Thomas Alvin Farr – Nominee to the U.S. District Court for the Eastern District of North Carolina

In December 2006, Thomas Alvin Farr, a well-connected Republican attorney from Raleigh, was nominated for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  For the next two years, Farr waited for a hearing and a vote, neither of which came in the Democratic-controlled Senate.  Then, with the election of President Obama, Farr’s hopes of a federal judgeship died.  On July 13, 2017, however, President Trump revived Farr’s nomination, submitting him once again to the seat he had originally been nominated for, a seat studiously kept open by North Carolina’s Republican Senators.

Background

Thomas Alvin Farr was born in Cincinnati, OH on October 24, 1954.[1]  Farr attended Hillsdale College, a Christian liberal arts school in Michigan, graduating summa cum laude in 1976.  Farr proceeded to Emory University, graduating with a J.D. in 1979.

After graduating, Farr joined the National Right to Work Legal Defense Foundation as a staff attorney.  In 1981, upon the election of Republican senator John P. East,[2] Farr moved to Washington D.C. to serve as Counsel for the Senate Labor and Human Resources Committee.  Farr left D.C. in 1982 to serve as a law clerk to Judge Frank Bullock of the U.S. District Court for the Middle District of North Carolina.

In 1983, Farr joined the Raleigh law firm Maupin, Taylor, Ellis & Adams, P.A., working on civil litigation, with a focus on labor law.  During this period, Farr also served as a member of the North Carolina Elections Board.

In 2003, Farr and three other partners left Maupin for Haynsworth, Baldwin, Johnson & Greaves, a Greenville, SC based labor and employment firm.[3]  In 2006, Farr joined the Raleigh office of Ogletree Deakins, where he currently works as a partner.

In December 2006, President George W. Bush nominated Farr for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  Farr’s nomination came a month after Democrats took control of the U.S. Senate.  Incoming Chairman Patrick Leahy (D-VT) declined to process Farr’s nomination, despite moving and confirming three other North Carolina nominees.  Farr’s nomination was ultimately returned to the President unconfirmed.

History of the Seat

Farr has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[4]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[5]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[6]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[7]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[8]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[9]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[10] this time with the support of Burr and Senator Thom Tillis (R-NC).[11]

Legal Experience

Having been a lawyer since 1979, Farr has more experience litigating than any other nominee put forward by the Trump Administration.  The vast majority of his experience has been in the fields of labor and election law.

Labor Law

Farr has spent virtually his entire legal career in labor law, generally opposed to the positions of unions and unionized workers.  He started his legal career at the National Right to Work Legal Defense Foundation, litigating against unions and union-friendly regulation.  Furthermore, as Counsel for Sen. East, Farr worked on labor policy in the U.S. Senate.

In private practice, Farr fought claims by truck drivers seeking the rights of union membership,[12] and industrial workers seeking to take necessary measurements to file a grievance.[13]  Farr also successfully intervened in a suit blocking NLRB enforcement of its bargaining order against a pork product plant in North Carolina.[14]  He also filed suit to challenge an arbitration decision in favor of a unionized employee.[15]

Farr also filed a Supreme Court amicus brief on behalf of Helms urging affirmance of a decision holding that unions could not spend money on activities unrelated to collective bargaining.[16]

Election Law

In addition to his expertise in labor law, Farr is also known for his extensive litigation experience representing the Republican party, Republican elected officials, and conservative interests in election law litigation.[17]

Early in his career, Farr represented Sen. Jesse Helms (R-NC) and the North Carolina Republican Party in a suit challenging the constitutionality of North Carolina election laws.  The suit arose when Republican Congressman Bill Hendon lost a close election to Democrat James Clarke, and filed suit to challenge the election results, and the North Carolina straight-ticket statute.  After years of litigation, Judge David Sentelle (now on the U.S. Court of Appeals for the D.C. Circuit) found that the statute, which voided cross-over votes cast in opposition to a straight-ticket ballot, was unconstitutional, accepting Farr’s position.[18]

Following the 1990 census, Farr represented the Republican Party of North Carolina in its unsuccessful challenge against the state’s congressional map, alleging partisan gerrymandering.[19]  In 1995, Farr argued the case of Shaw v. Hunt before the U.S. Supreme Court.  The Supreme Court ended up siding with Farr on a 5-4 vote, striking down the congressional map as an unconstitutional racial gerrymander.[20]

In 2001, Farr and future U.S. District Judge James Dever once again challenged the maps drawn by North Carolina’s Democratic legislature, alleging that they were a partisan gerrymander.[21]

In contrast to his litigation against partisan gerrymandering by Democrats, Farr has defended gerrymandering by Republicans.  For example, Farr was a part of the legal team defending the North Carolina legislature’s gerrymandering of the Guilford County Board of Commissioners.[22]

Farr also defended the congressional map and state legislative maps drawn by the Republican legislature against charges that they were unconstitutional racial gerrymanders.[23]  He also defended “election reform” measures enacted by the legislature that, critics argued, would disenfranchise minority voters.[24]

Controversially, Farr’s firm was hired at taxpayer expense to defend North Carolina’s restrictive voter id law against suit by the Department of Justice, who argued that the law disenfranchised minority voters.[25]  In court, Farr argued that voter id was a “minor inconvenience” for voters.[26]  Ultimately, the appeals were dismissed by Democratic Governor Roy Cooper, and Farr was dismissed from the case.[27]

Other Representations

In addition to the cases mentioned above, Farr has defended business interests against civil rights and other actions in court.[28]  Early in his career, Farr successfully defended a railroad accused of promoting white candidates over an experienced black conductor.[29]  Farr also successfully defended American Safety Products, Inc. against breach of contract and RICO claims,[30] as well as defending Dow Corning Corp. against wrongful termination claims.[31]

Political Activity

As may be evident from his frequent appointments by the Republican legislature, Farr is well connected in the North Carolina Republican Party and has been a generous donor to Republicans.  Through his career, Farr has donated to Sen. Lauch Faircloth (R-NC), President George W. Bush, Sen. Elizabeth Dole (R-NC), Sen. Bob Smith (R-NH), Sen. Richard Burr (R-NC), Rep. Renee Ellmers (R-NC), Rep. George Holding (R-NC), Rep. Richard Hudson (R-NC), Mitt Romney, Newt Gingrich, Speaker Paul Ryan, Sen. Thom Tillis (R-NC), and Senate Majority Leader Mitch McConnell, among others.[32]  Farr has also been a strong supporter of President Trump, donating almost $2500 to Trump’s campaign, and an additional $1100 to the Make America Great Again PAC.[33]  While most of his donations are to Republicans, Farr did donate $1000 to Rep. Mike McIntyre (D-NC) in 2009.

Overall Assessment

Both Farr’s supporters and detractors will likely turn to one-word arguments for their position.  For Farr’s supporters, the word is “qualified.”  For his opponents, it’s “partisan.”

As noted, Farr has more experience practicing law than any other Trump nominee.  With almost forty years of legal experience, including work in government, nonprofits, and private practice, Farr is certainly well qualified for a federal judgeship.

However, Farr also has a deeply partisan history.  His switch from attacking partisan gerrymanders drawn by Democrats to defending partisan gerrymanders drawn by Republicans allows detractors to paint him as a partisan ideologue.  Furthermore, his dismissal of the burdens of voter id as a “minor inconvenience” is sure to draw opposition from civil rights groups.

As a bottom line, Democrats, civil rights plaintiffs, and labor unions will argue that, given Farr’s partisan past, he cannot be fair to them in court.  Unlike his first nomination, however, this time, Farr will get a hearing to defend himself and try and put those doubts to rest.


[2] East later gained notoreity as one of the principal opponents of a federal holiday honoring Rev. Martin Luther King, Jr.  Frances Romero, A Brief History of Martin Luther King Jr. Day, Time, Jan. 18, 2010, http://content.time.com/time/nation/article/0,8599,1872501,00.html.

[3] Kim Nilsen, Eillis [sic] Leaves Maupin Taylor & Ellis, Triangle Business Jrnl., Mar. 24, 2003, https://www.bizjournals.com/triangle/stories/2003/03/24/daily11.html.

