Judge Rodney Smith – Nominee to the U.S. District Court for the Southern District of Florida

Judge Rodney Smith was the second African American judicial nominee to be sent forward by the Trump Administration when he was nominated back in May.  Now, as his nomination finally starts moving, Smith is poised to fill a long-pending vacancy on the court.

Background

A native Floridian, Rodney Smith was born in Orlando in 1974.  Smith graduated from Florida A&M University in 1996 and then from Michigan State University School of Law in 1999.[1]

After graduation, Smith joined the Miami-Dade County State’s Attorney’s Office, working as a prosecutor.[2]  In 2003, he moved briefly to the Office of the General Counsel at the United Automobile Insurance Company and then to the firm of McGrain Nosich & Ganz P.A.[3]  He left the firm a year later to join the Law Office of Rebecca W. Ribler as a Senior Trial Attorney.  In 2007, he shifted again to become Senior Assistant City Attorney for the City of Miami Beach.[4]

In 2008, Smith became a County Court Judge, appointed to the position by then-Republican Governor Charlie Crist.  In 2012, Smith was appointed by Gov. Rick Scott to be a Circuit Court Judge on the Eleventh Judicial Circuit of Florida, where he sits to this day.

History of the Seat

Smith has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on June 2, 2014, when Judge Robin Rosenbaum was elevated to the U.S. Court of Appeals for the Eleventh Circuit.  On February 26, 2015, Mary Barzee Flores, a former state court judge in Florida, was nominated by President Obama for the vacancy.[5]  However, while Flores had been recommended for the vacancy by the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson, Rubio refused to return a blue slip on Flores.[6]  Rubio’s stance was criticized by both Republicans and Democrats who described Flores as an “excellent judge.”[7]  Later, Rubio claimed that Flores had misrepresented her past support for the American Civil Liberties Union and other organizations.[8]  With Rubio’s opposition, Flores never got a hearing before the Senate Judiciary Committee and was not confirmed before the end of the Obama Administration.

In October 2017, Smith applied and interviewed with the JNC.  The JNC chose Smith as one of ten finalists to be passed onto the Senators.[9]  After interviews with Rubio and Nelson, Smith interviewed with the White House Counsel’s Office and the Department of Justice.  Smith was formally nominated on May 8, 2018.

Legal Career

Smith began his legal career as a state prosecutor in Miami-Dade County, where he served as the Chief of the Juvenile Division and worked in the Career Criminal/Robbery Division.[10]  As the former, Smith was able to secure a conviction against a defendant who emotionally and sexually abused his step-daughter, even though the child’s mother testified against her.[11]

From 2003 to 2007, Smith worked in private practice.  While working for Rebecca Ribler, Smith defended a case against a plaintiff who broke her hip slipping and falling while exiting the defendant’s restaurant.[12]

From 2007 to 2008, Smith worked as Senior Assistant City Attorney in Miami Beach, defending the city against litigation while also prosecuting ordinance violations.  During his time at the office, Smith successfully obtained summary judgment against a plaintiff who had been rendered a quadriplegic after diving into the ocean and striking a rock.[13]

Jurisprudence

Smith served as a County Court Judge in Florida from 2008 to 2012 and has served as a Circuit Judge since 2012.  In the former capacity, Smith heard criminal misdemeanor and traffic matters, civil protective orders, and landlord-tenant and small claims litigation.  As a Circuit Judge, Smith handles major felonies and any civil cases with more than $15000 in controversy.

Over his ten year tenure on state court, Smith has heard approximately 700 cases.  Of these, approximately 3% have been reversed by a higher court, a relatively low reversal rate.[14]  Of the cases in which Smith has been reversed, approximately one in five involved a confession of error by the prevailing party.[15]

Overall Assessment

Smith is a relatively uncontroversial choice for the federal bench.  His judicial record is fairly mainstream and he has not made any controversial statements or actions in his career.  Additionally, his record as a lawyer is fairly varied and it is hard to argue that Smith lacks the ability to be a district court judge.  As such, Smith will likely be confirmed with bipartisan support.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Press Release, Obama White House Archives, President Obama Nominates Two to Serve on the United States District Courts (Feb. 26, 2015).

