thomas Farr as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[12] Joyner v. Abbott Labs., 674 F. Supp. 185, 188 (E.D.N.C. 1987).

[13] N.L.R.B. v. Am. Nat. Can Co., Foster-Forbes Glass Div., 924 F.2d 518, 520 (4th Cir. 1991).

[14] N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir. 1995), supplemented, 81 F.3d 25 (4th Cir. 1996).

[15] Bandag, Inc. v. Local 922, United Steel Workers of Am., No. 5:96-CV-450-BR3, 1996 WL 943527, at *1 (E.D.N.C. Dec. 20, 1996), aff’d sub nom. Bandag, Inc. v. Local 922, 121 F.3d 697 (4th Cir. 1997).

[16] Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 745, 108 S. Ct. 2641, 2648, 101 L. Ed. 2d 634 (1988).

[17] See, e.g. Wesley Brown, Hudson and Jackson Exchange Blows in Senate Race, The Free Press, Oct. 15, 2010 (noting that while representing Sen. Brent Jackson, Farr sent a cease-and-desist letter to his Democratic opponent, alleging untruths in his ads).

[18] Hendon v. N. Carolina State Bd. of Elections, 633 F. Supp. 454, 462 (W.D.N.C. 1986).

[19] Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.), aff’d, 506 U.S. 801, 113 S. Ct. 30, 121 L. Ed. 2d 3 (U.S. 1992).  See also Shaw v. Hunt, 861 F. Supp. 408, 417 (E.D.N.C. 1994), rev’d, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (U.S. 1996).

[20] Shaw v. Hunt, 517 U.S. 899, 902, 116 S. Ct. 1894, 1899, 135 L. Ed. 2d 207 (U.S. 1996).

[21] Stephenson v. Bartlett, 180 F. Supp. 2d 779, 781 (E.D.N.C. 2001).

[22] NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections, 858 F. Supp. 2d 516 (M.D.N.C. 2012).

[23] Harris v. McCrory, 159 F. Supp. 3d 600, 604 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455, 197 L. Ed. 2d 837 (U.S. 2017). See also  Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211, 198 L. Ed. 2d 655 (U.S. 2017).

[24] League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 230 (4th Cir. 2014).

[25] N. Carolina State Conference, of the NAACP v. McCrory, 156 F. Supp. 3d 683, 686 (M.D.N.C. 2016).

[26] Ken Otterbourg, Closing Arguments Given in Key Voter Rights Trial, N.Y. Times, Feb. 2, 2016.

[27] Taft Wireback, Law Firm Disputes Dismissal from NC Voter ID Case, Greensboro News & Record, Feb. 21, 2017, http://www.greensboro.com/news/government/law-firm-disputes-dismissal-from-nc-voter-id-case/article_fc41ca4c-139e-5faf-9232-a5785ca01aba.html.

[28] See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 290 (4th Cir. 2009); Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995); Mumford v. CSX Transp., 878 F. Supp. 827, 829 (M.D.N.C. 1994), aff’d sub nom. Mumford v. CSX Transp., Inc., 57 F.3d 1066 (4th Cir. 1995).

[29] Miller v. Seaboard Sys. R.R., No. C-85-1156-R, 1986 WL 15502, at *1 (M.D.N.C. Dec. 23, 1986).

[30] Grantham & Mann, Inc. v. Am. Safety Prod., Inc., 831 F.2d 596, 598 (6th Cir. 1987).

[31] Riley v. Dow Corning Corp., 876 F. Supp. 732, 733 (M.D.N.C. 1992), aff’d, 986 F.2d 1414 (4th Cir. 1993).

[32] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=Thomas+Farr (last visited Aug. 17, 2017).  

Judging the 2020 Contenders – The Others

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at the 2020 candidates who have experience as governors and as senators.  Today we look at those who do not fall into either camp.  Obviously, it is difficult to build up a record on judicial matters if you have neither appointed judges nor voted on them.  Nevertheless, we look at the remaining contenders and their public stances (if any) on judicial matters.  Most, if not all, of the contenders in this category have not spoken out on judges and have a thin record on this front.

Stacey Abrams

Abrams, a Georgia state legislative leader who narrowly lost the 2018 gubernatorial election in the state, is, funnily enough, the sister of a federal judge, Judge Leslie Abrams of the U.S. District Court of the Middle District of Georgia.  Regarding other nominations, Abrams came out against the nomination of Thomas Farr in December, which ultimately fell short of a vote.

Michael Bloomberg

Former New York City mayor Michael Bloomberg is currently planning a run for President in 2020, either as a Democrat or as an Independent.  Unlike other candidates in this category, Bloomberg had the opportunity to appoint judges, namely, municipal judges to the New York City Criminal Court, Civil Court and the Family Court.  However, Bloomberg’s appointments to these courts have made few waves and do not reveal much about his judicial views.

Outside of his role as mayor, Bloomberg is primarily known for his advocacy on gun control, as well as his support for the New York stop and frisk policy.

Pete Buttigieg

South Bend Mayor Pete Buttigieg is the youngest candidate in the 2020 Presidential race, and is the only openly gay candidate.  However, Buttigieg’s largely local pedigree has left him little room to develop positions on judicial issues, and he has been silent on such issues since announcing.

Julian Castro

Julian Castro is the only Hispanic candidate who has currently announced a bid for President, and, with experience leading San Antonio, one of the Nation’s largest cities, and heading the Department of Housing and Urban Development, he has the experience in an executive role.

That being said, Castro has been virtually invisible on the issue of judges, with virtually no formal statements on the issue.

John Delaney

Former Maryland Congressman John Delaney was the first major Democrat to announce for the 2020 Presidential camapign.  Despite fairly detailed positions on many major issues, Delaney has largely been silent on judicial issues, with no mention of judicial nominations on his campaign site.

Tulsi Gabbard

Hawaii Congresswoman Tulsi Gabbard is, perhaps, one of the most polarizing candidates in the 2020 race. On one side, Gabbard is a member of the Congressional Progressive Caucus and was one of the strongest supporters for Sen. Bernie Sanders’ presidential campaign in 2016.  On the other, she has been criticized for her lack of support on LGBT issues, and her demagoguery on such issues in the past.

Particularly notoriously, Gabbard wrote an op-ed criticizing Democratic Senators (including fellow Presidential candidate Kamala Harris) for probing judicial nominee Brian Buescher over his membership in the Knights of Columbus, arguing that their questions constituted religious bias.  While Gabbard did note that she herself opposed Buscher’s nomination, her position nonetheless brought pushback from fellow Hawaii Democrats.

Richard Ojeda

The former West Virginia State Senator and unsuccessful Congressional candidate does not have a section on judges on his Presidential campaign website.

Beto O’Rourke

Former Congressman Beto O’Rourke ran a surprisingly strong Senate campaign in 2018, falling just narrowly short of Sen. Ted Cruz despite running in strongly Republican Texas.  During the campaign, O’Rourke opined on the pending Kavanaugh nomination, wishing that there had been more focus on Kavanaugh’s judicial positions during the confirmation battle.  O’Rourke has said little about Trump’s other judicial nominations, however, including many appointed to Texas courts.  Interestingly, O’Rourke’s strong campaign nonetheless propelled many Texas judicial candidates to victory, flipping many courts across the state to Democrats.

Tim Ryan

Ohio Rep. Tim Ryan has been planning a run for President since mid-2018, even as he led an aborted coup against House Speaker Nancy Pelosi.  While Ryan has made a name for himself as a Pelosi opponent, he has been largely invisible on the issue of judicial nominations, although he did issue a statement opposing the nomination of Brett Kavanaugh.

Eric Swalwell

Swalwell has served in the U.S. House since his election in 2012 and currently serves on the House Judiciary Committee (which, unlike its senate counterpart, has no role in judicial confirmations).  In 2018, Swalwell came out strongly against the nomination of Brett Kavanaugh to serve on the Supreme Court.

The Nominees Left Out

Updated on January 23, 2019 at 3:24 PM

When the 115th Congress adjourned, it sent 73 judicial nominees back to the President.  Yesterday, President Trump announced his intention to renominate 50 of them (as well as one nominee to the U.S. Court of Military Commission Review).  This leaves 23 nominees not on the initial list and still in limbo.  Zoe Tillman at Buzzfeed has a great rundown of the nominees sent back to the Senate.  Today, we look at the 23 who were not.

Out of the 23, 16 come from just three states: New York; California; and Illinois.  Each of these states has two Democratic Senators, and, more importantly, Senators with prominent positions in the Democratic Party.  As such, one could argue that the blocking of these renominations are intended to add pressure to Democrats during the government shutdown.  However, I would argue that the truth is more complicated.

Let’s start with California, which has two senators, Sen. Dianne Feinstein and Sen. Kamala Harris, on the Senate Judiciary Committee.  Both were strong opponents of Justice Brett Kavanaugh.  There were six California nominees pending that were not renominated: Patrick Bumatay, Dan Collins, and Kenneth Lee to the Ninth Circuit; and Stanley Blumenfeld, Jeremy Rosen, and  Mark Scarsi for the Central District of California.  This batch was submitted relatively late in 2018, and did not have the support of California’s home-state senators.  Since that point, White House Counsel Don McGahn has departed and has been replaced with Pat Cippolone, and, by all accounts, negotiations between the White House and California senators are back on.  As such, not renominating the California nominees can be seen as an optimistic sign.  Of course, some, if not all, of the six will ultimately make it to the bench, either as part of a package, or, if negotiations fail, individually.

