Thomas Kirsch – Nominee to the U.S. Court of Appeals for the Seventh Circuit

U.S. Attorney Thomas Kirsch, nominated to replace now-Justice Amy Coney Barrett, has an exceedingly narrow time window to confirmation.  Nonetheless, with the Presidency switching parties in two months, Republicans are nonetheless expected to prioritize the nomination.

Background

Thomas Lee Kirsch II was born on January 25, 1974.  He attended Indiana University, graduating in 1996.  He then received his J.D. from Harvard Law School in 1999.  After graduating, Kirsch clerked for Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana.[1] 

After his clerkship, Kirsch spent a year at the firm of Jenner & Block and then joined the U.S. Attorney’s Office for the Northern District of Indiana as a federal prosecutor.  In 2006, Kirsch was detailed to Main Justice as Counsel for the Office of Legal Policy.

In 2008, Kirsch left to join the Chicago office of Winston & Strawn as a Partner.  He worked as the firm until he was chosen to be U.S. Attorney for the Northern District of Indiana by the Trump Administration in 2017.[2]  He continues to work in that capacity today.

History of the Seat

Kirsch has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on October 26, 2020, when Judge Amy Coney Barrett was elevated to the U.S. Supreme Court.  Kirsch’s nomination was announced five days earlier on October 21, 2020.

Political Activity

Kirsch has occasionally donated to political candidates, exclusively Republicans.[3]  Among the recipients are Sen. John McCain, Sen. Richard Lugar, Sen. Mitt Romney, Rep. Todd Rokita, and Sen. Todd Young.

Legal Practice

Kirsch’s first legal position after his clerkship was at Jenner & Block.  Since that point, he has extensive experience in two primary roles: as a federal prosecutor; and as a defense attorney at Winston & Strawn.

Federal Prosecutor

From 2001 to 2008, Kirsch worked as a federal prosecutor in the Northern District of Indiana.  During his time with the office, Kirsch prosecuted James Fife, an aide to East Chicago Mayor Robert Pastrick, for hiding hundreds of thousands of dollars in public money.[4]

Winston & Strawn

In 2008, Kirsch joined the Chicago Office of Winston & Strawn as a partner.  At Winston, Kirsch primarily focused on white collar criminal defense, including advising companies that were targets of government investigations.  

Among the most notable cases he handled at Winston, Kirsch represented William Cellini, an Illinois Republican with close ties to former Gov. Rod Blagojevich who was convicted for extorting campaign contributions from Blagojevich.[5]  Kirsch also represented TV pitchman Kevin Trudeau, who was convicted of lying in his infomercials.[6] 

U.S. Attorney

Since 2017, Kirsch has served as U.S. Attorney for the Northern District of Indiana.  In this role, Kirsch leads all federal prosecutors in the district, sets enforcement priorities, and handles high profile matters.  Notably, shortly after his confirmation, Kirsch had to oversee a series of high-profile prosecutions related to the use of pipe bombs.  For example, Kirsch prosecuted GOP activist Eric Krieg for mailing a pipe bomb to an attorney (the bomb exploded at a post office).[7]  More recently, Kirsch has led investigations into scammers targeting individuals during the coronavirus pandemic.[8]

Writings

As an associate at Jenner & Block, Kirsch authored an article discussing the difficulties of securing victim cooperation in prosecuting domestic violence.[9]  In the article, Kirsch discusses various factors that might lead victims not to cooperate with prosecutors, and evaluates the possibility of forcing victims to testify.  Kirsch ultimately concludes that the costs of forcing a victim to participate, which include the possibility of retraumatizing the victim, ultimately outweigh the benefits.[10]

Overall Assessment

As Barrett was undergoing confirmation to the U.S. Supreme Court, the White House vetted a number of candidates for the Seventh Circuit, including White House attorney Kate Todd.[11]  In choosing Kirsch over a younger, more ideological choice like Todd, the White House is recognizing the political reality.  No President since Jimmy Carter has seen a post-election confirmation of an appellate nominee (and the confirmation of Judge Stephen Breyer late in 1980 was only done with the acquiescence of Senate Republicans).  With Democrats unlikely to endorse filling judgeships this late in the Trump Presidency, Republicans will have to stick together to confirm Kirsch.  The good news for Kirsch backers is that the nominee is unlikely to incite much opposition and, barring any unexpected developments, Republicans are likely to squeeze him through.


[1] Tinder was later elevated to the Seventh Circuit and held the seat that Kirsch now seeks appointment to.

[4] See A.P., Former East Chicago Mayor Aide Gets Prison Time for Hiding Money, A.P. State & Local Wire, Apr. 3, 2006.

[5] See Michael Tarm, Prosecutors: Cellini Deserves 8 Years in Prison, A.P. State & Local Wire, July 13, 2012.

[6] See Michael Tarm, TV Pitchman Jailed After Jurors Find Him Guilty, A.P. State & Local Wire, Nov. 12, 2013.