[6] Jay Weaver, Rubio Holds Up Obama Nominee He Once Backed for Miami Federal Bench, Miami Herald, Feb. 28, 2016, https://www.miamiherald.com/news/politics-government/article63008137.html.  

[7] See id. (quoting Tom Spencer).

[8] Marc Caputo and Seung Min Kim, Rubio Breaks Silence on Female Judge, Politico, June 9, 2016, https://www.politico.com/story/2016/06/marco-rubio-judge-mary-barzee-flores-224073.  

[9] David Markus, Breaking — JNC Makes the Cut to 10 Finalists for District Judge, Southern District of Florida Blog, Nov. 29, 2017, http://sdfla.blogspot.com/2017/11/breaking-jnc-makes-cut-to-10-finalists.html.

[10] See Smith, supra n. 1 at 46.

[11] State v. Yanes, No. F01-029698, aff’d, 865 So.2d 507 (Fla. 3d DCA 2003).

[12] O’Brien v. GMRI, Inc. d/b/a Bahama Breeze, Case No. 04-23037 CA 20.

[13] Downs v. City of Miami Beach, et al., Case No. 04-08735 CA 15 and Case No. 06-20861 CIV-HUCK/BANDSTRA, aff’d, 13 So.3d 1064 (Fla. 3d DCA 2009).

[14] See Smith, supra n. 1 at 38.

[15] Id. at 37-41.

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

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 turn now to the Midwest.

Sixth Circuit

Court of Appeals

The Cincinnati based Sixth Circuit Court of Appeals serves the states of Kentucky, Michigan, Ohio, and Tennessee. The sixteen member court has been the site of notable squabbles between the judges, including allegations of judicial misconduct. Today, while the court has eleven Republican appointees and five Democratic appointees, the conservative-liberal divide is a closer nine to six, with Judge Julia Smith Gibbons occasionally voting with both blocs.

The Sixth Circuit also has a dramatic age divide between the conservative and the liberal wings. Of the six “liberal” judges on the court, four are already eligible for senior status. Additionally, a fifth, Judge Helene White, becomes eligible this year, while the sixth, Judge Jane Stranch, becomes eligible next year. In contrast, only two judges outside the liberal bloc are eligible for senior status, Gibbons and Judge Richard Griffin.

Despite the number of liberal judges who are eligible for senior status, there has not been an exodus in the Biden Administration. So far, no Sixth Circuit judge has officially announced their intention to take senior status or retire. Judge Bernice Donald, an Obama appointee who has been eligible for senior status since 2016, reportedly announced her move to take senior status in a letter to clerks in May. However, to date, no official announcement of the vacancy has been posted on the U.S. Courts website, and it is not unprecedented for a judge who initially decides to take senior status to subsequently change their mind.

At any rate, even without Donald, three Clinton appointees on the court have been eligible for senior status for the better part of a decade, and one or more of them could take senior status before the end of the Congress, as could Gibbons, White, or Stranch. The only eligible judge unlikely to take senior status under Biden is the staunchly conservative Griffin.

Kentucky

The Eastern and Western Districts of Kentucky are served by ten active judges, four appointed by George W. Bush, two by Obama, and four by Trump. Currently, only Judge Karen Caldwell of the Eastern District of Kentucky is eligible for senior status, although Chief Judge Danny Reeves becomes eligible on August 1, 2022. Neither is expected to take senior status in the near future.

Michigan

Michigan is divided into two judicial districts: the Eastern and Western. The Eastern District, based in Detroit and composed of 15 active judgeships, currently has two vacancies, vacated by Judge Victoria Roberts on February 24 and by Judge David Lawson on August 6. Biden has nominated Oakland County Judge Shalina Kumar to replace Roberts and Michigan Senators are currently accepting applications to replace Lawson, with a deadline of September 2. The four judgeship Western District has one vacancy, opened by Judge Janet Neff’s move to senior status March 1. Michigan Court of Appeals Judge Jane Beckering has been nominated to replace Neff. Both nominees have received a hearing before the Senate Judiciary Committee.

