Neomi Rao – Nominee to the U.S. Court of Appeals for the D.C. Circuit

If the confirmation of Brett Kavanaugh to the U.S. Supreme Court was explosive and controversial, the nomination of Neomi Rao to fill his seat on the D.C. Circuit promises to bring some fireworks of its own.  Rao, a scholar of Administrative Law, has already drawn fire for her writings in college, as well as her strong views on civil rights, executive power, and the administrative state.  As such, the confirmation fight over Rao, who would be the first South Asian woman on the federal appellate bench, is bound to leave some scars of its own.

Background

The daughter of Parsi (an Indian Zoroastrian community) doctors, Neomi Jehangir Rao was born in Detroit on March 22, 1973, and raised in Bloomfield Hills, Michigan.  Rao graduated cum laude from Yale University in 1995 with a B.A.[1]  Rao then spent two years as a reporter for the Weekly Standard, a conservative magazine originally edited by Bill Kristol and Fred Barnes.[2]

Rao then attended the University of Chicago Law School, graduating with a J.D. in 1999.  While in law school, Rao worked as a Law Clerk at the libertarian law firm the Institute of Justice and as a summer associate at Williams & Connolly LLP.[3]

After graduation, and a clerkship with Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, Rao joined the Senate Judiciary Committee, working under then Chairman Orrin Hatch as Counsel for Nominations and Constitutional Law.[4]  In 2001, Rao secured a prestigious clerkship with Justice Clarence Thomas, clerking on the Supreme Court alongside future federal judges Gregg Costa,[5] Vince Chhabria,[6] Alison Nathan,[7] and Michelle Friedland.[8]

After her Supreme Court clerkship, Rao joined Clifford Chance in London as an Associate.  In 2005, she returned to Washington to work as Associate Counsel and Special Assistant to President George W. Bush.[9]  In 2006, she left to become a Professor at the George Mason University Law School (later renamed the Antonin Scalia Law School), where she is currently on leave.

Since 2017, Rao has worked as Administrator for the Office of Information and Regulatory Affairs (OIRA) in the Trump Administration, overseeing regulations that emerge from the various cabinet agencies.

History of the Seat

Rao has been nominated for the seat vacated by now Justice Brett Kavanaugh.  Rao had started discussions with White House Counsel Don McGahn about serving on the D.C. Circuit in August 2018.[10]  Unlike other lower court nominees, Rao had a personal interview with President Trump on October 12, 2018.[11]  Rao was officially nominated on November 13, 2019, and renominated on January 23, 2019.

Political Activity

Rao has made a few political donations in her lifetime, all to Republicans.  In 2004, Rao donated $1000 to the Presidential Campaign of George Bush.[12]  Similarly, in 2008, she gave $500 to Sen. John McCain’s presidential campaign, and in 2012, $750 to the Presidential Campaign of Mitt Romney, as well as $250 to Sen. Ted Cruz.[13]  Additionally, Rao has given $1000 to Jeb Bush’s campaign in 2015.[14]

Rao has also volunteered with Lawyers for McCain in 2008 and Lawyers for Romney in 2012.[15]

OIRA

By her own account, Rao has not litigated extensively in the United States.  However, this does not mean that she has no legal experience.  In addition to positions on the Senate Judiciary Committee, in the White House, and at Clifford Chance in London, Rao has served as the head of the Office of Information and Regulatory Affairs (OIRA) since 2017.  OIRA is one of the most powerful governmental bodies as it reviews all the regulations that emerge from the various cabinet departments and oversees their implementations.  An OIRA head can thus, by slowing, speeding, or altering regulations, reshape administrative policy for the Administration.  Past OIRA heads, including Cass Sunstein, have had a significant role in directing administrative policies.

During her tenure as OIRA head, Rao has, by her own account, pursued a “regulatory freedom agenda.”[16]  She has bragged about having taken 176 deregulatory actions, including opening coastal areas in New England to scallop fishing, and having stalled 2253 regulatory actions.[17]  Rao also indicates her support for easing regulations governing self-driving cars and removing federal water regulations under the Clean Water Act.[18]

On the flip side, Rao’s tenure has attracted sharp criticism from watchdog groups, with Patrice Simms of Earthjustice arguing that Rao was “gutting…the Mercury Air Toxics Standards [which] save as many as 11,000 lives every year.”[19]  Simms also argued that Rao was ignoring her responsibilities to ensure that agencies complies with the law in their rulemaking and that most of the rules she approved went on to get struck down by federal judges.[20]

Scholarship

In her role on the faculty at George Mason since 2006, Rao has established herself as a thought leader in the conservative legal movement, advocating for the restrictions on administrative rulemaking, and fighting against the Obama Administration both on regulations and with judicial nominations.