The situation in New York is more complicated.  New York Senator Chuck Schumer leads the Senate Democratic Caucus and Senator Kirsten Gillibrand has presidential ambitions.  Nevertheless, they managed to work with the White House to put together a seven-judge package of nominees last year.  These nominees, including three Democrats and four Republicans, have not been renominated.  At the same time, the White House has renominated four other New York nominees: Judge Joseph Bianco and Michael Park for the Second Circuit; Thomas Marcelle for the Northern District of New York, and Philip Halpern for the Southern District of New York.  It is unclear why the White House has declined to put forward a group of nominees who were passed out of the Judiciary Committee with bipartisan support, although one can speculate that it is intended as a slight to Schumer.

Finally, we come to perhaps the most surprising omission, Illinois.  Illinois Sens. Dick Durbin and Tammy Duckworth established a productive relationship with the White House on judicial nominations, resulting in the smooth confirmations of Michael Scudder and Judge Amy St. Eve to the Seventh Circuit (the only appellate nominations during the Trump Administration to receive unanimous support).  They also put together a package of three district court nominees: conservatives Martha Pacold and Steven Seeger; and liberal Mary Rowland.  None of the three have been renominated.  Of course, given the number of vacancies on the federal bench in Illinois, it is possible that the three will be wrapped into a larger package of nominees.

Stepping away from these three states, you have an additional seven who have not been renominated.  Two of these, Mary McElroy of Rhode Island and Judge Stephanie Gallagher of Maryland, were nominees originally chosen by President Obama and renominated by President Trump with Democratic support.  I think the Administration is hoping, supported by a new Judiciary Chair, to renegotiate these picks and try to find nominees with more conservative records.  (The Trump Administration did renominate Judge John Milton Younge so it’s not that all Democratic picks were left off the list)

The remaining five are nominees who would likely face a difficult journey to confirmation.  This includes Jon Katchen, who withdrew his nomination late last year in the face of strong opposition from the Alaska Bar, Gordon Giampietro, who has been blue-slipped by Sen. Tammy Baldwin, and Thomas Farr, whose expected confirmation fizzled last year after opposition from Sen. Tim Scott.  Farr is perhaps the most notable of the three, as Sen. Thom Tillis has still been advocating for his renomination.  Regardless, withdrawing Farr is a no-brainer for the White House.  The sixty-four year old nominee can easily be replaced with a judge just as conservative and two decades younger.

The last two are the most interesting and surprising.  FTC Commissioner Maureen Ohlhausen was not renominated to the Court of Federal Claims.  While Ohlhausen did face strong Democratic opposition from the Senate Judiciary Committee, so did fellow nominee Ryan Holte (Holte was renominated).  As such, I’m inclined to think that Ohlhausen may have asked for her nomination to be withdrawn.  (UPDATE: An individual familiar with the judicial confirmation process has confirmed that Ohlhausen withdrew her nomination.)   Finally, there is John O’Connor, nominated to a district court seat in Oklahoma.  O’Connor was rated Unqualified by a unanimous panel of the American Bar Association, who cited his lackluster legal career, and noted ethical issues.  It is hard to believe that the ABA rating was the sole factor in blocking O’Connor given that other nominees have soldiered on past such a rating and been confirmed.  Given that the allegations against O’Connor were presumably examined during the White House vetting process, the lack of a renomination is surprising.

Overall, some, if not all, of these 23 picks, could still be renominated.  However, their exclusion from the initial list clearly makes a point: the Administration is continuing to move deliberately with regard to judicial nominations, and the area is still a priority for them.  As such, we’re in for an interesting Congress.

Judicial Nominations 2018 – Year in Review

2018 is at an end.  One of the most active years in judicial nominations in recent memory ended with a whimper, as a singular blockade by outgoing Sen. Jeff Flake delayed all judicial confirmations.  As we look forward to the new Congress in 2019, it’s worth looking back at the previous year to see how the judicial landscape has evolved.

Nominations and Confirmations

This year, the Senate confirmed one supreme court justice, 18 appellate judges and 47 district court judges.  Adding in the one supreme court, 12 appellate, and six district court judges confirmed in 2017, the 115th Congress has racked up a total of 85 Article III judicial confirmations.  In comparison, President Obama saw 60 confirmations in his first Congress, President Bush saw 100, and President Clinton saw 126.

While an overall look at confirmations doesn’t look very impressive, where this Administration stands out is in appellate confirmations.  So far, Trump has seen 30 appellate confirmations.  In comparison, Clinton and Obama took their entire first terms to have 30 appellate judges confirmed, and President Bush took until December of his third year to reach his 30th confirmation.  Plus, with another 15 appellate vacancies still pending, Trump looks likely to cross 40 or even 50 appellate confirmations before the end of his first term.  Particularly impressively, only two of the current pending vacancies are still waiting on nominees, one of which opened just last month.

Failed Nominations

That being said, the Trump Administration has also seen an unusually large number of failed nominees.  In the past two years, the Trump Administration has seen seven nominees withdrawn or stalled due to lack of majority support: Ninth Circuit nominee Ryan Bounds; district nominees Brett Talley, Jeff Mateer, Matthew Petersen, Thomas Farr; and Court of Federal Claims nominees Damien Schiff and Steven Schwartz (I’m not including nominees who had home state senatorial trouble such as Jon Katchen or Gordon Giempietro).  This is particularly remarkable because the Trump Administration was facing a Senate controlled by his own party and unencumbered by the filibuster.

Another way to look at it is that the Trump Administration essentially faced at least 2 negative votes on each of the above nominees.  In comparison, throughout the entire Obama Administration, only 15 nominees drew even a single negative vote from Democrats, and only six drew 2 or more: appellate nominees Cornelia Pillard and Pamela Harris and district judges Gerald McHugh, Edward Smith, Victor Bolden, and Joseph Leeson (Smith and Leeson drew opposition from the left).  The entire Bush Administration saw just six nominees draw same party opposition: Justice Sam Alito; appellate judges Roger Gregory, Priscilla Owen, and Helene White; and district judges J. Leon Holmes and Janet Neff (three of those judges were Democrats).  The Clinton Administration saw just one nominee attract same party opposition: Judge Brian Stewart (a Republican named upon the insistence of Sen. Orrin Hatch).  In other words, in two years, the Trump Administration has drawn at least two Republican no votes on more nominees than the Clinton and Bush Administrations combined and more than the Obama Administration drew in its entire tenure.

A Vacancy Crisis?

One of the most forgotten parts of the judicial confirmation news cycle is the sheer number of judicial vacancies currently pending.  As of December 31, 2018, 144 of the 890 Article I and Article III judgeships are vacant, approximately one in six.  In comparison, approximately 10% of judgeships were vacant in 2016 when the Washington Post reported on the alarming judicial vacancy rate.  As such, objectively, our federal courts are overstretched.

That being said, not all judicial vacancies are created equal.  The Trump Administration and the Republican Senate have focused their attention on filling vacancies on the court of appeals, frequently replacing judges who have not yet left their seats.  However, the court of appeals are not where the judges are most needed.  Rather, it is trial level courts that are stretched particularly thin.  For example, five out of twelve judgeships on the Northern District of Texas are currently vacant with only one nominee pending.  Similarly, the Central District of California currently has a quarter of its 28 judgeships open, while the Southern District of California is expecting its fifth vacancy (out of 13 judgeships) to open next year.  The situation in the District of North Dakota is even more dire, with the only judge on the court scheduled to retire next year, and no nominees pending to either of the two pending vacancies.

Perhaps nowhere is the vacancy crisis more apparent than in the Court of Federal Claims.  This specialized court has a limited docket and non-lifetime appointments, an ideal venue for bipartisan agreements on nominees.  However, the Court currently has less than 1/3 occupancy, with only five out of sixteen judgeships filled.  Much of the blame for this can go to Sen. Tom Cotton, who singlehandedly blocked five uncontroversial Obama nominees to this court during the 114th Congress.  However, even since that point, the court hasn’t seen a single confirmation even as vacancies continue to pile up.  Additionally, rather than choosing uncontroversial nominees, the Trump Administration has chosen lawyers with political backgrounds or little experience practicing before the specialized court, leaving little room for bipartisan agreement.

As such, despite remarkable success on the confirmation front, the Trump Administration has barely made a dent in reducing judicial vacancies as a whole.

Demographics of Confirmed Nominees

Let’s take a look at demographics of the 85 confirmed Trump appointees.

Age

I noted last year that, despite press reporting on the supposed youth of Trump nominees, they are largely similar in age to those of previous presidents.  With a larger pool of nominees to look at now, that conclusion largely holds up.  The average birth year of Trump’s judicial nominees is 1967, making their average age 51 years, fairly comparable to the average birth years of the previous few presidents.  Additionally, Trump’s appellate judges, also alleged to be significantly younger than those of previous presidents, come out to an average age of 50, hardly unusual.

The oldest Trump appointee tapped for the federal bench is Judge Mark Bennett, who was nominated and confirmed to the 9th Circuit at age 65.  The youngest is Judge Holly Lou Teeter on the U.S. District Court for the District of Kansas, who is just 39 years old.

Race

As noted earlier, the vast majority of Trump’s appointees are white.  Only seven of the 85 judges confirmed this Congress were non-white: five Asian; one Hispanic; and one African American judge respectively.

Gender

This blog has previously criticized the gender diversity (or lack thereof) of Trump appointees.  Unfortunately, the situation has not improved.  Only 20 of the 85 confirmed judges are female.  The numbers are even worse among appellate nominees, where only 6 out of 30 judges are female.  Both numbers are lower than those seen in the last three presidents.