Additional vacancies may also be possible. Judges Denise Hood, Paul Borman, and Thomas Ludington on the Eastern District and Judge Paul Maloney on the Western District are already eligible for senior status. Additionally, Judges Sean Cox, Mark Goldsmith, and Gershwin Drain will become eligible for senior status before the end of the 117th Congress.

Ohio

Bisected into two judicial districts, Ohio federal trial courts are poised for a significant turnover. The eleven judgeship Northern District of Ohio currently has three vacancies. Ohio Senator Sherrod Brown gathered applications to fill the vacancies in February with an application deadline on March 16. So far, no recommendations have been made public and no nominations have been announced. Additionally, Chief Judge Patricia Gaughan and Judge John Adams are eligible for senior status although both have disclaimed any interest in taking it.

The Southern District has no current vacancies but Chief Judge Algernon Marbley and Judge Judge Edward Sargus are already eligible for senior status, while Judge Michael Watson will reach eligibility on November 7 and Judge Timothy Black will hit the threshold in 2022. One or more of these jurists may move to senior status before the end of the 117th Congress.

Tennessee

The citizens of Tennessee are served by three judicial districts: the Eastern, Middle, and Western Districts. None of the three districts currently have any vacancies, although there are several judges who are eligible for senior status who may take senior status before the end of 2022: Judge Thomas Varlan on the Eastern District; Judge Aleta Trauger on the Middle District; and Judges Stanley Anderson and John Fowlkes on the Western District. Additionally, Chief Judge Travis McDonough on the Eastern District is a possibility to be elevated to the Sixth Circuit to replace Donald, which would allow Biden to replace him in turn.

Seventh Circuit

Court of Appeals

The Chicago based Seventh Circuit Court of Appeals is home to many of the federal judiciary’s intellectual heavyweights. Despite having an 8-3 Republican appointee majority, the court is generally considered to be more moderate than conservative. Biden has already named one judge to the Seventh Circuit, Judge Candace Jackson-Akiwumi. He may have the opportunity to name others as four of the court’s eleven judges are eligible for senior status: Judges Frank Easterbrook, Michael Kanne, Ilana Rovner, and Diane Wood. Additionally, two more judges reach eligibility next year, Chief Judge Diane Sykes, and Judge David Hamilton. While Easterbrook and Sykes are unlikely to move to senior status in the near future, any of the other four could choose to vacate their seats before the end of the 117th Congress.

Illinois

Represented by Senate Judiciary Committee Chairman Richard Durbin, Illinois saw seats filled fairly quickly under the previous few Administrations and largely avoided the lingering vacancies that plagued other states. Currently, there is no vacancy on any of the Illinois District Courts and only one future vacancy is teed up, from Northern District Judge Matthew Kennelly’s move to senior status in October. Additional vacancies, however, are possible, as Judge Sue Myerscough on the Central District and Judges Rebecca Pallmeyer and Charles Norgle on the Northern District are eligible for senior status.

Indiana

Indiana is served by the Northern District and the Southern District, each with five active judgeships. Currently, there is one judgeship vacant in the Northern District, created by Judge Theresa Springmann’s move to senior status in January. There is also a future vacancy scheduled in the Southern District when Judge Richard Young moves to senior status upon confirmation of a successor. While Indiana’s Republican Senators accepted applications to replace Springmann in 2019, no nomination has been made as of yet. However, President Biden named U.S. Attorneys to both of Indiana’s judicial districts as part of his first batch of nominees, suggesting that judicial nominees may also be in the offing.

Wisconsin

Divided into the five judgeship Eastern District and the two judgeship Western District, Wisconsin currently has one judicial vacancy, vacated by Judge William Griesbach’s move to senior status on December 31, 2019. So far, no nomination has been put forward to replace Griesbach, although Wisconsin Senators Tammy Baldwin and Ron Johnson recommended four candidates to fill the vacancy in June: state court judges Tammy Jo Hock, William Pocan, and Thomas Walsh, and federal public defender Krista Halla-Valdes. Given the recommendations, a nominee is likely in the Fall.

Additional vacancies may also be possible. Both Judges Joseph Stadtmueller and Lynn Adelman are eligible for senior status and may choose to make the move this Congress.

