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.

Judge Richard Sullivan – Nominee to the U.S. Court of Appeals for the Second Circuit

When the 43 year old Sullivan was confirmed to the U.S. District Court for the Southern District of New York in 2007, legal observers predicted that the young judge would go far. However, the election of President Obama in 2008 short-circuited Sullivan’s expected rise to the Second Circuit (and potentially further).  Now, ten years later, the 54-year-old conservative is getting the long-delayed promotion.

Background

A native New Yorker, Richard Joseph Sullivan was born in Manhasset on April 10, 1964.  Sullivan received his B.A. from the College of William & Mary in 1986 and his J.D. from Yale Law School in 1990.[1]  After graduating, Sullivan clerked for Judge David Ebel on the U.S. Court of Appeals for the Tenth Circuit and then joined the New York firm Watchell Lipton Rosen & Katz as an associate.

In 1994, Sullivan joined the U.S. Attorney’s Office for the Southern District of New York, working as a prosecutor for the next 11 years.  In 2005, Sullivan joined Marsh Inc. as General Counsel.[2]  Two years later, President George W. Bush nominated Sullivan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Michael Mukasey’s move to senior status.  Sullivan was unanimously confirmed by the U.S. Senate on June 28, 2007.  Sullivan currently serves in that capacity.

History of the Seat

Sullivan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Richard Wesley, who moved to senior status on August 1, 2016.

In March 2017, Sullivan was contacted by the White House to gauge his interest in the Second Circuit.[3]  Sullivan’s name was suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Once approved, Sullivan began the nomination process in November 2017 and was nominated on May 7, 2018.

Legal Career

Sullivan has spent the most significant portion of his pre-bench career as a federal prosecutor.  Notably, Sullivan served as head of the Narcotics Unit at the U.S. Attorney’s Office for the Southern District of New York.  As such, Sullivan prosecuted a number of cases involving international drug trafficking, drug-related organized crimes, and drug-related corruption cases.[5]

From 2005 to 2007, Sullivan served as Deputy General Counsel for Litigation at Marsh & McLennan Companies, Inc. and then as General Counsel at Marsh, Inc.  In this role, Sullivan managed the in-house legal team at Marsh, a large insurance broker.

Jurisprudence

Sullivan has served as a federal trial judge for approximately eleven years.  His record on the bench is generally conservative, particularly on criminal issues.[6]  One observer has noted that the assignment of a criminal case to Sullivan strikes “fear into defense attorneys and their Wall Street clients…”[7]  Notably, New York federal prosecutors were criticized by the Second Circuit for maneuvering to keep criminal cases before Judge Sullivan rather than risk a random assignment to another judge.[8]  Below are some notable decisions by Sullivan in Constitutional cases:

Lederman v. New York City Department of Parks & Recreation[9] –  In this case, two visual artists who usually sold their works on New York sidewalks challenged an ordinance that limited the sales of expressive works to certain designated spots.  Sullivan upheld the restrictions, finding that they were narrowly tailored to achieve the government’s interest in “alleviating congestion and improving circulation” in parks and sidewalks.[10]  Sullivan’s decision was itself upheld by the Second Circuit.[11]

Nnebe v. Daus[12] – This case (and its successors) were challenges to New York’s policy of suspending the licenses of taxi drivers summarily after their arrest for certain enumerated crimes.  The plaintiffs argued that, by not providing them with a hearing prior to the suspension, New York had deprived them of their rights under the Due Process Clause.  They also argued that their rights were violated due to the inadequacies of the notice of the suspension and the post-suspension hearing.  Sullivan held that the hearings (or lack thereof) did not violate the plaintiff’s substantive or procedural due process rights.  He held, however, that the notice was inadequate, but declined to impose either injunctive relief or damages beyond nominal damages.

United States v. Scott[13] – This was a criminal case involving the Defendant’s unlawful re-entry after deportation.  Lacey Scott was born in Jamaica to unmarried parents.  His father later immigrated to the United States and Scott joined him under his legal custody.  Scott’s father later became a naturalized citizen, and a few years later, Scott was convicted of multiple felonies and deported to Jamaica.  In the proceedings before Sullivan, Scott argued that he should have received “derivative citizenship” by being a minor in the lawful custody of a U.S. citizen parent.  Sullivan held that Scott did not receive derivative citizenship because the statute does not extend such citizenship to children whose parents did not have a “legal separation.”  Furthermore, Sullivan rejected an Equal Protection Challenge to the statute, holding that “Congress had a rational basis here for distinguishing between legitimate (or legitimated) and illegitimate children.”[14]

United States v. Torres[15] – This case questioned whether officers had reasonable suspicion to stop and frisk the Defendant.  Sullivan found that the officers had reasonable suspicion for both the stop and the search where the defendant was in a high-crime area and ran away from the police.  In doing so, Sullivan rejected the Defendant’s argument that it was reasonable to run from plain-clothes officers where they failed to identify themselves as police.

United States v. Ortiz[16] – This case involved the suppression of incriminating statements made by the Defendant after officers threatened to arrest the Defendant’s mother and aunt.  Sullivan found that the threat rendered the subsequent statements involuntary and suppressed them.  However, he declined to suppress additional incriminating statements made by the Defendant in a later interview at the precinct, finding that sufficient time had elapsed since the threat to make the statements voluntary.

Overall Assessment

There is little doubt that Sullivan is well-qualified for a seat on the Second Circuit.  There is also little doubt that, if confirmed, Sullivan would add a new conservative voice to the Second Circuit, particularly on criminal issues.  Given the support that Sullivan has received from the influential Schumer and Gillibrand, it is likely that he will be confirmed before the end of the year.  The only question is whether that confirmation will look anything like his unanimous approval eleven years ago.