Administrative Law

From 2015 to 2017, Rao served as Director and Founder for the Center for the Study of the Administrate State at George Mason University.  As such, Rao has written extensively on Administrative law, primarily in seeking to restrict the reach of administrative rulemaking.  In one article, Rao states that “by creating the modern administrative state, Congress has marginalized itself.”[21]  In another, Rao argues that Presidential removal authority is essential to ensure political control over independent agencies.[22]

Right to Dignity

In a 2011 article on the Volokh Conspiracy, Rao discusses the differences between government promotions of substantive dignity as opposed to intrinsic dignity.[23]  Specifically, in the article, Rao criticizes government restrictions supporting “substantive dignity,” giving the example of bans on the practice of dwarf tossing (a practice in which dwarves are thrown for sport).[24]  Rao suggests that such bans, alongside bans on the wearing of the burqa, actually hurt intrinsic dignity by denying humans the dignity of choice in their activities.[25]  She also extends these arguments to bans on prostitution or pornography, noting that the bans “represent[] a particular moral view of what dignity requires.”[26]

Rao’s position has been characterized by some as a “defense” of dwarf-tossing and has been criticized as such by Mother Jones Magazine.[27]

Sotomayor Nomination

In 2009, Rao testified before the Senate Judiciary Committee against the confirmation of then-Judge Sonia Sotomayor to the U.S. Supreme Court.[28]  In her testimony, Rao called Sotomayor an “accomplished nominee” but argued that Sotomayor had left open “the question of how a judge chooses to be faithful to the law.”[29]  Rao went on to state her own view of the role of a judge, as someone who “[decides] particular cases through an evenhanded application of the law.”[30]

College Writings

Rao’s writings as a college student have recently come under scrutiny for their occasionally inflammatory language and controversial positions.[31]  Some of her writings on race and affirmative action have been compared to those of Ryan Bounds, whose nomination was ultimately derailed by them.[32]  For example, in one article, Rao criticizes “multiculturalists” for seeking to “separate and classify everyone according to race, gender, and sexual orientation.”[33]  In another piece, Rao decries affirmative action as the “anointed dragon of liberal excess.”[34]  In an article, Rao states that “homosexuals want to redefine marriage and parenthood” and criticizes a Yale magazine for including “pornographic pictures of homosexual couplings.”[35]

Additionally, Rao has been accused on victim-blaming for a piece she wrote on the role of alcohol in date rape.[36]  In the article, Rao comments on the case of a woman who accused a fellow student of sexually assaulting her while she was drunk.[37]  In the piece, Rao notes:

“Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink.  And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”[38]

After initially standing by her statements as “intentionally provocative,” Rao backed down somewhat in her confirmation hearing and suggested that she had matured since her college days.[39]

Overall Assessment

Despite her history making nomination and her obvious academic credentials, Neomi Rao is a controversial nominee.  As tempting as it is to leave the analysis at that, it is worth digging deeper to highlight some of the reasons this is so.

First, Rao’s tenure at OIRA and her prior scholarship are strongly critical of administrative rulemaking.  This is welcome to many conservatives who criticize the “administrative state” as an extraconstitutional behemoth.  However, for those who believe that their air, water, health, welfare, and natural resources are protected by such rulemakings, Rao’s strong views are a cause for concern.  Thus, this is a flashpoint of controversy.

Second, Rao is a strong libertarian who has sharply criticized dignity-based rulemaking as well as affirmative action, multiculturalism, and LGBT advocacy.  This is another flashpoint.

Third, Rao’s college writings have drawn particular fire at a time when consent is discussed strongly.  The fact that she is replacing Kavanaugh, whose nomination was dogged by accusations of sexual assault, is sure to add fuel to the fire.

Finally, Rao is being tapped for the second highest court in the United States, one that, unlike the Supreme Court, leans liberal.  Rao is sure to add a fiercely conservative voice to the DC Circuit, which is the tribunal which hears most challenges to administrative rulemaking.

Add in all these factors and you have a recipe for an explosive mix.  Expect Democrats to strongly criticize Rao and Republicans to equally strongly support her.  Given the Republican majority, her confirmation is therefore expected, but, as the Ryan Bounds case has proven, nothing can be taken for granted.


[1] See Sen. Comm. on the Judiciary, 116th Cong., Neomi J. Rao: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] Id.

