Judge Brett Kavanaugh – First Amendment Rulings

The First Amendment to the U.S. Constitution is colloquially known for establishing the right to free speech, but it actually encompasses several rights, including the freedom of the press, and the right of assemble, demonstrate, and petition your elected representative.  Additionally, the religion clauses of the First Amendment guarantee the right to practice your religion without government interference, as well as prohibiting government endorsement or establishment of religion.  The myriad rights recognized by the First Amendment have been further fleshed out by the Supreme Court and lower courts.  Kavanaugh himself has written several opinions in First Amendment cases.  In these opinions, summarized below, Kavanaugh has generally taken an expansive view of First Amendment rights, showing a willingness to strike down regulations that impinge, even slightly, on First Amendment territory.

Freedom of Speech

The First Amendment guarantees the freedom of speech to all Americans.  In other words, we cannot be punished by the government for expressing our views.  As noted above, Kavanaugh has taken an expansive view of this freedom, particularly as it relates to campaign and communication regulations.

Campaign Regulations

The most recent frontier in free speech cases has involved campaign finance.  In its landmark decision in Citizens United v. FEC, the Supreme Court struck down government restrictions on independent expenditures made by corporations and unions in campaigns, ruling that such restrictions were an infringement of the First Amendment.[1]  Since then, numerous campaign regulations have been challenged on First Amendment grounds.

In 2016, Kavanaugh decided one such challenge in holding that the Independence Institute, a non-profit organization, should be allowed to proceed in its First Amendment challenge against federal regulations requiring them to disclose their donors.[2]  In his majority opinion, Kavanaugh acknowledged that the Supreme Court had upheld disclosure requirements in the past (including in Citizens United) but noted that the Independence Institute was a 501(c)(3) organization, rather than the 501(cv)(4) involved in Citizens United.[3]  This distinction, Kavanaugh ruled, was sufficient to allow the case to proceed.[4]

In dissent, Judge Robert Wilkins argued that the First Amendment challenge was precluded by Citizens United, and that the factual distinctions drawn by Kavanaugh were “immaterial.”[5]

Kavanaugh also has the notable distinction of having struck down campaign finance regulations on First Amendment grounds before Citizens United.  In Emily’s List v. FEC, Kavanaugh struck down a series of FEC regulations limiting the use of “soft money” by non-profits in election spending.[6]  In striking down the regulations, Kavanaugh noted:

“Donations to and spending by a non-profit cannot corrupt a candidate or officeholder, at least in the absence of some McConnell-like evidence establishing such corruption or the appearance thereof.”[7]

Judge Janice Rogers Brown refused to join Kavanaugh’s First Amendment analysis in the case, noting:

“I have grave doubts about the court’s analysis, which bears at most a passing resemblance to the parties’ briefs, and which will profoundly affect campaign finance law in this circuit.”[8]

Communications Regulation

Kavanaugh has also sought to apply the First Amendment in the context of communications regulation.  As the D.C. Circuit upheld Federal Communications Commission (FCC) regulations barring exclusive contracts between cable operators and affiliated cable programming networks, Kavanaugh dissented.[9]  In his dissent, Kavanaugh argued, as cable networks and operators both engage in protected speech, that the FCC regulations (which are intended to avoid monopolies) implicate First Amendment rights.[10]  Applying the First Amendment, Kavanaugh found that a changed competitive marketplace for cable means that the FCC bans no longer further an interest in fair competition and must be struck down.[11]

Press

The First Amendment also protects a free press from both government censorship and excessive regulation or litigation.  As such, the Supreme Court has recognized fairly broad protections from journalists against defamation suits (which seek damages for the publication of false information).  Kavanaugh reaffirmed this principle in one notable defamation case.[12]  In the case, a prisoner filed a defamation action against the Bureau of National Affairs (BNA) for attributing some negative comments during his sentencing hearing to the judge rather than the prosecutor.[13]  After the district judge denied BNA’s motion to dismiss, Kavanaugh reversed the ruling on appeal, noting that the First Amendment protected the BNA’s actions as long as they were not made with “actual malice” and that the plaintiff could not make such a showing.[14]

Freedom of Assembly + Petition

In addition to the Freedom of Speech and the Press, the First Amendment encompasses the Freedom of Assembly, or the right of people to come towards to express their ideas collectively.  Encompassed within that right is the right to associational freedom: the right to join organizations that are formed around causes you believe in; as well as the right not to join organizations you disagree with.  Additionally, the First Amendment includes the right to peacefully petition your elected representatives on issues that are important to you.

Kavanaugh authored a notable opinion discussing the latter right.  In We the People Foundation, Inc. v. United States, the plaintiffs submitted “petitions with extensive lists of inquiries” related to questions about the government’s violation of the taxing and war powers clauses.[15]  When the government agencies to whom the petitions were addressed failed to respond, the plaintiffs brought suit, alleging two claims: first, that the First Amendment right to petition encompassed a right to a “good faith exchange” between the government and the petitioner; second, that the First Amendment prohibited the government from retaliating against plaintiffs for filing the petition.[16]  Kavanaugh wrote for a majority of the D.C. Circuit rejected the claim under the First Amendment, finding that, under the Supreme Court’s holding in Smith v. Arkansas State Highway Employees, there was no “affirmative obligation” under the First Amendment to have the government respond to a petition.[17]

In concurring with the main opinion, Judge Judith Ann Wilson Rogers noted the depth of historical sources that plaintiffs had cited, and suggested that, as such evidence had not presented to the Supreme Court in prior cases, that the outcome of Smith and other precedent may have been different had the record on the right to petition been fully explored.[18]

Freedom of Religion

The Free Exercise Clause of the First Amendment protects the right to worship and believe in accordance with any and no faith.  Congress extended the protections of the Free Exercise Clause in the Religious Freedom Restoration Act (RFRA), which required any government action or regulation that substantially burdened a sincerely held religious belief to be narrowly tailored to a compelling governmental interest.

In one notable case, a panel of the D.C. Circuit found that the religious rights of Catholic nonprofits were not violated by the ACA’s “religious accommodation” opt-out from its contraceptive mandate.[22]  The full D.C. Circuit then declined to take the case en banc, with Kavanaugh in dissent.  In his dissent, Kavanaugh argued that the challenged accommodations substantially burden Catholic non-profits by making them “conduits” to providing contraceptive coverage through an alternative means.[23]

Establishment of Religion

The Establishment Clause of the First Amendment prevents the government from endorsing, establishing, or placing a stamp of approval on one faith or kind of religious service.  While Kavanaugh has generally interpreted the other rights in the First Amendment broadly, he has not done so for the Establishment Clause.

In In re Navy Chaplaincy, Kavanaugh rejected an Establishment Clause challenge to the retirement system for Navy Chaplains, which plaintiffs alleged discriminated in favor of Catholic chaplains.[19]  Kavanaugh found that the plaintiffs, current and retired non-liturgical Protestant chaplains lacked standing to raise an Establishment Clause claim, finding that being exposed a “message” of preference for Catholic chaplains is insufficient to constitute an injury.[20]

In dissent, Judge Judith Ann Wilson Rogers wrote that Kavanaugh’s opinion “ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing…”[21]

 


[1] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[2] Ind. Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016).

[3] Id. at 117.

[4] Id.

[5] See id. (Wilkins, J., dissenting).

[6] Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 4 (D.C. Cir. 2009).

[7] See id. at 18 (citations omitted) (emphasis in original).

[8] See id. at 25 (Brown, J., concurring in part).

[9] Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1315 (D.C. Cir. 2010) (Kavanaugh, J., dissenting).

[10] Id. at 1322.

[11] Id. at 1325.

[12] Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106 (D.C. Cir.), cert. denied sub nom. Von Kahl v. Bureau of Nat. Affairs, Inc., 138 S. Ct. 366, 199 L. Ed. 2d 269 (2017).

[13] See id. at 110.

[14] Id. at 117-18.

[15] We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007).

[16] Plaintiffs alleged that the federal government had retaliated by prosecuting plaintiffs who refused to pay federal income taxes out of protest.

[17] See id. at 145.

[18] See id. at 145-48 (Rogers, J., concurring).

[19] In re Navy Chaplaincy, 534 F.3d 756, 758 (D.C. Cir. 2008).

[20] Id. at 764.

[21] Id. at 770-71 (Rogers, J., dissenting).

[22] Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014).

[23] Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc).

Meet the Shortlisters: Brett Kavanaugh

Judge Brett Kavanaugh currently serves on the second most powerful court in the country: the D.C. Circuit.  Since 2006, Kavanaugh has served as the intellectual center of the D.C. Circuit’s conservative wing.  This record of jurisprudence has set Kavanaugh to replace the Justice he once clerked for: Justice Kennedy.

Vital Statistics

Name: Brett Michael Kavanaugh

Age: 53

Current Position: Judge on the U.S. Court of Appeals for the D.C. Circuit (since 2006)

Education: B.A. from Yale; J.D. from Yale Law School

Clerkships: Judge Walter Stapleton, U.S. Court of Appeals for the Third Circuit; Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit; Justice Anthony Kennedy, U.S. Supreme Court.

Prior Experience: Solicitor General’s Office, Department of Justice; Associate Independent Counsel, Whitewater Investigation; Private Practice; Associate Counsel and Assistant to the President for President George W. Bush

Jurisprudence

Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit since 2006.  During his twelve years on the court, Kavanaugh has authored approximately 270 majority opinions, concurrences, and dissents.  These opinions generally establish Kavanaugh as one of the most conservative judges on the court.

