Justice David R. Stras – Nominee to the U.S. Court of Appeals for the Eighth Circuit

At 43 years old, Justice David Stras is the youngest appellate nominee put forward by the Trump Administration.  Despite his youth, Stras, who has spent seven years on the Minnesota Supreme Court, has both the academic and judicial qualifications for the job.  However, the Trump Administration’s failure, once again, to preclear Stras’ nomination with Minnesota’s senators could jeopardize a comfortable confirmation.

Background

David Ryan Stras was born in Wichita, Kansas on July 4, 1974.  After getting a B.A. with highest distinction at the University of Kansas, Stras attended the University of Kansas School of Law for a joint JD/MBA program.  After graduating, Stras clerked for Judge Melvin Brunetti at the U.S. Court of Appeals for the Ninth Circuit, and then for conservative superstar Judge J. Michael Luttig with the U.S. Court of Appeals for the Fourth Circuit.  After his clerkship, Stras was hired as an associate at the Washington D.C. Office of Sidley Austin LLP.

In 2002, Stras left Sidley to take a prestigious clerkship with Supreme Court Justice Clarence Thomas.  After clerking for Thomas, Stras moved to the University of Alabama School of Law as a Hugo Black Faculty Fellow, teaching Federal Jurisdiction and Law and Economics.  After his fellowship, Stras was hired as an Associate Professor of Law at the University of Minnesota Law School, where Stras taught Federal Jurisdiction and Constitutional Law.

In 2010, Stras was tapped by Republican Governor Tim Pawlenty for an opening on the Minnesota Supreme Court.[1]  The appointment drew criticism both for Stras’ age (35) and inexperience, and for the timing of the appointment, coming shortly after the Supreme Court had narrowly rejected Pawlenty’s use of unallotments to reduce state spending.[2]  Stras was subsequently elected to a six year term on the court and currently serves as a supreme court justice.[3] 

History of the Seat

Stras was tapped for a Minnesota seat on the U.S. Court of Appeals for the Eighth Circuit vacated by Judge Diana Murphy.  Murphy, a centrist voice on the court who was tapped for the U.S. District Court for the District of Minnesota by President Jimmy Carter, and elevated to the Eighth Circuit by President Bill Clinton in 1994, moved to senior status on Nov. 29, 2016.  

Stras, who was on President Trump’s shortlist for the Supreme Court vacancy created by the death of Justice Antonin Scalia,[4] was contacted regarding his interest in the Minnesota seat in January 2017.  He interviewed with the White House Counsel in March and was formally nominated on May 8, 2017.  Stras’ nomination was met with skepticism by Minnesota Senators Amy Klobachar and Al Franken, who indicated that they were not meaningfully consulted about Stras prior to the nomination.[5]

Political Activity

Minnesota Supreme Court justices are elected to 6-year terms in nonpartisan elections.  In theory, this allows candidates to run for open seats.  However, since 1992, every new justice has been appointed by the Minnesota Governor and has run as an incumbent.  In 2012, Stras was challenged for a full six year term by magistrate judge Tim Tingelstad and attorney Alan Nelson.  Stras led the first round of balloting with 49% of the vote, and faced Tingelstad who received 29%.  

In the general election, Stras emphasized his apolitical nature, and the bipartisan support he had received, while Tingelstad pushed for the elimination of court appointments.[6]  Faith became a dividing line between the candidates, as Tingelstad emphasized his Christian faith, while Stras, who is Jewish, stated “I do not think that God dictates any of my decisions.”[7]  In the general election, Stras defeated Tingelstad, taking 56% of the vote.[8]

Other than his run for judicial office, Stras has minimal involvement with electoral politics.  His only involvement with campaigns involved attending fundraising events for Gov. Pawlenty in the years before his appointment to the Supreme Court.

Legal Career

Having spent most of his legal career either as an academic or as a jurist, Stras has comparatively little experience in the practice of law.  Stras’ litigation experience consists of one year as an associate at Sidley Austin LLP., and one year serving as Of Counsel in the Minneapolis office of Faegre Baker Daniels LLP.  During his time at Sidley, Stras worked on white collar criminal defense and the representations of telecommunications, railroads, and utilities on appeal.  At Faegre, Stras served as an advisor on appellate and federal court matters, including the representation of a mortgage company seeking to foreclose on homes in Minnesota.[9]

Jurisprudence

Stras has served on the Minnesota Supreme Court for approximately seven years, hearing appeals from the Minnesota lower courts, and serving as the final voice on Minnesota state law. During his tenure, Stras has developed a reputation as an idiosyncratic conservative, frequently staking out liberal positions in dissent.[10]  Below are some patterns drawn from his jurisprudence.

Limited View of a Judge’s Role

Throughout his tenure, Stras has frequently written concurrences and dissents criticizing his colleagues for departing from the appropriate “role of a judge.”  In doing so, Stras has criticized equitable, judge-made doctrines that seek to remedy wrongdoing.  Stras has been particularly critical of the “interests of justice” standard, noting in one case:

“…I continue to doubt our authority to reduce sentences or reverse convictions in the interests of justice or under some comparable, “highly subjective” power…”[11]

In another case, the Minnesota Supreme Court held that the Minnesota Department of Health must comply with the informed consent provisions of the Genetic Privacy Act before collecting blood samples from newborn children to screen for diseases.[12]  In dissent, Stras noted:

“In my view, the court reaches the correct policy result. If I were a legislator, I would vote for legislation protecting blood samples under the Genetic Privacy Act. However, my role as a judge is not to implement my own policy preferences, but to interpret the law as written.”[13]

Strictness on Jurisdiction and Timeliness

Stras has also taken a very narrow view of the Minnesota Supreme Court’s jurisdiction, frequently arguing that cases should be dismissed for lack of jurisdiction, untimeliness, or mootness.[14]

For example, in one case, Stras lambasted his colleagues for deciding an appeal he deemed untimely:

“The court’s rule in the decision we announce today can be boiled down to the following proposition: we may treat the time limits for filing an appeal as optional in some cases and mandatory in others, depending on our intuition about whether judicial economy favors review.”[15] 

Similarly, Stras notes in another case:

“The majority undoubtedly addresses an issue of great importance for sexual assault prosecutions in Minnesota. The majority does so, however, in a case over which we have no jurisdiction.”[16]

Willingness to Enforce Criminal Procedural Rules

Despite his conservative background, Stras’ jurisprudence is relatively friendly to those charged with crimes, interpreting the Fourth, Fifth, and Sixth Amendments and their protections strictly.

Like most judges, Stras has generally affirmed convictions against procedural arguments.[17]  However, compared to his colleagues, Stras has frequently found the violation of criminal defendants’ procedural rights.  In State v. Bernard, Stras dissented from a 5-2 decision holding that compelled breath tests looking for alcohol did not violate the Fourth Amendment.[18]  Similarly, in State v. Brooks, Stras wrote in dissent that a driver did not voluntarily consent to a blood and urine test.[19]  Specifically, Stras noted:

“It is hard to imagine how Brooks’ consent could have been voluntary when he was advised that refusal to consent to a search is a crime.”[20] 

In another case, Stras held that a defendant had a Sixth Amendment right to have a jury, not a judge, determine his statutory “risk level” for sentencing purposes.[21]  In yet another case, Stras joined a dissent arguing that a 21-month delay violated a defendant’s speedy trial rights under the Sixth Amendment.[22]

However, in a few cases, Stras has disagreed with colleagues who have overturned the convictions of defendants.[23]  In one case, Stras found that a defendant’s waiver of counsel should be treated as knowing and voluntary even after a significant charging change by the prosecution.[24]  In another case, Stras disagreed with the court majority in their ruling that the state’s attempt to interfere in the testimony of a defense expert witness required reversal of the conviction.[25]

Reluctance to Grant Postconviction Relief

While Stras has been willing to find for criminal defendants whose procedural rights were violated, he is much less friendly to defendants challenging their convictions based on trial errors or evidentiary issues.  Specifically, Stras has rejected claims based on prosecutorial misconduct,[26] incorrect evidentiary rulings,[27] or sufficiency of the evidence.[28]  Stras is particularly willing to dismiss collateral challenges as procedurally barred.[29]

However, Stras has shown a willingness to reverse convictions that rely on jury instructions that misstate the elements of the offense or the burden of proof.[30]

Reversals

The Minnesota Supreme Court, on which Stras serves, is the final authority on the interpretation of the Minnesota Constitution and statutes.  As such, the only decisions of the Minnesota Supreme Court that can be appealed to the U.S. Supreme Court are interpretations of the U.S. Constitution or federal law.  

During Stras’ seven year tenure on the bench, none of his opinions have been reversed by the Supreme Court.  However, the Supreme Court did indirectly reverse Stras’ view in one case.

State v. Bernard was a challenge to a Minnesota law making it a crime to refuse to take a chemical test to detect alcohol in a DWI case.  Bernard challenged the statute as a violation of his due process rights, as the search itself was unreasonable under the Fourth Amendment.  The Minnesota Supreme Court, in a 5-2 opinion, upheld the law, arguing that chemical tests are a proper search incident-to-arrest and as such, criminalizing the refusal of the search did not implicate due process rights.[31]  In a joint dissent, Stras and Justice Alan Page sharply criticized the majority’s reasoning, arguing that it was contrary to Supreme Court precedent limiting the search incident-to-arrest exception.[32]

On a consolidated appeal, the U.S. Supreme Court found that warrantless breath tests did not implicate the Fourth Amendment, essentially affirming the Minnesota Supreme Court decision, and implicitly disagreeing with Stras’ dissent.[33]  Stras’ position did draw the votes of Justices Sotomayor and Ginsburg.[34]

Scholarship

During his time as a law professor, and, to a lesser extent, during his years on the Minnesota Supreme Court, Stras has written fairly extensively about the Constitution, the rule of law, and legal decisionmaking.  We have outlined the main topics of his writings below, along with the themes on each topic.

Role of the Law Clerk

Both as a law professor and as a justice, Stras has written and spoken extensively on the role of law clerks in the judicial process.  In a 2007 book review, Stras, a former Supreme Court clerk himself, noted the importance of law clerks who serve in the cert pool, and thus help limit the number of petitions granted by the court.[35]  In another article, Stras notes the significant role that law clerks placed in the oral argument preparation for Justice Harry Blackmun.[36]

Stras has also spoken candidly on his own experience both as a law clerk and as a justice hiring law clerks.  In his keynote address at the Marquette University Law School’s conference, Judicial Assistants or Junior Judges: The Hiring, Utilization, and Influence of Law Clerks, Stras explained the different roles for clerks at the Fourth Circuit, the Ninth Circuit, and the U.S. Supreme Court (where Stras clerked) as well as the Minnesota Supreme Court.[37]  In the speech, Stras noted that, while he uses clerks extensively for preliminary work on cases, he does not use clerk input for oral argument.[38]  At the same conference, Stras noted that he does not have a political “litmus test” for his clerks and hires clerks from all backgrounds.[39]  Rather, he noted:

“I just want people with diverse backgrounds, which can include things like race, region, things like that.”[40]

Life Tenure

Stras has written and spoken repeatedly in defense of the constitutional guarantee of life tenure for federal judges.  

In a 2005 law review article, Stras argued that Congress could not abrogate life tenure for federal judges without violating a number of constitutional provisions, including the tenure and salary clauses.[41]  He also defended life tenure against critics in the article, noting that it insulates judges from political pressure.[42]  He has further expanded on this defense using empirical evidence to counter critics of life tenure.[43]

In a 2009 panel held by the Federalist Society, Stras debated Prof. Stephen Burbank, Prof. James Lindgren, and supreme court advocate Charles Cooper in strong defense of life tenure.  During his remarks, he described himself as “a fundamental Burkean conservative who believes that everything in the Constitution has very strong meaning and very strong reasons behind it.”[44]  He went on to defend the uniqueness of the Judiciary, praising its “anti-majoritarian” nature.[45]

Support for Conservative Judges

Stras has gone on record multiple times praising conservative judges and judicial philosophies.  In 2005, during the confirmation debate over then-Judge Samuel Alito, Stras published an editorial arguing for his confirmation.  Specifically, Stras noted:

“[Justice Alito] is a mainstream conservative jurist that has shown great respect for the rule of law.”[46]

Stras also authored an article praising Justice Pierce Butler, a justice who served on the Supreme Court early in the 20th century.  In the article, Stras describes Butler as “stereotypically libertarian” with a strong commitment to protecting private property rights.[47]  Stras disagrees with the traditional view of Butler as a “conservative”, pointing out that Butler’s jurisprudence took a broad view of the rights of criminal defendants.[48]  Stras also speaks approvingly of Butler’s opinion striking down New York’s minimum wage law as an infringement on the right to contract,[49] even while acknowledging that Butler’s broad views of private property rights did not extend to resident aliens.[50]

Overall, Stras acknowledges that Butler’s broad view of economic liberty and the right to contract are “on the wrong side of history” but nonetheless praises him as a “judicial minimalist” who decided cases in a “narrow, concise, and technical manner.”[51]  Stras’ praise of Butler suggests that he would seek to emulate similar qualities on the bench.

Overall Assessment

Had the Trump Administration pre-cleared Stras’ nomination with Sens. Klobuchar and Franken, his confirmation would be all but assured.  Not only does Stras have the requisite qualifications for the Eighth Circuit, his jurisprudence places him well within the mainstream of his future colleagues.  

