Judge Andrew Brasher – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Six months ago, Judge Andrew Brasher was narrowly confirmed to be a U.S. District Court Judge.  Now, the 38-year-old Brasher is ready to move on from the position to the U.S. Court of Appeals for the Eleventh Circuit.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General of Alabama.[3] 

In April 2018, Brasher was nominated to the U.S. District Court for the Middle District of Alabama, filling a longstanding vacancy opened by the resignation of Judge Mark Fuller.  Brasher was confirmed by the Senate in a 52-47 vote on May 1, 2019, and has served on the Middle District since then.

History of the Seat

Brasher has been nominated for a seat on the U.S. Court of Appeals for the Eleventh Circuit.  The seat is being vacated by Judge Edward Carnes, who has a reputation as one of the most conservative judges on an already conservative court.

Legal Experience

Setting aside his clerkship, Brasher had two main legal jobs before he joined the federal bench: as an associate at Bradley Arant; and as Deputy Solicitor General and Solicitor General of Alabama.  During his time at Bradley Arant, Brasher worked in complex civil litigation, including product liability cases.  At the firm, he notably represented Republican Gov. Bob Riley in defending a controversial line item veto (later overturned by the Alabama Supreme Court).[12]

As the Deputy Solicitor General and Solicitor General of Alabama, Brasher defended Alabama laws and convictions before state and federal courts.  As such, Brasher argued three cases before the U.S. Supreme Court.  

In McWilliams v. Dunn, Brasher defended the imposition of the death penalty on James McWilliams, who alleged that he had serious mental health issues.[13]  McWilliams argued that Supreme Court precedent required him to have access to a defense expert to provide evidence of mental incapacity, which Brasher disputed.  The Supreme Court ultimately sidestepped the question of whether McWilliams was entitled to a defense expert, ruling instead that the judge erred in denying any expert examination of McWilliam’s mental state.[14] 

In Alabama Legislative Black Caucus v. Alabama, Brasher defended the constitutionality of Alabama’s state legislative districts.  The districts were ultimately struck down by the Supreme Court as an unconstitutional racial gerrymander intended to disenfranchise African American voters.[15]  Additionally, in Alabama Department of Revenue v. CSX Transp., Inc., Brasher defended an Alabama tax on diesel for rail carriers while exempting competitor industries against charges that it was discriminatory.  The Court ultimately held that Alabama had violated federal law.[16]

In addition to his Supreme Court work, Brasher has also litigated extensively in Alabama state and federal courts.  Notably, Brasher defended the constitutionality of “admission privilege” requirements for abortion providers in Alabama, struck down by Judge Myron Thompson, and ultimately enjoined after the Supreme Court struck down a virtually identical law in Whole Woman’s Health.[17]  Brasher also successfully defended Alabama’s ban on PAC-to-PAC transfers against allegations that it violated the First Amendment.[18]

Jurisprudence

Brasher has served on the U.S. District Court for the Middle District of Alabama since May 2019.  In the six months that he has served on the bench, Brasher has issued a number of orders and opinions in cases.  Many of the cases in which Brasher has authored opinions have been cases of employment discrimination.  In most of these, Brasher has sided with the employer, granting summary judgment in their favor in cases alleging racial,[19] age-based,[20] and disability-based discrimination.[21] 

However, Brasher has shown himself to be open to employee claims in some cases.  For example, in one case, Brasher allowed the sexual harassment claims of a male employee against Koch Foods to move to trial, noting that the employee had offered evidence that his female boss had terminated his employment shortly after he denied her sexual advances.[22]  Similarly, he granted summary judgment in favor of restaurant workers who were improperly denied minimum wages and overtime payments under the Fair Labor Standards Act.[23]

In other cases, Brasher ruled against a Dothan-based doctor who sued the federal government seeking refunds of tax payments,[24] and held that the Commodity Futures Trading Commission (CFTC) could not seek the maximum statutory penalty of disgorgement against corporations who had violated the Commodity Exchange Act.[25] 

Writings and Speeches

Setting aside the official positions he took as Alabama Solicitor General, Brasher had written and spoken extensively on legal and political issues before he joined the bench.  

Charitable Donations

On July 21, 2015, Brasher moderated a debate titled “Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations.”  The discussion was between Dr. Craig Holman from Public Citizen and Hans Von Spakovsky of the Heritage Foundation.[26]  While Brasher did not interject often in the debate, he did ask a couple of questions to each panelist.[27]

Federal Regulation

On February 4, 2017, Brasher served on a Federalist Society panel titled “Combating Federal Overreach.”[28]  The panel consisted of Brasher and the Solicitor Generals of Florida, West Virginia, and Texas, moderated by Allen Winsor, a former Florida Solicitor General who is now up for a federal judgeship.  Brasher specifically discussed the litigation over the EPA’s control of “navigable waters” as defined by the Clean Water Act and interpreted by the Army Corps of Engineers.  Brasher criticizes the rule as overly broad and beyond the statutory intent of Congress.  Later, Brasher also criticizes local regulations, noting:

“…oftentimes, you actually see a locality within a state that’s really, sort of, in league with the federal government against the state’s authority.”[29]

Same-Sex Marriage

In 2015, while defending Alabama’s ban on same-sex marriage before the U.S. Supreme Court, Brasher wrote an article on the subject on SCOTUSBlog.[30]  In the piece, Brasher argues that the Supreme Court “should at least reject the argument that these laws serve no legitimate state interest.”[31]  Instead, he argued that states maintained a legitimate interest in limiting marriage to opposite sex couples, noting:

“I hope that . . . [the Court] does not malign the majority of voters in a majority of states as irrationally prejudiced.”[32] 

Death Penalty

Shortly after the Supreme Court narrowly upheld Oklahoma’s lethal injection procedure in Glossip v. Gross, Brasher authored an article in SCOTUSBlog supporting the decision.[33]  In the article, Brasher argues that disputes about the method of administering the death penalty are actually about the legality of the penalty itself, stating:

“Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?”[34]

However, Brasher also acknowledges some of the arguments of death penalty opponents, noting:

“It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process.”

