Judge Rossie Alston – Nominee to the U.S. District Court for the Eastern District of Virginia

Judge Rossie Alston, who currently serves on the Virginia Court of Appeals, has had his share of messy confirmation battles.  Three years ago, his confirmation to the Virginia Supreme Court was derailed by a power struggle between the Virginia legislature and Governor Terry McAuliffe.  This time around, his nomination to the U.S. District Court for the Eastern District of Virginia is likely to yield more success.

Background

Rossie David Alston Jr. was born in Washington D.C. on May 31, 1957.  He attended Averett College (now University) in Southern Virginia, graduating cum laude in 1979 and then received a J.D. from North Carolina Central University School of Law in 1982.[1]

After graduation, Alston worked as a Staff Attorney at the National Labor Relations Board and then joined the National Right to Work Legal Defense Foundation, where he worked for five years as a Staff Attorney.[2]  In 1992, Alston joined Smith, Hudson, Hammond and Alston in Manassas as a Name Partner.[3]

In 1998, Alston was appointed to the Juvenile & Domestic Relations Court in Prince William County.[4]  Three years later, he was selected to be a Circuit Court judge in Prince William County.[5]

In 2005, Alston applied for a vacancy on the U.S. District Court for the Eastern District of Virginia, but was not selected as the top candidate by the State Bar (who chose magistrate judge Liam O’Grady and litigator Anthony Trenga).[6]  Alston was still one of five candidates recommended for the seat by Virginia’s Republican Senators (O’Grady was ultimately chosen).[7]

In 2009, Alston was selected by the Virginia General Assembly to join the Virginia Court of Appeals, replacing Judge Jean Harrison Clements.[8]

In 2015, Alston was part of a tangle over a Supreme Court appointment between Gov. Terry McAuliffe and General Assembly leaders.  McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court upon the recommendation of Del. Dave Albo, a Republican.[9]  However, Republican leaders in the Assembly protested the nomination, claiming that they were not adequately consulted, and instead announced plans to elevate Alston to the seat.[10]  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.[11]

Republicans tried to move Alston again after Watkins’ retirement, but Sen. Glen Sturtevant, who replaced Watkins, indicated his opposition to Alston.[12]  After two African American Democrats both reneged on deals to support Alston, Republicans dropped plans to elevate him, and his colleague, Judge Steven McCullough, was elevated instead.

Alston continues to serve on the Virginia Court of Appeals.

History of the Seat

Alston has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on September 30, 2017, when Judge Gerald Bruce Lee moved to senior status.  Virginia Senators Mark Warner and Tim Kaine, both Democrats, recommended Alston alongside federal prosecutor Patricia Giles in December 2017.[13]  Alston was nominated on June 18, 2018.[14]

Legal Experience

Alston started his legal career working as a labor attorney, first at the National Labor Relations Board and then at the National Right to Work Legal Foundation, a non-profit organization that seeks to counter union activities.  From 1989 to 1998, Alston worked in private practice, handling criminal defense, plaintiff’s side civil litigation, and domestic matters.

Some of the clients Alston represented include a woman charged with the death of a toddler scalded with hot bath water,[15] a teen who killed his stepfather to protect his mother from physical abuse,[16] and a driver convicted of reckless driving for participating in a road duel.[17]  Alston was also part of the legal team suing on behalf of the parents of a 13-month-old baby that fell through a window screen and sustained serious injuries.[18]  Alston was able to obtain a $15 million judgment, but the verdict was overturned on appeal.[19]

Jurisprudence

Alston has served as a judge in Virginia for approximately twenty years, starting as a Juvenile & Domestic Relations Judge in Prince William County in 1998, becoming a Circuit Court Judge in 2001, and being elected by the Virginia Assembly to the Court of Appeals in 2009.