[7] A.P., Man Gets 29 Years for Post Office Pipe Bomb Addressed to Lawyer, The Indiana Lawyer, Apr. 5, 2019, https://www.theindianalawyer.com/articles/49911-man-gets-29-years-for-post-office-pipe-bomb-addressed-to-lawyer.

[8] See Marek Mazurek, Scammers Capitalize on Virus Fears, South Bend Tribune, Apr. 13, 2020.

[9]Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims Be Forced to Participate in the Prosecution of Their Abusers?, 7 Wm. & Mary J. of Women & L. 383 (Winter 2001).

[10] See id. at 426-27.

[11] Chip Somodeville, Trump and McConnell Are Reportedly Already Discussing Amy Coney Barrett’s 7th Circuit Replacement, The Week, Sept. 28, 2020, https://theweek.com/speedreads/940066/trump-mcconnell-are-reportedly-already-discussing-amy-coney-barretts-7th-circuit-replacement.   

Judge Cory Wilson – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Judge Cory Wilson, who currently serves on the Mississippi Court of Appeals, has his nomination pending before the Senate for a district court seat.  Now, Wilson, who has already attracted strong opposition, has been renominated to fill a seat on the U.S. Court of Appeals for the Fifth Circuit.

Background

Cory Todd Wilson was born on August 8, 1970, in Pascagoula, Mississippi.  After getting a B.A. summa cum laude from the University of Mississippi, Wilson received his J.D. from Yale Law School.[1]  Wilson then clerked for Judge Emmett Ripley Cox on the U.S. Court of Appeals for the Eleventh Circuit and then joined the Jackson office of Watkins Ludlam Winter & Stennis P.A.

In 2001, Wilson joined Bradley Arant Rose & White LLP as an associate.  He stayed until 2008, except for a year as a White House Fellow.[2]  In 2008, he joined the Mississippi Secretary of State’s Office as Chief of Staff/Deputy Secretary of State.  Wilson also served as Counsel for State Treasurer Lynn Fitch.  

In 2011, Wilson joined Heidelberg Steinberger Colmer & Burrow, P.A., where he stayed until his election to the Mississippi House of Representatives as a Republican in 2016.  Wilson served in the House until 2019, when he was appointed to the Mississippi Court of Appeals.

In 2018, Wilson broached his interest in a federal judgeship with the White House.  In November 2019, Wilson was nominated to a seat on the U.S. District Court for the Southern District of Mississippi.  The seat opened on March 23, 2018, when Judge Louis Guirola took senior status.  

History of the Seat

Wilson has been nominated for a Mississippi seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on October 3, 2017 with Judge E. Grady Jolly’s move to senior status.  

In April 2017, the White House began vetting U.S. District Court Judge Halil Ozerden for the vacancy.[3]  However, Ozerden’s nomination faced almost immediate pushback from conservatives who complained that Ozerden was insufficiently conservative for the seat.[4]  Nevertheless, Ozerden was finally nominated after the intervention of White House Chief of Staff Mick Mulvaney, who served as a groomsman in Ozerden’s wedding.[5]

However, Ozerden’s nomination stalled as two Republican senators on the Judiciary Committee came out against his nomination.[6]  With Democrats unwilling to provide the votes to move Ozerden’s nomination, the nomination was not sent back to the Senate in 2020, and Wilson’s district court nomination was substituted instead.

Legal Experience

Before he joined the legislature, Wilson generally practiced civil litigation, albeit with some work with both the Secretary of State and the Treasurer of Mississippi.  Over the course of his career, Wilson has tried three cases to verdict.[7]  Notably, Wilson represented one of the defendants sued for allegedly engaging in a conspiracy to photograph Sen. Thad Cochran’s wife in order to damage his re-election campaign.[8]  Wilson was able to get the case against his client dismissed for failure to state a claim.[9]

Jurisprudence

Wilson has served on the Mississippi Court of Appeals since his appointment in February 2019.  In his time on the bench, Wilson has authored approximately twenty opinions, mostly on matters of criminal law.  For example, Wilson wrote for the Court in finding that the trial judge did not err in trying and convicting a defendant while he was not present, finding that the defendant was trying to willfully avoid trial.[10]  In contrast, in another case, Wilson reversed a conviction for possession of a controlled substance, finding that the indictment was defective.[11]

Political Activity

As noted earlier, Wilson was elected as a Republican to the Mississippi House of Representatives in 2015 and served until his appointment to the Court of Appeals in 2019.  Wilson also previously ran for the state legislature in 2007, albeit unsuccessfully.  During his campaign, Wilson identified himself as a “conservative consensus builder.”[12]  He also attacked his opponent for opposing the record of Gov. Haley Barbour,[13] crime policy,[14] and cuts in dyslexia funding.[15] 