Redistricting

Shortly after the U.S. Supreme Court struck down North Carolina’s redistricted maps in Cooper v. Harris, Brasher published an article critical of the decision.[35]  Brasher suggested that the decision would lead to more judicial intervention in redistricting without providing adequate standards for them to do so, and suggested that courts impose a requirement on plaintiffs to offer a map that would meet the partisan goals of the legislature.[36]

Political Activity

Brasher, a Republican, has worked as a volunteer on the 2010 campaigns of Luther Strange to be Attorney General and of Bradley Byrne (now a U.S. Representative) to be Governor of Alabama.[37]  Brasher also served on the Trump Transition Team, coordinating criminal justice policy with the incoming Administration.[38]

In addition, Brasher donated $300 to the Alabama Republican Party in 2015, his only notable political contribution.[39]

Overall Assessment

Despite Brasher’s significant experience with litigation, his youth and strongly conservative writings and experience made him a controversial nominee at the district court level and caused his nomination to sit for over a year before confirmation by a narrow vote.  Now, as an appellate nominee, Brasher may well have a faster confirmation, simply because Republicans tend to prioritize appellate nominees.  Nonetheless, Brasher’s brief tenure as a district court judge, as well as his youth and conservative ideology, is likely to make him a controversial nominee.


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

[2] Id. at 2.

[3] Id.

[4] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[5] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[6] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[7] Matt Apuzzo and Michael S. Schmidt, Trump Judicial Pick Did Not Disclose He is Married to a White House Lawyer, N.Y. Times, Nov. 13, 2017, https://www.nytimes.com/2017/11/13/us/politics/trump-judge-brett-talley-nomination.html?_r=0.  

[8] Zoe Tillman, A Trump Judicial Nominee Appears to have Written About Politics on a Sports Website and Didn’t Disclose It, Buzzfeed News, Nov. 13, 2017, https://www.buzzfeed.com/zoetillman/a-trump-judicial-nominee-appears-to-have-written-about?utm_term=.lfJaLQm8G#.atjgYrER6.

[9] Mark Joseph Stern, Trump Judicial Nominee Brett Talley Appears to Have Defended “the First KKK” in Message Board Post, Slate, Nov. 15, 2017, http://www.slate.com/blogs/the_slatest/2017/11/15/trump_nominee_brett_talley_appears_to_have_defended_the_first_kkk.html.  

[10] Zoe Tillman, The White House Says Two of Trump’s Controversial Judicial Nominees Won’t Go Forward, BuzzFeed News, Dec. 12, 2017, https://www.buzzfeed.com/zoetillman/trump-is-suddenly-facing-a-significant-republican-roadblock?utm_term=.bo9w8BdnA#.siJmaqzpA.  

[11] See Brasher, supra n. 1 at 40-41.

[12] McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

[13] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

[14] See id.

[15] See 135 S. Ct. 1257 (2015).

[16] 135 S. Ct. 1136 (2015).

[17] See Planned Parenthood Southeast v. Strange, 2:13cv405-MHT (M.D. Ala.).

[18] Alabama Democratic Conference v. Attorney Gen., 838 F.3d 1057 (11th Cir. 2016).

[19] James v. City of Montgomery, Case No. 2:17-cv-528-ALB, 2019 WL 3346530 (M.D. Ala. July 25, 2019).

[20] See Knowles v. Inzi Controls Alabama, Inc., Case No. 1:17-cv-839-ALB, 2019 WL 4551609 (M.D. Ala. Sept. 19, 2019).

[21] See Hughes v. Wal-Mart Stores East, LP, Case No. 2:17-cv-225-ALB, 2019 WL 6048878 (M.D. Ala. Nov. 14, 2019).

[22] See Fuller v. Koch Foods, Inc., Case No. 2:17-cv-96-ALB, 2019 WL 3072633 (M.D. Ala. July 12, 2019).

[23] See Moulton v. W.W.I., Inc., Case No. 1:18-cv-67-ALB, 2019 WL 3558032 (M.D. Ala. Aug. 5, 2019).

[24] Turnham v. United States, 383 F.Supp.3d 1288 (M.D. Ala. 2019).

[25] U.S. Commodity Futures Trading Comm’n v. Dinar Corp., Inc., Case No. 1:15-cv-538-ALB, 2019 WL 3842069 (M.D. Ala. May 30, 2019).

[26] Andrew Brasher, Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations (July 21, 2015) (video available at https://www.youtube.com/watch?v=_1tFCp-rYGQ).  

[27] Id. at 41:22.

[28] Andrew Brasher, Combatting Federal Overreach (Feb. 4, 2017) (video available at https://www.youtube.com/watch?v=s-71pu5xnOA).

[29] Id. at 1:19:45.

[30] Andrew Brasher, Good Faith and Caution, Not Irrationality or Malice, SCOTUSBlog, Jan. 16, 2015, http://www.scotusblog.com/2015/01/symposium-good-faith-and-caution-not-irrationality-or-malice/.

