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Judge Andrew Brasher – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Six months ago, Judge Andrew Brasher was narrowly confirmed to be a U.S. District Court Judge.  Now, the 38-year-old Brasher is ready to move on from the position to the U.S. Court of Appeals for the Eleventh Circuit.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General of Alabama.[3] 

In April 2018, Brasher was nominated to the U.S. District Court for the Middle District of Alabama, filling a longstanding vacancy opened by the resignation of Judge Mark Fuller.  Brasher was confirmed by the Senate in a 52-47 vote on May 1, 2019, and has served on the Middle District since then.

History of the Seat

Brasher has been nominated for a seat on the U.S. Court of Appeals for the Eleventh Circuit.  The seat is being vacated by Judge Edward Carnes, who has a reputation as one of the most conservative judges on an already conservative court.

Legal Experience

Setting aside his clerkship, Brasher had two main legal jobs before he joined the federal bench: as an associate at Bradley Arant; and as Deputy Solicitor General and Solicitor General of Alabama.  During his time at Bradley Arant, Brasher worked in complex civil litigation, including product liability cases.  At the firm, he notably represented Republican Gov. Bob Riley in defending a controversial line item veto (later overturned by the Alabama Supreme Court).[12]

As the Deputy Solicitor General and Solicitor General of Alabama, Brasher defended Alabama laws and convictions before state and federal courts.  As such, Brasher argued three cases before the U.S. Supreme Court.  

In McWilliams v. Dunn, Brasher defended the imposition of the death penalty on James McWilliams, who alleged that he had serious mental health issues.[13]  McWilliams argued that Supreme Court precedent required him to have access to a defense expert to provide evidence of mental incapacity, which Brasher disputed.  The Supreme Court ultimately sidestepped the question of whether McWilliams was entitled to a defense expert, ruling instead that the judge erred in denying any expert examination of McWilliam’s mental state.[14] 

In Alabama Legislative Black Caucus v. Alabama, Brasher defended the constitutionality of Alabama’s state legislative districts.  The districts were ultimately struck down by the Supreme Court as an unconstitutional racial gerrymander intended to disenfranchise African American voters.[15]  Additionally, in Alabama Department of Revenue v. CSX Transp., Inc., Brasher defended an Alabama tax on diesel for rail carriers while exempting competitor industries against charges that it was discriminatory.  The Court ultimately held that Alabama had violated federal law.[16]

In addition to his Supreme Court work, Brasher has also litigated extensively in Alabama state and federal courts.  Notably, Brasher defended the constitutionality of “admission privilege” requirements for abortion providers in Alabama, struck down by Judge Myron Thompson, and ultimately enjoined after the Supreme Court struck down a virtually identical law in Whole Woman’s Health.[17]  Brasher also successfully defended Alabama’s ban on PAC-to-PAC transfers against allegations that it violated the First Amendment.[18]

Jurisprudence

Brasher has served on the U.S. District Court for the Middle District of Alabama since May 2019.  In the six months that he has served on the bench, Brasher has issued a number of orders and opinions in cases.  Many of the cases in which Brasher has authored opinions have been cases of employment discrimination.  In most of these, Brasher has sided with the employer, granting summary judgment in their favor in cases alleging racial,[19] age-based,[20] and disability-based discrimination.[21] 

However, Brasher has shown himself to be open to employee claims in some cases.  For example, in one case, Brasher allowed the sexual harassment claims of a male employee against Koch Foods to move to trial, noting that the employee had offered evidence that his female boss had terminated his employment shortly after he denied her sexual advances.[22]  Similarly, he granted summary judgment in favor of restaurant workers who were improperly denied minimum wages and overtime payments under the Fair Labor Standards Act.[23]

In other cases, Brasher ruled against a Dothan-based doctor who sued the federal government seeking refunds of tax payments,[24] and held that the Commodity Futures Trading Commission (CFTC) could not seek the maximum statutory penalty of disgorgement against corporations who had violated the Commodity Exchange Act.[25] 

Writings and Speeches

Setting aside the official positions he took as Alabama Solicitor General, Brasher had written and spoken extensively on legal and political issues before he joined the bench.  

Charitable Donations

On July 21, 2015, Brasher moderated a debate titled “Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations.”  The discussion was between Dr. Craig Holman from Public Citizen and Hans Von Spakovsky of the Heritage Foundation.[26]  While Brasher did not interject often in the debate, he did ask a couple of questions to each panelist.[27]

Federal Regulation

On February 4, 2017, Brasher served on a Federalist Society panel titled “Combating Federal Overreach.”[28]  The panel consisted of Brasher and the Solicitor Generals of Florida, West Virginia, and Texas, moderated by Allen Winsor, a former Florida Solicitor General who is now up for a federal judgeship.  Brasher specifically discussed the litigation over the EPA’s control of “navigable waters” as defined by the Clean Water Act and interpreted by the Army Corps of Engineers.  Brasher criticizes the rule as overly broad and beyond the statutory intent of Congress.  Later, Brasher also criticizes local regulations, noting:

“…oftentimes, you actually see a locality within a state that’s really, sort of, in league with the federal government against the state’s authority.”[29]

Same-Sex Marriage

In 2015, while defending Alabama’s ban on same-sex marriage before the U.S. Supreme Court, Brasher wrote an article on the subject on SCOTUSBlog.[30]  In the piece, Brasher argues that the Supreme Court “should at least reject the argument that these laws serve no legitimate state interest.”[31]  Instead, he argued that states maintained a legitimate interest in limiting marriage to opposite sex couples, noting:

“I hope that . . . [the Court] does not malign the majority of voters in a majority of states as irrationally prejudiced.”[32] 

Death Penalty

Shortly after the Supreme Court narrowly upheld Oklahoma’s lethal injection procedure in Glossip v. Gross, Brasher authored an article in SCOTUSBlog supporting the decision.[33]  In the article, Brasher argues that disputes about the method of administering the death penalty are actually about the legality of the penalty itself, stating:

“Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?”[34]

However, Brasher also acknowledges some of the arguments of death penalty opponents, noting:

“It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process.”

Redistricting

Shortly after the U.S. Supreme Court struck down North Carolina’s redistricted maps in Cooper v. Harris, Brasher published an article critical of the decision.[35]  Brasher suggested that the decision would lead to more judicial intervention in redistricting without providing adequate standards for them to do so, and suggested that courts impose a requirement on plaintiffs to offer a map that would meet the partisan goals of the legislature.[36]

Political Activity

Brasher, a Republican, has worked as a volunteer on the 2010 campaigns of Luther Strange to be Attorney General and of Bradley Byrne (now a U.S. Representative) to be Governor of Alabama.[37]  Brasher also served on the Trump Transition Team, coordinating criminal justice policy with the incoming Administration.[38]

In addition, Brasher donated $300 to the Alabama Republican Party in 2015, his only notable political contribution.[39]

Overall Assessment

Despite Brasher’s significant experience with litigation, his youth and strongly conservative writings and experience made him a controversial nominee at the district court level and caused his nomination to sit for over a year before confirmation by a narrow vote.  Now, as an appellate nominee, Brasher may well have a faster confirmation, simply because Republicans tend to prioritize appellate nominees.  Nonetheless, Brasher’s brief tenure as a district court judge, as well as his youth and conservative ideology, is likely to make him a controversial nominee.

