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

The Federal Courthouse in Lawton, Oklahoma

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

Background

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

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

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

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

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

History of the Seat

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

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

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

Political Activity

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

Legal Experience

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

Death Penalty

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

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

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

Abortion Rights

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

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

Affordable Care Act

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

Sharia Law

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

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

Jurisprudence

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

Taxes and Fees

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

Dissents

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

Writings

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

Overall Assessment

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

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

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

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

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

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


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

[2] See id.

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

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

[5] See id. at 2.

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

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

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

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

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

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

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

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

[14] Id. at 57.

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

[16] See id.

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

[18] See Barnes, supra n. 15.

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

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

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

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

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

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

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

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

[27] Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[43] Id. at 202.

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

[45] See id.

[46] Id.

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

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.

 

John O’Connor – Nominee for the Eastern, Northern, and Western Districts of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

John O’Connor, a Tulsa based attorney, is Trump’s latest nominee to fill an Oklahoma-based vacancy.  O’Connor, a civil litigator in his 60s, is unlikely to draw the sustained opposition that two other Oklahoma judicial nominees have received.

Background

A Tulsa native, John Michael O’Connor was born in 1954.  O’Connor received a B.A. from Oklahoma State University in 1977 and a J.D. from the University of Tulsa in 1980.[1]  After graduating, O’Connor joined the Tulsa law firm Rosenstein, Fist & Ringold as an Associate.

In 1983, O’Connor moved to help found the firm Newton, O’Connor, Turner & Ketchum P.C.[2]  He served as President and Board Chair at the firm from 1985 to 1996 and then from 1999 to 2005.

In 2018, O’Connor joined the Tulsa office of Hall Estill as a Shareholder.  It is a position he currently holds.

History of the Seat

O’Connor has been nominated for the only judgeship in the country that traverses three districts: the Eastern, Northern, and Western Districts of Oklahoma.  Judge James Payne, who previously held this seat, moved to senior status on August 1, 2017.  In September, O’Connor reached out to Oklahoma’s U.S. Senators to express his interest in filling Payne’s seat.[3]  After interviews with Senators James Inhofe and James Lankford, O’Connor was recommended to the White House.  O’Connor was ultimately nominated on April 12, 2018.

Political Activity

O’Connor has been fairly active in Oklahoma Republican politics, having served as a State Delegate to the Oklahoma Republican Convention in 2015 and 2016, and having hosted fundraisers for many state and local Republican candidates, including Oklahoma Insurance Commissioner John Doak.[4]  O’Connor has also donated to both Oklahoma Senators, giving $500 to Inhofe and $2000 to Lankford[5].  Other politicians O’Connor has supported include former Rep. Jim Bridenstine and Republican Congressional candidate Kevin Hern.[6]

Legal Experience

Whether at Rosenstein, Fist & Ringold, at Newton, O’Connor, Turner & Ketchum P.C., or in his most recent post at Hall Estill, O’Connor has based his career primarily around commercial litigation.  In his thirty seven years in practice, O’Connor has handled 25-35 trials.[7]  Notably, O’Connor was tapped as outside counsel by Insurance Commissioner Doak in a number of cases involving the fraud and mismanagement of insurance companies.[8]

In a notable case, O’Connor represented Kirk of the Hills Presbyterian Church, as it severed ties with the Presbyterian Church USA and filed suit to hold onto its church properties.[9]  The dispute eventually settled with Kirk of the Hills retaining its property but paying a $1.75 million settlement.[10]  The case prompted reconsideration of Oklahoma’s church property statutes, with some advocates criticizing the suit and corresponding legislation as infringing on the autonomy of churches.[11]

Writings and Advocacy

In 2009, O’Connor testified before the Oklahoma State Legislature’s Adoption Review Task Force in favor of reforms to the adoption of foster children.  Specifically, O’Connor urged the passage of a law allowing parents who adopt a child from the state to return the child to the state’s custody if the child develops violent tendencies or severe mental health problems.[12]  O’Connor noted that, under current law, the state would only take back custody in cases of abuse or neglect, and that the current situation “threatens the health and welfare of siblings [and parents].”[13]

Overall Assessment

Out of the three Trump Oklahoma nominees processed thus far, two have faced significant opposition, while one has faced moderate objections.  Given O’Connor’s age, experience, and relatively uncontroversial record, it is unlikely that he will face the same degree of opposition as his fellow nominees.


[1] Sen. Comm. on the Judiciary, 115th Cong., Questionnaire for Judicial Nominees: John O’Connor 1.

[2] See id. at 2.

[3] See id. at 29.

[4] See id. at 19.

[6] See id.

[7] See O’Connor, supra n. 1 at 16.

[8] See, e.g., Oklahoma ex rel. Doak v. AmCare Health Plans of Oklahoma, Inc., No. CJ-2003-5311 (Okla. Dist. Ct. Okla. Cty.); Oklahoma ex rel. Doak v. Park Ave. Prop. and Cas. Ins. Co., No. CJ-2009-11178 (Okla. Dist. Ct. Okla. Cty.); Oklahoma ex rel. Doak v. Imperial Cas. and Indem. Co., No. CJ-2010-2340 (Okla. Dist. Ct. Okla. Cty.).

[9] See Kirk of the Hills Corp. v. Presbyterian Church USA, No. CJ-2006-5063 (Okla. Dist. Ct. Tulsa Cnty.).

[10] See Been et al. v. OK Indus., Inc., 495 F.3d 1217 (10th Cir. 2007).

[11] See id.

[12] See Michael McNutt, Attorney Seeks Legislation to Support Adoptive Parents, The Oklahoman, Nov. 21 2009.

[13] Id. (quoting John O’Connor).