[31] See id.

[32] Id.

[33] Andrew Brasher, The Death Penalty Lives to Fight Another Day, SCOTUSBlog, June 29, 2015, http://www.scotusblog.com/2015/06/symposium-the-death-penalty-lives-to-fight-another-day/.  

[34] Id.

[35] Andrew Brasher, A Recipe for Continued Confusion and More Judicial Involvement in Redistricting, SCOTUSBlog, Mar. 23, 2017, http://www.scotusblog.com/2017/05/symposium-recipe-continued-confusion-judicial-involvement-redistricting/.  

[36] Id.

[37] See Brasher, supra n. 1 at 20.

[38] See id.

Patrick Bumatay – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Patrick Bumatay was originally nominated last year, amidst much self-congratulatory fanfare, for the Ninth Circuit, with many noting that Bumatay, if confirmed, would be the first openly LGBT circuit judge on the territorial courts of appeals.  However, the opposition of California’s Democratic Senators downgraded Bumatay’s nomination to the district court level.  However, with his nomination still stalled, the White House has tapped Bumatay again for the Ninth Circuit.

Background

Patrick Joseph Bumatay was born on February 14, 1978.  As a college student, Bumatay interned for the consulting company run by Kellyanne Fitzpatrick (now Kellyanne Conway, counselor to the President).  Bumatay attended Yale University and then Harvard Law School.  He then clerked for Judge Sandra Townes on the U.S. District Court for the Eastern District of New York and for Judge Timothy Tymkovich on the U.S. Court of Appeals for the Tenth Circuit.

After his clerkships, Bumatay joined Morvillo Abramowitz Grand Iason Anello & Bohrer P.C. in New York.  In 2012, Bumatay moved to San Diego to join the U.S. Attorney’s Office for the Southern District of California, where he still works.  However, since 2017, Bumatay has been on detail with the Department of Justice, working in the Attorney General’s office.

History of the Seat

Bumatay has been nominated to the U.S. Court of Appeals for the Ninth Circuit to fill a seat being vacated by Judge Carlos Bea.  Bumatay was previously nominated for a seat on the U.S. Court of Appeals for the Ninth Circuit vacated by Judge Alex Kozinski on October 10, 2018.  However, due to the opposition of California Senators Dianne Feinstein and Kamala Harris, Bumatay was renominated to the U.S. District Court for the Southern District of California, to a seat vacated on September 30, 2016, by Judge Marilyn Huff’s move to senior status.  Instead, President Trump nominated Dan Bress, a D.C. based attorney, to the Kozinski seat (Bress was subsequently confirmed).  However, Bumatay’s nomination to the District Court didn’t move either, potentially because of blue slip issues.  Instead, he was once again tapped for the Ninth Circuit.

Legal Experience

Bumatay has spent his career in two primary positions, at the firm of Morvillo Abramowitz Grand Iason Anello & Bohrer P.C. and at the U.S. Attorney’s Office in the Southern District of California.  In the former position, Bumatay worked on both regulatory and litigation matters, including representing the asset management firm GAMCO in defending against a suit filed by account holders who lost money through GAMCO’s investment in Bernie Madoff’s Ponzi scheme.[1] 

As a federal prosecutor, Bumatay tried eight criminal cases to verdict, focusing largely on drug and immigration cases.  For example, Bumatay tried a number of defendants for the maritime drug trafficking of cocaine.[2]  Bumatay also prosecuted Nicholas Zakov for smuggling Mexican citizens into the United States in his trunk (both citizens unfortunately passed away during the journey).[3]

Since 2017, Bumatay has been on detail at the Department of Justice, where he has overseen criminal and civil policy in the Attorney General’s and Deputy Attorney General’s Offices.

Political Activity

While in college, Bumatay was a member of Yale’s Conservative Party.[4]  Notably, Bumatay, as a college student, was sharply critical of affirmative action, mocking proponents by stating:

“…all men are created equal — unless they are Asian or white.”[5]

Later, Bumatay became co-president of the Yale College Republicans, and supported Republican candidates in New Hampshire.[6]  He also defended President Bush’s grades in college, stating:

“Grades that he got from 25 years ago will not reflect how well he can lead the country.”[7]

Bumatay has also donated to the campaigns of Bush in 2003 and Romney in 2011 and 2012.[8]

Overall Assessment

The White House and California’s Democratic Senators have already had some public clashes over the three California Ninth Circuit nominees confirmed so far.  They are similarly clashing over Bumatay.  Nevertheless, at a time when partisanship on judicial nominees has reached an all-time high, it may be sufficient for Republican senators that Bumatay is a Republican nominated by Trump, which should lead to his confirmation.


[1] See Rioseco v. Gamco Asset Mgmt., Inc., No. 15862/10 (N.Y. Super. Ct., Westchester Cty., Comm. Div. Sept. 23, 2011).

[2] See United States v. Valdez-Medina, 15CR0336-JAH (S.D. Cal. Nov. 22, 2016); United States v. Cedeno-Cedeno, 14CR3305-L (S.D. Cal. Aug. 23-30, 2016).

[3] United States v. Zakov, 14CR2363-AJB (S.D. Cal. Sept. 29, 2015).

[4] Hyorim Suh, Yale Profs Debate Affirmative Action With Harvard Teachers, Yale Daily News, Oct. 12, 1999.

[5] See id.

[6] Perry Bacon, Yale Students Hit the Campaign Trail in New Hampshire, Yale Daily News, Oct. 25, 1999.