[1] Sen. Comm. on the Judiciary, 115th Cong., Andrew Brasher: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[5] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[6] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[7] Matt Apuzzo and Michael S. Schmidt, Trump Judicial Pick Did Not Disclose He is Married to a White House Lawyer, N.Y. Times, Nov. 13, 2017, https://www.nytimes.com/2017/11/13/us/politics/trump-judge-brett-talley-nomination.html?_r=0.  

[8] Zoe Tillman, A Trump Judicial Nominee Appears to have Written About Politics on a Sports Website and Didn’t Disclose It, Buzzfeed News, Nov. 13, 2017, https://www.buzzfeed.com/zoetillman/a-trump-judicial-nominee-appears-to-have-written-about?utm_term=.lfJaLQm8G#.atjgYrER6.

[9] Mark Joseph Stern, Trump Judicial Nominee Brett Talley Appears to Have Defended “the First KKK” in Message Board Post, Slate, Nov. 15, 2017, http://www.slate.com/blogs/the_slatest/2017/11/15/trump_nominee_brett_talley_appears_to_have_defended_the_first_kkk.html.  

[10] Zoe Tillman, The White House Says Two of Trump’s Controversial Judicial Nominees Won’t Go Forward, BuzzFeed News, Dec. 12, 2017, https://www.buzzfeed.com/zoetillman/trump-is-suddenly-facing-a-significant-republican-roadblock?utm_term=.bo9w8BdnA#.siJmaqzpA.  

[11] See Brasher, supra n. 1 at 40-41.

[12] McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

[13] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

[14] See id.

[15] See 135 S. Ct. 1257 (2015).

[16] 135 S. Ct. 1136 (2015).

[17] See Planned Parenthood Southeast v. Strange, 2:13cv405-MHT (M.D. Ala.).

[18] Alabama Democratic Conference v. Attorney Gen., 838 F.3d 1057 (11th Cir. 2016).

[19] James v. City of Montgomery, Case No. 2:17-cv-528-ALB, 2019 WL 3346530 (M.D. Ala. July 25, 2019).

[20] See Knowles v. Inzi Controls Alabama, Inc., Case No. 1:17-cv-839-ALB, 2019 WL 4551609 (M.D. Ala. Sept. 19, 2019).

[21] See Hughes v. Wal-Mart Stores East, LP, Case No. 2:17-cv-225-ALB, 2019 WL 6048878 (M.D. Ala. Nov. 14, 2019).

[22] See Fuller v. Koch Foods, Inc., Case No. 2:17-cv-96-ALB, 2019 WL 3072633 (M.D. Ala. July 12, 2019).

[23] See Moulton v. W.W.I., Inc., Case No. 1:18-cv-67-ALB, 2019 WL 3558032 (M.D. Ala. Aug. 5, 2019).

[24] Turnham v. United States, 383 F.Supp.3d 1288 (M.D. Ala. 2019).

[25] U.S. Commodity Futures Trading Comm’n v. Dinar Corp., Inc., Case No. 1:15-cv-538-ALB, 2019 WL 3842069 (M.D. Ala. May 30, 2019).

[26] Andrew Brasher, Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations (July 21, 2015) (video available at https://www.youtube.com/watch?v=_1tFCp-rYGQ).  

[27] Id. at 41:22.

[28] Andrew Brasher, Combatting Federal Overreach (Feb. 4, 2017) (video available at https://www.youtube.com/watch?v=s-71pu5xnOA).

[29] Id. at 1:19:45.

[30] Andrew Brasher, Good Faith and Caution, Not Irrationality or Malice, SCOTUSBlog, Jan. 16, 2015, http://www.scotusblog.com/2015/01/symposium-good-faith-and-caution-not-irrationality-or-malice/.

[31] See id.

[32] Id.

[33] Andrew Brasher, The Death Penalty Lives to Fight Another Day, SCOTUSBlog, June 29, 2015, http://www.scotusblog.com/2015/06/symposium-the-death-penalty-lives-to-fight-another-day/.  

[34] Id.

[35] Andrew Brasher, A Recipe for Continued Confusion and More Judicial Involvement in Redistricting, SCOTUSBlog, Mar. 23, 2017, http://www.scotusblog.com/2017/05/symposium-recipe-continued-confusion-judicial-involvement-redistricting/.  

[36] Id.

[37] See Brasher, supra n. 1 at 20.

[38] See id.

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Andrew Brasher – Nominee for the U.S. District Court for the Middle District of Alabama

Late last year, the Trump Administration suffered an unusual and embarrassing defeat when Alabama judicial nominee Brett Talley withdrew in the face of bipartisan opposition.  Among the many knocks against Talley were his youth and inexperience.  Now, the Administration has replaced Talley with Alabama Solicitor General Andrew Brasher, who is just as young, but brings a significantly greater amount of courtroom experience.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General (working with Talley in the office).[3]  Brasher continues to serve in the office.

History of the Seat

Brasher has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on August 1, 2015, when Judge Mark Fuller resigned after his arrest for domestic violence.[4]  Despite the seat opening in President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[5]

In September 2017, the Trump Administration nominated Talley to the court.[6]  Unfortunately, Talley’s nomination quickly drew criticism from Democrats for his youth and lack of experience.  Shortly after his nomination passed through the Judiciary Committee on a party-line vote, it became public that Talley did not disclose his marriage to Ann Donaldson, the chief of staff to White House Counsel Don McGahn in his paperwork.[7]  Soon after, news broke of undisclosed posts and comments written by Talley under a pseudonym,[8] including message board comments defending “the first KKK.”[9]  Facing increasing bipartisan pushback to Talley’s nomination, the White House agreed to withdraw Talley’s nomination.[10]

On December 9, 2017, Sen. Richard Shelby (R-AL) reached out to Brasher to schedule an interview for the Middle District vacancy.[11]  Shelby recommended Brasher to the White House in late December.  Brasher was officially nominated on April 10, 2018.

Legal Experience

Setting aside his clerkship, Brasher has had two main legal jobs: as an associate at Bradley Arant; and as Deputy Solicitor General and Solicitor General of Alabama.  During his time at Bradley Arant, Brasher worked in complex civil litigation, including product liability cases.  At the firm, he notably represented Republican Gov. Bob Riley in defending a controversial line item veto (later overturned by the Alabama Supreme Court).[12]

As the Deputy Solicitor General and Solicitor General of Alabama, Brasher defended Alabama laws and convictions before state and federal courts.  As such, Brasher argued three cases before the U.S. Supreme Court.

