James Sweeney – Nominee for the U.S. District Court for the Southern District of Indiana

A white collar criminal defense attorney and commercial civil litigator from Indianapolis, James Sweeney has been tapped for the federal bench in Indiana’s Southern District, one of Trump’s first district court nominees in a state with a Democratic senator.

Background

A native Hoosier, James Russell Sweeney III was born in Indianapolis in 1961.  In 1979, Sweeney joined the U.S. Naval Academy, graduating with a B.S. in 1983.  He then joined the U.S. Marine Corps as an Officer of Marines, as well as earning certificates of completion from East China Normal University, The Basic School, Naval Flight Officer School, U.S. Air Force Electronic Warfare School, U.S. Navy/Marine Corps EA-6B Fleet Replacement Squadron Training, U.S. Air Force Squadron Officer School, U.S. Marine Corps Amphibious Warfare School, Weapons and Tactics Instructor Course, and the NATO Joint Service Advance Electronic Warfare Staff Officer Course.[1]

In 1993, Sweeney matriculated at Notre Dame Law School, graduating in 1996 magna cum laude.  After graduation, Sweeney clerked for Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana,[2] and then for Judge James Ryan on the U.S. Court of Appeals for the Sixth Circuit.  After his clerkships, Sweeney joined Barnes & Thornburg LLP’s Indianapolis office as an Associate.  In 2005, he was named a Partner and continues to serve in that capacity today.

History of the Seat

Sweeney has been nominated to the U.S. District Court for the Southern District of Indiana, to a seat vacated by Judge Sarah Evans Barker on June 30, 2014.  On January 12, 2016, President Obama nominated Winfield Ong, the Criminal Division Chief in the Office of the U.S. Attorney for the Southern District of Indiana, to fill the vacancy.[3]  Ong, who had the support of Democratic Senator Joe Donnelly and Republican Senator Dan Coats,[4] received a hearing before the Senate Judiciary Committee on May 18 and was approved by the Committee unanimously on June 16.[5]  Unfortunately, Ong’s nomination was blocked from a floor vote by Senate Majority Leader Mitch McConnell, and the vacancy was left unfilled at the end of the Obama Presidency.

In March 2017, Sweeney submitted an application for the vacancy to Sen. Todd Young (R-IN), who replaced Coats.[6]  After interviewing with Young’s staff and with Young, Sweeney was recommended to the White House in late April.[7]  Sweeney interviewed with the White House and the Department of Justice in early May and then with Donnelly’s staff in late June.[8]  Trump formally nominated Sweney on Nov. 1, 2017.

Legal Experience

Sweeney has spent his entire post-clerkship legal career at the firm of Barnes & Thornburg, LLP, handling a mix of commercial litigation, criminal defense, and intellectual property cases.   Sweeney’s time was split approximately evenly between federal court proceedings and administrative actions, as well as between civil and criminal cases.[9]

Among the most notable civil case he handled, Sweeney represented the surviving members and families of the crew of the USS Pueblo, the research ship attacked by North Korean forces in 1968.[10]  Sweeney served as lead plaintiff’s counsel in the case, which ultimately led to a $65 million judgment against the Government of North Korea.[11]  In another case, Sweeney represented Burlington Coat Factory in defending against an infringement action based on a patent on a child’s safety seat buckle.[12]

On the criminal side, Sweeney primarily worked on white collar defense.[13]  Notably, Sweeney represented William Matthews, a former Executive Vice President at Blackwater Worldwide (now Academi), a defense contractring company.[14]  Matthews, along with four other officials, was charged in 2010 after federal officers discovered 22 weapons that had been purchased in violation of federal firearm laws.[15]  However, Sweeney and other defense counsel argued that the purchases had been made at the direction of the Central Intelligence Agency (CIA).[16]  Ultimately, Matthews ended up pleading to a misdemeanor charge with time served, avoiding the felony violations he had initially been charged with.[17]  The sentence drew criticism from investigative journalist Marcy Wheeler, who described the deal as “an undeserved and inexplicable sweetheart misdemeanor plea.” and suggested that the deal had been a product of “graymail.”[18]

Political Activity

Sweeney, a Republican, has served as a delegate to the Indiana State Republican Convention and as a Marion County Precinct Judge.[19]  The vast majority of Sweeney’s contributions are directed to fellow Republicans.[20]  For example, Sweeney has given to many Indiana Republicans including Coats, Young, former senator Richard Lugar, Gov. Eric Holcomb and Representatives Luke Messer, Todd Rokita, Larry Buschon, and Susan Brooks.[21]  All in all, since 2003, Sweeney has given more than $87000 to Republican candidates, organizations, and PACs, including almost $20000 to Young.[22]

Sweeney has also made a few contributions to Indiana Democrats, including a $1000 contribution to Donnelly, $250 to former senator Evan Bayh, and $250 to House candidate Scott Reske.[23]  Interestingly, in each of the above examples, Sweeney also donated to the Democrat’s Republican opponent.

Overall Assessment

As a well-credential federal litigator, Sweeney has a fairly typical background for a judicial nominee.  Furthermore, he does not have a record of controversial statements or blog posts similar to those that have brought down other nominees.

Senators who ultimately vote against Sweeney will likely do so for one of two reasons.  First, they may cite the criticisms made by Wheeler regarding his representation of Matthews.  Second, they may balk at his extensive political contributions, making criticisms similar to those made against Obama appointee John McConnell in 2010.[24]  Ultimately, both arguments have easy counters.  First, supporters can argue that, as a criminal defense attorney, Sweeney has the ethical responsibility to engage in zealous representation.  As such, barring any unethical conduct on his part, it would be unfair to hold his representation of an unpopular client against him.  Second, supporters can note that engaging in political contributions is a form of First Amendment activity.  Barring a quid pro quo, punishing a nominee for making too many contributions would be akin to punishing a nominee for writing too many editorials or engaging in too many protests.

