Author: Harsh Voruganti

Eleven New Nominations to the District Court Announced

In a much needed and welcome move, the Trump Administration announced the nominations of 11 candidates to fill vacancies on U.S. District Courts.  The nominees are:

Annemarie Carney Axon, a Birmingham attorney, and Judge Liles C. Burke of the Alabama Court of Criminal Appeals were nominated for the U.S. District Court for the Northern District of Alabama.

Judge Tripp Self III of the Georgia Court of Appeals was nominated for the U.S. District Court for the Middle District of Georgia.

Michael Lawrence Brown, a partner in the Atlanta office of Alston & Bird LLP, and Judge Billy McCrary Ray II of the Georgia Court of Appeals, were nominated for the U.S. District Court for the Northern District of Georgia.

Judge Charles Barnes Goodwin, a federal magistrate judge, was nominated for the U.S. District Court for the Western District of Oklahoma.

Thomas Alvin Farr, a Raleigh attorney, was nominated for the U.S. District Court for the Eastern District of North Carolina.  Farr had previously been nominated to fill the same vacancy during the Bush Administration.

Chip Campbell Jr. and Eli Richardson, both Nashville attorneys in private practice, were nominated for the U.S. District Court for the Middle District of Tennessee.

Mark Norris, the currently serving Tennessee Senate Majority Leader, and Thomas Lee Robinson Parker, a Memphis attorney, were nominated for the U.S. District Court for the Western District of Tennessee.

 

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Four Nominees Advance to Senate Floor

This morning, the Senate Judiciary Committee advanced the nominations of John Bush, Kevin Newsom, Tim Kelly, and Damien Schiff to the senate floor.  On one end of the spectrum, Newsom and Kelly were advanced with bipartisan support (the former with just two senators dissenting, and the latter by voice vote).  On the other end, Bush and Schiff attracted unanimous opposition from Democrats.

While the outcome of the committee vote was pre-ordained after GOP skeptics announced their support for Bush and Schiff, both nominees have a narrow margin for error on the senate floor.  Opponents will likely now turn their attention to lobbying moderate Republicans such as Sen. Susan Collins (R-ME).  While Republicans are unlikely to run afoul of Bush’s sponsor, Senate Majority Leader Mitch McConnell (R-KY), there is a small chance some senators may choose to oppose Schiff.

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Justice Joan L. Larsen – Nominee to the U.S. Court of Appeals for the Sixth Circuit

Justice Joan Larsen of the Michigan Supreme Court, has been on President Trump’s radar for a long time.  Over a year ago, Trump included Larsen among a list of 11 jurists he would consider for the vacancy on the U.S. Supreme Court.[1]  While Trump chose Neil Gorsuch for that vacancy, Larsen was tapped shortly after for a vacancy on the U.S. Court of Appeals for the Sixth Circuit.  While the White House may hope for a swift confirmation for Larsen, her conservative record, along with the lack of consultation with Michigan’s senators, may raise concerns.

Background

Joan Louise Larsen was born in Waterloo-Cedar Falls, Iowa in December 1968.  After getting a B.A. with Highest Honors at the University of Northern Iowa,[2] Larsen attended Northwestern University School of Law, graduating first in her class in 1993.  After graduating, Larsen clerked for Judge David Sentelle at the U.S. Court of Appeals for the D.C. Circuit, and then for Justice Antonin Scalia on the United States Supreme Court.  After her clerkship, Larsen returned to the Washington D.C. Office of Sidley Austin LLP (where she had summered as a law student).  

In 1998, Larsen left Sidley to join the faculty of the University of Michigan Law School.[3]  Other than a short sixteen month stint at the Office of Legal Counsel (OLC) at the U.S. Department of Justice, Larsen taught constitutional law and criminal procedure there until 2015.

In 2015, Larsen was selected by Michigan Governor Rick Snyder for an opening on the Michigan Supreme Court.[4]  Larsen’s appoint drew bipartisan support, but was opposed by the Michigan ACLU, who objected to Larsen’s role at OLC in the Bush Administration.[5]

In 2016, Larsen’s name was included on a list of 11 jurists that would be considered for the Supreme Court under the Trump Administration.[6]  While Larsen reportedly did not solicit the mention, she nonetheless recused herself from a challenge to Trump’s electoral win by Green Party candidate Dr. Jill Stein.[7]

On March 9, 2017, Larsen was contacted by the White House Counsel’s Office about a judicial appointment.  While she interviewed with White House Counsel Don McGahn, Larsen’s name did not come from Michigan’s senators, and was not pre-cleared with them.  Larsen was officially nominated on May 8.[8]

History of the Seat

Larsen has been nominated for a Michigan seat on the U.S. Court of Appeals for the Sixth Circuit vacated by Judge David McKeague.  McKeague, a Republican who was tapped for the U.S. District Court for the Western District of Michigan by President George H.W. Bush, and elevated to the Sixth Circuit by President George W. Bush in 2005, has indicated that he will move to senior status upon confirmation of a successor.  As such, the seat will not open on the court until Larsen’s confirmation.

Political Activity

Michigan Supreme Court justices are elected in statewide elections to 8-year terms.  Even though these elections are ostensibly nonpartisan, the candidates are still nominated by political parties.  After Larsen’s appointment to the Michigan Supreme Court, she was nominated by the Michigan Republican Party to run for a full term on the court.[9]

During her campaign, Larsen described herself as a “Constitutional, rule of law judge.”  In campaign ads, Larsen emphasized her commitment to “equal justice for all.”  At the same time, Larsen’s supporters including the Chamber of Commerce described her and fellow Justice David Viviano as “not the kind of judges who will let people off on a technicality, implying that Larsen would be unwilling to overturn convictions even if they were obtained through police and prosecutorial misconduct.  In the 2016 general election, Larsen defeated Deborah Thomas, a judge in Michigan’s Third Circuit Court (and the Democratic nominee), winning 58% of the vote, performing significantly worse than fellow Justice David Viviano.[10]

Other than her own campaign for the Michigan Supreme Court, Larsen has scant experience with electoral politics.  In 1996, Larsen drafted and edited policy papers for the presidential campaign of then-Sen. Bob Dole.  In 2012, Larsen made a $500 contribution to Republican presidential candidate Mitt Romney, her only political contribution of record.