Eighth Circuit

Court of Appeals

With ten judges appointed by Republican Presidents and only one appointed by a Democratic President, the Eighth Circuit is widely considered one of the most conservative courts in the country. This effect is magnified by the senior judges on the court, the vast majority of whom are also deeply conservative. If there is a bright side for liberals, it is that the lone Democratic-appointee on the court, Judge Jane Kelly, is also one of the court’s younger judges. The Eighth Circuit is currently the only court of appeals that has not had a vacancy open during the Biden Administration. If one opens, it’ll likely be due to the moves of Judges James Loken, William Benton, or Bobby Shepherd, who are the only judges currently eligible for senior status.

Arkansas

Arkansas, divided into the Eastern and Western Districts, has eight trial judgeships in total. Currently, those judgeships are filled by six appointees of President Obama, one of President George W. Bush, and one of President Trump. The only judgeship set to open this Congress is Judge Paul K. Holmes’ seat on the Western District of Arkansas, which is set to open on November 10. While Holmes gave plenty of warning, announcing his move on December 1, 2020, no nominee has been put forward by the White House. This is likely because the White House has been unable to reach an agreement with Arkansas Senators John Boozman and Tom Cotton. While, during the Obama Administration, Boozman supported and returned blue slips for five District Court nominees, including Holmes, Cotton has yet to approve any Arkansas nominee from a Democratic President. As such, it remains to be seen if a nominee can be put forward to fill the vacancy.

Iowa

The judges on the Northern and Southern Districts of Iowa are comparatively young, with four out of five being under the sixty (and two under the age of fifty). The lone exception is Judge John Jarvey who has announced his intention to retire on March 18, 2022. Given Iowa Senator Chuck Grassley’s role as Ranking Member of the Senate Judiciary Committee, the White House is likely to consult with him on Jarvey’s replacement. So far, no recommendations have been made public.

Minnesota

The U.S. District Court for the District of Minnesota has one vacancy, created when Judge Joan Ericksen moved to senior status on October 15, 2019. Senators Amy Klobuchar and Tina Smith sent a shortlist of candidates to fill the vacancy to the White House in early January but no nomination has been officially submitted yet. To compound the issue, additional vacancies may soon open as Chief Judge John Tunheim, who is eligible for senior status, steps down as Chief next year and as Judge Susan Nelson hits eligibility later this year.

Missouri

The Eastern and Western Districts of Missouri share an interesting quirk: they have sixteen active judgeships between them but only fourteen active judges. This is because two of the judges, Judge Rodney Sippel and Judge Brian Wimes, sit on both the Eastern and Western Districts. Counting each judge only once, the Districts are composed of eight Obama appointees, three Trump appointees, two Bush appointees, and one Clinton appointee. While there are no current vacancies, Sippel and Judge Henry Autrey are both eligible for senior status.

Nebraska

While currently without a vacancy, the District of Nebraska has an informal policy of judges moving to senior status as soon as they hit eligibility in order to best handle the caseload. The first judge to hit that eligibility threshold is Judge John Gerrard, who will hit it by the end of 2022.

North Dakota

With the two judgeships in North Dakota having been filled recently by President Trump, it’s extremely unlikely that either will open this Congress.

South Dakota

The three judgeship District of South Dakota is currently composed of two appointees of President Obama and one of President Clinton. It is set to have a vacancy open on October 1 when Judge Jeffrey Viken moves to senior status. In addition to Viken, Judge Karen Schreier became eligible for senior status on July 29 and may make the move as well. In April 2021, South Dakota Democratic Party Chairman Randy Seiler submitted three names to fill the vacancy: former Congresswoman Stephanie Herseth Sandlin; Cheyenne River Sioux Tribe Attorney General Tracey Zephier; and federal prosecutor Sarah Collins. A few weeks later, Herseth Sandlin took her name out of consideration. No nominee has been named to replace Viken yet.

In Memoriam: A Tribute to the Judicial Minds We Lost This Year

2020 has taken a lot from all of us. We have lost many institutions of the judiciary this year, with the passing of a collective two millennia of legal expertise. Below, we remember all the state supreme and federal judges who passed away in 2020. (Any exclusions are inadvertent, please feel free to add to the list through the comments).