In addition to his campaigns, Wilson has extensive involvement with the Mississippi Republican Party, including serving as a volunteer during many Republican campaigns and serving on Republican organizations.[16] 

Speeches and Writings

As both a state representative and as a private citizen, Wilson wrote frequently on the law and policy, generally representing a conservative perspective on both.  Wilson also authored a column at MageeNews.com, which he described as reflecting a conservative perspective.[17]  In a feature describing his column, Wilson describes himself as someone who has “always been political” and “always been a Republican.”[18]

Additionally, Wilson also maintains an active Twitter account.[19]  His tweets and his writings have already drawn sharp criticism from liberal groups.[20]  Specifically, Wilson has called for the reversal of the Supreme Court’s decision in Roe v. Wade,[21] and has referred to same-sex marriage as “a pander to liberal interest groups.”[22]  Similarly, Wilson has been sharply critical of the Affordable Care Act, describing the law’s passage as “perverse” and “illegitimate.”[23] 

On his Twitter account, Wilson’s tweets are generally innocuous, describing the weather or celebrating major American holidays.  However, some of the tweets touch on more controversial topics.  For example, in a tweet on October 5, 2018, Wilson praises Sen. Susan Collins for supporting the nomination of Justice Brett Kavanaugh, praising her for rejecting “ugly tactics employed by the Left.”[24]  Similarly, the day before the 2018 election, Wilson wrote that the election was a choice between “#RepublicanResults, or unhinged Dem #Resistance.”[25]

Overall Assessment

Given Wilson’s fairly conservative record, it is unsurprising that he has drawn controversy on his nomination and that his name has proceeded relatively slowly through the confirmation process.  That being said, given the Republican majority, Wilson is favored for confirmation.  Nonetheless, Democrats will raise legitimate questions as to Wilson’s willingness to consider with an open mind the legal arguments of parties he disagrees with.  As, by his own admission, Wilson has “always been political,” it’ll be up to him to convince senators that he will be open-minded as a judge.


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

[2] Id. at 2.

[3] Sen. Comm. on the Judiciary, 116th Cong., Ozerden: Questionnaire for Judicial Nominees 55-56.

[4] See Carrie Severino, Conservatives Voice Concerns Over Potential Fifth Circuit Nominee, Nat’l Review, Aug. 21, 2018, https://www.nationalreview.com/bench-memos/conservatives-voice-concerns-over-potential-fifth-circuit-nominee/.

[5] Eliana Johnson and Marianne Levine, Mulvaney Pushed Judicial Nominee Over Objections of White House Lawyers, Politico, June 13, 2019, https://www.politico.com/story/2019/06/13/mulvaney-halil-suleyman-fifth-circuit-1362794.

[6] Marianne Levine, Trump’s Embattled Judicial Pick Faces His Last Chance, Politico, Nov. 7, 2019, https://www.politico.com/news/2019/11/07/trump-judicial-pick-ozerden-last-chance-067097.  

[7] Id. at 72.

[8] See Mayfield v. Butler Snow LLP, 341 F. Supp. 3d 664 (S.D. Miss. 2018).

[9] Id.

[10] Morales v. State, 2019 WL 3562031 (Miss. Ct. App. Aug. 6, 2019).

[11] Payne v. State, 2019 WL 2511477 (Miss. Ct. App. June 18, 2019).

[12] See A Time For Choosing, YouTube, https://www.youtube.com/watch?v=AVYGAn5Ddkw.

[13] See id.

[14] Cory Wilson on Crime, YouTube, https://www.youtube.com/watch?v=7MvqKGgcVVQ.

[15] Cory Wilson (Unaired), YouTube, https://www.youtube.com/watch?v=iDp-wvvs9_A.

[16] See Wilson, supra n. 1 at 68-69.

[17] See Who is Cory Wilson, YouTube.com (available at https://www.youtube.com/watch?v=DZcTU6j7-5M).

[18] See id.

[19] See Cory Wilson (@CoryWilsonMS), https://twitter.com/CoryWilsonMS.

[20] See, e.g., Alliance for Justice, Report on Cory Wilson (available at https://afj.org/wp-content/uploads/2019/11/Cory-Wilson-Report-Final-1.3.20.pdf).

[21] See Mississippi Right to Life Candidate Questionnaire, available at https://afj.org/wp-content/uploads/2019/11/Wilson-Attachments-p489-493.pdf.

[22] Cory T. Wilson, When Tolerance Is Really ‘Zero Tolerance’, Press-Register, June 1, 2012, available at https://afj.org/wp-content/uploads/2019/11/Wilson-Attachments-p200-201.pdf.

[23] Cory Wilson,  ACA: Big, Intrusive Government, Madison County Journal, Feb. 20, 2014, available at https://www.afj.org/wp-content/uploads/2020/01/Wilson-Attachments-p76-77.pdf.  