Overall, it is likely that Sweeney will see a smooth confirmation.  After all, if Sweeney comes before the Senate Judiciary Committee, it’ll be because Donnelly has returned a blue slip on his behalf.  In such a case, Sweeney will have at least one Democrat in his corner.


[1] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 1-2.

[2] Tinder was later elevated to the U.S. Court of Appeals for the Seventh Circuit.

[3] Press Release, White House, President Obama Nominates Winfield D. Ong to Serve on the United States District Court for the Southern District of Indiana (Jan. 12, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] Press Release, Office of Sen. Joe Donnelly, Donnelly and Coats Pleased Senate Judiciary Committee Will Hold Hearing on U.S. District Court Nominee Winfield Ong (May 16, 2016) (on file at https://www.donnelly.senate.gov/newsroom/press/).

[5] Michael Macagnone, Senate Panel Advances 4 Federal Judges, Hints at Floor Votes, Law 360, June 16, 2016, https://www.law360.com/articles/807489/senate-panel-advances-4-federal-judges-hints-at-floor-votes.

[6] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 37.

[7] Id.

[8] Id.

[9] See id. at 19-20.

[10] Massie v. Gov’t of Democratic People’s Republic of Korea, 592 F. Supp. 2d 57 (D.D.C. 2008).

[11] Rebecca Berfanger, Justice a Long Time Coming; Lawyers Win $65 Million for Tortured Crew, The Indiana Lawyer, Jan. 21, 2009.

[12] Galbreath v. Burlington Coat Factory Warehouse of Arundel, Inc., No. 1:03-cv-0555 (D. Md. Dec. 22, 2003).

[13] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 20.

[14] United States v. Jackson, Case No. 2:10-cr-00008-FL (E.D.N.C. Feb. 21, 2013) (case dismissed pursuant to plea agreement).

[15] James Risen and Mark Mazzetti, Case Ends Against Ex-Blackwater Officials, N.Y. Times, Feb. 21, 2013, http://www.nytimes.com/2013/02/22/us/case-ends-against-five-ex-blackwater-officials.html.  

[16] See id.

[17] Id.

[18] Marcy Wheeler, DOJ Gives Blackwater a Whitewash on Felony Charges, Emptywheel, Feb. 21, 2013, https://www.emptywheel.net/2013/02/21/doj-gives-blackwater-a-whitewash-on-felony-charges/.

[19] Sen. Comm. on the Judiciary, 115th Cong., James R. Sweeney II: Questionnaire for Judicial Nominees 17.

[21] See id.

[22] Id.

[23] Id.

[24] John O’Brien, Obama’s Judicial Picks Sent Back to Senate, Legal News Line, Sept. 15, 2010, https://legalnewsline.com/stories/510523503-obama-s-judicial-picks-sent-back-to-senate.  

JP Hanlon – Nominee for the U.S. District Court for the Southern District of Indiana

James Patrick (“J.P.”) Hanlon is President Trump’s nominee for a seat in the United States District Court for the Southern District of Indiana.[1]  Based on of Indianapolis, Indiana, Hanlon has worked both as a prosecutor and a criminal defense lawyer.  He is currently a partner at a prominent Indianapolis firm, where his work centers on white collar criminal defense.[2]  As of the publishing of this article, he had not yet been rated by the ABA.[3]

Background

Born in 1970, Hanlon earned his B.A. in history from DePauw University (1992) and his J.D., magna cum laude, from the Valparaiso University School of Law (1996), where he served as an articles editor of the Valparaiso University Law Review.[4]  Shortly thereafter, he clerked for Judge Robert L. Miller, Jr., of the U.S. District Court for the Northern District of Indiana.[5]  He worked as an associate in the defense-side labor and employment practice group at Seyfarth Shaw LLP for three years, after which he began a five-year stint as an Assistant United States Attorney for the Southern District of Indiana.[6]

In 2006, Hanlon moved to Baker & Daniels LLP, which in 2012 merged with Faegre & Benson LLP to become Faegre Baker Daniels, where Hanlon is currently a partner and co-chair of the firm’s white collar defense and investigations practice.[7]  His work at Faegre Baker Daniels includes representing clients in government investigations, enforcement proceedings, and related civil litigation; leading corporate internal investigations; and helping clients resolve complex compliance issues.[8]  From 2010-11, Hanlon taught courses on white collar crime as an adjunct professor at the Indiana University Robert H. McKinney School of Law.[9]

Hanlon has received extensive professional honors and recognition, including The Best Lawyers in America — White Collar Criminal Defense (2013-18), Indianapolis White Collar Criminal Defense Lawyer of the Year (2015-16), Indianapolis Business Journal Forty Under 40 Award (2010), Indiana Super Lawyers — Rising Star, Criminal Defense: White Collar (2009-10), and Indy’s Best and Brightest — Recipient, Law Category (2008).[10]

Indiana’s senators have publicly supported Hanlon alongside Holly Brady, President Trump’s nominee for the Northern District of Indiana.  Sen. Todd Young (R-Ind) said they have “earned excellent reputations in the legal community as experienced litigators in the types of cases that come before federal trial courts.” He described them as “fair, impartial and highly regarded attorneys with the right temperament to serve on Indiana’s district courts.”  Joe Donnelly (D-Ind.) echoed these sentiments, stating that “Both nominees have strong legal backgrounds and a range of experiences that have prepared them for the federal bench.”[11]

History of the Seat 

Hanlon has been nominated for a vacancy that will open on July 1, 2018, when Judge William Lawrence moves to senior status.  He was already under consideration, however, for the seat vacated by Judge Sarah Evans Barker (the White House nominated Indianapolis attorney James Sweeney to fill that seat), for which he applied to Sen. Todd Young (R-Ind.).  While he interviewed with Young in April 2017, Hanlon was not contacted by the White House until December.  Hanlon also began contact with the office of Sen. Joe Donnelly (D-Ind.) shortly therafter.  He was nominated on April 12, 2018.