What is particularly alarming is that the gender ratio on the federal judiciary, which significantly narrowed under President Obama, is now backsliding.  Over the last two years, 29 female federal judges have left active status, meaning that there are now nine fewer female judges on the federal bench than there were when Trump took office.

Looking Ahead

When the Senate recessed, it left 73 judicial nominees unconfirmed.  Most, if not all, of these nominees will be renominated in January, giving the Senate a significant number of nominees to work through.  As such, many of the nomination fights that were deferred from this year will take place next year, this time, with Republicans having a slightly wider majority on judge votes.  As such, it is likely that many controversial picks who were not confirmed this year will be approved next year, including Matthew Kacsmaryk and Howard Nielson.

However, with incoming Senate Judiciary Committee Chairman Lindsay Graham announcing his intent to continue the blue slip policy of his predecessor, the White House cannot push through its picks for district court vacancies.  As such, achieving a meaningful reduction in the number of judicial vacancies will require cooperation between the White House and senators of both parties to select judges everyone can get behind.  We can only hope that such cooperation occurs and produces mainstream judges committed to the rule of law.

Ten Upcoming Judicial Nomination Battles

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court.  His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low.  Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation.  Instead, it has returned to a familiar front: lower court nominations.  With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming.  Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight.  (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

10. Cam Barker – Eastern District of Texas

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas.  As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts.  In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans.  Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.”  Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

9. Stephen Clark – Eastern District of Missouri 

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri.  Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage.  For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill.  Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed.  His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

8. Justice Patrick Wyrick – Western District of Oklahoma

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist.  Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt.  His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General.  Specifically, two incidents have been raised.  First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction.  Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence.  Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt.  The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

7. Mark Norris – Western District of Tennessee

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate.  His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017.  Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate.  In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state.  For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

6. Wendy Vitter – Eastern District of Louisiana

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana.  Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified).  Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

5. Howard Nielson – District of Utah

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C.  Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee.  Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush.  Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture.  In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded.  Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry.  In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

4. Ryan Nelson – Ninth Circuit

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit.  Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot.  The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

3. Matthew Kacsmaryk – Northern District of Texas

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.”  In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools.  In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage.  He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement.  Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

2. David Porter – Third Circuit

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey.  As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor.  In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

1. Thomas Farr – Eastern District of North Carolina

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country.  Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate.  Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.”  At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities.  Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.”  Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted.  (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.)  With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.

 

Kenneth Bell – Nominee to the U.S. District Court for the Western District of North Carolina

Jonas Federal Building (site of the W.D.N.C. Courthouse in Charlotte).

A former Republican candidate for Congress, Ken Bell is Trump’s first nominee for the Western District of North Carolina.  Setting aside Bell’s political history, he is likely to face questions about his support for prosecuting Hillary Clinton in 2016.

Background

Kenneth Davis “Ken” Bell was born in Bedford, OH in 1958.[1]  Bell attended Wake Forest University and Wake Forest University School of Law.  He then joined the U.S. Attorney’s Office for the Western District of North Carolina as an Assistant U.S. Attorney.  He stayed in the office for the next 20 years, except for a 2-year hiatus at Womble Carlyle Sandridge & Rice in Winston-Salem.[2]

In 2003, Bell joined the Charlotte office of Mayer Brown as a Partner.  Three years later, Bell shifted to the Charlotte office of Hunton & Williams.[3]  In 2009, Bell moved again to McGuireWoods LLP in Charlotte, where he continues to work as a Partner.[4]

History of the Seat

Bell has been nominated for the U.S. District Court for the Western District of North Carolina.  This seat opened on August 31, 2017, when Judge Richard Voorhees moved to senior status.  Around the time the vacancy opened, Bell reached out to Sens. Richard Burr and Thom Tillis (R-NC) to interview for the seat.[5]

In November 2017, Bell was recommended to the White House for the vacancy.[6]  On April 12, 2018, Bell was officially nominated for the seat.

Legal Experience

Bell has practiced law for approximately thirty-five years, with that time evenly split between working as a federal prosecutor and in private practice.

Federal Prosecutor

Bell has two stints as a federal prosecutor in the U.S. Attorney’s Office for the Western District of North Carolina, from 1983 to 1988 and from 1990 to 2003.  While Bell has handled many cases as a federal prosecutor, he is perhaps most famous for his prosecution of a Hezbollah cell operating in Charlotte.  His prosecution produced the first trial conviction ever secured under the Material Support statute.  The cell consisted of individuals who would buy cigarettes in North Carolina and resell them illegally in Michigan, passing on to the profits to Hezbollah.[7]  In addition to securing the first trial convictions under the Material Support statute, Bell also secured the first trial convictions for a terrorist cell under the RICO statute.[8]  Bell’s work on the prosecution resulted in him being awarded the Attorney General’s John Marshall Award for Trial of Litigation.[9]

Among other matters, Bell prosecuted drug crimes,[10] voting fraud,[11] counterfeiting,[12] and civil rights violations.[13]

Private Practice

Bell has been in private practice since 2003, shifting between the firms of Mayer Brown, Hunton & Williams, and McGuire Woods in Charlotte.  In each of these positions, Bell worked primarily on defending individuals and corporations charged with white collar crimes.[14]

Notably, Bell was the chief defense counsel to James Black, the Speaker of the North Carolina House of Representatives, who faced federal charges of corruption.[15]  Black was charged, among other counts, with bribing Republican Rep. Michael Decker to switch parties in 2003, allowing Black to remain Speaker despite a narrow Republican majority.  As Black’s defense counsel, Bell negotiated a plea to one charge of receiving illegal gratuities.[16]  More recently, Bell also represented Rep. Robert Pittenger (R-NC) against corruption charges.[17]

Since 2012, Bell has served as a Receiver over the assets of the Rex Venture Group (also known as ZeekRewards), a Ponzi scheme whose closing created over $800 million in losses.[18]  As Receiver, Bell has filed suits against insiders and net winners from the scheme, seeking to recover the contributions put in by those who were defrauded.[19]

Political Activity

In the 1990 election cycle, Bell ran as a Republican for North Carolina’s 5th Congressional District against Democratic Incumbent Stephen Neal.  Bell won the primary against fellow Republican Steve Royal with 51% of the vote.[20]  During the campaign, Bell attacked Neal for his efforts in Congress on behalf of the Savings & Loan Industries.[21]  However, Bell in turn was attacked by Democrats for using $2500 in campaign funds to make mortgage and car payments.[22]  Rep. Beryl Anthony (D-Ark.), the then-Chairman of the Democratic Congressional Campaign Committee (DCCC) called the use of campaign funds “just plain wrong.”[23]  Bell and other Republicans engaged in the practice defended their actions, arguing that the use of campaign funds for personal expenses was legal and helped level the playing field against powerful incumbents.[24][25]  Ultimately, Bell took 41% of the vote in the ultimate election.[26]

Bell has been a frequent donor to Republicans, having given over $10000 over the last twelve years.[27]  Bell has given particularly generously to Burr, who has received over $4000.[28]  Others Bell has donated to include former Rep. Sue Myrick, Sen. Marco Rubio, and presidential candidate Mitt Romney.[29]

Writings

Throughout his legal career, Bell has written and spoken frequently on legal and public policy issues.   Of the many topics that Bell has written on, two are particularly notable.

First, Bell has repeatedly argued for the prosecution of Hillary Clinton for her use of unsecured email servers during her service as Secretary of State.  In a 2015 letter to the editor, Bell argued that Clinton’s use of the email servers violated the law, noting:

“If I had done what Ms. Clinton has done, I would have been prosecuted, and I would have been guilty.”[30]

After then-FBI Director James Comey announced his determination that Clinton had not broken any laws and that no “reasonable prosecutor” would indict her, Bell authored a second article, stating that he could find “an army of reasonable prosecutors” who would have indicted.[31]  In the second article, Bell argues that Clinton’s actions might suggest “disloyalty to the United States,” that Comey “got out of his lane” by recommending no prosecution, and that Attorney General Loretta Lynch was being unreasonable in not bringing charges.[32]

Bell’s article prompted a response from fellow Charlotte attorney David Tinkler, who noted that Clinton had used a secure server to transmit all information that was marked “classified” and that her behavior was no different than that of previous Republican Secretaries of State.[33]

Second, Bell was a strong advocate for the confirmation of Judge Robert Conrad to the U.S. Court of Appeals for the Fourth Circuit.[34]  Conrad was nominated by President George W. Bush in 2007 and blocked by the Democratic Senate due to concerns about his conservative ideology and previous comments opposing Planned Parenthood.[35]  In an interview, Bell described the blockade on Conrad as “embarrassing and outrageous” and urged Democrats to allow a hearing on Conrad.[36]

Overall Assessment

Like his fellow North Carolina nominee Thomas Farr, Bell is likely to face a rocky confirmation process.  In Bell’s case, the trouble is likely to come from his writings, rather than his legal activities.

Bell is likely to face significant pushback over his view that Hillary Clinton should have been charged criminally for her use of personal email servers, a view rejected by legal observers in both parties (albeit embraced by some mainstream voices).  Democrats are unlikely to support a candidate who urged criminal charges against their last presidential nominee.  Additionally, some critics may charge Bell with hypocrisy, noting his use of campaign funds for personal expenses in his 1990 election (conduct that may have been legal at the time, but has more recently been firmly prohibited by the Federal Election Commission).[37]

Additionally, Bell’s strong endorsement of Conrad, a judge himself criticized for his strong statements against Planned Parenthood and the pro-choice movement,[38] is unlikely to endear Bell to Senate Democrats.