Judge Justin Walker – Nominee to the U.S. Court of Appeals for the D.C. Circuit

Last October, a former clerk to Justices Anthony Kennedy and Brett Kavanaugh was appointed to the U.S. District Court for the Western District of Kentucky, despite having never tried a single case.  What the nominee lacked in trial experience, however, he made up for in media experience, having made 162 media appearances in support of Kavanaugh’s Supreme Court confirmation.[1]  Now, despite only being a judge for six months, Judge Justin Walker has been handpicked by Senate Majority Leader Mitch McConnell, with the recommendation of Kennedy and Kavanaugh, for elevation to the U.S. Court of Appeals for the D.C. Circuit.

Background

A native of the Bluegrass state, Justin Reed Walker was born in 1982 in Louisville.  He attended Duke University and Harvard Law School, getting his J.D. in 2009.[2]  During law suit, Walker worked as a summer associate at Gibson Dunn & Crutcher LLP in Washington D.C.  He was hired by the firm as an Associate upon graduation.[3]  Walker left the firm on hiatus to clerk for Justice Brett Kavanaugh (when he was on the D.C. Circuit) and then for Justice Anthony Kennedy.[4]

In 2013, Walker returned to Louisville to practice law on his own.  He left in 2019 to join Dinsmore & Scholl LLP as a Partner of Counsel.  Additionally, since 2015, Walker has been a Professor with the University of Louisville Brandeis School of Law.

In June 2018, Walker expressed his interest in a judgeship with Sen. Mitch McConnell.[5]  Walker was nominated for a vacancy on the U.S. District Court for the Western District of Kentucky, to a seat opened on June 9, 2019, when Judge Joseph McKinley moved to senior status.  While Walker was rated “Unqualified” for the seat by the American Bar Association, he was nonetheless confirmed on October 24, 2019 on a 50-41 party-line vote, and has served on the Court since.

History of the Seat

Walker has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit to be vacated on September 1, 2020 by Judge Thomas Griffith.  Griffith’s retirement came days after news broke that McConnell was pressuring judges to move to senior status to open vacancies for the Administration to fill.[6]  As a result, some liberal groups have alleged a corrupt bargain, and one has written to Chief Judge Sri Srinivasan on the D.C. Circuit asking for a formal investigation.[7]  To this date, no investigation has been announced.

Legal Experience

Walker’s limited litigation experience almost entirely consists of practicing on his own.  His stints at firms are limited to a short time as an Associate at Gibson Dunn (where he represented Philip Morris in a RICO action with the federal government)[8] and his current position at Dinsmore & Scholl LLP.

Most of his time as a solo practitioner, Walker was a full time law professor.  As such, by his own account, Walker has not tried a single case as primary counsel.[9]  Additionally, he has served as Associate Counsel in only a single criminal case.[10] 

Jurisprudence

Despite only being a judge for around six months, Walker has already authored a number of opinions that can be analyzed.  In review, critics may point to the sharp and sometimes intemperate tone of the opinions, as well as their frequently cursory analysis of legal and factual issues.

Church Restrictions

In 2020, Walker was assigned a lawsuit brought by the On Fire Christian Center challenging a regulation by Mayor Greg Fischer that restricted gatherings on Easter, including religious gatherings.[11]  Walker granted an injunction preventing the regulation from being enforced against On Fire.[12]  Notably, Walker granted the injunction on an ex parte basis, meaning that he did not give the City an opportunity to respond to the initial petition.[13] 

In his opinion, Walker was sharply critical of the regulation, accusing the mayor of having “criminalized the communal celebration of Easter.”[14]  However, there are a few issues with this statement.  First, as Walker acknowledges later in the opinion, Fischer had not threatened any criminal sanctions against anyone who violated his civil restriction.[15]  Walker papers over this fact by arguing that Fischer’s order authorized the Louisville Metro Police to hand out information relating to the risk and follow up with individuals who had attended events to ensure their health and safety and that these actions constitute “law enforcement.”[16]  Second, the City had not intended any enforcement action based on the Mayor’s regulations, which the City could have informed the Court of, had Walker chosen to hear from both sides before issuing his order.[17]  Given this fact, Walker’s statement that adherents could “risk arrest, mandatory quarantine, or some other enforcement action”[18] seems to fall contrary to the evidence in the case.

Furthermore, Walker’s opinion diverts from legal analysis to include editorial comments regarding unrelated issues, from abortion and birth control[19] to Sen. Robert Byrd’s disavowed membership in the Ku Klux Klan.[20]  Walker further takes out more time to quote directly from the Bible and detail the history of “political persecution” faced by Christians.[21]  Walker’s language in the opinion has been criticized, even by conservatives, as intemperate and “over-the-top.”[22] 

In contrast, Walker arguably fails to engage fully with Supreme Court and Sixth Circuit caselaw on the Free Exercise question.  The entire opinion cites only two Sixth Circuit cases, and neither are cited on the substantive questions of whether the Free Exercise Clause has been violated.[23]  Surprisingly, on-point Sixth Circuit cases on the Free Exercise Clause such as Bible Believers v. Wayne County[24] and Prater v. City of Burnside[25] are nowhere to be found in Walker’s opinion. 