[4] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[5] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[6] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[7] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[10] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[11] Press Release, Burr and Tillis Welcome Nomination of Thomas Farr as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[12] Joyner v. Abbott Labs., 674 F. Supp. 185, 188 (E.D.N.C. 1987).

[13] N.L.R.B. v. Am. Nat. Can Co., Foster-Forbes Glass Div., 924 F.2d 518, 520 (4th Cir. 1991).

[14] N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir. 1995), supplemented, 81 F.3d 25 (4th Cir. 1996).

[15] Bandag, Inc. v. Local 922, United Steel Workers of Am., No. 5:96-CV-450-BR3, 1996 WL 943527, at *1 (E.D.N.C. Dec. 20, 1996), aff’d sub nom. Bandag, Inc. v. Local 922, 121 F.3d 697 (4th Cir. 1997).

[16] Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 745, 108 S. Ct. 2641, 2648, 101 L. Ed. 2d 634 (1988).

[17] See, e.g. Wesley Brown, Hudson and Jackson Exchange Blows in Senate Race, The Free Press, Oct. 15, 2010 (noting that while representing Sen. Brent Jackson, Farr sent a cease-and-desist letter to his Democratic opponent, alleging untruths in his ads).

[18] Hendon v. N. Carolina State Bd. of Elections, 633 F. Supp. 454, 462 (W.D.N.C. 1986).

[19] Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.), aff’d, 506 U.S. 801, 113 S. Ct. 30, 121 L. Ed. 2d 3 (U.S. 1992).  See also Shaw v. Hunt, 861 F. Supp. 408, 417 (E.D.N.C. 1994), rev’d, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (U.S. 1996).

[20] Shaw v. Hunt, 517 U.S. 899, 902, 116 S. Ct. 1894, 1899, 135 L. Ed. 2d 207 (U.S. 1996).

[21] Stephenson v. Bartlett, 180 F. Supp. 2d 779, 781 (E.D.N.C. 2001).

[22] NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections, 858 F. Supp. 2d 516 (M.D.N.C. 2012).

[23] Harris v. McCrory, 159 F. Supp. 3d 600, 604 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455, 197 L. Ed. 2d 837 (U.S. 2017). See also  Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211, 198 L. Ed. 2d 655 (U.S. 2017).

[24] League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 230 (4th Cir. 2014).

[25] N. Carolina State Conference, of the NAACP v. McCrory, 156 F. Supp. 3d 683, 686 (M.D.N.C. 2016).

[26] Ken Otterbourg, Closing Arguments Given in Key Voter Rights Trial, N.Y. Times, Feb. 2, 2016.

[27] Taft Wireback, Law Firm Disputes Dismissal from NC Voter ID Case, Greensboro News & Record, Feb. 21, 2017, http://www.greensboro.com/news/government/law-firm-disputes-dismissal-from-nc-voter-id-case/article_fc41ca4c-139e-5faf-9232-a5785ca01aba.html.

[28] See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 290 (4th Cir. 2009); Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995); Mumford v. CSX Transp., 878 F. Supp. 827, 829 (M.D.N.C. 1994), aff’d sub nom. Mumford v. CSX Transp., Inc., 57 F.3d 1066 (4th Cir. 1995).

[29] Miller v. Seaboard Sys. R.R., No. C-85-1156-R, 1986 WL 15502, at *1 (M.D.N.C. Dec. 23, 1986).

[30] Grantham & Mann, Inc. v. Am. Safety Prod., Inc., 831 F.2d 596, 598 (6th Cir. 1987).

[31] Riley v. Dow Corning Corp., 876 F. Supp. 732, 733 (M.D.N.C. 1992), aff’d, 986 F.2d 1414 (4th Cir. 1993).

[32] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=Thomas+Farr (last visited Aug. 17, 2017).  

Judge Thomas Marcelle – Nominee to the U.S. District Court for the Northern District of New York

A couple of unsuccessful judicial nominees from the George W. Bush administration have seen new light under President Trump, with mixed degrees of success.  In New York, the Trump Administration has renominated Thomas Marcelle, who saw his previous nomination fail in 2008.

Background

An Albany native, Thomas James Marcelle was born there in 1962.  He received a Bachelor of Arts from Bowdoin College in 1984 and went on to earn his J.D. from Cornell Law School in 1988.[1]  Marcelle then maintained a solo practice in Albany, which continues to this day.[2]

In addition to his solo practice, Marcelle has worked as an Assistant Public Defender (working under Doug Rutnik, the father of Sen. Kirsten Gillibrand), a Trial Attorney for the Department of Justice, and, from 2002 to 2012, as Minority Counsel to the Minority Caucus of the Albany County Legislature.[3]  From 2012 to 2015, Marcelle served as Albany County Attorney, and in 2016, as Chief Counsel for the Albany County Sheriff’s Office.  Since 2016, Marcelle has served as a Judge on the Cohoes City Court.

On July 31, 2008, then President George W. Bush nominated Marcelle to an open seat on the U.S. District Court for the Northern District of New York.  With the nomination coming after the “Thurmond Rule” was initiated, it was not processed by the Democratic Senate and the vacancy was filled by President Obama in 2011 with Judge Mae D’Agostino.

History of the Seat

Marcelle has been nominated to a seat on the U.S. District Court for the Northern District of New York.  This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status.  While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration.  In February 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, Marcelle was interviewed by the White House.[4]  The White House announced Marcelle’s nomination on October 10, 2018.

Legal Experience

While Marcelle has held many different legal positions in his career, his most significant cases have revolved around religious rights.  Notably, the only case that Marcelle argued before the Supreme Court involved religious rights.[5]  In that case, Marcelle represented a Good News Club, which was not permitted to use school facilities because of its inclusion of worship and prayer.[6]  The Supreme Court ultimately sided with Marcelle’s clients on a 6-3 basis.[7]

In other cases, Marcelle represented a kindergartener who sought to pray out loud before meals at her school.[8]  He also sued for the restoration of bricks bearing evangelical messages to a public school.[9] 

Jurisprudence

Since 2016, Marcelle serves as a City Court Judge in Cohoes.  In this capacity, Marcelle presides over small civil cases and criminal misdemeanors.  In the last two years, Marcelle has presided over approximately 200 bench trials.[10]  Among his more notable cases, Marcelle found that a defendant who struck and killed a sixteen-year-old girl was Not Guilty of violating the traffic codes for driving at an unreasonable or unsafe speed, as he was traveling at 53 mph in a 40 mph zone.[11]

Political Activity

Marcelle, a Republican, has been very politically active including running for office (unsuccessfully) twice, and successfully once (for the Bethlehem Town Council).[12]  Marcelle has also served on the Albany County Republican Committee between 1993 and 2011.[13]

In addition, Marcelle has been a member of the Federalist Society for Law and Public Policy Studies since 1990 and has worked as an Allied Attorney Coordinator for Alliance Defending Freedom, a conservative Christian nonprofit which has been designated as a hate group by the Southern Poverty Law Center for their work defending state sanctioned sterilization of transgender individuals abroad.

Overall Assessment

On paper, Marcelle’s nomination should be set for a comfortable confirmation.  Unlike in 2008, Republicans control the U.S. Senate, and, despite his strongly conservative record, it appears that New York’s Democratic senators have signed off on Marcelle’s nomination.[14]  However, perhaps in response to the Trump’s Administration decision to move Second Circuit nominees over the objections of Sens. Schumer & Gillibrand, Marcelle’s nomination has yet to receive a hearing.  It is possible that the Senators and the Administration will reach an agreement to fill the remaining New York vacancies.  Until then, it remains to be seen if Marcelle’s second nomination will be any more successful than his first.


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

[2] Id. at 2.

[3] Id.

[4] Id. at 48.

[5] See Good News Club v. Milford Central School, 533 U.S. 98 (20010.

[6] See Shannon McCaffrey, Justices Debate Church-State Case, Associated Press Online, Feb. 28, 2001.

[7] Good News Club, 533 U.S. at 98.

[8] SARATOGA SPRINGS, Judge Orders School to Allow Kindergartener to Say Grace, A.P. State & Local Wire, Feb. 6, 2002.