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

[2] See id. at 2.

[3] See id. at 77.

[4] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[5] See, e.g., United States v. Martinez, 464 F.3d 184 (2d Cir. 2006); United States v. Magana, 322 F. Supp. 2d 359 (S.D.N.Y. 2004); United States v. Madrid, 302 F. Supp. 2d (S.D.N.Y. 2003); United States v. Maisonet, 213 F.3d 637 (S.D.N.Y. 2001).

[6] See Charles Levinson, Tough Judge Richard Sullivan’s Rulings Are in the Spotlight, The Wall St. Journal, April 30, 2014, https://www.wsj.com/articles/tough-judge-richard-sullivans-rulings-are-in-the-spotlight-1398898973.

[7] See id.

[8] See Alison Frankel, Judge-Shopping Accusations Resurface Against Manhattan Federal Prosecutors, Reuters, June 15, 2017, https://www.reuters.com/article/us-otc-shopping/judge-shopping-accusations-resurface-against-manhattan-federal-prosecutors-idUSKBN1962Q9.  

[9] 901 F. Supp. 2d 464 (S.D.N.Y. 2012), aff’d, 731 F.3d 199 (2d Cir. 2013).

[10] See id. at 475.

[11] See 731 F.3d 199 (2d Cir. 2013).

[12]184 F. Supp. 3d 54, 72 (S.D.N.Y. 2016), appeal dismissed, (May 25, 2016),

[13] 919 F. Supp. 2d 423 (S.D.N.Y. 2013).

[14] Id. at 431.

[15] 252 F. Supp. 3d 229 (S.D.N.Y. 2017)

[16] 943 F. Supp. 2d 447 (S.D.N.Y. 2013)

Jonathan Kobes – Nominee for the U.S. Court of Appeals for the Eighth Circuit

So far, President Trump’s nominees to the Eighth Circuit have included a state supreme court justice with an extensive judicial and academic record, a long-serving federal judge, and a private attorney with a lengthy paper trail.  By contrast, his latest nominee, Jonathan Kobes, a Senate staffer with a varied resume, has virtually no writings or opinions revealing his views on the law.

Background

Jonathan Allen Kobes was born in Sioux City, Iowa, on August 25, 1974.  Kobes attended Dordt College, a small Christian liberal arts school based in Sioux Center, Iowa.  After graduating in 1996, Kobes spent a year in Chicago working for Zurich Kemper Investments.[1]  He then attended Harvard Law School and clerked for Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.

After his clerkship, Kobes spent a year working as an Honors Attorney with the Central Intelligence Agency (CIA).  He then became a federal prosecutor with the U.S. Attorney’s Office for the District of South Dakota, working there until 2005.[2]  Kobes then joined the Sioux Falls firm Murphy, Goldammer & Prendergast LLP as an Associate.

In 2008, Kobes transitioned to be Counsel at POET LLC, a biofuel company based in Sioux Falls.[3]  In 2012, he shifted to DuPont Pioneer, a seed manufacturer, serving as Senior Regulatory Counsel.  Finally, in 2013, he shifted, again, to Raven Industries, a manufacturer of agricultural products, to be Director of Corporate Compliance.[4]  In that position, Kobes worked for former Democratic Representative Stephanie Herseth Sandlin.[5]

In 2014, after South Dakota Governor Mike Rounds was elected to the U.S. Senate, Rounds hired Kobes to be his Deputy Chief of Staff and his Counsel.[6]  He currently works for Rounds as his General Counsel.

History of the Seat

Kobes has been nominated to replace his former boss, Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.  According to Kobes, he was contacted directly by the White House to gauge his interest in an appointment to the Eighth Circuit (before Judge Wollman’s move to senior status was public).[7]

After confirming his interest, Kobes interviewed with the White House in November 2017.  Kobes was formally nominated on June 11, 2018.[8]

Political Activity

Working as a staffer for Rounds, Kobes is participating in a political position.  However, setting his relationship to Rounds aside, Kobes does not have an extensive political history.  Kobes, a Republican, volunteered for both Rounds’ senate campaign and the campaign of Republican Secretary of State Shantel Krebs.[9]  Kobes also served as a Republican Precinct Committeeman in Sioux Falls.

Kobes served as a member of the Federalist Society for Law & Public Policy from 1999 to 2004 and of the National Rifle Association from 2013 to 2014, but is not presently a member of either organization.[10]

Legal Experience

Kobes’ first legal position out of law school was clerking on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Kobes worked for the CIA in Washington D.C, working on maintaining the security of classified information in pending litigation.[11]

In 2003, Kobes joined the U.S. Attorney’s Office for the District of South Dakota as a criminal prosecutor.  During his tenure, Kobes primarily focused on prosecuting cases coming out of the Pine Ridge Indian Reservation.[12]  For example, Kobes prosecuted a Pine Ridge School student for making a bomb threat to blow up the school.[13]  The student argued on appeal that he could not be federally prosecuted for making an intrastate phone call, but the Eighth Circuit sided with Kobes, holding that even intrastate phone calls could be prosecuted as long as they were connected to interstate phone lines.[14]

In 2005, Kobes joined Murphy, Goldammer & Prendergast LLP as an associate, working in civil litigation.  While at the firm, Kobes represented a group of crisis pregnancy centers in seeking to intervene to uphold a South Dakota law requiring the physician to read every woman seeking an abortion a predetermined script and to give them the contact information for a pregnancy help center.[15]  Kobes successfully intervened in the suit but the law was enjoined by Judge Karen Schreier upon suit from Planned Parenthood.[16]  Kobes also participated in the defense of the Corporation of the President Church of Jesus Christ of Latter-Day Saints against a suit by a man who was sexually abused by a missionary of the church.[17]

