Kyle Duncan – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)[6] for Louisiana’s AG’s office from 2008-2012.[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)[12] and of the Knights of Columbus,[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016.  Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, [16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was  “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.[18] In the motion, Duncan also  repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,[31] and the case is on appeal for the second time to the Fifth Circuit.[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),[43] Zubik (contraception),[44] Trinity Lutheran (religious funding),[45] Windsor and Obergefell (marriage for same-sex couples),[46] and others.

Duncan has written and spoken most often on the contraception mandate.[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.


[1] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[2] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, 4-5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[3] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[4] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2-3, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[5] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[6] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[7] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[8] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[9] https://www.becketlaw.org/about-us/mission/.

[10] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[11] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[12] https://fedsoc.org/.

[13] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[14] http://www.kofc.org/un/en/todays-knights/what-we-do.html.

[15] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 30, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[16] 1:16-cv-236-TDS-JEP (M.D.N.C.).

[17] https://www.aclu.org/legal-document/carcano-et-al-v-mccrory-et-al-complaint.

[18] ECF No. 34 at 2 (PDF p. 8), in 1:16-cv-236-TDS-JEP (M.D.N.C.)..

[19] ECF No. 34 at 2-3 (PDF pp. 8-9), in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[20] ECF No. 127, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[21] E.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[22] E.g., Stone v. Trump, No. CV MJG-17-2459, 2017 WL 5589122 (D. Md. Nov. 21, 2017); Doe 1 v. Trump, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015); see also Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[23] ECF No. 103 at 87-88, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[24] ECF No. 103 at 89, in 1:16-cv-236-TDS-JEP (M.D.N.C.) (emphasis added).

[25] Resp. to Pet. for Writ of Cert. at 2-3 (PDF. pp. 11-12), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[26] Resp. to Pet. for Writ of Cert. at 9, 12-14 (PDF. pp. 18, 21-23), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[27] 136 S.Ct. 1017 (2016).

[28] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[29] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[30] http://www.scotusblog.com/wp-content/uploads/2016/02/15-274-bsac-AAPS.pdf.

[31] ECF No. 274, in 3:14-cv-525-JWD-RLB (M.D. La.).

[32] No 17-30397 (5th Cir.).

[33] ECF No. 274 at 67 ¶ 230, in 3:14-cv-525-JWD-RLB (M.D. La.).

[34] ECF No. 274 at 70 ¶¶ 240, 242, in 3:14-cv-525-JWD-RLB (M.D. La.).

[35] Holt v. Hobbs, 135 S. Ct. 853 (2015).

[36] 2016 WL 1377728.

[37] 2009 WL 2564713.

[38] 2015 WL 1608213.

[39] http://www.scotusblog.com/wp-content/uploads/2017/01/16-833-cert-petition.pdf.

[40] 2015 WL 5064004.

[41] 563 U.S. 51 (2011).

[42] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[43] https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/hobby-lobby-spells-doom-for-mandate-20.

[44] https://www.schaerr-duncan.com/supplemental-briefs-in-zubik-v-burwell.

[45] https://www.schaerr-duncan.com/trinity-lutheran-church-v-pauley.

[46] https://www.schaerr-duncan.com/symposium-overruling-windsor; http://www.thepublicdiscourse.com/2015/04/14894/.

[47] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 6-7, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[48] https://www.firstthings.com/article/2013/10/how-fares-religious-freedom.

[49] http://www.ncregister.com/daily-news/the-other-health-care-mandate-good-samaritan-turned-upside-down.

[50] Kyle Duncan, Obergefell Fallout, in Same-Sex Marriage: A Reference Handbook, 2nd Edition, at 132 (preview available on Google Books).

[51] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[52] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[53] Kyle Duncan, Misunderstanding Freedom from Religion: Two Cents on Madison’s Three Pence, 9 Nev. L.J. 32 (2008).

[54] Kyle Duncan, Bringing Scalia’s Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 (2007).

[55] Kyle Duncan, Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).

[56] Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 497 (2003).

Judge Robert Summerhays – Nominee for the U.S. District Court for the Western District of Louisiana

Like Dan Domenico and Dominic Lanza before him, Judge Robert Summerhays is a Trump district court nominee who was originally considered for the Court of Appeals.  While Summerhays was ultimately not selected for the Fifth Circuit (the Administration chose Kyle Duncan), he is now pending appointment to the Western District of Louisiana.

Background

Robert Rees Summerhays was born on September 10, 1965 in Fort Worth, Texas.  Summerhays attended the University of Texas at Austin, graduating with high honors in 1989, and then joined the U.S. General Accounting Office in Dallas as an evaluator.[1]

After two years in Dallas, Summerhays enrolled at the University of Texas at Austin Law School, graduating with high honors in 1994.[2]  He then clerked for Judge Eugene Davis on the U.S. Court of Appeals for the Fifth Circuit.[3]  After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP as an associate.  In 2003, he became a partner at the firm.[4]

In 2006, Summerhays was named a Bankruptcy Judge on the U.S. Bankruptcy Court for the Western District of Louisiana.[5]  He still serves on that court today.  He also served as Chief Bankruptcy Judge from 2009 to 2017.[6]

History of the Seat

Summerhays has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana.  The Western District is facing a vacancy crisis, with four of the seven allotted judgeships for the District currently vacant, and only two nominees pending.[7]  This crisis was exacerbated by the Republican Senate’s failure to confirm any Obama nominations to Louisiana seats in the 114th Congress.