[9] Michael Virtanen, Judge Orders School District to Replace Bricks That Mention Jesus, A.P. State & Local Wire, Apr. 4, 2006.

[10] See Marcelle, supra n. 1 at 21.

[11] See People v. Lamb, 72 N.Y.S.3d 799 (Cohoes City Ct. 2018).

[12] See Marcelle, supra n. 1 at 33-34.

[13] See id. at 34.

[14] See Robert Gavin, Marcelle Seen in Line for Federal Judgeship, Albany Times Union, May 4, 2018, https://www.timesunion.com/local/article/Marcelle-seen-in-line-for-federal-judgeship-12889507.php.  

To Renominate or Not to Renominate: A Question For Any Incoming President

At the end of 2020, as the 116th Congress came to an end, it sent back around thirty judicial nominations unconfirmed to President Trump.  Now, as the Biden Administration prepares to take office, it faces a critical question: how many of them, if any, should they renominate to the federal bench.

This is a question facing every incoming Administration, as the old one almost inevitably leaves some judicial nominees unconfirmed.  While putting forward nominees from the prior administration can help with judicial dealmaking and efficiency, it also risks upsetting the President’s base.  So far, no Administration has chosen to renominate all of their predecessor’s pending judges, instead making that determination on an ad hoc basis.

Johnson to Nixon

At the end of the Johnson Administration, for example, two Supreme Court nominees (Abe Fortas to be Chief Justice; and Homer Thornberry to be Associate Justice); one circuit court nominee (Barefoot Sanders for the D.C. Circuit); and three district court nominees (David Bress to District Court for the District of Columbia; Cecil Poole to the Northern District of California; William Byrne to the Central District of California) were left unconfirmed.  President Nixon chose not to renominate any of the Johnson holdovers at the outset of his Administration, instead picking the following:

  • Judge Warren Burger to be Chief Justice of the Supreme Court
  • George MacKinnon to the D.C. Circuit
  • Barrington Daniels Parker to the District Court for D.C.
  • Judge Gerald Levin to the Northern District of California
  • Judge David Williams to the Central District of California

However, in 1971, Nixon did choose to nominate Byrne to a different seat on the Central District of California, where he served until his death in 2006.

Ford to Carter

For his part, after the resignation of Nixon, President Ford largely maintained the same nominees.  However, after his own loss in 1976, Ford had two appellate nominees and eight district court nominees pending before the U.S. Senate.  President Carter chose not to renominate any of the ten.  However, he did later nominate Richard Bilby, who Ford had unsuccessfully put up for a Ninth Circuit seat, for the District of Arizona, where he served until his death in 1998.

Carter to Reagan

At the end of the Carter Administration, the Senate left four appellate nominees and twelve district court nominees pending.  On January 1, 1981, Carter appointed one of the pending nominees, Judge Walter Heen, to the District of Hawaii using a recess appointment.  For his part, President Reagan declined to renominate Heen, letting his appointment expire at the end of the year.  He did, however, renominate two other judges:

  • I. Leo Glasser for the Eastern District of New York
  • John Sprizzo for the Southern District of New York

Reagan to Bush

Perhaps because it was a transition between two Presidents of the same party, President George H.W. Bush was more open to renominating his predecessor’s nominees.  At the end of his term, President Reagan left seven appellate nominees pending:

  • Judith Richards Hope for the D.C. Circuit
  • Stuart Summit for the Second Circuit
  • Jacques Wiener for the Fifth Circuit
  • Ferdinand Francis Fernandez for the Ninth Circuit
  • Pamela Rymer for the Ninth Circuit
  • Guy Hurlbutt for the Ninth Circuit
  • Susan Leibeler for the Federal Circuit

Bush chose to renominate three of the seven (Wiener; Fernandez; and Rymer), who were all confirmed.  To fill the other seats, Bush chose Clarence Thomas, John Walker, Thomas Nelson, and Jay Plager respectively.

Reagan also left ten district court nominees pending:

  • Howard Levitt for the Eastern District of New York
  • James McGregor for the Western District of Pennsylvania
  • Adriane Dudley for the Virgin Islands
  • Marvin Garbis for the District of Maryland
  • Shannon Mason for the Eastern District of Virginia
  • Melinda Harmon for the Southern District of Texas
  • Robert Bonner for the Central District of California
  • Vaughn Walker for the Northern District of California
  • William Erickson for the District of Colorado
  • Donald Abram for the District of Colorado

Of those ten, Bush chose to renominate five (Garbis; Dudley; Harmon; Bonner; Walker).  All of them except for Dudley were confirmed.   For the other seats, Bush nominated the following:

  • Carol Amon for the Eastern District of New York
  • Donald Lee for the Western District of Pennsylvania
  • Rebecca Beach Smith for the Eastern District of Virginia
  • Daniel Sparr for the District of Colorado
  • Edward Nottingham for the District o Colorado

Bush also chose to renominate McGregor to a different seat on the Western District of Pennsylvania in 1990, where he was ultimately blocked by conservative opposition.

Bush to Clinton

At the conclusion of the Bush Administration, ten appellate nominees and forty two district court nominees were left unconfirmed, a significantly higher number than previous Administrations.  Of these fifty two nominees, President Clinton renominated none of the appellate nominees and just two of the district court nominees.

  • David Trager for the Eastern District of New York
  • Joanna Seybert for the Eastern District of New York

However, later in the Administration, Clinton nominated an additional two nominees from the leftover list to different seats.

  • George O’Toole for the District of Massachusetts
  • Richard Casey for the Southern District of New York

Of the remaining forty eight nominees not renominated under Clinton, thirteen were renominated for federal judgeships by President George W. Bush.

  • John Roberts for the D.C. Circuit (subsequently elevated to the Supreme Court)
  • Franklin Van Antwerpen for the Third Circuit
  • Jay Waldman for the Third Circuit (passed away before the Senate could act on the nomination)
  • Terrence Boyle for the Fourth Circuit (never confirmed)
  • Carlos Bea for the Ninth Circuit (Bea had been unsuccessfully nominated to the Northern District of California by H.W. Bush)
  • William Quarles for the District of Maryland
  • Leonard Davis for the Eastern District of Texas
  • Andrew Hanen for the Southern District of Texas
  • Percy Anderson for the Central District of California
  • John Walter for the Central District of California
  • Larry Hicks for the District of Nevada
  • Ronald Leighton for the Western District of Washington
  • James Payne for the Northern District of Oklahoma (jointly with the Eastern and Western Districts)

Clinton to Bush

Similar to George H.W. Bush before him, President Clinton faced an opposition Senate through his final term, and thus, a number of his appellate and district court nominees were left unconfirmed at the end of his term.  Specifically, the Senate did not process seventeen appellate nominees and twenty four district court nominees before the end of the 106th Congress.  In response, President Clinton appointed one of his appellate nominees, Roger Gregory to the Fourth Circuit in a recess appointment.

For his part, George W. Bush renominated three of Clinton’s appointments.  Specifically, Bush renominated:

  • Judge Roger Gregory for the Fourth Circuit
  • Judge Legrome Davis for the Eastern District of Pennsylvania
  • Judge David Cercone for the Western District of Pennsylvania

Additionally, later in his tenure, President Bush renominated an additional two stalled Clinton appellate nominees as part of an agreement with Democrats:

  • Judge Helene White for the Sixth Circuit
  • Judge Christine Arguello for the Tenth Circuit (nominated to the District of Colorado)

Bush to Obama

At the end of the Bush Administration, the Senate left ten appellate and twenty district court nominees unconfirmed.  Of the thirty pending nominees, President Obama renominated just one: Marco Hernandez for the District of Oregon.

However, later in his Administration, Obama nominated another two of the stalled Bush nominees to the federal bench:

  • Judge John Tharp for the Northern District of Illinois
  • William Jung for the Middle District of Florida (never confirmed)

Incidentally, Obama also renominated three stalled Clinton appointees:

  • Judge Andre Davis for the Fourth Circuit
  • Judge James Wynn for the Fourth Circuit
  • Judge Dolly Gee for the Central District of California

Obama to Trump

Due to a dramatic slowdown of confirmations in the last two years of his Presidency, President Obama saw 59 judicial nominees left pending before the Senate, more than any other President in recent history.  This list included one nominee to the U.S. Supreme Court, seven to the courts of appeal, and forty four nominees to the district courts.