In McWilliams v. Dunn, Brasher defended the imposition of the death penalty on James McWilliams, despite the latter’s alleged serious mental health issues.[13]  McWilliams argued that Supreme Court precedent required him to have access to a defense expert to provide evidence of mental incapacity, which Brasher disputed.  The Supreme Court ultimately sidestepped the question of whether McWilliams was entitled to a defense expert, ruling instead that the judge erred in denying any expert examination of McWilliam’s mental state.[14]

In Alabama Legislative Black Caucus v. Alabama, Brasher defended the constitutionality of Alabama’s state legislative districts.  The Supreme Court ultimately reversed the lower court ruling upholding the districts, suggesting that many of whom constituted racial gerrymanders.[15]  Additionally, in Alabama Department of Revenue v. CSX Transp., Inc., Brasher defended an Alabama tax on diesel for rail carriers while exempting competitor industries against charges that it was discriminatory.  The Court ultimately held that Alabama had violated federal law.[16]

In addition to his Supreme Court work, Brasher has also litigated extensively in Alabama state and federal courts.  Notably, Brasher defended the constitutionality of “admission privilege” requirements for abortion providers in Alabama, struck down by Judge Myron Thompson, and ultimately enjoined after the Supreme Court struck down a virtually identical law in Whole Woman’s Health.[17]  Brasher also successfully defended Alabama’s ban on PAC-to-PAC transfers against allegations that it violated the First Amendment.[18]

Writings and Speeches

Setting aside his official positions as Alabama Solicitor General, Brasher had written and spoken extensively on legal and political issues.

 

Federal Regulation

On February 4, 2017, Brasher served on a Federalist Society panel titled “Combating Federal Overreach.”[19]  The panel consisted of Brasher and the Solicitor Generals of Florida, West Virginia, and Texas, moderated by Allen Winsor, a former Florida Solicitor General who is now up for a federal judgeship.  On the panel, Brasher discussed the litigation over the EPA’s control of “navigable waters” as defined by the Clean Water Act and interpreted by the Army Corps of Engineers.  Brasher criticizes the rule as overly broad and beyond the statutory intent of Congress.  Later in the discussion, Brasher also criticized local regulations, noting:

“…oftentimes, you actually see a locality within a state that’s really, sort of, in league with the federal government against the state’s authority.”[20]

Charitable Donations

On July 21, 2015, Brasher moderated a debate titled “Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations.”  The discussion was between Dr. Craig Holman from Public Citizen and Hans Von Spakovsky of the Heritage Foundation and discussed IRS interference in not-for-profits and political organizations.[21]

Same-Sex Marriage

In 2015, while defending Alabama’s ban on same-sex marriage before the U.S. Supreme Court, Brasher wrote an article on the subject on SCOTUSBlog.[22]  In the piece, Brasher argues that the Supreme Court “should at least reject the argument that these laws serve no legitimate state interest.”[23]  Brasher suggests that states maintain a legitimate interest in limiting marriage to opposite sex couples, noting:

“I hope that . . . [the Court] does not malign the majority of voters in a majority of states as irrationally prejudiced.”[24]

Death Penalty

Shortly after the Supreme Court narrowly upheld Oklahoma’s lethal injection procedure in Glossip v. Gross, Brasher authored an article in SCOTUSBlog supporting the decision.[25]  In the article, Brasher argues that disputes about the method of administering the death penalty are actually about the legality of the penalty itself, stating:

“Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?”[26]

However, Brasher also acknowledges some of the arguments of death penalty opponents, noting:

“It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process.”

Redistricting

Shortly after the U.S. Supreme Court struck down North Carolina’s redistricted maps in Cooper v. Harris, Brasher published an article critical of the decision.[27]  Brasher suggests that the decision would lead to more judicial intervention in redistricting without providing adequate standards for them to do so.  Brasher also suggests that courts impose a requirement on plaintiffs to offer a map that would meet the partisan goals of the legislature.[28]

Political Activity

Brasher, a Republican, has worked as a volunteer on the 2010 campaigns of Luther Strange to be Attorney General and of Bradley Byrne (now a U.S. Representative) to be Governor of Alabama.[29]  Brasher also served on the Trump Transition Team, coordinating criminal justice policy with the incoming Administration.[30]

In addition, Brasher donated $300 to the Alabama Republican Party in 2015, his only notable political contribution.[31]

Overall Assessment

While Brasher is the exact same age as Brett Talley, he approaches the confirmation process with several key advantages that the latter did not have.

First, Brasher has served as Solicitor General, a position that has given him significant litigation experience, including three Supreme Court oral arguments.  In recognition of this fact, a substantial majority of the American Bar Association Standing Committee on the Judiciary rated Brasher “Qualified” for the judicial appointment, with a minority finding him “Well Qualified.” (In comparison, the Committee had unanimously found Talley “Not Qualified.”)

Second, Brasher has not, to our knowledge, ever blogged, anonymously or otherwise, on his personal political views.  Rather, his writings, while revealing a conservative judicial philosophy, focus on interpreting and understanding Supreme Court precedent.

That being said, Brasher will still likely attract significant opposition to his confirmation.  First, having defended many controversial positions as Solicitor General (and having lost repeatedly before the Supreme Court), Brasher will no doubt be called upon to answer for the stances he took.  Second, Brasher’s involvement in the Federalist Society will likely draw criticism, given much scrutiny over the conservative organization’s outsized influence over Trump’s court nominees.  As such, given Brasher’s background and expected longevity on the bench, Brasher will likely be opposed by most Democrats.  Nevertheless, unlike his predecessor, Brasher remains a favorite to be confirmed.

[1] Sen. Comm. on the Judiciary, 115th Cong., Andrew Brasher: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[5] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[6] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[7] Matt Apuzzo and Michael S. Schmidt, Trump Judicial Pick Did Not Disclose He is Married to a White House Lawyer, N.Y. Times, Nov. 13, 2017, https://www.nytimes.com/2017/11/13/us/politics/trump-judge-brett-talley-nomination.html?_r=0.  

[8] Zoe Tillman, A Trump Judicial Nominee Appears to have Written About Politics on a Sports Website and Didn’t Disclose It, Buzzfeed News, Nov. 13, 2017, https://www.buzzfeed.com/zoetillman/a-trump-judicial-nominee-appears-to-have-written-about?utm_term=.lfJaLQm8G#.atjgYrER6.

[9] Mark Joseph Stern, Trump Judicial Nominee Brett Talley Appears to Have Defended “the First KKK” in Message Board Post, Slate, Nov. 15, 2017, http://www.slate.com/blogs/the_slatest/2017/11/15/trump_nominee_brett_talley_appears_to_have_defended_the_first_kkk.html.  

[10] Zoe Tillman, The White House Says Two of Trump’s Controversial Judicial Nominees Won’t Go Forward, BuzzFeed News, Dec. 12, 2017, https://www.buzzfeed.com/zoetillman/trump-is-suddenly-facing-a-significant-republican-roadblock?utm_term=.bo9w8BdnA#.siJmaqzpA.  

[11] See Brasher, supra n. 1 at 40-41.

[12] McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

[13] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

[14] See id.

[15] See 135 S. Ct. 1257 (2015).

[16] 135 S. Ct. 1136 (2015).

[17] See Planned Parenthood Southeast v. Strange, 2:13cv405-MHT (M.D. Ala.).

[18] Alabama Democratic Conference v. Attorney Gen., 838 F.3d 1057 (11th Cir. 2016).

[19] Andrew Brasher, Combatting Federal Overreach (Feb. 4, 2017) (video available at https://www.youtube.com/watch?v=s-71pu5xnOA).