In his favor, Bell’s credentials for the bench are unquestionable given his extensive legal experience.  Furthermore, Bell can point to his representation of prominent Democrats such as Black to reinforce his bipartisan credentials.

As a bottom line, Bell is likely to face strong opposition from Senate Democrats.  However, if he can secure the support of all Senate Republicans, he will still be confirmed.  As such, barring another shoe dropping, Bell remains the favorite for confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Bell: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] See id.

[5] See Bell, supra n. 1 at 56.

[6] See id.

[7] See Jeffrey Goldberg, In the Party of God, New Yorker, Oct. 28, 2002, https://www.newyorker.com/magazine/2002/10/28/in-the-party-of-god-2.  

[8] See United States v. Hammoud, et al., CR-00-147-MU (W.D.N.C.).

[9] See Bell, supra n. 1 at 45.

[10] See, e.g., United States v. McChan, 101 F.3d 1027 (4th Cir. 1996); United States v. McManus, 23 F.3d 878 (4th Cir. 1994).

[11] See, e.g., United States v. Odom, 736 F.2d 104 (4th Cir. 1984).

[12] See, e.g., United States v. Ross, 844 F.2d 187 (4th Cir. 1988).

[13] See, e.g., United States v. Rathburn, 1:99-cr-00091-LHT (W.D.N.C.).

[14] See Bell, supra n. 1 at 28.

[15] United States v. Black, 5:07-cr-00042-BO (E.D.N.C.).

[16] See id.

[17] Tim Funk, Rep. Robert Pittenger, Challenger Mark Harris Target Character in New Ads, Charlotte Observer, May 23, 2016, https://www.charlotteobserver.com/news/politics-government/article79385082.html.  

[18] Securities and Exchange Comm’n v. Rex Venture LLC d/b/a ZeekRewards.com, and Paul Burks, 3:12-CV-519 (W.D.N.C.).

[19] McGuire Woods: Court-Appointed Receiver in ZeekRewards Case Sues Insiders, Net Winners of the Scheme, India Investment News, Mar. 3, 2014.

[20] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=187113 (last visited July 29, 2018).

[21] Nathaniel C. Cash, How Old Votes Become New Political Liabilities, Wash. Post, Aug. 24, 1990.

[22] See Miles Benson, Run for Congress Can Pay Mortgage, Seattle Times, Aug. 26, 1990, http://community.seattletimes.nwsource.com/archive/?date=19900826&slug=1089789.  

[23] Charles R. Babcock, Personal Use of Campaign Funds Sparks Dispute; Challengers Say System Allows the Practice, Improving their Chances Against Incumbents, Wash. Post, Aug. 3, 1990.

[24] See id.

[25] Coincidentally, another challenger attacked for the personal use of campaign funds was an Indiana candidate named Mike Pence.  See Benson, supra n. 29.

[26] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=34410 (last visited July 29, 2018).

[28] See id.

[29] See id.

[30] Kenneth D. Bell, Letter to the Editor, Clinton Offers Up A Meaningless Dodge, Charlotte Observer, Sept. 2, 2015, https://www.charlotteobserver.com/opinion/letters-to-the-editor/article33225267.html.  

[31] Kenneth D. Bell, A ‘Reasonable’ Case for Charging Hillary Clinton, Charlotte Observer, July 9, 2016, https://www.charlotteobserver.com/opinion/op-ed/article88564422.html.  

[32] See id.

[33] David Tinkler, Why the FBI Made the Right Choice on Hillary Clinton Probe, Charlotte Observer, July 14, 2016, https://www.charlotteobserver.com/opinion/op-ed/article89697407.html.

[34] Lisa Zagaroli, Conrad at Center of Partisan Fight, Charlotte Observer, July 22, 2008, https://www.charlotteobserver.com/news/local/article8994503.html.  

[35] See id.

[36] Guy Loranger, Court’s Open Seats Raise Concern in NC, North Carolina Lawyers Weekly, Aug. 4, 2008.

[37] Federal Election Commission, Personal Use, https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/ (last visited July 29, 2018) (“The campaign may not pay for mortgage, rent or utilities for the personal residence of the candidate or the candidate’s family even if part of the residence is being used by the campaign”).

[38] See Zagaroli, supra n. 34.

Unconfirmed: The Neverending Vacancy

When Judge Malcolm Howard took senior status on December 31, 2005, the 66-year-old Reagan appointee likely expected a successor to be appointed in a matter of months.  Today, over twelve years later, Howard’s seat on the U.S. District Court for the Eastern District of North Carolina is still vacant, the longest district court vacancy in U.S. history.[1]  The story of this vacancy spans three Administrations and three failed nominations, as well as involving the ugly specter of racism and politics in the “new south.”

Let us start off with two facts: first, the Eastern District of North Carolina, which covers 44 counties from Raleigh into the North Carolina coastline, has one of the highest percentage of black residents in the nation, with over 25% of the population being African American;[2] second, the Eastern District of North Carolina has never had a single African American judge.[3]  North Carolina’s relative paucity of African American federal judges relates partly back to Sen. Jesse Helms, the notoriously conservative senior senator from North Carolina.  Over his thirty year tenure, Helms oversaw the nominations of 15 district court judges and three appellate judges from North Carolina, only two of whom were black.  As such, by the time that Howard moved to senior status, many felt that the Eastern District of North Carolina was overdue for an African American judge.  However, President George W. Bush’s nominated Thomas Alvin Farr, a 52-year-old white private practice attorney from Raleigh.

Farr’s nomination came before a Democratic-controlled Senate on January 9, 2007, alongside the nominations of Thomas Schroeder, William Osteen Jr., and Martin Reidinger to fill three other North Carolina vacancies.[4]  The Senate confirmed Osteen and Reidinger on September 10, 2007, and confirmed Schroeder on December 14, 2007.  However, despite having the strong support of North Carolina senators Elizabeth Dole and Richard Burr, Farr received neither a hearing nor a vote.  In the 2008 elections, two simultaneous actions killed Farr’s hope of confirmation: first, Illinois Senator Barack Obama, a Democrat, was elected to be the new President of the United States; second, Dole was defeated for re-election by Democrat Kay Hagan.

Entering office with a new Democratic president, Hagan recommended three candidates to President Obama for the Howard seat: Superior Court Judges Allen Cobb and Quentin Sumner, and Assistant U.S. Attorney Jennifer May-Parker.[5]  Notably, two of the three candidates, Sumner and May-Parker, were African American.  On July 21, Burr wrote to Obama endorsing the candidacies of Cobb and May-Parker for the seat.[6]

However, despite the joint recommendations, the White House failed to put a nomination forward.  As his first term came to an end, Obama managed to place two North Carolina judges on the U.S. Court of Appeals for the Fourth Circuit, as well as two more on the District Courts.  And yet, the Administration failed to nominate anyone to the Eastern District.

Some speculated that the Administration had failed to nominate a candidate because it was looking for an African American nominee.[7]  Rep. G.K. Butterfield urged the White House to nominate an African American to the seat, noting that 26.5% of the residents under the Eastern District were black.[8]  For her part, Hagan refused to recommend any additional candidates to the White House.[9]

On June 20, 2013, four and a half years after he came to office, Obama finally submitted a nomination to the Howard seat, which had, by now, been vacant for seven and a half years.  The nominee was Jennifer May-Parker, the African American federal prosecutor recommended by Hagan and Burr in July 2009.[10]  However, despite his support for May-Parker in 2009, Burr refused to return a blue slip on the nomination.[11]  Burr declined to offer a reason for his blockade of May-Parker, but his intransigence prevented a hearing or a vote on May-Parker.  Furthermore, in the 2014 elections, Hagan lost re-election to Republican Thom Tillis.  Bowing to the political realities, the Obama Administration chose not to renominate Jennifer May-Parker in the Republican-controlled 114th Congress.

After withdrawing May-Parker’s nomination in early 2015, Obama did not submit another nomination to the Howard seat until April 2016, when he nominated Patricia Timmons-Goodson, a member of the U.S. Commission on Civil Rights and a former North Carolina Supreme Court Justice.[12]  The nomination drew a sharp response from Burr who argued that Obama had broken an agreement that would have filled the vacancy, calling the nomination an “election season stunt.”[13]  Despite criticism within his home-state,[14] Burr stuck to his stance, blocking Timmons-Goodson for the rest of the Obama administration.  Notably, in a private meeting, Burr took credit for the “longest vacancy,” touting it as an example of his frustration of the Obama Administration’s goals.[15]  Overall, Burr weathered the criticism and won re-election.  Furthermore, the election of President Donald Trump in 2016 put an end to the Timmons-Goodson nomination.

With a new Republican president and two Republican senators, the stars seemed aligned for the swift confirmation of a nominee to the Howard seat.  Sure enough, on July 13, 2017, Trump renominated Farr, over ten years after his initial nomination by Bush.  However, since then, Farr’s second nomination has bogged down over criticism of his work defending voting restrictions in North Carolina, and his alleged role in illegal voter suppression while working on the Helms campaign in 1990.[16]  As a result, Farr’s nomination has twice passed through the Judiciary Committee on narrow party-line votes, and has still not been called up by Senate Majority Leader Mitch McConnell.

Furthermore, Farr’s confirmation on the floor isn’t assured.  With Sen. John McCain frequently absent for medical reasons, McConnell has only a narrow 50-49 margin on controversial votes.  With Democrats united against Farr, McConnell cannot afford any defections if he intends to confirm Farr.  Thus, with the NAACP and other groups lobbying moderate Republicans heavily,[17] the outcome is still uncertain.  And as such, the neverending vacancy goes on, still unfilled.