Over the course of his term, President Trump renominated sixteen of these nominees, more than any other president in the last fifty years.  Specifically, he renominated:

  • Judge Mary McElroy for the District of Rhode Island
  • Judge Gary Brown for the Eastern District of New York
  • Diane Gujarati for the Eastern District of New York
  • Judge John Milton Younge for the Eastern District of Pennsylvania
  • Judge Susan Paradise Baxter for the Western District of Pennsylvania
  • Judge Marilyn Horan for the Western District of Pennsylvania
  • Judge Robert Colville for the Western District of Pennsylvania
  • Judge Stephanie Gallagher for the District of Maryland
  • Donald Coggins for the District of South Carolina
  • Karen Gren Scholer for the Northern District of Texas (previously nominated to the Eastern District)
  • James Hendrix for the Northern District of Texas
  • Walter Counts for the Western District of Texas
  • David Nye for the District of Idaho
  • Kathleen O’Sullivan for the Western District of Washington (announced but withdrawn before confirmation)
  • Scott Palk for the Western District of Oklahoma
  • William Jung for the Middle District of Florida

Trump also renominated four nominees who stalled under President Bush (not including Jung who is accounted for above).

  • Thomas Marcelle for the Northern District of New York (never confirmed)
  • Colm Connolly for the District of Delaware
  • Thomas Farr for the Eastern District of North Carolina (never confirmed)
  • David Novak for the Eastern District of Virginia

Trump to Biden

President Trump leaves office with twenty six unconfirmed judicial nominees, including one appellate nominee (Judge Raul Arias-Marxuach to the First Circuit); and 21 district court nominees.  These nominees are largely focused on two states: New York, which has six pending nominees; and California, which has ten.  Outside those two states, the remaining five unconfirmed district court picks are:

  • Judge Barbara Jongbloed for the District of Connecticut
  • Jennifer Togliatti for the District of Nevada
  • Fred Federici for the District of New Mexico
  • Brenda Saiz for the District of New Mexico
  • Edmund LaCour for the Middle District of Alabama

Of those five, three: Federici, Saiz, and LaCour, were blocked by Democratic home state senators, and, as such, would be unlikely to be renominated in a Biden Administration.  Jongbloed is a Democrat chosen by Senators Blumenthal and Murphy who cleared the Judiciary Committee unanimously before stalling on the floor.  However, she’s also 61 years old and relatively middle-of-the-road.  Without a Republican Administration, it is more likely that the Senators push for a younger candidate rather than seeking to renominate Jongbloed.  This leaves Togliatti as the most likely contender in this group for renomination.

In addition, the New York and California groups are packages that include a number of Democrats, who could all potentially be renominated.  This includes:

  • Jennifer Rearden for the Southern District of New York
  • Hector Gonzalez for the Eastern District of New York
  • Judge Steve Kim for the Central District of California
  • Judge Sandy Leal for the Central District of California
  • Knut Johnson for the Southern District of California
  • Shireen Matthews for the Southern District of California

In addition, Biden may look to the thirty five Obama nominees who were not renominated by Trump.  Of those, many are likely too old to be considered for nomination today, but the following could be considered for current vacancies:

  • Inga Bernstein for the District of Massachusetts (Bernstein turns 60 this year so she may be passed over for a younger candidate)
  • Julien Neals for the District of New Jersey (will almost certainly be renominated)
  • Anne Traum for the District of Nevada (will likely be renominated)
  • Beth Andrus, Kathleen O’Sullivan, and J. Michael Diaz for the Western District of Washington (will likely be renominated)
  • Regina Rodriguez for the District of Colorado

Additionally, the following could be considered for renomination if vacancies open:

  • Rebecca Ross Haywood for the Third Circuit
  • Judge Lucy Koh for the Ninth Circuit or the Federal Circuit
  • Stephanie Finley for the Western District of Louisiana
  • Judge E. Scott Frost for the Northern District of Texas
  • Judge Irma Ramirez for the Northern District of Texas
  • Edward Stanton for the Western District of Tennessee
  • Clare Connors for the District of Hawaii
  • Judge Suzanne Mitchell for the Western District of Oklahoma
  • Judge Patricia Barksdale for the Middle District of Florida
  • Judge Philip Lammens for the Northern or the Middle Districts of Florida

As a bottom line, every President since Nixon has renominated at least one of their predecessor’s failed nominees for the federal bench.  As such, it would not be surprising to see at least a few unconfirmed nominees from the past two Administrations put forward again by President Biden.

Prof. Richard Myers – Nominee to the U.S. District Court for the Eastern District of North Carolina

The U.S. District Court for the Eastern District of North Carolina is home to one of the longest vacancies in the country, having opened in December of 2005.  Since then, conflicts between senators and the White House have kept this seat vacant through four presidential terms.  Now, Richard Myers, a professor with the University of North Carolina, is the fifth nominee to fill this vacancy.

Background

Richard Earnest Myers was born in Kingston, Jamaica, and grew up in Wilmington, NC.[1]  Myers attended the University of North Carolina at Wilmington and then became a reporter with the Star-News in Wilmington.  In 1995, Myers joined the University of North Carolina School of Law, graduating with high honors in 1998.  

After graduating, Myers clerked for Judge David Sentelle (a North Carolina native) with the U.S. Court of Appeals for the D.C. Circuit and then became an Associate with O’Melveny & Myers in Los Angeles.  In 2002, Myers became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California and later with the U.S. Attorney’s Office for the Eastern District of North Carolina.

In 2004, Myers joined the faculty of the University of North Carolina Law School, where he is currently a professor.

History of the Seat

Myers has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  In 2006, President George W. Bush nominated Thomas Farr, but, Farr’s nomination stalled after Democrats took control of the Senate after the 2006 elections.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[2]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[3]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[4]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[5]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[6]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[7]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[8] this time with the support of Burr and Senator Thom Tillis (R-NC).[9]  However, Farr’s nomination stalled on the Senate floor and was withdrawn due to lack of majority support when Republican Senators Tim Scott and Jeff Flake expressed their opposition based on Farr’s work with Sen. Jesse Helms at the time when the Senator worked to suppress African American votes in North Carolina.[10]  After Republicans picked up two seats in the 2018 Senate elections and Flake left the chamber, conservatives pushed to renominate Farr.[11]  However, Scott maintained his opposition and the White House decided not to move forward, instead choosing Myers.

Legal Experience

Before becoming a law professor, Myers has primarily worked in two legal positions: the first is as an Associate with O’Melveny & Myers; the second is as a federal prosecutor in two districts, the Central District of California and the Eastern District of North Carolina.  At O’Melveny, Myers worked in the White Collar Criminal Law and Environmental and Regulatory Compliance Practice Group.  At the firm, Myers most notably represented Wen Ho Lee, the Los Alamos scientist charged with stealing government secrets.[12]

Writings

As an academic, Myers has written extensively on the law, particularly focusing on criminal law and procedure, which is his area of expertise.