Critics of Stras’ nomination will likely draw concern from his praise of Pierce Butler and his jurisprudence on economic liberty.  They could argue that, as a federal judge, Stras would seek to strike down economic and environmental regulations that he deemed violations of “liberty.”  However, there is nothing in Stras’ seven-year record on the Minnesota Supreme Court that suggests a hostility to government or regulation.  On the contrary, Stras’ tenure suggests that he, like Butler is a “judicial minimalist”, seeking to take the court out of policy debates and allow legislatures the freedom to legislate.

Now, Stras is still a judicial conservative, and many of his rulings will likely upset those with a more liberal view of the law.  Nonetheless, he is also likely to disappoint conservatives on the bench.  As a Minnesota Supreme Court justice, Stras frequently joined Justice Alan Page, one of the most liberal members of the court, in dissent against rulings by the conservative majority.  It would be unsurprising if, on the Eighth Circuit, Stras frequently voted with Judge Jane Kelly (the circuit’s sole liberal voice) in holding law enforcement accountable for violations of Fourth, Fifth, and Sixth Amendments.

In this sense, Stras is likely to emulate Justice Scalia, another conservative lion who nevertheless proved to be a criminal defendant’s best advocate on many cases.  If that is the case, the federal bench will be lucky to have him.


[1] Press Release, Office of Governor Tim Pawlenty, Governor Pawlenty Names Gildea Chief Justice, Appoints Stras to Supreme Court (May 13, 2010) (on file at https://www.leg.state.mn.us/docs/2010/other/101582/www.governor.state.mn.us/mediacenter/pressreleases/JudicialSelections/PROD009980.html).  

[2] See Eric Black, Pawlenty’s Supreme Court Picks Raise Sticky and Embarrassing Issues, MinnPost, May 14, 2010, https://www.minnpost.com/eric-black-ink/2010/05/pawlentys-supreme-court-picks-raise-sticky-and-embarrassing-issues. See also Peter S. Wattson, Unallotment Conflict in Minnesota 2009-2010, Senate Counsel, State of Minnesota, June 3, 2010, https://www.senate.mn/departments/scr/treatise/Unallotment/Unallotment_Conflict_in_Minnesota.pdf.

[3] Wendy Erlein, Election Results 2012: Voters Name Lorie Skjervein Gildea Minnesota Supreme Court Chief Justice, Maple Grove Patch, Nov. 8, 2012, https://patch.com/minnesota/maplegrove/election-results-2012-voters-choose-lorie-skjerven-gi0f19fe5885.

[4] Ricardo Lopez, Minnesota Justice David Stras on Trump Shortlist of Potential Supreme Court Picks, Minnesota Star Tribune, May 18, 2016, http://www.startribune.com/minnesota-justice-david-stras-on-trump-shortlist-of-potential-supreme-court-picks/379988881/.

[5] See Press Release, Office of Sen. Al Franken, Sen. Franken’s Statement on Trump Nomination of Minnesota Supreme Court Justice David Stras for the Eighth Circuit (May 8, 2017) (on file at https://www.franken.senate.gov/?p=press_release&id=3693). But see Scott Johnson, The Luger Lobby: Sen. Klobuchar Comments, Western Free Press, Apr. 10, 2017, http://www.westernfreepress.com/2017/04/10/the-luger-lobby-sen-klobuchar-comments/ (suggesting that Klobuchar was aware of Stras’ nomination in April 2017).

[6] See Minnesota Lawyer Staff, Minnesota Supreme Court, Seat 4: Stras v. Tingelstad, Minnesota Lawyer, Oct. 5, 2012, http://minnlawyer.com/2012/10/05/minnesota-supreme-court-seat-4-stras-v-tingelstad/.

[7] Court Opponents Don’t Agree on What Counts as Experience, The Bemidji Pioneer, Oct. 28, 2012, http://www.bemidjipioneer.com/content/court-opponents-don%E2%80%99t-agree-what-counts-experience.

[8] Wendy Erlein, Election Results 2012: Voters Name Lorie Skjervein Gildea Minnesota Supreme Court Chief Justice, Maple Grove Patch, Nov. 8, 2012, https://patch.com/minnesota/maplegrove/election-results-2012-voters-choose-lorie-skjerven-gi0f19fe5885.

[9] See Williams v. Geithner, Case No. 09-CV-1959 (Minn. 2009).

[10] See Bob Collins, On MN Supreme Court, Stras Found Unlikely Allies, Minnesota Pub. Radio, May 18, 2016, http://blogs.mprnews.org/newscut/2016/05/on-mn-supreme-court-david-stras-found-unlikely-allies/.

[11] Nose v. State of Minn., 845 N.W.2d 193 (Minn. 2014) (Stras, J., concurring).

[12] Bearder v. State of Minn. et al., 806 N.W.2d 766 (Minn. 2011).

[13] See id. at 784 (Stras, J., dissenting).

[14] See Bicking v. City of Minneapolis et al., 891 N.W.2d 304 (Minn. 2017) (Stras, J. dissenting) (arguing that the case before the court is nonjusticiable); In re Guardianship of Tschumy, 853 N.W.2d 728 (Minn. 2014) (Stras, J., dissenting) (stating that there was no case or controversy); Schober v. Comm’r of Revenue, 853 N.W.2d 102 (Minn. 2013) (Stras, J., dissenting) (arguing that the petition is untimely); Berkowitz v. Office of Appellate Cts., 826 N.W.2d 203 (Minn. 2013) (holding that the petition for relief is untimely; Carlton v. State, 816 N.W.2d 590 (Minn. 2012) (Stras, J., concurring) (expressing disagreement with the use of equitable tolling to revive untimely petitions for relief); State v. Ali, 806 N.W.2d 45 (Minn. 2011) (Stras, J., concurring) (expressing disagreement with the collateral order doctrine).

[15] Harbaugh v. Comm’r of Revenue, 830 N.W.2d 881, 885 (Minn. 2013) (internal citations omitted).

[16] State of Minn. v. Obeta, 796 N.W.2d 282 (Minn. 2011) (Stras, J., dissenting).

[17] See Sanchez v. State of Minn., 890 N.W.2d 716 (Minn. 2017); State v. McAllister, 862 N.W.2d 49 (Minn. 2015); State v. Lemert, 843 N.W.2d 227 (Minn. 2014); Ferguson v. State of Minn., 826 N.W.2d 808 (Minn. 2013); State v. Ortega, 813 N.W.2d 86 (Minn. 2012); State v. Brist, 812 N.W.2d 51 (Minn. 2012). See also State v. Beecroft, 813 N.W.2d 814 (Minn. 2012) (Stras, J., dissenting); State v. Rhoads, 813 N.W.2d 880 (Minn. 2012) (Stras, J. dissenting).  

[18] State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Page J. and Stras J., dissenting jointly).

[19] State v. Brooks, 838 N.W.2d 563, 573 (Minn. 2013) (Stras, J., dissenting). See also State v. Fawcett, 884 N.W.2d 380 (Minn. 2016) (Stras, J., dissenting) (stating that a search for alcohol and controlled substances in a blood test violates the Fourth Amendment when the warrant only mentions alcohol).

[20] Id. at 573-74 (internal citations omitted).

[21] State v. Ge Her, 862 N.W.2d 692 (Minn. 2015).

[22] State v. Osorio, 891 N.W.2d 620, 633-38 (Minn. 2017) (Hudson, J., dissenting).

[23] See, e.g., United States v. Sydnor, No. CR 16-21-ART-HAI-(2), 2017 WL 772341, at *6 (E.D. Ky. Feb. 28, 2017) (suppressing non-Mirandized statement as elicited in violation of the Fifth Amendment).

[24] State v. Rhoads, 813 N.W.2d 880 (Minn. 2012) (Stras, J. dissenting).  

[25] See State v. Beecroft, 813 N.W.2d 814 (Minn. 2012) (Stras, J., dissenting).

[26] See Hooper v. State, 838 N.W.2d 775 (Minn. 2013); State v. Hill, 801 N.W.2d 646 (Minn. 2011).

[27] See State v. Horst, 880 N.W.2d 24 (Minn 2016); Bobo v. State, 820 N.W.2d 511 (Minn. 2012) (Stras, J., concurring in part and dissenting in part); State v. Tanksley, 809 N.W.2d 706 (Minn. 2012). See also State v. Pass, 832 N.W.2d 836 (Minn. 2013) (reversing trial court exclusion of evidence as substantially prejudicial to defendant). But see Caldwell v. State, 853 N.W.2d 766 (Minn. 2014) (granting evidentiary hearing to defendant).

[28] See State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013); State v. Hayes, 826 N.W.2d 799 (Minn. 2013); State v. Hohenwald, 815 N.W.2d 823 (Minn. 2012). But see State v. Nelson, 842 N.W.2d 443 (Minn. 2014) (reversing conviction for insufficiency of the evidence).

[29] See Gail v. State, 888 N.W.2d 474 (Minn. 2016); Davis v. State, 880 N.W.2d 373 (Minn. 2016); Taylor v. State, 874 N.W.2d 429 (Minn. 2016); Wayne v. State, 870 N.W.2d 389 (Minn. 2015); Williams v. State, 869 N.W.2d 316 (Minn. 2015); Lussier v. State, 853 N.W.2d 149 (Minn. 2014); Wallace v. State, 820 N.W.2d 843 (Minn. 2012); Buckingham v. State, 799 N.W.2d 229 (Minn. 2011).

[30] See, e.g.,State v. Struzyk, 869 N.W.2d 280 (Minn. 2015) (Stras, J., concurring); State v. Kelly, 855 N.W.2d 269 (Minn. 2014) (Stras, J., concurring); State v. Koppi, 798 N.W.2d 358 (Minn. 2011).

[31] State v. Bernard, 859 N.W.2d 762, 764 (Minn. 2015).  

[32] See id. at 774 (Page, J., and Stras, J., jointly dissenting).

[33] See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

[34] See id. at 2187 (Sotomayor, J., concurring in part and dissenting in part).

[35] David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Texas L. Rev. 947 (2007).

[36] Timothy R. Johnson, David R. Stras, and Ryan C. Black, Advice from the Bench (Memo): Clerk Influence on Supreme Court Oral Arguments, 98 Marq. L. Rev. 21 (Fall 2014).

[37] David R. Stras, Keynote Address: Secret Agents: Using Law Clerks Effectively, 98 Marq. L. Rev. 151 (Fall 2014).

[38] See id. at 172.

[39] Chad Oldfather, Panel Discussion: Judges’ Perspective on Law Clerk Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (Fall 2014).

[40] See id. at 464.

[41] David R. Stras and Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute”, 83 Wash. U. L. Q. 1397 (2005).

[42] See id. at 1424-25.

[43] See David R. Stras, The Incentives Approach to Judicial Retirement, 90 Minn. L. Rev. 1417 (May 2006); David R. Stras and Ryan W. Scott, An Empirical Analysis of Life Tenure: A Response to Professors Calabresi and Lindgren, 30 Harv. J. L. & Pub Pol’y 791 (Summer 2007).

[44] Federalist Society Transcript: Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Non-Renewable Terms?, 12 Barry L. Rev. 173 (Spring 2009).  

[45] Id. at

[46] David Stras, No Nukes, Nat’l Rev., Nov. 7, 2005, http://www.nationalreview.com/article/215882/no-nukes-david-stras.  

[47] David R. Stras, Pierce Butler: A Supreme Tactician, 62 Vand. L. Rev. 695, 717-720 (March 2009).

[48] See id. at 721 (citing Olmstead v. United States, 277 U.S. 438, 486-88 (1928) (Butler, J., dissenting)).

[49] See id. at 727 (citing Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936)).

[50] See id. at 728.

[51] Id. at 756.

Judging the 2020 Contenders: The Senators

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

We previously looked at governors.  Today, we turn to senators.

Senators may not have the nominating ability that Governors do, but they still have two important ways of displaying their judicial philosophies.  The first and most obvious is through their votes: senators show their judicial leanings by which nominees they support and oppose.  The second, and perhaps even more important, is through the judges they recommend to the White House.  Depending on the Administration, senators have been allowed to recommend district (and sometimes circuit) judges for nomination.  How senators have exercised this power relates directly to how they will exercise power as an executive.  Today, we will look at the current and former senators who may run for president, and their records on these two points.

Joe Biden

Perhaps no other senator (with the possible exception of the late Sen. Ted Kennedy) has had the level of influence over the federal bench that Biden has.  As the senator from Delaware for thirty six years, Biden shepherded eight district judges onto the District of Delaware, only one of which, Judge Gregory Sleet, was during a Democratic Administration.  Biden also supported the appointments of Delaware judges to the Third Circuit during the Reagan, H.W. Bush, Clinton, and W. Bush Administrations.  The home-state judges Biden supported, regardless of Administration, have generally been judicial moderates.  From Judge Walter Stapleton to Judge Thomas Ambro, they have avoided controversy and have established themselves as well-respected across the political spectrum.

On the flip side, Biden has exercised his blue slip privileges on occasion.  Late in the Bush Administration, Biden blocked the nomination of then-U.S. Attorney Colm Connolly to the district court.  As a result, Connolly was not confirmed despite support from Sen. Tom Carper, another Democrat.  (Carper nonetheless sponsored Connolly for a judgeship during the Trump Administration, and he was duly confirmed).