From 2008 to 2014, Kobes has worked in-house, shifting between three different companies.  From 2008 to 2012, Kobes worked at POET, managing general litigation, as well as handling policy and regulatory issues.[18]  In 2012, Kobes worked on handling legal issues around the sale and export of genetically engineered farm products at DuPont Pioneer.[19]  From 2013 to 2014, Kobes worked at Raven Industries, handling compliance and regulatory work primarily.[20]

Since 2014, Kobes has worked for Rounds in the U.S. Senate.  As Rounds’ General Counsel, Kobes manages the legal, ethics, and compliance of the Office.[21]  He also manages a legislative portfolio dealing with judiciary issues, civil rights, and immigration.[22]

Overall Assessment

Of the three nominees that Trump has put on the Eighth Circuit so far, two have been fairly controversial, while one has sailed through with barely a ripple.  So far, it is unclear if Kobes will follow the Ericksen model or the Grasz one.

Unlike Stras and Grasz (the more controversial Eighth Circuit picks), Kobes does not have a long paper trail on controversial issues.  He has no academic writings, has not directly litigated any hot-button cases, and does not have any current ties to contentious legal groups.  Furthermore, as a legislative staffer, Kobes, presumably, has built up a residual level of trust among his colleagues: trust that can be leveraged in the confirmation process.

On the other hand, Kobes’ involvement in the South Dakota Planned Parenthood suit may raise questions about his commitment to pro-choice precedent, while his previous involvement with the National Rifle Association and the Federalist Society may suggest to critics that Kobes will bend to the organizations’ legal positions on the bench.

Additionally, Kobes may receive criticism for having more limited litigation experience as compared to other nominees.  By his own admission, Kobes rarely appeared in court during his time in-house.  As such, Kobes’ litigation experience is limited to the six years he spent working as a federal prosecutor and at Murphy, a time that covers only six trials and even fewer appeals.[23] While appellate litigation experience is not required for a judicial nominee, the lack of it is particularly notable here given that Kobes does not have compensating academic experience.  However, Kobes’ supporters may note that he will bring regulatory, compliance, and legislative experience to the bench, skills that other judges don’t have.

Looking at Kobes’ record as a whole, he remains a favorite for confirmation.  However, given his limited paper trail, senators will likely push Kobes to elucidate his legal views during the confirmation process.  Kobes’ answers to these questions will give an indication of the kind of judge he will be.


[1] Sen. Comm. on the Judiciary, 115th Cong., Jonathan Kobes: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id.

[4] Id. at 12.

[5] David Montgomery, Rounds Hires Campaign Manager as Chief of Staff, Argus Leader, Dec. 18, 2014, https://www.argusleader.com/story/davidmontgomery/2014/12/18/rounds-skjonsberg-staff/20585699/.  

[6] See id.

[7] See Kobes, supra n. 1 at 23-24.

[8] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Nominees, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 11, 2018) (on file at www.whitehouse.gov/the-press-office).

[9] See Kobes, supra n. 1 at 10.

[10] See id. at 6

[11] See id. at 13.

[12] Id. 

[13] United States v. R.J.S. Jr., 366 F.3d 960 (8th Cir. 2004)

[14] Id. 

[15] Planned Parenthood Minnesota et al. v. Rounds, 2006 U.S. Dist. LEXIS 72778 (D.S.D. Oct. 4, 2006).

[16] See id. at *2.

[17] Joseph v. Corp. of the Pres. Church of Jesus Christ of Latter-Day Saints, 2008 U.S. Dist. LEXIS 7767 (D.S.D. Jan. 31, 2008).

[18] See Kobes, supra n. 1 at 13.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See Kobes, supra n. 1 at 15.

Ryan Nelson – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Idaho attorney Ryan Nelson was nominated by President Trump last year to be Solicitor (chief appellate attorney) for the Department of the Interior.  However, Nelson’s nomination was never confirmed by the Senate.  Now, Nelson is getting a shot at a different job: a lifetime appointment to the U.S. Court of Appeals for the Ninth Circuit.

Background

An Idaho native, Ryan Douglas Nelson was born in Idaho Falls in 1973.  Nelson received a B.A. from Brigham Young University in 1996 and a J.D. from the J. Reuben Clark Law School at Brigham Young University.[1]  After graduating from law school, Nelson clerked for Judge Karen Henderson on the U.S. Court of Appeals for the D.C. Circuit and for Judges Charles Brower and Richard Mosk on the Iran-United States Claims Tribunal.[2]

After his clerkships, Nelson joined Sidley Austin as an associate in their Washington D.C. Office.[3]  Five years later, he moved to the Department of Justice to be Deputy Assistant Attorney General for the Environment and Natural Resources Division.[4]  In 2008, Nelson moved to the Executive Office of the President as Deputy General Counsel and briefly worked as Special Counsel for the Senate Committee on the Judiciary, focusing on the nomination of Justice Sotomayor.

In 2009, Nelson returned to Idaho Falls to be General Counsel for Melaleuca, Inc, an online Wellness Product company.[5]  He is still with the company.[6]

On July 31, 2017, Nelson was nominated by Trump to be Solicitor to the Department of the Interior.[7]  On September 19, the nomination was unanimously voted out by the Senate Energy and Natural Resources Committee.  However, soon after, his nomination, alongside three others, was blocked by Sen. Richard Durbin (D-Ill.) as part of his objection to the Administration’s national monuments policy.[8]  At the end of 2017, senators were unable to reach an agreement to hold over Nelson’s nomination and it was returned to the President.