Given the D.C. Circuit’s jurisdiction over many administrative law cases, Kavanaugh has written extensively in evaluating agency regulations and decisions.  For example, after a panel of the D.C. Circuit upheld net neutrality regulations passed by the Federal Communications Commission, Kavanaugh dissented from denial of rehearing en banc, arguing that net neutrality violated both Congress’ grant of power to the agency and the First Amendment.  See United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 417 (D.C. Cir. 2017).  In another case, Kavanaugh found that the Environmental Protection Agency was statutorily required to consider the costs of emission control in issuing regulations.  White Stallion Energy Cntr. LLC v. EPA, 748 F.3d 1222, 1259 (D.C. 2014).  This holding was ultimately affirmed by the Supreme Court.  Michigan v. EPA, 135 S. Ct. 2699, 192 L. Ed. 2d 674 (2015).

In other cases Kavanaugh:

  • Dissented from a ruling requiring an immigrant minor who sought access to an abortion to be provided one.  Garza v. Hargan, 874 F.3d 735, 755 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
  • Dissented from denial of en banc rehearing of a decision upholding a requirement that religious organizations not wishing to provide contraceptive coverage for employees participate in the opt out process.  Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015).
  • Ruled that the structure of the Consumer Financial Protection Bureau (CFPB), which required the President to have cause before dismissing the head, was unconstitutional.  PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 165 (D.C. Cir. 2018).  This ruling was overturned by the D.C. Circuit en banc.  881 F.3d 75 (D.C. Cir. 2018).
  • Held that the Anti-Injunction Act barred plaintiffs from challenging the individual mandate of the Affordable Care Act.  Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).
  • Held the Affordable Care Act did not violate the Origination Clause of the Constitution.  Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1049 (D.C. Cir. 2015).

Why Trump Could Choose Kavanaugh as His Nominee

Trump has indicated that he is looking for a nominee with Ivy League credentials and a strong academic record.  Kavanaugh ticks off both boxes. Furthermore, Kavanaugh is generally strongly regarded as a judge and has developed a solidly conservative record on the D.C. Circuit.

Additionally, White House Counsel Don McGahn is particularly focused on Administrative Law when selecting judges.  Specifically, McGahn is looking for judges who oppose deference to administrative agencies and prefer a greater degree of judicial involvement in judging agency policy.  Kavanaugh’s record, more than that of any other shortlister, reflects this hostility to agency deference.

Why Trump Would Not Choose Kavanaugh as His Nominee

Kavanaugh is already facing a lot of pushback from social conservatives, who argue that his record shows an insufficient commitment to overturning Roe v. Wade.  Additionally, some senators have pushed back regarding Kavanaugh’s opinion in the Affordable Care Act cases, arguing that Kavanaugh failed to overturn the Act when he had a chance.

Expected Lines of Attack

While Kavanaugh is currently facing criticism from social conservatives, it is unlikely that such criticism would continue in a sustained fashion if he was selected as the nominee.  Rather, if nominated, Kavanaugh is more likely to face criticism from the left, who will criticize his willingness to overturn regulations (that they would argue are) needed to protect health and safety.  Kavanaugh may also be attacked for his work as part of the Whitewater Investigation, in the Bush Administration, and for writings on executive power and authority.

Likelihood of Nomination

Kavanaugh is likely the preferred candidate of White House Counsel Don McGahn.  In general, he is a candidate who is likely to unite the Republican caucus and has the best chance (of the current shortlisters) of securing Democratic support.  As such, despite the social conservative pushback, I expect Kavanaugh to be a strong contender for the nomination.

Judge Kavanaugh and the Failure of the Vetting Process

This blog started twenty months ago with a post titled “Why Vetting Matters.”  That post noted:

“The modern appointments process involves several layers of “vetting” of potential judicial nominees.  Candidates are generally first evaluated by their home state Senators and their staff.  Then, they are vetted again by the White House Counsel’s office and the Department of Justice.  They are then examined by the FBI and the American Bar Association (ABA).  Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum.  At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.”

Today, what we are seeing with regard to Judge Brett Kavanaugh is a failure of that process.  A compelling and credible allegation of sexual assault has been raised against the judge, an allegation that did not surface during the vetting that he underwent for the Supreme Court, nor during his prior vetting for his current seat on the D.C. Circuit.  Some have used this point to suggest that the allegation, raised by Dr. Christine Blasey Ford, should not be believed.  I would argue, rather, that it is an indictment of our current vetting process and its limitations.

As noted in our opening post, the current vetting system for judicial nominees involves several entities, including the White House, the Department of Justice, the FBI, and Senate staff.  In their investigation, the “vetters”, depending on their particular role, review all the written and background material submitted by the nominee, do criminal background checks, and conduct interviews with the nominee’s friends, colleagues, and associates.  Again, depending on their role, the vetters might be looking for ideological inconsistencies, intellectual ability, or issues with the nominee’s truthfulness or character.  The involvement of these different entities, along with outside groups such as the American Bar Association, is, in theory, supposed to ensure a thorough vetting of any nominee.

In practice, however, there are still holes in this process.  Take allegations of sexual assault, for example, comparable to those made by Dr. Ford.  Where the allegations have not been reported to the police, they will not show up in a criminal background check.  Unless there has been news coverage or some public record of the allegations, they will not show up in Google or record searches.  Furthermore, unless the nominee volunteers the information, it will not be revealed in the disclosures.  As such, investigators generally probe such allegations of misconduct in their private interviews with the nominee’s friends, family, and colleagues.

However, even these interviews are unlikely to reveal such misconduct.  Most DOJ, FBI, and ABA interviews are conducted either with friends and colleagues invested in the nominee’s success, or, with opposing counsel and judges who are too far removed to be aware of, let alone comfortable revealing, any allegations of impropriety.  As such, unless an individual alleging misconduct is directly interviewed, it is unlikely that their allegations would be revealed in the interview process.

In the case of Judge Kavanaugh, the flaws in the vetting process may have been magnified by its speed.  Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018.  Judge Kavanaugh was announced as the nominee on July 9, just 12 days later.  In comparison, President Obama nominated Justice Sotomayor 26 days after Justice Souter’s leaked retirement in 2009, and Justice Kagan 31 days after Justice Stevens’ retirement in 2010.  Similarly, his nomination of Judge Merrick Garland in 2016 came 31 days after Justice Scalia’s untimely passing.  While Justice Gorsuch’s nomination came 11 days after President Trump’s inauguration, it was to a vacancy that had been pending almost a year.  Even assuming that Judge Kavanaugh had been partially vetted before Justice Kennedy’s retirement, the pace of his nomination was still incredibly fast.

Similarly, the Senate Judiciary Committee held a hearing on Judge Kavanaugh less than two months after his nomination despite the Committee not having a chance to look over significant portions of his record.  As such, at the time of the hearing, only one of the 21 Judiciary Committee senators was even aware of Dr. Ford’s allegations.

At any rate, any deficiencies in the process could have been corrected once Dr. Ford’s allegations went public.  At that point, the White House could have reopened Judge Kavanaugh’s background check, allowing the FBI to investigate the allegations (something they have done hundreds of times before).  The White House chose not to.  The Senate Judiciary Committee could have chosen to take sworn testimony from Dr. Ford’s corroborators, including those with whom she shared the allegations, and those who could corroborate the events in question.  The Committee chose not to.

Instead, the American people were subjected to the spectacle of a sexual assault survivor being cross-examined by a prosecutor, while a gallery of stone-faced senators watched.  No other witnesses were called, and no follow up questions were asked.  If it was not for a carefully-negotiated rebellion on the part of Sen. Jeff Flake, there would have been no follow-up from Dr. Ford’s testimony at all.

Regardless of what the reopened FBI investigation uncovers, this saga has already laid bare the weaknesses of the current vetting process.  Perhaps there is no foolproof way that unreported allegations of sexual assault can be uncovered through the vetting process.  However, it is important to recognize that.  Given the documented barriers to reporting sexual assault claims, there are likely other unreported claims against other federal judges and nominees.  As such, the next time that similar allegations are raised against a nominee, vetters may need to look in the mirror before asking why the allegations were not uncovered earlier.

This blog reflects solely the views of the author and does not reflect the positions of any of the other writers or researchers at the Vetting Room.

 

 

What Can We Expect From the Early Batches of Biden Judges

Last week, we discussed the timing of judicial nominations from the new Administration, specifically, that they were unlikely to hit the Senate until March at the earliest.  Today, we’ll discuss who we can expect to see in that first batch.  As we discussed, district court nominees generally arise from home state senator recommendations, which, in many states, have yet to be submitted.  As such, it is likely that appellate nominees will come at a faster pace than district court nominees.  The Biden Administration came into office with two unfilled appellate vacancies.  Since then, an additional four vacancies have been announced.  As such, we could expect to see nominees for one to six appellate seats as part of the first batch.  Here’s who might be included:

D.C. Circuit – seat to be vacated by Judge Merrick Garland

Yes, technically there is no vacancy on the D.C. Circuit at the moment.  However, the consensus in Washington is that Judge Merrick Garland will be confirmed by the U.S. Attorney General in February, and, will (although he doesn’t have to) vacate his seat upon confirmation.  It’s also assumed that the expected nominee for this seat will be Judge Ketanji Brown Jackson.  The former Supreme Court clerk and public defender was confirmed unanimously to the U.S. District Court for the District of Columbia in 2013 and is a shortlister for a Supreme Court vacancy.  Given her profile, it would not have been surprising for the Administration to have been vetting her to replace Garland alongside Garland’s own vetting for Attorney General.  As such, barring something unexpected in the vetting process (or the judge declining to be considered), Judge Jackson’s nomination to the D.C. Circuit will likely be in the first batch of judicial nominees announced.