Circuit Court Judge

From 2001 to 2009, Alston served as a Circuit Court Judge in Prince William County, where he presided over civil and criminal cases.[20]  On the Circuit Court, Alston developed a reputation for creative sentencing, including imposing “community service and symbolic jail time.”[21]  In one notable case, Alston presided over the trial of a community leader charged with leaving his toddler in a hot car.[22]  The jury found the father guilty and recommended 12 months in jail.[23]  However, Alston gave the father seven years of probation, ordering the father to spend his deceased daughter’s birthday in jail and donate blood on that day for the next seven years.[24]  In so ruling, Alston emphasized that the defendant “was a good man who loved his family and his church.”[25]

Court of Appeals

From 2009 onwards, Alston has served on the Virginia Court of Appeals, one level before the Virginia Supreme Court.  In his time on the court, Alston authored over 200 majority opinions, establishing a largely conservative record.  For example, Alston held, shortly after the Supreme Court legalized same-sex marriage in Obergefell, that cohabitation under Virginia law did not apply to same-sex couples, a decision that was reversed by the Virginia Supreme Court.[26]  In another case, Alston held that making an unsignaled left turn could be grounds for a valid traffic stop by a police car, even if there was no other traffic in the vicinity.[27]

Reversals

Over his twenty years on the bench, Alston’s rulings have been reversed by higher courts eleven times.[28]  Of these reversals, the most significant is in Luttrell v. Cuoco.[29]  Luttrell involved a ruling from a Fairfax judge that a man had to continue to pay alimony to his ex-wife even though his wife was now cohabiting with her female partner.[30]  Alston wrote for the Virginia Court of Appeals in holding that, under Virginia’s alimony law, cohabitation could only be between a man and a woman.[31]  The Virginia Supreme Court reversed, finding that a 1997 amendment expanded the definition of cohabitation to include same-sex couples.[32]

Interestingly, Alston has been reversed four times in cases where he ruled in favor of defendants or against law enforcement.[33]  In contrast, Alston has never had a conviction before him reversed and has only had a sentence before him reversed once.[34]

Writings or Comments

In his testimony as a nominee to the Virginia Supreme Court, Alston was asked if businesses should be permitted to turn away LGBT customers based on the business owner’s religious beliefs.[35]  Alston responded:

“There is no reason whatsoever why any person in the United States of America should be denied equal privileges that we all enjoy under the law.”[36]

Senator Don McEachin, a Virginia Democrat, interpreted Alston’s testimony as a rebuke to Virginia Republicans, who were then attempting to pass “religious liberty” laws that would permit such discrimination.[37]

Overall Assessment

While Alston’s elevation to the Virginia Supreme Court may have been entangled in politics, his path to the federal bench looks much smoother.  As Alston has already gotten the sign-off of Virginia’s Democratic senators, it is unlikely that his conservative-leaning jurisprudence would keep many Democrats from backing him.  As such, it is more a question of when, rather than if, Alston will be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rossie D. Alston Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Leef Smith, Judge is Sworn In for Juvenile Court; Alston Takes Over Bench of the Late Patrick Molinari, Wash. Post, Oct. 10, 1998.

[5] See Alston, supra n. 1 at 2.

[6] Alan Cooper, Ney, Wetsel Backed by 4 Bars for VA Appeals Court, Virginia Lawyers Weekly, Dec. 26, 2005.

[7] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.

[8] Alan Cooper, Alston Elected to Virginia Court of Appeals, Virginia Lawyers Weekly, Feb. 11, 2009.

[9] Peter Vieth, Va. GOP Leaders Favor Alston Over Roush for Supreme Court, Virginia Lawyers Weekly, Aug. 3, 2015.

[10] See id.

[11] BIDS, In Vote on SC Justice, GOP’s John Watkins Unites With Democrats, Legal Monitor Worldwide, Aug. 18, 2015.

[12] Jim Nolan, Sturtevant Backs Keeping Roush on Supreme Court, Richmond Times-Dispatch, Jan. 16, 2016, https://www.richmond.com/news/sturtevant-backs-keeping-roush-on-supreme-court/article_b67927be-51f5-5a98-ba90-35e4c60ff314.html.  

[13] Press Release, Office of Sen. Mark Warner, Warner & Kaine Recommend Two for Vacancy On U.S. District Court for the Eastern District of Virginia (Dec. 21, 2017) (available at https://www.warner.senate.gov/public/index.cfm/2017/12/warner-kaine-recommend-two-for-vacancy-on-u-s-district-court-for-the-eastern-district-of-virginia).  

[14] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Candidates, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 7, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[15] See Leef Smith, Autopsy: Girl’s Scalding Intentional, Wash. Post, July 11, 1998.

[16] Avis Thomas-Lister, Teen to be Tried as Juvenile in Stepfather’s Slaying; Pr. William Youth, 15, Testifies in Hearing He Feared Abuse of Mother, Siblings, Wash. Post, June 5, 1991.