U.S. Supreme Court

Ruth Bader Ginsburg (Sept. 18) – U.S. Supreme Court, 1993-2020

U.S. Court of Appeals

Raymond Fisher (Feb. 29) – U.S. Court of Appeals for the Ninth Circuit, 1999-2020

Jerome Farris (July 23) – U.S. Court of Appeals for the Ninth Circuit, 1979-2020

Clyde Hamilton (Sept. 2) – U.S. Court of Appeals for the Fourth Circuit, 1991-2020

Nathaniel R. Jones (Jan. 26) – U.S. Court of Appeals for the Sixth Circuit, 1979-2002

Monroe McKay (Mar. 28) – U.S. Court of Appeals for the Tenth Circuit, 1977-2020

Lawrence Pierce (Feb. 5) – U.S. Court of Appeals for the Second Circuit, 1981-1995

Thomas Reavley (Dec. 1) – U.S. Court of Appeals for the Fifth Circuit, 1979-2020

Juan Torruella (Oct. 26) – U.S. Court of Appeals for the First Circuit, 1984-2020

Stephen Williams (Aug. 7) – U.S. Court of Appeals for the D.C. Circuit, 1986-2020

Ralph Winter (Dec. 8) – U.S. Court of Appeals for the Second Circuit, 1981-2020

U.S. District Courts

G. Ross Anderson (Dec. 1) – U.S. District Court for the District of South Carolina, 1980-2009

Deborah Batts (Feb. 3) – U.S. District Court for the Southern District of New York, 1994-2020

Dee Benson (Nov. 30) – U.S. District Court for the District of Utah 1991-2020

A. Richard Caputo (Mar. 11) – U.S. District Court for the Middle District of Pennsylvania, 1997-2020

William Castagna (Dec. 18) – U.S. District Court for the Middle District of Florida, 1979-2020

James Paul Churchill (June 29) – U.S. District Court for the Eastern District of Michigan, 1974-2020

John Davies (Mar. 24) – U.S. District Court for the Central District of California, 1986-1998

Kevin Duffy (Apr. 1) – U.S. District Court for the Southern District of New York, 1972-2016

Patrick Duggan (Mar. 18) – U.S. District Court for the Eastern District of Michigan, 1986-2000

William Enright (Mar. 7) – U.S. District Court for the Southern District of California, 1972-2020

Lloyd George (Oct. 7) – U.S. District Court for the District of Nevada, 1984-2020

Walter Gex (Nov. 12) – U.S. District Court for the Southern District of Mississippi, 1986-2020

Jackson Kiser (Oct. 21) – U.S. District Court for the Western District of Virginia, 1981-2020

Blanche Manning (Sept. 20) – U.S. District Court for the Northern District of Illinois, 1994-2020

James Munley (Mar. 22) – U.S. District Court for the Middle District of Pennsylvania, 1998-2020

Juan Perez-Jimenez (Dec. 10) – U.S. District Court for the District of Puerto Rico, 1979-2020

Pamela Reeves (Sept. 10) – U.S. District Court for the Eastern District of Tennessee, 2014-2020

James Redden (Mar. 31) – U.S. District Court for the District of Oregon, 1980-2020

Lowell Reed (Apr. 11) – U.S. District Court for the Eastern District of Pennsylvania, 1988-2020

Jack Shanstrom (Jan. 13) – U.S. District Court for the District of Montana, 1990-2020

Charles Alexander Shaw (Apr. 12) – U.S. District Court for the Eastern District of Missouri, 1993-2020

George Curtis Smith (Apr. 15) – U.S. District Court for the Southern District of Ohio, 1987-2020

Laurie Smith Camp (Sept. 23) – U.S. District Court for the District of Nebraska, 2001-2020

William Sessions (June 12) – U.S. District Court for the Western District of Texas, 1974-1987

Arthur Spatt (June 12) – U.S. District Court for the Eastern District of New York, 1989-2020

Stanley Sporkin (Mar. 23) – U.S. District Court for the District of Columbia, 1985-1999