Motions to Suppress

As a district court judge, Walker has had the opportunity to rule on motions to suppress brought by criminal defendants, which he has usually denied.  For example, in one case, after a defendant’s house was searched pursuant to a warrant, the defendant challenged the sufficiency of the affidavit upon which the warrant was issued.[26]  The defendant argued that, under Sixth Circuit precedent, the mere fact that he was a drug dealer could not support an inference that drugs would be found in his home.[27]  Walker acknowledged this precedent but then sidestepped it, arguing that this case was different because the defendant here was a “full-time” drug dealer.[28]  Walker noted:

“Full-time drug dealers obviously do not run their illegal operations from corporate headquarters registered with the Secretary of State.  They use their cars, their stash houses, and their homes.”[29] 

Walker’s ruling here arguably conflicts with Sixth Circuit precedent in United States v. Brown.[30]  In Brown, the Sixth Circuit overturned a search of the home of a known drug dealer where the warrant affidavit did not include “facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence.”[31]

If such facts exist in Anderson, Walker’s opinion does not highlight them.  Rather, Walker relies almost exclusively on the defendant’s status as a drug dealer and the fact that he was observed driving to and from a stash house and his home.[32]  Walker’s distinction between a full-time and part-time drug dealer also doesn’t connect back to Brown, which doesn’t focus on such a distinction.

In another opinion, Walker denied a defendant’s request for a Franks hearing to probe potential false statements made in a search warrant affidavit.[33]  Walker held that the defendant was not entitled to a hearing because he had failed to make the requisite preliminary showings.[34]  However, in his ruling, Walker criticizes the motion for being “frivolous” and suggests that defense counsel had made “false statements” and “material omissions.”[35]  Walker’s accusation appears to arise from two contradictory statements made by defense counsel during oral argument on the motion.[36]  Walker also dismisses a secondary argument made by the defense with two words: “Wrong again.”[37]

Civil Rulings

Among the civil rulings he has made, Walker issued notice to a plaintiff that he would sua sponte grant summary judgment against one of their claims unless they withdrew the claim or responded to the court’s notice,[38] remanded cases from federal court for lack of diversity jurisdiction,[39] and dismissed a plaintiff’s case for failure of prosecution, while acknowledging lack of notice of dismissal but noting that any such notice would be “futile.”[40]  In one notable decision, Walker dismissed the discrimination claims made by a terminated employee, finding that her complaint lacked sufficient allegations to support her claim.[41]  Interestingly, Walker dismissed the complaint with prejudice arguing that any amendment would be futile.[42]  Walker based this decision on the plaintiff’s failure to amend as a matter of course within 21 days of her initial complaint and her not-specifically requesting permission to amend.[43] This framing is particularly interesting because Sixth Circuit precedent treats the futility of amended complaints as a separate analysis from a party’s failure to seek such remedies.[44]  Walker does not explain in his opinion why a plaintiff’s failure to specifically seek amendment relates to the “futility” of such amendment.

Writings

As a law professor, Walker has been fairly vocal on legal and policy issues.  This is clearly a well-ingrained characteristic, as Walker was an active writer even as a college student.

Kavanaugh Confirmation

During the campaign to confirm Brett Kavanaugh in 2018, Walker was one of his former boss’ most prominent surrogates on tv and in the media.  In some of his appearances, Walker argued that Kavanaugh would comply with judicial precedents such as Roe v. Wade.[45]  In others, Walker argued that Kavanaugh was a solid conservative whose vote on conservative issues was beyond question.[46]  Furthermore, after the allegations by Dr. Blasey Ford were released, Walker argued that the allegations would have been investigated in July had they been deemed credible.[47]

FBI Independence

In July 2018, Walker authored an article criticizing calls for an independent FBI, arguing that similar to the military, civilian control of the FBI was necessary to prevent civil liberties violations.[48]  In the article, Walker chronicles the history of civilian control of the military and abuses committed by the FBI, noting that the agency engaged in “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African Americans.”[49]  In conclusion Walker argues: “…the FBI Director should not think of himself as the Nation’s Protector; instead, he must think of himself as an agent of the President.”[50] 

Political Reporting

Notably, as a college student, Walker spent two months crossing the country trailing Democratic presidential candidates during the 2004 election and writing missives from his experiences.[51]  In his posts, Walker discusses the state of the race, the relative merits of the candidates he covers, and his views on their ultimate match-up against President Bush.  For example, in one post, Walker describes an incident in which Rep. Dennis Kucinich visited a homeless man sleeping in a garage.[52]  In another, he suggests that Howard Dean “sabotaged his own campaign with a loose temper and a glib mouth.”[53] 