In 2018, Trump renominated Nelson to be Solicitor to the Department of the Interior.  However, his nomination was then blocked by Sen. Bill Nelson (D-Fla.) as part of negotiations with Zinke over drilling off the coast of Florida.[9]  As such, Nelson’s nomination was still pending when his name was announced for the Ninth Circuit, and was withdrawn as his new nomination reached the Senate.

History of the Seat

Nelson has been nominated for an Idaho seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on August 11, 2018 when Judge Norman Randy Smith moves to senior status.

In November 2017, while his nomination to be Solicitor for the Department of the Interior was pending, Nelson expressed his interest in the Ninth Circuit to Idaho senators.[10]  In February 2018, Nelson interviewed with the White House Counsel’s Office and was formally nominated on May 15, 2018.[11]

Political Activity & Memberships

Nelson has been a member of the Idaho Republican Party since 2010, including serving as the Chairman for the 2012 caucus in Idaho Falls.[12]  Nelson also volunteered on the Romney Presidential Campaign in 2012 and worked as a legal advisor for President Bush’s re-election campaign in 2004.[13]

Additionally, Nelson has occasionally donated to Republican candidates, including a $2000 donation to Romney in 2011.[14]  Nelson has also donated to U.S. Senators Mike Lee, James Risch, and Marco Rubio.[15]

Furthermore, Nelson has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[16]

Legal Experience

After his clerkship, Nelson spent five years working as an Associate at Sidley Austin.  In this role, Nelson handled primarily civil and appellate law.  Among the matters he handled at Sidley, Nelson defended a corrections contractor against a civil suit alleging the abuse of undocumented immigrants at the contractor’s facilities.[17]  Nelson was also part of the legal team supporting a suit brought by the State of Utah against efforts by the Census Bureau to fill in gaps in its work.[18]

From 2006 to 2008, Nelson served as Deputy Assistant Attorney General for the Department of Justice, defending agency decisions on land use, environmental, and energy issues.  In this role, Nelson personally argued 13 appeals, including the defense of using purse-seine nets in tuna farming despite the impact on dolphin populations.[19]

Notably, Nelson argued that the presence of a Latin cross in a San Diego war memorial did not violate the Establishment Clause of the U.S. Constitution.[20]  While U.S. District Judge Larry Burns upheld the cross’ constitutionality, the Ninth Circuit eventually reversed.[21]

Since 2009, Nelson has been Counsel to Melaleuca, Inc., an Idaho Falls based wellness company.  During Nelson’s tenure as Counsel, Melaleuca and its founder Frank VanderSloot filed a defamation suit against Mother Jones magazine for its coverage of VanderSloot’s political advocacy, including his alleged “outing” of Idaho investigative reporter Peter Zuckerman as gay.[22]  A second defamation suit was filed against Zuckerman after he complained about the outing on the Rachel Maddow Show.[23]  Ultimately, the suit against Mother Jones was dismissed on First Amendment grounds,[24][25] while the suit against Zuckerman was eventually settled.[26]

Overall Assessment

The Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  As such, the nomination of the conservative Nelson could be touted (in some circles) as an effort to shift the court to the right.  But setting the ideology of the pick aside, Nelson’s background in environmental law is particularly suited to the Circuit covering some of the country’s most scenic public lands.

This is not to say that Nelson will have an easy confirmation.  Specifically, senators may question Nelson’s role in the defamation actions against Mother Jones and reporter Peter Zuckerman.  Given the ultimate dismissal of the suit, senators may probe Nelson’s views of defamation litigation, as well as his perspective of New York Times v. Sullivan and the freedom the press is given in reporting on matters of public concern.  Ultimately, Nelson’s confirmation will likely turn on such questions.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Press Release, White House, President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts (July 31, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Timothy Cama, Durbin Blocks Interior Nominees From Confirmation, The Hill, Nov. 8, 2017, http://thehill.com/policy/energy-environment/359455-durbin-blocks-interior-nominees-from-confirmation.  

[9] Timothy Cama, Dem Senator Puts Hold on Trump Nominees Over Offshore Drilling Plan, The Hill, Jan. 18, 2018, http://thehill.com/policy/energy-environment/369509-dem-senator-puts-hold-on-trump-nominees-over-offshore-drilling-plan.  

[10] See Nelson, supra n. 1 at 40.

[11] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial nominees, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 15, 2018) (on file at www.whitehouse.gov/the-press-office).

[12] See Nelson, supra n. 1 at 8, 16.

[13] See id. at 16.

[15] Id.

[16] See Nelson, supra n. 1 at 8.

[17] Jama v. United States Immigration and Naturalization Servs., 334 F. Supp. 2d (D.N.J. 2004).

[18] See Utah v. Evans, 536 U.S. 452 (2002).

[19] Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).

[20] Trunk v. City of San Diego, 568 F. Supp. 2d 1199 (S.D. Cal. 2008).

[21] See 629 F.3d 1099 (9th Cir. 2011).

[22] Clara Jeffery and Monica Bauerlein, We Were Sued By a Billionaire Political Donor. We Won. Here’s What Happened, Mother Jones, Oct. 8, 2015, https://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit/.  

[23] Linda Greenhouse, Justices Appear Reluctant to Increase Land-Use Oversight, N.Y. Times, Feb. 23, 2005.

[24] See Melaleuca, Inc. v. Foundation for Nat’l Progress, No. CV-2013-532-OC (7th Jud. Dist. Idaho Oct. 6, 2015); Melaleuca, Inc. v. Zuckerman, No. CV-2014-2510 (7th Jud. Dist. Idaho Oct. 15, 2015).