Legal Experience

Larsen has spent the vast majority of her legal career either in academia or on the bench.  Nevertheless, her short tenure in the practice of law (including two years at Sidley Austin and one year at OLC) suggests a conservative legal philosophy.

As an associate at Sidley Austin, Larsen was part of the trial team representing Glendale Federal Bank in a breach of contract case against the federal government.  Larsen helped formulate the theory of damages that secured a $381 million judgment for her client.[11]  Larsen also defended the manager of a meat-packing plant who was accused of discharging pollutants into federal waterways.[12]

From 2002 to 2003, Larsen worked as a Deputy Assistant Attorney General at OLC, essentially advising the Bush White House on the legality of its actions.  During Larsen’s tenure, OLC, under the leadership of then-head John Yoo, released a series of controversial memoranda arguing that the use of waterboarding on terror suspects did not violate the law.[13]  While Larsen has insisted that she was not involved in the drafting of those documents, the ACLU claims that she is the author of a classified memo on habeas corpus rights, and may be involved in more high profile discussions.[14]  As of May 2016, the memo authored by Larsen remains classified and has not been released.[15]

Jurisprudence

Larsen has served on the Michigan Supreme Court for approximately two years, hearing appeals from the Michigan lower courts, and serving as the final voice on Michigan state law. During her tenure, Larsen has written only six opinions.  They are outlined below:

In re Application of Consumers Energy Co. – Michigan state law permits businesses to recover the costs of purchasing pollutant allowances if the purchases were prompted by state law changes prior to October 6, 2008.  In this case, the plaintiffs sought to recover the costs of purchasing nitrous oxide allowances from the Michigan Public Service Commission.[16]  While a majority of the Michigan Supreme Court found that state law barred recovery, Larsen, joined by Justice David Viviano, dissented.  Larsen argued that, while the regulations in question were passed before the October 6 deadline, the extended timeline of implementing such regulations meant that the regulations would not come into effect until after that date.  As such, Larsen stated that the plaintiffs should be allowed to recover the costs of the allowances.[17]

People v. Seewald – This case involved a challenge to the conspiracy conviction of two campaign workers for former Rep. Thaddeus McCotter (R-MI).  The question was whether the defendants, who had agreed to falsely sign nominating petitions as “circulators” had committed “conspiracy” under the Michigan statute.  While the Court of Appeals found for the defendants, Larsen, writing for the unanimous Supreme Court, reversed, finding that the Michigan conspiracy statute covered the defendants’ conduct.[18]

Hodge v. State Farm Mut. Auto. Ins. Co. – This case asked whether Michigan district courts, which have subject matter jurisdictions over all civil cases involving less than $25000 in damages, have jurisdiction over a suit where the initial complaint alleges $25000 in damages, but the evidence in trial establishes greater damages.  Writing for a unanimous court, Larsen held that trial evidence of damages that exceed the jurisdictional limit does not divest a district court of jurisdiction over a civil case.[19]  Rather, Larsen found that jurisdiction is determined by the initial good-faith allegation of damages in the complaint.[20]

Arbuckle v. General Motors, LLC. – This case involved the coordination of workers’ compensation benefits and disability payments by General Motors in a way that allowed offsetting the benefits.  Larsen wrote for a unanimous court in finding that such coordination was permitted under Michigan law.[21]

Yono v. Dep’t of Transportation – The key question in this case was whether the government could be held liable for an injury that occurred on a parallel parking lane on a highway.  Larsen, writing for a 4-3 majority on the court, found that a parallel parking lane could not be considered “designed for vehicular travel” under the highway exception to the Governmental Tort Liability Act.[22]  As such, Larsen held that the government was immune against the plaintiff’s suit.[23]  In dissent, Justice Bridget McCormack argued that parking is necessarily part of “vehicular travel” and that, as such, the highway exception to governmental immunity did apply.[24]

In re Hicks – This case involved a challenge to the termination of the intellectually disabled plaintiff’s parental rights.  Writing for a unanimous court, Larsen found that the trial court had failed to consider the plaintiff’s intellectual disability in determining whether the termination was appropriate.[25]

In addition to the opinions she authored, the opinions Larsen has joined suggest a willingness to rule against plaintiffs[26] and criminal defendants.[27]  For example, in Hecht v. Nat’l Heritage Acads., Larsen joined an opinion by Chief Justice Robert Young vacating a grant of damages to a white teacher who was terminated based on racial bias.[28]  In Covenant Medical Center v. State Farm, Larsen joined Justice Brian Zahra in holding that healthcare providers couldn’t sue no-fault insurers for PIP benefits.[29]  In dissent, Justice Richard Bernstein argued that the majority’s reading contradicted the “plain language of the statute.”[30]

However, Larsen has also joined opinions that achieve more liberal outcomes.  For example, in Associated Builders & Contractors v. City of Lansing, Larsen joined Young’s opinion rejecting a challenge to Lansing’s minimum wage ordinance.[31]  In another case, Larsen joined a 5-2 majority on the court in holding that prosecutors were statutorily barred from using false statements made by police officers in an internal investigation to later prosecute those officers.[32]  In dissent, Justice Steven Markman argued that the majority’s reading of Michigan law goes against the “obvious purpose of the statute.”[33]

Speeches and Writings

As a prominent academic, Larsen has written extensively on constitutional structure, civil rights, and other areas of law.  One of her earliest articles, her law review note at Northwestern, explores the bar on using specific acts to show propensity in criminal cases.[34]  Specifically, Larsen argues that the bar should only be applied against evidence presented by the prosecution, and that barring the use of specific act evidence by a defendant prejudices a their ability to present a complete defense.[35]

In her writings, Larsen has generally been an advocate of expansive presidential powers. Notably, Larsen co-authored a paper on the Incompatibility Clause of the U.S. Constitution.[36]  Larsen and co-author Prof. Steven Calabresi argued that this clause was an essential guard of presidential power and prerogatives.[37]  Eliminating the clause would, Larsen wrote, “result in a fusion of the executive and legislative powers, with the Congress-filled Cabinet controlling the President’s exercise of his constitutionally granted powers.”[38]

Similarly, in an op-ed with the Detroit News, Larsen defended the use of presidential signing statements.[39]  Specifically, Larsen noted that signing statements (statements issued by the executive that “clarify” the scope of the law being signed) represent “the president’s independent vision of what the Constitution requires.”[40]  Larsen specifically brings up President Bush’s signing statement attached to a 2006 anti-torture bill.  She notes that the statement essentially says: “if the circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute.”[41]  Larsen’s endorsement of the use of signing statements in such a context reinforces her broad view of presidential powers and prerogatives.