[7] Brigitte Greenberg, Magazine Publishes Bush’s Alleged Grades, Associated Press, Nov. 10, 1999.

Justice Barbara Lagoa – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Barbara Lagoa, a Justice on the Florida Supreme Court, would be Trump’s first nonwhite nominee to the Eleventh Circuit, and would flip the court to being evenly divided between the genders, a rare case of gender progress on the bench in the last few years.

Background

Barbara Lagoa was born in Miami in 1967.  After getting a B.A. with honors from Florida International University, Lagoa joined Columbia University Law School, graduating in 1992.  After graduating, Lagoa worked in private practice in Miami, moving between the firms of Morgan Lewis & Brockius LLP, Schulte Blum McMahon Joblove & Haft, Cohen Berke Bernstein Brodie & Kondell, P.A., and Greenberg Traurig.

In 2003, Lagoa became a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Florida.  In 2006, Gov. Jeb Bush appointed her to the Third Circuit Court of Appeal in Florida.  In 2019, she was elevated by Gov. Ron DeSantis to the Florida Supreme Court.

History of the Seat

Lagoa was tapped for a Florida seat on the U.S. Court of Appeals for the Eleventh Circuit.  The seat was vacated by Judge Stanley Marcus.  Notably, Lagoa was nominated only months after she joined the Florida Supreme Court.

Legal Experience

Before she became a judge, Lagoa gained experience in both civil and criminal law, working in private practice and with the U.S. Attorney’s Office for the Southern District of Florida.  However, perhaps the most prominent case that Lagoa handled was her representation of Lazaro Gonzalez, the Miami-based great uncle of Elian Gonzalez.[1]  Gonzalez left Cuba with his mother and her boyfriend, who both died during the boat journey into Florida.[2]  The push to return Gonzalez to Cuba caused significant partisan conflict as well as intervention by both Congress and the Clinton Administration.[3]  In representing the family, Lagoa represented them in the media and court proceedings seeking to block Elian’s removal to Cuba.[4]  Elian was ultimately returned to his father’s family in Cuba after intervention by Attorney General Janet Reno after court intervention was rejected.

Jurisprudence

Lagoa has served on the Florida Supreme Court for approximately eight months, before which she was a judge on the Court of Appeal of Florida for thirteen years.  On both courts, Lagoa has developed a conservative jurisprudence.  Her appointment to the Florida Supreme Court in 2019, alongside that of Judges Carlos Muniz and Robert Luck, flipped the court from a liberal majority to a conservative one.  This new conservative majority reversed several decisions made by the previous majority, with the only holdover majority judge, Judge Jorge Labarga, in dissent.[5]

For example, in one case, Lagoa joined 6-1 majorities in reversing two 4-3 Florida Supreme Court decisions: one that upheld Orange County election code that allowed officials to be elected in nonpartisan elections; and one that handled attorney-fee disputes in a foreclosure battle.[6]  In a different case, Lagoa joined the majority in reversing another 4-3 Florida Supreme Court ruling and allowing Florida legislative standards for expert witnesses to be entered, even as her fellow conservative Robert Luck excoriated the court for failing to follow proper procedures in reversing itself.[7]

Overall Assessment

With extensive experience as an appellate judge and as a Supreme Court justice, Lagoa is certainly well-qualified for an appellate seat.  While she may draw questions about her conservative jurisprudence, it is likely to be expected that this Administration will put out conservative candidates.  As such, Lagoa would likely be confirmed fairly comfortably.


[1] Tom Raum, Capitol Hill Wary on Cuban Boy, A.P. Online, Jan. 27, 2000.

[2] See id.

[3] See id.

[4] See, e.g.,  Wolf Blitzer, Mark Potter, Federal Court Begins Examining Complicated International Custody Battle Over Elian Gonzalez, CNN The World Today, Mar. 9, 2000.

[5] See Florida Politics, Reversals Show New Day on Supreme Court, State Capital Newsfeed, Apr. 19, 2019.

[6] See id.

[7] What’s Up With Florida’s New Supreme Court? This Case Helps Explain,  Tampa Bay Times Blogs, May 24, 2019.

Justice Robert Luck – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Trump has frequently elevated justices on state supreme courts to the federal bench.  However, Florida Supreme Court Justice Robert Luck is unique in the swiftness of his elevation as he has barely served six months before being nominated for the Eleventh Circuit.

Background

Robert Joshua Luck was born in South Miami on March 17, 1979.  After getting a B.A. with Highest Honors from the University of Florida, Luck spent a year as a Legislative Correspondent in the U.S. Senate.[1]  He then joined the University of Florida Levin College of Law, graduating magna cum laude in 2004.  After graduating, Luck clerked for the very conservative Judge Ed Carnes on the U.S. Court of Appeals for the Eleventh Circuit, and went on to become a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Florida.

In 2013, Governor Rick Scott named Luck to be a Judge on the Eleventh Judicial Circuit Court in Florida.  In 2017, he was elevated to the Third District Court of Appeal.  In 2019, Gov. Ron DeSantis appointed Luck to the Florida Supreme Court, replacing Justice Barbara Pariente.  Luck now serves on the Supreme Court.

History of the Seat

Luck was tapped for a Florida seat on the U.S. Court of Appeals for the Eleventh Circuit.  The seat was vacated by Judge Gerald Bard Tjoflat, who is the longest serving active judge on the U.S. Court of Appeals, having served since 1976.  Notably, Luck was nominated only months after he joined the Florida Supreme Court.