Interestingly, some of his posts display a broader critique of the Democratic Party rather than an “objective” look at the race.  For example, in one post describing the liberal town of Yellow Springs, Ohio, Walker calls it “a haven for hippies who never grew up,” sounding significantly older than his own 21 year old self.[54]  He notes that “every person is unusual” in the town.[55]  At the same time, Walker criticizes the town, stating that the town “lacks what liberals celebrate: tolerance, diversity, and change.”[56]

Similarly, in a 2002 article provocatively titled “Worthless Democrats”, Walker excoriates the party for not taking a position on the upcoming Iraq War, stating:

“[Democrats] are weak leaders who speak softly and carry a rubber stamp.  They neither agree with the president, nor oppose him.”[57]

Overall Assessment

When Walker was nominated to the District Court last year, we praised his “obvious intellect.” while noting his youth and lack of experience.  While his swift elevation over conservatives with exponentially more experience and expertise speaks to the power of his connections, it nonetheless raises an expected confirmation fight.

Specifically, Walker’s brief tenure as a district court judge can be mined by opponents to raise questions about his judicial temperament.  Walker’s writing is entertaining, but can come across as intemperate, particularly when considering the positions of litigants that Walker disagrees with.  More concerningly, Walker’s writing frequently glosses over key facts and precedent, and, as noted above, sometimes fails to engage with such precedent altogether.  For example, a casual reading of Walker’s opinion in On Fire may lead one to conclude that the judge cannot tell the difference between civil and criminal sanctions.  None of this is to suggest that the ultimate conclusions in Walker’s opinions are necessarily wrong or that they violate precedent.  Rather, the cursoriness of much of Walker’s legal analysis makes it difficult to evaluate the conclusions without conducting the analysis independently.

None of this is to say that Walker cannot grow into his position on the bench or be a great judge on the D.C. Circuit.  But, when Walker was first nominated, many suggested that he was being prematurely elevated while lacking the legal skills and experience to be a federal judge.  Walker’s tenure so far will not put those criticisms to rest.


[1] See Mark Joseph Stern, Trump Elevates Unqualified Judge As a Reward For Defending Kavanaugh, Slate, Apr. 3, 2020, https://slate.com/news-and-politics/2020/04/justin-walker-mcconnell-trump-dc-circuit.html.  

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

[3] See id. at 2.

[4] Id.

[5] Id. at 49-50.

[6] See Alison Durkee, Mitch McConnell Pressures Judges to Retire So Trump Can Appoint Replacements, Vanity Fair, Mar. 17, 2020, https://www.vanityfair.com/news/2020/03/mitch-mcconnell-pressures-judges-to-retire-trump.  

[7] See Letter from Katie O’Connor to Chief Judge Sri Srinivasan, Mar. 19, 2020 (available at https://h29zmgjkh3vbtzvz6gfub6meu.actbot.co/wp-content/uploads/2020/03/letter-to-DC-Circuit-re_-Thomas-Griffith-retirement.pdf?link_id=4&).

[8] See United States v. Philip Morris USA Inc., 561 U.S. 1025 (2010).

[9] See Walker, supra n. 1 at 32-33.

[10] Id. See also United States v. Todd, 3:17-cr-77 (W.D. Ky.).

[11] Matthew Glowicki, Judge Allows Drive-In Service at Louisville Church, Says Fischer ‘Criminalized’ Easter, Louisville Courier Journal, Apr. 11, 2020, https://www.courier-journal.com/story/news/2020/04/11/covid-19-kentucky-judge-grants-churchs-request-hold-services/2976560001/.  

[12] See On Fire Christian Cntr., Inc. v. Greg Fischer, et al., Civil Action No. 3:20-CV-264-JRW (W.D. Ky. Apr. 11, 2020) (available at https://www.courtlistener.com/recap/gov.uscourts.kywd.116558/gov.uscourts.kywd.116558.6.0.pdf).  

[13] See Josh Blackman, Courts Should Not Decide Issues That Are Not There, Volokh Conspiracy, Apr. 12, 2020, https://reason.com/2020/04/12/courts-should-not-decide-issues-that-are-not-there//.  

[14] See id. at 3.

[15] See id. at 7-8.

[16] See id. at 8.

[17] See Blackman, supra n. 13.

[18] See On Fire, supra n. 12 at 17.

[19] See id. at 6.

[20] Id.

[21] See id. at 2.

[22] See Blackman, supra n. 13.

[23] See id. at 10 n. 51, 17 n. 81.

[24] 805 F.3d 228 (6th Cir. 2015) (en banc) (holding that preventing plaintiffs from proselytizing violates their rights under the Free Exercise clause).

[25] 289 F.3d 417 (6th Cir. 2002) (holding that City development decisions that had disparate impact on church did not violate church’s Free Exercise rights).

[26] See United States v. Anderson, CRIMINAL ACTION NO. 3:19-CR-117-JRW-1, 2020 U.S. Dist. LEXIS 8048 (W.D. Ky. Jan. 15, 2020).