Additionally, many of Larsen’s writings show an endorsement of originalism as the primary source of constitutional interpretation.  Originalism, or the theory that the constitution should be interpreted in accordance with the original meaning of the text, has drawn much criticism by liberal legal scholars.[42]  Nevertheless, Larsen frequently employs originalism as a tool for constitutional interpretation.[43]

Overall Assessment

Like most other appellate nominations made by the Trump Administration, Larsen is both young and judicially conservative.  Unfortunately for Larsen, these same factors make it likely that Democrats will look at her nomination with skepticism.

For critics of Larsen’s nomination, the best argument is procedural.  In nominating Larsen, the Trump Administration ignored decades of precedent and failed to consult with Michigan senators.  As such, Sen. Debbie Stabenow and Sen. Gary Peters are well within their rights to refuse to return blue slips and demand that the Administration engage in good faith consultations.  However, if blue slips are returned, Larsen’s thin paper trail will make it difficult to create a compelling case against her confirmation.

Larsen’s expansive views on presidential power are also likely to raise concerns among senators.  Her 2006 op-ed, and her statement that the president could claim to protect the nation by violating the law would raise concerns among those who favor a limited executive.

Additionally, with the emoluments clause suits proceeding against President Trump, senators may also raise Larsen’s writings on the related incompatibility clause.  Furthermore, some senators may raise Larsen’s votes in Yono and Hecht to suggest that she is biased against civil plaintiffs, although others will likely use her vote for the city in Associated Builders to point out her neutrality.

Overall, it is fairly clear that Larsen has both the intellectual heft and the requisite qualifications to serve on the judiciary.  The key question is whether her ideology would make her a result-oriented jurist.  If senators can answer that question in the negative, there is no reason to oppose her nomination. 

[1] Dara Lind and Dylan Matthews, Your Guide to President Donald Trump’s Supreme Court Shortlist, Vox, May 19, 2016, https://www.vox.com/2016/5/18/11703416/trump-supreme-court-shortlist.

[2] As a college student, Larsen stuffed envelopes and made phone calls for the presidential campaign of then-Senator Joe Biden.

[3] She also spent a semester as a visiting professor at Northwestern University Law School.

[4] Paul Egan, Snyder Appoints Joan Larsen to Supreme Court, Detroit Free Press, Sept. 30, 2015, http://www.freep.com/story/news/local/michigan/2015/09/30/snyder-appoints-joan-larsen-supreme-court/73079114/.

[5] See id.

[6] Lind, supra n.1.

[7] Kathleen Gray, Michigan Supreme Court Justices Recuse Themselves from Recount Case, Detroit Free Press, Dec. 9, 2016, http://www.freep.com/story/news/politics/2016/12/09/michigan-supreme-court-recount/95194974/.

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

[9] Emily Lawlor, See Democratic and Republican Candidates for Supreme Court, University Boards, MLive.com, Aug. 28, 2016, http://www.mlive.com/news/index.ssf/2016/08/see_democratic_and_republican.html.

[10] Michael Gerstein, Viviano, Larsen Win Re-Election to Mich. Supreme Court, The Detroit News, Nov. 8, 2016, http://www.detroitnews.com/story/news/politics/elections/2016/11/08/michigan-supreme-court-results/93501312/.

[11] Glendale Federal Bank v. United States, 43 Fed. Cl. 390 (1999).

[12] See United States v. Sinskey, 4:96-cr-40010-LLP-1 (D.S.D. 1996), aff’d 119 F.3d 712 (8th Cir. 1997).

[13] See Lind, supra n. 1.

[14] Rick Pluta, UM Law Professor Joan Larsen Named to Michgan [sic] Supreme Court”, WDET, Oct. 1, 2015, http://wdet.org/posts/2015/10/01/81659-um-law-professor-joan-larsen-named-to-michgan-supreme-court/.

[15] See Lind, supra n. 1.

[16] See In re Application of Consumers Energy Co., 876 N.W.2d 566 (Mich. 2016).

[17] See id. (Larsen, J., dissenting).

[18] People v. Seewald, 879 N.W.2d 237, 242 (Mich. 2016).

[19] Hodge v. State Farm Mut. Auto. Ins. Co., 884 N.W.2d 238 (Mich 2016).

[20] See id. at 239.

[21] Arbuckle v. General Motors, LLC., 885 N.W.2d 232 (Mich. 2016).

[22] Yono v. Dept’ of Transp., 885 N.W.2d 445 (Mich 2016).

[23] See id. at 456.

[24] See id. at 458-59 (McCormack, J., dissenting).

[25] In re Hicks, 893 N.W.2d 637 (Mich. 2017).

[26] See Deacon v. Pandora, 885 N.W.2d 628 (Mich. 2016) (holding that plaintiff did not constitute a “customer” of Pandora’s for the purpose of seeking damages for publicly disclosing his personal information).

[27] See People v. Hall, 884 N.W.2d 561 (Mich 2016) (holding that a defendant who forged signatures on a nominating petition, could be charged with felony forgery).

[28] Hecht v. Nat’l Heritage Acads, 886 N.W.2d 135 (Mich. 2016).

[29] Covenant Med Cntr. v. State Farm Mut. Auto. Ins. Co., __ N.W.2d __ (Mich. 2017) (No. 152758).

[30] Id. at *28 (Bernstein, J., dissenting).

[31] Assoc. Builders & Contractors v. City of Lansing, 880 N.W.2d 765 (Mich. 2016).

[32] People v. Harris, 885 N.W.2d 832 (Mich 2016).  

[33] See id. at 860 (Markman, J., concurring in part and dissenting in part).

[34] Joan Larsen, Of Propensity, Prejudice, and Plain Meaning: The Accused’s Use of Exculpatory Specific Acts Evidence and the Need to Amend Rule 404(b), 87 NW. U. L. Rev. 651 (1993).  

[35] See id. at 690.

[36] Article I, Section 6, Clause 2 prohibits individuals from serving simultaneously in the executive and the legislative branches.

