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

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

Background

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

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

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

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

History of the Seat

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

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

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

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

Legal Experience

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

Office of Legal Counsel

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

Cooper and Kirk

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

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

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

Writings

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

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

Political Activity

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

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

Overall Assessment

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

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

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

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


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

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

[3] See id. at 2.

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

[5] See id. at 2.

[6] Id.

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

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

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

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

[11] Id. at 44.

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

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

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

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

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

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

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

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

[20] See id.

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

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

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

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

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

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

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

[28] See id.

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

[30] Id. at 1279.

[31] Id. at 1307.

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

[33] See id.

[34] Id. at 23-24.

[36] Id.

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

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

David Barlow – Nominee to the U.S. District Court for the District of Utah

At first glance, the Trump Administration’s appointment of David Barlow, an Obama-era U.S. Attorney, to the federal bench may seem odd.  However, as Barlow is a conservative Republican, his nomination speaks more to the Obama Administration’s approach to appointments than to Trump’s.

Background

David Bruce Barlow was born in 1971 in Provo, UT.  Barlow attended Brigham Young University, graduating summa cum laude in 1995.  He then received his J.D. from Yale Law School in 1998.[1]

After law school, Barlow clerked for Judge Peter Dorsey in the U.S. District Court for the District of Connecticut and then joined Lord Bissell & Brook in Chicago as an Associate.[2]  In 2000, Barlow moved to Sidley Austin in Chicago, where he became a partner in 2006.

In 2011, the newly elected Sen. Mike Lee asked Barlow to move to D.C. as his Chief Counsel.[3]  Shortly after, President Obama chose Barlow to be U.S. Attorney for the District of Utah.  The pick was controversial, largely because Obama bypassed the recommendations of several Democrats from U.S. Rep. Jim Matheson to name Barlow, and because Barlow had no experience with criminal law.[4]  Barlow left the U.S. Attorney’s Office in 2014 to rejoin Sidley Austin as a Partner.

In 2016, Barlow applied to be a judge on the Utah Court of Appeals.  While he was selected as a finalist for the seat, he was not picked by Gov. Gary Herbert, who chose Judge David Mortensen and attorney Jill Pohlman instead.[5]

In 2017, Barlow joined WalMart as Vice President of Compliance and, in 2018, returned to Utah to be a Partner at Dorsey & Whitney LLP, where he serves currently.

History of the Seat

Barlow has been nominated for a vacancy on the U.S. District Court for the District of Utah.  This seat was opened by Judge Clark Waddoups’ move to senior status on January 31, 2019.  He was directly contacted by Lee and the White House in early 2019 to gauge his interest in the judgeship and was nominated in May after an unusually swift vetting process.

Legal Experience

Barlow’s legal career can be divided into two halves for analysis: his time as a U.S. Attorney; and his work in private practice.

U.S. Attorney

From 2011 to 2014, Barlow served as U.S. Attorney for the District of Utah, supervising the federal prosecutor’s office on behalf of Attorney General Eric Holder.  As U.S. Attorney, Barlow led his office in a series of high profile prosecutions, including securing convictions against members of the Tongan Crip gang.[6]

However, Barlow’s tenure was not without controversy.  Notably, Barlow’s office was pushed to recuse itself from investigating Utah Attorney General John Swallow in favor of the DOJ Public Integrity Division.[7]  Additionally, Barlow’s office was sharply criticized by Judge Waddoups in a different case for their conduct, with the judge stating that prosecutors had failed to “conform their own conduct to the Constitution, the applicable ethical standards, rules and statutes.”[8]  Furthermore, Barlow’s office was criticized for settling criminal charges based on the Crandall Canyon Mine collapsed for two misdemeanor pleas and a $500,000 fine.[9] 

Private Practice

From 1998 to 2010 and since 2014, Barlow has worked in private practice, largely focused on complex civil actions.  Notably, Barlow represented the drug manufacturer AstraZeneca in defending against actions filed against it based on the drug Seroquel, which was alleged to cause diabetes.[10]  The action eventually ended with a jury verdict in AstraZeneca’s favor.  In another matter, Barlow represented General Electric (GE) in defending against lawsuits suggesting that asbestos exposure had caused plaintiffs to develop mesothelioma.[11]

Political Activity

Barlow is a Republican and was a supporter of Lee in his campaigns.[12]

Overall Assessment

Barlow comes to the confirmation process with extensive experience with both civil and criminal litigation.  Furthermore, Barlow’s work in the Obama Administration and his enthusiastic endorsement of Loretta Lynch to be Attorney General in 2015 may blunt charges that he is a doctrinaire conservative.  As such, while Barlow may draw questions regarding his tenure as a U.S. Attorney, he should be able to avoid the controversy drawn by previous Utah nominee Howard Nielson.