[17] Leef Smith, Driver Sentenced in Road Duel That Nearly Killed Va. Child, Wash. Post, Apr. 5, 1997.

[18] Gamble v. Jeld-Wen Inc., No. 138861 (chancery), Fairfax Cnty. Circuit Court, 1997.

[19] Jeld-Win Inc. v. Gamble, 256 Va. 144 (1998).

[20] See Alston, supra n. 1 at 20.

[21] See Josh White, Father Should Go to Jail for Death, Va. Jury Says, Wash. Post, Dec. 5, 2002. 

[22] Commonwealth v. Kelly, No. CR05053304-00 (Cir. Ct. Feb. 21, 2003).

[23] See White, supra n. 21.

[24] Sean O’Driscoll, Father Receives Sentence for Death of Child, Irish Times, Feb. 22, 2003.

[25] See id.

[26] See Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016).

[27] Deborah Elkins, Court Upholds Stop for No-Signal Turn, Virginia Lawyers Weekly, Mar. 6, 2015 (citing Wilson v. Commonwealth).

[28] See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017) (reversing finding that possessing a loaded gun does not constitute felony child neglect); Cole v. Commonwealth, 2017 Va. LEXIS 162 (Nov. 16, 2017) (reversing finding that Court of Appeals did not possess the authority to decide pre-trial issues in appeal); Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016) (holding that Virginia cohabitation statute includes same-sex couples); Commonwealth v. Quarles, 283 Va. 214 (2012) (reversing holding that investigating detective had impermissibly restarted communication after defendant requested counsel); Simms v. Ruby Tuesday, Inc., 281 Va. 114 (2011) (reaffirming validity of “horseplay doctrine”);  Royal Indem. Co. v. Tyco Fire Prods, LP, 281 Va. 157 (2011) (reversing ruling that statute of limitations precluded negligence claims); Commonwealth v. Andrews, 280 Va. 231 (2010) (reversing sentencing due to allowing improper victim testimony); Woods v. Mendez, 265 Va. 68 (2010) (reversing dismissal of claim for punitive damages); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc) (reversing panel decision that defendant did not exercise dominion and control over marijuana in his vehicle); Kapur v. Kapur, 2009 Va. App. LEXIS 234 (May 19, 2009) (reversing sanctions issued against husband in divorce case); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003) (reversing grant of motion to suppress).

[29]  2016 Va. LEXIS 57 (April 28, 2016).

[30] See id. See also Tom Jackman, Va. High Court Limits Spousal Support, Wash. Post, May 3, 2016.

[31] See Jackman, supra n. 31.

[32] Id.

[33]  See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017); Commonwealth v. Quarles, 283 Va. 214 (2012); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003).  

[34] See Commonwealth v. Andrews, 280 Va. 231 (2010).

[36] Id. (quoting Judge Rossie Alston).

[37] Brad Kutner, Senator Don McEachin Talks LGBTQ Issues Ahead of the 2016 General Assembly Session, GayRVA, Aug. 26, 2015, http://www.gayrva.com/news-views/senator-don-mceachin-talks-lgbtq-issues-ahead-of-the-2016-general-assembly-session/.  

Eric Murphy – Nominee for the U.S. Court of Appeals for the Sixth Circuit

Eric Murphy was not even thirty-five when he was selected to be Ohio’s top appellate attorney.  Now, still shy of forty, Murphy has been nominated to a lifetime appointment to the Sixth Circuit.  However, Murphy’s nomination is strongly opposed by Sen. Sherrod Brown, his home-state senator.

Background

Eric Earl Murphy was born in Indianapolis in 1979.  Murphy received his B.A. from Miami University in 2001 and his J.D. from the University of Chicago Law School in 2005.[1]  He clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[2]

After his clerkships, Murphy joined the Columbus office of Jones Day as an Associate.[3]  In 2013, Ohio Attorney General Mike DeWine selected Murphy as the new Solicitor General for the state, replacing Alexandra Schimmer.[4]  He serves in that position today.

History of the Seat

Murphy has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Alice Batchelder has indicated that she will vacate the seat upon the confirmation of a successor.