[37] Steven G. Calabresi and Joan Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 Cornell L. Rev. 1045 (1994).

[38] Id. at 1118.

[39] Joan Larsen, Bar Group is Wrong, Presidents can Interpret Laws They Sign, Detroit News, Sept. 13, 2006, https://www.law.umich.edu/newsandinfo/pdf/Documents/06_09_september_bargroup.pdf.

[40] Id.

[41] Id.

[42] See, e.g., Nina Totenberg, Justice Breyer: The Case Against ‘Originalists’, Nat’l Pub. Radio, Sept. 30, 2005, http://www.npr.org/templates/story/story.php?storyId=4930456.

[43] See, e.g., Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010), Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1309-16 (2004).  

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The Age Question

Earlier this year, various news reports announced that the White House Counsel’s Office was interviewing several lawyers in their late 30s and early 40s for judgeships.  The youth of these prospective nominees became the fodder of much consternation for liberals, and enthusiasm for conservatives.  Six months into the Trump Administration, it is worth looking at the nominees submitted to see if they are, on the age front, out of the mainstream for judicial nominations.

Court of Appeals Nominees:

President Trump has selected nine nominees to the federal appellate bench. They (along with their year of birth) are:

  • Stephanos Bibas (1969) – Third Circuit
  • Judge Amul Thapar (1969) – Sixth Circuit
  • John Bush (1964) – Sixth Circuit
  • Joan Larsen (1968) – Sixth Circuit
  • Prof. Amy Coney Barrett (1972) – Seventh Circuit
  • Justice David Stras (1974) – Eighth Circuit
  • Judge Ralph Erickson (1959) – Eighth Circuit
  • Justice Allison Eid (1965) – Tenth Circuit
  • Kevin Newsom (1972) – Eleventh Circuit

The average birth year of these nominees is 1968, giving them an average age of 49.

In comparison, the first nine nominees submitted by the Obama Administration were:

  • O. Rogeriee Thompson (1951) – First Circuit
  • Judge Gerald Lynch (1951) – Second Circuit
  • Judge Joseph Greenaway (1957) – Third Circuit
  • Judge Thomas Vanaskie (1953) – Third Circuit
  • Judge Andre Davis (1949) – Fourth Circuit
  • Justice Barbara Milano Keenan (1950) – Fourth Circuit
  • Jane Stranch (1953) – Sixth Circuit
  • Judge David Hamilton (1957) – Seventh Circuit
  • Judge Beverly Martin (1955) – Eleventh Circuit

The average birth year of these nominees is 1952.9, which, in 2009, gave them an average age of 56.1.

By this comparison, Trump’s appellate nominees are, on average, about seven years younger than Obama’s, a significant difference.

However, to have a truly accurate comparison, we have to look at previous presidents as well.

President Bush announced his first eleven appellate nominees in a joint ceremony on May 9, 2001.  Setting aside Judges Roger Gregory and Barrington Daniels Parker, who were both Democrats chosen for bipartisanship, we can look to the other nine conservatives as a comparison.  They were:

  • Miguel Estrada (1961) – D.C. Circuit
  • John Roberts (1955) – D.C. Circuit
  • Judge Terrence Boyle (1945) – Fourth Circuit
  • Judge Dennis Shedd (1953) – Fourth Circuit
  • Judge Edith Brown Clement (1948) – Fifth Circuit
  • Justice Priscilla Owen (1954) – Fifth Circuit
  • Justice Deborah Cook (1952) – Sixth Circuit
  • Jeffrey Sutton (1960) – Sixth Circuit
  • Prof. Michael McConnell (1955) – Tenth Circuit

These nine have an average birth year of 1953.7, which, in 2001, translates to an average age of 47.3.  This not only makes them younger than Trump’s nominees, it also makes them, in absolute terms, younger than Obama’s as well.

President’s Clinton’s first nine appellate nominees were:

  • Judge Judith Ann Wilson Rogers (1939) – D.C. Circuit
  • Judge Pierre Leval (1936) – Second Circuit
  • M. Blane Michael (1943) – Fourth Circuit
  • Judge Diana Gribbon Motz (1943) – Fourth Circuit
  • Fortunato Benavides (1947) – Fifth Circuit
  • Judge Robert Manley Parker (1937) – Fifth Circuit
  • Judge Carl Stewart (1950) – Fifth Circuit
  • Justice Martha Craig Daughtrey (1942) – Sixth Circuit
  • Justice Rosemary Barkett (1939) – Eleventh Circuit

These nine nominees had an average birth year of 1941.8 and an age (in 1993) of 51.2.

In other words, the average age of President Trump’s appellate appointees, 49, falls squarely between those of President Bush’s (47.3), and President Clinton’s (51.2).  The only outlier is the group of nominees submitted by President Obama, who are significantly older than the norm.

District Court Nominees

As of July 3, 2017, President Trump has announced seven district court nominees.  The oldest of the nominees is Judge David Nye, born in 1958.  The youngest is Trevor McFadden, born in 1978.  The seven nominees have an average birth year of 1967, and an average age of 50.

In comparison, the average birth year of the first six nominees made by President Obama is 1960, with an average age of 49.

The average birth year of the first seven nominees made by President Bush is 1949, with an average age of 52.

The average birth year of the first ten nominees made by President Clinton is 1943.5, with an average age of 49.5,

In other words, the age of President Trump’s district court nominees is within the mainstream of the previous three presidents.

Setting aside the hype on both sides, Trump’s judicial nominees, at least so far, are not significantly younger than the nominees of previous presidents.  Rather than spending more ink criticizing the youth of Trump’s nominees, it may be worth pondering why the Obama Administration squandered its own opportunity to appoint young liberals to the bench, instead choosing judges in their late 50s and early 60s.

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Trevor McFadden – Nominee to the U.S. District Court for the District of Columbia

A longtime member of the Federalist Society, Trevor McFadden, in many ways, represents their ideal for a judicial candidate.  He is strongly conservative, young, and has excellent academic credentials.  Each of these points, conversely, is likely to draw Democratic opposition.