[25] See DB, Judge Tosses Wealthy Idaho Conservative’s Defamation Lawsuit Against Mother Jones, TPM, Oct. 8, 2015, https://talkingpointsmemo.com/news/judge-tosses-frank-vandersloot-lawsuit-mother-jones.  

[26] Associated Press, Idaho Billionaire Settles Defamation Suit With Ex-Reporter, Pacific Northwest News, Oct. 21, 2015, https://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/10/idaho_billionaire_settles_defa.html.  

Jay Richardson – Nominee for the U.S. Court of Appeals for the Fourth Circuit

On June 17, 2015, Dylann Roof, a 21-year-old white supremacist murdered nine African Americans during a prayer service at Emanuel African Methodist Episcopal Church in Charleston.  During Roof’s subsequent capital trial, the lead federal prosecutor was a well-connected South Carolinian named Jay Richardson.  On April 26, 2018, approximately sixteen months after Roof received the death penalty, Richardson was tapped by President Donald Trump for a seat on the U.S. Court of Appeals for the Fourth Circuit.

Background

A native South Carolinian from a well-connected family with a history in the Palmetto State, Julius Ness Richardson was born on October 26, 1976 in Columbia.  He received a B.S. from Vanderbilt University in 1999 and a J.D. from the University of Chicago Law School in 2003.  After graduating, Richardson worked for the prolific Judge Richard Posner on the U.S. Court of Appeals for the Seventh Circuit and then for Chief Justice William Rehnquist on the U.S. Supreme Court (clerking alongside fellow judicial nominee Martha Pacold and Deputy Solicitor General Jeff Wall).[1]

After his clerkship, Richardson joined the D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel as an Associate.  In 2009, Richardson moved to the U.S. Attorney’s Office for the District of South Carolina, where he continues to serve as an Assistant United States Attorney.[2]

History of the Seat

Richardson has been nominated to replace U.S. Circuit Judge Dennis Shedd, who moved to senior status on January 30, 2018.  In June 2017, a few months before Shedd would announce his departure, Richardson was contacted by the White House to gauge his interest in an appointment to the Fourth Circuit.[3]  Richardson was nominated on May 7, 2018, after interviews with the White House and South Carolina Senators Tim Scott and Lindsey Graham.[4]

Legal Experience

Richardson has held two main legal positions after finishing his clerkships: working as an associate at Kellogg Huber; and working as a federal prosecutor.  In the former position, Richardson focused primary on commercial litigation.  Among the matters he handled at Kellogg Huber, Richardson represented Standard Iron Works, a steel purchaser, in a Sherman Act antitrust action against a series of defendant iron producers, alleging coordinated supply cuts.[5]

As a federal prosecutor, Richardson’s most famous case was the prosecution of Dylann Roof, the aforementioned white supremacist who had murdered nine churchgoers in Charleston.[6]  In the case, Richardson handled all pre-trial matters, as well as the trial and the sentencing phase, successfully leading to the imposition of the death penalty against Roof.[7]  Richardson also successfully defended a challenge based on the constitutionality of the death penalty brought by Roof’s attorneys.[8]

In other cases he handled as a federal prosecutor, Richardson prosecuted MS-13 gang members in a murder-for-hire case,[9] and the longest-serving sheriff in South Carolina for bribery.[10]

Writings

In 2002, as a student at the University of Chicago Law School, Richardson authored an article discussing Federal Rule of Civil Procedure 4(k)(2).[11]  Rule 4(k)(2) allows federal courts to exercise jurisdiction over defendants who would otherwise not fall under the jurisdiction of any state jurisdiction.  Richardson notes that courts vary in interpreting which party has the burden of production to determine that a defendant falls under the purview of 4(k)(2), with at least one court (the Seventh Circuit) placing the burden on the Defendant.[12]

In his paper, Richardson advocates a burden-shifting mechanism, in which plaintiffs bear an initial burden to present a prima facie case that a defendant falls under the purview of 4(k)(2), at which point the burden shifts to the defendant to demonstrate that a state jurisdiction can exercise jurisdiction over themselves.[13]  Richardson notes that this burden-shifting “minimizes the costs of dispute resolution.”[14]

Memberships

Richardson has been a member of the Federalist Society for Law and Public Policy Studies since 2017 (approximately the time that he has been under consideration for a federal judgeship).[15]  Richardson has also been a member of the Palmetto Club and the Forest Lake Club, two private clubs that previously restricted African Americans from membership (the Forest Lake Club admitted its first African American member in 2017).[16]

Overall Assessment

Given his fame as the prosecutor who successfully convicted Dylann Roof, Richardson is not an easy nominee for senators to oppose (the attack ads write themselves).  Nevertheless, even setting the Roof case aside, it is hard to deny that Richardson is qualified for a seat on the federal bench.

First, Richardson has impeccable academic credentials, including having clerked for two of the most influential judges in the country.  Second, Richardson boasts complex litigation experience on both the civil and criminal side.  Additionally, Richardson’s relative reticence on public policy issues and his relative lack of controversy also favor his confirmation.  Furthermore, while Richardson is a member of the Federalist Society, his membership is relatively recent and has not been accompanied by any extensive speaking or political activity.

Overall, barring any unexpected developments, Richardson will likely be confirmed in due course.  On the bench, Richardson looks likely to chart a conservative course, but may, like Posner before him, surprise.


[1] Sen. Comm. on the Judiciary, 115th Congress, Julius Ness Richardson: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id. at 30.

[4] Id.