However, Biden’s real impact has been on the Senate Judiciary Committee.  Biden served as Chair of the Committee from 1987 to 1995, during which time he oversaw a whopping seven Supreme Court nominations.  Biden oversaw the failure of Judge Robert Bork’s nomination to the Supreme Court, as well as the confirmations of Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, all of whom he supported.  Biden was also Chair of the Committee during the confirmation hearings for Justice Clarence Thomas.  While Biden did not support Thomas, he nonetheless attracted strong criticism for failing to adequately investigate allegations of harassment and impropriety raised against Thomas and for buckling to political pressure from Republicans.  Biden also supported the nominations of Justices John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia, while opposing Chief Justices William Rehnquist and John Roberts, and Justice Samuel Alito, who were all confirmed.

Cory Booker

Cory Booker has served in the Senate since his election in 2013 to replace the late Sen. Frank Lautenberg.  As such, even as the junior senator from New Jersey, Booker has had a significant influence on judicial nominations for the state.  Booker was particularly active in pushing the nomination of Julien Neals, a member of his cabinet when Booker served as mayor of Newark.  Neals, nominated by Obama in 2015, was blocked from confirmation by Senate Majority Leader Mitch McConnell.  Booker has been actively pushing the nomination of Neals with the Trump Administration.

During the Trump Administration, Booker has been one of the most vocal opponents of the President’s judicial nominees, using his perch on the Senate Judiciary Committee to grill nominees on racial bias in the criminal justice system.  Booker strongly opposed both Justices Gorsuch and Kavanaugh, and has opposed 13 of Trump’s district court judges, and twenty five appellate judges.  In fact, Booker has supported just five Trump appellate nominees: Judge Jay Richardson for the Fourth Circuit; Judges Michael Scudder and Amy St. Eve for the Seventh Circuit; Judge Ralph Erickson for the Eighth Circuit; and Judge Mark Bennett for the Ninth Circuit.

Sherrod Brown

Brown has served as the U.S. Senator from Ohio since 2006, when he defeated Sen. Mike DeWine (now the Governor).  Since that day, Brown has overseen and supported seven nominations to the district courts in Ohio.  Early in his tenure, Brown supported President George W. Bush’s nomination of Judge Sara Lioi to serve on the U.S. District Court for the Northern District of Ohio.  During the Obama and Trump Administrations, Brown has established a bipartisan commission on judicial nominations with Senators John Voinovich and Rob Portman respectively.  The commission produced three confirmations during the Obama Administration: Judge Timothy Black to the Southern District of Ohio; and Judges Benita Pearson and Jeffrey Helmick to the Northern District.  All three judges have established left-of-center records on the bench.  During the Trump Administration, Brown has supported Trump nominees Pamela Barker, Sarah Morrison, and Matthew McFarland, who all emerged from the bipartisan commission, but opposed Sixth Circuit nominees Eric Murphy and Chad Readler, who did not.

Throughout his tenure, Brown supported almost all the judicial nominees that Presidents Bush and Obama put out, voting against just one, Judge Leslie Southwick for the U.S. Court of Appeals for the Fifth Circuit.  However, Brown has opposed 37 out of 59 Trump nominees brought up on a roll call vote, including both of Trump’s Supreme Court picks and 25 out of 30 appellate picks, supporting only Judges Richardson, Scudder, St. Eve, Erickson, and Bennett.

Hillary Clinton

Has there been a politician whose name is as ubiquitous as Hillary Clinton? Amid her resume of various political positions, it is easy to forget that Clinton served in the U.S. Senate, from 2000 to 2008, to be precise, when she represented New York.  During that period of time, Clinton generally deferred on nominations issues to Sen. Chuck Schumer, who negotiated judgeships with the Bush Administration.  Nevertheless, Clinton was not hesitant to vote against Bush nominees, voting against both Justices Roberts and Alito, for example.  Clinton also voted against Judges D. Brooks Smith, Dennis Shedd, Paul Cassell, Jay Bybee, Timothy Tymkovich, Jeffrey Sutton, Michael Chertoff, Deborah Cook, Victor Wolski, J. Leon Holmes, Diane Sykes, Priscilla Owen, Janice Rogers Brown, Thomas Griffith, William Pryor, Brett Kavanaugh, Jerome Holmes, and Leslie Southwick during her senate tenure.

Kirsten Gillibrand

New York Senator Kirsten Gillibrand had developed a relatively moderate record in the U.S. House before she was tapped to replace then-Senator Hillary Clinton in 2009.  Since that point, Gillibrand has developed a strongly liberal record on most issues, including judicial nominations.  Gillibrand has been a frequent opponent of Trump judicial nominees, for example, voting to reject all but four of his appellate picks (Scudder, St. Eve, Erickson, and Bennett) and, overall, rejecting 43 out of 59 nominees who received roll call votes (Interesingly, Gillibrand even opposed New York 2d Cir. nominee Richard Sullivan, who she nonetheless returned a blue slip on, and who fellow N.Y. Senator Chuck Schumer supported).

Relating to home-state nominees, Gillibrand has generally deferred to Senator Chuck Schumer (now the Minority Leader), but has chosen a few nominees of her own to recommend during her tenure.  During the Obama Administration, Gillibrand recommended the following district court judges: Judges Joan Azrack and LeShann DeArcy Hall on the Eastern District of New York; Judges Ronnie Abrams, Valerie Caproni and Analisa Torres on the Southern District of New York.  All of Gillibrand’s recommendations to the bench have been women and have been confirmed with near-unanimous support.  The lone exception is Caproni who attracted criticism from both the left and the right for her tenure as General Counsel at the FBI (Caproni even attracted the opposition of Sen. Jeff Merkley, a Democrat).

Kamala Harris

Elected to the U.S. Senate in 2016 from California, Harris has the distinction of herself being considered a top candidate for the Supreme Court.  Harris currently serves on the Senate Judiciary Committee and has voted on 85 Trump judicial appointees in her two years in the Senate.  Of the 59 nominees who received roll call votes, Harris opposed 38 on the floor.  She has been a particularly strong opponent of Trump’s appellate nominees, supporting just five of them: Judge Ralph Erickson; Michael Scudder; Judge Amy St. Eve; Mark Bennett; and Julius Richardson.  She has also been a vigorous questioner of Trump nominees, winning notice for her pointed and often precise questioning.

On the nomination front, Harris has been part of negotiations with the Trump Administration over a package of California nominees to the Ninth Circuit and district courts, although she has taken a smaller role than senior senator Dianne Feinstein, who is also the Ranking Member on the Senate Judiciary Committee.  A prospective deal over the nominees fell apart in late 2018 and the Trump Administration nominated three conservative candidates to the Ninth Circuit.  With a new White House Counsel coming in, Harris and Feinstein are still trying to negotiate a package.

Additionally, before she was a senator, Harris served as Attorney General of California from 2011 to 2017.  During this time, Harris served on the Commission of Judicial Appointments, which reviews all gubernatorial appointments to the California Supreme Court and the courts of appeal.  During Harris’ tenure, the Commission approved a number of left-leaning judges to California courts, including Justices Goodwin Liu, Mariano-Florentino Cuellar, and Leondra Krueger.

John Kerry

A former Democratic presidential candidate and Secretary of State under President Obama, Kerry also served as U.S. Senator from Massachusetts from 1984 to 2013.  During his tenure, Kerry was primarily known for his expertise in international relations, as his senior senator, Sen. Ted Kennedy, primarily handled the judiciary issues for the state.  It was only after Kennedy’s death in 2009 that Kerry became the primary home-state senator on judiciary issues.  In that capacity, Kerry approved the selection of Denise Casper to serve on the U.S. District Court in Massachusetts (Casper had originally been selected by a Committee established by Kennedy).  Kerry also negotiated a nominations deal with Republican Sen. Scott Brown to fill two vacancies.  The deal would involve the nominations of U.S. Magistrate Judge Timothy Hillman, a Democrat, and Massachusetts Superior Court Judge Jeffrey Kinder, a Republican.  While Hillman was promptly nominated and confirmed, the Obama Administration refused to nominate Kinder, who eventually withdrew from consideration after Brown was defeated by Sen. Elizabeth Warren.

During his long tenure in the Senate, Kerry had the opportunity to vote on judges appointed by five different presidents (three Republican and two Democratic).  Kerry voted for most of them.  Nonetheless, Kerry voted against the Supreme Court nominations of Chief Justice William Rehnquist, Robert Bork, David Souter, Clarence Thomas, John Roberts, and Samuel Alito, while supporting Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Amy Klobuchar

Amy Klobuchar, who has served as U.S. Senator for Minnesota since 2006, has one of the more “moderate” records on judicial nominations among the current batch of Democratic senators.  Klobuchar has backed ten appellate nominees and all but eight district court picks.  In addition to the five that attracted the most Democratic votes, Klobuchar backed Judges Kevin Newsom and Elizabeth Branch to the 11th Circuit, Judge Joel Carson to the 10th Circuit, and Judge Kurt Engelhardt to the 5th Circuit.  Most notably, Klobuchar also supported Judge David Stras’ nomination to the 8th Circuit, a decision in which she was opposed by fellow Minnesota senators Al Franken and Tina Smith (Stras has since developed a strongly conservative record on the federal bench).

Regarding the nominations covering her home state, Klobuchar has shepherded four judicial nominations through the Senate.  Early in the Obama Administration, Klobuchar sponsored then-magistrate judge Susan Nelson to confirmation.  Later, she was able to leverage her relationships with Republican senators to secure the confirmation of Wilhemina Wright to the Minnesota District Court, even as many Republicans lined up against her, claiming that she had made negative comments about President Reagan.  During the Trump Administration, Klobuchar was able to shepherd through the unanimous confirmations of two moderate nominees, Judges Eric Tostrud (proposed by Rep. Eric Paulsen, a Republican), and Nancy Brasel (who Klobuchar herself pushed).

Jeff Merkley

Since his defeat of Sen. Gordon Smith in 2008, Merkley has been one of the most liberal voices in the U.S. Senate, including on judicial nominations.  During the Obama Administration, Merkley was one of the strongest supporters of Senate Majority Leader Harry Reid’s decision to end the filibuster on judicial nominees, a stance that conservatives brought up when Merkley led a 14-hour filibuster of Neil Gorsuch’s nomination in 2017.  However, Merkley’s outspokenness hasn’t led to the appointment of young liberals to the federal bench in Oregon.  During the Obama Administration, Merkley supported the renomination of Judge Marco Hernandez, a state judge originally tapped by President Bush, to fill a district court vacancy.  For two other vacancies, Merkley supported male judges in their 50s, Judges Michael Simon and Michael McShane.  During the Trump Administration, Merkley has supported Trump’s nomination of Karen Immergut, a former prosecutor who worked with Ken Starr in the 1990s.

On the flip side, Merkley successfully helped kill the 9th Circuit nomination of Ryan Bounds, who advanced through Committee over the opposition of Merkley and Sen. Ron Wyden.  Additionally, Merkley has strongly opposed most Trump judicial nominees, voting against 41 out of 59 on a roll call vote.

Bernie Sanders

One of two Independents in the Senate, Sanders has served as Senator from Vermont since 2006, and made a previous presidential run in 2016.  While Sanders’ view on judges did not get much airtime during 2016, he has since established himself as a frequent critic of Trump judges.  Sanders supported just 15 out of 59 judges on a roll call vote, one of the lowest support scores of any senator.  Sanders was the only senator to oppose the nomination of Judge Claria Horn Boom, an otherwise uncontroversial nominee in Kentucky.

During his entire tenure in the Senate, Sanders has served as a junior senator, and, as such, judge decisions have been deferred to senior senator Patrick Leahy, who also chaired the Judiciary Committee between 2007 and 2014.  Leahy selected Judges Christina Reiss and Geoffrey Crawford to serve on the Vermont federal bench, and Sanders supported both.

Elizabeth Warren

The first serious candidate to announce her run for the Presidency, Warren is one of the most liberal members of the senate, and has stuck out strongly liberal positions throughout her tenure, including on judges.  She has supported the fewest number of Trump appellate judges of any Democrat in the Senate, voting for just three, Scudder, St. Eve, and Bennett.  In total, Warren supported just 14 out of 59 Trump judges on a roll call vote, the lowest support score of any senator.

Almost immediately after her 2012 election to the Senate, Warren became the senior senator for Massachusetts, as Sen. John Kerry became Secretary of State.  In this role, Warren led the effort to select Massachusetts judicial nominations for the Obama Administration.  Warren supervised the confirmations of four district court nominees, Judges Mark Mastroianni, Indira Talwani, Leo Sorokin, and Allison Boroughs, all of whom were mainstream liberals in their early 50s (Warren supported the nomination of the similarly credentialed Inga Bernstein in the 114th Congress but she was not confirmed).  Warren did not push for the appointment of young attorneys, liberal academics, or candidates who sought to reshape the law from the progressive side, instead focusing on lawyers with 30+ years of practice.  Warren’s tenure also coincided with the confirmation of Judge David Barron to the First Circuit.  While Barron is more typical of the young liberal judges that many progressives wanted Obama to nominate, Barron’s nomination came from the Administration, not from Warren.