Background

Trevor Neil McFadden was born in Alexandria, VA in 1978.  After getting his B.A. from Wheaton College in Illinois, McFadden spent two years as an officer with the Fairfax County Police Department.  In 2006, McFadden graduated from the University of Virginia School of Law with the Order of the Coif, indicating superior academic performance.  McFadden then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.[1] 

After his clerkship, McFadden joined the Department of Justice, serving as Counsel for the Deputy Attorney General.  After the inauguration of the Obama Administration, McFadden joined the U.S. Attorney’s Office for the District of Columbia, serving as a prosecutor for four years.  During this time, he also served as a Part-time Deputy Sheriff for the Madison County Sheriff’s Office.

In 2013, McFadden left the U.S. Attorney’s Office to join the D.C. Office of Baker & McKenzie, LLP.  After the election of President Trump, McFadden rejoined the Department of Justice, this time as second in command at the Criminal Division.

McFadden has been a member of the Federalist Society since 2003.

History of the Seat

The seat McFadden has been nominated for opened on December 31, 2016, with Judge Richard Leon’s move to senior status.  On On March 2, 2017, McFadden was informed of the White House’s interest in naming him to the vacancy.  McFadden was formally nominated by President Trump on June 7.

Legal Experience

McFadden may be a couple of years shy of forty, but he has managed to accumulate an impressive breadth of legal work in that time.  While McFadden has taken on prominent policy roles in the Department of Justice, and has advised numerous corporations on compliance with federal law at Baker McKenzie, the bulk of his courtroom experience is from his stint as a federal prosecutor.

As an AUSA, McFadden worked primarily on prosecuting violent crimes.  For example, McFadden successfully prosecuted a man who assaulted and robbed a 78 year old dialysis patient, .[2]  McFadden also successfully defended the conviction of a defendant convicted of conspiring to distribute over a kilogram of PCP.[3]

Nevertheless, McFadden’s stint at the Criminal Division of the Department of Justice may draw more scrutiny.  In this role, McFadden serves as second in command to Acting Assistant Attorney General Kenneth Blanco.  McFadden may draw questions related to the recent charging memo released by Attorney General Jeff Sessions, calling on federal prosecutors to charge defendants with the strongest possible charges regardless of other factors.[4]  McFadden may also face questions as to his involvement with the Department’s efforts to crack down on sanctuary cities.

Political Activity

McFadden has been fairly active in the Republican party, having canvassed for GOP candidates since his high school days.  In his SJQ, McFadden notes that he has canvassed for President George W. Bush’s 2000 and 2004 campaigns, Mitt Romney’s 2012 campaign, and Rep. Tom Davis’ 1996 election campaign among others.

McFadden is also a supporter of President Trump, having donated $1000 to his election efforts, and being a vetter for his transition team.

Overall Assessment

As noted above, the young, conservative, and ambitious McFadden is likely to be a template for Trump nominees to the federal bench.  As such, Democrats are likely to look for reasons not to support his nomination.

Most of the objections that can be drawn to McFadden are based on process.  Unlike previous administrations, the Trump Administration declined to consult with D.C. Delegate Eleanor Holmes Norton in making federal court nominations.  McFadden has already drawn criticism from Norton for not being a D.C. resident.[5]  Furthermore, McFadden’s hearing, scheduled for the 28th of June, is moving forward without an ABA rating on his nomination.  Furthermore, McFadden’s 14-year long history with the Federalist Society is unlikely to be missed as well.  As such, expect a more difficult confirmation process for McFadden than his fellow D.C. nominees Friedrich and Kelly.

[1] Colloton himself is a former prosecutor and a shortlist candidate for a Supreme Court vacancy.

[2] See United States v. Brown, 2011-CF3-0160000 (D.C. Super. Ct.) (Judge Pan).

[3] United States v. Bell, 708 F.3d 223 (D.C. Cir. 2013).  

[4] See Matt Ford, Jeff Sessions Reinvogarates the Drug War, The Atlantic, May 12, 2017, https://www.theatlantic.com/politics/archive/2017/05/sessions-sentencing-memo/526029/.

[5] Press Release, Office of the MP Eleanor Holmes Norton, Norton Urges Senate Democrats to Question D.C. Federal Nominees on Residency, Familiarity with D.C., After White House Nominates Non-D.C. Residents for the U.S. District Court and U.S. Attorney for the District of Columbia (June 13, 2017).

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Timothy Kelly – Nominee to the U.S. District Court for the District of Columbia

Typically, when choosing federal district court judges, presidents defer to home state senators.  While most senators make their selections from the pool of politically active litigators, federal prosecutors, state court judges, and federal magistrates, some turn to a different pool: their employees.  Over the past few decades, several staffers on the Senate Judiciary Committee have been nominated and confirmed for the federal bench.  Most notably, Justice Stephen Breyer was a staffer for then-Judiciary Chairman Edward Kennedy (D-MA) before he was tapped for the federal bench.  Similarly, Sen. Strom Thurmond (R-SC) tapped multiple veterans of his staff for judgeships including Judge Dennis Shedd of the U.S. Court of Appeals for the Fourth Circuit, and Judges Henry Herlong and Terry Wooten of the U.S. District Court for the District of South Carolina.  Timothy Kelly, a prominent staffer to current Judiciary Chairman Chuck Grassley (R-IA), follows that long tradition.    

Background

Timothy James Kelly was born in Glen Cove, NY in 1969.  After getting an A.B. from Duke University in 1991, Kelly joined the New York office of Cleary, Gottlieb, Steen & Hamilton as a legal assistant, working there for two years.  In 1993, Kelly left his position as Cleary to work as a staff assistant for the U.S. House Committee on House Administration.  During this position, Kelly also worked as a waiter and doorman at the popular Capitol Hill bar, Hawk ‘N’ Dove.  

In 1994, Kelly left both positions to join the Georgetown University Law Center, getting his J.D. in 1997.  Kelly then joined the D.C. office of Arnold & Porter, where he had previously worked as a law clerk.  He worked at Arnold & Porter until 2003, other than a one-year stint as a loaned associate to the Legal Aid Society for the District of Columbia and another year clerking for Judge Ronald Buckwalter on the U.S. District Court for the Eastern District of Pennsylvania.

In 2003, Kelly was hired by Roscoe C. Howard to join the U.S. Attorney’s Office for the District of Columbia, eventually moving up to the Major Crimes section of the Criminal Division.  In 2007, Kelly moved to the Department of Justice’s Criminal Division, fighting corruption in the Public Integrity section.