In September 2017, Murphy reached out to the White House Counsel’s Office to express his interest in a judicial appointment.[5]  After interviews with the White House, Murphy interviewed with Brown and Republican Senator Rob Portman in late 2017.  He was officially nominated on June 18, 2018.[6]   Notably, Brown has indicated his strong opposition to Murphy’s nomination and has indicated that he will not return a blue slip.[7]

Political Activity

Murphy has a relatively limited political history, having served as part of the local Republican Party chapter as a college student and having volunteered for DeWine in the 2000 elections.[8]

Private Practice

After his clerkships, Murphy worked in the Columbus office (alongside fellow nominee Chad Readler) as an Associate in the Issues and Appeals section.  In this role, Murphy handled appeals in state and federal court, representing a variety of corporate clients, including R.J. Reynolds Tobacco Co., Goodyear Tires, and Procter & Gamble.[9]  Notably, Murphy represented the Washington Legal Foundation, a free-market conservative organization, in arguing that the First Amendment permits promoting a prescription drug for an off-label use, successfully getting a conviction overturned.[10]

Solicitor General

Since 2013, Murphy has served as the Solicitor General of Ohio, representing Ohio before state and appellate panels, defending state laws, and pushing for conservative legal outcomes in other cases.  In his five years as Solicitor General, Murphy has argued five cases before the U.S. Supreme Court.[11]  He has also filed four amicus briefs as counsel of record and has participated at the certiorari level in over eighty additional cases.[12]  We have highlighted some of the key positions he took as Solicitor General.

False Speech in Advertising

Murphy’s first argued case before the Supreme Court was Susan B. Anthony List v. Dreihaus.  The case involved a challenge by the Susan B. Anthony List, an anti-abortion group, to an Ohio law criminalizing the use of “false statements” in political advertising.  After a lower court held that the SBA List could not challenge the law for lack of standing, the Supreme Court granted certiorari and Murphy defended the law.  The Supreme Court unanimously held against Murphy’s position and found that the SBA List could challenge the law under the First Amendment.[13]

Death Penalty Protocol

In 2016, prisoners challenged Ohio’s three-drug protocol for executions, and its use of the drug Midzolam.[14]  After the District Court granted an injunction against the protocol, and the Sixth Circuit affirmed, Murphy was able to convince an en banc seating of the Sixth Circuit to reverse.[15]

Same Sex Marriage

As Solicitor General, Murphy led the defense of Ohio’s ban on same sex marriage, consolidated with the bans in Tennessee, Kentucky, and Michigan.[16]  Murphy defended the bans before the Sixth Circuit, arguing that gay marriage was an issue for voters, not the courts.[17]  However, the Supreme Court ultimately rejected Murphy’s position, holding that same sex marriage bans violate the Constitution.[18]

Restrictions on Voting

As Solicitor General, Murphy led the defense of Ohio voting restrictions, including two prominent cases that involved the Supreme Court.  The first case involved a challenge to the reduction of Ohio’s early voting period from 35 days to 28.[19]  Murphy defended the restrictions, successfully reinstating them before the Sixth Circuit after the District Court struck them down.[20]  The Supreme Court denied a stay.

The second case was a challenge under the National Voter Registration Act to Ohio’s practice of purging voters from the rolls after a two-year inactive period of voting.[21]  After the District Court permitted the practice, a panel of the Sixth Circuit reversed and the Supreme Court granted certiorari.  Murphy argued the case before the Supreme Court, which reversed 5-4.[22]

Overall Assessment

Murphy has accomplished a lot given his relative youth.  Despite barely meeting the 12 years of practice criteria set by the American Bar Association, it is hard to argue that Murphy is not qualified for the appellate bench.

However, this does not mean that Murphy will be deemed a “consensus” nominee.  Murphy has been advanced without the support of his home-state senator, which automatically puts a nominee at risk of opposition.  Additionally, Murphy’s record as Solicitor General can be characterized as constituting conservative activism.  Murphy’s defense of Ohio voting restrictions and same-sex marriage ban will be particularly scrutinized.

At the same time, Solicitors General and Attorneys General have a responsibility to defend their state statutes and policies, provided that there is a reasonable defense.  Murphy’s supporters can point to his defense of the Ohio “false statements” law, challenged by conservative groups, to argue that Murphy’s top priority is the law, rather than ideology.