Jonathan Kobes – Nominee for the U.S. Court of Appeals for the Eighth Circuit

So far, President Trump’s nominees to the Eighth Circuit have included a state supreme court justice with an extensive judicial and academic record, a long-serving federal judge, and a private attorney with a lengthy paper trail.  By contrast, his latest nominee, Jonathan Kobes, a Senate staffer with a varied resume, has virtually no writings or opinions revealing his views on the law.

Background

Jonathan Allen Kobes was born in Sioux City, Iowa, on August 25, 1974.  Kobes attended Dordt College, a small Christian liberal arts school based in Sioux Center, Iowa.  After graduating in 1996, Kobes spent a year in Chicago working for Zurich Kemper Investments.[1]  He then attended Harvard Law School and clerked for Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.

After his clerkship, Kobes spent a year working as an Honors Attorney with the Central Intelligence Agency (CIA).  He then became a federal prosecutor with the U.S. Attorney’s Office for the District of South Dakota, working there until 2005.[2]  Kobes then joined the Sioux Falls firm Murphy, Goldammer & Prendergast LLP as an Associate.

In 2008, Kobes transitioned to be Counsel at POET LLC, a biofuel company based in Sioux Falls.[3]  In 2012, he shifted to DuPont Pioneer, a seed manufacturer, serving as Senior Regulatory Counsel.  Finally, in 2013, he shifted, again, to Raven Industries, a manufacturer of agricultural products, to be Director of Corporate Compliance.[4]  In that position, Kobes worked for former Democratic Representative Stephanie Herseth Sandlin.[5]

In 2014, after South Dakota Governor Mike Rounds was elected to the U.S. Senate, Rounds hired Kobes to be his Deputy Chief of Staff and his Counsel.[6]  He currently works for Rounds as his General Counsel.

History of the Seat

Kobes has been nominated to replace his former boss, Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.  According to Kobes, he was contacted directly by the White House to gauge his interest in an appointment to the Eighth Circuit (before Judge Wollman’s move to senior status was public).[7]

After confirming his interest, Kobes interviewed with the White House in November 2017.  Kobes was formally nominated on June 11, 2018.[8]

Political Activity

Working as a staffer for Rounds, Kobes is participating in a political position.  However, setting his relationship to Rounds aside, Kobes does not have an extensive political history.  Kobes, a Republican, volunteered for both Rounds’ senate campaign and the campaign of Republican Secretary of State Shantel Krebs.[9]  Kobes also served as a Republican Precinct Committeeman in Sioux Falls.

Kobes served as a member of the Federalist Society for Law & Public Policy from 1999 to 2004 and of the National Rifle Association from 2013 to 2014, but is not presently a member of either organization.[10]

Legal Experience

Kobes’ first legal position out of law school was clerking on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Kobes worked for the CIA in Washington D.C, working on maintaining the security of classified information in pending litigation.[11]

In 2003, Kobes joined the U.S. Attorney’s Office for the District of South Dakota as a criminal prosecutor.  During his tenure, Kobes primarily focused on prosecuting cases coming out of the Pine Ridge Indian Reservation.[12]  For example, Kobes prosecuted a Pine Ridge School student for making a bomb threat to blow up the school.[13]  The student argued on appeal that he could not be federally prosecuted for making an intrastate phone call, but the Eighth Circuit sided with Kobes, holding that even intrastate phone calls could be prosecuted as long as they were connected to interstate phone lines.[14]

In 2005, Kobes joined Murphy, Goldammer & Prendergast LLP as an associate, working in civil litigation.  While at the firm, Kobes represented a group of crisis pregnancy centers in seeking to intervene to uphold a South Dakota law requiring the physician to read every woman seeking an abortion a predetermined script and to give them the contact information for a pregnancy help center.[15]  Kobes successfully intervened in the suit but the law was enjoined by Judge Karen Schreier upon suit from Planned Parenthood.[16]  Kobes also participated in the defense of the Corporation of the President Church of Jesus Christ of Latter-Day Saints against a suit by a man who was sexually abused by a missionary of the church.[17]

From 2008 to 2014, Kobes has worked in-house, shifting between three different companies.  From 2008 to 2012, Kobes worked at POET, managing general litigation, as well as handling policy and regulatory issues.[18]  In 2012, Kobes worked on handling legal issues around the sale and export of genetically engineered farm products at DuPont Pioneer.[19]  From 2013 to 2014, Kobes worked at Raven Industries, handling compliance and regulatory work primarily.[20]

Since 2014, Kobes has worked for Rounds in the U.S. Senate.  As Rounds’ General Counsel, Kobes manages the legal, ethics, and compliance of the Office.[21]  He also manages a legislative portfolio dealing with judiciary issues, civil rights, and immigration.[22]

Overall Assessment

Of the three nominees that Trump has put on the Eighth Circuit so far, two have been fairly controversial, while one has sailed through with barely a ripple.  So far, it is unclear if Kobes will follow the Ericksen model or the Grasz one.

Unlike Stras and Grasz (the more controversial Eighth Circuit picks), Kobes does not have a long paper trail on controversial issues.  He has no academic writings, has not directly litigated any hot-button cases, and does not have any current ties to contentious legal groups.  Furthermore, as a legislative staffer, Kobes, presumably, has built up a residual level of trust among his colleagues: trust that can be leveraged in the confirmation process.

On the other hand, Kobes’ involvement in the South Dakota Planned Parenthood suit may raise questions about his commitment to pro-choice precedent, while his previous involvement with the National Rifle Association and the Federalist Society may suggest to critics that Kobes will bend to the organizations’ legal positions on the bench.

Additionally, Kobes may receive criticism for having more limited litigation experience as compared to other nominees.  By his own admission, Kobes rarely appeared in court during his time in-house.  As such, Kobes’ litigation experience is limited to the six years he spent working as a federal prosecutor and at Murphy, a time that covers only six trials and even fewer appeals.[23] While appellate litigation experience is not required for a judicial nominee, the lack of it is particularly notable here given that Kobes does not have compensating academic experience.  However, Kobes’ supporters may note that he will bring regulatory, compliance, and legislative experience to the bench, skills that other judges don’t have.

Looking at Kobes’ record as a whole, he remains a favorite for confirmation.  However, given his limited paper trail, senators will likely push Kobes to elucidate his legal views during the confirmation process.  Kobes’ answers to these questions will give an indication of the kind of judge he will be.


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

[2] Id.

[3] Id.

[4] Id. at 12.

[5] David Montgomery, Rounds Hires Campaign Manager as Chief of Staff, Argus Leader, Dec. 18, 2014, https://www.argusleader.com/story/davidmontgomery/2014/12/18/rounds-skjonsberg-staff/20585699/.  

[6] See id.

[7] See Kobes, supra n. 1 at 23-24.

[8] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Nominees, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 11, 2018) (on file at www.whitehouse.gov/the-press-office).

[9] See Kobes, supra n. 1 at 10.

[10] See id. at 6

[11] See id. at 13.

[12] Id. 

[13] United States v. R.J.S. Jr., 366 F.3d 960 (8th Cir. 2004)

[14] Id. 

[15] Planned Parenthood Minnesota et al. v. Rounds, 2006 U.S. Dist. LEXIS 72778 (D.S.D. Oct. 4, 2006).

[16] See id. at *2.

[17] Joseph v. Corp. of the Pres. Church of Jesus Christ of Latter-Day Saints, 2008 U.S. Dist. LEXIS 7767 (D.S.D. Jan. 31, 2008).

[18] See Kobes, supra n. 1 at 13.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See Kobes, supra n. 1 at 15.

Justice Britt Grant – Nominee for the U.S. Court of Appeals for the Eleventh Circuit

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

Background

Britt Cagle[1] Grant is a 40-year-old Atlanta native who graduated summa cum laude from Wake Forest University in 2000 and graduated with distinction from Stanford Law School in 2007.[2] Between the two, she worked for then-Congressman (now-Governor) Nathan Deal’s office, followed by several years of domestic-policy work in the White House of George W. Bush.[3]

While in law school, Grant served as the president of the Stanford Federalist Society, the co-founder and co-president of the Stanford National Security and the Law Society, and the managing editor of the Stanford Journal of International Law.[4] She then clerked for conservative superstar Judge Brett Kavanaugh of the D.C. Circuit (2007-2008) before turning to a multi-year stint doing commercial litigation at the D.C. office of Kirkland & Ellis.[5] In 2012, she left Washington to work for the Georgia Attorney General’s office. She worked first as “Counsel for Legal Policy,” and then in January 2015 she was appointed Solicitor General of Georgia, in which role she served until her appointment to the Supreme Court of Georgia by her former boss, now-Governor Nathan Deal, in January 2017.[6] She is the Georgia Supreme Court’s third female justice in history,[7] and she serves alongside the second female justice, Carol Hunstein.[8] At her swearing in, Grant “promised to honor the rule of law with humility and fairness. And she set another goal: ‘clarity and coherence.’”[9] A few months after her appointment, the Georgia Supreme Court’s Chief Justice Hines had this to say about Grant and her fellow recent appointee Nels Peterson: “They are as bright as new pennies. And they’re good people.”[10]

Grant is a member of the American Law Institute, the Joseph Henry Lumpkin American Inn of Court, the Appellate Practice Section of the Georgia Bar, and the Emory University Board of Visitors.[11] She has also served on various Supreme Court of Georgia Committee concerning matters such as professionalism, dispute resolution, and public trust.[12] Grant also serves on the Federalism & Separation of Powers Executive Committee of the Federalist Society and is also a member of the advisory board of the Atlanta chapter of that group.[13] (The Federalist Society’s Separation of Powers practice group’s Executive Committee seems to be a particular productive reservoir of Trump nominees. I noted in my post on Kevin Newsom that he had been a member of that same committee, along with current Eleventh Circuit Judge William Pryor and fellow Trump nominee David Stras, who has since been confirmed to the Eighth Circuit. Grant’s nomination is thus at least the third Trump nomination to come from that committee. I am no longer able to determine the other current members of that committee, because following the publication of my post on Kevin Newsom, the Federalist Society has taken down the list of committee members from their website,[14] although the website makes clear that each committee indeed still does have an executive committee that meets once a month.[15])

Although there is no current vacancy on the U.S. Supreme Court, in November 2017, Grant was added to President Trump’s running list of possible Supreme Court nominees (which includes her former boss, Judge Kavanaugh).[16]

History of the Seat

Grant has been nominated to a vacancy on the U.S. Court of Appeals for the Eleventh Circuit to a seat opened by Judge Julie Carnes’s move to senior status in June 2018.  As noted, however, Grant had been on the White House’s radar much earlier.  She was vetted in 2017 for the vacancy opened by Judge Frank Hull’s move to senior status, a vacancy ultimately filled by Judge Lisa Branch.[17]

Legal Career

Grant’s career in litigation relevant to her nominated position appears to be limited to her years as Georgia’s Solicitor General. In that capacity, she appeared in some capacity (i.e., with her name appearing on the briefs) in eighteen cases before the Supreme Court of Georgia.[18] Of those eighteen, certiorari was denied in five,[19] three were transferred to the Georgia Court of Appeals,[20] one was an application for interlocutory appeal that was denied (Grant was Appellee),[21] one was dismissed on a motion to dismiss (Grant was Appellee),[22] and the remaining eight were disposed of through opinions. Of those eight, she served as a neutral amicus in one,[23] and among the remaining seven, her office won six and lost one. The wins: she was appellee in Olvera v. University System of Georgia’s Board of Regents[24] and amicus appellee in Hertz v. Bennett,[25] and the opinions below were unanimously affirmed; as appellant in McKinney v. Fuciarelli,[26] Kemp v. Monroe County,[27] and In the Interest of B.R.F. f/k/a/ B.R.M.,[28] she won unanimous reversal or vacate-and-remand; and as appellant in Turner v. Georgia River Network,[29] she won reversal with the support of all those participating except Justice Melton, who dissented.The case her office lost was Grady County Board of Commissioners v. Georgia River Network,[30] with all those participating voting against her team–except Justice Melton.