Legal Career

In a Westlaw search, Hanlon appears on behalf of the government and criminal defendants in a handful of unpublished cases involving supervised release disputes and evidence suppression hearings.

The only published cases Hanlon appears in on Westlaw are from his labor and employment defense days. In Moriarty v. Svec, 55 F.Supp.2d 876 (N.D. Ill. 1999), a union trustee sued the owner of funeral home and livery business under the Employee Retirement Income Security Act (ERISA), seeking payment of delinquent contributions action to recover unpaid pension fund contributions on behalf of some of the owner’s employees.  The defendant funeral home owner, represented by Hanlon, was part of the Funeral Directors Services Association (“FDSA”), a multi-employer bargaining association representing approximately 250 businesses, until he withdrew from the FDSA in 1995.  Id. at 877-78.  Accepting Hanlon’s argument that recovery of three instances of allegedly unpaid pension contributions could have been litigated in prior related litigation, the court granted summary judgment to defendants on res judicata grounds as to those three instances.  The court held, however, that a material issue of fact existed for a separate count for recovery of pension funds occurring after defendant announced its withdrawal from the FDSA.  Whether defendant properly withdrew from the FDSA and was capable of paying those funds after his withdrawal required a trial.

In Alverio v. Sam’s Warehouse Club, 9 F. Supp. 2d 955 (N.D. Ill. 1998), a retaliation claim under Title VII, the district court granted summary judgment to the defendant employer, represented by Hanlon.  The court found that the plaintiff, a former employee, had failed to show a causal connection between her filing the discrimination charge and her dismissal over one year later, noting that the employer’s reason for discharge (the plaintiff’s alleged involvement in altercation with a coemployee) was not “patently inconsistent with the evidence.”  Id. at 963.  The court denied summary judgment on the employee’s hostile environment claim, holding that the defendant employer was vicariously liable for the bad actor’s conduct.

Hanlon has also engaged in pro bono work, including serving on Indiana University School of Law’s wrongful conviction clinic, representing asylum applicants in removal proceedings, and representing victims of domestic violence in obtaining orders of protection.[12]

Speeches/ Writings

Hanlon has published extensively over the past decade on practical guidance in white collar criminal defense.  In 2008, he co-authored the article, Rethinking How to Respond to Government Investigations, which responded to growing concern among corporations and white-collar defense lawyers in the wake of the 2006 Enron criminal prosecutions, at which point many practitioners contended that federal prosecutors routinely required companies to waive the attorney-client and work-product privileges as a prerequisite to getting credit for cooperation.[13]  Then-Deputy Attorney General Mark Filip (himself a former federal judge) released a 2008 memo announcing substantial changes to the DOJ’s policies then in effect, explicitly prohibiting seeking waiver of the privilege (although a corporation could still choose to waive).  Despite these changes, “the fundamental questions the government will ask in judging the corporation’s culpability remain essentially the same: 1) what steps did the corporation take to prevent the misconduct; and 2) what steps did the corporation take after learning of the misconduct to prevent it from happening again.”  Hanlon’s article provides practical guidance to the corporate criminal defense lawyer: beef up, proactively review, and fine-tune corporate compliance programs before any criminal investigation commences. Id. at 35.  “By proactively rethinking how to respond to a government investigation, a corporation can take action today that will help it when the government comes knocking.”  Id. at 36.

In his 2009 book, Punishing Corporate Crime: Legal Penalties for Criminal and Regulatory Violations, Hanlon discusses criminal punishment trends directed at corporations, analyzing the historical and statutory bases of corporate punishment and reviewing the remedies now employed by the government.  The book also offers advice in addressing the new and evolving punishments that face corporations and discusses preventative programs.[14]

Hanlon co-authored the 2013 article Keeping a Watchful Eye: The FBI’s Crackdown on Insider Trading, explaining the government’s crackdown on insider trading, admonishing “ organisations and compliance professionals [to] take steps to ensure that compliance processes are in place to prevent and detect insider trading activity before the government does.”[15]  Among the processes Hanlon  recommends are “creat[ing] an environment in which prompt reporting is culturally and professionally encouraged, thereby avoiding Dodd-Frank prohibitions against retaliation against whistleblowers,” and monitoring and establishing policies regarding employees’ use of social media for social vs. business purposes, consistent with the employees’ privacy interests.  Id. at 14-15.

Hanlon has also spoken on a wide range of corporate and white collar criminal defense topics as a panelist or presenter.  At the Seventh Circuit Bar Association’s Annual Meeting in 2017, he discussed the DOJ’s new enforcement priorities under the Trump administration and how those changes could impact the defense bar and U.S. Attorney’s Offices.[16]  He also presented at a 2016 CLE entitled “Crisis Management and the Legal Responses to a Government Investigation,” and a 2015 ABA roundtable, “How the DOJ’s Yates Memo Impacts Corporate Liability and Internal Investigations.”[17]

Overall Assessment

Hanlon’s experience in criminal law, both as a prosecutor and criminal defense attorney, labor and employment experience, and demonstrated expertise in corporate law issues make him an experienced and relatively noncontroversial candidate for the federal bench.  Research has not revealed any public political affiliations, consistent with Sen. Young’s (R-Ind.) effusive review of Hanlon as “fair, impartial and highly regarded … with the right temperament to serve on Indiana’s district courts.”  As such, Hanlon will likely be confirmed.


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

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. We finish with the states of the West.