[5] Standard Iron Works v. Arcelormittal et al., 639 F. Supp. 2d 877 (N.D. Ill. 2009) (denying Defendant steel producers’ motion to dismiss).

[6] See Matt Zapotosky, Roof’s Journal of Racist Rants Revealed on Emotional Day, Wash. Post, Jan. 6, 2017.

[7] Alan Blinder and Kevin Sack, Dylann Roof is Sentenced to Death in Charleston Church Massacre, N.Y. Times, Jan. 10, 2017.

[8] United States v. Roof, 225 F. Supp. 3d 413 (D.S.C. 2016).

[9] United States v. Teran, 496 Fed. App’x. 287 (4th Cir. 2012).

[10] Chris Dixon, Judge Rejects Plea Deal for South Carolina Sheriff, N.Y. Times, Dec. 18, 2014.

[11] Julius Ness Richardson, Shifting the Burden of Production Under Rule 4(k)(2): A Cost-Minimizing Approach, 69 U. Chi. L. Rev. 1427 (Summer 2002).

[12] Id. at 1431

[13] See id. at 1437-39.

[14] Id. at 1441.

[15] See Richardson, supra n. 1 at 5.

[16] Id. at 5-6.

David Porter – Nominee to the U.S. Court of Appeals for the Third Circuit

While the Trump Administration has displayed a tendency to nominate conservative judges to courts in blue and purple states, the selection of David Porter marks one of the most aggressive moves by the Trump Administration on this front. Porter’s nomination, which comes over the repeated objections of Pennsylvania Senator Bob Casey, sends a clear signal that the White House will not accommodate senatorial objections to their preferred candidates on the circuit court level.

Background

David Porter was born in Kittanning, Pennsylvania on March 8, 1966. He graduated from Grove City College in Northwest Pennsylvania in 1988 and graduated from George Mason Law School in 1992. Upon earning his J.D., Porter went to clerk for Judge D. Brooks Smith on the U.S. District Court for the Western District of Pennsylvania for two years. Following his clerkship, Porter joined the law firm Buchanan Ingersoll & Rooney and has stayed at the firm ever since.[1]

In 2014, Porter’s name was floated by Sen. Pat Toomey to fill a vacancy on the U.S. District Court on the Western District of Pennsylvania.[2]  While Toomey had struck a deal with Sen. Bob Casey to nominate one judge for every three that Casey put forward, Porter’s nomination was ultimately scrapped due to progressive backlash (legal groups were able to raise 40,000 signatures against Porter) and Casey’s opposition.[3]

History of the Seat

Porter is nominated to take the seat of Judge D. Michael Fisher, another GOP stalwart from Western Pennsylvania who in 2002 served as the GOP nominee for governor, who moved to senior status on February 1, 2017.[4]  Porter had been in contact with the White House and was selected as a prospective nominee early in 2017.[5]  However, Casey informed the White House of his opposition to the nomination soon after and indicated that he had “serious concerns” with Porter.[6]  As Casey’s opposition was clear, the White House sat on the nomination for a year, only nominating Porter after Chairman Chuck Grassley substantially cut back the blue slip policy for Circuit Court nominees, indicating that he would only block action on nominees where home state senators had not been adequately consulted.[7]

Legal Career

Porter’s legal career at Buchanan Ingersoll consists mostly of defense side commercial litigation work and First Amendment work for media and broadcasters.[8]  However, he notably represented former Sen. Rick Santorum in sorting out a residency challenge during his 2006 re-election campaign (which coincidentally was won by Casey).[9]

Political Activity and Affiliations

Porter has been a frequent GOP political donor since 2000. Over the last two decades, He has made 29 donations to GOP candidates and/or the Republican National Committee. He has no recorded donations to a Democrat. His donations to the GOP and GOP candidates totaled $13,550.

Porter has been a particular supporter of Santorum; making eight donations worth $4150 to Santorum’s campaigns over the years. From 2010 to 2016, he also has made four donations of $500 each to Pat Toomey.[10]

Porter also leads the Pittsburgh Chapter of the Federalist Society, a conservative legal advocacy group,[11] and is a member of the Republican National Lawyers Association. He served as a counsel on the Bush-Cheney 2004 reelection campaign.

Writings and Advocacy

While Porter has not been as prolific a writer as other Trump nominees, he has frequently advocated for conservative legal positions.  In 2009, Porter co-founded the Pennsylvania Judicial Network, which opposed the nomination of then-Judge Sonia Sotomayor to the U.S. Supreme Court, branding her nomination a sign of “judicial elitism.”[12]

Additionally, Porter was a strong opponent of the constitutionality of the Affordable Care Act as challenged in NFIB v. Sebelius. In the Pittsburgh Post-Gazette, he wrote a piece titled “Is the health care law constitutional? No, strike it down.”  In the piece, Porter emphasizes originalist arguments, writing that “[t]he framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable.”[13] He adds that original understandings of the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause made clear “the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.”[14]

In another piece on the Commerce Clause, Porter stressed that a ruling for the ACA would “break the Framers’ structural design that for 225 years has preserved individual liberty and served as a check on unlimited federal power.”[15]

Porter likewise found fault with the externality and tax arguments in favor of the ACA. He called the notion that we are all part of the healthcare marketplace a “metaphysical abstraction,”[16] and claimed that such a reading could “require people to buy a car.”[17] He said of the tax argument “that the Supreme Court is not likely to adopt it, either. Nor should it.”[18]  Ultimately, the Supreme Court upheld the individual mandate of the Affordable Care Act as a tax.