Prosecutorial Power

Myers has been particularly vocal on the growing power of prosecutors in the criminal justice system, speaking on the subject frequently in media.[13]  Myers has noted that this concentration of power can mean that the criminal justice system can be “held hostage” by rogue prosecutors.[14]  Myers’ work on this regard has been cited by African American journalist and author Ta-Nehisi Coates.[15] 

On a similar note, Myers has also criticized the American criminal justice system for making it difficult to “expand liberty” by repealing unjust or outdated criminal laws and penalties.[16]  Instead, Myers suggests that a constitutional amendment be passed that sunsets all criminal laws to expire after a period of twenty-five years unless renewed.[17]  Myers suggests that the proposed amendment would better reflect changes in society and would create a “pro-liberty bias” within criminal law.[18]

Fourth Amendment and the Exclusionary Rule

Myers has also written extensively on the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable searches and seizures.  In particular, Myers is a critic of the “exclusionary rule,” which requires that any evidence obtained through an illegal search be excluded from a criminal prosecution.  In one paper, Myers writes that the exclusionary rule only comes into play when evidence is found through the illegal searches, thus, ensuring that judges see only “guilty people trying to enforce their rights.”[19] 

Instead, Myers advocates for a separate court that oversees the executive branch’s searches and hears from victims of illegal searches who are both innocent and guilty of the underlying offenses.[20]  Myers notes:

“We need a new range of remedies because, to an important segment of the populace, the exclusionary rule clearly benefits the guilty, while providing such an attenuated benefit to the innocent in the form of deterrence that it extracts a high price from the system in terms of perceived legitimacy.”[21]

Political Activity

Myers is a Republican, and a member of the Federalist Society and the National Rifle Association.  However, his only political contribution of record was a $250 contribution in 2016 to Rep. George Holding.[22] 

Overall Assessment

Given how long this seat has sat vacant, and the number of nominees who have fallen by the wayside in the attempt to fill it, one can start to wonder if this seat is cursed.  However, if there is a nominee primed to end this “curse,” it is Myers.  Not only does Myers, as a African American attorney, not attract the same degree of opposition that Farr did, but his record should win him bipartisan approval.  In fact, Myers’ criminal justice jurisprudence largely accords with that of many liberals in its criticism of prosecutorial power and overcriminalization.

This is not to say that Myers will be a liberal on the bench.  He will likely be a conservative voice.  However, his criminal justice jurisprudence may well end up surprising many who thought they could pigeonhole the nominee, and despite being a former prosecutor, defense attorneys may well have a friend in Myers.


[1] AP, Trump Nominates Law Professor for Judicial Vacancy, Associated Press, Aug. 15, 2019, https://www.apnews.com/858d3a46c016451cad351b24eb1cc292.  

[2] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[3] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[4] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[5] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[6] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[7] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[8] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Press Release, Burr and Tillis Welcome Nomination of Thomas Myers as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[10] Marianne Levine and Burgess Everett, Tim Scott Sinks Trump Judicial Nominee, Politico, Nov. 29, 2018, https://www.politico.com/story/2018/11/29/senate-confirms-farr-judicial-nominee-1027236.  

[11] Emma Dumain, SC’s Tim Scott Still Opposes Thomas Farr, Has Sharp Words for Conservative Critics, McClatchy DC, Jan. 30, 2019, https://www.mcclatchydc.com/news/politics-government/congress/article225279815.html.  

[12] James Sterngold, Lee’s Dream Team High on Case, Low on Compensation; The Lawyers, Largely Unpaid, Say They’ve Become Fond of Los Alamos Scientist, Contra Costa Times, Sept. 11, 2000.

[13] See, e.g., Richard A. Oppel, Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. Times, Sept. 26, 2011.

[14] See id. (quoting Richard E. Myers).

[15] See Ta-Nehisi Coates, The Collapse of American Criminal Justice, Atlantic Online, Sept. 26, 2011.

[16] Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. Rev. 1327 (Nov. 2008).

[17] See id. at 1361-62.

[18] Id. at 1380.

[19] Richard E. Myers II, “The Exclusionary Rule: Is it On Its Way Out? Should It Be?”, 10 Ohio St. J. Crim. L. 571, 577 (Spring 2013).

[20] Id. at 578.

[21] Id. at 585.

[22] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=richard+myers&cycle=&state=NC&zip=&employ=&cand= (last visited Sept. 27, 2017).  

Judging the 2020 Contenders – The Others

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

We previously looked at the 2020 candidates who have experience as governors and as senators.  Today we look at those who do not fall into either camp.  Obviously, it is difficult to build up a record on judicial matters if you have neither appointed judges nor voted on them.  Nevertheless, we look at the remaining contenders and their public stances (if any) on judicial matters.  Most, if not all, of the contenders in this category have not spoken out on judges and have a thin record on this front.

Stacey Abrams

Abrams, a Georgia state legislative leader who narrowly lost the 2018 gubernatorial election in the state, is, funnily enough, the sister of a federal judge, Judge Leslie Abrams of the U.S. District Court of the Middle District of Georgia.  Regarding other nominations, Abrams came out against the nomination of Thomas Farr in December, which ultimately fell short of a vote.

Michael Bloomberg

Former New York City mayor Michael Bloomberg is currently planning a run for President in 2020, either as a Democrat or as an Independent.  Unlike other candidates in this category, Bloomberg had the opportunity to appoint judges, namely, municipal judges to the New York City Criminal Court, Civil Court and the Family Court.  However, Bloomberg’s appointments to these courts have made few waves and do not reveal much about his judicial views.

Outside of his role as mayor, Bloomberg is primarily known for his advocacy on gun control, as well as his support for the New York stop and frisk policy.

Pete Buttigieg

South Bend Mayor Pete Buttigieg is the youngest candidate in the 2020 Presidential race, and is the only openly gay candidate.  However, Buttigieg’s largely local pedigree has left him little room to develop positions on judicial issues, and he has been silent on such issues since announcing.

Julian Castro

Julian Castro is the only Hispanic candidate who has currently announced a bid for President, and, with experience leading San Antonio, one of the Nation’s largest cities, and heading the Department of Housing and Urban Development, he has the experience in an executive role.

That being said, Castro has been virtually invisible on the issue of judges, with virtually no formal statements on the issue.

John Delaney

Former Maryland Congressman John Delaney was the first major Democrat to announce for the 2020 Presidential camapign.  Despite fairly detailed positions on many major issues, Delaney has largely been silent on judicial issues, with no mention of judicial nominations on his campaign site.

Tulsi Gabbard

Hawaii Congresswoman Tulsi Gabbard is, perhaps, one of the most polarizing candidates in the 2020 race. On one side, Gabbard is a member of the Congressional Progressive Caucus and was one of the strongest supporters for Sen. Bernie Sanders’ presidential campaign in 2016.  On the other, she has been criticized for her lack of support on LGBT issues, and her demagoguery on such issues in the past.

Particularly notoriously, Gabbard wrote an op-ed criticizing Democratic Senators (including fellow Presidential candidate Kamala Harris) for probing judicial nominee Brian Buescher over his membership in the Knights of Columbus, arguing that their questions constituted religious bias.  While Gabbard did note that she herself opposed Buscher’s nomination, her position nonetheless brought pushback from fellow Hawaii Democrats.

Richard Ojeda

The former West Virginia State Senator and unsuccessful Congressional candidate does not have a section on judges on his Presidential campaign website.

Beto O’Rourke

Former Congressman Beto O’Rourke ran a surprisingly strong Senate campaign in 2018, falling just narrowly short of Sen. Ted Cruz despite running in strongly Republican Texas.  During the campaign, O’Rourke opined on the pending Kavanaugh nomination, wishing that there had been more focus on Kavanaugh’s judicial positions during the confirmation battle.  O’Rourke has said little about Trump’s other judicial nominations, however, including many appointed to Texas courts.  Interestingly, O’Rourke’s strong campaign nonetheless propelled many Texas judicial candidates to victory, flipping many courts across the state to Democrats.

Tim Ryan

Ohio Rep. Tim Ryan has been planning a run for President since mid-2018, even as he led an aborted coup against House Speaker Nancy Pelosi.  While Ryan has made a name for himself as a Pelosi opponent, he has been largely invisible on the issue of judicial nominations, although he did issue a statement opposing the nomination of Brett Kavanaugh.

Eric Swalwell

Swalwell has served in the U.S. House since his election in 2012 and currently serves on the House Judiciary Committee (which, unlike its senate counterpart, has no role in judicial confirmations).  In 2018, Swalwell came out strongly against the nomination of Brett Kavanaugh to serve on the Supreme Court.

The Nominees Left Out

Updated on January 23, 2019 at 3:24 PM

When the 115th Congress adjourned, it sent 73 judicial nominees back to the President.  Yesterday, President Trump announced his intention to renominate 50 of them (as well as one nominee to the U.S. Court of Military Commission Review).  This leaves 23 nominees not on the initial list and still in limbo.  Zoe Tillman at Buzzfeed has a great rundown of the nominees sent back to the Senate.  Today, we look at the 23 who were not.