[20] Id. at 1:19:45.

[21] Andrew Brasher, Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations (July 21, 2015) (video available at https://www.youtube.com/watch?v=_1tFCp-rYGQ).

[22] Andrew Brasher, Good Faith and Caution, Not Irrationality or Malice, SCOTUSBlog, Jan. 16, 2015, http://www.scotusblog.com/2015/01/symposium-good-faith-and-caution-not-irrationality-or-malice/.

[23] See id.

[24] Id.

[25] Andrew Brasher, The Death Penalty Lives to Fight Another Day, SCOTUSBlog, June 29, 2015, http://www.scotusblog.com/2015/06/symposium-the-death-penalty-lives-to-fight-another-day/.  

[26] Id.

[27] Andrew Brasher, A Recipe for Continued Confusion and More Judicial Involvement in Redistricting, SCOTUSBlog, Mar. 23, 2017, http://www.scotusblog.com/2017/05/symposium-recipe-continued-confusion-judicial-involvement-redistricting/.  

[28] Id.

[29] See Brasher, supra n. 1 at 20.

[30] See id.

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The Unexpected Opportunity – Assessing the Landscape of Judicial Vacancies

While the Georgia runoff still awaits, as of the writing of this article, Democrats have defied political history and maintained their razor-thin Senate majority past the midterm elections. With the loss of the House, Democrats are unlikely to pass transformative legislation in the next two years, freeing the Senate to prioritize nominations (where the House has no role). Court watchers will likely welcome this, as, despite historic successes with their razor-thin majority, the Biden Administration has little time to rest if it intends to fill a sizeable proportion of the 100+ lower court vacancies currently pending in the federal judiciary. Currently, there are sixteen circuit court vacancies and ninety-seven district court vacancies pending (including seats announced to be vacated but currently still full). In comparison, 56 judicial nominees are currently before the senate, twelve to circuit courts and 44 to district courts. As the Biden Administration and Senate Democrats turn to nominations and confirmations, it’s useful to look again at the current landscape.

As a reminder, the process for choosing circuit and district court nominees is fairly different. After the practice of requiring blue slips for appellate nominees was terminated during the Trump Administration, the Administration is under no obligation to secure pre-approval from home state senators before the nominee can receive a hearing. However, in practice, the Administration is still incentivized to consult with home state senators, which can slow down the nomination process, particularly in states with Republican senators.

Unlike circuit court vacancies, district court seats still require home state approval in order to be confirmed. This means that the ball is largely in the senators’ court in terms of naming nominees. This doesn’t mean that the Administration is completely absent from the process. It is still responsible for prodding senators, negotiating agreements, and choosing the right candidate. In fact, the Administration started right off the gate with an announcement that it expected recommendations for vacancies within 90 days of the announcement. This makes it all the more surprising the sheer number of district court seats that sit without nominees today.

This split is less surprising in states that only have Republican Senators, a group which includes thirty-five district court vacancies without nominees: six in Florida; five in Texas; three in Indiana and Louisiana; two each in Alabama, Missouri and Oklahoma; and one each in Alaska, Arkansas, Idaho, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, South Dakota, Tennessee, Utah, and Wyoming. Many of the home state senators in these states have been fairly open about their unwillingness to work with the Administration on a nominee. However, others have been more willing to be involved, with Iowa senators, for example, recommending U.S. Magistrate Judge Stephen Locher, a young Democrat, to the bench (Locher was swiftly and unanimously confirmed). The lone district court nominee in a 2-Republican state is also the most recent, Scott Colom in Mississippi.

Similarly, in states with split delegations, the White House understandably needs to move with the support of home state Republican senators. It has had mixed luck in the states it has tried this with. Ohio Sen. Rob Portman returned blue slips for three nominees who were confirmed (one more remains pending). Similarly, the White House was able to reach a four nominee deal with Sen. Pat Toomey in Pennsylvania that included a nominee of his choice. In contrast, Sen. Ron Johnson has chosen to block a nominee that he previously signed off on.

Perhaps the most surprising in terms of vacancies without nominees are blue states or territories, where Democratic senators would presumably be incentivized to send recommendations quickly: yet, sixteen district court vacancies from blue states are nomineeless today, including four from California, three from New Jersey, two each from Connecticut, Illinois, and Michigan, and one each from Colorado, Maryland, and New York. A summary of this landscape follows:

D.C. Circuit – 1 vacancy out of 11 judgeships (one nominee pending)

The so-called “second highest court in the land”, the D.C. Circuit was the site of Biden’s first appointee when Jackson was confirmed to the court last June, a mere two months after her nomination. However, since that haste, a second vacancy languished for more than a year, taking nearly nine months after Judge David Tatel announced his departure from active status before Judge Michelle Childs was nominated, and taking Childs eight months to be confirmed. Jackson’s elevation to the Supreme Court reopened another vacancy, and the White House moved more quickly, elevating U.S. District Judge Florence Pan (confirmed in September). A fourth nominee, Brad Garcia remains pending on the Senate floor to fill the last remaining vacancy on the court, vacated by Judge Judith Ann Wilson Rogers.

The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has one current vacancy, from Pan’s elevation, and one future vacancy, with Judge Colleen Kollar-Kotelly taking senior status upon confirmation of a successor. Nominees are pending for both vacancies with Ana Reyes currently awaiting a floor vote and Judge Todd Edelman having received a Judiciary Committee hearing last week.

First Circuit – 2 vacancies out of 6 judgeships (one nominee pending)

The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. Additionally, reproductive rights attorney Julie Rikelman is pending a vote before the Senate Judiciary Committee to replace Judge Sandra Lynch. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard nearly nine months ago, and lacks a nominee. Given that New Hampshire has two Democratic senators, the lack of a nominee is puzzling.

The district courts covered by the First Circuit have five pending judicial vacancies, all of which have nominees. The District of Massachusetts has three current vacancies and three nominees pending, two of whom already have hearings.

The District Court for the District of Puerto Rico is down two judges, with nominees to fill the seats already on the Senate floor. A final Senate vote on Judge Camille Velez-Rive is expected next week, which should leave Judge Gina Mendez-Miro as the sole pending P.R. nominee.

Second Circuit – 1 vacancy out of 13 judgeships (one nominee pending)

Having replaced five left-leaning judges on the Second Circuit, the Biden Administration has already had a significant impact on the court. However, Justice Maria Araujo Kahn, nominated to replace 81-year-old conservative Jose Cabranes, remains pending in the Senate Judiciary Committee and has a long line of nominees ahead of her to be confirmed.

Connecticut, which saw three Biden appointees hit the bench last year, is one of the worse blue states when it comes to nomineeless vacancies, with two of the eight active judgeships vacant and no nominees on the horizon.

Meanwhile, the district courts in New York are also shortstaffed, with nine vacancies among them. The hardest hit is the Eastern District of New York, which has four vacancies out of sixteen judgeships, The bright side for the White House is that eight of the nine vacancies have nominees pending. The down side is that only three of the nominees are currently on the Senate floor (with one, Anne Nardacci, expected to be confirmed next week). Two of the longer pending nominees, Southern District of New York picks Dale Ho and Jessica Clarke, are currently bottled up in Committee, pending a discharge vote. Three more await hearings.