Michael Telesca (Mar. 5) – U.S. District Court for the Western District of New York, 1982-2020

Lee Roy West (Apr. 24) – U.S. District Court for the Western District of Oklahoma, 1979-2020

Thomas Wiseman (Mar. 18) – U.S. District Court for the Middle District of Tennessee, 1978-1995

State Supreme Courts

Shirley Abrahamson (Dec. 19) – Wisconsin Supreme Court, 1976-2019

Russell Anderson (Sept. 15) – Minnesota Supreme Court, 1998-2008

Edmond Burke (Mar. 31) – Alaska Supreme Court, 1975-1993

George Carley (Nov. 26) – Georgia Supreme Court, 1993-2012

Boyce Clayton (Mar. 15) – Kentucky Supreme Court, 1976-1982

Robert Erwin (Jan. 24) – Alaska Supreme Court, 1970-1977

Ralph Gants (Sept. 14) – Massachusetts Supreme Judicial Court, 2009-2020

Ernest Gibson (May 17) – Vermont Supreme Court, 1983-1997

Frank Gordon Jr. (Jan. 6) – Arizona Supreme Court, 1987-1992

Sandy Keith (Oct. 3) – Minnesota Supreme Court, 1990-1998

Robert Lavender (Mar. 23) – Oklahoma Supreme Court, 1965-2007

Charles Levin (Nov. 19) – Michigan Supreme Court, 1973-1996

Hans Linde (Aug. 31) – Oregon Supreme Court, 1977-1990

Lawrence Lindemer (May 21) – Michigan Supreme Court, 1975-1976

Richard Neely (Nov. 8) – West Virginia Supreme Court, 1973-1995

Lenore Prather (Apr. 11) – Mississippi Supreme Court, 1982-2000

Thomas Steffen (Sept. 1) – Nevada Supreme Court, 1982-1997

Other Notable Jurists

Gregory Carman (Mar. 5) – U.S. Court of International Trade, 1983-2014

Alfred Laureta (Nov. 16) – U.S. District Court for the Commonwealth of the Northern Mariana Islands, 1978-1988

John K. Bush – Nominee to the U.S. Court of Appeals for the Sixth Circuit

John K. Bush, a distinguished commercial litigator, is the second Kentucky nominee named by President Trump to the Sixth Circuit.  Like the first, Judge Amul Thapar, Bush has a close connection with the Federalist Society.  However, unlike Thapar, Bush has no judicial record, making his conservative legal background even starker.

Background

John Kenneth Bush was born on Aug. 24, 1964 in Hot Springs, Arkansas.  After getting a B.A. from Vanderbilt University and a J.D. from Harvard Law School, Bush clerked for Judge J. Smith Henley on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Bush joined the Washington D.C. office of Gibson, Dunn & Crutcher LLP, working primarily in federal appellate matters.

In 1996, Bush moved to the Louisville office of Bingham, Greenebaum & Doll LLP, becoming a member in 1998, and a partner in 2012.  At Bingham, Bush served as Co-Chair of the Litigation Department, as well as Team Leader of the Antitrust Team.

Starting in 1997, Bush has served as President of the Louisville Lawyers Chapter of the Federalist Society, an organization dedicated to shaping the American legal system in accordance with originalist and textualist principles.

In November 2016, Bush indicated his interest in serving as a federal judge to Senate Majority Leader Mitch McConnell (R-KY).  After meetings with McConnell, Senator Rand Paul (R-KY), and officials in the White House Counsel’s Office and the Department of Justice, Bush was formally nominated on May 8, 2017.[1]

History of the Seat

Bush has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in February 2017 with Judge Danny Julian Boggs’ move to senior status.[2]  Boggs, an appointee of President Ronald Reagan, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2009, but did not announce the move until shortly before President Trump’s inauguration.