In 2013, Kelly was hired by Sen. Grassley to serve as Counsel and as the Republican Staff Director to the Senate Caucus on International Narcotics Control.  Kelly currently serves as Grassley’s Chief Counsel for National Security and Senior Crime Counsel.

History of the Seat

The seat Kelly has been nominated for opened on May 18, 2016, with Judge Rosemary Collyer’s move to senior status.  On September 6, 2016, President Obama nominated Abid Riaz Qureshi, a litigation partner at Latham & Watkins to fill the vacancy.[1]  Qureshi, who would have been the first Muslim to serve as a federal judge,[2] never received a hearing on his nomination.

Legal Experience

Kelly’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1997-2003, where he worked as an associate at Arnold & Porter.  The second is from 2003-2013, where Kelly worked as a federal prosecutor and DOJ attorney.  The final is from 2013-2017, where Kelly served in the legislative branch.  We will focus on the first two periods.

Kelly’s time at Arnold & Porter was focused on defending pharmaceutical companies against product liability lawsuits.  Kelly served on the legal team defending American Home Products Corp. (Wyeth) in tort lawsuits relating to their sale of diet drugs.  The team ultimately reached a national settlement over the claims during simultaneous state court trials in Mississippi and New Jersey.[3]

As an AUSA, Kelly worked on several trial and appellate level prosecutorial matters, including misdemeanors, violent crimes, and white collar offenses.  For example, Kelly successfully prosecuted a defendant for threatening his former girlfriend with a gun and assaulting her.[4]  Kelly also argued three criminal appeals at the D.C. Court of Appeals.

At the Public Integrity Section, Kelly focused on the investigation and prosecution of political corruption.  Kelly prosecuted Eugenio Pedraza, Special Agent-in-Charge for the Department of Homeland Security, who conspired with fellow agents to falsify investigative reports.[5]  Kelly also successfully prosecuted Donna Scott for steering Department of Energy contracts to her husband.[6]  Notably, Kelly successfully prosecuted the Lt. Governor of the American Samoa, and a senator in the American Samoa legislature for public corruption.[7]

In 2010, Kelly was part of the legal team prosecuting former CIA agent Jeffrey Sterling for his unauthorized disclosure of classified information to journalist James Risen.  Before Sterling’s trial, the prosecution missed a discovery deadline imposed by Judge Leonie Brinkema, submitting key impeachment evidence one day late.  Judge Brinkema sanctioned Kelly and the other government attorneys for the missed deadline by striking two government witnesses.  The Fourth Circuit, in a 2-1 decision, overturned this sanction as an abuse of discretion, noting that the government conduct was not made in bad faith.[8]  Nevertheless, the majority opinion noted that it cannot “condone the Government’s oversight.”[9] 

Political Activity

Kelly, a Republican, has a relatively short record of political activity.  In 2008, Kelly made multiple contributions totalling $1200 to Sen. John McCain (R-AZ) (who was then running for president).[10]  In 2012, Kelly contributed $1250 to Mitt Romney’s presidential candidacy.  Further, in 2014, Kelly traveled to Iowa to canvass and make phone calls for the successful candidacy of Sen. Joni Ernst (R-IA).

Overall Assessment

Kelly has an unusually well-rounded resume for a federal district court position.  Having worked in private practice, as a federal prosecutor, and in the legislative process, Kelly will approach the bench with a broad array of legal experience.  Furthermore, Kelly also has experience working with indigent clients, as he spent a year representing low income residents of Washington D.C. in cases involving public benefits, landlord-tenant, and family law.  

It must also be noted that Kelly’s pre-law school experience is relatively rare for a federal judicial nominee.  Of the nominees we have reviewed, Kelly is the first to have worked two jobs simultaneously, the first to have worked in the service industry, and the first to report having received federal financial aid.[11]  Given the privileged pedigrees of many nominees, Kelly’s background is refreshingly different.

Given these factors, and the lack of any controversial stances in his background (although like most other Trump nominees, Kelly is a longtime member of the Federalist Society), Kelly should face a relatively smooth path to confirmation.  If nothing else, Kelly’s time as a committee staffer should help grease the path.  After all, who knows Kelly better than those who work with him every day.

[1] Press Release, White House, President Obama Nominates Abid Riaz Quereshi to Serve on the United States District Court for the District of Columbia (Sept. 06, 2016) (on file at https://obamawhitehouse.archives.gov).  

[2] Jennifer Bendery, Barack Obama Just Nominated a Muslim to be a Federal Judge.  That’s A First, HuffPost, Sept. 6, 2016, http://www.huffingtonpost.com/entry/obama-muslim-federal-judge_us_57cf2cfbe4b03d2d45970d3a.

[3] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[4] See United States v. Williams, 2006 CF3 025277 (D.C. Super. Ct.) (Judge Dixon).

[5] United States v. Pedraza, No. 1:13-cr-00305 (S.D. Tex.) (Judge Hanen), aff’d, 636 Fed. Appx. 229 (5th Cir. 2016).

[6] United States v. Donna Scott, No. 1:10-cr-00025 (D. Md.) (Judge Messitte).

[7] United States v. Sunia and Lam Yuen, 643 F. Supp. 2d 51 (D.D.C. 2009).

[8] United States v. Sterling, 724 F.3d 482, 512-13 (4th Cir. 2013).

[9] Id. at 512.

[10] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=timothy+kelly (last visited June 27, 2017).  

[11] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.

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Dabney Friedrich – Nominee to the U.S. District Court for the District of Columbia

Dabney Friedrich’s nomination to the U.S. District Court for the District of Columbia was announced by President Trump on May 8, 2017, but was not formally nominated to the Senate until June 7.  While the cause of the delay is unknown, it is unlikely to hinder the well-qualified Friedrich’s path to the bench.

Background

Dabney Langhorne Friedrich was born June 19, 1967.  After receiving her Bachelor of Arts from Trinity University and diploma in legal studies from Oxford University she received her law degree from Yale Law School where she served as the senior editor on the Yale Journal on Regulation.  

Friedrich clerked for Judge Thomas F. Hogan of the United States District Court for the District of Columbia.  She prosecuted criminal cases as an Assistant United States Attorney for the Southern District of California and Eastern District of Virginia, and then served as Chief Crime Counsel to chairman Orrin Hatch of the Senate Judiciary Committee, and Associate White House Counsel to the President during the George W. Bush Administration, where she assisted with the nomination and confirmation of federal judges.