Third Circuit – 2 vacancies out of 14 judgeships (two nominees pending)

This moderate court currently has one Biden nominee confirmed (Arianna Freeman nominated to replace Judge Theodore McKee) but Judges Thomas Ambro and Brooks Smith don’t have replacements yet although nominees are pending on the Senate floor for both seats and should, if prioritized, be confirmed easily.

Two of the three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has seven vacancies, four of which have nominees, the aforementioned four nominee deal. With Democrat John Fetterman replacing Toomey, it is likely that new recommendations will be sent out for the remaining vacancies and they will likely not be confirmed in the next few months.

The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to three seats left to fill. However, none of the three vacancies have nominees pending even though the oldest dates back seven months. With control of the Senate solidified, it is likely that New Jersey will see new district court nominees shortly.

Fourth Circuit – 2 vacancies out of 15 judgeships (one nominee pending)

The Fourth Circuit currently has vacancies out of South Carolina and Maryland. Judge DeAndrea Benjamin, nominated to the South Carolina seat, has home state senator support and will likely be confirmed easily in the new Congress. However, the bigger surprise is that a Maryland vacancy announced last December still lacks a nominee. Maryland’s Democratic senators have a mixed record in the speed of recommendations and a district court vacancy in the state announced last year also lacks a nominee.

In other states, Virginia has two nominees pending before the Senate Judiciary Committee for a final vote. Their confirmations would fill all the remaining vacancies on the state’s district courts.

Additional vacancies exist in North Carolina and South Carolina. Both North Carolina and South Carolina have two Republican senators, so any nominee will largely depend on the White House’s negotiations.

Fifth Circuit – 2 vacancies out of 17 judgeships (one nominees pending)

The ultra-conservative Fifth Circuit became even more so when the youngest Democrat on the Fifth Circuit, Judge Gregg Costa, unexpectedly announced his resignation from the bench. Nine months after Costa’s announcement, there is still no nominee pending to replace him, although Judge Dana Douglas, nominated to replace Octogenarian liberal James Dennis, is poised for confirmation after bipartisan support in the Judiciary Committee.

On the district court level, both Louisiana and Texas have multiple district court vacancies and no hint of any nominee. Mississippi, on the other hand, despite having only one vacancy, does have a nominee: Scott Colom. While Mississippi senators have not yet announced support for Colom, they have not expressed opposition either, suggesting that Colom might be, surprisingly, on track for confirmation.

Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)

Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a discharge vote in the Judiciary Committee. It remains to be seen if Sen. Sherrod Brown will push for Bloomekatz to receive a final Senate vote by the end of the year.

On the district court level, each of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, there remains no nominee to replace Judge Karen Caldwell, although Caldwell has reaffirmed that she will only leave the bench if a conservative is appointed to replace her.

The Eastern District of Michigan has four pending vacancies and two nominees (one on the Senate floor). Michigan’s Democratic senators have been relatively slow in naming nominees, so it’s unclear when nominees will hit the Senate for the remaining vacancies.

The Southern District of Ohio has a single vacancy, with a nominee, Jeffery Hopkins, pending a Judiciary Committee vote. With Sen. Rob Portman set to be replaced by J.D. Vance, it is possible that Democrats will prioritize Hopkins in an effort to fill the seat before Vance’s input is needed.

Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and while the White House ultimately won confirmation, other seats could become casualties. Nonetheless, the White House has put forward U.S. Attorney nominees with senatorial support in the state, suggesting that some common ground can be reached to fill the vacancy.

Seventh Circuit – 2 vacancies out of 11 judgeships (one nominee pending)

In addition to naming Judge Candace Jackson-Akiwumi and Judge John Lee to the Seventh Circuit, Biden has the chance to add two more judges to the court. Judge Doris Pryor, currently pending on the senate floor, is likely to be confirmed before the end of the year. However, the second vacancy, opened by Judge Michael Kanne’s death, lacks a nominee. Given the support Indiana’s Republican Senators gave to Pryor, the White House is likely to grant them deference in turn in cchoosing a nominee to replace Kanne.

On the district court level, Illinois nominees Lindsay Jenkins and Colleen Lawless are pending in the Senate Judiciary Committee. The Northern District of Illinois has two more vacancies that are likely to get nominees shortly.

Meanwhile, three vacancies are pending in Indiana without nominees. It is likely that the White House may lump these nominees into a package with the Kanne seat to allow for all the seats to be filled at once.

Wisconsin is likely a sign of frustration for the White House as Senator Ron Johnson has now blocked both a federal judge nominee and a U.S. Attorney nominee that he previously signed off on. With Johnson’s narrow re-election, it is likely that the nomination of Judge William Pocan is dead, and the White House and senators will have to renegotiate a new nominee to replace Judge William Griesbach.

Eighth Circuit – 0 vacancies out of 11 judgeships

While the Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, there are a number of vacancies open in the district courts covered under the Circuit, including one each in Arkansas, Minnesota, Nebraska, and South Dakota, and two pending in Missouri. Of these, only the seat in Minnesota has a nominee (Jerry Blackwell, who is awaiting a floor vote). Of the remaining vacancies, the White House has failed to nominate any U.S. Attorneys in those states, boding poorly for the likelihood of any agreement on judicial nominees.

Ninth Circuit – 1 vacancies out of 29 judgeships (one nominee pending)

Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming six, with a seventh pending a judiciary committee vote. The district courts covered by the Ninth Circuit were equally successful for the White House, which has already confirmed 19 judges to (compared 14 judges that the Trump Administration named over four years).

An additional 13 nominees are currently pending to fill 19 vacancies, eight in California, four in Washington, and one in Oregon. Of the seats needing nominees, four are in California (two on the Central District and two on the Southern District). Another two are in Alaska and Idaho respectively, which have two Republican senators apiece.

Tenth Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country. Judge Briscoe announced her move to senior status in January 2021, and a nominee, Jabari Wamble, was announced in August 2022. Wamble has yet to have a Committee hearing but could, in theory, be confirmed early next year.

Among the states covered by the Tenth Circuit, there are eight district court vacancies, out of which two have nominees. Five of the six nomineeless vacancies are in states with two Republican senators, with particularly long-pending vacancies in Kansas, Oklahoma, and Utah, in particular. Given the nomination of Wamble in Kansas and the successful confirmation of Trina Higgins to be U.S. Attorney in Utah, it is possible that the White House is able to reach an agreement with senators to fill the vacancies shortly.

Eleventh Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

Judge Beverly Martin announced her retirement from the Eleventh Circuit in July, ultimately leaving the court in late September. The Biden Administration nominated civil rights attorney Nancy Abudu to the court in December, but then unwittingly delayed Abudu’s hearing by quixotically claiming that she was under Supreme Court consideration. While no serious observer believed that Abudu would be nominated to the Supreme Court, her consideration ensured that Abudu’s nomination would not be processed until a nominee was named. Furthermore, Abudu’s nomination proved deeply controversial and deadlocked in Committee, forcing a discharge vote that has yet to occur. Given the risk to Abudu’s nomination if Warnock were to lose, it is likely that Democrats would seek to prioritize her nomination if the runoff went poorly.