[1] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[2] See Ari Berman, He Defended North Carolina’s Voter Suppression Law. Now He’s Set to Become a Federal Judge There, Mother Jones, Oct. 18, 2017, https://www.motherjones.com/politics/2017/10/he-defended-north-carolinas-voter-suppression-law-now-hes-set-to-become-a-federal-judge-there/.

[3] See id.

[4] Archive of Federal Judicial Vacancies, http://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2007/02/vacancies/pdf (last visited March 11, 2018).

[5] WRAL, Hagan Looks to Split U.S. Attorney Job, Capitol Broadcasting Company, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[6] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).  

[7] Patrick Gannon, Race, Politics Keep Judge’s Seat Empty for 7 Years, Star News, Jan. 12, 2013, http://www.starnewsonline.com/news/20130112/race-poltics-keep-judges-seat-empty-for-7-years.

[8] See id.

[9] See id.

[10] Press Release, Office of President Barack Obama, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[11] Jennifer Bendery and Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huff. Post, Jan. 8, 2014, https://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.  

[12] Press Release, Office of President Barack Obama, President Obama Nominates Eight to Serve on the United States District Courts (April 26, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[13] Press Release, Office of Sen. Richard Burr, Sen. Burr’s Statement on the White House’s Nomination for the Eastern District Judge (April 29, 2016) (on file at https://www.burr.senate.gov/press/releases/).  

[14] CBC Editorial, Burr Needs to End Political Games, Back Timmons-Goodson Judicial Appointment, WRAL.com, Oct. 5, 2016, http://www.wral.com/editorial-burr-needs-to-end-petty-political-games-back-timmons-goodson-judicial-appointment/16083659/.  

[15] See Will Doran, Sen. Richard Burr Claims Responsibility for Longest Judicial Vacancy in U.S. History, Politifact North Carolina, Nov. 3, 2016, http://www.politifact.com/north-carolina/statements/2016/nov/03/richard-burr/sen-richard-burr-claims-responsibility-longest-jud/.  

[16] See Alexander Nazaryan, President Trump is Rewarding a Lawyer Who Has Fought to Block the Black Vote with a Plum Federal Judgeship, Newsweek, Sept. 21, 2017, http://www.newsweek.com/trump-north-carolina-farr-voter-suppression-668649.

[17] See Anne Blythe, Trump’s Pick on Bench is ‘Tantamount to Hitler Wreacking Havoc’ Among Jews, NAACP Leader Says, News & Observer, Mar. 5, 2018, http://www.newsobserver.com/news/local/article203587414.html.

Judge Charles Barnes Goodwin – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Judge Charles Goodwin was the first Trump nominee to receive a rating of unqualified from the American Bar Association.  Goodwin’s rating is particularly unusual, because, unlike the other two district court nominees who received the rating, Goodwin has been in practice for twenty years, and has served as a federal magistrate judge for the last four years.

Background

Goodwin has deep Oklahoma ties.  Charles Barnes Goodwin was born in Clinton, OK in 1970 to Charles L. and Nancy Goodwin.  His father, Charles L. “Buzz” Goodwin had served as a city councilman, city attorney, and mayor of Clinton before becoming elected as a state judge.[1]  Goodwin attended the University of Oklahoma, graduating with a B.A. in Letters and Economics in 1994.  He then attended the University of Oklahoma Law School, graduating in 1997.

After graduating, Goodwin served as a law clerk to then U.S. Magistrate Judge Claire Egan on the U.S. District Court for the Northern District of Oklahoma.[2]  He then served as a law clerk to Judge Lee West on the U.S. District Court for the Western District of Oklahoma.  In 2000, Goodwin joined the Oklahoma City office of Crowe & Dunleavy as an Associate.  In 2006, he became a Shareholder-Director.

In 2013, Goodwin became a federal magistrate judge on the U.S. District Court for the Western District of Oklahoma.  He currently serves in that capacity.

History of the Seat

The seat Goodwin has been nominated for opened on July 14, 2015, with Judge Robin Cauthron’s move to senior status.  While Cauthron moved to senior status with a year and a half left in the Obama Administration, no nominee was ever submitted for the vacancy.

Goodwin applied to fill the vacancy on November 30, 2016, shortly after the election of Donald Trump.[3]  After interviews with Oklahoma Senators James Inhofe and James Lankford, as well as with the White House and the Department of Justice, Goodwin was selected as a nominee in April 2017.  Goodwin was officially nominated on July 13, 2017, almost exactly two years to the day the vacancy opened.

Political Activity

Goodwin has a relatively short record of political activity.  He donated $500 to John McCain’s presidential campaign in 2008 and $1500 to Mitt Romney’s campaign in 2012.[4]  Additionally, he provided informal legal advice to the campaign of Ryan Leonard, a Republican running unsuccessfully for Oklahoma Attorney General in 2010.

In 2010, Goodwin applied to Democratic Governor Brad Henry for an appointment to the Oklahoma Supreme Court.[5]  However, Goodwin was not selected as one of the finalists for the seat and Henry appointed Oklahoma County District Judge Noma Gurich instead.[6]

Legal Experience

After stints as a law clerk for Judges Eagan and West, Goodwin joined Crowe & Dunleavy to work in commercial litigation.  In this capacity, Goodwin appeared in both state and federal court in securities, antitrust, fraud, contract, and class action cases.  Among the more significant matters he handled, Goodwin represented Duoyuan Global Water, Inc. in defending against a securities class action.[7]

In another matter, Goodwin represented 400 Oklahoma poultry farmers in a class action alleging violations of the Packers and Stockyards Act.[8]  After the district court granted summary judgment against Goodwin’s clients, he successfully argued for the ruling’s reversal from the Tenth Circuit.[9]  Goodwin then successfully defended the jury verdict for his clients before the Tenth Circuit,[10] and the Supreme Court.[11]

Jurisprudence

Goodwin has served as a U.S. Magistrate Judge on the U.S. District Court for the Western District of Oklahoma since 2013.  In this role, Goodwin presides over pretrial, trial, grand jury and discovery matters.

Benefits Cases

Goodwin has frequently heard appeals from denials of social security benefits by administrative law judges (ALJ).  In many of these cases, Goodwin has affirmed the denial of benefits.[12]  However, Goodwin has just as frequently reversed in favor of claimants.[13]  In one notable case, Goodwin found that the ALJ failed to consider the role of the plaintiff’s mental health defects on his disability.[14]  In another case, Goodwin found that the ALJ had failed to consider the role of the plaintiff’s obesity on his disability.[15]  However, the district court declined to follow Goodwin’s recommendation, finding that the ALJ had correctly decided the case.[16]

Civil Rights Suits

As a U.S. Magistrate Judge, Goodwin frequently offers the preliminary recommendations on civil rights suits filed by prisoners and others under §1983.  In almost every single suit he has reviewed, Goodwin has recommended rejection of the plaintiff’s claims.[17]  While Goodwin’s recommendations have generally been accepted by the district courts, they have been rejected in some cases.[18]  In one case, Goodwin recommended the dismissal of a civil rights claim based on denial of medical care to an inmate.[19]  Specifically, he ruled that there was no allegation of knowledge by the defendant medical administrator of the lack of care.[20]  In rejecting the recommendation, the district judge found that the administrator’s knowledge could be assumed.[21]  In another case, the district judge declined to adopt Goodwin’s conclusion that the plaintiff had failed to properly exhaust administrative remedies prior to filing the suit.[22]

Overall Assessment

On paper, Charles Goodwin is a well-qualified candidate for the federal bench.  However, it’s impossible to discuss Goodwin’s qualifications without addressing the elephant in the room: his Unqualified rating from the ABA.

Generally, the ABA identifies three criteria that are key in its evaluation: integrity, professional competence and judicial temperament.[23]  While the ABA has been criticized for using an additional ideological test to downgrade conservative candidates, there are plenty of examples of the ABA highly rating conservative candidates, including the highest Well Qualified ratings for Fifth Circuit nominees Don Willett, James Ho, and Kyle Duncan.  At any rate, while Goodwin’s judicial record is conservative, it is not unusually so.

Instead, the ABA, in a Dec. 12th letter, explained that its criteria was Goodwin’s “work ethic.”  Specifically, ABA Standing Committee past Chair Nancy Deegan noted that “Magistrate Judge Goodwin’s work habits, including his frequent absence from the courthouse until mid-afternoon” raised concerns.  Deegan went on to note that “no issues were noted regarding Magistrate Judge Goodwin’s judicial temperament, intellectual capacity, writing and analytical abilities, knowledge of the law, or breadth of professional experience.”

Setting aside the ABA rating, there is little in Goodwin’s record that would disqualify him from the federal bench.  As such, Goodwin’s confirmation turns on how concerning senators find his work ethic.


[1] Obituary, Charles L. “Buzz” Goodwin, The Oklahoman, Nov. 13, 2017, http://legacy.newsok.com/obituaries/oklahoman/obituary.aspx?pid=187223226.  

[2] Eagan was nominated to a lifetime appointment by President George W. Bush and confirmed in 2001.

[3] Senate Judiciary Questionnaire, Charles Goodwin 50, https://www.judiciary.senate.gov/imo/media/doc/Goodwin%20SJQ.pdf.

[5] See Michael McNutt, Askins Seeks Seat on State’s High Court, The Oklahoman, Nov. 23, 2010.

[6] Tim Talley, Henry Names Noma Gurich to Okla. Supreme Court, Deseret News, Jan. 7, 2011, https://www.deseretnews.com/article/700098729/Henry-names-Noma-Gurich-to-Okla-Supreme-Court.html.