Out of the 23, 16 come from just three states: New York; California; and Illinois.  Each of these states has two Democratic Senators, and, more importantly, Senators with prominent positions in the Democratic Party.  As such, one could argue that the blocking of these renominations are intended to add pressure to Democrats during the government shutdown.  However, I would argue that the truth is more complicated.

Let’s start with California, which has two senators, Sen. Dianne Feinstein and Sen. Kamala Harris, on the Senate Judiciary Committee.  Both were strong opponents of Justice Brett Kavanaugh.  There were six California nominees pending that were not renominated: Patrick Bumatay, Dan Collins, and Kenneth Lee to the Ninth Circuit; and Stanley Blumenfeld, Jeremy Rosen, and  Mark Scarsi for the Central District of California.  This batch was submitted relatively late in 2018, and did not have the support of California’s home-state senators.  Since that point, White House Counsel Don McGahn has departed and has been replaced with Pat Cippolone, and, by all accounts, negotiations between the White House and California senators are back on.  As such, not renominating the California nominees can be seen as an optimistic sign.  Of course, some, if not all, of the six will ultimately make it to the bench, either as part of a package, or, if negotiations fail, individually.

The situation in New York is more complicated.  New York Senator Chuck Schumer leads the Senate Democratic Caucus and Senator Kirsten Gillibrand has presidential ambitions.  Nevertheless, they managed to work with the White House to put together a seven-judge package of nominees last year.  These nominees, including three Democrats and four Republicans, have not been renominated.  At the same time, the White House has renominated four other New York nominees: Judge Joseph Bianco and Michael Park for the Second Circuit; Thomas Marcelle for the Northern District of New York, and Philip Halpern for the Southern District of New York.  It is unclear why the White House has declined to put forward a group of nominees who were passed out of the Judiciary Committee with bipartisan support, although one can speculate that it is intended as a slight to Schumer.

Finally, we come to perhaps the most surprising omission, Illinois.  Illinois Sens. Dick Durbin and Tammy Duckworth established a productive relationship with the White House on judicial nominations, resulting in the smooth confirmations of Michael Scudder and Judge Amy St. Eve to the Seventh Circuit (the only appellate nominations during the Trump Administration to receive unanimous support).  They also put together a package of three district court nominees: conservatives Martha Pacold and Steven Seeger; and liberal Mary Rowland.  None of the three have been renominated.  Of course, given the number of vacancies on the federal bench in Illinois, it is possible that the three will be wrapped into a larger package of nominees.

Stepping away from these three states, you have an additional seven who have not been renominated.  Two of these, Mary McElroy of Rhode Island and Judge Stephanie Gallagher of Maryland, were nominees originally chosen by President Obama and renominated by President Trump with Democratic support.  I think the Administration is hoping, supported by a new Judiciary Chair, to renegotiate these picks and try to find nominees with more conservative records.  (The Trump Administration did renominate Judge John Milton Younge so it’s not that all Democratic picks were left off the list)

The remaining five are nominees who would likely face a difficult journey to confirmation.  This includes Jon Katchen, who withdrew his nomination late last year in the face of strong opposition from the Alaska Bar, Gordon Giampietro, who has been blue-slipped by Sen. Tammy Baldwin, and Thomas Farr, whose expected confirmation fizzled last year after opposition from Sen. Tim Scott.  Farr is perhaps the most notable of the three, as Sen. Thom Tillis has still been advocating for his renomination.  Regardless, withdrawing Farr is a no-brainer for the White House.  The sixty-four year old nominee can easily be replaced with a judge just as conservative and two decades younger.

The last two are the most interesting and surprising.  FTC Commissioner Maureen Ohlhausen was not renominated to the Court of Federal Claims.  While Ohlhausen did face strong Democratic opposition from the Senate Judiciary Committee, so did fellow nominee Ryan Holte (Holte was renominated).  As such, I’m inclined to think that Ohlhausen may have asked for her nomination to be withdrawn.   Finally, there is John O’Connor, nominated to a district court seat in Oklahoma.  O’Connor was rated Unqualified by a unanimous panel of the American Bar Association, who cited his lackluster legal career, and noted ethical issues.  It is hard to believe that the ABA rating was the sole factor in blocking O’Connor given that other nominees have soldiered on past such a rating and been confirmed.  Given that the allegations against O’Connor were presumably examined during the White House vetting process, the lack of a renomination is surprising.

Overall, some, if not all, of these 23 picks, could still be renominated.  However, their exclusion from the initial list clearly makes a point: the Administration is continuing to move deliberately with regard to judicial nominations, and the area is still a priority for them.  As such, we’re in for an interesting Congress.

Judicial Nominations 2018 – Year in Review

2018 is at an end.  One of the most active years in judicial nominations in recent memory ended with a whimper, as a singular blockade by outgoing Sen. Jeff Flake delayed all judicial confirmations.  As we look forward to the new Congress in 2019, it’s worth looking back at the previous year to see how the judicial landscape has evolved.

Nominations and Confirmations

This year, the Senate confirmed one supreme court justice, 18 appellate judges and 47 district court judges.  Adding in the one supreme court, 12 appellate, and six district court judges confirmed in 2017, the 115th Congress has racked up a total of 85 Article III judicial confirmations.  In comparison, President Obama saw 60 confirmations in his first Congress, President Bush saw 100, and President Clinton saw 126.

While an overall look at confirmations doesn’t look very impressive, where this Administration stands out is in appellate confirmations.  So far, Trump has seen 30 appellate confirmations.  In comparison, Clinton and Obama took their entire first terms to have 30 appellate judges confirmed, and President Bush took until December of his third year to reach his 30th confirmation.  Plus, with another 15 appellate vacancies still pending, Trump looks likely to cross 40 or even 50 appellate confirmations before the end of his first term.  Particularly impressively, only two of the current pending vacancies are still waiting on nominees, one of which opened just last month.

Failed Nominations

That being said, the Trump Administration has also seen an unusually large number of failed nominees.  In the past two years, the Trump Administration has seen seven nominees withdrawn or stalled due to lack of majority support: Ninth Circuit nominee Ryan Bounds; district nominees Brett Talley, Jeff Mateer, Matthew Petersen, Thomas Farr; and Court of Federal Claims nominees Damien Schiff and Steven Schwartz (I’m not including nominees who had home state senatorial trouble such as Jon Katchen or Gordon Giempietro).  This is particularly remarkable because the Trump Administration was facing a Senate controlled by his own party and unencumbered by the filibuster.

Another way to look at it is that the Trump Administration essentially faced at least 2 negative votes on each of the above nominees.  In comparison, throughout the entire Obama Administration, only 15 nominees drew even a single negative vote from Democrats, and only six drew 2 or more: appellate nominees Cornelia Pillard and Pamela Harris and district judges Gerald McHugh, Edward Smith, Victor Bolden, and Joseph Leeson (Smith and Leeson drew opposition from the left).  The entire Bush Administration saw just six nominees draw same party opposition: Justice Sam Alito; appellate judges Roger Gregory, Priscilla Owen, and Helene White; and district judges J. Leon Holmes and Janet Neff (three of those judges were Democrats).  The Clinton Administration saw just one nominee attract same party opposition: Judge Brian Stewart (a Republican named upon the insistence of Sen. Orrin Hatch).  In other words, in two years, the Trump Administration has drawn at least two Republican no votes on more nominees than the Clinton and Bush Administrations combined and more than the Obama Administration drew in its entire tenure.

A Vacancy Crisis?

One of the most forgotten parts of the judicial confirmation news cycle is the sheer number of judicial vacancies currently pending.  As of December 31, 2018, 144 of the 890 Article I and Article III judgeships are vacant, approximately one in six.  In comparison, approximately 10% of judgeships were vacant in 2016 when the Washington Post reported on the alarming judicial vacancy rate.  As such, objectively, our federal courts are overstretched.

That being said, not all judicial vacancies are created equal.  The Trump Administration and the Republican Senate have focused their attention on filling vacancies on the court of appeals, frequently replacing judges who have not yet left their seats.  However, the court of appeals are not where the judges are most needed.  Rather, it is trial level courts that are stretched particularly thin.  For example, five out of twelve judgeships on the Northern District of Texas are currently vacant with only one nominee pending.  Similarly, the Central District of California currently has a quarter of its 28 judgeships open, while the Southern District of California is expecting its fifth vacancy (out of 13 judgeships) to open next year.  The situation in the District of North Dakota is even more dire, with the only judge on the court scheduled to retire next year, and no nominees pending to either of the two pending vacancies.