First Circuit – Puerto Rico seat

The lone judge from Puerto Rico on the First Circuit, Judge Juan Torruella, passed away on October 26, 2020.  The Trump Administration nominated U.S. District Judge Raul Arias-Marxuach for the vacancy in November, and, while Judge Arias-Marxuach was given a hearing, his nomination was never confirmed before the end of the Trump Administration.  While Senator Lindsey Graham has suggested that the Biden Administration renominate Judge Arias-Marxuach, it’s more likely that the Administration will choose their own candidate.  A strong contender would be the 40-year-old Margarita Mercado Echegeray, the former Solicitor General of Puerto Rico, and a former clerk to Torruella on the First Circuit.  Echegeray would not only be the first Hispanic woman on the First Circuit, but would be young enough to be a strong future Supreme Court contender.  The Administration may also strongly consider Chief Justice Maite Oronoz Rodriguez of the Puerto Rico Supreme Court, who would be the first openly gay judge on the First Circuit if confirmed.

Second Circuit – New York seats

Judge Robert Katzmann’s move to senior status on January 21, 2021, opened up a prized vacancy on the Second Circuit.  Judge Denny Chin’s move on June 1, 2021 will open a second.  Democrats have an embarrassment of riches when it comes to New York based appellate candidates, but, given the influence of Senate Majority Leader Chuck Schumer in the appointment, four candidates are likely be strongly considered:

  1. Judge Alison Nathan – The 48-year-old jurist was the youngest judge in the country when she was narrowly confirmed to the Southern District of New York in 2011.  Today, the former clerk to Justice John Paul Stevens would be, if confirmed, the first openly gay jurist on the Second Circuit.
  2. Judge J. Paul Oetken – The 55-year-old Oetken is, like Nathan, a judge on the Southern District of New York confirmed in 2011, and was, at the time of his confirmation, the first openly gay male judge confirmed to the federal bench.  Oetken also came to the bench with glowing credentials, including a clerkship with Justice Harry Blackmun.
  3. Judge Jesse Furman – The 48-year-old Furman joins Oetken and Nathan as a trio of young, credentialed attorneys recommended by Schumer to the Southern District in 2011.  Furman is also a Supreme Court clerk (Justice David Souter) and has the distinction of presiding over the challenges to the Census Citizenship question, where his injunction against the question was upheld by the U.S. Supreme Court.
  4. Caitlin Halligan – The 54-year-old Halligan was also, at Schumer’s recommendation, nominated to the federal bench by President Obama in 2010.  However, unlike the other nominees noted above, the former New York Solicitor General and clerk to Justice Stephen Breyer was filibustered by Republicans, and her nomination to the D.C. Circuit was never confirmed.  Now, with the judicial filibuster gone, Halligan has a second chance at an appellate seat.

Of course, all four candidates above have relatively conventional resumes for appellate nominees, and liberals may seek more dynamic candidates.  Two options are NYU Law Professor Melissa Murray, who testified against Justice Brett Kavanaugh’s nomination in 2018, and Director of the ACLU’s Voting Rights Project Dale Ho.  Both would attract strong Republican opposition, but have more unconventional backgrounds that might motivate liberals.  Furthermore, both in their early 40s, Ho and Murray could add a decade of judicial tenure over the previously mentioned candidates.

One wrinkle is that it isn’t perfectly clear if Katzmann’s seat should go to a New York nominee.  When the Second Circuit was enlarged to 13 seats in 1984, both new seats were filled by President Reagan with New York judges, assigning 9 judges to New York, 3 to Connecticut, and one to Vermont.  This ratio held until 1993, when Judge Thomas Meskill (from Connecticut) moved to senior status.  At the time, Hispanic groups were advocating for Connecticut District Judge Jose Cabranes to be nominated for the U.S. Supreme Court.  With Cabranes’ record on the bench being fairly conservative, Connecticut Senators instead pushed for Cabranes to replace Meskill on the Second Circuit.  However, President Clinton already had a candidate for the vacancy, his old law professor Guido Calabresi.  Seeking a compromise, and with the consent of New York Senator Daniel Moynihan, Clinton instead nominated Cabranes to replace Judge Richard Cardamone, filling a New York seat on the court, and shifting the ratio of judges on the Second Circuit.

In 1997, the Connecticut-based Jon Newman moved to senior status.  In seeking to replace Newman, the Clinton Administration vetted Connecticut Attorney General Richard Blumenthal, before the latter withdrew from consideration in favor of running for re-election.  Clinton then chose Robert Katzmann, a professor at Georgetown Law in Washington D.C.  After being confirmed, Katzmann set up his chambers in New York, restoring the 9-3 split that was disrupted by Cabranes’ confirmation.

However, the turf battle between the two states didn’t end there.  In 2000, Connecticut-based Judge Ralph Winter moved to senior status, and the Clinton Administration again prepped Blumenthal to fill the vacancy.  However, Clinton never made the nomination official, and the seat remained empty when the Bush Administration came to office.  President Bush, upon Schumer’s recommendation, chose a New York-based federal judge, Barrington Daniels Parker, to fill the vacancy.  Parker’s confirmation reduced Connecticut to just 2 seats on the Second Circuit.

Parker took senior status in 2009, and President Obama then restored the seat to Connecticut, appointing Yale General Counsel Susan Carney.  That restored the 9-3 ratio which holds to this day.

Now, with Katzmann’s move to senior status, it remains to be seen if Blumenthal, now a U.S. Senator from Connecticut, will push for the seat to be restored to Connecticut as the Carney seat was.  If he’s successful in that push, Connecticut Supreme Court Justice Raheem Mullins would be an attractive pick (despite a decade on the bench, Mullins is only 42).

Regardless of who the White House picks, however, the Administration is likely to move relatively quickly on a nominee, and it wouldn’t be surprising to see a Second Circuit nominee among the first batch.

Seventh Circuit – Illinois seat

This Illinois seat on the Seventh Circuit opened on November 30, 2020, when Judge Joel Flaum moved to senior status.  Similar to New York, Democrats have many options when it comes to qualified appellate nominees in Illinois.  However, two judges on the Northern District of Illinois are likely to be strongly considered:

  1. Judge Gary Feinerman – The 55-year-old judge comes from an illustrious background.  He clerked for Justice Anthony Kennedy on the U.S. Supreme Court, and two of his co-clerks, Justices Neil Gorsuch and Brett Kavanaugh, now sit on the U.S. Supreme Court.  Feinerman, for his part, served as Illinois Solicitor General and a Partner at Sidley Austin before being appointed to the federal bench in 2010.
  2. Judge Andrea Wood – The 47-year-old Wood has served on the federal bench since 2013, when, at age 40, she was the youngest federal judge in the country.  As President Biden seeks to diversify candidates for the Supreme Court, Judge Wood would be a prime candidate to elevate.

Tenth Circuit – Colorado Seat

Judge Carlos Lucero’s move to senior status off of the Tenth Circuit was only made official today, and was announced just three days ago.  As such, it is unlikely that the White House would have a nominee ready for Lucero’s seat by March.  However, two Colorado Supreme Court Justices would make intriguing selections:

Justice Monica Marquez would be, if confirmed, the first openly gay judge on the Tenth Circuit.  The 51-year-old jurist has served on the Colorado Supreme Court since 2010 and has charted a relatively liberal path on the court.

Similarly the 50-year-old Justice Melissa Hart is also impeccably qualified, having clerked on the U.S. Supreme Court for Justice John Paul Stevens, and having replaced another SCOTUS clerk who was tapped for the Tenth Circuit, Judge Allison Eid, on the Colorado Supreme Court.

District Court

In addition to the above-mentioned appellate seats, the first batch of White House nominees is likely to include some nominees for vacancies in California, New York, Nevada, and Washington, likely renominating acceptable picks from the Obama and Trump Administrations.  The White House may specifically consider the following:

  • California
    • U.S. Magistrate Judge Steve Kim
    • San Diego Criminal Defense Attorney Knut Johnson
    • Jones Day Partner Shireen Matthews
  • Colorado
    • Wilmer Hale Partner Regina Rodriguez
  • District of Columbia (assuming Jackson is elevated, opening up her seat on the district court)
    • Latham & Watkins Partner Abid Qureshi, who would be, if confirmed the first Muslim Article III judge.
  • Nevada
    • University of Nevada-Las Vegas Professor Anne Rachel Traum
  • New York
    • Dechert Partner Hector Gonzalez
    • Gibson Dunn Partner Jennifer Rearden
  • Washington
    • King County Superior Court Judge Beth Andrus
    • King County Superior Court Judge J. Michael Diaz
    • AUSA Tessa Gorman
    • Perkins Coie Partner Kathleen O’Sullivan

Katherine Crytzer – Nominee to the U.S. District Court for the Eastern District of Tennessee

36-year-old Katherine Crytzer was already before the Senate seeking an executive appointment when she was nominated for a federal judgeship.  While Crytzer’s nomination to be Inspector General was never confirmed by the Senate, her nomination to be a federal judge remains an open question.

Background

Born in 1984, Katherine A. Crytzer graduated from Middle Tennessee State University in 2006 and attended George Mason University Law School, graduating in 2009.  Crytzer then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.

After her clerkship, Crytzer joined Kirkland & Ellis as an associate.  In 2014, Crytzer joined the U.S. Attorney’s Office for the Eastern District of Kentucky as a federal prosecutor.  In 2017, Crytzer joined the Office of Legal Policy at the Department of Justice.  Since 2020, Crytzer has served as Principal Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In 2020, Crytzer was nominated to be the Inspector General for the Tennessee Valley Authority, replacing acting Inspector General Jill Matthews.[1]  However, Crytzer’s nomination came under fire for her refusal to disavow the Administration’s practice of dismissing Inspector Generals for their investigation and oversight activities.[2]  Crytzer’s nomination cleared the Senate Environment and Public Works Committee by a narrow 12-11 vote, but never received a vote on the Senate floor.

History of the Seat

Crytzer has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on September 10, 2020, with the untimely death of Judge Pamela Reeves.