On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees as outgoing Republican senator Richard Shelby expressed his opposition to any left-of-center nominee. With Shelby’s retirement and the election of Katie Britt to the Senate, it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour.

Meanwhile, Florida has more nominee-less vacancies than any other state: six. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but no nominee has hit the Senate yet. The recent announcements of U.S. Attorney nominees to two of the three open positions in Florida, however, could presage a thaw in negotiations over the state’s appointments.

Conclusion

On one side, one could argue that the Senate has plenty of time to fill these vacancies, as well as more that will inevitably open over the next two years. After all, despite a packed legislative calendar, the Senate has already confirmed eighty-five nominees (and will likely confirm more before the end of the Congress). However, it’s also important to recognize the fragility of the Democrat’s narrow majority. Just because 50 members held together over the last two years is no guarantee that it will last another two. In a sense, winning the Georgia runoff and securing a 51st seat will be all the more important for Democrats if they seek to rival Trump’s judicial legacy.

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Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The South

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. This week, we focus on the South.

Fifth Circuit

Court of Appeals

The Fifth Circuit Court of Appeals is arguably the most conservative court of appeals in the country. Many of the conservative legal movement’s most outspoken jurists, from Judge Edith Jones to Judge James Ho, sit on this court. The Fifth Circuit includes six nominees appointed by President Trump, four appointed by President Bush, three by President Obama, and two each by Presidents Reagan and Clinton. Of the judges, six are currently eligible for senior status: Reagan appointees Jones and Jerry Smith, Clinton appointees Carl Stewart and James Dennis, and Bush appointees Priscilla Owen and Leslie Southwick. Of the six, only Dennis, the Fifth Circuit’s oldest active judge and one of the few liberal voices on the court, has announced a move to senior status. So far, no nominee has been announced to replace Dennis.

The other judges on the court, with the exception of Stewart and potentially Southwick, are unlikely to take senior status anytime soon. Another of the court’s liberals, Judge James Graves of Mississippi, hits eligibility for senior status next year and may take so at that time.

Louisiana

Louisiana has three judicial districts: the Eastern; Middle; and Western. The twenty-two active judgeships across the three courts are all currently filled, although one will open on the Western District when Judge Elizabeth Erny Foote takes senior status in January 2022. No nominee has been put forward to replace Foote and Biden may seek to work with Louisiana Senators with a package of nominees to include U.S. Attorney picks and Dennis’ replacement.

Additional vacancies are likely, particularly on the Eastern District. Of the twelve active judges on the Eastern District, six are currently eligible for senior status: Martin Feldman, Sarah Vance, Eldon Fallon, Carl Barbier, Jay Zainey, and Lance Africk. Of the six, Feldman and Fallon, who are both over eighty, are judges to watch. Additionally, Chief Judge Maurice Hicks on the Western District, who will have to step down as Chief next year, is another possibility for senior status.

Mississippi

While Mississippi currently has no judicial vacancies, additional retirements are possible. Out of the nine active judges in Mississippi, three are eligible for senior status: Judges Michael Mills and Sharion Aycock on the Northern District; and Judge Henry Wingate on the Southern District. While no other judge reaches eligibility before 2028, Judge Carlton Reeves for the Southern District may be considered for elevation if either Southwick or Graves moves to senior status on the Fifth Circuit.

Texas

Texas’ four judicial districts entered the Trump Administration with eleven judicial vacancies, and, as a result of a flood of new confirmations, are almost entirely full. There is only one current judicial vacancy in Texas: on the Western District from the death of Judge Philip Martinez. Additionally, one future vacancy is expected next year when Judge Vanessa Gilmore moves to senior status in the Southern District. So far, there has not been any public movement in Texas towards recommendations to fill the vacancies.

Additional vacancies are likely as a number of judges are eligible for senior status. Currently, the possibilities include: Marcia Crone on the Eastern District; Sam Lindsay, Barbara Lynn, James Kinkeade and Jane Boyle on the Northern District; Lee Rosenthal, Ricardo Hinojosa, Lynn Hughes, Keith Ellison, and Andrew Crane on the Southern District; and Orlando Luis Garcia, Samuel Biery, Earl Yeakel, Kathleen Cardone, and Frank Montalvo on the Western District. Furthermore, next year, Judge David Godbey on the Northern District will reach eligibility for senior status.

Eleventh Circuit

Court of Appeals

The Atlanta based Eleventh Circuit, despite a more equitable party division, has a reputation almost as conservative as its neighbor to the West. An influx of Trump and Obama appointees (75% of the court has served less than ten years) leaves few judges who are eligible for senior status. One of the two judges who are, Judge Beverly Martin, is retiring in September. So far, there has been no nominee to replace Martin, who is one of the court’s few liberals. Judge Charles Wilson, the other judge eligible for senior status, is another liberal, ensuring that the conservative tilt of the court is unlikely to change anytime soon.

Alabama

All the states under the Eleventh Circuit are divided into a Northern, Middle, and Southern District. In Alabama’s case, the three courts together have fourteen judgeships: eight Trump appointees; three Bush appointees; two Obama appointees; and one vacancy. The lone vacancy is on the Middle District, vacated by Judge Andrew Brasher’s elevation to the Eleventh Circuit. Trump nominated Solicitor General Edmund LaCour to fill this seat, but LaCour was blocked by Sen. Doug Jones, and the vacancy is still pending. So far, there has been no nominee to fill this vacancy.

Additional vacancies are unlikely as no judge is eligible for senior status until Judge Scott Coogler reaches it in 2024.

Florida

Between the Northern, Middle, and Southern Districts of Florida, there are thirty seven judgeships, and two vacancies. The two currently pending vacancies are both on the Southern District of Florida. As Florida has two Republican Senators, Sen. Marcio Rubio and Florida’s Democratic House Delegation set up rival nominations commissions for the vacancies. Rubio recommended attorneys David Leibowitz and Detra Shaw-Wilder to fill the vacancies in July. The Democratic JNC also recommended Shaw-Wilder alongside state court Judges Samantha Feuer, Ayana Harris, and Miguel De La O, federal magistrate Shaniek Maynard, and federal public defender Michael Caruso. Having been recommended by both committees, it is likely that Shaw-Wilder will be nominated. However, it is unclear who the second nominee will be.

Additional vacancies are possible. Out of the thirty five active judges serving, seven are currently eligible for senior status: H.W. Bush appointees Steven Merryday and Michael Moore, Clinton appointees William Dimitrouleas and Donald Middlebrooks; and Bush appointees Timothy Corrigan, Marcia Cooke, and Jose Martinez.

Georgia

The Northern, Middle, and Southern Districts of Georgia have a total of eighteen judgeships: six appointees each of Presidents Obama and Trump; and four appointees of President Bush. There are also two vacancies on the Northern District of Georgia. Georgia Senators Raphael Warnock and Jon Ossoff began soliciting nominees for the vacancies early this year, with an application deadline of March 17, 2021. While no names have become public, it is likely that recommendations have already made their way to the White House. Additional vacancies are unlikely before 2023, unless Judge Leslie Abrams is tapped for the Eleventh Circuit to replace Martin.