Perhaps nowhere is the vacancy crisis more apparent than in the Court of Federal Claims.  This specialized court has a limited docket and non-lifetime appointments, an ideal venue for bipartisan agreements on nominees.  However, the Court currently has less than 1/3 occupancy, with only five out of sixteen judgeships filled.  Much of the blame for this can go to Sen. Tom Cotton, who singlehandedly blocked five uncontroversial Obama nominees to this court during the 114th Congress.  However, even since that point, the court hasn’t seen a single confirmation even as vacancies continue to pile up.  Additionally, rather than choosing uncontroversial nominees, the Trump Administration has chosen lawyers with political backgrounds or little experience practicing before the specialized court, leaving little room for bipartisan agreement.

As such, despite remarkable success on the confirmation front, the Trump Administration has barely made a dent in reducing judicial vacancies as a whole.

Demographics of Confirmed Nominees

Let’s take a look at demographics of the 85 confirmed Trump appointees.

Age

I noted last year that, despite press reporting on the supposed youth of Trump nominees, they are largely similar in age to those of previous presidents.  With a larger pool of nominees to look at now, that conclusion largely holds up.  The average birth year of Trump’s judicial nominees is 1967, making their average age 51 years, fairly comparable to the average birth years of the previous few presidents.  Additionally, Trump’s appellate judges, also alleged to be significantly younger than those of previous presidents, come out to an average age of 50, hardly unusual.

The oldest Trump appointee tapped for the federal bench is Judge Mark Bennett, who was nominated and confirmed to the 9th Circuit at age 65.  The youngest is Judge Holly Lou Teeter on the U.S. District Court for the District of Kansas, who is just 39 years old.

Race

As noted earlier, the vast majority of Trump’s appointees are white.  Only seven of the 85 judges confirmed this Congress were non-white: five Asian; one Hispanic; and one African American judge respectively.

Gender

This blog has previously criticized the gender diversity (or lack thereof) of Trump appointees.  Unfortunately, the situation has not improved.  Only 20 of the 85 confirmed judges are female.  The numbers are even worse among appellate nominees, where only 6 out of 30 judges are female.  Both numbers are lower than those seen in the last three presidents.

What is particularly alarming is that the gender ratio on the federal judiciary, which significantly narrowed under President Obama, is now backsliding.  Over the last two years, 29 female federal judges have left active status, meaning that there are now nine fewer female judges on the federal bench than there were when Trump took office.

Looking Ahead

When the Senate recessed, it left 73 judicial nominees unconfirmed.  Most, if not all, of these nominees will be renominated in January, giving the Senate a significant number of nominees to work through.  As such, many of the nomination fights that were deferred from this year will take place next year, this time, with Republicans having a slightly wider majority on judge votes.  As such, it is likely that many controversial picks who were not confirmed this year will be approved next year, including Matthew Kacsmaryk and Howard Nielson.

However, with incoming Senate Judiciary Committee Chairman Lindsay Graham announcing his intent to continue the blue slip policy of his predecessor, the White House cannot push through its picks for district court vacancies.  As such, achieving a meaningful reduction in the number of judicial vacancies will require cooperation between the White House and senators of both parties to select judges everyone can get behind.  We can only hope that such cooperation occurs and produces mainstream judges committed to the rule of law.

Ten Upcoming Judicial Nomination Battles

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court.  His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low.  Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation.  Instead, it has returned to a familiar front: lower court nominations.  With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming.  Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight.  (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

10. Cam Barker – Eastern District of Texas

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas.  As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts.  In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans.  Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.”  Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

9. Stephen Clark – Eastern District of Missouri 

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri.  Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage.  For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill.  Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed.  His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

8. Justice Patrick Wyrick – Western District of Oklahoma

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist.  Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt.  His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General.  Specifically, two incidents have been raised.  First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction.  Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence.  Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt.  The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

7. Mark Norris – Western District of Tennessee

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate.  His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017.  Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate.  In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state.  For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

6. Wendy Vitter – Eastern District of Louisiana

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana.  Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified).  Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

5. Howard Nielson – District of Utah

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C.  Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee.  Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush.  Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture.  In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded.  Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry.  In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

4. Ryan Nelson – Ninth Circuit

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit.  Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot.  The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

3. Matthew Kacsmaryk – Northern District of Texas

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.”  In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools.  In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage.  He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement.  Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

2. David Porter – Third Circuit

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey.  As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor.  In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

1. Thomas Farr – Eastern District of North Carolina

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country.  Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate.  Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.”  At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities.  Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.”  Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted.  (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.)  With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.

 

Kenneth Bell – Nominee to the U.S. District Court for the Western District of North Carolina

Jonas Federal Building (site of the W.D.N.C. Courthouse in Charlotte).

A former Republican candidate for Congress, Ken Bell is Trump’s first nominee for the Western District of North Carolina.  Setting aside Bell’s political history, he is likely to face questions about his support for prosecuting Hillary Clinton in 2016.

Background

Kenneth Davis “Ken” Bell was born in Bedford, OH in 1958.[1]  Bell attended Wake Forest University and Wake Forest University School of Law.  He then joined the U.S. Attorney’s Office for the Western District of North Carolina as an Assistant U.S. Attorney.  He stayed in the office for the next 20 years, except for a 2-year hiatus at Womble Carlyle Sandridge & Rice in Winston-Salem.[2]

In 2003, Bell joined the Charlotte office of Mayer Brown as a Partner.  Three years later, Bell shifted to the Charlotte office of Hunton & Williams.[3]  In 2009, Bell moved again to McGuireWoods LLP in Charlotte, where he continues to work as a Partner.[4]

History of the Seat

Bell has been nominated for the U.S. District Court for the Western District of North Carolina.  This seat opened on August 31, 2017, when Judge Richard Voorhees moved to senior status.  Around the time the vacancy opened, Bell reached out to Sens. Richard Burr and Thom Tillis (R-NC) to interview for the seat.[5]

In November 2017, Bell was recommended to the White House for the vacancy.[6]  On April 12, 2018, Bell was officially nominated for the seat.

Legal Experience

Bell has practiced law for approximately thirty-five years, with that time evenly split between working as a federal prosecutor and in private practice.

Federal Prosecutor

Bell has two stints as a federal prosecutor in the U.S. Attorney’s Office for the Western District of North Carolina, from 1983 to 1988 and from 1990 to 2003.  While Bell has handled many cases as a federal prosecutor, he is perhaps most famous for his prosecution of a Hezbollah cell operating in Charlotte.  His prosecution produced the first trial conviction ever secured under the Material Support statute.  The cell consisted of individuals who would buy cigarettes in North Carolina and resell them illegally in Michigan, passing on to the profits to Hezbollah.[7]  In addition to securing the first trial convictions under the Material Support statute, Bell also secured the first trial convictions for a terrorist cell under the RICO statute.[8]  Bell’s work on the prosecution resulted in him being awarded the Attorney General’s John Marshall Award for Trial of Litigation.[9]

Among other matters, Bell prosecuted drug crimes,[10] voting fraud,[11] counterfeiting,[12] and civil rights violations.[13]

Private Practice

Bell has been in private practice since 2003, shifting between the firms of Mayer Brown, Hunton & Williams, and McGuire Woods in Charlotte.  In each of these positions, Bell worked primarily on defending individuals and corporations charged with white collar crimes.[14]

Notably, Bell was the chief defense counsel to James Black, the Speaker of the North Carolina House of Representatives, who faced federal charges of corruption.[15]  Black was charged, among other counts, with bribing Republican Rep. Michael Decker to switch parties in 2003, allowing Black to remain Speaker despite a narrow Republican majority.  As Black’s defense counsel, Bell negotiated a plea to one charge of receiving illegal gratuities.[16]  More recently, Bell also represented Rep. Robert Pittenger (R-NC) against corruption charges.[17]