Overall, given Senate Republicans’ abandonment of the “blue slip” policy for appellate nominees, Murphy will likely be confirmed.  However, he is unlikely to get the support of many, if any Democrats, in that process.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric E. Murphy: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Murphy, supra n. 1 at 47.

[6] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[8] See Murphy, supra n. 1 at 14-15.

[9] See Murphy, supra n. 1 at 16-17.

[10] See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).

[11] See Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018); Sheriff v. Gillie, 136 S. Ct. 1594 (2016); Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[12] See Murphy, supra n. 1 at 19-24.

[13] Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[14] In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) (en banc).

[15] Id. 

[16] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

[17] Robert Barnes, Gay-Marriage Backers Meet a Skeptical Court, Wash. Post, Aug. 7, 2014.

[18] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[19] Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); Husted v. Ohio State Conference of the NAACP, 135 S. Ct. 42 (2014).

[20] Id. 

[21] Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).

[22] Id.

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.

 

Sarah Morrison – Nominee to the U.S. District Court for the Southern District of Ohio

A prominent labor and worker’s compensation attorney from Columbus, Sarah Morrison is favored to short-handed bench where she would become the only active female judge.

Background

Morrison was born Sarah Elizabeth Daggett in Lufkin, TX on November 12, 1970.[1]  Morrison received her B.A. from Ohio State University in 1992 and her J.D. magna cum laude from Capital University Law School in 1997.[2]  Following her graduation, Morrison clerked for Judge John Holschuh on the U.S. District Court for the Southern District of Ohio.[3]

After her clerkship, Morrison joined the Columbus office of Chester, Willcox & Saxbe as an associate.  Morrison became a partner at the firm in 2005.[4]

In 2012, Morrison became General Counsel and Chief Ethics Officer at the Ohio Bureau of Worker’s Compensation.[5]  She became the Administration and Chief Executive Officer in 2016 and continues to serve in that capacity today.

History of the Seat

Morrison has been nominated for a seat on the U.S. District Court for the Southern District of Ohio.  This seat was vacated on May 2, 2016, when Judge Gregory Frost moved to senior status.  Even though this seat opened with more than eight months left in the Obama Presidency, no nomination was put forward for the seat.

In April 2017, Morrison applied for the vacancy with a selection commission put together by Ohio Senators Sherrod Brown, a Democrat, and Rob Portman, a Republican.[6]  Morrison interviewed with the Commission in late August, and was recommended to the senators.[7]  Morrison interviewed with Portman in September and the two senators jointly recommended Morrison shortly after.[8]

In October 2017, Morrison interviewed with the White House.[9]  She was officially nominated on April 12, 2018.

Legal Experience

Morrison began her legal career at Chester, Willcox & Saxbe in Columbus.  While there, Morrison focused on civil and commercial litigation.  During her time there, Morrison notably represented the National Football League (NFL) in defending against a suit filed by the widow of Korey Stringer, an offensive lineman with the Minnesota Vikings who died of heatstroke during a practice.[10]   She also represented Honda against an employment discrimination case brought by the Equal Employment Opportunity Commission.[11]  After becoming a partner at the firm, Morrison represented Ohio State University and the University of Toledo in defending against multiple employment discrimination claims.[12]

In 2012, Morrison moved to the Ohio Bureau of Worker’s Compensation, where she served as General Counsel.  In this role, she headed the Bureau’s legal department and managed both litigation and in-house work.  She has worked in a non-legal capacity as head of the Bureau in 2016.

Political Activity

Morrison has been fairly active in the Ohio Republican Party, having volunteered with the Ohio Republican Women Campaign Fund and Capital Area Republican Women.[13]  Morrison has also served on the Franklin County Republican Party Executive Committee since 2007 and volunteered for a PAC supporting Ohio Gov. John Kasich’s Presidential bid in 2016.[14]

Overall Assessment

Despite her Republican background, Morrison has obtained the support of Sen. Sherrod Brown.  At the same time, despite her work for Trump bete noire Kasich, Morrison has received a judicial nomination from the Administration.  These two facts together speak to Morrison’s general acceptability as a nominee.  Overall, given her strong support from Brown and Portman, Morrison is expected to be comfortably confirmed and add a moderate-conservative voice to the Southern District of Ohio.


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

[2] Id. at 2.

[3] Id. 

[4] Id.

[5] Id.

[6] Id. at 49.