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Edmund LaCour – Nominee to the U.S. District Court for the Middle District of Alabama

In 2019, when Alabama Solicitor General Andrew Brasher was confirmed to be a federal district court judge, a 34-year-old attorney named Edmund LaCour was tapped to replace him as Solicitor General.  Now, as Brasher has been confirmed to an appellate court, LaCour has been tapped again, this time to fill Brasher’s seat on the U.S. District Court.

Background

Edmund Gerald LaCour Jr. was born in 1985.  LaCour graduated summa cum laude from Birmingham-Southern College, received a Master of Arts from Trinity College Dublin and then a J.D. from Yale Law School.

Upon graduation, LaCour clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.  He then joined the Houston office of Baker Botts as an Associate.  In 2015, LaCour shifted to Bancroft PLLC, a boutique litigation firm dominated by conservatives, in Washington D.C. before moving, along with the bulk of the firm, to Kirkland & Ellis in 2016.

In 2019, LaCour was appointed by Steve Marshall, the Attorney General of Alabama, to be Solicitor General, replacing Andrew Brasher, who was confirmed to a seat on the U.S. District Court for the Middle District of Alabama.  LaCour currently serves in that capacity.

History of the Seat

LaCour has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened when Judge Andrew Brasher, who has already been confirmed by the Senate, took his seat on the Eleventh Circuit on June 30, 2020.  

Legal Experience

While LaCour started his career at Baker Botts working on relatively straightforward criminal and civil matters,[1] he has spent the latter part of his career working on litigation on conservative causes.  For example, at the boutique firm Bancroft PLLC, LaCour represented a Christian organization at NC State in seeking to enjoin a University requirement that they obtain a permit before soliciting students.[2][3]  Judge James Dever ended up enjoining the policy,[4] which prompted NC State to rewrite it.[5]  LaCour also represented Republican organizations seeking to set aside anti pay-to-play rules made by the Securities and Exchange Commission,[6] and sued to strike down registration fees on firearms in California.[7]  On a less controversial front, while at Kirkland, LaCour represented business owner in a landmark litigation seeking to narrowly interpret bankruptcy rulings made by the Supreme Court.[8] 

Since 2019, LaCour has served as Solicitor General of Alabama, in which capacity he has defended Alabama laws and convictions before state and federal courts.  While, at the time of his appointment, LaCour attracted some criticism for alleged ties to Russia,[9] such criticism has not resurfaced.

Among his defenses of Alabama laws, LaCour defended the state ethics laws against challenges that it was too vague,[10] and defended the state’s minimum wage law from a racial discrimination challenge.[11] 

On the flip side, LaCour has also used the Solicitor General’s office offensively, challenging laws and federal regulations.  For example, LaCour led a 21-state brief before the U.S. Supreme Court challenging Maryland gun regulations.[12]  He also led an amicus effort to support Texas’ efforts to limit reproductive health procedures during the Covid-19 pandemic.[13]

Political Activity

LaCour has frequently given to Republican committees and candidates.[14]  Among the recipients of his largesse are Sens. Ted Cruz and Josh Hawley, both of whom serve on the Senate Judiciary Committee, and West Virginia Attorney General Patrick Morrissey, who unsuccessfully ran for U.S. Senate in 2018.[15]

Overall Assessment

While LaCour is only 35 years old, he has racked up many accomplishments in his short career, including a significant amount of litigation experience.  However, much of his litigation has been in service of conservative causes, which will likely make him very controversial as a nominee.  As such, the key barrier for LaCour will be obtaining a blue slip from Democratic Senator Doug Jones.  If LaCour can do so, his nomination will likely be processed this year.  If not, LaCour will have to hope for a Trump re-election.

[1] See, e.g., Rogers v. United States, 561 F. App’x 440 (6th Cir. Mar. 31, 2014).

[2] See Press Release, Alliance Defending Freedom, Student Group Sues NC State for Requiring Permits for Any, All Speech, Apr. 26, 2016.

[3] See also Emery Dalesio, Christian Groups Challenge NC University’s Speech Permits, A.P. State & Local, June 2, 2016.

[4] Grace Christian Life v. Woodson, 2016 U.S. Dist. LEXIS 73376, 5:16-CV-202-D (E.D.N.C. June 4, 2016) (Dever, J.).

[5] See Press Release, Alliance Defending Freedom, NC State Revises Speech Policy After Losing Court Battle With Student Group, July 19, 2016.

[6] See Jack Casey, Why Republican State Committees Say Revised Rule G-37 Is Unconstitutional, Bondbuyer.com, May 18, 2016.  See also Tenn. Republican Party v. SEC, 863 F.3d 507 (6th Cir. 2017).

[7] Bauer v. Becerra, 858 F.3d 1216 (9th Cir. 2017).

[8] See Stephanie Gleason, District Court Affirms Narrowness of Stern v. Marshall, The Deal Pipeline, Sept. 26, 2018.

[9] See, e.g., Legal Schnauzer, Edmund LaCour Jr., Alabama’s New Solicitor General, Has Worked For Two Law Firms With Ties to Russia And Has Represented Gazprom, a Major Russian Energy Firm, Legal Schnauzer, May 22, 2019.

[10] See Kim Chandler, Former Alabama Speaker Asks Court to Overturn Conviction, A.P. State & Local, June 5, 2019.

[11] Press Release, Office of Attorney General Steve Marshall, Alabama A.G. Marshall Announced 11th U.S. Circuit Court of Appeals Victory for State of Alabama in Minimum-Wage Lawsuit, Dec. 13, 2019.

[12] See Steve Lash, ‘Shall Issue’ States Back Supreme Court Challenge to Md. Handgun Law, The Daily Record, Dec. 4, 2019.

[13] Kevin Stawicki, Justices Urged to Wade into Texas’ COVID Abortion Ban Fight, Law360, Apr. 13, 2020, https://www.law360.com/articles/1262858/justices-urged-to-wade-into-texas-covid-abortion-ban-fight.

[15] See id.

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R. Austin Huffaker – Nominee to the U.S. District Court for the Middle District of Alabama

The Middle District of Alabama was largely static over the last decade, with no new judges joining the court between 2005 and 2018.  Now, in the last year, all three of the court’s judgeships look set to be replaced, including by securities attorney Austin Huffaker.

Background

Robert Austin Huffaker was born in Montgomery, AL in 1973.  Huffaker graduated cum laude from Vanderbilt University in 1996.[1]  Huffaker went on to the University of Alabama Law School, graduating magna cum laude in 1999.

Upon graduation, Huffaker joined the Montgomery office of Rushton, Stakely, Johnston & Garrett P.A.  He is still with the firm today.  Additionally, Huffaker has been a Commissioner with the Alabama Securities Commission, which regulates securities in the state, since 2016.

History of the Seat

Huffaker has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on January 31, 2019, when Judge W. Keith Watkins moved to senior status.

For Huffaker’s part, he had been under consideration for a federal judgeship in the Obama Administration when he interviewed with Alabama Republican senators about replacing Judge Mark Fuller (the seat was filled earlier this year by Solicitor General Andrew Brasher).[2]  In January 2019, Huffaker interviewed with Alabama Senator Richard Shelby about the upcoming vacancy.[3]  He then interviewed with Democratic Sen. Doug Jones and with the White House, and was nominated in July 2019.