Her briefing in those cases before the Supreme Court of Georgia reflects traditional adherence to text–with a willingness to look beyond text when it is helpful to advance the needs of the case–and deference to the legislature. In one case concerning sovereign immunity, her office explored the history of various provisions of the Georgia Constitution and wrote: “If the public interest in avoiding what could occasionally be viewed as harsh or unfair results outweighs the public interest in sovereign immunity, then the people of Georgia – through the General Assembly – have the constitutional authority to waive it.”[31] She spoke to “fidelity to the text of the statute” in one case, and argued that the bar to establish the absurdity exception to overcome plain meaning is high one, citing Joseph Story’s Commentaries on the Constitution of the United States.[32] In other cases, she did not limit herself to plain language, contending in one that “The cardinal rule of statutory construction is to seek the intent of the Legislature, and language in part of a statute must be construed in light of the legislative intent as found in the statute as a whole”;[33] in another: “Both text and practice demonstrate that the Board of Regents is not subject to the APA.”[34]

In her briefing, Grant also demonstrated sympathy for practical considerations. Where the Court of Appeals had granted an out-of-time appeal because “a constitutional violation concerning the appeal occurred when the mother’s right to file an application for discretionary appeal with the assistance of a court-appointed attorney was frustrated because of the ineffective assistance or denial of counsel,”[35] Grant acknowledged the burden on the mother–“To be sure, it is regrettable that the mother was unaware that she had the right to counsel for an appeal.”–but bemoaned the “dangers” of the decision of the Court of Appeals: “So long as there is the possibility of an out-of-time discretionary appeal, there will be no certainty for any deprived child that his or her stable, permanent home placement will be maintained. As this Court has recognized, ‘languishing in temporary care’ is not healthy for deprived children, who ‘need permanence of home and emotional stability or they are likely to suffer serious emotional problems.’”[36]

Grant also filed numerous briefs in the Georgia Court of Appeals and the U.S. Court of Appeals for the Eleventh Circuit. In the Eleventh Circuit, she was involved in litigation concerning the EPA’s  “Waters of the United States Rule,”[37] with her jurisdictional arguments ultimately being vindicated in the Supreme Court earlier this year (in a case other than hers).[38]

Her experience leading cases as party counsel before the Supreme Court of the United States includes one case while she was in private practice and four as Georgia’s Solicitor General:

Although the papers do not appear to list her as named counsel in the original-jurisdiction case of Florida v. Georgia (a water case that is still ongoing well after her departure),[39] Grant states that she supervised the litigation team, “provided strategic oversight and budget management, edited briefs, represented the State in status conferences, worked with State officials on budgetary issues, and participated in trial preparation.”[40]

In McLaughlin v. Lejeune, the U.S. Supreme Court denied her cert petition challenging a Georgia Supreme Court decision that refused to apply harmless-error analysis in determining the validity of guilty pleas.  In that case, the defendant was not advised “of the three rights identified in Boykin v. Alabama, 395 U.S. 238 (1969),” “i.e., the rights to trial by jury, to confront one’s accusers and the privilege against compelled self-incrimination.”[41] Three justices of the Georgia Supreme Court had dissented in the decision below,[42] and Governor Deal has since appointed three new justices to the court–including Grant–such that there may now potentially be more than enough votes to overrule the prior decision, should it come before the court again. Such a case would permit one to determine whether the view Grant advocated in her cert petition tracks her own view, but the issue does not appear to have come before the court again since that time–at least not in a form that has resulted in a written opinion.

Grant filed a brief opposing cert in Alves v. Board of Regents of the University System of Georgia, and that petition was denied as well.[43] In Alves, two members of an Eleventh Circuit panel (Judge Wilson and District Judge William Terrell Hodges) held–over Judge Martin’s dissent–that a “written grievance by five [Georgie State University] employees alleging mismanagement by their supervisor which preceded their termination” was not entitled to First Amendment protection.[44] In defending this result, Grant first suggested the case was a poor vehicle for Supreme Court review given that a separate state-court ruling issued a few days prior to the filing of the brief would render the First Amendment question moot once the state-court decision became final.[45] On the merits, while Judge Martin believed the employees were speaking as citizens on matters of public concern,[46] Grant contended that “Petitioners’ attempt to portray their speech as having broader implications for the GSU community amounts to garden-variety complaining about their employment conditions and the tasks they were asked to perform. The gravamen of Petitioners’ memorandum was that they disagreed with the policies their supervisor was implementing . . . . It was only incident to voicing their personal concerns that Petitioners’ remarks touched upon matters that might potentially affect the student body. To hold otherwise would allow Petitioners to constitutionalize a run-of-the-mill employee grievance through inclusion of calculated buzzwords regarding issues that, after investigation, proved to be unfounded.”[47]

Another case, this one decided on the merits, was Foster v. ChatmanFoster was a Batson case in which Chief Justice Roberts–joined by seven other justices (only Justice Thomas dissented)–held that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination in jury selection was clearly erroneous. Grant’s office had argued in its brief that “[t]he facially neutral notes on black prospective jurors, taken eight months after Batson v. Kentucky, 476 U.S. 79 (1986), are not evidence of the State’s intention to engage in purposeful discrimination as alleged by Foster. Instead, they are the result of the State’s efforts to rebut contentions of discrimination.”[48] The State contended that Foster “has failed to show anything but an attempt by a racially diverse prosecution team to demonstrate its compliance with the new evidentiary requirements outlined in Batson.”[49] Chief Justice Roberts squarely rejected this argument, saying it “falls flat”: first, it “reeks of afterthought, having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari. In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”[50] Curiously, while Grant’s name appears on the Joint Appendix of the case,[51] it does not appear on the merits brief just quoted, even though the other four attorneys who appeared with her on the Joint Appendix do indeed appear on it.[52] The Supreme Court’s docket for the case does not appear to contain any explanation for this.

Contrary to what might be expected, the representation that led to the most splintered Supreme Court decision was not in her capacity as Solicitor General but rather in her earlier private practice. In Shady Grove Orthopedic Associates v. Allstate Insurance Company, the Supreme Court held that a New York law placing limits on class actions did not preclude a federal district court sitting in diversity from entertaining a class action under Rule 23.[53] Grant’s brief[54] did not carry the day, although the case produced a highly unusual split, with Justice Scalia writing (for portions of the opinion) for Chief Justice Roberts and Justices Stevens, Thomas, and Sotomayor, while Justice Ginsburg wrote in dissent for Justices Kennedy, Breyer, and Alito.

These cases do not encompass all of Grant’s participation at the Supreme Court of the United States. She was also party counsel for the State of Georgia–but not for the leading state, Texas–in the multi-state challenge to DAPA (Deferred Actions for Parents of Americans), Texas v. United States.[55] And under her leadership, Georgia also participated as amicus in numerous other cases that resulted in highly splintered opinions: Shelby County v. Holder (state coverage under the Voting Rights Act),[56] Town of Greece v. Galloway (legislative prayer),[57] Burwell v. Hobby Lobby (the Affordable Care Act’s contraception mandate),[58] Friedrichs v. California Teachers Association (public-employee unions),[59] Obergefell v. Hodges (marriage for same-sex couples),[60] Glossip v. Gross (lethal-injection protocols),[61] and Gloucester Cty. Sch. Bd. v. G.G. (rights of transgender students),[62] among others.[63] Her Senate questionnaire indicates that for these cases, she “drafted, reviewed, or edited” the relevant filings.[64] Her name does not appear as counsel on them, however. Instead, the briefs list the name of Georgia’s attorney general at the time.

Jurisprudence

By my count, Grant–as a justice on the Supreme Court of Georgia–has written over 40 majority opinions. All but seven were unanimous in reasoning and result,[65] and two were unanimous but contained an additional concurring opinion.[66]

Of the seven majority opinions by Grant that were not unanimous, only two contained an additional opinion actually explaining the disagreement.[67] In both of those concurring opinions, her fellow justices “concurring specially” expressed the view that Grant had decided more than she needed to. In one case concerning official immunity (in particular, the question whether the defendant’s acts were discretionary or ministerial), Barnett v. Caldwell, Justice Melton (joined by Justice Hunstein) stated:

Although I concur with the analysis in the body of the majority opinion, I must write separately because I believe that dicta in footnote two sets forth an overly broad rule that is not applicable to the facts of this case. The majority suggests that: “An action or failure to act is either discretionary or not, and an official cannot alter that fact by doing it well, poorly, or not at all.” I disagree with this statement, and, more fundamentally, I disagree with the majority’s decision to expound upon the issue at all. The judicial process is served neither by inserting unnecessary and complicated issues into a case, nor by proclaiming unwavering rules to govern such complicated issues. The majority does both. I believe that this issue was handled more appropriately by Justice Peterson, who authored the opinion below [(and was thus disqualified in this particular case)]. Justice Peterson reasoned as follows:

Caldwell suggests that a total failure to comply with Section 6.5 would nevertheless be a discretionary act entitled to official immunity. We view such an argument through skeptical eyes, because a total failure to perform an act may involve no exercise of discretion or deliberation whatsoever, and it is not clear that such a failure would be considered a discretionary act covered by official immunity. But given our resolution of this appeal, it is not necessary to decide this question.

Far reaching (and, in this case, overly broad) rules like the one proposed by the majority should not be created in dicta, especially in an area of the law which requires an in depth consideration of the law and facts on a case-by-case basis. For this reason, I cannot concur with the analysis set forth in footnote two.[[68]]

In a separate case, Chrysler Group LLC v. Walden, Grant held that compensation evidence “is subject to the Rule 403 analysis weighing the evidence’s unfair prejudice against its probative value.” Grant noted that Chrysler did not object and thus analyzed the question under the plain-error standard instead of the abuse-of-discretion standard, and–finding no “clear and obvious reversible error”–affirmed the judgment below.[69] Justice Peterson, joined by Justice Boggs, took issue that Grant’s opinion went beyond those points:

I agree with each of those premises, and they are all that is necessary to decide the question this case presents. As such, the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further. But Division II (B) does not stop there; it goes much further (mostly in dicta), and often with sweeping language that travels far beyond this case. Respectfully, I cannot go along.[[70]]

Notably, Justice Melton (who had authored the special concurrence in Barnett suggesting that Grant had gone too far), wrote his own concurring opinion, stating that “[e]ven when considered in light of the concurrence from Justice Peterson, I agree with the analysis in the majority opinion.”[71]

The final majority opinion I will mention is Levis v. State, in which Grant issued a unanimous-in-result opinion reversing a felony-murder conviction on October 31, 2017,[72] then issued another unanimous-in-result opinion on December 11, 2017, superseding the prior opinion and upholding the felony-murder conviction.[73] Each opinion began this way: “Following a jury trial, Lisa Ann Lebis appeals her convictions of felony murder and other crimes related to the shooting death of Officer Sean Callahan. Lebis contends that the evidence was insufficient to support the verdict with regard to a number of counts against her and that trial counsel rendered ineffective assistance in the case.”[74] The October 2017 opinion continued:  “For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis’s convictions of two of the misdemeanor obstruction counts and all of the counts regarding possession of firearms and dangerous weapons; but reversing her conviction of felony murder and of the other two misdemeanor obstructions.”[75] And the December 2017 opinion continued: “For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis’s convictions of two of the misdemeanor obstruction counts, all of the counts regarding possession of firearms and dangerous weapons, and of felony murder; but reversing her conviction of the other two misdemeanor obstructions.”[76] With respect to the felony murder charge, the October 2017 opinion stated that “[a] more difficult question arises when we consider Lebis’s argument that the evidence was insufficient as a matter of law in relation to her conviction of felony murder as charged in the indictment,” ultimately reaching this conclusion:

That understanding renders Lebis’s felony murder conviction improper. Although the indictment charged Lebis with felony murder as a party to the crime, it specified that the predicate felony was Lebis’s joint possession of the murder weapon at the time Tremaine used it to shoot Officer Callahan. But Lebis’s prior constructive possession of the Glock when it was kept with the other weapons in the motel room does not bear on whether she possessed it at the time of the murder as charged in the indictment. The indictment required the State to prove beyond a reasonable doubt that Lebis jointly possessed the murder weapon at the time of the murder; the evidence does not support her joint possession of the Glock at that time. Because the evidence was insufficient to support the charge of felony murder as set forth in the indictment, Lebis’s conviction for this crime must be reversed.[[77]]

In contrast, the December 2017 opinion started that section by declaring, “The evidence was also sufficient to support the jury’s verdict that Lebis was guilty of felony murder as a party to her husband’s possession of a firearm as a convicted felon—a criminal act that proximately caused the death of Officer Callahan.” Explaining, Grant stated:

[A] defendant can be held responsible for the actions of another as a party to the crime or as a co-conspirator, without also concluding that the defendant constructively possessed the contraband actually and solely possessed by another. So even though Lebis did not jointly possess that firearm with Tremaine at the moment of the murder, it remains true that she can be held to account for the actions of another—here, her husband—as a party to the crime or as a co-conspirator. Accordingly, her arguments that she did not constructively possess the firearm do not help her escape responsibility for the crime.

As to the variance in the indictment, the majority opinion now had this to say:

Although Lebis raised sufficiency of the evidence rather than a “fatal variance” between the language of the indictment, which charged joint possession, and the proof at trial, we also note that any suggestion of such a fatal variance would also fail. Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.[[78]]

Grant has also participated in opinions as a concurring colleague. In at least two cases, she concurred in only the judgment as to certain portions of an opinion, but she did not write an opinion explaining the disagreement (as appears to be common in Georgia Supreme Court cases).[79]

She wrote a concurring opinion (joined by Justice Nahmias) in Schumacher v. City of Roswell, which made clear again her focus on following clear textual commands (and the frustration of not having them):

I join the Court’s opinion in full, including its conclusion that the only issue decided today is that a freestanding challenge to the facial validity of a zoning ordinance, unaccompanied by any complaint regarding an individualized determination impacting a particular parcel of land, does not challenge a “decision” of an “administrative agency” under OCGA § 5-6-35 (a) (1). This decision is consistent with the text of the statute, and accordingly with our responsibility as judges to apply even complicated statutes as they are written by the General Assembly.

That said, I understand and appreciate the concerns of the dissenting opinion regarding the lack of clarity in appellate procedures. More often than not, one would expect a close adherence to the textual demands of a statute to lead to greater clarity in the law; an attorney should be able to turn to the statute in the codebook and determine whether a direct appeal or an application is appropriate in a given case. That ideal is not necessarily met here. But the dissent’s approach does not add clarity either, seeking to extend a rationale that we have already deemed to have “fallacies.”

Even in the context of zoning, which has purportedly been the subject of a “bright line rule,” this Court has not been able to agree on which cases require an application. . . .