The vacancy Doughty has been nominated to fill opened on June 5, 2017, when Judge Rebecca Doherty moved to senior status.  However, Summerhays was actually recommended by Louisiana senators Bill Cassidy and John Kennedy for appointment to the U.S. Court of Appeals for the Fifth Circuit seat vacated by Judge Eugene Davis.[8]  In his interview with the White House, Summerhays expressed his willingness to take a District Court appointment if the White House chose not to nominate him for the Court of Appeals.[9]  Sure enough, the Trump Administration nominated conservative lawyer Kyle Duncan for the Fifth Circuit and tapped Summerhays for the Western District.

Legal Experience

After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP, working in complex commercial litigation and securities litigation.[10]  Among the more prominent cases he handled at the time, Summerhays represented Ernst & Young in defending against a securities class actions suit, managing the litigation until the ultimate dismissal by Judge Sam Lindsay.[11]  He also represented the plaintiff in a state-law antitrust action against United Technologies Corporation, leading to a verdict for his client.[12]

Summerhays also handled many mediations, arbitrations, and other alternative dispositions.  Notably, he represented Hughes Electronics in a $1 Billion arbitration action against Boeing, guiding the case to a settlement.[13]

Jurisprudence and Reversals

Summerhays serves as a Bankruptcy Judge in the Western District of Louisiana.  In that capacity, Summerhays presides over bankruptcy matters, and has supervised 232 adversary proceedings and has entered final orders in over 16,000 cases.[14]  In his twelve years on the bench, three of his decisions were substantially reversed by higher courts:

In re Vidalier[15] – The district court reversed Summerhays’ ruling that a married debtor could not file late joint tax returns after the death of his spouse for years when the spouse was alive.[16]

Joyner v. Liprie[17] – This case involved an estate action brought by a former business partner that was removed to federal court.  Summerhays declined to remand the action to state court, ruling that the causes of action brought could not be asserted by the plaintiff.[18]  The District Court declined to adopt this portion of the report, remanding the action to state court.[19]

In re Miller[20] – In this case, Summerhays ruled that 11 U.S.C. § 1325 prevented a creditor from seeking an unsecured deficiency claim.[21]  The Fifth Circuit reversed this ruling.[22]

Writings

As a young attorney, Summerhays authored an article discussing the scope of Corporate Attorney-Client privilege.[23]  In the article, Summerhays criticizes the Fifth Circuit decision in Garner v. Wolfinbarger, which created an exception to attorney-client privilege in suits where corporate shareholders were suing management in derivative suits.[24]  Summerhays notes that the “doctrinal underpinnings of the Garner exception are frustratingly ambiguous.”[25]  He also criticizes the expansion of Garner to cover non-derivative suits and suits against majority shareholders.[26]  Instead, he proposes limiting Garner only to suits where shareholders are seeking to vindicate either rights common to all shareholders or rights of the corporations.[27]  Judge James “Jimbo” Stephens ultimately ruled that Doughty was not required to recuse himself from the case.[28]

Overall Assessment

Unlike fellow nominee Michael Juneau, who faced significant opposition in the Senate Judiciary Committee, Summerhays should face a relatively easy confirmation for three reasons.  First, Summerhays has extensive experience with complex litigation including arbitrations and mediations, a good skill set for a federal trial judge.  Second, Summerhays has a long and uncontroversial record on the bench, including a very low rate of reversal.  Finally, Summerhays lacks a controversial paper trail and has managed not to offend any key judicial stakeholders.

As such, it is likely that Summerhays will be confirmed by this summer, adding another Trump appointment onto the Western District of Louisiana.


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

[2] Id. at 1.

[3] Id. at 2.

[4] Id.

[5] Id.

[6] Id.

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

[8] See Summerhays, supra n. 1 at 56.

[9] Id.

[10] See Summerhays, supra n. 1 at 44.

[11] In re Capstead Mortg. Secs. Litig., 258 F. Supp. 2d 533 (N.D. Tex. 2003).

[12] Chromalloy Gas Turbine Corp. v. United Tech. Corp., No. 95-CI-12541 (Bexas County, Tex. filed 1995).

[13] Boeing-Hughes Electronics Purchase Price Arbitration.

[14] See Summerhays, supra n. 1 at 14.

[15] 2006 WL 3873268 (Bankr. W.D. La. Dec 22, 2006), rev’d, 2008 WL 4003671 (W.D. La. Aug. 29, 2008).

[16] See id.

[17] 2012 WL 1144614 (Bankr. W.D. La. Apr. 04, 2012), report and recommendation adopted in part, rejected in part, Joyner v. S.F.L. & S.I.L., 485 B.R. 538 (W.D. La. 2013).

[18] See id.

[19] See id.

[20] No. 07-20542 (Bankr. W.D. La. Jan. 24, 2008), rev’d, 570 F.3d 633 (5th Cir. 2009).

[21] See id.

[22] See id.

[23] Robert R. Summerhays, The Problematic Expansion of the Garner v. Wolfinbarger Exception to the Corporate Attorney-Client Privilege, 31 Tulsa L.J. 275 (Winter 1995).

[24] Id. at 286.

[25] See id. at 302.

[26] See id.

[27] Id. at 315.

[28] Id.

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.  

Bending Blue Slips: What was the Need?

For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previous statements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).

Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy.  You can make arguments on either side.

Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:

  • Former Indiana Supreme Court Justice Myra Selby
  • U.S. District Court Judge Abdul Kallon
  • Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood
  • Kentucky Supreme Court Justice Lisabeth Hughes

Let’s instead focus on what I keep asking myself about Grassley’s announcement:

What was the Need?

I have yet to find the masses of Trump appellate nominees being blocked by blue slips.  Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit.  In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so.  As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips.  So, why the urgency?

Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators.  But, in his statement justifying his actions, Grassley made no mention of this.  Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.

I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate.  With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections.  Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.

At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.

 

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.