[27] See id. at *2 (citing United States v. Brown, 828 F.3d 375, 384 (6th Cir. 2016).

[28] See id.

[29] Id.

[30] 828 F.3d 375 (6th Cir. 2016).

[31] Id. at 383.

[32] Notably, on this point, Walker cites Shakespeare’s King John rather than a precedent from the Sixth Circuit.

[33] United States v. Perkins, CRIMINAL ACTION NO. 3:19-CR-149-JRW, 2020 U.S. Dist. LEXIS 53762 (W.D. Ky. Mar. 27, 2020).

[34] Id. at *3.

[35] Id.

[36] See id.

[37] Id. at *4 n. 10.

[38] See Martin & Bayley v. O’Bryan Brown & Toner PLLC, 2020 U.S. Dist. LEXIS 19902 (W.D. Ky. Jan. 31, 2020).

[39] Milburn v. Watts, 2020 U.S. Dist. LEXIS 47737 (W.D. Ky. Mar. 17, 2020); Taj Graphics Enters. V. Sills, 2020 U.S. Dist. LEXIS 52662 (W.D. Ky. Mar. 26, 2020)

[40] See Wirthwein v. Portfolio Recovery Assocs., CIVIL ACTION NO. 3:19-CV-335-JRW-CRL, 2020 U.S. Dist. LEXIS 59128 (W.D. Ky. Apr. 3, 2020).

[41] Coffey v. Equian, CIVIL ACTION NO. 3:19-CV-43-JRW, 2020 U.S. Dist. LEXIS 56368 (W.D. Ky. Mar. 31, 2020).

[42] See id. at *4.

[43] Id.

[44] See, e.g., Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041-42 (6th Cir. 1991) (citations omitted) (noting multiple grounds on which district court can deny leave to amend including “if the complaint as amended could not withstand a Fed. R. Civ. P. 12(b)(6) motion” and, separately, “where such leave is not sought.”).

[45] See, e.g., Fox News @ Night, July 17, 2018, Fox News Network.

[46] See Ryan Lovelace, Ex-Clerk to Kavanaugh: Potential Pick “Would Not Go Wobbly” on Conservatives, Nat’l Law Journal, June 29, 2018, https://www.law.com/nationallawjournal/2018/06/29/ex-clerk-to-kavanaugh-potential-pick-would-not-go-wobbly-on-conservatives/.  

[47] Evening Edit, Sept. 28, 2018.

[48] See Justin Walker, FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military, 86 Geo. Wash. L. Rev. 1012 (July 2018).

[49] See id. at 1041.

[50] Id. at 1070.

[52] Justin Walker, Compassion for a Homeless Man, Justin Walker’s Campaign Diary, Jan. 10, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_compassion.html.  

[53] Justin Walker, Who Sabotaged Howard Dean’s Campaign, Feb. 4, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_deancamp.html.  

[54] Justin Walker, Closed-Minded Liberals, Feb. 18, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_yellowsprings.html.  

[55] Id.

[56] Id.

[57] Justin Walker, Worthless Democrats, The Duke Chronicle, Sept. 26, 2002, https://issuu.com/dukechronicleprintarchives/docs/the_chronicle_2002-09-26_sm.  

Lawrence VanDyke – Nominee to the U.S. Court of Appeals for the Ninth Circuit

The Senate votes today on one of the most controversial Trump nominees of this year: Lawrence VanDyke.

Background

Lawrence James Christopher VanDyke was born in 1972 in Midland TX.  After getting a B.S. from Montana State University in 1997, VanDyke attended Harvard Law School, where he graduated magna cum laude in 2005.  After graduating from law school, VanDyke clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit and then became an associate at Gibson Dunn in Dallas.[1] 

In 2012, VanDyke served as Assistant Solicitor General in Texas for a year before being selected by newly elected Attorney General Tim Fox as Attorney General in Montana.[2]  In 2014, VanDyke ran for a seat on the Montana Supreme Court but was not elected.  He then moved to Nevada to become Nevada’s Solicitor General under Attorney General Paul Laxalt.[3] 

In 2019, after Laxalt left and the Nevada Attorney General’s Office fell to Democrats, VanDyke joined the Department of Justice as Deputy Assistant Attorney General in the Environmental Division.

History of the Seat

VanDyke has been nominated for a future vacancy that will open upon the retirement of Judge Jay Bybee on December 31, 2019.  VanDyke was contacted by the White House to gauge his interest in a Ninth Circuit appointment in July 2019 and was nominated on September 19, 2019.

Legal Career

While VanDyke started his legal career as an associate at Gibson Dunn, the bulk of his career has been spent at the Solicitor General’s Offices in Texas, Montana, and Nevada.  Over his career, VanDyke has litigated extensively in state and federal courts.