Ninth Circuit

Court of Appeals

In terms of the number of judges on the court, the geographic area covered, and the population served, the Ninth Circuit Court of Appeals is the largest in the country. The whopping twenty-nine judgeship court has been the target of many attempts to break it up, ostensibly due to its liberal leanings. Whatever its previous leanings (the Ninth was never as liberal as critics alleged), the current court is fairly evenly divided between liberals and conservatives. The court currently has ten judges appointed by President Trump, nine Clinton appointees, seven Obama appointees, and three Bush appointees. While the court is currently full, four Clinton appointees, Susan Graber, Marsha Berzon, Richard Paez, and William Fletcher, have announced their intention to move to senior status upon confirmation of successors. Only Graber’s seat has a nominee, labor lawyer Jennifer Sung.

Additional vacancies are likely as eight other judges on the court are eligible for senior status: Clinton appointees Sidney Runyan Thomas, Margaret McKeown, Kim McLane Wardlaw, Ronald Gould, and Johnnie Rawlinson; and Bush appointees Consuelo Callahan, Milan Dale Smith, and Sandra Segal Ikuta. Additionally, Obama appointee Andrew Hurwitz will also become eligible for senior status next July. The most likely of these judges to take senior status is Chief Judge Thomas, who may make the move once he concludes his term as Chief on December 1. Of the Bush appointees, the moderate Smith, who will be eighty next year, is the most likely to take senior status.

Alaska

The District of Alaska has three active judgeships, currently filled by Chief Judge Timothy Burgess, a Bush appointee, Judge Sharon Gleason, an Obama appointee, and Judge Joshua Kindred, a Trump appointee. Of the three, only Burgess is eligible for senior status. He is, however, unlikely to move to senior status before his term as Chief ends in 2022.

Arizona

The District of Arizona is one of the most overworked courts in the country, with heavy caseloads. Luckily, after years of chronic vacancies, all judgeships on the court are currently full, with one Bush appointee, seven Obama appointees, and five Trump appointees serving. No vacancy is expected before 2024, when Chief Judge Murray Snow, and Judges Douglas Rayes and James Soto all become eligible for senior status. However, if Judge Andrew Hurwitz moves to senior status upon eligibility next year, Judge Rosemary Marquez may be selected to replace him, opening up a seat for Biden to fill.

California

The nation’s most populous state also has the most district court judgeships serving its population, sixty one, divided into four districts: the Central, Northern, Eastern, and Southern. Despite the high numbers, California’s district courts are, if anything, understaffed in proportion to their caseload. This is particularly true now, as the courts have a whopping 18 vacancies with an additional two set to open next year. California Senators Dianne Feinstein and Alex Padilla have each claimed to have sent recommendations to the White House, but it’s an open question when nominees will hit the senate.

The largest of the four districts is the Central, based in Los Angeles. Currently, the court is served by 22 active judges, eight appointed by Bush, seven by Obama, four by Trump, two by Clinton, and one by Reagan. There are also six vacancies, with the oldest going back to 2015. Additionally, a seventh vacancy will open in February 2022 when Judge Virginia Phillips moves to senior status. Of the remaining 21 judges, nine are eligible for senior status: Reagan appointee Stephen Wilson; Clinton appointee David Carter; Bush appointees Percy Anderson, John Walter, Gary Klausner, Dale Fischer, Otis Wright, and George Wu; and Obama appointee John Kronsdadt. This makes future vacancies on the court fairly likely.

While the Sacramento based Eastern District is, with six judgeships, the smallest in California, it is also severely overworked. This is particularly true as it is currently having only four active judges carry the burden as the remaining two seats are vacant. Unless judges are confirmed swiftly, the situation will get worse next year when Judge John Mendez takes senior status.

The Bay area based Northern District of California has eleven active judges serving, all appointees of President Obama. An additional three seats are vacant. While none of the active judges is eligible for senior status, two, Edward Davila and Edward Chen, will become eligible for senior status next year and may move then.

Finally, the San Diego based Southern District of California is the hardest hit of all the California courts when it comes to vacancies, as seven of the thirteen judgeships are vacant. Of the remaining six active judges, one, Judge Janis Sammartino, is eligible for senior status and could choose to make the move.

Hawaii

The four judgeship District of Hawaii does not currently have any vacancies and no new vacancies are expected, with the first judges to hit senior status eligibility doing so in 2024.

Idaho

One of only two states to be served by just two active judgeships, Idaho is currently at half-capacity with Judge B. Lynn Winmill’s move to senior status in August. Winmill gave plenty of notice of his intention to take senior status, and the Idaho Democratic Party recommended four candidates to replace Winmill in March: Idaho Falls attorney DeAnne Casperson; former U.S. Attorney Wendy Olson; and Boise attorneys Keely Duke and Deborah Ferguson. Idaho Senator Mike Crapo indicated that his office has had many “preliminary” conversations regarding the judgeship with the White House and that they are working to find a mutually agreeable nominee.

Montana

While none of the three active judges in the District of Montana, all Obama appointees, are eligible for senior status, Judge Dana Christensen becomes eligible for senior status in December and may choose to make the move at that time.

Nevada

The U.S. District Court for the District of Nevada has two vacancies among its seven judgeships, with the remaining five judges all appointed by President Obama and years from taking senior status. The two pending vacancies on the District Court, one in Reno and one in Las Vegas, are both over three years old. Nevada Senators set up judicial nomination commissions to fill the vacancies with application deadlines of February 28, 2021. Since then, there has been no public recommendations made and the White House has not yet sent any nominations to the Senate.

Oregon

The U.S. District Court for the District of Oregon has six active judgeships: three Obama appointees, and one appointee each from Clinton, Bush, and Trump. The Court will have a vacancy open on December 27 of this year when Bush appointed Judge Michael Mosman takes senior status. Clinton appointee Ann Aiken is also eligible for senior status but has made no indication that she intends to take it. So far, there has not been any word on recommendations by Oregon Senators to replace Mosman.