Legal Career

Crytzer started her legal career by clerking on the U.S. Court of Appeals for the Eighth Circuit and then in private practice at Kirkland & Ellis.  While at the firm, Crytzer was part of a legal team that challenged California’s Low Carbon Fuel Standard as being pre-empted by federal law, and discriminating against interstate commerce in violation of the Dormant Commerce Clause.[3]

From 2014 to 2017, Crytzer worked as a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Kentucky.  As a prosecutor, Crytzer argued before the Sixth Circuit in support of the stop, detention, and frisk of suspected drug traffickers.[4]  A 2-1 decision of the Sixth Circuit held that the Officer lacked probable cause for the frisk, and vacated the conviction.[5] 

Since 2017, Crytzer has worked at the Department of Legal Policy, working primarily on judicial nominations.  In this role, Crytzer helped “shepherd” the nomination of Justice Brett Kavanaugh through the Senate.[6]

Writings

As a law student, Crytzer authored a law review article considering when, under Supreme Court precedent, the publication of unfavorable information about a public employee implicates their due process interests.[7]  Crytzer argued that the Supreme Court should confirm an “actual publication” test adopted by two circuits, holding that the only way that an employee’s due process rights would be harmed is with the “actual publication” of the unfavorable information to third parties.[8]

Overall Assessment

With less than ten weeks left in the Trump Presidency, Crytzer faces a narrow window for confirmation.  Additionally, given her youth, the opposition to her executive appointment, and her work on Justice Kavanaugh’s confirmation process, Crytzer is likely to be considered a controversial nominee.


[1] Georgiana Vines, Katie Crytzer Introduced as Potential TVA Inspector General, Knox News, May 31, 2020, https://www.knoxnews.com/story/news/columnists/georgiana-vines/2020/06/01/katie-crytzer-introduced-potential-tva-inspector-general/5284749002/.

[2] Newswire, Democrats Balk at TVA Inspector General Pick, Greenwire, July 1, 2020.

[3] See Rocky Mt. Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2012).

[4] See United States v. Noble, 762 F.3d 509 (6th Cir. 2014).

[5] See id. at 529.

[6] See Jerry Lambe, Trump’s Latest Judicial Nominee Is DOJ Attorney Who Helped Kavanaugh’s Confirmation to Supreme Court, Newstex Blogs, Sept. 16, 2020.

[7] Katherine Crytzer, You’re Fired! Bishop v. Wood: When Does a Letter in a Former Public Employee’s Personnel File Deny a Due Process Liberty Right, 16 Geo. Mason L. Rev. 447 (Winter 2009).

[8] See id. at 449.

Thirteen Federal Judges President Trump May Elevate to the Court of Appeals in His Second Term

Last week, we looked at thirteen district court judges who would be strongly considered for elevation to the Court of Appeals under a prospective President Biden.  This week, we’ll look at thirteen district court judges who would be considered for elevation by President Trump if he is re-elected to a second term.  As we did last week, we’ll limit our pick to thirteen judges, one for each Court of Appeal.

Judge Trevor McFadden (D.D.C.)

Judge Trevor McFadden is not only the youngest member of the U.S. District Court for the District of Columbia (McFadden is only 42), but he is also the most conservative.  In his three years on the bench, McFadden has racked up a number of rulings in favor of the Trump Administration, including ruling that the House of Representatives lacks standing to enforce its appropriations in court and in delaying the House suit seeking the President’s tax returns.  McFadden’s bid for the D.C. Circuit would be hampered by the hundreds of qualified D.C. conservatives who’d want such a post, but if the Administration wants a district court judge, McFadden would be their expected pick.

Judge Lance Walker (D. Me.)

Maine Judge Lance Walker may seem like an idiosyncratic choice for the Trump Administration to elevate, given his past decisions against anti-abortion groups and his ruling that essentially singlehandedly ensured the ranked-choice election of Democrat Jared Golden.  However, Walker, who would be only 51 when Judge William Kayatta would become eligible for senior status in 2023, is also a longtime member of the National Rifle Association and the Federalist Society.  Given this and his bipartisan confirmation to the district court, Walker may well be an ideal choice for Trump for this left-leaning circuit.

Judge Rachel Kovner (E.D.N.Y.)

Judge Rachel Kovner certainly has the pedigree to sit on the Second Circuit, having clerked for Judge J. Harvie Wilkinson and for Justice Antonin Scalia.  Also considering that Kovner has argued 11 cases before the U.S. Supreme Court and was confirmed with an overwhelming 88-3 margin, it seems more a matter of when, rather than if, Judge Kovner will be elevated.  While the forty year old judge has time on her side, she is likely to be closely scrutinized in a second Trump Administration.

Judge William Stickman (W.D. Pa.)

There is a good chance that Chief Judge Brooks Smith on the Third Circuit will move to senior status upon the conclusion of his term as Chief Judge in 2021, and Judge Stickman, who would only be 42 then, will likely be one of the leading contenders to replace him.  Despite a conservative record, Stickman had the support of Democratic Sen. Bob Casey in his district court confirmation, although, as Judge Peter Phipps experienced, support on the district court level is not a guarantee of support for an appellate seat.

Judge Thomas Kleeh (S.D.W.V.)

The 46 year old Kleeh has largely avoided making waves in his two years on the federal bench.  Nonetheless, Kleeh, who has strong connections with the West Virginia legal community, would likely be first on the list if Judge Robert King moved to senior status in a second Trump term.

Judge Brantley Starr (N.D. Tex.)

Judge Brantley Starr, who was confirmed to the Northern District of Texas last year has already made a name for himself on controversial cases, ruling that the federal government couldn’t ban bump stocks without compensating individuals under the Takings Clause, and his background prompting a transgender plaintiff to ask the judge to recuse himself from her case.  The 41 year old Starr is primed for a Fifth Circuit appointment, potentially if the equally conservative and inflammatory Judge Edith Jones moves to senior status in a second Trump term.

Judge Hala Jarbou (W.D. Mich.)

We’re cheating slightly with this one as Judge Jarbou has not yet been confirmed to the federal bench, but a vote on her nomination has been teed up for September, and she will likely sail to confirmation.  With two Michigan judges on the Sixth Circuit eligible for senior status and a third set to become eligible next year, the 49-year-old Jarbou would make a readily confirmable nominee, even if the Administration faces a Democratic Senate.

Judge Martha Pacold (N.D. Ill.)

The 41 year old Judge Pacold, despite having clerked for Justice Clarence Thomas and having a conservative’s dream resume, was nearly unanimously confirmed by the U.S. Senate to the trial court.  While it is unclear if she would attract that level of support if elevated to the Seventh Circuit, she is likely to be considered the leading candidate to replace Judge Ilana Rovner if she retires in a second Trump term.

Judge Sarah Pitlyk (E.D. Mo.)

If Judge William Duane Benton moves to senior status in a second Trump term, expect the shortlist for his seat to essentially consist of one candidate: Pitlyk.  The 43 year old Pitlyk, who squeaked to confirmation over bipartisan opposition, would be a dream candidate for conservatives, given her vocal support for Justice Brett Kavanaugh’s nomination and her strong anti-abortion record.

Judge Dominic Lanza (D. Ariz.)

It’s interesting that Lanza is a strong contender for the Ninth Circuit in a second Trump term given the fact that he was already rejected for a Ninth Circuit seat once by Trump.  The 44 year old jurist was originally recommended to be appointed to the Ninth Circuit by Sens. John McCain and Jeff Flake, only to be rejected by the Trump Administration, who were pushing Administration attorney James Burnham.  Ultimately, the Administration went with the Senators’ second choice, Judge Bridget Bade, and Lanza got a consolation appointment to the district court.  Now, Lanza, who was recently in the news for rejecting challenges to Arizona’s mail-in-ballot deadlines, will be closely watched for the Ninth Circuit if Judge Andrew Hurwitz moves to senior status in 2022.

Judge Patrick Wyrick (W.D. Okla.)

The 39-year-old Judge, who previously served on the Oklahoma Supreme Court, was previously the youngest nominee on President Trump’s Supreme Court shortlist.  Few believe that Wyrick will be tapped for the highest court without building a record on the Court of Appeals, and if an Oklahoma vacancy opens (neither of the 10th Circuit’s Oklahoma judges will be eligible to retire in the next four years), Wyrick’s name will be at the top of the list.

Judge Roy Altman (S.D. Fl.)

The 38 year old Altman was the youngest district court judge in the country when he was appointed in 2019, and, despite that youth, he sailed to confirmation by a 2-1 margin, a landslide among recent confirmation votes.  Altman will likely be strongly considered for a seat on the Eleventh Circuit if Judge Charles Wilson moves to senior status in a second Trump term, or if Judges Lagoa or Luck are elevated to the U.S. Supreme Court.

Judge Amos Mazzant (E.D. Tex.)

The Federal Circuit generally attracts less controversy than the other courts of appeals, which may be a reason for the Trump Administration to tap one of many young lawyers it has named to the Court of Federal Claims.  However, if it chooses an Article III appointee, Judge Amos Mazzant, who currently serves on the Eastern District of Texas, is a possible choice.  Judge Mazzant may have been named to the bench by President Obama, but he’s a strong conservative who was recommended by Sen. Ted Cruz.  Additionally, the 55-year-old Judge Mazzant has over a decade of experience on the patent heavy docket of the Eastern District of Texas, which would prepare him well for the Federal Circuit.

Saritha Komatireddy – Nominee to the U.S. District Court for the Eastern District of New York

A prominent federal prosecutor and former clerk to Justice Brett Kavanaugh (on the D.C. Circuit), Saritha Komatireddy would (if she lapped current nominee Diane Gujarati) be the first Indian American judge on the Eastern District and the first Telugu American judge on the federal bench.[1]

Background

Saritha Komatireddy grew up in Missouri, the daughter of doctors who had immigrated from Telangana in India, making her the first nominee from a Telugu background.[2]  As a child, Komatireddy was honored as a Presidential Scholar in 2001.[3]  Komatireddy attended Harvard University and Harvard Law School, getting her J.D. Magna Cum Laude in 2009.  Komatireddy then clerked for then-Judge Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit.  After her clerkship, Komatireddy spent a year as Counsel for the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling.