[7] See Ho v. Duoyuan Global Water, Inc., 887 F. Supp. 2d 547 (S.D.N.Y. 2012).

[8] See Jim Stafford, Appeals Court Reinstates Farmers’ Lawsuit, The Oklahoman, Aug. 1, 2007.

[9] See Been et al. v. OK Indus., Inc., 495 F.3d 1217 (10th Cir. 2007).

[10] Been v. OK Indus., Inc., 398 F. App’x 382 (10th Cir. 2010).

[11] OK Indus., Inc. v. Been, 563 U.S. 975 (2011) (denying certiorari).

[12] See, e.g., Packer v. Colvin, No. CIV-15-655-CG, 2016 WL 6770271 (W.D. Okla. Nov. 15, 2016); Hall v. Colvin, No. CIV-15-105-CG, 2016 WL 5239832 (W.D. Okla. Sep. 22, 2016).  See also Austin v. Colvin, No. CIV-13-1089-L, 2015 WL 631065 (W.D. Okla. Feb. 12, 2015); Stringer v. Colvin, No. CIV-13-1053-HE, 2014 WL 6879083 (W.D. Okla. Dec. 4, 2014); Payne v. Colvin, No. CIV-13-650-R, 2014 WL 4929434 (W.D. Okla. Sept. 29, 2014); Salazar v. Colvin, No. CIV-13-878-F, 2014 WL 4668794 (W.D. Okla. Sept. 18, 2014); Thompson v. Colvin, No. CIV-13-744-R, 2014 WL 4660805 (W.D. Okla. Sept. 17, 2014); Keeling v. Colvin, No. CIV-13-498-M, 2014 WL 4388411 (W.D. Okla. Sept. 5, 2014); Devers v. Colvin, No. CIV-12-1285-D, 2014 WL 1272108 (W.D. Okla. Mar. 27, 2014); Humphreys v. Colvin, No. CIV-13-0098-HE, 2014 WL 1270748 (W.D. Okla. Mar. 25, 2014).

[13] See, e.g., Thompson v. Colvin, No. CIV-13-922-F, 2015 WL 586298 (W.D. Okla. Feb. 11, 2015); Johnson v. Colvin, No. CIV-13-871-R, 2014 WL 7187050 (W.D. Okla. Dec. 16, 2014); Hendrix v. Colvin, No. CIV-13-522-M, 2014 WL 4929427 (W.D. Okla. Sept. 30, 2014); Omes v. Colvin, No. CIV-13-375-HE, 2014 WL 4674364 (W.D. Okla. Aug. 29, 2014), report and recommendation adopted, No. CIV-13-0375-HE, 2014 WL 4674342 (W.D. Okla. Sept. 17, 2014); Shortnacy v. Colvin, No. CIV-13-297-HE, 2014 WL 4716075 (W.D. Okla. Aug. 26, 2014), report and recommendation adopted, No. CIV-13-0297-HE, 2014 WL 4716055 (W.D. Okla. Sept. 22, 2014); Cook v. Colvin, No. CIV-13-211-HE, 2014 WL 4209574 (W.D. Okla. July 30, 2014), report and recommendation adopted, No. CIV-13-0211-HE, 2014 WL 4209576 (W.D. Okla. Aug. 25, 2014); Williams v. Colvin, No. CIV-13-448-R, 2014 WL 2949470 (W.D. Okla. June 27, 2014); Robles v. Colvin, No. CIV-13-378-CG, 2014 WL 2219230 (W.D. Okla. May 29, 2014); Iles v. Colvin, No. CIV-13-0221-F, 2014 WL 1330010 (W.D. Okla. Mar. 31, 2014); Moore v. Colvin, No. CIV-13-60-M, 2014 WL 1344582 (W.D. Okla. Mar. 31, 2014); Hull v. Colvin, No. CIV-13-67-D, 2014 WL 1343502 (W.D. Okla. Mar. 31, 2014); Henderson v. Colvin, No. CIV-13-168-M, 2014 WL 1270978 (W.D. Okla. Mar. 26, 2014); Elix ex rel. JE v. Colvin, No. CIV-13-0139-HE, 2014 WL 903176 (W.D. Okla. Mar. 7, 2014); Pennington v. Colvin, No. CIV-12-1026-F, 2014 WL 869292 (W.D. Okla. Mar. 5, 2014); Redman v. Colvin, No. CIV-12-1039-R, 2014 WL 652314 (W.D. Okla. Feb. 19, 2014); Crowell v. Colvin, No. CIV-12-1126-L, 2013 WL 6800821 (W.D. Okla. Dec. 20, 2013).

[14] McClaflin v. Colvin, No. CIV-14-1128-CG, 2016 WL 5390908 (W.D. Okla. Sep. 27, 2016).

[15] Sanders v. Colvin, No. CIV-14-799-R, 2015 WL 5559868 (W.D. Okla. Aug. 18, 2015), report and recommendation rejected, No. CIV-14-799-R, 2015 WL 5559872 (W.D. Okla. Sept. 21, 2015).

[16] Sanders v. Colvin, No. CIV-14-799-R, 2015 WL 5559872 (W.D. Okla. Sept. 21, 2015).

[17] See, e.g., Alfred v. Alfred, No. CIV-17-273-C, 2017 WL 4563889, at *1 (W.D. Okla. Sept. 5, 2017), report and recommendation adopted, No. CIV-17-273-C, 2017 WL 4563062 (W.D. Okla. Oct. 12, 2017); Daly v. Gossen, No. CIV-15-13-C, 2017 WL 1051176, at *9 (W.D. Okla. Feb. 16, 2017), report and recommendation adopted, No. CIV-15-13-C, 2017 WL 1051140 (W.D. Okla. Mar. 20, 2017); Collins v. Payne Cty., No. CIV-15-1294-R, 2016 WL 7634475, at *1 (W.D. Okla. Nov. 30, 2016), report and recommendation adopted, No. CIV-15-1294-R, 2017 WL 31427 (W.D. Okla. Jan. 3, 2017); Tuell v. Kingfisher Cty., No. CIV-16-86-D, 2016 WL 7414597, at *1 (W.D. Okla. Nov. 30, 2016), report and recommendation adopted, No. CIV-16-86-D, 2016 WL 7410738 (W.D. Okla. Dec. 22, 2016); Blackburn v. Reeve, No. CIV-15-359-F, 2016 WL 3944940, at *1 (W.D. Okla. June 23, 2016), report and recommendation adopted, No. CIV-15-0359-F, 2016 WL 3945831 (W.D. Okla. July 19, 2016); Beals v. Elk City Police Dep’t, No. CIV-15-195-C, 2016 WL 3573241, at *1 (W.D. Okla. May 31, 2016), report and recommendation adopted, No. CIV-15-195-C, 2016 WL 3582152 (W.D. Okla. June 28, 2016); Barnett v. Sielert, No. CIV-14-1284-HE, 2016 WL 3802678, at *6 (W.D. Okla. May 31, 2016), report and recommendation adopted, No. CIV-14-1284-HE, 2016 WL 3829027 (W.D. Okla. July 12, 2016); Wilson v. Henry, No. CIV-15-1026-R, 2016 WL 3512035, at *4 (W.D. Okla. May 26, 2016), report and recommendation adopted, No. CIV-15-1026-R, 2016 WL 3523756 (W.D. Okla. June 22, 2016); Jordanoff v. Red Rock Adult Behavioral Health Ctr., No. CIV-15-846-R, 2016 WL 3561807, at *1 (W.D. Okla. May 11, 2016), report and recommendation adopted, No. CIV-15-846-R, 2016 WL 3566264 (W.D. Okla. June 27, 2016); Bishop v. Jester, No. CIV-14-678-C, 2016 WL 3526206, at *1 (W.D. Okla. May 11, 2016), report and recommendation adopted, No. CIV-14-678-C, 2016 WL 3546419 (W.D. Okla. June 23, 2016); Ray v. Dep’t of Corr., No. CIV-14-735-C, 2016 WL 1212773, at *6 (W.D. Okla. Mar. 2, 2016), report and recommendation adopted sub nom. JAMES PRESTON RAY, Plaintiff, vs. DEPARTMENT OF CORRECTIONS, et al., Defendants., No. CIV-14-735-C, 2016 WL 1228664 (W.D. Okla. Mar. 28, 2016); Coughlin v. Bear, No. CIV-15-536-R, 2016 WL 447345, at *6 (W.D. Okla. 2016), report and recommendation adopted, No. CIV-15-536-R, 2016 WL 447744 (W.D. Okla. Feb. 4, 2016); Beals v. Webb, No. CV 15-194-C, 2015 WL 8654450, at *1 (W.D. Okla. Nov. 24, 2015), report and recommendation adopted, No. CIV-15-194-C, 2015 WL 8678409 (W.D. Okla. Dec. 11, 2015); Burghart v. O’Keefe, No. CIV-15-445-C, 2015 WL 9208842, at *4 (W.D. Okla. Oct. 30, 2015), report and recommendation adopted, No. CIV-15-445-C, 2015 WL 9095029 (W.D. Okla. Dec. 16, 2015); Kirbo v. Patton, No. CIV-15-583-W, 2015 WL 7294389, at *1 (W.D. Okla. Oct. 28, 2015), report and recommendation adopted, No. CIV-15-583-W, 2015 WL 7303553 (W.D. Okla. Nov. 18, 2015); Bishop v. Stewart, No. CIV-14-775-C, 2015 WL 7767264, at *3 (W.D. Okla. Oct. 16, 2015), report and recommendation adopted, No. CIV-14-775-C, 2015 WL 7779696 (W.D. Okla. Dec. 2, 2015); Barber v. Sutmiller, No. CIV-15-78-C, 2015 WL 5472508, at *3 (W.D. Okla. July 31, 2015), report and recommendation adopted, No. CIV-15-78-C, 2015 WL 5472940 (W.D. Okla. Sept. 17, 2015); Williams v. Cox, No. CIV-13-0971-F, 2015 WL 159053, at *1 (W.D. Okla. Jan. 8, 2015); Smith v. Jones, No. CIV-12-1365-HE, 2014 WL 5448890, at *3 (W.D. Okla. Oct. 23, 2014), aff’d, 606 F. App’x 899 (10th Cir. 2015); Darnell v. Jones, No. CIV-12-1065-M, 2014 WL 4792144, at *2 (W.D. Okla. Sept. 24, 2014), aff’d, 610 F. App’x 720 (10th Cir. 2015); Craft v. Glob. Expertise in Outsourcing, No. CIV-12-1133-R, 2014 WL 4699614, at *4 (W.D. Okla. Sept. 19, 2014), aff’d sub nom. Craft, Jr. v. Glob. Expertise in Outsourcing, 601 F. App’x 748 (10th Cir. 2015); Davis v. Corr. Corp. of Am., No. CIV-13-1174-HE, 2014 WL 4716332, at *1 (W.D. Okla. July 30, 2014), report and recommendation adopted, No. CIV-13-1174-HE, 2014 WL 4716209 (W.D. Okla. Sept. 22, 2014); Farris v. Frazier, No. CIV-12-1099-W, 2014 WL 3749142, at *2 (W.D. Okla. July 29, 2014), aff’d, 599 F. App’x 851 (10th Cir. 2015); Hill v. Cates, No. CIV-13-1126-D, 2014 WL 2865920, at *1 (W.D. Okla. June 24, 2014); Failes v. Garfield Cty. Bd. of Cty. Comm’rs, No. CIV-13-0638-HE, 2014 WL 2712276, at *1 (W.D. Okla. June 16, 2014); Parkins v. Logan Cty., No. CIV-14-72-M, 2014 WL 2504517, at *1 (W.D. Okla. June 3, 2014); Free v. Stebens, No. CIV-13-14-F, 2014 WL 800915, at *6 (W.D. Okla. Feb. 28, 2014); Adams v. Sutmiller, No. CIV-10-920-F, 2014 WL 584749, at *2 (W.D. Okla. Feb. 12, 2014), aff’d sub nom. Adams v. Jones, 577 F. App’x 778 (10th Cir. 2014); Large v. Beckham Cty. Dist. Court, No. CIV-13-1276-F, 2014 WL 235477, at *1 (W.D. Okla. Jan. 22, 2014); Gray v. Ritter, No. CIV-11-1446-F, 2014 WL 37745, at *4 (W.D. Okla. Jan. 6, 2014); Gist v. Anderson, No. CIV-12-1208-HE, 2013 WL 6909470, at *2 (W.D. Okla. Dec. 30, 2013); Klein v. Gwinn, No. CIV-13-1207-HE, 2013 WL 6844276, at *2 (W.D. Okla. Dec. 27, 2013).  But see Savage v. Troutt, No. CIV-15-670-HE, 2016 WL 8711398, at *1 (W.D. Okla. Aug. 12, 2016), report and recommendation adopted as modified, No. CIV-15-0670-HE, 2016 WL 5107068 (W.D. Okla. Sept. 20, 2016) (recommending partial denial of defendant’s motion for summary judgment); Moore v. Pantoja, No. CIV-15-688-HE, 2016 WL 4493849, at *1 (W.D. Okla. July 26, 2016) (recommending denial of defendant’s motion for summary judgment); Young v. Rios, No. CIV-15-641-R, 2016 WL 1626609, at *5 (W.D. Okla. Mar. 10, 2016), report and recommendation adopted, No. CIV-15-641-R, 2016 WL 1611496 (W.D. Okla. Apr. 21, 2016).