Washington

After an agreement over judicial nominations fell apart during the Trump Administration, Washington’s district courts saw no confirmation over the last four years. As a result, the Western District of Washington now has five vacancies out of seven active judgeships, with one future vacancy set to open on the Eastern District. So far, nominees have been submitted to the Senate for three vacancies on the Western District, and for the lone Eastern District vacancy. All three Western District nominees are awaiting final Senate votes, with Judge David Estudillo being teed up for confirmation in September. So far, there is no timeline on nominees for the remaining two vacancies.

Additionally, the two active judges remaining on the Western District: Judges Richard Jones and Ricardo Martinez, are also eligible for senior status, so additional vacancies may open as the current ones are filled.

Tenth Circuit

Court of Appeals

The Tenth Circuit, based in Denver, is considered a moderate court, evenly divided between five Republican and five Democrat appointed judges, with two vacancies. The Senate is poised to confirm public defender Veronica Rossman to fill a Colorado vacancy on the court in September. The other vacancy, based in Kansas, is still without a nominee.

Of the remaining judges on the court, only Judge Harris Hartz, appointed by President George W. Bush, is eligible for senior status. While Chief Judge Timothy Tymkovich, another Bush appointee, will reach eligibility for senior status in November, he is unlikely to take senior status without serving out his term as Chief in 2022. Additionally, Judge Scott Matheson, an Obama appointee, becomes eligible for senior status at the end of 2022, and may also make the move.

Colorado

The seven judgeship District of Colorado is undergoing a significant transformation, with Biden already having appointed Judge Regina Rodriguez to the court, and having nominated Charlotte Sweeney for a second vacancy. A third vacancy is set to open in 2022 when Judge Christine Arguello moves to senior status. The only other vacancy that could open this Congress could occur when Judge William Martinez reaches eligibility for senior status at the end of 2022.

Kansas

The District of Kansas currently has all six judgeships filled, although Judge Julie Robinson, a George W. Bush appointee, is set to take senior status on January 14, 2022. So far, there has been no public application period or recommendation noted for Robinson’s seat. Judge Eric Melgren, another Bush appointee, also reaches eligibility in 2022 but has so far made no indications of taking senior status.

New Mexico

The seven-judgeship District of New Mexico is one of the busiest courts in the country. The Court currently has two vacancies, with a third set to open with Judge Martha Vazquez’s move to senior status next year. New Mexico Senators Martin Heinrich and Ben Ray Lujan submitted nominees to fill the two existing vacancies in January 2021, but so far the White House has only nominated one nominee: Margaret Strickland. Strickland is currently the longest pending judicial nominee waiting on the Senate floor, and, although Majority Leader Schumer filed cloture on three pending nominees before the August recess, he skipped over Strickland.

The situation could potentially become worse as Judge James Browning is also eligible for senior status, although he has not indicated that he will take it. If Browning and Vazquez vacate their seats, this could leave the District of New Mexico with less than half of its allotted judgeships full.

Oklahoma

The Oklahoma District Courts currently have one vacancy, from Judge John Dowdell’s early move to senior status earlier this year. So far, no public process has started to replace Dowdell.

Utah

The five judgeship District of Utah, composed of three Obama appointees and two Trump appointees, will see a vacancy open next year when Judge David Nuffer takes senior status. So far, there is no public replacement process for Judge Nuffer.

Wyoming

The three-judge District of Wyoming already has a vacancy pending, as Judge Nancy Freudenthal has announced her intention to take senior status on June 1, 2022. As Wyoming has no Democrats in the Congressional delegation, the White House will have to work with Republican Senators John Barrasso and Cynthia Lummis. During the Obama Administration, Barrasso endorsed and supported Fredeunthal and Chief Judge Scott Skavdahl, but it’s unclear if a similar accommodation would be reached today. Additionally, Judge Alan Johnson, who is 82, and is one of the few actively serving Reagan appointees, may also take senior status, opening up a second vacancy and potentially opening the door to a one-for-one deal.

Justice Patrick Wyrick – Nominee for the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Justice Patrick Wyrick of the Oklahoma Supreme Court has the distinction of being the youngest candidate on President Trump’s Supreme Court shortlist.  So far, President Trump has prodigiously nominated all the state judges on his shortlist to the federal appellate bench.  However, as there are no Oklahoma vacancies on the Tenth Circuit, Wyrick has been nominated to the trial court instead.

Background

Patrick Robert Wyrick was born in Denison, TX on March 11, 1981.  Wyrick attended the University of Oklahoma, where he played baseball as a student athlete.[1]  While at the University, he met his future-wife, fellow athlete Jamie Wyrick (nee Talbert).[2]  Wyrick received his B.A. in 2004 and then received a J.D. from the University of Oklahoma College of Law in 2007.[3]

After graduating, Wyrick served as a law clerk to Judge James Payne on the U.S. District Court for the Eastern, Northern, and Western Districts of Oklahoma.[4]  He then joined the Oklahoma City office of GableGotwals as an Associate.

Just three years later, Wyrick, not even thirty, was chosen by newly elected Oklahoma Attorney General Scott Pruitt (now the EPA Director) to serve as Oklahoma Solicitor General.[5]  As Solicitor General, Wyrick was the primary representative before the courts for the state of Oklahoma.

In 2016, Justice Steven Taylor of the Oklahoma Supreme Court announced his retirement, and Wyrick was one of four candidates who applied for the seat.[6]  On February 9, 2017, the 35-year-old Wyrick was appointed by Governor Mary Fallin to fill the vacancy.[7]  Wyrick’s appointment sparked an immediate lawsuit from the American Civil Liberties Union, who argued that Wyrick, who listed a residence in Atoka to qualify for the appointment to a seat based in District 2 of Oklahoma, actually resided in Moore and Oklahoma City, citing Wyrick’s home purchases, marriage license, as well as the fact that he was registered to vote in Central Oklahoma in 2016.[8]  The Oklahoma Supreme Court dismissed the lawsuit, finding that they were not the proper agency to determine the eligibility of a sitting justice.[9]

In November 2017, Trump added Wyrick to his list of potential nominees to the U.S. Supreme Court.[10]  Wyrick’s addition makes him the youngest potential nominee on the list.