Legal Experience

Luck’s primary experience before he became a judge is as a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Florida.  In his five years with the office, Luck tried nineteen cases to a jury.[2]

Among his trials, Luck prosecuted Rene De Los Rios, a doctor who fraudulently billed Medicare by around $50 million, resulting in a conviction and a twenty year sentence.[3]  Luck also prosecuted Crecencio Hernandez, who attempted to smuggle foreign nationals into the United States when his boat capsized, killing six people.[4]  He also prosecuted Juan Carlos Rodriguez who operated MDN Financial, a Ponzi scheme that cost many clients their life’s savings.[5]

Jurisprudence

Even though he is only forty, Luck has already served on three levels of Florida courts, the Circuit Court; the Court of Appeals; and the Florida Supreme Court.  His jurisprudence at all three reflects a conservative judicial philosophy, albeit one that does lead to some independent decisions.

Trial Court

In 2013, Luck was appointed to the Eleventh Judicial Circuit in Florida, where he served until 2017.  On that court, Luck sat in both the Civil and Criminal Divisions, overseeing felony cases and civil cases with over $15,000 in controversy.  All in all, Luck presided over approximately 300 cases.  Among these was that of Ricardo Garganelly, who attacked Luck during his competency hearing.[6]  Luck subsequently recused himself from Garganelly’s case.[7]

Court of Appeals

In 2017, Luck was appointed to the Court of Appeal of Florida for the Third District, where he served until his appointment to the Florida Supreme Court.  In this role, Luck served as an intermediate appellate judge.  As a judge, Luck wrote for the court in rejecting a lawsuit alleging that Miami-Dade Commissioner Joe Carrollo was ineligible to hold office.[8]  In another decision, Luck held that a charge for defamation couldn’t stand against the Diocese of Palm Beach because litigating such a dispute would entangle the court in ecclisiastical affairs.[9]

Florida Supreme Court

Since his appointment in 2019, Luck has served on the Florida Supreme Court where he has been one of seven justices who has served as the final voice on Florida law.  Luck’s appointment to the Florida Supreme Court, alongside that of Justices Barbara Lagoa and Carlos Muniz, flipped the Court to a conservative majority, and led to a flurry of reversals on the court, where the new majority overturned decisions made by the previous liberal majority.[10]

For example, in one case, Luck joined 6-1 majorities in reversing two 4-3 Florida Supreme Court decisions: one that upheld Orange County election code that allowed officials to be elected in nonpartisan elections; and one that handled attorney-fee disputes in a foreclosure battle.[11]  The reversals could suggest that Luck would be willing to revisit and overturn precedent without feeling bound by stare decisis.

However, in a different case, as the new majority reversed another 4-3 Florida Supreme Court ruling, allowing Florida legislative standards for expert witnesses to be entered, Luck joined Judge Jorge Labarga (the lone liberal on the court) in dissent.[12]

Overall Assessment

While Luck’s record is that of a judicial conservative, it displays signs of a more independent bent.  For example, Luck was the only one of the Florida Supreme Court conservatives to dissent as the court overturned prior precedent to uphold legislative restrictions on expert testimony.  As such, while Luck would no doubt maintain a conservative bent on the Eleventh Circuit, his jurisprudence may nonetheless surprise parties in some cases.


[1] Sen. Comm. on the Judiciary, 116th Cong., Robert Luck: Questionnaire for Judicial Nominees 2.

[2] See Luck, supra n. 1 at 44.

[3] See United States v. De Los Rios, 489 F. App’x 320 (11th Cir. 2012).

[4] United States v. Hernandez, Case No. 08-21054 CR-Zloch.

[5] See United States v. Rodriguez, 537 F. App’x 840 (11th Cir. 2013).

[6] David Ovalle, Miami-Dade Judge Returns to Bench After Attack in Courtroom,  Miami Herald, Feb. 13, 2015, https://www.miamiherald.com/news/local/crime/article9999575.html.

[7] See id.

[8] See Florida Politics, Appeals Court Rejects Election Challenge Over Residency, State Capital Newsfeed, May 2, 2018.

[9] Florida Politics, Court Sides With Church in Priest Defamation Fight, State Capital Newsfeed, May 9, 2018.

[10] See Florida Politics, Reversals Show New Day on Supreme Court, State Capital Newsfeed, Apr. 19, 2019.

[11] See id.

[12] What’s Up With Florida’s New Supreme Court? This Case Helps Explain,  Tampa Bay Times Blogs, May 24, 2019.

Judge Danielle Hunsaker – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Last July, Ryan Bounds became a first appellate nominee to be rejected due to lack of majority support since the enactment of the nuclear option in 2013.  Bounds faced particular opposition due to the lack of support from his home-state senators.  With the senators in support of the newest candidate to that seat, Judge Danielle Hunsaker will likely be confirmed comfortably.

Background

Hunsaker was born Danielle Jo Forrest in 1977 in Roseburg, OR.  Hunsaker received her B.A. from the University of Idaho in 2001 and a J.D. from the University of Idaho Law School summa cum laude in 2004.[1]  After graduating from law school, Hunsaker clerked for Judge Paul Kelly on the U.S. Court of Appeals for the Tenth Circuit, Judge Michael Mosman on the U.S. District Court for the District of Oregon, and for Judge Diarmund O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit.[2] 

After her clerkships, Hunsaker joined Stoel Rives LLP in Portand as a Litigation Associate, and moved after a year to Larkins Vacura Keyser LLP, where she became a Partner in 2014.[3]  In 2017, Hunsaker was nominated by Gov. Kate Brown to the Washington County Circuit Court, where she currently serves.