In 2006, George W. Bush appointed Friedrich a Commissioner on the United States Sentencing Commission, the independent agency that issues sentencing guidelines and recommendations for federal judges and congressional review. She was re-nominated to the same position by Barack Obama, and has served on the Sentencing Commission through the recent expiration of her term at the end of 2016.  

History of the Seat

Friedrich was nominated to the vacancy left by Reggie Walton, who assumed senior status on December 31, 2015.  Judge Walton, a George W. Bush appointee was similarly a former prosecutor and was appointed to the National Prison Rape Elimination Commission, where he made recommendations to the President, Congress, and Attorney General regarding methods to curb incidents of rape among the incarcerated.  Judge Walton also served a seven-year term on the Foreign Intelligence Surveillance Court, being elevated to its presiding judge in 2013.  

On April 28, 2016, a few months after the seat opened up, President Obama nominated Judge Florence Pan, a judge on the Superior Court of the District of Columbia to fill the vacancy.  Judge Pan received a hearing before the Republican-controlled Senate Judiciary Committee on July 13, and was unanimously approved on September 15.  However, at that point, Pan ran into Senate Majority Leader Mitch McConnell’s blockade on judicial confirmations, and was ultimately returned unconfirmed.

Legal Background  

While Friedrich has extensive experience with criminal law both as a federal prosecutor, and as chief counsel to Sen. Hatch, it is her work on criminal sentencing that is likely to draw the most interest.  

During her time on the Sentencing Commission, Friedrich has worked to eliminate race-based disparities and establish sentencing uniformity.  In 2011, Friedrich joined the Sentencing Commission’s unanimous decision recommending that prisoners incarcerated for offenses involving crack cocaine be eligible for early release.  Friedrich also voted in favor of giving retroactive effect to the Fair Sentencing Act of 2010, which drastically reduced recommended sentences for crack cocaine crimes, to fix the longstanding disparity in sentencing crack vs. powder cocaine crimes.  This allowed offenders who were imprisoned for crack offenses before the new law took effect to benefit as well.  In media comments about the changes, Friedrich noted that political support for sentencing reform will be accomplished by pressure in Congress to control the costs of the U.S. prison system.[1]  Friedrich has also stressed the importance for national uniformity of sentencing, and the efforts of the Department of Justice to provide consistent supervisory guidance to prosecutors across the country.[2]

Over the past six years, under Friedrich’s tenure, the Commission has taken a number of actions to address sentencing disparities and reduce the federal prison population.  In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge.[3] Some of the most recent work of the Commission has included a unanimous vote to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score, following a May 2016 report by the Commission’s Tribal Issues Advisory Group.[4]  Friedrich’s work on these matters suggests a pragmatic approach to criminal sentencing, which tempers retributive justice with other sentencing goals.

Overall Assessment

With a long and distinguished career in public service, Friedrich has had the opportunity to work on numerous issues that directly affect District Court judges, and her background on the sentencing commission shows that she supports reasonable reforms to sentencing laws aimed at reducing the overpopulation of prisons for drug-related offenses.  

Friedrich’s re-nomination to the Commission by the Obama administration also shows her bi-partisan appeal.  If confirmed – and little suggests that she would be a controversial appointment – she will likely use the same consistent, evidence-based approach to the law that has characterized her work at the Sentencing Commission.  

[2] http://www.reuters.com/article/us-usa-courts-sentences-idUSBREA2C08J20140313

[4] Id.

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Thoughts on Today’s Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing for three of President Trump’s judicial nominees: John Bush, nominated for the Sixth Circuit, Kevin Newsom, nominated for the Eleventh Circuit, and Damien Schiff, nominated for the Court of Federal Claims.  Anyone interested can watch the hearing, but I wanted to offer some preliminary observations.

DISCLAIMER: These are my subjective views.  Obviously, opinions will differ, and I don’t claim to be an authority on confirmation hearings.

  1. It was a Good Day for Kevin Newsom – Early in the hearing, it was clear that Democrats did not particularly care to make a case against Kevin Newsom’s confirmation.  Ranking Member Dianne Feinstein (D-CA) set the tone when she stated that she would not hold the GOP blockade of Judge Abdul Kallon to this seat against Newsom.  For his part, Newsom navigated questions related to substantive due process with ease, charmed senators on both parties, and even offered a moment of genuine emotion during his opening statement when he remembered his late sister.  Some Senators, including Sen. Al Franken (D-MN), didn’t even bother to ask Newsom any questions, while Sen. Richard Blumenthal (D-CT) went out of his way to praise the nominee for his pro bono advocacy of immigrants.  In short, Newsom should feel pretty good about his chances.
  2. It was a Bad Day for John Bush – John Bush went into this hearing having already faced sustained opposition from liberal groups over his blogging and his speeches. He tried to rehabilitate himself early by apologizing for using a racial slur in a previous speech.  However, Democrats largely ignored that particular complaint, instead focusing on his blogging.  Both Sen. Feinstein and Sen. Franken took Bush to task over his writings, focusing on his criticism of Roe v. Wade and his citing of conspiracy theories respectively.  Perhaps Bush’s lowest point came when Sen. John Kennedy (R-LA), whose vote Bush needs to advance, declined to ask him any questions, instead pithily noting: “I’ve read your blog; I’m not impressed.”  A rattled Bush failed to seize on a lifeline offered by Sen. Thom Tillis (R-NC), telling the senator that impartiality as a judge was an “aspiration” rather than an “absolute expectation.”  To make things worse, Newsom stepped in to disagree and state that impartiality was an “absolute expectation” from judges.  Of course, none of this is to say that Bush will not be confirmed.  However, he did not make things any easier for himself.
  3. Nobody Cares About Damien Schiff – Walking into this hearing, Damien Schiff was likely the easiest nominee to oppose, given his inflammatory writing, including his reference to Justice Anthony Kennedy as a “judicial prostitute.”  However, only a handful of senators stayed to question Schiff, and of them, only Sen. Franken seriously questioned Schiff’s blogging.  Schiff’s explanation that the term was intended to criticize the media’s reporting on the Supreme Court (an explanation that falls apart the moment you actually read the entire post) was never challenged. This lack of attention speaks to how little senators (and probably the general public) cares about the court of federal claims.