History of the Seat

Wyrick has been nominated to fill the fifth-longest pending vacancy in the nation.  This seat on U.S. District Court the Western District of Oklahoma opened on July 7, 2013, with Judge David Russell’s move to senior status.  However, the Obama Administration did not put forward a nomination for the next two and a half years, as they negotiated with Oklahoma Republican senators James Inhofe and James Lankford.  Finally, on December 16, 2015, President Obama nominated Judge Suzanne Mitchell, a U.S. Magistrate Judge on the Western District, to fill the vacancy.[11]

Mitchell, a Democrat, was nominated as part of a package with Scott Palk, a Republican.  The two nominees received a hearing before the Senate Judiciary Committee on April 20, 2016, and were both reported to the floor unanimously on May 19, 2016.  However, on the floor, Mitchell and Palk languished due to a confirmation blockade imposed by Senate Majority Leader Mitch McConnell and were not confirmed.[12]  After the election of Donald Trump, he renominated Palk (who was confirmed in late 2017).  However, Mitchell was not renominated.

Wyrick has been in contact with the White House Counsel’s Office since early 2017 in discussions on an appointment to the Western District.[13]  While he interviewed with the White House in March 2017, there was no further action on his nomination until November when he interviewed with a selection committee established by Inhofe and Lankford.[14]  After Inhofe and Lankford agreed to “recommend” Wyrick to the White House, he was nominated on April 10, 2018.

Political Activity

Other than a short stint as a volunteer for Republican Sen. Tom Coburn in 2004, Wyrick has no history with partisan politics.

Legal Experience

Wyrick began his legal career as a law clerk for Judge James Payne.  After that, he joined GableGotwals working on civil and appellate litigation.  After just three years at the position, Wyrick became Oklahoma’s Solicitor General, the primary appellate attorney for the state.  As Solicitor General, Wyrick has handled many controversial matters on behalf of then-Attorney General Scott Pruitt.

Death Penalty

In 2015, Wyrick argued Glossip v. Gross, a challenge to the use of midazolam as a sedative in Oklahoma executions, before the U.S. Supreme Court.[15]  Petitioners argued that midazolam was ineffective in preventing pain during the procedure and, as a result, the executed could feel the pain of being “burned alive” from the inside.[16]  In his briefs, Wyrick defended the Oklahoma drug protocol, arguing that death penalty opponents had successfully pressured drug companies into cutting off supplies of more effective drugs.[17]  It was a thread conservatives picked up on at oral argument.[18]

However, Wyrick also drew criticism from justices for allegedly misrepresenting the scientific evidence cited in the state’s brief.  Justice Sotomayor called out Wyrick at oral argument, noting that his assertions were “directly contradicted by the literature cited in the state’s written arguments.”[19]  Wyrick later conceded error on a related point, acknowledging that his office had inadvertently misrepresented that a letter sent to the Texas Department of Corrections had actually been sent to the Oklahoma Department of Corrections.[20]

Ultimately, the Supreme Court backed Wyrick’s position in a 5-4 decision.[21]

Abortion Rights

As Solicitor General, Wyrick was charged with defending abortion restrictions passed by the Oklahoma legislature and challenged under the Fourteenth Amendment.[22]  Among the restrictions Wyrick defended were laws requiring women to undergo ultrasounds before undertaking an abortion and laws restricting the use of drugs commonly used for medication abortions.  Both restrictions were unanimously struck down by the Oklahoma Supreme Court, as unconstitutional under Supreme Court precedent.[23]  Wyrick also defended a prescription requirement for minors who wanted to purchase Plan B contraceptives,[24] a provision imposing liability on physicians who prescribe prescription drugs for abortions,[25] and a ban on off-label use of drugs for abortions.[26]  In successfully defending the latter, Wyrick noted his views on the “dangers” of off-label use, noting:

“We have people who walk in perfectly healthy and are dead three days later.”[27]

Affordable Care Act

As Solicitor General, Wyrick sued to challenge a number of regulations imposed under the Affordable Care Act, including the IRS “large employer mandate” which Wyrick argued violated the intent of Congress in the ACA.[28]  Wyrick also raised the initial challenge to the IRS Rule permitting ACA subsidies to be offered to individuals on the federal exchange (this challenge was later rejected by the U.S. Supreme Court in King v. Burwell).[29]

Sharia Law

As Solicitor General, Wyrick also led the defense of the “Save Our State” Constitutional Amendment, which prohibited Oklahoma courts from considering international law or sharia law (Islamic jurisprudence) in its proceedings.  The Amendment was challenged by Muneer Awad, the executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR), who alleged that it violated his rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.[30]

At oral argument, Wyrick denied that the authors of the Amendment sought to single out sharia law, instead arguing that the ban included all international law.[31]  Nevertheless, the Tenth Circuit upheld a preliminary injunction against the Amendment.[32]  In 2013, Judge Vicki Miles-LeGrange made the injunction permanent.[33]  (Disclosure: As a legal fellow at the American Civil Liberties Union, who represented the plaintiff, I assisted with legal research and writing in support of the plaintiff’s case on remand.)

Jurisprudence

Wyrick has served as a Justice on the Supreme Court of Oklahoma since 2017.  In his year and a half on the bench, Wyrick has heard approximately 100 cases, and has authored five majority opinions,[34] eight concurrences,[35] and six dissents.[36]  Despite his relatively new position on the court, Wyrick has not hesitated to stake out strong positions, concurring and dissenting frequently.