[18] See, e.g., Williams v. Ormand, No. CIV-15-1288-HE, 2016 WL 6157651, at *1 (W.D. Okla. July 8, 2016), report and recommendation rejected, No. CIV-15-1288-HE, 2016 WL 6157429 (W.D. Okla. Oct. 21, 2016); Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674, at *15 (W.D. Okla. Mar. 31, 2015), report and recommendation adopted in part, rejected in part, No. CIV-13-926-R, 2015 WL 3989137 (W.D. Okla. June 30, 2015); Jennings v. Dowling, No. CIV-14-335-C, 2015 WL 12915602, at *1 (W.D. Okla. Mar. 3, 2015), report and recommendation rejected, No. CIV-14-335-C, 2015 WL 12915603 (W.D. Okla. Mar. 31, 2015); Ford v. GEO Grp. Inc., No. CIV-13-1013-R, 2014 WL 4929443, at *1 (W.D. Okla. Aug. 8, 2014), report and recommendation rejected, No. CIV-13-1013-R, 2014 WL 4929334 (W.D. Okla. Sept. 30, 2014).

[19] Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674 (W.D. Okla. Mar. 31, 2015).

[20] See id.

[21] Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674, at *15 (W.D. Okla. Mar. 31, 2015), report and recommendation adopted in part, rejected in part, No. CIV-13-926-R, 2015 WL 3989137 (W.D. Okla. June 30, 2015).

[22] See Ford v. GEO Grp. Inc., No. CIV-13-1013-R, 2014 WL 4929443, at *1 (W.D. Okla. Aug. 8, 2014), report and recommendation rejected, No. CIV-13-1013-R, 2014 WL 4929334 (W.D. Okla. Sept. 30, 2014).

[23] American Bar Association Standing Committee on the Federal Judiciary, What It Is and How It Works, at 3, https://www.americanbar.org/content/dam/aba/migrated/scfedjud/federal_judiciary09.authcheckdam.pdf.

[24] Charlie Savage, Ratings Shrink President’s List for Judgeships, N.Y. Times, Nov. 22, 2011, http://www.nytimes.com/2011/11/23/us/politics/screening-panel-rejects-many-obama-picks-for-federal-judgeships.html.  

Judge Terry Moorer – Nominee to the U.S. District Court for the Southern District of Alabama

Judge Terry Moorer, a U.S. Magistrate Judge in the Middle District of Alabama, is a man of many firsts.  He is President Trump’s first African American nominee to the federal bench.[1]  He is also the first African American nominee to the Alabama federal bench named by a Republican President, and the first Republican-appointed African American nominee since Judge C. Darnell Jones in 2008.  He would also be the first African American judge on the U.S. District Court for the Southern District of Alabama.  The historic nature of his nomination aside, Moorer may draw questions about his conduct in a politically charged case involving Alabama gambling.

Background

Terry Fitzgerald Moorer was born in Greenville, AL in 1961.  After getting an associate’s degree from Marion Military Institute in 1979, Moorer received a B.A. from Huntingdon College in 1983.   Moorer immediately proceeded to the University of Alabama Farrow School of Law, graduating in 1986.  While a law student, Moorer clerked for Justice Samuel A. Beatty on the Alabama Supreme Court.

After getting his J.D., Moorer joined the Office of the Staff Judge Advocate at Fort Rucker.  After four years there, Moorer joined the U.S. Attorney’s Office for the Middle District of Alabama as an Assistant U.S. Attorney.  In 2001, Moorer became the lead of the Organized Crime and Drug Enforcement Task Force (OCDETF).

From 1990 to 2005, Moorer also served  as a Judge Advocate in the Alabama National Guard.  From 2005 to 2014, Moorer served as a Military Judge.

In 2007, Moorer was selected to be U.S. Magistrate Judge for the U.S. District Court for the Middle District of Alabama.  He continues to serve in that position.

In 2013, Moorer applied for vacancies on the U.S. District Court for the Northern District of Alabama and the Middle District of Alabama.  He interviewed with Congresswoman Terri Sewell (D-AL) and the Alabama Democratic Party, but was not selected for the vacancies.  In 2015, Moorer interviewed again with Sen. Richard Shelby (R-AL) and then-Sen. Jeff Sessions (R-AL).  Again, Moorer was nominated by the Obama Administration for any of the vacancies.

History of the Seat

The seat Moorer has been nominated for opened on June 8, 2017, with Judge William Steele’s move to senior status.  While Moorer’s nomination for an unspecified seat on the U.S. District Court for the Middle District of Alabama had been announced on May 8, the White House ended up nominated two other lawyers: Emily Coody Marks, and Brett Talley, to that court.  Moorer was instead nominated to the U.S. District Court for the Southern District of Alabama on September 7, 2017.

Political Activity

In the 1980s, Moorer served as a paid campaign aide in two campaigns.  From April 1982 to September 1982, Moorer recruited and coordinated volunteers for the gubernatorial campaign of Alabama House Speaker Joe McCorquodale.  McCorquodale ultimately lost the Democratic primary to former Governor George Wallace, who won the general election.

From April 1986 to July 1986, Moorer also served as a paid campaign aide for the campaign of Don Siegelman to be Alabama Attorney General.  Siegelman, a Democrat, was ultimately elected and went on to become Governor in 1998.

Legal Experience

Moorer’s first job out of law school was working as a Judge Advocate for the U.S. Army.  In this role, Moorer represented the command in disciplinary proceedings, including court martials.  Moorer also provided legal assistance to members of the armed forces, and represented army hospitals in medical malpractice cases.  Other than this position, most of Moorer’s career as an attorney has been as a federal prosecutor.