There are other observations that can no doubt be made, but I will limit myself to those three.  Overall, while the hearing was interesting, it had little that will attract media attention or the anger of the broader public.  For nominees seeking confirmation, that can only be seen as a good thing.

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The Consultation Double-Standard

Let’s compare excerpts from the Senate Judiciary Questionnaires of two judicial nominees:

“In January 2017, I was asked separately by both Congressman Erik Paulsen and Congressman Tom Emmer if I would be interested in being nominated to fill a vacant position on the United States Court of Appeals for the Eighth Circuit.  I indicated I would be interested.  In early February 2017, Congressman Paulsen, Congressman Emmer, and Congressman Jason Lewis sent a letter to the White House recommending that I be nominated for the position.  Each congressman met with me separately.  Also in early February 2017, I corresponded and spoke with an official from the White House Counsel’s Office about the vacancy and my potential interest in the position…”

“There is a commission formed by Senators Baldwin and Johnson to recommend judicial candidates to the Senators.  I applied to that commission and was interviewed on November 18, 2014 in Madison, Wisconsin.  On May 7, 2015, Senator Baldwin asked for my permission to include my name on a list of candidates she sent to the White House for consideration…On October 28, 2015, I interviewed with staff from Senator Johnson’s office in Milwaukee, and on November 5, 2015, I interviewed with Senator Johnson at his office in Washington D.C.”

The first is the description of the judicial nomination process offered by Justice David Stras, nominated for a Minnesota seat on the Eighth Circuit, a state with two Democratic Senators.  The second is a description of the same process offered by Donald Schott, a Wisconsin attorney nominated by President Obama to a seat on the Seventh Circuit (but never confirmed).  At the time, Wisconsin had a Democratic and a Republican Senator.

Let’s look at other examples.  Here is Justice Joan Larsen’s path to a Michigan seat on the Sixth Circuit (Michigan has two Democratic Senators):

“Since March 9, 2017, I have been in contact with officials from the White House Counsel’s Office and the Department of Justice Office of Legal Policy about a potential federal judicial appointment.  On April 27, 2017, I interviewed with White House Counsel Don McGahn in Washington D.C.  On May 8, 2017, the President submitted my nomination to the Senate.”

In comparison, here is the path for Judge Carolyn McHugh, who was nominated by Obama to a Utah seat on the Tenth Circuit (Utah has two Republican Senators):

“In January 2013, I submitted a cover letter and resume to Senator Orrin Hatch and to Congressman Jim Matheson for a possible position on the Tenth Circuit.  On January 16, 2013, I interviewed with Senator Hatch and Senator Mike Lee, and on January 30, 2013, I interviewed with Congressman Jim Matheson.  On February 4, 2013, I was notified by Senator Hatch that he and Senator Lee would be recommending me to the White House for consideration.”  

The contrast is stark.  Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process.  Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.

 

Consultation under Obama

On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.  Specifically, the letter noted:

“The principle of senatorial consultation (or senatorial courtesy)…dates to the Administration of George Washington.  Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications for federal service.”

The letter goes on to state a bright-line rule on judicial nominees:

“…if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators.  For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.  

In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips:

  • Louis Butler – Western District of Wisconsin
  • Elissa Cadish – District of Nevada
  • Alison Lee – District of South Carolina
  • Jennifer May-Parker – Eastern District of North Carolina
  • Arvo Mikkanen – Northern District of Oklahoma
  • Victoria Nourse – Seventh Circuit Court of Appeals
  • Natasha Perdew Silas – Northern District of Georgia
  • Steven Six – Tenth Circuit Court of Appeals
  • William Thomas – Southern District of Florida

When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips.  During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked:

  • Donald Beatty – District of South Carolina
  • Mary Barzee Flores – Southern District of Florida
  • Rebecca Ross Haywood – Third Circuit Court of Appeals
  • Lisabeth Tabor Hughes – Sixth Circuit Court of Appeals
  • Abdul Kallon – Eleventh Circuit Court of Appeals
  • Myra Selby – Seventh Circuit Court of Appeals
  • Dax Erik Shepard – Northern District of Georgia
  • Patricia Timmons-Goodson – Eastern District of North Carolina

 

Consultation under Trump

Under a Trump Administration, Senate Republicans’ dedication to the even-handed application of senatorial courtesy has dimmed.  Rather, some Republicans seem to be ready to trash the “special responsibility” they once defended.

At any rate, such rhetoric may end being just that: rhetoric.  Tradition and principles aside, there are many practical reasons for keeping the blue slip.  Even if Republicans seek to look only at short-term interests, there is one key number to keep in mind: two.  In order words, if all Democrats line up against a nominee, Republicans can only afford to lose two of their own Senators without risking the judge’s confirmation.  While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.  

In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.  If nothing else, it gives the nominees a champion in the convoluted Senate confirmation process.  To use the words of the Senate Republican Conference:

“[Republicans], as a Conference, expect [senatorial consultations] to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not.”

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President Trump Announces Ten New Judicial Nominations

Today, according to the Washington Times, President Trump nominated three judges to the U.S. Court of Appeals.  They are:

Stefanos Bibas, a law professor at the University of Pennsylvania and the director of the University’s Supreme Court Clinic, was nominated to the Third Circuit Court of Appeals.

Judge Ralph Erickson, a federal trial judge on the U.S. District Court for the District of North Dakota, was nominated to the Eighth Circuit Court of Appeals.

Justice Allison Eid of the Colorado Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Tenth Circuit Court of Appeals.

Trump also named three judges to the U.S. District Courts.  They are:

Claria Horn Boom, a Lexington attorney, was nominated to a joint seat on the Eastern and Western Districts of Kentucky.

Timothy J. Kelly, chief counsel to Senate Judiciary Committee Chairman Chuck Grassley, was nominated to the U.S. District Court for the District of Columbia.

Trevor McFadden, a deputy assistant attorney general in the Department of Justice, was nominated to the U.S. District Court for the District of Columbia.

Finally, Trump nominated Stephen S. Schwartz to the U.S. Court of Federal Claims, and Michael P. Allen, Amanda Meredith, & Joseph Toth to the U.S. Court of Appeals for Veterans Claims.

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