Taxes and Fees

In 2017, Wyrick wrote for the Oklahoma Supreme Court in two high-profile challenges to state taxes.  In one case, Wyrick struck down the newly passed tax on cigarettes, finding that the “tobacco cessation fee” was not passed in conjunction with the constitutionally mandated supermajority for revenue raising bills.[37]  In the other case, Wyrick upheld the elimination of the state’s sales tax exemption, writing for a 5-4 majority that bills removing exemptions from existing taxes do not count as “revenue” bills while bills imposing new taxes do.[38]  In dissent, Justice Doug Combs pointed to the legislative history and the purpose of the auto tax to show that it was intended to raise revenue.[39]

Dissents

In a variety of civil cases, Wyrick has authored dissents advocating denial of claims.  For example, in one case where the Oklahoma Supreme Court found that a worker had properly been adjudicated disabled and was entitled to benefits, Wyrick dissented with Justice James Winchester, calling the majority opinion a “legal fiction.”[40]  In another case, Wyrick authored a dissent (joined only by Justice Winchester) arguing that a sex offender should be permitted to deregister.[41]  In yet another case, the Oklahoma Supreme Court held that plaintiffs injured by a drunk driver could bring suit against a convenience store that negligently and recklessly sold alcohol to the visibly intoxicated driver.[42]  Wyrick dissented, arguing that the decision would lead to “arbitrary impositions of liability” and that it dismissed the proximate cause requirement of tort claims.[43]

Writings

In 2014, Wyrick authored a blog post at SCOTUSBlog arguing for the plaintiffs in King v. Burwell.[44]  In the post, Wyrick argues that the Supreme Court should strike down the IRS Rule permitting Obamacare subsidies to be granted to those who participated in state and federal exchanges.[45]  He calls the case “a straightforward question of statutory interpretation,” arguing that permitting the rule would “undermine Congress’ very specific intent.”[46]  The Supreme Court ultimately rejected the argument in the post, with Chief Justice Roberts upholded the IRS Rule in an opinion for six justices.[47]

Overall Assessment

Wyrick’s youth and his conservative background is likely to draw opposition during the confirmation process.  Overall, I expect four primary arguments to be raised against Wyrick.

First, opponents may argue that Wyrick, only thirty-seven years old, lacks the requisite level of experience to be a federal judge.  They may note that the American Bar Association (ABA) recommends a minimum of twelve years of practice for judicial nominees and that Wyrick has only practiced for nine years.  In response, Wyrick and his supporters will argue that Wyrick’s experience as Oklahoma Solicitor General is particularly high-level, and as such, Wyrick is well-qualified for the bench.  They will also note that Wyrick has argued (and won) before the highest courts on both the state and federal level.

Second, critics may point to Wyrick’s tenure as Solicitor General and criticize his defense of controversial laws, including abortion restrictions, the “Save our States” amendment, and the use of midazolam in imposing the death penalty.  They may also bring up Wyrick’s correction of the record in Glossip.  In response, Wyrick will argue that, as Solicitor General, it was his responsibility to defend Oklahoma laws, and that his defense does not indicate a policy agreement with the underlying laws.

Third, senators may look to Wyrick’s jurisprudence on the Oklahoma Supreme Court.  They may argue that his dissents in Garrett, Boyle, and Frye suggest an unwillingness to support plaintiffs in civil cases.  In response, Wyrick will argue that (even though a majority of his colleagues disagreed), the law compelled the reasoning of his dissents.

Fourth, senators may raise Wyrick’s connection to Pruitt, Trump’s controversial EPA Director.  Given Wyrick’s initial selection as Solicitor General by Pruitt, critics may try to tie Wyrick to his old-boss’ more controversial actions.  If this question is raised, it will be interesting to see if Wyrick offers to recuse himself in cases involving Pruitt, and if such recusal is demanded by critics.

Overall, there is no denying Wyrick’s intelligence and accomplishments.  Nevertheless, the ease of Wyrick’s confirmation will ultimately turn on his answers to the concerns raised above.


[1] See Jenni Carlson, Cancer Doesn’t Curb Wyrick’s Enthusiasm for her Marathon Run, The Oklahoman, Apr. 30, 2006.  

[2] See id.

[3] Sen. Comm. on the Judiciary, 115th Cong., Patrick Wyrick: Questionnaire for Judicial Nominees 1.

[4] Judge Payne is the only judge in the country to hear cases across three districts.

[5] See id. at 2.

[6] Dale Denwalt, Four Candidates Vie For State Supreme Court, The Journal Record, Dec. 12, 2016.

[7] Dale Denwalt, Oklahoma Governor Appoints Wyrick to State Supreme Court, The Daily Oklahoman, Feb. 9, 2017.

[8] Catherine Sweeney, Observers: Wyrick Flap a Rare Occurrence, The Journal Record, Feb. 22, 2017.

[9] See Spencer v. Wyrick, 392 P.3d 290 (Okla. 2017).

[10] Justin Wingerter, Oklahoma Supreme Court Judge Joins Trump’s List of Possible SCOTUS Picks, The Daily Oklahoman, Nov. 17, 2017.

[11] Press Release, President Obama Nominates Four to Serve on the United States District Courts (Dec. 16, 2015) (on file at https://obamawhitehouse.archives.gov/the-press-office/).

[12] The Oklahoman Editorial Board, U.S. Senate Should End Wait for Two Oklahoma Judicial Nominees, The Oklahoman, Nov. 18, 2016, https://newsok.com/article/5527448/us-senate-should-end-wait-for-two-oklahoma-judicial-nominees.

[13] Sen. Comm. on the Judiciary, 115th Cong., Patrick Wyrick: Questionnaire for Judicial Nominees 56-57.

[14] Id. at 57.

[15] Robert Barnes & Mark Berman, Sharp Questions About Using Sedative to Execute Inmates, Wash. Post, Apr. 30, 2015.

[16] See id.

