The U.S. District Court for the Eastern District of North Carolina is home to one of the longest vacancies in the country, having opened in December of 2005. Since then, conflicts between senators and the White House have kept this seat vacant through four presidential terms. Now, Richard Myers, a professor with the University of North Carolina, is the fifth nominee to fill this vacancy.
Background
Richard Earnest Myers was born in Kingston, Jamaica, and grew up in Wilmington, NC.[1] Myers attended the University of North Carolina at Wilmington and then became a reporter with the Star-News in Wilmington. In 1995, Myers joined the University of North Carolina School of Law, graduating with high honors in 1998.
After graduating, Myers clerked for Judge David Sentelle (a North Carolina native) with the U.S. Court of Appeals for the D.C. Circuit and then became an Associate with O’Melveny & Myers in Los Angeles. In 2002, Myers became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California and later with the U.S. Attorney’s Office for the Eastern District of North Carolina.
In 2004, Myers joined the faculty of the University of North Carolina Law School, where he is currently a professor.
History of the Seat
Myers has been nominated for the longest pending federal judicial vacancy. This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status. In 2006, President George W. Bush nominated Thomas Farr, but, Farr’s nomination stalled after Democrats took control of the Senate after the 2006 elections. After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr. Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[2] Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[3] However, despite the joint endorsements, Obama did not nominate a judge during his first term.
On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[4] However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[5] Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.
On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[6] Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[7] As a result, she was never confirmed.
On July 13, 2017, President Trump renominated Farr for the vacancy,[8] this time with the support of Burr and Senator Thom Tillis (R-NC).[9] However, Farr’s nomination stalled on the Senate floor and was withdrawn due to lack of majority support when Republican Senators Tim Scott and Jeff Flake expressed their opposition based on Farr’s work with Sen. Jesse Helms at the time when the Senator worked to suppress African American votes in North Carolina.[10] After Republicans picked up two seats in the 2018 Senate elections and Flake left the chamber, conservatives pushed to renominate Farr.[11] However, Scott maintained his opposition and the White House decided not to move forward, instead choosing Myers.
Legal Experience
Before becoming a law professor, Myers has primarily worked in two legal positions: the first is as an Associate with O’Melveny & Myers; the second is as a federal prosecutor in two districts, the Central District of California and the Eastern District of North Carolina. At O’Melveny, Myers worked in the White Collar Criminal Law and Environmental and Regulatory Compliance Practice Group. At the firm, Myers most notably represented Wen Ho Lee, the Los Alamos scientist charged with stealing government secrets.[12]
Writings
As an academic, Myers has written extensively on the law, particularly focusing on criminal law and procedure, which is his area of expertise.
Prosecutorial Power
Myers has been particularly vocal on the growing power of prosecutors in the criminal justice system, speaking on the subject frequently in media.[13] Myers has noted that this concentration of power can mean that the criminal justice system can be “held hostage” by rogue prosecutors.[14] Myers’ work on this regard has been cited by African American journalist and author Ta-Nehisi Coates.[15]
On a similar note, Myers has also criticized the American criminal justice system for making it difficult to “expand liberty” by repealing unjust or outdated criminal laws and penalties.[16] Instead, Myers suggests that a constitutional amendment be passed that sunsets all criminal laws to expire after a period of twenty-five years unless renewed.[17] Myers suggests that the proposed amendment would better reflect changes in society and would create a “pro-liberty bias” within criminal law.[18]
Fourth Amendment and the Exclusionary Rule
Myers has also written extensively on the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable searches and seizures. In particular, Myers is a critic of the “exclusionary rule,” which requires that any evidence obtained through an illegal search be excluded from a criminal prosecution. In one paper, Myers writes that the exclusionary rule only comes into play when evidence is found through the illegal searches, thus, ensuring that judges see only “guilty people trying to enforce their rights.”[19]
Instead, Myers advocates for a separate court that oversees the executive branch’s searches and hears from victims of illegal searches who are both innocent and guilty of the underlying offenses.[20] Myers notes:
“We need a new range of remedies because, to an important segment of the populace, the exclusionary rule clearly benefits the guilty, while providing such an attenuated benefit to the innocent in the form of deterrence that it extracts a high price from the system in terms of perceived legitimacy.”[21]
Political Activity
Myers is a Republican, and a member of the Federalist Society and the National Rifle Association. However, his only political contribution of record was a $250 contribution in 2016 to Rep. George Holding.[22]
Overall Assessment
Given how long this seat has sat vacant, and the number of nominees who have fallen by the wayside in the attempt to fill it, one can start to wonder if this seat is cursed. However, if there is a nominee primed to end this “curse,” it is Myers. Not only does Myers, as a African American attorney, not attract the same degree of opposition that Farr did, but his record should win him bipartisan approval. In fact, Myers’ criminal justice jurisprudence largely accords with that of many liberals in its criticism of prosecutorial power and overcriminalization.
This is not to say that Myers will be a liberal on the bench. He will likely be a conservative voice. However, his criminal justice jurisprudence may well end up surprising many who thought they could pigeonhole the nominee, and despite being a former prosecutor, defense attorneys may well have a friend in Myers.
[12] James Sterngold, Lee’s Dream Team High on Case, Low on Compensation; The Lawyers, Largely Unpaid, Say They’ve Become Fond of Los Alamos Scientist, Contra Costa Times, Sept. 11, 2000.
[13] See, e.g., Richard A. Oppel, Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. Times, Sept. 26, 2011.
[14] See id. (quoting Richard E. Myers).
[15] See Ta-Nehisi Coates, The Collapse of American Criminal Justice, Atlantic Online, Sept. 26, 2011.
[16] Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. Rev. 1327 (Nov. 2008).
[19] Richard E. Myers II, “The Exclusionary Rule: Is it On Its Way Out? Should It Be?”, 10 Ohio St. J. Crim. L. 571, 577 (Spring 2013).
The Vetting Room 