We recently attempted to bring some needed clarity to this interpretive enterprise by explaining in Keystone Knights that decisions can be “adjudicative,” “legislative,” or “executive,” and that an application is required to seek review of “adjudicative” decisions by administrative agencies. That decision was a valuable step in asserting order over our jurisprudence in this area, but it still left much to be divined by practicing attorneys. Of course, in fairness to Keystone Knights, the complexity of the analysis required under any approach that takes statutory language seriously counsels in favor of a legislative solution. What, for example, is a “decision”? Or an “administrative agency”? And what is the answer when a case raises claims regarding legislative, executive, and adjudicative decisions by a government entity acting in different capacities with respect to each of the “decisions”? The statute invites rather than answers these questions, and we can only do so much to simplify while also remaining faithful to its text.

Accordingly, the General Assembly may wish to clarify the scope of the matters that are subject to the discretionary appeal process. Until then, the best path forward—as remarkable as this is—may well be to follow the advice of two leading Georgia appellate treatises and file a discretionary application in every instance where there is any doubt.[[80]]

And in State v. Cohen (part of the “Waffle House sex tape” saga), Grant herself (joined by Justices Hunstein and Blackwell) contended that the majority decided a question it need not have.[81] That case concerned O.C.G.A. § 16-11-62(2), which states that a person may not use any device “to observe, photograph, or record the activities of another which occur in any private place and out of public view.” (That statute has been discussed on this blog before, as it was also the subject of a news-attracting opinion written by fellow Trump nominee Lisa Branch.[82]) The housekeeper and personal assistant to the chairman of Waffle House was accused of recording the two having sex,[83] and the majority held that:

Although there is nothing in the plain language of former OCGA § 16-11-62 (2) to indicate that Rogers and the other person in the residence would no longer have a reasonable expectation to be safe from the “hostile intrusion” of having their activities secretly video recorded once Brindle entered the residence, and although there is nothing in the former version of OCGA § 16-11-62 (2) to show that the reasonable expectation to be safe from “hostile intrusion or surveillance” under the statute is coextensive with one’s “reasonable expectation of privacy” under the Fourth Amendment to the United States Constitution, we have in the past looked to Fourth Amendment jurisprudence as a guide when interpreting the scope of privacy protected by OCGA § 16-11-62.[[84]]

Grant disagreed with looking to the Fourth Amendment. She noted that in contexts where “government agents were alleged to have illegally surveilled criminal defendants,” “it is no surprise at all to look toward the Fourth Amendment, which serves as a constitutional boundary to the behavior of the government. But here, in analyzing the actions taken by private parties, the Fourth Amendment provides something less than a useful guide; in fact, applying Fourth Amendment rules may even serve to confuse rather than clarify the meaning of the statute.”[85] She continued:

To begin, much of what the majority applies as seminal Fourth Amendment law had not yet been announced by the United States Supreme Court at the time that OCGA § 16-11-62 was drafted. The “private place” definition at issue here was passed by the General Assembly in April 1967, while the United States Supreme Court did not issue its Katz decision until December of that same year.

Nor am I as certain as my colleague that when the General Assembly redefined “private place” to constitute “a place where there is a reasonable expectation of privacy,” the legislature was “squarely invoking the modern Fourth Amendment test.” Concurring op. at 634, 807 S.E.2d 861. (Nahmias, J. concurring in part and concurring specially in part). Perhaps Fourth Amendment tests are more relevant under the new version of the statute—or perhaps not. After all, the amended statute still addresses a privacy interest quite different than the one that we all share against government search and seizure. But we need not make that determination until the proper case is before us, and I would decline to do so here.[86]

Grant also wrote a concurring-in-part-and-dissenting-in-part opinion (joined by Justice Hunstein) in Sponsler v. Sponsler.[87]

Writings

Although Grant does not appear to have published any law-review articles herself, she served as a research assistant for two law-review articles on national-security issues.[88] This interest appears to be a family affair, as her husband once worked at the CIA.[89]

Overall Assessment

Justice Britt Grant appears, like Newsom and Branch before her, to be a mainstream conservative nominee to the Eleventh Circuit.  With the exception of Foster v. Chatman, Grant does not appear to have participated as a lead counsel in any particularly politically charged cases, and even in Foster, the extent of her participation is not clear. Nor, from the materials I have been able to check myself–her amicus briefs notwithstanding, and those do not list her as counsel–does she appear to have publicly expressed positions on the broader constitutional and civil-right questions that would invariably come before her as an Eleventh Circuit judge. Her record as a justice on the Georgia Supreme Court seems to be in line with the other justices on that court–broad unanimity. Her membership and participation in the Federalist Society confirms her conservative views, but her appointment is unlikely–in the short term–to affect the ideological makeup of the court given that the judge she would be replacing is also more conservative.


[1] State Bar of Georgia, Hon. Britt Cagle Grant, https://www.gabar.org/MemberSearchDetail.cfm?ID=MTEzNDAz.

[7] CLOSER LOOK, A new era begins for Georgia’s Supreme Court Deal appointed half of state’s 24 justices to 2 top appellate courts, Atlanta Journal and Constitution, Jan. 10, 2017, 2017 WLNR 804272.

[9] Georgia Politics, Campaigns, and Elections for December 12, 2016, GaPundit, Dec. 12, 2016, 2016 WLNR 37904671.

[10] State’s chief justice visits Cairo, Thomasville Times-Enterprise (GA), May 18, 2017, 2017 WLNR 15729555.

[12] Sen. Comm. on the Judiciary, 115th Cong. Britt Grant: Questionnaire for Judicial Nominees (Grant SJQ) at 5, https://www.judiciary.senate.gov/imo/media/doc/Grant%20SJQ.pdf.

[16] The Latest And Greatest In President Trump’s Judicial Nominations (Part 2), https://abovethelaw.com/2018/01/the-latest-and-greatest-in-president-trumps-judicial-nominations-part-2/2/

[31] Fulton County v. City of Atlanta, 2016 WL 3043850, at *3-9, *24 (Ga. 2016).

[32] McKinney v. Fuciarelli, 2015 WL 10549708, at *3, *18 (Ga.).

[33] Foster v. Ga. Reg’l Transp. Auth., 2015 WL 1576408, *24 (Ga.).

[34] Olvera v. University System of Ga.’s Bd. of Regents, 2015 WL 4641675, *11 (Ga.) (emphasis added).

[35] In Interest of B.R.F., 332 Ga. App. 49, 50, 770 S.E.2d 912, 914 (2015), vacated sub nom. In Interest of B.R.F, 299 Ga. 294, 788 S.E.2d 416 (2016).

[36] In the Interest of B.R.F.F/K/A B.R.M., A Child., 2015 WL 5822948, at *15, *17-18 (2015).

[37] Georgia v. McCarthy, No. 15-14035, 2016 WL 2897733 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2016 WL 3227576 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2015 WL 6163726 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2015 WL 5608569 (C.A.11).

[38] Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018).

[40] Grant SJQ at 44-45.

[42] Lejeune v. McLaughlin, 299 Ga. 546, 789 S.E.2d 191 (2016).

[43] No. 15-971, 2016 WL 1298204 (U.S.).

[44] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1153 (11th Cir. 2015).

[45] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 2016 WL 1298204, *9-10 (2016).

[46] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1153 (11th Cir. 2015) (Martin, J., dissenting).

[47] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 2016 WL 1298204, *38-39 (2016) (citation, quotations, and alterations omitted).

[50] Foster v. Chatman, 136 S. Ct. 1737, 1755 (2016) (quotations and citation omitted).

[53] 559 U.S. 393 (2010).

[63] Grant SJQ at 43.

[64] Grant SJQ at 41.

[65] Ramirez v. State, 811 S.E.2d 416 (Ga. 2018); Barnett v. Caldwell, 302 Ga. 845, 809 S.E.2d 813 (2018); Sutherlin v. Sutherlin, 301 Ga. 581, 802 S.E.2d 204 (2017); Daniel v. State, 301 Ga. 783, 804 S.E.2d 61 (2017); Lebis v. State, 302 Ga. 750, 808 S.E.2d 724 (2017); Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992 (Ga. Mar. 15, 2018); Simpkins v. State, No. S18A0063, 2018 WL 2089505 (Ga. May 7, 2018).

[66] Goodrum v. State, No. S17A1748, 2018 WL 1323269 (Ga. Mar. 15, 2018); Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 807 S.E.2d 876 (2017).

[67] Barnett v. Caldwell, 302 Ga. 845, 809 S.E.2d 813 (2018); Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992 (Ga. Mar. 15, 2018).

[68] Barnett v. Caldwell, 302 Ga. 845, 852–53, 809 S.E.2d 813, 819 (2018) (Melton, J., concurring specially) (citation omitted).

[69] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *1 (Ga. Mar. 15, 2018).

[70] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *9 (Ga. Mar. 15, 2018) (quotations and citations omitted).

[71] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *8 (Ga. Mar. 15, 2018).

[78] https://scholar.google.com/scholar_case?case=17412431040748197491&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[79] Drews v. State, 810 S.E.2d 502 (Ga. 2018); Undisclosed LLC v. State, 302 Ga. 418, 807 S.E.2d 393 (2017).

[80] Schumacher v. City of Roswell, 301 Ga. 635, 641, 803 S.E.2d 66, 71–73 (2017) (Grant, J., concurring) (footnotes and citation omitted).

[81] State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (2017).

[84] State v. Cohen, 302 Ga. 616, 629, 807 S.E.2d 861, 871–72 (2017).

[85] State v. Cohen, 302 Ga. 616, 635, 807 S.E.2d 861, 875 (2017) (Grant., J., concurring specially in part).

[86] State v. Cohen, 302 Ga. 616, 635-36, 807 S.E.2d 861, 875–76 (2017) (Grant., J., concurring specially in part).

[87] Sponsler v. Sponsler, 301 Ga. 600, 800 S.E.2d 564 (2017).

[88] Mariano-Florentino Cuellar, “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953, 76 U. Chi. L. Rev. 587 (2009); Dara Kay Cohen et. al., Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 Stan. L. Rev. 673 (2006).

Bending Blue Slips: Grassley’s Strategic Error

In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction.  In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties.  Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration.  This period covers three Democratic Administrations and three Republican Administrations (twenty years of each).  In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

  • U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • U.S. Magistrate Judge J. Rich Leonard – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Judge Helene White of the Michigan Court of Appeals – nominated in 1997 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • Jorge C. Rangel – nominated in 1997 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • North Carolina Appeals Court Judge James Wynn – nominated in 1999 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Enrique Moreno – nominated in 1999 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • Kathleen McCree Lewis – nominated in 1999 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • James Lyons – nominated in 1999 to the Tenth Circuit (blue slipped by Republican Sen. Wayne Allard)
  • U.S. District Judge Robert Cindrich – nominated in 2000 to the Third Circuit (blue slipped by Republican Sen. Rick Santorum)
  • Victoria Nourse – nominated in 2010 for the Seventh Circuit (blue slipped by Republican Sen. Ron Johnson)
  • Steven Six – nominated in 2011 for the Tenth Circuit (blue slips returned but blocked upon request by Republican Sens. Pat Roberts and Jerry Moran)
  • Myra Selby – nominated in 2016 for the Seventh Circuit (blue slipped by Republican Sen. Dan Coats)
  • U.S. District Judge Abdul Kallon – nominated in 2016 for the Eleventh Circuit (blue slipped by Republican Sens. Richard Shelby and Jeff Sessions)
  • Justice Lisabeth Hughes – nominated in 2016 for the Sixth Circuit (blue slipped by Republican Sen. Mitch McConnell)
  • Rebecca Ross Haywood – nominated in 2016 for the Third Circuit (blue slipped by Republican Sen. Pat Toomey)

During Republican Administrations:

  • Stuart Summit – nominated in 1987 to the Second Circuit (processed by Judiciary Committee but blocked upon request of Sen. Alphonse D’Amato)
  • Stephen Murphy – nominated in 2006 to the Sixth Circuit (blue slipped by Democratic Sens. Carl Levin and Debbie Stabenow but ultimately confirmed to the District Court)
  • Shalom Stone – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sens. Frank Lautenberg and Bob Menendez)
  • E. Duncan Getchell – nominated in 2007 to the Fourth Circuit (blue slipped by Republican Sen. John Warner and Democratic Sen. James Webb)
  • U.S. District Judge Gene Pratter – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sen. Bob Casey)
  • Rod Rosenstein – nominated in 2007 to the Fourth Circuit (blue slipped by Democratic Sens. Barbara Mikulski and Ben Cardin)
  • U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked.  While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators.  As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on.  During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states.  In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans.  In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals.  In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees.  Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed.  Of these, 35 were from states requiring blue-slips from Republican senators.  Of these 35…

  • Five were District Court Judges originally nominated by Republican Presidents: Judges Fred Parker, Marcus, Traxler, Sotomayor, & Williams.
  • Four were District Court Judges nominated by Democratic Presidents but with strongly conservative records on the trial court: Judges Cabranes, Murphy, Hull, & Rendell.
  • Two were directly recommended by Republican senators: Judges Silverman & Tallman.
  • Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed.  Of these, 26 were from states with Republican home-state senators.  Of these 26…

  • Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.
  • Three were State Court Judges/Officials nominated by Republican Governors: Judge Christen, Phillips, & McHugh.
  • One was recommended by Republican senators: Judge Higginson.
  • Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.
  • Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.
  • Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed.  Of these, 31 were in states that had Democratic home-state senators.  Of these 31:

  • Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.
  • None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).
  • One was recommended by a Democratic senator: Judge Helene White.
  • Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall?  Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench.  Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges.  In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration.  Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals.  In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.