History of the Seat

Hunsaker has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with O’Scannlain’s move to senior status.  In 2017, Oregon attorney Ryan Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.  Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez as a potential nominee to the White House.  However, the White House nominated Bounds on September 7, 2017.

In response, both Wyden and Merkley declined to return blue slips on Bounds, noting, in a letter to White House Counsel Don McGahn, that Bounds had not been approved by the state’s bipartisan judicial selection committee as of his nomination date, and that they had not been adequately consulted.  McGahn disputed the lack of consultation and instead criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.  Nonetheless, the Senate Judiciary Committee processed Bounds’ nomination.  However, the nomination failed on the Senate floor when Sen. Tim Scott announced his opposition based on writings from Bounds’ past that contained racially fraught statements.[4]

For her part, Hunsaker had applied for the vacancy with Democratic Sen. Ron Wyden.[5]  She interviewed with the White House in January 2018 (while Bounds was already the nominee) and again in July 2018 (after the defeat of Bounds’ nomination).  In June 2019, Hunsaker reapplied with Wyden and was selected as one of four finalists by Oregon’s Democratic Senators.[6]  Hunsaker’s nomination was subsequently announced by the White House.

Legal Experience

Before joining the bench, Hunsaker worked primarily as a commercial civil litigator.  Hunsaker notably represented the rideshare company Lyft in a suit to keep information on riders and drivers collected by Seattle regulators secret from access to media companies.[7]  She also represented investors in derivative actions and similar suits.  Furthermore, Hunsaker represented a prisoner injured in an excessive force claim against the guards who injured him.[8]

Jurisprudence

Hunsaker has spent the last two years serving as a circuit judge in Oregon, where she presides over criminal and civil cases on the trial level.  In this role, Hunsaker has presided over approximately 23 jury trials.  Among her more prominent cases, Hunsaker acquitted parents of a baby testing positive for methamphetamine of child abuse, ruling that the state had failed to prove the “knowing” element of child abuse.[9]

Writings

As a law student, Hunsaker authored a note discussing the Supreme Court’s decision in Ring v. Arizona and the subsequent Idaho remedial death penalty statute passed.[10]  Ring ruled that, where the death penalty is imposed, any additional aggravating factores leading to exposure to the death penalty must be determined by the jury and not by a judge.[11]  Hunsaker notes that this decision invalidated the death penalty scheme in Idaho, leading to a revised scheme wherein the jury convenes for a sentencing hearing after a determination of guilt in capital cases.[12]  Overall, Hunsaker commends the legislature for adapting the death penalty scheme post-Ring but adds that further tweaks may be necessary to ensure a role for the jury in capital sentencing.[13]

Overall Assessment

Hunsaker was not the Administration’s first choice for the Ninth Circuit, but she is nonetheless likely to get a comfortable confirmation.  Hunsaker’s Federalist Society credentials are likely to endear her to Republicans while her appointment by a Democratic Governor will ensure support from Democrats.


[1] Sen. Comm. on the Judiciary, 116th Cong., Danielle Hunsaker: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Nina Totenberg and Jessica Taylor, Appeals Court Nomination Withdrawn Before An Expected Failure on Senate Floor, Nat’l Pub. Radio, Jul. 19, 2018, https://www.npr.org/2018/07/19/630552662/appeals-court-nomination-withdrawn-before-it-was-expected-to-fail-on-senate-floo.  

[5] See Hunsaker, supra n. 1 at 45.

[6] The other three finalists included two Oregon Court of Appeals judges, Judge James Egan, and Judge Erin Lagesen, and appellate attorney Bruce Campbell.

[7] See Lyft v. King Broadcasting Co., No. 16-2-26971-1 (Wash. Circ. Ct., King Cnty.).

[8] See Tilahun v. Oregon Dep’t of Corr., No. 2:13-cv-01074 (D. Or.).

[9] State v. Richelle Seamster, No. 18CR35682 (Or. Cir. Ct. Wash. Cnty.); State v. Andre Wamulumba, No. 18CR40953 (Or. Cir. Ct. Wash. Cnty.).

[10] Danielle J. Hunsaker, The Right to a Jury “Has Never Been Efficient; But It Has Always Been Free”: Idaho Capital Juries After Ring v. Arizona, 39 Idaho L. Rev. 649 (2003).

[11] Id. at 661-62.

[12] Id. at 669-70.

[13] Id. at 688.

William Nardini – Nominee to the U.S. Court of Appeals for the Second Circuit

While New York senators have frequently clashed with the White House over judicial appointments in the state, their neighbors in Connecticut have quietly formed a working relationship that has produced three relatively uncontroversial nominations, including that of William Nardini to the Second Circuit.

Background

William Joseph Nardini was born in Glen Ridge, NJ in 1969.  Nardini received his B.A. summa cum laude from Georgetown University in 1990 and his J.D. from Yale Law School in 1994.[1]  After graduating, Nardini clerked for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit and then for Judge Guido Calabresi on the same court.  Nardini then clerked for Judge Sandra Day O’Connor on the U.S. Supreme Court

In 2000, Nardini joined the U.S. Attorney’s Office for the District of Connecticut.[2]  He currently serves as Criminal Chief of the Office.

History of the Seat

Nardini has been nominated for a Connecticut seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Christopher Droney, who moved to senior status on June 30, 2019.  