In 2011, Komatireddy became an Associate at Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC.  In 2013, she was hired by U.S. Attorney Loretta Lynch (later the U.S. Attorney General) as an Assistant U.S. Attorney.  Komatireddy currently works in that office as Deputy Chief of General Crimes.  

History of the Seat

Komatireddy has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  While she has not been officially submitted to the Senate yet, she will likely fill the seat vacated by Judge Joseph Bianco’s elevation to the Second Circuit, which is the longest pending vacancy on the Eastern District without a nominee, having opened in May 17, 2019.

Legal Experience

While Komatireddy has held a few different legal positions, her most prominent role has been as a federal prosecutor.  In the U.S. Attorney’s Office for the Southern District of New York, Komatireddy has prosecuted a number of challenging and complex cases, including pornography and terrorism.

For example, Komatireddy prosecuted Roy Naim, an immigration activist featured in Time magazine, for child pornography charges.[4]  Naim ended up with a 15 year sentence from Judge Nicholas Garaufis.[5]  In another case, Komatireddy prosecuted Phil Kenner for defrauding NHL players and other investors in a vast criminal enterprise.[6] 

Komatireddy’s most notable cases, however, involved the prosecutions of individuals for terrorism-related charges.  For example, Komatireddy secured a 16 year sentence against Agron Hasbajrami for attempting to join radical terrorist groups in Pakistan.[7]  Komatireddy also tried Muhanad Mahmoud Al Farekh, a U.S. citizen charged with involvement in attacks on U.S. bases in Afghanistan.[8]  Al Farekh was convicted and sentenced to 45 years in prison.  More recently, Komatireddy is prosecuting Ruslan Maratovich Asainov, who is alleged to be a sniper for ISIS, and who threatened to commit acts of terror if allowed to be free on bond.[9]

Additionally, Komatireddy was involved in a legal battle over Apple’s refusal to provide backdoors to the federal government to bypass password protections for their iPhones.[10]  The issue arose after Apple refused to unlock the iPhone of a defendant charged with drug distribution, leaving Komatireddy “clearly stunned.”[11]  Ultimately, a judge sided with Apple, arguing that the federal government could not compel the disclosure.[12] 

Writings

As a law student, Komatireddy authored an article discussing the recent Supreme Court case, Bell Atlantic Corp. v. Twombly.[13]  The article critiques the decision, noting that it dramatically changes previous standards on pleading, and “seems to have created a more stringent pleading standard.”[14]  The Supreme Court later affirmed this reading of Twombly in Ashcroft v. Iqbal, expressly laying out a stricter pleading standard.[15] 

In other matters, Komatireddy wrote in support of Justice Brett Kavanaugh’s Supreme Court nomination, joining a letter by former Kavanaugh clerks praising the Justice.[16]  In another statement, Komatireddy described Kavanaugh as a man with “fundamental respect for the law and a complete commitment to getting it right.”[17]  Notably, unlike fellow appointees Justin Walker and Sarah Pitlyk, Komatireddy did not make public statements in relation to the sexual assault allegations made by Prof. Christine Blasey Ford.

Overall Assessment

For the most part, assuming she keeps the support of Sens. Schumer and Gillibrand, Komatireddy will be confirmed comfortably.  If she faces any issues in the confirmation process, it’d likely be from two sources.  The first would be from opponents of Justice Kavanaugh who would object to her praise of his nomination.  The second would be from civil libertarians who object to Komatireddy’s role in seeking backdoor access to iPhones.  From her supporters, both arguments have viable counters: Komatireddy did not address Dr. Ford’s testimony and only praised Kavanaugh for his role as a D.C. Circuit judge; and Komatireddy has not the decisionmaker behind the “backdoor” program but merely sought to use a legal mechanism that Apple had acquiesced to in 70+ cases to assist in prosecutions.  Assuming such explanations carry the day, Komatireddy should expect confirmation before the end of the year.


[1] The Telugu American community, consisting of immigrants from the Telangana and Andhra Pradesh states in India, make up half a million in the U.S., including the author of this article.

[2] See Lawyer with Telangana Roots Posted as Judge in US District Court, Times of India, Feb. 23, 2020.

[3] Three Missouri Students Named as Presidential Scholars, A.P. State & Local Wire, May 16, 2001.

[4] See Ryan Gorman, Roy Naim, the ‘Jewish Face of the Immigration Reform Struggle’ Featured in Time Magazine, Arrested on Child Porn Charges and Denied Bail, MailOnline, Sept. 21, 2013.

[5] See John Marzulli, Time for Jail Cover Guy Gets 15 Years – Preyed on Cancer Kid, N.Y. Daily News, May 19, 2016.

[6] Michael O’Keeffe, Alleged Con Man Takes the Stand, Says NHLers, Others Got Testimony Wrong, N.Y. Daily News, June 18, 2015. 

[7] Press Release, Department of Justice, Albanian National Sentenced to 16 Years’ Imprisonment for Attempting to Support Terrorism, US Official News, Aug. 19, 2015.

[8] Tom Hays, Jury Hears Openings at Trial of American Terror Suspect, A.P. State & Local, Sept. 12, 2017.

[9] See Ruth Weissmann, NY ‘ISIS’: Free Me At Your Peril, N.Y. Post, Sept. 12, 2019.

[10] See Todd C. Frankel, Ellen Nakashima, Showdown over iPhone Reignites Privacy Debate, Wash. Post, Feb. 21, 2016.

[11] See id.

[12] Katie Benner and Joseph Goldstein, Judge Rules for Apple in New York iPhone Case, N.Y. Times, Mar. 1, 2016.

[13] Saritha Komatireddy Tice, A ‘Plausible’ Explanation of Pleading Standards: Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), 31 Harv. J.L.  & Pub. Pol’y 827 (Spring 2008).

[14] Id. at 832.

[15] See Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[16] See Press Release, Office of Sen. Charles Grassley, Judge Kavanaugh Clerks Laud Nomination to Supreme Court, July 11, 2018.

[17] Press Release, Office of the Press Secretary, White House, The Legal Community is Giving Rave Reviews to Judge Brett Kavanaugh’s Nomination to the Supreme Court, July 12, 2018.

Judge Cory Wilson – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Judge Cory Wilson, who currently serves on the Mississippi Court of Appeals, has his nomination pending before the Senate for a district court seat.  Now, Wilson, who has already attracted strong opposition, has been renominated to fill a seat on the U.S. Court of Appeals for the Fifth Circuit.

Background

Cory Todd Wilson was born on August 8, 1970, in Pascagoula, Mississippi.  After getting a B.A. summa cum laude from the University of Mississippi, Wilson received his J.D. from Yale Law School.[1]  Wilson then clerked for Judge Emmett Ripley Cox on the U.S. Court of Appeals for the Eleventh Circuit and then joined the Jackson office of Watkins Ludlam Winter & Stennis P.A.

In 2001, Wilson joined Bradley Arant Rose & White LLP as an associate.  He stayed until 2008, except for a year as a White House Fellow.[2]  In 2008, he joined the Mississippi Secretary of State’s Office as Chief of Staff/Deputy Secretary of State.  Wilson also served as Counsel for State Treasurer Lynn Fitch.  

In 2011, Wilson joined Heidelberg Steinberger Colmer & Burrow, P.A., where he stayed until his election to the Mississippi House of Representatives as a Republican in 2016.  Wilson served in the House until 2019, when he was appointed to the Mississippi Court of Appeals.

In 2018, Wilson broached his interest in a federal judgeship with the White House.  In November 2019, Wilson was nominated to a seat on the U.S. District Court for the Southern District of Mississippi.  The seat opened on March 23, 2018, when Judge Louis Guirola took senior status.  

History of the Seat

Wilson has been nominated for a Mississippi seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on October 3, 2017 with Judge E. Grady Jolly’s move to senior status.  

In April 2017, the White House began vetting U.S. District Court Judge Halil Ozerden for the vacancy.[3]  However, Ozerden’s nomination faced almost immediate pushback from conservatives who complained that Ozerden was insufficiently conservative for the seat.[4]  Nevertheless, Ozerden was finally nominated after the intervention of White House Chief of Staff Mick Mulvaney, who served as a groomsman in Ozerden’s wedding.[5]

However, Ozerden’s nomination stalled as two Republican senators on the Judiciary Committee came out against his nomination.[6]  With Democrats unwilling to provide the votes to move Ozerden’s nomination, the nomination was not sent back to the Senate in 2020, and Wilson’s district court nomination was substituted instead.