[17] Maureen Johnson, You Had Me At Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested Supreme Court Decisions, 49 Ind. L. Rev. 397, 456 (2016).

[18] See Barnes, supra n. 15.

[19] Chris Casteel, U.S. Supreme Court Sharply Divided in Oklahoma Lethal Injection Case, Daily Oklahoman, Apr. 29, 2015.

[20] Emily Summars, Oklahoma Attorney General Admits Court Filing Error, Journal Record Legislative Report, May 15, 2015.

[21] Glossip v. Gross, 135 S.Ct. 2726 (2015).

[22] See Patrick Gregory, Trump Nominee Wyrick Defended Executions, Abortion Regs, Bloomberg Law, May 18, 2018, https://biglawbusiness.com/trump-nominee-wyrick-defended-executions-abortion-regs/.

[23] See Nova Health Sys. v. Pruitt, 292 P.3d 28 (Okla. 2012) and Okla. Coal. for Reproductive Justice v. Cline, 2012 OK 12 (Okla. 2012).

[24] Marie Price, New Law Restricting Access of Minors’ Access to Plan B One-Step Emergency Contraceptive Temporarily Enjoined From Taking Effect in Okla, Journal Record Legislative Report, Aug. 19, 2013.

[25] Marie Price, Judge Strikes Physician Liability From Abortion Drug Law, Journal Record, Oct. 22, 2014.

[26] Oklahoma Judge to Let Most of New Abortion Law Take Effect; Plaintiffs Consider Appeal, Legal Monitor Worldwide, Oct. 25, 2014.

[27] Id.

[28] Marie Price, State of Oklahoma: Feds’ Delay Demonstrates Admission That ACA Requirements Are Hurting Large Employers, Journal Record Legislative Report, July 11, 2013.

[29] See Patrick Wyrick, Symposium: King v. Burwell – a simple case, SCOTUSBlog, Nov. 10, 2014, http://www.scotusblog.com/2014/11/symposium-king-v-burwell-a-simple-case/.

[30] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).

[31] See Robert Boczkiewicz, 10th US Circuit Court of Appeals Takes Up Oklahoma’s Islamic Law Case, The Oklahoman, Sept. 13, 2011.

[32] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).

[33] See Awad v. Ziriax, 996 F. Supp. 2d 1198 (W.D. Okla. 2013).

[34] Am. Honda Motor Co. v. Thygesen, 2018 OK 14 (Okla. 2018); Cates v. Integris Health, 412 P.3d 98 (Okla. 2018); State Farm Mut. Auto. Ins. Co. v. Payne, 408 P.3d 204 (Okla. 2017); Okla. Auto. Dealers Assoc. v. State ex rel. Oklahoma Tax Comm’n, 401 P.3d 1152 (Okla. 2017); Naifeah v. State ex rel. Oklahoma Tax Comm’n, 400 P.3d 759 (Okla. 2017).  

[35] Okla. Oil & Gas Ass’n v. Thompson, 414 P.3d 345 (Okla. 2018) (Wyrick, J., concurring specially); McDonald v. Thompson, 414 P.3d 367 (Okla. 2018) (Wyrick, J., concurring specially); Okla. Indep. Petroleum Ass’n v. Potts, 2018 OK 24 (Okla. 2018) (Wyrick, J., concurring specially); JP Energy Mktg. LLC v. Commerce & Indus. Ins. Co., 2018 OK 11 (Okla. 2018) (Wyrick, J., concurring in part and dissenting in part); Hunsucker v. Fallin, 408 P.3d 599 (Okla. 2017) (Wyrick, J., concurring in part and dissenting in part); Richard v. State ex rel. Oklahoma Tax. Comm’n, 406 P.3d 571, 573 (Okla. 2017) (Wyrick, J., concurring in judgment); Multiple Injury Trust Fund v. Wiggins, 404 P.3d 35, 37 (Okla. 2017) (Wyrick, J., concurring in judgment); Andrew v. Demani-Sparkes, 396 P.3d 210, 225 (Okla. 2017) (Wyrick, J., concurring in judgment).

[36] Keener v. Miller, No. 116,779 (Okla. Apr. 10, 2018) (Wyrick, J., dissenting); Boyle ex rel. Estate of Cain v. ASAP Energy Inc., 408 P.3d 183, 199 (Okla. 2017) (Wyrick, J., dissenting); Frye v. State ex rel. Dep’t of Corr., 404 P.3d 38, 41 (Okla. 2017) (Wyrick, J., dissenting); Multiple Injury Trust Fund v. Mackey, 406 P.3d 564, 567 (Okla. 2017) (Wyrick, J., dissenting); Multiple Injury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting); State ex rel. Oklahoma Bar Ass’n v. Helton, 394 P.3d 227, 242 (Okla. 2017) (Wyrick, J., dissenting).

[37] See Naifeah v. State ex rel. Oklahoma Tax Comm’n, 400 P.3d 759 (Okla. 2017).

[38] See Okla. Auto. Dealers Assoc. v. State ex rel. Oklahoma Tax Comm’n, 401 P.3d 1152, 1154 (Okla. 2017).

[39] See id. at 1165 (Combs, J., dissenting).

[40] See Multiple Injury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting).

[41] Frye v. State ex rel. Dep’t of Corr., 404 P.3d 38, 41 (Okla. 2017) (Wyrick, J., dissenting)

[42] See Boyle ex rel. Estate of Cain v. ASAP Energy Inc., 408 P.3d 183, 199 (Okla. 2017) (Wyrick, J., dissenting).

[43] Id. at 202.

[44] Patrick Wyrick, Symposium: King v. Burwell – a simple case, SCOTUSBlog, Nov. 10, 2014, http://www.scotusblog.com/2014/11/symposium-king-v-burwell-a-simple-case/.

[45] See id.

[46] Id.

[47] See King v. Burwell, 576 U.S. __ (2015).