In April 2019, Nardini was contacted by the White House to gauge his interest in the Second Circuit.[3]  In May 2019, Nardini applied to a selection committee set up by Connecticut Senators Richard Blumenthal and Christopher Murphy (both Democrats).[4]  On July 31, 2019, Nardini interviewed with the White House and with Blumenthal and Murphy, who both decided to back his nomination.  Nardini was nominated in September 2019.

Legal Career

Nardini has primarily worked as a federal prosecutor in Connecticut.  However, Nardini also spent four years on detail with the U.S. Embassy in Rome, where he represented the United States in extradition and mutual legal assistance in Italian criminal matters.[5]  Over the course of his career, Nardini has handled ten jury trials and around 350 appeals before the Second Circuit.

Nardini primarily prosecuted public corruption, organized crime, and racketeering cases.  For example, Nardini prosecuted FBI Agent John Connolly for his corrupt relationships with mobster Whitey Bulger.[6]  Nardini also prosecuted former Connecticut NAACP head Ben Andrews for a corrupt relationship with State Treasurer Paul Silvester.[7]

Nardini also handled terrorism cases, including the prosecution of U.S. Navy sailor Hassan Abu-Jihaad for disclosing national security information to organizations engaging in material support for terrorists.[8]

Political Activity

Nardini has a fairly apolitical background, with his only political experience being support for NJ Assemblyman Joseph A. Mecca, a Democrat, in 1991.[9]

Writings

In 2006, Nardini authored an article discussing the tools that prosecutors can use in prosecuting and undermining organized crime.[10]  In the article, Nardini outlines the various tools prosecutors can use, from subpoenas and warrants to offers of transactional immunity that can encourage witnesses to turn against their superiors in a criminal enterprise.[11]  Nardini suggests that prosecutors can use the tools at their disposal “in concert” with each other to ensure maximum effectiveness to target organized crime.[12]

Overall Assessment

Unlike the last few nominations to the Second Circuit, who have all drawn controversy, Nardini will likely be confirmed relatively easily.  His nonpartisan background and focus on prosecuting organized crime and terrorists make him salable to senators of both parties, and the support of Blumenthal and Murphy won’t hurt.  As such, Nardini’s nomination and likely confirmation is a testament to how smoothly the process can be when all parties work together in good faith.


[1] Sen. Comm. on the Judiciary, 116th Cong., William Nardini: Questionnaire for Judicial Nominees 1.

[2] Judge Andy Oldham on the U.S. Court of Appeals for the Fifth Circuit was a co-clerk of Nardini’s.

[3] See id. at 31.

[4] See id.

[5] Id. at 19.

[6] United States v. Connolly, Criminal No. 99-CR-10428-JLT (D. Mass.).

[7] Larry Neumeister, Lawyer Argues for New Trial for former Connecticut NAACP Head, Associated Press, Sept. 20, 2006.

[8] See United States v. Abu-Jihaad, Criminal No. 3:07-CR-57 (MRK) (D. Conn.).

[9] See Nardini, supra n. 1 at 17.

[10] William J. Nardini, The Prosecutor’s Toolbox, J. Int. Criminal Justice (2006) 4 (3): 528 (July 1, 2006).

[11] See id.

[12] Id. at 536.

Steven Menashi – Nominee to the U.S. Court of Appeals for the Second Circuit

The 40 year old Menashi is poised to be one of the most controversial appellate nominees from the Trump Administration, given his writings exploring sensitive issues including ethnonationalism, religion, and constitutional meaning.  

Background

Steven James Menashi was born on January 15, 1979.  Menashi received his B.A. magna cum laude from Dartmouth College in 2001.  After graduating, Menashi worked for the Hoover Institute, a think tank based out of Stanford University and then spent a year working as an editorial writer for the New York Sun.  Menashi then joined Stanford Law School, graduating in 2008 with the Order of the Coif.  After graduating, Menashi clerked for Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Samuel Alito on the U.S. Supreme Court.

After his clerkships, Menashi joined the New York City office of Kirkland & Ellis.  In 2016, Menashi left to become a law professor with the Antonin Scalia Law School at George Mason University.  In 2017, he joined the U.S. Department of Education, serving as Acting General Counsel.  In 2018, Menashi joined the White House as Special Assistant to the President and Associate Counsel to the President, where he currently serves.

History of the Seat

Menashi 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 Dennis Jacobs, who moved to senior status on May 31, 2019.  

Legal Career

Menashi’s primary litigation experience has been the five years he spent at Kirkland & Ellis.  At the firm, Menashi participated in a number of suits involving pharmaceutical companies.  For example, he was part of the legal team that defended Abbott Laboratories for a suit relating to the psoriasis drug Humira, which the plaintiff alleged caused her to develop squamous cell carcinoma of the tongue.[1]  Menashi also defended a number of pharmaceutical companies against qui tam lawsuits alleging that they had defrauded the federal government by submitting fraudulent reimbursement claims.[2]  In a more controversial matter, he represented Teva Woman’s Health, a pharmaceutical company intervening in a suit seeking to allow emergency contraceptives to be sold without requiring a prescription.[3]

On the constitutional side, Menashi represented Jewish religious organizations in intervening in a lawsuit that challenged approval of religious projects in the City of Boca Raton.[4]  Judge Marra ultimately dismissed the lawsuit, brought by self-identified Christians, for lack of standing.[5]

Writings

Having worked as a journalist and an academic, Menashi has written extensively on the law, public policy, and issue areas that interest him.  While it is difficult to succinctly summarize all of his writings, two particular strains are highlighted below.