[1] Sen. Comm. on the Judiciary, 115th Cong., David B. Barlow Jr.: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Matt Canham, Lee Picks Top Lobbyist to Lead Its Staff, Salt Lake Tribune, Nov. 11, 2010.

[4] See Matt Canham, Obama Picks Republican Barlow As U.S. Attorney For Utah, Salt Lake Tribune, Aug. 4, 2011.

[5] Nominees Announced For Two Utah Court of Appeals Vacancies, Salt Lake Tribune, Mar. 29, 2016.

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

[7] Dennis Romboy, U.S. Attorney For Utah Removed From Swallow Investigation, Deseret Morning News, May 6, 2013.

[8] Tom Harvey, How Rick Koerber Beat Federal Charges Alleging a Ponzi Scheme, Salt Lake Tribune, Aug. 25, 2014 (quoting Judge Clark Waddoups).

[9] Mike Gorrell, Crandall Canyon: Fines Don’t Satisfy Families of Mine Disaster Victims, Salt Lake Tribune, Mar. 11, 2012.

[10] Baker v. AstraZeneca Pharms. LP, MIDL 1099 07 MT 274 (N.J. Super. Ct.).

[11] In re Asbestos Litig., 77-C-ASB-2 (Del. Super. Ct.).

[12] See Barlow, supra n. 1 at 17.

The Irony of Michael Bogren’s Defeat

Early in the Trump Administration, a judicial nominee with strongly conservative credentials faced critical questioning from senators regarding a motion he had filed in a case involving LGBTQ rights.  In response to questioning, he noted:

“The views I express in litigation are those of my clients.”

The nominee in question is Howard Nielson, the Utah attorney whose involvement in defending California’s Proposition 8 was deeply controversial.  Nielson was ultimately confirmed this year by a narrow margin but his battle has a curious coda.  Just as Nielson took the bench in Utah, another nominee, Michael Bogren, withdrew his nomination to a U.S. District Court seat.  The reason: his defense of an East Lansing ordinance that barred businesses that discriminated against LGBT customers from taking part in city events.

Bogren went down, essentially, for engaging in the practice of law, which requires lawyers to make reasonable arguments on behalf of their clients.  Others on both sides of the aisle, including Bogren himself, have pointed out the absurdity of the attacks on Bogren.  Rather than reiterate those points, I’ll focus on a unique irony.

Bogren’s nomination was the result of a detailed negotiation between the White House and Michigan’s Democratic senators.  The negotiations lasted over two years before they produced the nominations package of Bogren and Judge Stephanie Davis (nominated for the Eastern District of Michigan).  Now, Bogren’s withdrawal costs the White House half of their deal.  More specifically, it costs them the conservative half of the deal.

Bogren, derailed by Sen. Josh Hawley and other conservatives, was a member of both the Federalist Society and the Republican National Lawyers Association.  Furthermore, he has contributed solely to Republicans including Presidential candidates John McCain and John Kasich, and the Republican National Committee.  In contrast, almost every single Republican who objected to Bogren had no problem approving Davis, who conducted election protection for the Obama campaign and served on the transition committee of former Detroit mayor Dennis Archer.

This is not to say that Davis, who has an impressive resume, should be opposed.  Rather, it is to note the absurdity of judging a nominee’s entire career by three lines in a legal brief.  It is also telling that Bogren was opposed for defending a municipal government’s right not to support businesses who discriminate, and not for, in another case, representing the Bay View Association, a Methodist resort association, which barred a Jewish buyer from purchasing property.

In any case, Bogren is not likely to be forgotten.  Democrats are sure to chant his name as a talisman the next time Republicans complain that a Trump nominee is being judged on the basis of his advocacy rather than his ability.

 

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.

 

Nominations – Sept. 28, 2017

Today, the White House announced nine new judicial nominations (seven to lifetime appointments).  The new nominees are:

Barry Ashe, a New Orleans based civil litigator, has been nominated to the U.S. District Court for the Eastern District of Louisiana.

Daniel Domenico, the former Solicitor General of Colorado, has been nominated to the U.S. District Court for the District of Colorado.

Stuart Kyle Duncan, an appellate attorney and former counsel for the Becket Fund for Religious Liberty, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Judge Kurt Engelhardt, a federal district judge appointed by President George W. Bush, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

James Ho, a partner in the Dallas Office of Gibson Dunn, and the former Solicitor General of Texas, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Ryan T Holte, a professor at the University of Akron School of Law, has been nominated to the U.S. Court of Federal Claims.

Gregory E. Maggs, the Arthur Selwyn Miller Research Professor of Law at the George Washington University Law School, has been nominated to the U.S. Court of Appeals for the Armed Forces. (Full disclosure, Maggs taught me in law school, wrote several of my clerkship recommendations, and remains a mentor.)

Howard Nielson, a former Deputy Assistant Attorney General in the Department of Justice, has been nominated to the U.S. District Court for the District of Utah.

Justice Don Willett, currently serving on the Texas Supreme Court, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.