Legal Experience

In almost thirty years as an attorney, Bush has primarily worked on commercial litigation, both on the trial and the appellate level.  As the head of Bingham’s Antitrust team, many of Bush’s most prominent cases involve antitrust litigation.  Early in his year, Bush was chief trial counsel for Hillerich & Bradsby Co. (H&B.), a baseball bat manufacturer in Louisville, in multidistrict litigation involving NCAA rules governing aluminium baseball bats.[3]

In one of his most significant cases, Bush represented Vibo Corporation, a tobacco manufacturer, in challenging its payment obligations under the Master Settlement Agreement (MSA) negotiated between the tobacco industry and state attorney generals in the 90s.  In the suit, Bush challenged the MSA, arguing that the agreement violated federal antitrust law.  The primary suit, brought in the Western District of Kentucky, resulted in both trial and appellate rulings against Bush’s client.[4]

Despite his primary focus on commercial litigation, Bush has also worked on some more controversial cases.  Alongside Theodore Olson, Bush was part of President Ronald Reagan’s defense team during the Iran-Contra investigation.[5]  Bush also worked with law school classmate Mark Nielson to sue the State of Connecticut and force implementation of a voter-approved constitutional limit on state spending.[6]  Bush was also part of the legal team that successfully defended a low sentence for Stacey C. Koon, the Los Angeles police sergeant convicted of civil rights violations for his role in the beating of Rodney King.[7]

Furthermore, Bush’s participation as amicus counsel in two politically charged cases may also be brought up at his confirmation hearing.  In 2007, Bush filed an amicus brief on behalf of the Louisville Area Chamber of Commerce, Inc. urging the Supreme Court to uphold the Louisville school district’s desegregation plan.[8]  Despite drafting a brief aimed at drawing conservative votes, the Supreme Court voted 5-4 to strike down the desegregation plan for relying too closely on race.[9]  Furthermore, last year, Bush participated as amicus counsel in Susan B. Anthony List v. Driehaus, a landmark First Amendment case which struck down Ohio’s ban of false statements in political campaigning.[10] 

Political Activity

Bush, a registered Republican,[11] has a long history of involvement with the Republican party.  Bush has contributed to the campaigns of numerous Republicans including McConnell, Paul, Congressman Andy Barr, and former Congresswoman Anne Northup.[12]  Over the course of his career, Bush has contributed $4500 to McConnell and $1050 to Paul, as well as volunteering for both Senators’ re-election campaigns.[13]

Bush has also made two small contributions to the Louisville and Jefferson County Republican Committee, as well as serving as an Executive Committee Member for the Jefferson County Republican Party for the last year.  Bush also served on Republican Governor Matt Bevin’s Transition Team.

Speeches and Writings

Over his thirty year long legal career, Bush has both spoken and written extensively on legal issues.  While most of Bush’s speeches and writings focus on the practice of litigation[14] and antitrust law,[15] two in particular may draw controversy.

Right to Privacy and the Kentucky Supreme Court

In 2006, Bush co-authored a paper for The Federalist Society of Law and Public Policy Studies alongside Prof. Paul E. Salamanca of the University of Kentucky School of Law.  The paper, titled “Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?” criticized a series of rulings made by the Kentucky Supreme Court that the authors felt had expanded judicial authority at the expense of the legislature, and had disregarded precedent.  Among the areas of criticism, the authors noted the Kentucky Supreme Court’s tendency “to find rights in the state constitution above and beyond those in the U.S. Constitution.”[16]  Specifically, they highlighted that the Court “immunized consensual sodomy from criminal prosecution” despite the U.S. Supreme Court’s ruling to the contrary in Bowers v. Hardwick.[17]

Bush and Salamanca also criticized the Court’s abortion jurisprudence, noting that while the Court was initially willing to defer to state regulation of abortion, it’s “affirmance of the state’s efforts to protect unborn life was short-lived.”[18]  They also chided former Justice Charles Leibson, stating that “Justice Leibson’s interpretation of Roe gave little, if any, weight to the protection of unborn life.