 

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.

 

Karen Gren Scholer – Nominee for the U.S. District Court for the Northern District of Texas

Compared to previous presidents, President Trump has nominated fewer women and racial minorities to the bench.  As such, the nomination of Karen Gren Scholer is notable: as Scholer is not a former nominee of President Obama, but is an Asian American woman.

Background

Scholer, nee Karen Anne Gren, was born in 1957 in Tokyo, Japan.  Scholer received a Bachelor of Arts at Rice University in 1979 and a Juris Doctor from Cornell University Law School in 1982.  After graduating from law school, Scholer joined the Dallas law firm Strasburger & Price, LLP. as an Associate.  In 1989, Scholer was named a Partner at the firm.

In 1996, Scholer left Strasburger & Price to join Andrews & Kurth LLP. as a partner.  She served as Partner for four years, and as Of Counsel for a few months.  In 2000, Scholer was elected as a Republican to the 95th Judicial District Court in Dallas.  Scholer was re-elected unopposed in 2004.

In 2009, Scholer left the bench to join the Dallas office of Jones Day as a Partner.  In 2014, she left Jones Day to become a Principal at the firm Carter Scholer PLLC.  She currently serves in that capacity.

In 2014, Scholer also began work as an arbitrator and mediator for the American Arbitration Association.  She also serves in that capacity presently.

On July 30, 2014, Scholer applied to Senators John Cornyn and Ted Cruz for a vacancy on the U.S. District Court for the Northern District of Texas.  In April 2015, Scholer also applied for a vacancy on the U.S. District Court for the Eastern District of Texas.  After interviews with the Obama Administration and Democratic Representatives Marc Veasey and Eddie Bernice Johnson, Scholer was nominated to a vacancy on the U.S. District Court for the Eastern District of Texas on March 15, 2016.[1]  Scholer’s nomination had the support of Cornyn and Cruz[2] but attracted opposition from East Texas Republican Rep. Louie Gohmert due to Scholer’s base in Dallas.[3]  While Scholer received a hearing before the Senate Judiciary Committee, her nomination was never approved and died at the end of the Obama presidency.

History of the Seat

Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant, and a fifth scheduled to open later next year.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Scholer has been nominated to fill opened on May 1, 2016, when Judge Jorge Antonio Solis moved to senior status.  On March 15, 2016, Obama nominated James Wesley Hendrix, the 39-year-old appellate chief of the U.S. Attorney’s Office for the Northern District of Texas to fill the vacancy.[4]  While Hendrix had the support of his home state senators and received a hearing in September 2016, his nomination never moved to the floor and thus was not confirmed.  Hendrix was not renominated to the Court by President Trump.

After the election of President Trump, Scholer applied again for the vacancies on the Eastern and Northern Districts of Texas.  Upon Cornyn and Cruz’s recommendation, Scholer was interviewed by the White House in May 2017, and officially nominated on September 7, 2017.

Legal Experience

Scholer has spent virtually her entire legal career as a civil litigator.  In her initial position at Strasburger & Price LLP., Scholer focused on personal injury cases, specializing in the defense of product liability cases.  For example, Scholer was part of the defense team in a product liability action against General Motors based on allegedly defective three-point seatbelts in the backseats.[5]  Scholer also defended Budget Rent a Car in a personal injury action over an injury caused by a falling suitcase on a shuttle bus.[6]  Scholer continued this product liability work as a partner at Andrews & Kurth LLP.

After her eight years on the bench, Scholer joined the Dallas office of Jones Day as a partner in the complex tort and product liability section.  In this role, Scholer primarily handled the defense of Yamaha in a multi-district product liability action based on the defective design of the Yamaha Rhino off road vehicle.[7]

As a named partner at Carter Scholer PLLC., Scholer handles business tort and personal injury litigation.  Scholer also occasionally represents plaintiffs, notably representing the victim of a slip-and-fall to a successful settlement.[8]

Jurisprudence and Reversals

Scholer served two four year terms as a judge on the 95th Judicial District Court in Dallas.  In this role, Scholer presiding over civil cases in Dallas, including contract and tort cases.  Scholer was also briefly appointed by Governor Rick Perry to serve on the Tenth Circuit Court of Appeals of Texas for a single case.

Of Scholer’s more prominent cases, she presided over a medical malpractice trial where the plaintiff alleged that the defendant had negligently removed fat and skin creating infection in her sutures.[9]  Scholer presided over a jury verdict for the plaintiff in $291,000 in damages.  Scholer also presided over a jury verdict to the plaintiff in an unsafe workplace case brought by the employee of a public utility company.[10]  Scholer denied a defense motion for a new trial and entered judgment for the plaintiff.[11]

In her eight years on the bench, Scholer’s opinions have been reversed or criticized by a higher court in 19 cases.  On these, two are particularly notable:

City of Dallas v. VRC, LLC. – In this case, a towing company filed suit against a Dallas ordinance setting rates for non-consensual towing of vehicles, alleging that the rates were too low, and constituted a “regulatory taking.”[12]  The City argued lack of jurisdiction due to governmental immunity, and lack of ripeness.[13]  Scholer ruled against the City on both claims, allowing the case to move ahead.[14]  The Fifth Circuit Court of Appeals of Texas reversed, finding that there was no viable regulatory takings claim under either state or federal law.[15]

Ferguson v. Building Materials Corp. of America – This case involved a personal injury suit brought after an eighteen wheeler crashed into a building which collapsed on the plaintiff.[16]  Scholer granted summary judgment to the defendants in the case, finding that the plaintiff’s claims were judicially estopped.[17]  While the Fifth Circuit affirmed Scholer, the Texas Supreme Court reversed in a per curiam decision.[18]

Political Activity

Scholer has a long history with the Republican party, having been elected twice as a Republican to the state bench.  Scholer has also volunteered with the Travis County Republican Party between 1999-2010, and has been a member of the Texas Federation of Republican Women since 1999.

Overall Assessment

As noted with Judge David Counts, nominees put forward by presidents of both parties generally fare an easier time through the confirmation process.  For her part, Scholer does not have a paper trail of controversial statements, or any particularly unorthodox legal or judicial views.  While she does have a long history as a Republican, a partisan history, in and of itself, should not be disqualifying for the bench.  As such, a prompt confirmation should be expected for Scholer, who will be the first Asian American judge on the Northern District of Texas, when confirmed.


[1] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).

[2] John Council, Cornyn Pledges to Help Obama Seat Texas Judges, Texas Lawyer, March 28, 2016, http://www.law.com/texaslawyer/almID/1202752774603/.

[3] Press Release, Office of Rep. Louie Gohmert, Gohmert Objects to President Obama’s Eastern District of Texas Judge Nominee (April 7, 2016) (on file at https://gohmert.house.gov/news/documentsingle.aspx?DocumentID=398311).  

[4] See supra n. 1.

[5] Tarrantino et al. v. General Motors Corp. et al., Cause No. 86-12794, 14th Judicial District Court of Dallas County, Texas; Judge John Marshall; 1986-89.

[6] Simmons v. Budget Rent a Car, Civil Action No. 3:81-cv-01431-F, United States District Court for the Northern District of Texas, Judge Robert Porter, 1982-84.

[7] In re: Yamaha Motor Corp., Rhino ATV Products Liability Litigation, Master File No. 3:09-MD-2016-BC, Multi District Litigation in the United States District Court, Western District of Kentucky; Judge Jennifer Coffman, 2009-2013.

[8] Bearden v. Half Price Books, Cause No. 14-1168, 134th Judicial District Court of Dallas County, Texas; Judge Dale Tiller; 2014-15.

[9] Trebold v. Fowler, M.D., Cause No. 00-06073.

[10] Dennis v. Texas Utility Co, Inc. dba TU Electric Co., Cause No. 96-09957.

[11] See id.

[12] City of Dallas v. VRC, LLC., 260 S.W.3d 60 (Tex. App.-Dallas 2008 no pet.).

[13] See id.

[14] Id.

[15] See id.

[16] Ferguson v. Building Materials Corp. of America., 295 S.W.3d 642 (Tex. 2009).

[17] Id.

[18] Id.

The End of Blue Slips? Two Reasons To Be Skeptical

This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations.  Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.”  Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.”  Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.

First, consider the source of the statement.  As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration).  Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership.  So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview.  Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.

Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed.  The White House has studiously avoided nominating judges in states with Democratic Senators.  The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues).  Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).

So, if blue slips are not dead, why would McConnell declare it so.  I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip.  As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.

One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions.  As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have.  This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips.  For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration.  Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips.  In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips.  So far, the Trump Administration has 50 judicial nominees pending before the Senate.  Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon).  So, as such, why change the rules of a game you’re winning?  If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.

 

 

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

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

Background

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

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

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

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

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

History of the Seat

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

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

Political Activity

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

Legal Experience

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

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

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

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

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

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

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

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

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

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

Scholarship

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

Habeas Corpus

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

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

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

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

Plea Bargaining

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

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

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

Apprendi

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

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

Fifth Amendment

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

Gideon and Right to Counsel

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

Prosecutorial Regulation

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

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

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

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

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

Sentencing Reform

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

Originalism

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

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

Overall Assessment

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

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

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

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

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

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


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

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

[3] See id.

[4] Kethledge also clerked for Justice Kennedy.

[5] Owens clerked for Justice Ruth Bader Ginsburg.

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

[7] See Bibas, supra n. 2

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

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

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

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

[12] See id.

[13] Id.

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

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

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

[17] Id.

[18] See id.

[19] Id. (quoting Stephanos Bibas).

[21] 564 U.S. 431 (2011).

[22] 564 U.S. 319 (2011).

[23] 132 S. Ct. 1479 (2011).

[24] 134 S. Ct. 1962 (2013).

[25] 135 S. Ct. 1995 (2015).

[26] 136 S. Ct. 1538 (2016).

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

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

[29] Id.

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

[31] Id.

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

[33] Id. 

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

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

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

[37] See Bibas, n. 33 at 56.

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

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

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

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

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

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

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

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

[46] See id. at 724.

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

[48]See id.

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

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

[51] Id. at 1288.

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

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

[54] Id. at 447.

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

[56] Id. at 1004.

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

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

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

[60] Id. at 144-45.

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

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

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

[64] Id. at 51.

[65] Id.

[66] Id. 

Justice Allison Eid – Nominee to the U.S. Court of Appeals for the Tenth Circuit

Allison Eid shares a similar background to another Trump judicial nominee, David Stras:  like Stras, Eid is a former academic; like Stras, she clerked for Justice Clarence Thomas; and like Stras, she serves on a state supreme court.  However, unlike Stras, whose nomination is currently stymied by the opposition of a home state senator, Eid has received the requisite sign-off from her home state senators, allowing her nomination to move forward.

Background

Eid was born Allison Hartwell in Seattle, Washington in 1965.  After getting a B.A. with distinction from Stanford University, Eid joined the staff of U.S. Secretary of Education William Bennett as a Special Advisor and Speechwriter.  At the end of the Reagan Administration, Eid joined the University of Chicago Law School, graduating with high honors in 1991.  After graduating, Eid clerked for the notoriously conservative Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit, and went on to clerk for Supreme Court Justice Clarence Thomas, clerking at the Supreme Court in a particularly notable year for clerks (prominent co-clerks include Justice Neil Gorsuch, Paul Clement, Prof. Eugene Volokh, and federal judges Brett Kavanaugh, Gary Feinerman, J. Paul Oetken, and Brian Morris).

In 1994, at the conclusion of her clerkship with Thomas, Eid joined Arnold & Porter, working as a litigator there for four years.  She left the firm in 1998, joining the University of Colorado Law School, teaching Torts, Constitutional Law, and Legislation.[1]

In 2005, Eid was tapped by Republican Attorney General John Suthers to be Colorado’s Solicitor General.[2]  Shortly after, Eid was one of three finalists for a vacancy on the U.S. Court of Appeals for the Tenth Circuit (eventually filled by Gorsuch).[3]  However, instead, Eid was instead nominated for a vacancy on the Colorado Supreme Court by Republican Governor Bill Owens.[4]

History of the Seat

Eid was tapped for a Colorado seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat was vacated by now-Justice Neil Gorsuch, who was elevated to the U.S. Supreme Court on April 9, 2017.

Like Gorsuch, Eid was also among the finalists for the Supreme Court vacancy left by Justice Antonin Scalia’s death.[5]

Political Activity

Colorado Supreme Court justices serve ten year terms, with retention elections marking the end of every term.  Since her appointment in 2006, Eid has come up for retention once (in 2008) and was retained with 75% of voters in support.[6]

Other than her time in judicial elections, Eid has minimal involvement with electoral politics.  She has made small contributions to former Republican senator Wayne Allard,[7] and to failed Republican congressional candidate Greg Walcher.[8]

Legal Career

While Eid has spent most of her legal career either as an academic or as a jurist, she has four years of experience in private practice working at Arnold & Porter.  Among her work there, Eid was part of the legal team defending investors who recovered profits from a Ponzi scheme.  Eid helped successfully defend the recovered profits against actions by bankruptcy trustees seeking “fictitious profits”.[9]

Jurisprudence

Eid has served on the Colorado Supreme Court for approximately eleven years.  As the Colorado Supreme Court has discretionary review, Eid hears appeals on issues of exceptional importance, as well as constitutional challenges, death penalty cases, and certain election law issues. During her tenure, Eid has carved out a pattern as the most conservative justice on the court, frequently voting in favor of narrow interpretations of criminal and civil protections.  Below are some patterns drawn from her jurisprudence.