Moorer worked as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the Middle District of Alabama from 1990 to late 2006.  As a federal prosecutor, Moorer worked on cases involving narcotics, organized crime, firearms, fraud, immigration, gang activity, and child pornography.  Notably, early in his tenure, Moorer was the lead counsel in prosecuting PHE, one of the largest pornography distributors in the United States, for sending unsolicited material to juveniles.[2]

During his last six years as a federal prosecutor, Moorer was supervised by U.S. Attorney Leura Canary, the wife of prominent Alabama Republican Bill Canary.  As U.S. Attorney, Canary led the prosecution of then-Democratic Governor (and Moorer’s old boss) Don Siegelman on federal bribery and mail fraud charges.[3]  While the charges, which were extremely controversial and criticized for political motivation, overlapped with Moorer’s tenure at the office, there is no evidence of Moorer’s involvement in the case.

Jurisprudence

Moorer has served as a U.S. Magistrate Judge on the U.S. District Court for the Middle District of Alabama since 2007.  In this role, Moorer presides over pretrial, trial, grand jury and discovery matters.  He also hears civil trials in cases where both parties consent to his presence on the case.  In his ten years on the bench, Moorer has heard approximately 11 cases that have gotten a verdict or judgment.

Notably, Moorer presided over the deeply controversial trial of eleven defendants charged with illegally attempting to legalize gambling in Alabama.[4]  The charges drew criticism for being politically motivated, intended to hurt Democrats, and legally spurious.[5]  Moorer himself drew criticism for his refusal to call Republican Governor Bob Riley to testify in the trial, with one commentator, attorney Roger Shuler, arguing that Moorer had bent to the will of the Alabama Republican Party.[6]  Ultimately, the defendants were acquitted of all charges.[7]

As a U.S. Magistrate Judge, Moorer is called on to rule on pretrial motions in criminal cases, including motions to suppress evidence under the Fourth Amendment.  In the overwhelming majority of such motions he has reviewed, Moorer has recommended that the evidence not be suppressed.[8]  In one case, Moorer recommended that a suppression motion be denied in a case where an individual, pulled over for traffic offenses, was further detained and questioned after investigation of the traffic investigation had ended.[9]  Specifically, Moorer held that even if a constitutional violation had occurred, the “effect of suppression here would be marginal at best” in deterring future violations.[10]  Judge W. Harold Albritton declined to adopt that portion of Moorer’s reasoning, arguing that Moorer should have refrained from that “unnecessary” finding after having denied the motion to suppress.[11]

In the ten years that Moorer has served on the bench, nine of his decisions have been partially and completely reversed by a higher court.  Most notably, in one case, Moorer held that government officials were protected by qualified immunity against suit by an inmate alleging inadequate dental care.[12]  After the district court adopted Moorer’s report and recommendation, the Eleventh Circuit reversed, holding that material facts at issue in the case should have led to a denial of summary judgment.[13]

Overall Assessment

Given his long tenure as both a federal prosecutor and a U.S. Magistrate Judge, Moorer is well-prepared for the federal district court.  While Moorer’s record is fairly conservative, critics are likely to attack two aspects in particular: first, they may reiterate the allegations of bias raised against Moorer during the McGregor trial; second, they may attempt to question Moorer’s involvement, if any, in the Siegelman prosecution.

In response to these lines of inquiry, Moorer’s defenders can note that he had no involvement in the Siegelman case, and further, the acquittals in McGregor show Moorer’s ultimate fairness to the defendants.

Overall, the odds lean in favor of Moorer’s confirmation, which would give the U.S. District Court for the Southern District of Alabama its first African American federal judge.


[1] Kent Faulk, Trump Nominates Black Alabama Judge to Federal Bench, AL.com, Sept. 7, 2017, http://www.al.com/news/birmingham/index.ssf/2017/09/african_american_nominated_by.html.

[2] United States v. PHE, 2:93-cr-329-ID (M.D. Ala. 1993).

[3] Scott Pelley, Did Ex-Alabama Governor Get a Raw Deal?, 60 Minutes, Feb. 21, 2008, https://www.cbsnews.com/news/did-ex-alabama-governor-get-a-raw-deal/.  

[4] United States v. McGregor, Crim. Act. No. 2:10-cr-0186-MHT (M.D. Ala. 2011).  

[5] See Roger Shuler, Leura Canary’s “October Suprise” Becomes Reality, Legal Schnauzer, Oct. 4, 2010, https://legalschnauzer.blogspot.com/2010/10/leura-canarys-october-surprise-becomes.html.  See also BMAZ, Leura Canary Strikes Again: Alabama Bingo Arrests, Shadowproof, Oct. 4, 2010, https://shadowproof.com/2010/10/04/leura-canary-strikes-again-alabama-bingo-arrests/.  

[6] Roger Shuler, Is That Racism Hanging in the Air at the Federal Bingo Trial in Alabama, Legal Schnauzer, June 16, 2011, https://legalschnauzer.blogspot.com/2011/06/is-that-racism-hanging-in-air-at.html.  See also Bob Martin, Was Federal Court’s Table Set, The Tuskegee News, Nov. 18, 2010, http://www.thetuskegeenews.com/opinion/was-federal-court-s-table-set/article_7ecd8108-9586-5a36-ba85-667b0b0f93a8.html.  

[7] Kim Chandler, Milton McGregor, Five Others Acquitted in Alabama Gambling Trial, AL.com, March 8, 2012, http://blog.al.com/spotnews/2012/03/milton_mcgregor_5_others_acqui.html.  

[8] See, e.g., United States v. Cruz, 2017 WL 1745066 (M.D. Ala. April 17, 2017); United States v. Hughes, 2016 WL 6305963 (M.D. Ala. Oct. 27, 2016); United States v. Terry, 2015 WL 5852947 (M.D. Ala. Oct. 7, 2015); United States v. King, 2015 WL 4620530 (M.D. Ala. June 30, 2015); United States v. Nevels, 2014 WL 272309 (M.D. Ala. Jan. 23, 2014); United States v. McCall, 2014 WL 65738 (M.D. Ala. Jan. 8, 2014); United States v. Tears, 2012 WL 6568545 (M.D. Ala. Dec. 17, 2012); United States v. Vaught, 2012 WL 3670652 (M.D. Ala. July 26, 2012); United States v. Lovvorn, 2012 WL 3743975 (M.D. Ala. April 24, 2012); United States v. Thomas, 2010 WL 5579877 (M.D. Ala. Dec. 29, 2010); United States v. Guice, 2010 WL 5575287 (M.D. Ala. Nov. 30, 2010); United States v. Bruce, 2010 WL 3730149 (M.D. Ala. Aug. 31, 2010); United States v. Turner, 2010 WL 3880043 (M.D. Ala. Aug. 4, 2010); United States v. Thoussaint, 2010 WL 447107 (M.D. Ala. Feb. 4, 2010); United States v. Nelb, 2009 WL 4666868 (M.D. Ala. Dec. 2, 2009); United States v. DeJesus, 2009 WL 3488690 (M.D. Ala. Oct. 22, 2009); United States v. Rendon, 2009 WL 3052277 (M.D. Ala. Sept. 21, 2009); United States v. Brooks, 2009 WL 2960378 (M.D. Ala. Sept. 10, 2009); United States v. Hall, 2009 WL 2132702 (M.D. Ala. July 14, 2009).  But see United States v. Smith, 694 F. Supp. 2d 1242 (M.D. Ala. 2009) (adopting report and recommendation by Moorer granting motion to suppress in part); United States v. Mock, 2012 WL 7988590 (M.D. Ala. Nov. 29, 2012) (granting motion to suppress in part).

[9] United States v. Williams, 2010 WL 5579879 (M.D. Ala. Dec. 6, 2010).

[10] Id. at *3.

[11] See United States v. Williams, 2011 WL 124508 (M.D. Ala. Jan. 14, 2011).

[12] Iacullo v. United States, 2:10-cv-589-TMH, 2014 WL 2861427 (M.D. Ala. June 24, 2014).

[13] See Iacullo v. United States, 657 F. App’x 916 (11th Cir. 2016).

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

Eleven New Nominations to the District Court Announced

In a much needed and welcome move, the Trump Administration announced the nominations of 11 candidates to fill vacancies on U.S. District Courts.  The nominees are:

Annemarie Carney Axon, a Birmingham attorney, and Judge Liles C. Burke of the Alabama Court of Criminal Appeals were nominated for the U.S. District Court for the Northern District of Alabama.

Judge Tripp Self III of the Georgia Court of Appeals was nominated for the U.S. District Court for the Middle District of Georgia.

Michael Lawrence Brown, a partner in the Atlanta office of Alston & Bird LLP, and Judge Billy McCrary Ray II of the Georgia Court of Appeals, were nominated for the U.S. District Court for the Northern District of Georgia.

Judge Charles Barnes Goodwin, a federal magistrate judge, was nominated for the U.S. District Court for the Western District of Oklahoma.

Thomas Alvin Farr, a Raleigh attorney, was nominated for the U.S. District Court for the Eastern District of North Carolina.  Farr had previously been nominated to fill the same vacancy during the Bush Administration.

Chip Campbell Jr. and Eli Richardson, both Nashville attorneys in private practice, were nominated for the U.S. District Court for the Middle District of Tennessee.

Mark Norris, the currently serving Tennessee Senate Majority Leader, and Thomas Lee Robinson Parker, a Memphis attorney, were nominated for the U.S. District Court for the Western District of Tennessee.