Overall Assessment

Looking at his overall record, there is little doubt that Porter will be a conservative judge on the Third Circuit.  His writings also suggest a strong leaning towards an originalist judicial philosophy.  This philosophy, combined with his advocacy against the Affordable Care Act and Justice Sotomayor’s nomination, has already drawn the strong opposition of liberal groups and, likely, will draw the opposition of senators as well.

However, one cannot talk about Porter without addressing the procedural problems with his nomination.  During the 114th Congress, the Obama Administration nominated Rebecca Ross Haywood, a well-respected appellate prosecutor, to the Third Circuit.  Haywood was blocked by Toomey, and Grassley respected his use of a blue slip and declined to give Haywood a hearing.  Grassley’ has now refused to extend the same courtesy to Casey.

While three appellate nominees have been given hearings in this Congress without home-state senatorial support, there is something different about Porter.  Namely, when the White House nominated Porter, Casey’s opposition was clearly (and publicly) laid out.  While the White House is under no obligation to honor a senator’s preferences on appellate nominees, one would expect the Judiciary Chairman to uphold the standards he himself laid out.  Grassley previously indicated that he would move forward on circuit court judges without blue slips only where the recalcitrant home state senators had been adequately consulted.  It is hard to demonstrate meaningful consultation in a case like this, where the home state senator has repeatedly and consistently expressed his opposition to a prospective nominee, and the nominee was put forward anyway.

Overall, it is unclear whether Casey’s objections will carry any weight among his Republican colleagues.  Assuming they don’t, Porter remains a favorite for confirmation, adding an assertive conservative voice to the relatively collegial Third Circuit.


[1] Sen. Comm. on the Judiciary, 115th Cong., David James Porter Questionnaire for Judicial Nominees, at 1-2.

[2] Jennifer Bendery, Pennsylvania Progressives Race to Stave Off Potential Republican Obama Nominee, HuffPost, March 27, 2014, https://www.huffingtonpost.com/2014/03/27/obama-judicial-nominee-david-porter_n_5042326.html.  

[3] Jennifer Bendery, Pennsylvania Progressives Torpedo Nomination of Potential GOP Obama Pick, HuffPost, June 2, 2014, https://www.huffingtonpost.com/2014/06/02/david-porter-toomey-obama-nominee_n_5433446.html.  

[5] See Porter, supra n. 1 at 28-29.

[6] Jennifer Bendery, Democrats Can’t Stop Trump’s Agenda. But They Can Block His Judicial Nominees., HuffPost, May 10, 2017, https://www.huffingtonpost.com/entry/trump-judicial-nominees-democrats-blue-slips_us_59137061e4b0bc71ddae8749?section=us_politics.  

[7] See Harsh Voruganti, “Bending Blue Slips: Grassley’s Strategic Error,” Vetting Room (Nov. 24, 2017) at  https://vettingroom.org/tag/blue-slips/.

[8] Supra Porter, note 1 at 15.

[9] Andrew Conte, “Santorum’s lawyer rebuffs challenge to residency,” Pittsburgh Tribune Review (May 26, 2006).

[11] Supra, note 1, at 4.

[12] See Letter from Vanita Gupta, President & CEO, Leadership Conference on Civil and Human Rights to U.S. Senate (June 4, 2018) (available at https://civilrights.org/oppose-confirmation-david-porter-u-s-court-appeals-third-circuit/#_ftn14).

[13] Porter, “Is the health care law constitutional? No, strike it down.”  Pittsburgh Post-Gazette (Mar 25. 2012) at http://www.post-gazette.com/opinion/Op-Ed/2012/03/25/Is-the-health-care-law-constitutional-No-strike-it-down/stories/201203250223.

[14] Id.

[15] Porter, “A Whirlwind Tour of the Supreme Court’s Commerce Clause Jurisprudence,” Center for vision and values (Apr. 2, 2012) at http://www.visionandvalues.org/2012/04/a-whirlwind-tour-of-the-supreme-courts-commerce-clause-jurisprudence/.

[16] Id.

[17] Supra, note 13.

[18] Supra, note 13.

Judge A. Marvin Quattlebaum – Nominee for the U.S. Court of Appeals for the Fourth Circuit

If the name A. Marvin Quattlebaum sounds familiar, it should: we wrote on his nomination to the district court just last year.  At the time we said the following:

“Nominees expected to sail through the process become bogged down, while nominees expected to draw controversy surprise everyone by getting confirmed easily.  Nevertheless, A. Marvin Quattlebaum, nominated for a vacancy on the U.S. District Court for the District of South Carolina, should feel good about his chances.”

The qualifying sentence proved surprisingly prescient when Quattlebaum’s confirmation drew 28 no votes (to be fair, the no votes were not about Quattlebaum but rather about the two African American Obama nominees to the same seat who never received the courtesy of a Senate vote).  Just one month after his confirmation to the U.S. District Court, Quattlebaum became a nominee again, this time for the U.S. Court of Appeals for the Fourth Circuit.  As such, here is an updated take on his nomination.

Background

Arthur Marvin Quattlebaum Jr. was born on August 2, 1964 in Durham, NC.  He received a B.A. with Honors from Rhodes College in 1986 and a J.D. from the University of South Carolina Law School in 1989.  While a law student, Quattlebaum worked as a summer associate at the Columbia law firm Nelson, Mullins, Riley & Scarborough, LLP.  Upon graduation, Quattlebaum was hired there as an Associate.

In 1996, Quattlebaum left Nelson Mullins to be a partner at the law firm Robinson & Quattlebaum.  A year later, Quattlebaum returned to Nelson Mullins as a Partner.