Since 2012, Bell has served as a Receiver over the assets of the Rex Venture Group (also known as ZeekRewards), a Ponzi scheme whose closing created over $800 million in losses.[18]  As Receiver, Bell has filed suits against insiders and net winners from the scheme, seeking to recover the contributions put in by those who were defrauded.[19]

Political Activity

In the 1990 election cycle, Bell ran as a Republican for North Carolina’s 5th Congressional District against Democratic Incumbent Stephen Neal.  Bell won the primary against fellow Republican Steve Royal with 51% of the vote.[20]  During the campaign, Bell attacked Neal for his efforts in Congress on behalf of the Savings & Loan Industries.[21]  However, Bell in turn was attacked by Democrats for using $2500 in campaign funds to make mortgage and car payments.[22]  Rep. Beryl Anthony (D-Ark.), the then-Chairman of the Democratic Congressional Campaign Committee (DCCC) called the use of campaign funds “just plain wrong.”[23]  Bell and other Republicans engaged in the practice defended their actions, arguing that the use of campaign funds for personal expenses was legal and helped level the playing field against powerful incumbents.[24][25]  Ultimately, Bell took 41% of the vote in the ultimate election.[26]

Bell has been a frequent donor to Republicans, having given over $10000 over the last twelve years.[27]  Bell has given particularly generously to Burr, who has received over $4000.[28]  Others Bell has donated to include former Rep. Sue Myrick, Sen. Marco Rubio, and presidential candidate Mitt Romney.[29]

Writings

Throughout his legal career, Bell has written and spoken frequently on legal and public policy issues.   Of the many topics that Bell has written on, two are particularly notable.

First, Bell has repeatedly argued for the prosecution of Hillary Clinton for her use of unsecured email servers during her service as Secretary of State.  In a 2015 letter to the editor, Bell argued that Clinton’s use of the email servers violated the law, noting:

“If I had done what Ms. Clinton has done, I would have been prosecuted, and I would have been guilty.”[30]

After then-FBI Director James Comey announced his determination that Clinton had not broken any laws and that no “reasonable prosecutor” would indict her, Bell authored a second article, stating that he could find “an army of reasonable prosecutors” who would have indicted.[31]  In the second article, Bell argues that Clinton’s actions might suggest “disloyalty to the United States,” that Comey “got out of his lane” by recommending no prosecution, and that Attorney General Loretta Lynch was being unreasonable in not bringing charges.[32]

Bell’s article prompted a response from fellow Charlotte attorney David Tinkler, who noted that Clinton had used a secure server to transmit all information that was marked “classified” and that her behavior was no different than that of previous Republican Secretaries of State.[33]

Second, Bell was a strong advocate for the confirmation of Judge Robert Conrad to the U.S. Court of Appeals for the Fourth Circuit.[34]  Conrad was nominated by President George W. Bush in 2007 and blocked by the Democratic Senate due to concerns about his conservative ideology and previous comments opposing Planned Parenthood.[35]  In an interview, Bell described the blockade on Conrad as “embarrassing and outrageous” and urged Democrats to allow a hearing on Conrad.[36]

Overall Assessment

Like his fellow North Carolina nominee Thomas Farr, Bell is likely to face a rocky confirmation process.  In Bell’s case, the trouble is likely to come from his writings, rather than his legal activities.

Bell is likely to face significant pushback over his view that Hillary Clinton should have been charged criminally for her use of personal email servers, a view rejected by legal observers in both parties (albeit embraced by some mainstream voices).  Democrats are unlikely to support a candidate who urged criminal charges against their last presidential nominee.  Additionally, some critics may charge Bell with hypocrisy, noting his use of campaign funds for personal expenses in his 1990 election (conduct that may have been legal at the time, but has more recently been firmly prohibited by the Federal Election Commission).[37]

Additionally, Bell’s strong endorsement of Conrad, a judge himself criticized for his strong statements against Planned Parenthood and the pro-choice movement,[38] is unlikely to endear Bell to Senate Democrats.

In his favor, Bell’s credentials for the bench are unquestionable given his extensive legal experience.  Furthermore, Bell can point to his representation of prominent Democrats such as Black to reinforce his bipartisan credentials.

As a bottom line, Bell is likely to face strong opposition from Senate Democrats.  However, if he can secure the support of all Senate Republicans, he will still be confirmed.  As such, barring another shoe dropping, Bell remains the favorite for confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Bell: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] See id.

[5] See Bell, supra n. 1 at 56.

[6] See id.

[7] See Jeffrey Goldberg, In the Party of God, New Yorker, Oct. 28, 2002, https://www.newyorker.com/magazine/2002/10/28/in-the-party-of-god-2.  

[8] See United States v. Hammoud, et al., CR-00-147-MU (W.D.N.C.).

[9] See Bell, supra n. 1 at 45.

[10] See, e.g., United States v. McChan, 101 F.3d 1027 (4th Cir. 1996); United States v. McManus, 23 F.3d 878 (4th Cir. 1994).

[11] See, e.g., United States v. Odom, 736 F.2d 104 (4th Cir. 1984).

[12] See, e.g., United States v. Ross, 844 F.2d 187 (4th Cir. 1988).

[13] See, e.g., United States v. Rathburn, 1:99-cr-00091-LHT (W.D.N.C.).

[14] See Bell, supra n. 1 at 28.

[15] United States v. Black, 5:07-cr-00042-BO (E.D.N.C.).

[16] See id.

[17] Tim Funk, Rep. Robert Pittenger, Challenger Mark Harris Target Character in New Ads, Charlotte Observer, May 23, 2016, https://www.charlotteobserver.com/news/politics-government/article79385082.html.  

[18] Securities and Exchange Comm’n v. Rex Venture LLC d/b/a ZeekRewards.com, and Paul Burks, 3:12-CV-519 (W.D.N.C.).

[19] McGuire Woods: Court-Appointed Receiver in ZeekRewards Case Sues Insiders, Net Winners of the Scheme, India Investment News, Mar. 3, 2014.

[20] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=187113 (last visited July 29, 2018).

[21] Nathaniel C. Cash, How Old Votes Become New Political Liabilities, Wash. Post, Aug. 24, 1990.

[22] See Miles Benson, Run for Congress Can Pay Mortgage, Seattle Times, Aug. 26, 1990, http://community.seattletimes.nwsource.com/archive/?date=19900826&slug=1089789.  

[23] Charles R. Babcock, Personal Use of Campaign Funds Sparks Dispute; Challengers Say System Allows the Practice, Improving their Chances Against Incumbents, Wash. Post, Aug. 3, 1990.

[24] See id.

[25] Coincidentally, another challenger attacked for the personal use of campaign funds was an Indiana candidate named Mike Pence.  See Benson, supra n. 29.

[26] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=34410 (last visited July 29, 2018).

[28] See id.

[29] See id.

[30] Kenneth D. Bell, Letter to the Editor, Clinton Offers Up A Meaningless Dodge, Charlotte Observer, Sept. 2, 2015, https://www.charlotteobserver.com/opinion/letters-to-the-editor/article33225267.html.  

[31] Kenneth D. Bell, A ‘Reasonable’ Case for Charging Hillary Clinton, Charlotte Observer, July 9, 2016, https://www.charlotteobserver.com/opinion/op-ed/article88564422.html.  

[32] See id.

[33] David Tinkler, Why the FBI Made the Right Choice on Hillary Clinton Probe, Charlotte Observer, July 14, 2016, https://www.charlotteobserver.com/opinion/op-ed/article89697407.html.

[34] Lisa Zagaroli, Conrad at Center of Partisan Fight, Charlotte Observer, July 22, 2008, https://www.charlotteobserver.com/news/local/article8994503.html.  

[35] See id.

[36] Guy Loranger, Court’s Open Seats Raise Concern in NC, North Carolina Lawyers Weekly, Aug. 4, 2008.

[37] Federal Election Commission, Personal Use, https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/ (last visited July 29, 2018) (“The campaign may not pay for mortgage, rent or utilities for the personal residence of the candidate or the candidate’s family even if part of the residence is being used by the campaign”).

[38] See Zagaroli, supra n. 34.

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