[7] Id. 

[8] See id.

[9] Id.

[10] Stringer v. Nat’l Football League, Inc., 474 F. Supp. 2d 894 (S.D. Ohio 2007).

[11] EEOC and Ways v. Honda of North Amerca Mfg., No. 2:06cv233 (S.D. Ohio 2006).

[12] See Crystal Dixon v. University of Toledo, 842 F. Supp. 2d 1044 (N.D. Ohio 2012), aff’d, 702 F.3d 369 (6th Cir. 2012); Sheryl Szeinbach v. Ohio State University, No. 2:08cv822 (S.D. Ohio 2008); Rosa Rodriguez-Monguio v. Ohio State University, No. 2:08cv139 (S.D. Ohio 2008).

[13] See Morrison, supra n. 1 at 35.

[14] Id.

Judge Stephanie Gallagher – Nominee for the U.S. District Court for the District of Maryland

Judge Stephanie Gallagher is the latest of several unconfirmed Obama nominees put forward by President Trump.  While her relatively uncontroversial record secured her a unanimous approval from the Committee in 2016, it was unable to secure a final confirmation vote.  This time, she is likely to be more lucky.

Background

Gallagher was born Stephanie Marie Agli in Rockville, Connecticut in 1972.  Gallagher received a B.A. from Georgetown University in the Government Honors Program magna cum laude in 1994, and then procured a J.D. cum laude from Harvard Law School in 2007.[1]

After graduation, Gallagher clerked for Judge J. Frederick Motz on the U.S. District Court for the District of Maryland. She then joined the D.C. office of Akin, Gump, Strauss, Hauer, & Feld as an associate.[2]  In 2002, Gallagher left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Maryland.[3]

In 2008, Gallagher founder the Baltimore firm Levin & Gallagher LLC.[4]  She stayed at the firm until she was appointed as a U.S. Magistrate Judge in 2011, replacing Judge James Bredar, who had been elevated to be a U.S. District Judge.[5]

History of the Seat

Gallagher has been nominated for a seat on the U.S. District Court for the District of Maryland.  This seat opened on February 1, 2016, when Judge William Quarles moved to senior status.[6]  In March 2013, Gallagher applied to fill other vacancies that had opened on the U.S. District Court for the District of Maryland.[7]  While Gallagher was recommended by then-Sen. Barbara Mikulski (D-Md.), the Administration selected other candidates.[8]  Nevertheless, Gallagher’s name was resubmitted to the White House in 2015, and she was nominated on September 8, 2015.[9]

Gallagher’s nomination sat before the Judiciary Committee for approximately seven months before she received a hearing on April 20, 2016.  On May 19, 2016, the Committee voted unanimously to send Gallagher’s nomination to the full Senate, where she was blocked from a final vote by Senate Republican leader Mitch McConnell.

After the election of President Trump, no further action was taken on Gallagher’s nomination, and her nomination was returned unconfirmed to the President in 2017.  President Trump renominated her on June 11, 2018 to fill the same vacancy.

Legal Career

Gallagher began her legal career as an associate at Akin Gump, where she represented large corporations in civil litigation.  Notably, Gallagher was part of the defense team representing the Holy Land Foundation for Relief and Development, an Arab American charity charged with fundraising for Hamas.[10]

In 2001, Gallagher moved to the U.S. Attorney’s Office for the District of Maryland, prosecuting a variety of cases, including white collar crimes, narcotics, and firearms offenses.  In an early case, Gallagher successfully prosecuted a defendant for conspiracy to distribute marijuana, securing a 63-month sentence.[11]  She also prosecuted a defendant charged with a narcotics conspiracy and multiple homicides, leading a two-week trial and defending the conviction successfully on appeal.[12]

From 2008 to 2011, Gallagher started her own practice focusing on white collar criminal defense matters.[13]  She also handled some court-appointed criminal defense work and general civil litigation.[14]

Political Activity

Somewhat unusually, Gallagher’s political involvement is evenly divided between the two major parties.  Gallagher was a volunteer for the campaign of Gregg Bernstein, a Democrat, to serve as Baltimore City Attorney in 2010, but also hosted a fundraiser at her home for former Gov. Robert Ehrlich the same year (Ehrlich, a Republican was challenging Democratic Gov. Martin O’Malley).[15]