On August 3, 2017, Quattlebaum was nominated by President Trump to be a U.S. District Court Judge for the District of South Carolina to fill the seat vacated by Judge Cameron Currie on October 3, 2013.  Two African American Obama nominees, Judge Allison Lee and Justice Donald Beatty, were blocked from a final vote for this seat by the opposition of South Carolina’s Republican Senators.  For his part, Quattlebaum attracted little controversy but was confirmed on March 1, 2018 by a relatively narrow 69-28 vote with Democrats citing the treatment of Lee and Beatty as the reason for their opposition.  Quattlebaum serves as a U.S. District Court Judge today.

History of the Seat

Quattlebaum has been nominated to replace U.S. Circuit Judge William Traxler, who is scheduled to move to senior status on August 31, 2018.  Traxler, who was appointed to the U.S. District Court by President George H.W. Bush and to the Fourth Circuit by President Bill Clinton, has been a fairly conservative judge.

Legal Experience

Other than one year working on plaintiff’s side law at Robertson & Quattlebaum, Quattlebaum spent his entire pre-bench legal career practicing business litigation at Nelson Mullins.  As a partner in the Greenville office, Quattlebaum primarily focused on the defense of product liability actions.

Among Quattlebaum’s more prominent cases, he was the primary lawyer defending Michelin North America Inc. against a suit alleging injuries from the sale of a defective tire.[1]  He also represented Michelin in antitrust and breach of contract actions.[2]  In another key case, Quattlebaum successfully defended an industrial manufacturer from a wrongful death claim based on an earth compactor that rolled over.[3]

Jurisprudence

Quattlebaum has been a federal judge since March 6, 2018.  In those two months, he has only had a chance to hear and decide a handful of cases, none of which have reached a resolution on appeal.  Most of these cases involve 1983 civil rights suits brought by state prisoners, which Quattlebaum has generally accepted recommendations to dismiss.[4]

One notable case handled by Quattlebaum in his short tenure was a constitutional challenge to a unique traffic control plan imposed by Myrtle Beach on participants in Bikefest.[5]  The NAACP brought the suit, alleging that the restrictions on Bikefest, whose participants are predominantly African American, violated the First Amendment and the Equal Protection Clause, noting that similar restrictions were not levied against the majority-white participants in Harley Week.[6]  Quattlebaum declined to grant a preliminary injunction against the traffic control plan, noting that plaintiffs had failed to make the requisite factual findings.[7]

Political Activity

Quattlebaum has a long history of contributions to Congressional Republicans.  This includes approximately $8000 to Graham, $7600 to Scott, and $6400 to Gowdy.[8]  Additionally, Quattlebaum has also donated to former Sen. Jim DeMint, and former Rep. Bob Inglis, both South Carolina Republicans.[9]  In contrast, Quattlebaum has only one contribution to a Democrat, donating $1000 to Alex Sanders’ Senate bid against Graham in 2001.[10]

In addition, Quattlebaum has served in a volunteer capacity in the campaigns of Graham, Scott, and Gowdy.  Quattlebaum also served on the South Carolina Lottery Commission from 2003-2010, appointed to that role by Republican Governor (and now Congressman) Mark Sanford.

Overall Assessment

Quattlebaum’s nomination to the District Court drew opposition primarily based on the history of the specific seat he was nominated for rather than his own personal characteristics.  Furthermore, he has not been on the District Court long enough to draw a controversial record.  As such, one can reasonably conclude that his nomination is unlikely to attract a significant degree of controversy.

However, nominations to the Court of Appeals tend to attract significantly more controversy than those to the District Court, and factors that were forgiven in confirming Quattlebaum earlier, such as his political donation history, may draw more weight for an appellate nominee.  Additionally, critics may argue that Quattlebaum, having only been a judge for two months, lacks the requisite judicial experience to be an appellate judge (although many appellate nominees lack any judicial experience whatsoever).

Overall, Quattlebaum still remains favored for a comfortable confirmation.  However, as his initial confirmation rodeo proved, nothing can be taken for granted.


[1] See Demas v. Michelin N. Am., Inc., No. 09 L 013814, Illinois Circuit Court (Judge Daniel Lynch).

[2] Michelin N. Am., Inc. v. Inter-city Tire, No. 6:13-cv-01067 HMH, 2015 WL 12843914 (D.S.C. Jan 20, 2015) (Judge Henry Herlong).  

[3] Edwards v. Ingersoll Rand Co., No. 6:01-cv-02205-HFF (D.S.C.).

[4] See, e.g., Rose v. Nettles, No. CV01702000AMQPJG, 2018 WL 2268021, at *1 (D.S.C. May 16, 2018); Townsend v. S. Health Partners, No. 0:18-CV-00414-AMQ, 2018 WL 2220282, at *1 (D.S.C. May 15, 2018); Tyler v. Chavis, No. CV 9:17-3270-AMQ-BM, 2018 WL 2011526, at *1 (D.S.C. Apr. 30, 2018); Hurley v. Lovett, No. CV 8:17-1993-AMQ-KFM, 2018 WL 1811371, at *1 (D.S.C. Apr. 17, 2018).

[5] NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., et al., Plaintiffs, v. CITY OF MYRTLE BEACH, et al., Defendants. Additional Party Names: Cedric Stevenson, City of Myrtle Beach Police Dep’t, Leslie Stevenson, Simuel Jones, No. 4:18-CV-00554, 2018 WL 2332018 (D.S.C. May 23, 2018).

[6] Id. at *1.

[7] Id. at *4-*5.

[8] Center for Responsive Government, https://www.opensecrets.org/donor-lookup/results?name=Marvin+Quattlebaum&order=desc&page=1&sort=D (last visited Oct. 3, 2017).  

[9] See id.

[10] Id.