In addition, VanDyke has also represented a number of conservative organizations and entities, including Alliance Defending Freedom, First Liberty, and Gays & Lesbians for Individual Liberty.

In particular, VanDyke has litigated against federal regulations, successfully enjoining a Department of Labor rule that reduced the number of employees who were exempt from overtime pay under the Fair Labor Standards Act.[4]

Writings

Consistent with the rest of his legal career, VanDyke’s writings generally reflect a conservative legal and political philosophy.  For example, as a law student, VanDyke authored a book review of Francis Beckwith’s Law, Darwinism, & Public Education: The Establishment Clause and the Challenge of Intelligent Design.[5]  In the article, VanDyke discusses Beckwith’s view on intelligent design, and suggests that it can be taught in the classroom without violating the Establishment Clause, arguing that intelligent design should be treated as akin to empirical fact rather than treating it as a religion.  VanDyke’s view drew sharp criticism from commentators who noted that intelligent design relies on Biblical principles rather than empirically determined facts.[6]

Additionally, while at Harvard, VanDyke authored a defense of Prof. Mary Ann Glendon, who had authored an editorial against gay marriage.[7]  The post, written in 2004, argues that social science research from Scandinavia suggests that same-sex marriage hurts “families, and consequently children and society.”[8]  He also notes that an expansion of rights for same-sex couples, including marriage, would infringe upon the rights of those with religious objections to such unions.[9]

Political Activity

In 2014, VanDyke challenged incumbent Montana Supreme Court Justice Mike Wheat.  VanDyke resigned as Solicitor General shortly before his challenge to Wheat, noting that he had “disagreements with co-workers over his approach to the job.”[10]  The campaign was heated, and VanDyke received a fair amount of criticism for his prior writings and speeches, particularly his views on intelligent design and on LGBT rights.[11]  During the election, VanDyke sought the endorsement of the National Rifle Association, endorsing a broad view of gun rights and noting that he had avoided becoming a member of the NRA in order to avoid recusal issues in his office.[12]  Wheat ultimately won the election by a comfortable margin.[13]

ABA Controversy

As it has done for every judicial nominee since the Eisenhower Administration, the American Bar Association Standing Committee on the Federal Judiciary conducted a review of VanDyke’s record.  After reviewing his record and conducting around 60 interviews with colleagues, judges, and attorneys, the ABA rated VanDyke as “Not Qualified.”[14]  In the letter, the ABA noted that some of the interviewees described VanDyke as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.”[15]  The ABA’s rating and letter has drawn criticism from Republicans who argue that the organization is biased against Trump nominees.[16]  For his part, the criticism raised complaints from VanDyke himself who argued that he was not given adequate time to explain the criticisms during his interview.

Overall Assessment

Today, the Senate will vote on and likely confirm Lawrence VanDyke to the Ninth Circuit.  Ironically, in framing its criticism of VanDyke in unusually candid terms, the ABA has likely ensured that VanDyke will ultimately be confirmed by making themselves a bugbear.

Let us set out the obvious: VanDyke has the academic qualifications for an appellate seat.  Even the ABA does not dispute this point.  As such, the real question is whether VanDyke’s history suggests that he would be a fair and impartial judge on the Ninth Circuit.  Opponents will find plenty in VanDyke’s record to argue that he will not, including his history of advocacy for conservative causes, his writings, and his NRA questionnaire.  

As such, this confirmation, like so many before in this Administration, will come down to a vote of Republicans v. Democrats.  In this Senate, that means that Republicans win.


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

[2] Id. at 2.

[3] Id.

[4] Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795 (E.D. Tex. 2017).

[5] Lawrence VanDyke, Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964 (2004).

[6] See Don Pogreba, A Creationist for the Montana Supreme Court? A Review of Lawrence VanDyke, The Montana Post, March 17, 2014, https://themontanapost.com/blog/2014/03/17/a-creationist-for-the-montana-supreme-court-a-review-of-lawrence-vandyke/.  

[7] Lawrence VanDyke, One Student’s Response to “A Response to Glendon”, Harvard Law Record, Mar. 11, 2004, http://hlrecord.org/one-students-response-to-a-response-to-glendon/.  

[8] See id.

[9] Id.

[10] Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47, 96 (Spring 2015).

[11] See John D. Echeverria, State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington, and Wisconsin, 16 Vt. J. Envr. L. 363, 365-66 (Spring 2015).

[12] See Lawrence Van Dyke, Questionnaire for the National Rifle Association, https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20-%20NRA%20Questionnaire.pdf.  

[13] See id.

[14] See Letter from William C. Hubbard, https://src.bna.com/Msq.  

[15] Id.

[16] See Madison Adler and Melissa Heelan Stanzione, Judicial Ratings Draw Ire of Left, Right After Tearful Hearing, Bloomberg Law, Nov. 6, 2019, https://news.bloomberglaw.com/us-law-week/judicial-ratings-draw-ire-of-left-right-after-tearful-hearing.  

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.