Legal Experience

Before he joined the legislature, Wilson generally practiced civil litigation, albeit with some work with both the Secretary of State and the Treasurer of Mississippi.  Over the course of his career, Wilson has tried three cases to verdict.[7]  Notably, Wilson represented one of the defendants sued for allegedly engaging in a conspiracy to photograph Sen. Thad Cochran’s wife in order to damage his re-election campaign.[8]  Wilson was able to get the case against his client dismissed for failure to state a claim.[9]

Jurisprudence

Wilson has served on the Mississippi Court of Appeals since his appointment in February 2019.  In his time on the bench, Wilson has authored approximately twenty opinions, mostly on matters of criminal law.  For example, Wilson wrote for the Court in finding that the trial judge did not err in trying and convicting a defendant while he was not present, finding that the defendant was trying to willfully avoid trial.[10]  In contrast, in another case, Wilson reversed a conviction for possession of a controlled substance, finding that the indictment was defective.[11]

Political Activity

As noted earlier, Wilson was elected as a Republican to the Mississippi House of Representatives in 2015 and served until his appointment to the Court of Appeals in 2019.  Wilson also previously ran for the state legislature in 2007, albeit unsuccessfully.  During his campaign, Wilson identified himself as a “conservative consensus builder.”[12]  He also attacked his opponent for opposing the record of Gov. Haley Barbour,[13] crime policy,[14] and cuts in dyslexia funding.[15] 

In addition to his campaigns, Wilson has extensive involvement with the Mississippi Republican Party, including serving as a volunteer during many Republican campaigns and serving on Republican organizations.[16] 

Speeches and Writings

As both a state representative and as a private citizen, Wilson wrote frequently on the law and policy, generally representing a conservative perspective on both.  Wilson also authored a column at MageeNews.com, which he described as reflecting a conservative perspective.[17]  In a feature describing his column, Wilson describes himself as someone who has “always been political” and “always been a Republican.”[18]

Additionally, Wilson also maintains an active Twitter account.[19]  His tweets and his writings have already drawn sharp criticism from liberal groups.[20]  Specifically, Wilson has called for the reversal of the Supreme Court’s decision in Roe v. Wade,[21] and has referred to same-sex marriage as “a pander to liberal interest groups.”[22]  Similarly, Wilson has been sharply critical of the Affordable Care Act, describing the law’s passage as “perverse” and “illegitimate.”[23] 

On his Twitter account, Wilson’s tweets are generally innocuous, describing the weather or celebrating major American holidays.  However, some of the tweets touch on more controversial topics.  For example, in a tweet on October 5, 2018, Wilson praises Sen. Susan Collins for supporting the nomination of Justice Brett Kavanaugh, praising her for rejecting “ugly tactics employed by the Left.”[24]  Similarly, the day before the 2018 election, Wilson wrote that the election was a choice between “#RepublicanResults, or unhinged Dem #Resistance.”[25]

Overall Assessment

Given Wilson’s fairly conservative record, it is unsurprising that he has drawn controversy on his nomination and that his name has proceeded relatively slowly through the confirmation process.  That being said, given the Republican majority, Wilson is favored for confirmation.  Nonetheless, Democrats will raise legitimate questions as to Wilson’s willingness to consider with an open mind the legal arguments of parties he disagrees with.  As, by his own admission, Wilson has “always been political,” it’ll be up to him to convince senators that he will be open-minded as a judge.


[1] Sen. Comm. on the Judiciary, 116th Cong., Cory Wilson: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Sen. Comm. on the Judiciary, 116th Cong., Ozerden: Questionnaire for Judicial Nominees 55-56.

[4] See Carrie Severino, Conservatives Voice Concerns Over Potential Fifth Circuit Nominee, Nat’l Review, Aug. 21, 2018, https://www.nationalreview.com/bench-memos/conservatives-voice-concerns-over-potential-fifth-circuit-nominee/.

[5] Eliana Johnson and Marianne Levine, Mulvaney Pushed Judicial Nominee Over Objections of White House Lawyers, Politico, June 13, 2019, https://www.politico.com/story/2019/06/13/mulvaney-halil-suleyman-fifth-circuit-1362794.

[6] Marianne Levine, Trump’s Embattled Judicial Pick Faces His Last Chance, Politico, Nov. 7, 2019, https://www.politico.com/news/2019/11/07/trump-judicial-pick-ozerden-last-chance-067097.  

[7] Id. at 72.

[8] See Mayfield v. Butler Snow LLP, 341 F. Supp. 3d 664 (S.D. Miss. 2018).

[9] Id.

[10] Morales v. State, 2019 WL 3562031 (Miss. Ct. App. Aug. 6, 2019).

[11] Payne v. State, 2019 WL 2511477 (Miss. Ct. App. June 18, 2019).

[12] See A Time For Choosing, YouTube, https://www.youtube.com/watch?v=AVYGAn5Ddkw.

[13] See id.

[14] Cory Wilson on Crime, YouTube, https://www.youtube.com/watch?v=7MvqKGgcVVQ.

[15] Cory Wilson (Unaired), YouTube, https://www.youtube.com/watch?v=iDp-wvvs9_A.

[16] See Wilson, supra n. 1 at 68-69.

[17] See Who is Cory Wilson, YouTube.com (available at https://www.youtube.com/watch?v=DZcTU6j7-5M).

[18] See id.

[19] See Cory Wilson (@CoryWilsonMS), https://twitter.com/CoryWilsonMS.

[20] See, e.g., Alliance for Justice, Report on Cory Wilson (available at https://afj.org/wp-content/uploads/2019/11/Cory-Wilson-Report-Final-1.3.20.pdf).

[21] See Mississippi Right to Life Candidate Questionnaire, available at https://afj.org/wp-content/uploads/2019/11/Wilson-Attachments-p489-493.pdf.

[22] Cory T. Wilson, When Tolerance Is Really ‘Zero Tolerance’, Press-Register, June 1, 2012, available at https://afj.org/wp-content/uploads/2019/11/Wilson-Attachments-p200-201.pdf.

[23] Cory Wilson,  ACA: Big, Intrusive Government, Madison County Journal, Feb. 20, 2014, available at https://www.afj.org/wp-content/uploads/2020/01/Wilson-Attachments-p76-77.pdf.  

Judge Justin Walker – Nominee to the U.S. Court of Appeals for the D.C. Circuit

Last October, a former clerk to Justices Anthony Kennedy and Brett Kavanaugh was appointed to the U.S. District Court for the Western District of Kentucky, despite having never tried a single case.  What the nominee lacked in trial experience, however, he made up for in media experience, having made 162 media appearances in support of Kavanaugh’s Supreme Court confirmation.[1]  Now, despite only being a judge for six months, Judge Justin Walker has been handpicked by Senate Majority Leader Mitch McConnell, with the recommendation of Kennedy and Kavanaugh, for elevation to the U.S. Court of Appeals for the D.C. Circuit.

Background

A native of the Bluegrass state, Justin Reed Walker was born in 1982 in Louisville.  He attended Duke University and Harvard Law School, getting his J.D. in 2009.[2]  During law suit, Walker worked as a summer associate at Gibson Dunn & Crutcher LLP in Washington D.C.  He was hired by the firm as an Associate upon graduation.[3]  Walker left the firm on hiatus to clerk for Justice Brett Kavanaugh (when he was on the D.C. Circuit) and then for Justice Anthony Kennedy.[4]

In 2013, Walker returned to Louisville to practice law on his own.  He left in 2019 to join Dinsmore & Scholl LLP as a Partner of Counsel.  Additionally, since 2015, Walker has been a Professor with the University of Louisville Brandeis School of Law.

In June 2018, Walker expressed his interest in a judgeship with Sen. Mitch McConnell.[5]  Walker was nominated for a vacancy on the U.S. District Court for the Western District of Kentucky, to a seat opened on June 9, 2019, when Judge Joseph McKinley moved to senior status.  While Walker was rated “Unqualified” for the seat by the American Bar Association, he was nonetheless confirmed on October 24, 2019 on a 50-41 party-line vote, and has served on the Court since.

History of the Seat

Walker has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit to be vacated on September 1, 2020 by Judge Thomas Griffith.  Griffith’s retirement came days after news broke that McConnell was pressuring judges to move to senior status to open vacancies for the Administration to fill.[6]  As a result, some liberal groups have alleged a corrupt bargain, and one has written to Chief Judge Sri Srinivasan on the D.C. Circuit asking for a formal investigation.[7]  To this date, no investigation has been announced.

Legal Experience

Walker’s limited litigation experience almost entirely consists of practicing on his own.  His stints at firms are limited to a short time as an Associate at Gibson Dunn (where he represented Philip Morris in a RICO action with the federal government)[8] and his current position at Dinsmore & Scholl LLP.

Most of his time as a solo practitioner, Walker was a full time law professor.  As such, by his own account, Walker has not tried a single case as primary counsel.[9]  Additionally, he has served as Associate Counsel in only a single criminal case.[10] 

Jurisprudence

Despite only being a judge for around six months, Walker has already authored a number of opinions that can be analyzed.  In review, critics may point to the sharp and sometimes intemperate tone of the opinions, as well as their frequently cursory analysis of legal and factual issues.

Church Restrictions

In 2020, Walker was assigned a lawsuit brought by the On Fire Christian Center challenging a regulation by Mayor Greg Fischer that restricted gatherings on Easter, including religious gatherings.[11]  Walker granted an injunction preventing the regulation from being enforced against On Fire.[12]  Notably, Walker granted the injunction on an ex parte basis, meaning that he did not give the City an opportunity to respond to the initial petition.[13] 

In his opinion, Walker was sharply critical of the regulation, accusing the mayor of having “criminalized the communal celebration of Easter.”[14]  However, there are a few issues with this statement.  First, as Walker acknowledges later in the opinion, Fischer had not threatened any criminal sanctions against anyone who violated his civil restriction.[15]  Walker papers over this fact by arguing that Fischer’s order authorized the Louisville Metro Police to hand out information relating to the risk and follow up with individuals who had attended events to ensure their health and safety and that these actions constitute “law enforcement.”[16]  Second, the City had not intended any enforcement action based on the Mayor’s regulations, which the City could have informed the Court of, had Walker chosen to hear from both sides before issuing his order.[17]  Given this fact, Walker’s statement that adherents could “risk arrest, mandatory quarantine, or some other enforcement action”[18] seems to fall contrary to the evidence in the case.