Originalist Interpretation of Libel Law

On March 7, 2009, Bush spoke at the Symposium on Constitutional Law at the University of Louisville Brandeis School of Law.  His speech, titled “The Constitution and the Importance of Interpretation: Original Meaning” included an endorsement of originalism: a method of interpretation that gives primacy to the words of the constitution as they were understood by the authors.[19]  In his speech, Bush singled out the Supreme Court case of New York Times v. Sullivan as a case inconsistent with originalism.[20]  Sullivan, which insulated news articles that criticized public figures, has been cited as a case that protects freedom of the press.[21]  As such, Bush’s criticism of the case may raise questions about his willingness to interpret and apply it as a federal judge.  Bush’s remarks have already drawn concern from liberal groups, who argue that they could be used as a blueprint by the Trump Administration to target independent journalists.[22]

Overall Assessment

Unlike the previous nominees featured on the Vetting Room, Bush has no experience as a judge.  While there is nothing innately disqualifying about this, Bush’s lack of judicial experience makes it more difficult to gauge what kind of a judge he will be.  However, looking at his extensive history with the Federalist Society, his endorsement of originalism, and his long involvement with the Republican party, it is reasonable to conclude that Bush will be a deeply conservative addition to the Sixth Circuit.

While partisan activity should not be a bar to judicial service, Bush’s background makes it easy for progressive legal groups to build a case against his confirmation.  In particular, Bush’s criticism of both Sullivan and an expanded right to privacy, as well as his defense of Koon, a white police officer charged with violating the civil rights of a black man, could be used as grounds for concern.[23]

Overall, there is enough in Bush’s record to draw concern from the Judiciary Committee Democrats.  If and when Bush’s nomination comes up for Committee consideration, I expect a partisan battle over his confirmation.


[1] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[3] See, e.g., Baum Research & Dev. Co. v. Hillerich & Bradsby Co., No. 98-72946, 2003 WL 25775524, at *1 (E.D. Mich. Nov. 23, 2003).  

[4] See VIBO Corp. v. Conway, 594 F. Supp. 2d 758 (W.D. Ky. 2009), aff’d 669 F.3d 675, 680 (6th Cir. 2012).

[5] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[6] Jack Ewing, Frustrated Lawmaker Asks Court for Assist, Hartford Courant, Sept. 11, 1993, http://articles.courant.com/1993-09-11/news/0000004890_1_spending-cap-legislator-courts.

[7] Koon v. United States, 518 U.S. 81 (1996).

[8] See Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

[9] Andrew Wolfson, President Trump Taps Louisville Conservative John K. Bush for Court, Louisville Courier-Journal, May 8, 2017, http://www.courier-journal.com/story/news/politics/2017/05/08/donald-trump-taps-louisville-conservative-john-k-bush-court/101426196/. See also Robert Barnes, Three Years After Landmark Court Decision, Louisville Still Struggles With School Desegregation, Wash. Post, Sept. 20, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html?sid=ST2010091904357.

[10] Susan B. Anthony List v. Driehaus, 814 F.3d 466, 469 (6th Cir. 2016).

[12] While Bush takes the unusual step of reporting his campaign contributions on his Senate Judiciary Questionnaire, he omits some small donations, including a $500 contribution to McConnell made on Aug. 31, 2005, and a $200 contribution to Northup on July 26, 2004.  

[13] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=john+bush (last visited May 18, 2017).

[14] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[15] See, e.g., John K. Bush, So You Have a Big Antitrust Problem: Now What?, Antitrust Law Client Strategies, 2007.  

[16] John K. Bush, Paul E. Salamanca, Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?, The Federalist Society of Law and Public Policy Studies, Sept. 2006, 5.  

[17] Id.

[18] Id. at 6.

[19] John K. Bush, Speech at the Brandeis School of Law’s Symposium on Constitutional Law (Mar. 7, 2009).

[20] Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[21] New York Times Editorial Bd., The Uninhibited Press, 50 Years Later, N.Y. Times, Mar. 8, 2014, https://www.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html (“[Sullivan] rejected virtually any attempt to squelch criticism of public officials – even if false – as antithetical to the ‘central meaning of the First Amendment.’”).

[22] See Justice Watch, Trump Judicial Nominee John K. Bush Has Advocated Stripping First Amendment Protections from the Press, Alliance for Justice, May 11, 2017, http://www.afj.org/blog/trump-judicial-nominee-john-k-bush-has-advocated-stripping-first-amendment-protections-from-the-press; Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[23] Although Bush’s defenders may note his defense of aggressive desegregation plans as amici in Parents Involved.