Legal Experience

Huffaker has spent his career as a business attorney at Rushton, Stakely, Johnston & Garrett P.A.  Over the course of his career, Huffaker has tried 16 cases in state and federal court, as well as 20 cases in private arbitrations.[4] 

Among the most significant areas that Huffaker has practiced in, he handled a series of legal malpractice cases, usually defending attorneys against claims raised by their clients.  For example Huffaker successfully found that plaintiffs’ claims against their attorneys for inadequate representation in mesothelioma actions were time-barred.[5]  In another notable case, Huffaker represented a mental health worker in proceedings relating to the alleged homicide of a patient under his care.[6]  Huffaker was able to secure a defense verdict against the allegations of wrongdoing.[7]

Overall Assessment

As a lawyer with a focus in business and commercial litigation, Huffaker has an opportunity to avoid the controversies that have entangled other Alabama nominees.  As such, Huffaker will likely be confirmed fairly comfortably.

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

[2] Id. at 27-28.

[3] Id. at 28.

[4] Id. at 14.

[5] Frazier v. Jackson et al., 563 F. App’x 435 (6th Cir. 2014).

[6] Verrett et al v. Alabama Dep’t of Mental Health, et al., Case No. 2:03-cv-012301-MEF-CSC.

[7] See id.

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New Fronts in the Judicial War: Will Progressives Adopt the Conservative Model on State Courts and Solicitors General?

The 2018 elections have come and gone, with both sides finding something to smile about in the results.  For Republicans, the reinforced Senate majority ensures that Trump can continue to fill federal vacancies with conservatives.  However, all is not lost for Democrats.  Rather, they can adopt the successful model used by conservatives during the Obama Administration and use the states to advance progressive jurisprudence.  Both state court appointments and solicitor general appointments have generally been used effectively by Republicans to build a bench of conservative judges and legal leaders.  With electoral victories on the state level, it remains to be seen if progressives will catch up on these fronts.

State Courts

Let’s throw out a hypothetical.  Imagine we are back in 2017: President Trump has just been elected with a Republican Senate.  Let’s say that Justice Anthony Kennedy announces his retirement in March 2017, announcing that he will retire in September of that year, giving the President six months in which to appoint his successor.  It is a golden opportunity for Republicans to take a solid majority on the Supreme Court.  However, instead of nominating Brett Kavanaugh, the Trump Administration nominates no one.  The months tick down, one by one, and no nomination comes forward from the Trump Administration.  September 2017 comes by, the Justice steps down, and still no nomination has come.  The Supreme Court is forced into a 4-4 split, and important decisions are deadlocked.  And still, no nominee is put forward.  Now imagine we are in the present day and the Court is still split 4-4, with no nomination coming from the Administration and no explanation.

This hypothetical may seem absurd, but it is exactly what is currently happening in California, where Gov. Jerry Brown has essentially forfeited a golden opportunity to reshape the California Supreme Court, letting the court’s swing seat remain vacant for well over a year for no reason at all.

State Supreme Courts, which interpret state laws and constitutional provisions, are immensely powerful.  In fact, many of their decisions are unreviewable, even by the Supreme Court.  As such, it is remarkable to see the lack of attention given their way by progressives.  Alongside Brown’s failure to make an appointment to the California Supreme Court, Colorado Gov. Hickenlooper appointed two Republicans to the Colorado Supreme Court, resulting in the partisan balance on the court actually becoming more conservative during his tenure as Governor.  Similarly, in New York, Gov. Andrew Cuomo has largely avoided appointing outspoken liberals to the New York Court of Appeals, instead choosing moderates and conservatives including Judge Michael Garcia, a Republican who previously served as U.S. Attorney under President Bush.  In Connecticut, Gov. Dannel Malloy’s nominee to be Chief Justice of the Connecticut Supreme Court was rejected by the Democratic Senate after moderate Democrats defected.

In contrast, Republican Governors have used their appointment power effectively to choose young conservatives for the state benches.  Gov. Pete Ricketts, for example, tapped Justice Jonathan Papik, only 36, to the Nebraska Supreme Court in 2018.  Similarly, Gov. Nathan Deal in Georgia has appointed a bevy of young conservatives, Justices Nels Petersen, Britt Grant (now on the 11th Cir.), Sarah Hawkins Warren, and Charlie Bethel.  From Texas to Ohio to Indiana, Republican Governors have cemented conservative majorities on the high court through their appointments.

Now that the 2018 elections has resulted in the largest increase in new Democratic Governors since 1986, progressives have a strong opportunity to reshape the bench in many states.  With the vacancy on the California Supreme Court still pending, it provides an early sign of how seriously they will take this challenge.

Solicitors General

The 2018 election also saw Democrats taking control of the majority of state attorney general’s offices in the country.  Attorneys general are important not just because of their investigative and prosecutorial powers, but because they are able to, through their appointment of state solicitors general, shape the legal landscape of their states.

State solicitors general are the leading appellate advocate for their states, shaping and directing arguments before state and federal courts.  So far, most solicitors general are appointed by the attorney general.  Most Republican attorneys general have taken this opportunity and chosen young conservatives and future legal pioneers.  For example, Alabama Solicitor General Andrew Brasher is only 37, Florida Solicitor General Amit Agarwal is 42, Georgia Solicitor General Andrew Pinson is around 32, and Oklahoma Solicitor General Mithun Mansinghani is only 31 (and was just 29 when he was selected as Solicitor General).  In comparison, Democratic attorneys general have selected senior attorneys already established in their career.  For example, New York Solicitor General Barbara Underwood is 74, California Solicitor General Edward DuMont is 57, and Connecticut Solicitor General Jane Rosenberg is around 60 (an exception to this is Washington Solicitor General Noah Purcell, who is 38).

While the level of experience that Underwood, DuMont, and Rosenberg bring is undeniable, choosing younger solicitors general makes more sense from a movement perspective.  First, it helps season young attorneys early in their career.  Second, it builds a pipeline of potential judicial candidates.  The Trump Administration has been very effective at tapping current and former state solicitors general for the federal bench, building the next generation of conservative legal leaders.

Ohio Gubernatorial candidate Richard Cordray was a politician who understood this well, having himself served as Ohio Solicitor General in his early 30s.  As Attorney General, Cordray tapped Benjamin Mizer to serve as Ohio Solicitor General.  Mizer, who was only 31 at the time of his appointment, went on to serve the Obama Administration as Principal Deputy Assistant Attorney General for the Civil Division, and is poised to be a Sixth Circuit and Supreme Court candidate under a Democratic Administration.

So far, newly elected New York Attorney General Tish James has chosen to reappoint Underwood to serve as Solicitor General.  It’ll be interesting to see if other Attorneys General will follow James’ lead or Cordray’s.

Overall, despite the attention it gets, the federal bench is not the only front that legal conservatives and progressives fight over.  Even as the federal bench shifts under the weight of Trump appointees, state benches can provide a countervailing force.  As such, they are an important front to observe in the coming months.

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