Furthermore, Walker’s opinion diverts from legal analysis to include editorial comments regarding unrelated issues, from abortion and birth control[19] to Sen. Robert Byrd’s disavowed membership in the Ku Klux Klan.[20]  Walker further takes out more time to quote directly from the Bible and detail the history of “political persecution” faced by Christians.[21]  Walker’s language in the opinion has been criticized, even by conservatives, as intemperate and “over-the-top.”[22] 

In contrast, Walker arguably fails to engage fully with Supreme Court and Sixth Circuit caselaw on the Free Exercise question.  The entire opinion cites only two Sixth Circuit cases, and neither are cited on the substantive questions of whether the Free Exercise Clause has been violated.[23]  Surprisingly, on-point Sixth Circuit cases on the Free Exercise Clause such as Bible Believers v. Wayne County[24] and Prater v. City of Burnside[25] are nowhere to be found in Walker’s opinion. 

Motions to Suppress

As a district court judge, Walker has had the opportunity to rule on motions to suppress brought by criminal defendants, which he has usually denied.  For example, in one case, after a defendant’s house was searched pursuant to a warrant, the defendant challenged the sufficiency of the affidavit upon which the warrant was issued.[26]  The defendant argued that, under Sixth Circuit precedent, the mere fact that he was a drug dealer could not support an inference that drugs would be found in his home.[27]  Walker acknowledged this precedent but then sidestepped it, arguing that this case was different because the defendant here was a “full-time” drug dealer.[28]  Walker noted:

“Full-time drug dealers obviously do not run their illegal operations from corporate headquarters registered with the Secretary of State.  They use their cars, their stash houses, and their homes.”[29] 

Walker’s ruling here arguably conflicts with Sixth Circuit precedent in United States v. Brown.[30]  In Brown, the Sixth Circuit overturned a search of the home of a known drug dealer where the warrant affidavit did not include “facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence.”[31]

If such facts exist in Anderson, Walker’s opinion does not highlight them.  Rather, Walker relies almost exclusively on the defendant’s status as a drug dealer and the fact that he was observed driving to and from a stash house and his home.[32]  Walker’s distinction between a full-time and part-time drug dealer also doesn’t connect back to Brown, which doesn’t focus on such a distinction.

In another opinion, Walker denied a defendant’s request for a Franks hearing to probe potential false statements made in a search warrant affidavit.[33]  Walker held that the defendant was not entitled to a hearing because he had failed to make the requisite preliminary showings.[34]  However, in his ruling, Walker criticizes the motion for being “frivolous” and suggests that defense counsel had made “false statements” and “material omissions.”[35]  Walker’s accusation appears to arise from two contradictory statements made by defense counsel during oral argument on the motion.[36]  Walker also dismisses a secondary argument made by the defense with two words: “Wrong again.”[37]

Civil Rulings

Among the civil rulings he has made, Walker issued notice to a plaintiff that he would sua sponte grant summary judgment against one of their claims unless they withdrew the claim or responded to the court’s notice,[38] remanded cases from federal court for lack of diversity jurisdiction,[39] and dismissed a plaintiff’s case for failure of prosecution, while acknowledging lack of notice of dismissal but noting that any such notice would be “futile.”[40]  In one notable decision, Walker dismissed the discrimination claims made by a terminated employee, finding that her complaint lacked sufficient allegations to support her claim.[41]  Interestingly, Walker dismissed the complaint with prejudice arguing that any amendment would be futile.[42]  Walker based this decision on the plaintiff’s failure to amend as a matter of course within 21 days of her initial complaint and her not-specifically requesting permission to amend.[43] This framing is particularly interesting because Sixth Circuit precedent treats the futility of amended complaints as a separate analysis from a party’s failure to seek such remedies.[44]  Walker does not explain in his opinion why a plaintiff’s failure to specifically seek amendment relates to the “futility” of such amendment.

Writings

As a law professor, Walker has been fairly vocal on legal and policy issues.  This is clearly a well-ingrained characteristic, as Walker was an active writer even as a college student.

Kavanaugh Confirmation

During the campaign to confirm Brett Kavanaugh in 2018, Walker was one of his former boss’ most prominent surrogates on tv and in the media.  In some of his appearances, Walker argued that Kavanaugh would comply with judicial precedents such as Roe v. Wade.[45]  In others, Walker argued that Kavanaugh was a solid conservative whose vote on conservative issues was beyond question.[46]  Furthermore, after the allegations by Dr. Blasey Ford were released, Walker argued that the allegations would have been investigated in July had they been deemed credible.[47]

FBI Independence

In July 2018, Walker authored an article criticizing calls for an independent FBI, arguing that similar to the military, civilian control of the FBI was necessary to prevent civil liberties violations.[48]  In the article, Walker chronicles the history of civilian control of the military and abuses committed by the FBI, noting that the agency engaged in “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African Americans.”[49]  In conclusion Walker argues: “…the FBI Director should not think of himself as the Nation’s Protector; instead, he must think of himself as an agent of the President.”[50] 

Political Reporting

Notably, as a college student, Walker spent two months crossing the country trailing Democratic presidential candidates during the 2004 election and writing missives from his experiences.[51]  In his posts, Walker discusses the state of the race, the relative merits of the candidates he covers, and his views on their ultimate match-up against President Bush.  For example, in one post, Walker describes an incident in which Rep. Dennis Kucinich visited a homeless man sleeping in a garage.[52]  In another, he suggests that Howard Dean “sabotaged his own campaign with a loose temper and a glib mouth.”[53] 

Interestingly, some of his posts display a broader critique of the Democratic Party rather than an “objective” look at the race.  For example, in one post describing the liberal town of Yellow Springs, Ohio, Walker calls it “a haven for hippies who never grew up,” sounding significantly older than his own 21 year old self.[54]  He notes that “every person is unusual” in the town.[55]  At the same time, Walker criticizes the town, stating that the town “lacks what liberals celebrate: tolerance, diversity, and change.”[56]

Similarly, in a 2002 article provocatively titled “Worthless Democrats”, Walker excoriates the party for not taking a position on the upcoming Iraq War, stating:

“[Democrats] are weak leaders who speak softly and carry a rubber stamp.  They neither agree with the president, nor oppose him.”[57]

Overall Assessment

When Walker was nominated to the District Court last year, we praised his “obvious intellect.” while noting his youth and lack of experience.  While his swift elevation over conservatives with exponentially more experience and expertise speaks to the power of his connections, it nonetheless raises an expected confirmation fight.

Specifically, Walker’s brief tenure as a district court judge can be mined by opponents to raise questions about his judicial temperament.  Walker’s writing is entertaining, but can come across as intemperate, particularly when considering the positions of litigants that Walker disagrees with.  More concerningly, Walker’s writing frequently glosses over key facts and precedent, and, as noted above, sometimes fails to engage with such precedent altogether.  For example, a casual reading of Walker’s opinion in On Fire may lead one to conclude that the judge cannot tell the difference between civil and criminal sanctions.  None of this is to suggest that the ultimate conclusions in Walker’s opinions are necessarily wrong or that they violate precedent.  Rather, the cursoriness of much of Walker’s legal analysis makes it difficult to evaluate the conclusions without conducting the analysis independently.

None of this is to say that Walker cannot grow into his position on the bench or be a great judge on the D.C. Circuit.  But, when Walker was first nominated, many suggested that he was being prematurely elevated while lacking the legal skills and experience to be a federal judge.  Walker’s tenure so far will not put those criticisms to rest.


[1] See Mark Joseph Stern, Trump Elevates Unqualified Judge As a Reward For Defending Kavanaugh, Slate, Apr. 3, 2020, https://slate.com/news-and-politics/2020/04/justin-walker-mcconnell-trump-dc-circuit.html.  

[2] Sen. Comm. on the Judiciary, 116th Cong., Justin Walker: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id.

[5] Id. at 49-50.

[6] See Alison Durkee, Mitch McConnell Pressures Judges to Retire So Trump Can Appoint Replacements, Vanity Fair, Mar. 17, 2020, https://www.vanityfair.com/news/2020/03/mitch-mcconnell-pressures-judges-to-retire-trump.  

[7] See Letter from Katie O’Connor to Chief Judge Sri Srinivasan, Mar. 19, 2020 (available at https://h29zmgjkh3vbtzvz6gfub6meu.actbot.co/wp-content/uploads/2020/03/letter-to-DC-Circuit-re_-Thomas-Griffith-retirement.pdf?link_id=4&).

[8] See United States v. Philip Morris USA Inc., 561 U.S. 1025 (2010).

[9] See Walker, supra n. 1 at 32-33.

[10] Id. See also United States v. Todd, 3:17-cr-77 (W.D. Ky.).

[11] Matthew Glowicki, Judge Allows Drive-In Service at Louisville Church, Says Fischer ‘Criminalized’ Easter, Louisville Courier Journal, Apr. 11, 2020, https://www.courier-journal.com/story/news/2020/04/11/covid-19-kentucky-judge-grants-churchs-request-hold-services/2976560001/.  

[12] See On Fire Christian Cntr., Inc. v. Greg Fischer, et al., Civil Action No. 3:20-CV-264-JRW (W.D. Ky. Apr. 11, 2020) (available at https://www.courtlistener.com/recap/gov.uscourts.kywd.116558/gov.uscourts.kywd.116558.6.0.pdf).  

[13] See Josh Blackman, Courts Should Not Decide Issues That Are Not There, Volokh Conspiracy, Apr. 12, 2020, https://reason.com/2020/04/12/courts-should-not-decide-issues-that-are-not-there//.  

[14] See id. at 3.

[15] See id. at 7-8.

[16] See id. at 8.

[17] See Blackman, supra n. 13.

[18] See On Fire, supra n. 12 at 17.

[19] See id. at 6.

[20] Id.

[21] See id. at 2.

[22] See Blackman, supra n. 13.

[23] See id. at 10 n. 51, 17 n. 81.

[24] 805 F.3d 228 (6th Cir. 2015) (en banc) (holding that preventing plaintiffs from proselytizing violates their rights under the Free Exercise clause).