Constitutional Structure and Administrative Law

Menashi has written extensively on the U.S. Constitution, separation of powers, and federalism.  In interpreting the Constitution, Menashi is generally a proponent of textualism and a critic of the “living Constitution.”[6]  Furthermore, he is critical of the current structure of administrative law, arguing that it fails to support limited government and gives too much power to administrative agencies.[7]  Interestingly, he supported President Obama for using policy czars that were appointed solely by the White House and (unlike many agency heads) insulated from congressional oversight, noting that having the legislature oversee executive policy was “the greater threat to separated powers.”[8]  From these writings, one can conclude that Menashi is generally a proponent of greater executive power and less delegation of authority to agency heads and lawmakers.  

Ethnonationalism and Israel

Perhaps none of Menashi’s writings has drawn as much attention as a 2010 paper on the ethnonationalistic nature of Israel.[9]  The article has been criticized by various commentators, including Rachel Maddow as a call for state nationalism and “racial purity.”  In turn, Maddow and Menashi’s critics have themselves been criticized for being “racist” and “anti-semitic” in their criticism of Menashi.[10]

The article itself discusses Israel, and its commitment to being a “Jewish” state.  In the article, Menashi counters arguments that liberal democracies cannot bind themselves along an ethnonationalistic identity, arguing instead that the Holocaust “revealed that a liberal scheme of human rights requires a system of particularistic nation-states.”[11]  Menashi goes on to argue that the Holocaust targeted individuals who had no nation-state to support them and who were dependent on the concepts of “universal human rights” for protection.[12]  He goes on to argue that Israel’s system of citizenship and nationality is no different than those of other nation-states, comparing Israel’s “law of return” to kin-repatriation systems in other countries.

Menashi concludes:

“A political order may insist that certain human differences are irrelevant while people themselves regard those differences as meaningful and are consequently reluctant to recognize others as their equals.  Where the political order does not account for differences which correspond to deeply felt allegiances, the fact of difference becomes a threat to the political order.”[13]

Political Activity

Menashi has donated primarily to Republicans throughout his career.[14]  For example, Menashi donated to support Mitt Romney’s presidential campaign in 2012, as well as the Right to Rise PAC, which supported Jeb Bush’s presidential campaign in 2016.[15] 

Overall Assessment

There is little doubt that Menashi’s confirmation will be contentious.  Critics, after all, have a fair basis for arguing that Menashi holds a strongly conservative judicial philosophy and that his confirmation will move the closely divided Second Circuit sharply to the right.  

However, in discussing Menashi’s nomination, it is worth taking the time to consider the specific critiques based on Menashi’s 2010 article on ethnonationalism.  The thesis of the article could be summed up as follows: critics of Israel for maintaining an ethnonationalistic identity as a “Jewish” state are mistaken, as such ethnonationalistic identities are fundamental to the functioning of a liberal democracy.  Menashi’s article reads as a recognition that humans are tribal creatures and have inherent tendencies to organize in groups.  As such, the most vulnerable are those with no organized force to advocate for them.  In that sense, the article attempts to make a point consistent with one others have tried to make regarding race, namely that prejudice is such a deeply ingrained human quality, and that makes true blindness and universalism impossible.  As such, it is only through a recognition of race/nationalism and its impact, that one can completely transcend it.

That being said, Menashi’s critics (and it goes without saying that one can criticize an individual’s views without necessarily being motivated by prejudice) aren’t entirely off base either.  Menashi’s historical analysis is based upon the essential “statelessness” of the Jews (and other minorities targeted by the Holocaust).[16]  However, one could argue that the Jews targeted by the Holocaust were not stateless, but rather were the citizens of their home countries.  Furthermore, one could note that they were betrayed, not by universalism, but by a restrictive nationalism that denied their citizenship and humanity.

As such, one can disagree with Menashi’s thesis in the article.  While it is true that Israel’s brand of national ideology is far from unique among liberal democracies, it does not necessarily follow that such ethnonationalism is inherent or fundamental to liberal democracy.  Rather, one could use the United States as proof that liberal democracies can base their identity around a state ideology rather than ethnicity and can continue to thrive as such.

Overall, Menashi’s prolific writing career leaves senators with many aspects on which to question him, making today’s hearing all the more powerful for its impact.


[1] DiBartolo v. Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y. 2012).

[2] United States v. Alpharma, Inc. et al., 928 F. Supp. 2d 840 (D. Md. 2013).

[3] Tummino v. Hamburg, 936 F. Supp. 2d 162 (E.D.N.Y. 2013).

[4] Gagliardi v. City of Boca Raton, 197 F. Supp. 3d 1359 (S.D. Fla. 2016).

[5] See id. at 1365-66.

[6] See Steven Menashi, The Undead Constitution, Policy Review (Oct-Nov. 2009).  

[7] Douglas H. Ginsburg and Steven Menashi, Our Illiberal Administrative Law, NYU Journal of Law & Liberty (2016).

[8] Steven Menashi, All the President’s Czars; Obama Emerges As a Champion of the Unitary Executive, Weekly Standard, Oct. 12, 2009.

[9] Steven Menashi, Ethnonationalism and Liberal Democracy, University of Pennsylvania Journal of Int’l Law (Nov. 2010).

[10] See, e.g., David Bernstein, Rachel Maddow’s Racist Smear of Second Circuit Nominee Steve Menashi, Reason, Aug. 17, 2019, https://reason.com/2019/08/17/rachel-maddows-racist-smear-of-second-circuit-nominee-steve-menashi/.  

[11] Id. at 61.

[12] Id. at 64.

[13] Id. at 121.

[15] See id.

[16] See supra n. 9 at 64.