Her contributions reflect a similar pattern.  In 2006, Gallagher gave $250 to Democratic Sen. Ben Cardin, but two years later donated $500 to Sen. John McCain’s campaign to be U.S. President.[16]

Jurisprudence and Reversals

Gallagher has served as a U.S. Magistrate judge in Maryland since her appointment in 2011.  In this role, she handles settlement, discovery, and makes recommendations on dispositive motions.  She also presides over cases where the parties consent.  Between 2011 and 2016, Gallagher presided over one jury trial and four bench trials.[17]  Gallagher’s more prominent trials include a damages case over the disappearance of a truckload of frozen salmon,[18] the calculation of damages for a wrongful termination case under the Family and Medical Leave Act,[19] and a bench trial arising from a traffic collision at Fort Meade.[20]

Gallagher has had a relatively low reversal rate during her tenure as a U.S. Magistrate Judge.  In one prominent reversal, Gallagher granted summary judgment against a road worker who was injured during work while suspended above traffic, finding that he had assumed the risk of injury.[21]  The Fourth Circuit reversed, finding that the assumption of risk defense did not apply in that case.[22]  She was also reversed by the Fourth Circuit after holding that a civil rights plaintiff had forfeited his right to attorney’s fees by not timely filing a motion with the court after judgment.[23]

Overall Assessment

Having been recommended for the federal bench by two Democrats and previously nominated by President Obama, Gallagher should face a relatively smooth path to confirmation.  Even though her initial foray as a nominee was unsuccessful, Gallagher’s renomination by President Trump should ensure a bipartisan confirmation.


[1] Sen. Comm. on the Judiciary, 114th Cong., Stephanie Gallagher: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id. at 1-2.

[5] Brendan Kearney, Stephanie A. Gallagher Hearing Cases as New Magistrate Judge in Baltimore, The Daily Record, Apr. 24, 2011.

[6] Quarles, like Gallagher, was a failed judicial nominee renominated by a subsequent president.

[7] Gallagher, supra n. 1 at 39.

[8] Specifically, Judges Theodore Chuang, and George Hazel.

[9] Gallagher, supra n. 1 at 39.

[10] See James Grimaldi, An Arab American Charitable Connection That Might Be Too Close for Comfort, Wash. Post, Dec. 17, 2001.

[11] United States v. Butler, Criminal No. 01-0161-AW, aff’d, 61 F. App’x 857, 2003 WL 1711275 (4th Cir. Apr. 1, 2003) (unpublished per curiam opinion).

[12] United States v. Baskerville, Criminal No. 02-0410-CCB, aff’d, 253 F. App’x 280, 2007 WL 3306474 (4th Cir. Nov. 7, 2007) (unpublished per curiam opinion).

[13] Gallagher, supra n. 1 at 28.

[14] See id.

[15] Id. at 27.

[17] See Gallagher, supra n. 1 at 11.

[18] Merchants Terminal Corp. v. L&O Transport, Inc. et. al., Civil No. 09-2065-SAG, 2012 WL 1416631 (D. Md. Apr. 20, 2012).

[19] Neel v. Mid-Atlantic of Fairfield, LLC., Civil No. 10-0405-SAG, 2012 WL 3264965 (D. Md. Aug. 9, 2012).

[20] United States v. McNeill, Traffic Violation No. 2359730.

[21] See Meyers v. Lamar, No. SAG-11-3507, 2013 WL 1325295 (D. Md. Mar. 29, 2013).

[22] Meyers v. Lamar, 743 F.3d 908 (4th Cir. 2014).

[23] Fernandes v. Craine, 538 F. App’x 274 (4th Cir. 2013) (unpublished decision).

Judge Kavanaugh and the Failure of the Vetting Process

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Judge Brett Kavanaugh – First Amendment Rulings

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

Freedom of Speech

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

Campaign Regulations

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

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

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

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

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

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

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

Communications Regulation

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

Press

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

Freedom of Assembly + Petition

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

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

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

Freedom of Religion

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

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

Establishment of Religion

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

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

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

 


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

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

[3] Id. at 117.

[4] Id.

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

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

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

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

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

[10] Id. at 1322.

[11] Id. at 1325.

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

[13] See id. at 110.

[14] Id. at 117-18.

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

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

[17] See id. at 145.

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

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

[20] Id. at 764.

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

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

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