[25] 289 F.3d 417 (6th Cir. 2002) (holding that City development decisions that had disparate impact on church did not violate church’s Free Exercise rights).

[26] See United States v. Anderson, CRIMINAL ACTION NO. 3:19-CR-117-JRW-1, 2020 U.S. Dist. LEXIS 8048 (W.D. Ky. Jan. 15, 2020).

[27] See id. at *2 (citing United States v. Brown, 828 F.3d 375, 384 (6th Cir. 2016).

[28] See id.

[29] Id.

[30] 828 F.3d 375 (6th Cir. 2016).

[31] Id. at 383.

[32] Notably, on this point, Walker cites Shakespeare’s King John rather than a precedent from the Sixth Circuit.

[33] United States v. Perkins, CRIMINAL ACTION NO. 3:19-CR-149-JRW, 2020 U.S. Dist. LEXIS 53762 (W.D. Ky. Mar. 27, 2020).

[34] Id. at *3.

[35] Id.

[36] See id.

[37] Id. at *4 n. 10.

[38] See Martin & Bayley v. O’Bryan Brown & Toner PLLC, 2020 U.S. Dist. LEXIS 19902 (W.D. Ky. Jan. 31, 2020).

[39] Milburn v. Watts, 2020 U.S. Dist. LEXIS 47737 (W.D. Ky. Mar. 17, 2020); Taj Graphics Enters. V. Sills, 2020 U.S. Dist. LEXIS 52662 (W.D. Ky. Mar. 26, 2020)

[40] See Wirthwein v. Portfolio Recovery Assocs., CIVIL ACTION NO. 3:19-CV-335-JRW-CRL, 2020 U.S. Dist. LEXIS 59128 (W.D. Ky. Apr. 3, 2020).

[41] Coffey v. Equian, CIVIL ACTION NO. 3:19-CV-43-JRW, 2020 U.S. Dist. LEXIS 56368 (W.D. Ky. Mar. 31, 2020).

[42] See id. at *4.

[43] Id.

[44] See, e.g., Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041-42 (6th Cir. 1991) (citations omitted) (noting multiple grounds on which district court can deny leave to amend including “if the complaint as amended could not withstand a Fed. R. Civ. P. 12(b)(6) motion” and, separately, “where such leave is not sought.”).

[45] See, e.g., Fox News @ Night, July 17, 2018, Fox News Network.

[46] See Ryan Lovelace, Ex-Clerk to Kavanaugh: Potential Pick “Would Not Go Wobbly” on Conservatives, Nat’l Law Journal, June 29, 2018, https://www.law.com/nationallawjournal/2018/06/29/ex-clerk-to-kavanaugh-potential-pick-would-not-go-wobbly-on-conservatives/.  

[47] Evening Edit, Sept. 28, 2018.

[48] See Justin Walker, FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military, 86 Geo. Wash. L. Rev. 1012 (July 2018).

[49] See id. at 1041.

[50] Id. at 1070.

[52] Justin Walker, Compassion for a Homeless Man, Justin Walker’s Campaign Diary, Jan. 10, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_compassion.html.  

[53] Justin Walker, Who Sabotaged Howard Dean’s Campaign, Feb. 4, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_deancamp.html.  

[54] Justin Walker, Closed-Minded Liberals, Feb. 18, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_yellowsprings.html.  

[55] Id.

[56] Id.

[57] Justin Walker, Worthless Democrats, The Duke Chronicle, Sept. 26, 2002, https://issuu.com/dukechronicleprintarchives/docs/the_chronicle_2002-09-26_sm.  

Judge Cory Wilson – Nominee to the U.S. District Court for the Southern District of Mississippi

Judge Cory Wilson, who currently serves on the Mississippi Court of Appeals has a relatively short jurisprudential record.  However, as a former state representative, Wilson has a larger record of political activity and statements that may be mined during the confirmation process.

Background

Cory Todd Wilson was born on August 8, 1970, in Pascagoula, Mississippi.  After getting a B.A. summa cum laude from the University of Mississippi, Wilson received his J.D. from Yale Law School.[1]  Wilson then clerked for Judge Emmett Ripley Cox on the U.S. Court of Appeals for the Eleventh Circuit and then joined the Jackson office of Watkins Ludlam Winter & Stennis P.A.

In 2001, Wilson joined Bradley Arant Rose & White LLP as an associate.  He stayed until 2008, except for a year as a White House Fellow.[2]  In 2008, he joined the Mississippi Secretary of State’s Office as Chief of Staff/Deputy Secretary of State.  Wilson also served as Counsel for State Treasurer Lynn Fitch.  

In 2011, Wilson joined Heidelberg Steinberger Colmer & Burrow, P.A., where he stayed until his election to the Mississippi House of Representatives as a Republican in 2016.  Wilson served in the House until 2019, when he was appointed to the Mississippi Court of Appeals.

History of the Seat

Wilson has been nominated for a vacancy on the U.S. District Court for the Southern District of Mississippi.  This seat opened on March 23, 2018, when Judge Louis Guirola took senior status.  While Wilson broached his interest in the judgeship in mid-2018, his nomination was not sent to the White House until May 2019, after he had been appointed to a seat on the Mississippi Court of Appeals.[3]  Wilson was ultimately nominated in November 2019.

Legal Experience

Before he joined the legislature, Wilson generally practiced civil litigation, albeit with some work with both the Secretary of State and the Treasurer of Mississippi.  Over the course of his career, Wilson has tried three cases to verdict.[4]  Notably, Wilson represented one of the defendants sued for allegedly engaging in a conspiracy to photograph Sen. Thad Cochran’s wife in order to damage his re-election campaign.[5]  Wilson was able to get the case against his client dismissed for failure to state a claim.[6]

Jurisprudence

Wilson has served on the Mississippi Court of Appeals since his appointment in February 2019.  In his time on the bench, Wilson has authored approximately twenty opinions, mostly on matters of criminal law.  For example, Wilson wrote for the Court in finding that the trial judge did not err in trying and convicting a defendant while he was not present, finding that the defendant was trying to willfully avoid trial.[7]  In contrast, in another case, Wilson reversed a conviction for possession of a controlled substance, finding that the indictment was defective.[8]

Political Activity

As noted earlier, Wilson was elected as a Republican to the Mississippi House of Representatives in 2015 and served until his appointment to the Court of Appeals in 2019.  Wilson also previously ran for the state legislature in 2007, albeit unsuccessfully.  During his campaign, Wilson identified himself as a “conservative consensus builder.”[9]  He also attacked his opponent for opposing the record of Gov. Haley Barbour,[10] crime policy,[11] and cuts in dyslexia funding.[12]

In addition to his campaigns, Wilson has extensive involvement with the Mississippi Republican Party, including serving as a volunteer during many Republican campaigns and serving on Republican organizations.[13] 

Speeches and Writings

As both a state representative and as a private citizen, Wilson wrote frequently on the law and policy, generally representing a conservative perspective on both.  Additionally, Wilson also maintains an active Twitter account.[14]  His tweets and his writings have already drawn sharp criticism from liberal groups.[15]  Specifically, Wilson has been criticized for calling for the reversal of the Supreme Court’s decision in Roe v. Wade,[16] and for referring to same-sex marriage as “a pander to liberal interest groups.”[17]

On his Twitter account, Wilson’s tweets are generally innocuous, describing the weather or celebrating major American holidays.  However, some of the tweets touch on more controversial topics.  For example, in a tweet on October 5, 2018, Wilson praises Sen. Susan Collins for supporting the nomination of Justice Brett Kavanaugh, praising her for rejecting “ugly tactics employed by the Left.”[18]  Similarly, the day before the 2018 election, Wilson wrote that the election was a choice between “#RepublicanResults, or unhinged Dem #Resistance.”[19]

Overall Assessment

Given Wilson’s public statements attacking his perceived political opponents, it is unsurprising that he has drawn controversy since his nomination and that his name has proceeded relatively slowly through the confirmation process.  That being said, given the Republican majority, Wilson is favored for confirmation.  Nonetheless, Democrats may raise questions as to Wilson’s willingness to consider with an open mind the legal arguments of parties he disagrees with.  If Wilson is able to rebut such concerns, he will likely get a bipartisan confirmation.


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

[2] Id. at 2.

[3] See id. at 87.

[4] Id. at 72.

[5] See Mayfield v. Butler Snow LLP, 341 F. Supp. 3d 664 (S.D. Miss. 2018).

[6] Id.

[7] Morales v. State, 2019 WL 3562031 (Miss. Ct. App. Aug. 6, 2019).

[8] Payne v. State, 2019 WL 2511477 (Miss. Ct. App. June 18, 2019).

[9] See A Time For Choosing, YouTube, https://www.youtube.com/watch?v=AVYGAn5Ddkw.

[10] See id.

[11] Cory Wilson on Crime, YouTube, https://www.youtube.com/watch?v=7MvqKGgcVVQ.

[12] Cory Wilson (Unaired), YouTube, https://www.youtube.com/watch?v=iDp-wvvs9_A.

[13] See Wilson, supra n. 1 at 68-69.

[14] See Cory Wilson (@CoryWilsonMS), https://twitter.com/CoryWilsonMS.

[15] See, e.g., Alliance for Justice, Report on Cory Wilson (available at https://afj.org/wp-content/uploads/2019/11/Cory-Wilson-Report-Final-1.3.20.pdf).

[16] See Mississippi Right to Life Candidate Questionnaire, available at https://afj.org/wp-content/uploads/2019/11/Wilson-Attachments-p489-493.pdf.

[17] Cory T. Wilson, When Tolerance Is Really ‘Zero Tolerance’, Press-Register, June 1, 2012, available at https://afj.org/wp-content/uploads/2019/11/Wilson-Attachments-p200-201.pdf.