Conservative View of Tort Remedies

A former torts professor, Eid has worked on the bench to narrow avenues for tort remedies, including limiting liability,[10] reading affirmative defenses broadly,[11] and expanding immunity.[12]  In one case, for example, Eid dissented from a majority opinion that expanded the “attractive nuisance” doctrine to cover all children in Colorado.[13]

In another case, the Colorado Supreme Court eliminated the “sudden emergency doctrine”: a common law defense for defendants whose negligence was borne from responding to a “sudden emergency.”[14]  In dissent, Eid noted:

“[The sudden emergency doctrine] simply repeats the standard negligence formulation that the jury is to determine whether the defendant’s conduct was reasonable under the circumstances, including circumstances that would amount to a sudden emergency…”[15]

Narrow Interpretation of Criminal Procedural Protections

Eid also takes a conservative view of criminal procedural protections, interpreting the Fourth, Fifth, and Sixth Amendments and their protections narrowly, and frequently voting against motions to suppress.

For example, in one case, Eid joined a dissent by Justice Nathan Coats arguing that revoking a defendant’s probation for refusing to answer questions posed to him did not violate his Fifth Amendment rights.[16]  In another dissent, Eid argues that threatening a defendant with deportation to Iraq does not render his subsequent statements involuntary.[17]

Similarly, Eid has also generally voted against defendants who have argued for Fourth Amendment relief based on unreasonable searches and seizures.[18]  For example, in one case, Eid was the lone dissenter arguing that a warrantless search of a cell-phone did not violate a defendant’s Fourth Amendment rights as the defendant had abandoned the cell-phone.[19]

Unwillingness to Consider Legislative History

Similar to Justices Scalia and Thomas, Eid refuses to consider legislative history in analyzing the meaning of statutes.[20]

For example, in one case, Eid notes:

“I join the majority opinion because I agree that under the plain language of section 10-4-110.5(1), C.R.S. (2007), Granite State’s late notice resulted in a forty-five-day extension of the old policy, but not in a full-term renewal. See maj. op. at 14. I write separately to note that I would not resort to an examination of the statute’s legislative history.”[21]

Reversals

The Colorado Supreme Court, on which Eid serves, is the final authority on the interpretation of the Colorado Constitution and statutes.  As such, the only decisions of the Colorado Supreme Court that can be appealed to the U.S. Supreme Court are interpretations of the U.S. Constitution or federal law.

During Eid’s eleven year tenure on the bench, only a handful of Colorado Supreme Court cases have made it up to the Supreme Court.  We have outlined the key cases below.

Air Wisconsin Airlines Corp. v. Hoeper was a defamation action brought by a pilot based on statements to the TSA by airline employees questioning his mental stability.  After the jury returned a verdict for the plaintiff, the Colorado Court of Appeals affirmed.  The Colorado Supreme Court also affirmed the verdict in a 4-3 decision, holding that the airline employees were not immunized by Congress for their remarks.[22]  Eid concurred in part and dissented in part, joined by two colleagues, arguing that the airline and its employees were immune from the defamation action under the Aviation and Transportation Security Act (ATSA), and furthermore, that the statements made were not materially false.[23]  The Supreme Court granted certiorari and reversed the Colorado Supreme Court.  Writing for a six justice majority, Justice Sotomayor agreed with Eid’s dissent that the challenged statements were not materially false, and that, in any case, the airline was immunized under the ATSA.[24]  Justice Scalia, joined by Justices Thomas and Kagan, concurred with the opinion, agreeing with the reversal but noting that the material falsity of the challenged statements is a factual issue best left to the lower courts.[25]

Pena-Rodriguez v. Colorado involved the question of whether racial animus on the part of a juror permitted a trial judge to grant a new trial.  One of the jurors in the panel that convicted Pena-Rodriguez expressed anti-Hispanic sentiments during the jury deliberations.  After the trial court denied a motion for a new trial, and the Colorado Court of Appeals affirmed, the Colorado Supreme Court held on a 4-3 vote that the Colorado Rule of Evidence 606(b) barred inquiry into racist juror statements, and that such statements did not violate Pena-Rodriguez’s Sixth Amendment right to a fair trial.[26]  Eid joined a dissent by Justice Monica Marquez, which argued that inquiries into racially biased statements by jurors were permitted when they compromised a defendant’s Sixth Amendment rights.[27]  The U.S. Supreme Court, in a 5-3 vote agreed.  Writing for the majority, Justice Kennedy found that, where there is compelling evidence that racial animus motivated a jury decision, the Sixth Amendment requires examination.[28]

Nelson v. Colorado was a challenge to a Colorado statute that required defendants whose convictions have been reversed or vacated to prove their actual innocence by clear and convicing evidence before they could get a refund of the court costs, fees, and restitution paid.  The Colorado Supreme Court, in a 5-1 decision, with Eid in the majority, held that the statute was constitutional.[29]  In dissent, Justice Richard Hood noted that keeping money paid by a defendant who was legally innocent was a violation of the Due Process Clause.[30]  In a 7-1 decision, the U.S. Supreme Court agreed.  Writing for the majority, Justice Ginsburg found that the Colorado Statute violated the Fourteenth Amendment’s guarantee of due process.[31]  Only Justice Thomas, in a lone dissent, sided with the majority (and Eid).[32]

Scholarship

During her time as a law professor, Eid has written many articles discussing salient law and policy issues.  We have outlined the main topics of her writings below, along with the themes on each topic.

Federalism

Eid has written extensively on constitutional structure, specifically on federalism.  Specifically, Eid has analyzed New Federalism, the re-invogaration of federal structure and states rights by the Rehnquist Court.  Eid defends New Federalism against critiques that it is too formalistic, arguing that the Court’s decisions striking down broad federal schemes recognize the value of federalism.[33]  In another article, Eid argues that formalism in constitutional interpretation helps to “counteract the Justices’ inherent tendency to nationalism.”[34]

Similarly, Eid also argues for a limited role for the federal government in other contexts.  In one article, she disputes the argument that the Property Clause of the U.S. Constitution gives the federal government broad authority to regulate environmental policy.[35]  In another, she notes that the Supremacy Clause is not a “repository of congressional power” but rather a mere conflict-of-laws provision.[36]

Tort Reform

As a former torts professor, Eid has written and spoken repeatedly on tort law, usually in support of conservative tort reform.

In a 2001 symposium talk, Eid speaks approvingly of tort reform measures imposed in Colorado, including limitations on joint and several liability, and caps on punitive damages.[37]  In her law review note as a student, Eid spoke in support of expanded immunity to federal civil rights actions (specifically 1983 suits) for private parties.[38]  Specifically, she notes that opening public and private parties to civil rights liability could cause them to be “deterred by undue fear of frivolous litigation.”[39]

Overall Assessment

Eid is an ideal judicial candidate from a conservative perspective.  She has a conservative pedigree (having clerked for Smith and Thomas) and a conservative record of jurisprudence.  Furthermore, her writings on federalism and tort reform should draw support from those favoring a more right-wing judiciary.

As such, Eid will likely trigger strong opposition from Senate Democrats.  They will likely argue that her judicial record shows an unwillingness to defend the rights of civil plaintiffs and criminal defendants, and will paint her as a clone of her mentor Justice Thomas.  For Senate Republicans, these same qualities will be argued to be a positive.  As Republicans still maintain a majority in the U.S. Senate (and as Democratic Colorado Senator Michael Bennet has returned his blue slip on Eid), there is little Democrats can do to stop her nomination.

As such, Eid is likely to bring a strong voice for limits on government power, and restrictions on tort liability to the Tenth Circuit.  Democrats can take some comfort from the fact that Eid’s departure will permit Democratic Governor John Hickenlooper to make another appointment to the Colorado Supreme Court, reshaping it in a more liberal direction.


[1] Colorado Judicial Branch, Biography of Justice Allison Eid, https://www.courts.state.co.us/Bio.cfm?Employee_ID=70.

[2] Press Release, University of Colorado Law School, Allison Eid is new Colorado Solicitor General (July 30, 2005) (on file at http://lawweb.colorado.edu/news/showArticle.jsp?id=91).  

[3] Alicia Caldwell, Colorado Trio Eyed for U.S. Appeals Post, The Denver Post, Jan. 10, 2006, http://www.denverpost.com/2006/01/10/colorado-trio-eyed-for-u-s-appeals-bench/.  

[4] AP, Owens Names Solicitor General to Supreme Court, Denver ABC 7, Feb. 15, 2006, http://www.thedenverchannel.com/news/owens-names-solicitor-general-to-supreme-court.

[5] Jill Colvin,Trump’s Supreme Court List Underscores Election’s Importance, The Associated Press, May 19, 2017, https://web.archive.org/web/20160519104509/http://hosted.ap.org/dynamic/stories/U/US_GOP_2016_TRUMP_SUPREME_COURT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-05-18-14-08-40.  

[6] Colorado Supreme Court 2008 General Election Results, http://data.denverpost.com/election/results/supreme-court/2008/.

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=allison+hartwell (last visited Sept. 18, 2017).

[9] See Sender v. Simon, 84 F.3d 1299 (10th Cir. 1996).

[10] See, e.g., Fleury v. IntraWest Winter Park Oper., 372 P.3d 349 (Colo. 2016) (finding that an in-bound avalanche was included among the “risks of skiing” for liability purposes).  

[11] See, e.g., Hesse v. McClintic, 176 P.3d 759 (Colo. 2008) (finding sufficient evidence to submit comparative negligence instruction to jury).  

[12] See, e.g., Burnett v. Colorado Dep’t of Nat. Res., 346 P.3d 1005 (Colo. 2016) (Eid, J., concurring) (finding that the plain text of the Colorado Governmental Immunity Act prevents tort relief from injury caused by tree limb).  

[13] S.W. v. Towers Boat Club, 315 P.3d 1257 (Colo. 2013) (Eid, J., dissenting).

[14] Bedor v. Johnson, 292 P.3d 924 (Colo. 2013).

[15] See id. at 931 (Eid, J., dissenting).

[16] In re People v. Roberson, 377 P.3d 1039, 1049 (Colo. 2016) (Coats, J., dissenting).  

[17] People v. Ramadon, 314 P.3d 836, 845 (Colo. 2013) (Eid, J., dissenting).

[18] See People v. Cox, 2017 Colo. LEXIS 88; People v. Fuerst, 302 P.3d 253 (Colo. 2013) (Hobbs, J., concurring in the judgment); People v. Arapu, 283 P.3d 680 (Colo. 2012); People v. McCarty, 229 P.3d 1041, 1046 (Colo. 2010) (Eid, J., dissenting). But see People v. Herrera, 357 P.3d 1227 (Colo. 2015) (affirming trial court suppression order).

[19] People v. Schutter, 249 P.3d 1123, 1126 (Colo. 2011) (Eid, J., dissenting).  

[20] See Burnett v. Colorado Dep’t of Nat. Res., 346 P.3d 1005 (Colo. 2016) (Eid, J., concurring).

[21] Granite State Ins. Co. v. Ken Caryl Ranch Master Assoc., 183 P.3d 563, 568 (Colo. 2008) (Eid, J., concurring).

[22] Air Wisconsin Airlines Corp. v. Hoeper, 320 P.3d 830 (Colo. 2012).  

[23] Id. at 842 (Eid, J., concurring in part and dissenting in part).

[24] Air Wisconsin Airlines Corp. v. Hoeper, 134 S.Ct. 852, 858 (2014). 

[25] See id. at 867 (Scalia, J., concurring in part and dissenting in part).

[26] State v. Pena-Rodriguez, 350 P.3d 287, 289 (Colo. 2015).  

[27] Id. at 293-94 (Marquez, J., dissenting).  

[28] Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017).  

[29] State v. Nelson, 362 P.3d 1070 (Colo. 2015).  

[30] Id. at 1079 (Hood, J., dissenting).

[31] Nelson v. Colorado, 137 S.Ct. 1249, 1254 (2017).

[32] Id. at 1263 (Thomas, J., dissenting).  

[33] Allison H. Eid, Federalism and Formalism, 11 Wm. & Mary Bill of Rts. J. 1191 (April 2003).

[34] Allison H. Eid, Judge White and the Exercise of Judicial Power: Justice White’s Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism, and Judicial Restraint, 74 U. Colo. L. Rev. 1629, 1634 (Fall 2003).

[35] Allison H. Eid, Constitutional Conflicts on Public Lands: The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241 (Fall 2004).

[36] Allison H. Eid, Pre-emption and the Federalism Five, 37 Rutgers L. J. 1, 38 (Fall 2005).

[37] Allison H. Eid, Symposium: Panel Four: Tort  Law in the Federal System: An Exchange on Constitutional and Policy Considerations, 31 Seton Hall L. Rev. 740 (2001).

[38] Allison Hartwell Eid, Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (Fall 1990).

[39] See id. at 1351.