[5] Costa clerked for Chief Justice William Rehnquist.

[6] Chhabria clerked for Justice Stephen Breyer.

[7] Nathan clerked for Justice John Paul Stevens.

[8] Friedland clerked for Justice Sandra Day O’Connor.

[9] Id.

[10] See id. at 48-49.

[11] See id.

[13] See id.

[14] Id.

[15] See Rao, supra n. 1 at 35.

[16] See Office of Management of Budget, The 2018 Regulatory Reform Report: Cutting the Red Tape; Unleashing Economic Freedom (available at https://www.whitehouse.gov/wp-content/uploads/2018/10/2018-Unified-Agenda-Cutting-the-Red-Tape.pdf).

[17] See id. 

[18] See id.

[19] Patrice L. Simms, A Lesson in Failure: OIRA, Neomi Rao, and Deregulation At Any Cost, American Constitution Society, ACSBlog, Feb. 4, 2019, https://www.acslaw.org/acsblog/a-lesson-in-failure-oira-neomi-rao-and-deregulation-at-any-cost/.  

[20] See id.

[21] Neomi Rao, Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fl. L. Rev. 1, 3 (2018).

[22] Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205 (2014).

[23] Neomi Rao, Substantive Dignity – Dwarf-Throwing, Burqa Bans, and Welfare Rights, Volokh Conspiracy, May 18, 2011, http://volokh.com/2011/05/18/substantive-dignity-dwarf-throwing-burqa-bans-and-welfare-rights/.  

[24] See id.

[25] See id.

[26] Id.

[27] See Stephanie Mencimer, Trump’s Nominee to Replace Kavanaugh is a Staunch Defender of Dwarf-Tossing, Mother Jones, Nov. 16, 2018, https://www.motherjones.com/politics/2018/11/neomi-rao-dwarf-tossing-kavanaugh-replacement/.  

[28] Apprendi v. New Jersey, 530 U.S. 466 (2000).

[29] Neomi Rao, Testimony before the Senate Judiciary Committee, Transcript, July 16, 2009 (available at https://www.c-span.org/video/?287762-106/sotomayor-confirmation-hearing-day-4-legal-scholars-panel).  

[30] Neomi Rao, Symposium: Legal Issues and Sociolegal Consequences of the Federal Sentencing Guidelines: How Apprendi Affects Institutional Allocations of Power, 87 Iowa L. Rev. 465, 470-74 (January 2002).

[31] See, e.g., Zoe Tillman, Trump’s DC Circuit Nominee – And Reported Supreme Court Contender – Wrote Inflammatory Op-Eds in College, BuzzFeed News, Jan. 14, 2019, https://www.buzzfeednews.com/article/zoetillman/neomi-rao-nomination-college-writings-court-appeals.   

[32] See id.

[33] Neomi M. Rao, How the Diversity Game is Played, Wash. Times, July 17, 1994, https://assets.documentcloud.org/documents/5684162/7-17-94-Rao-How-the-Diversity-Game-Is-Played.pdf.   

[34] Neomi Rao, One Writer’s Battles, Weekly Standard, Nov. 10, 1996, https://assets.documentcloud.org/documents/5684160/11-10-96-Rao-One-Writers-Battles.pdf.  

[35] See Rao, supra n. 37.

[36] Neomi Rao, Shades of Gray, The Yale Herald, Oct. 14, 1994, https://assets.documentcloud.org/documents/5684161/10-14-94-Rao-Shades-of-Gray.pdf.  

[37] See id.

[38] See id.

[39] Zoe Tillman, Trump’s DC Circuit Nominee Neomi Rao Distanced Herself From Some of Her Inflammatory College Writings, Buzzfeed News, Feb. 5, 2009, https://www.buzzfeednews.com/article/zoetillman/neomi-rao-opeds-date-rape-trump-dc-circuit-nominee.  

[40]  Neomi Rao & Richard A. Biershbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85 (October 2004).

[41] Id. at 144-45.

[42] Neomi Rao, Mercy and Clemency: Forgiveness in Criminal Procedure, 4 Ohio St. J. Crim. L. 329 (Spring 2007).  

Eric Miller – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Eric Miller is one of several clerks of Justice Clarence Thomas who are finding their way onto the bench (President Trump has already appointed ten to the federal bench).  Miller faces strong opposition from his home-state senators and from native american groups, which could complicate his path to the bench.

Background

Eric David Miller was born in Oak Park, Illinois, in 1975.  Miller received an A.B. from Harvard University in 1996 and a J.D. from the University of Chicago Law School in 1999.[1]  After graduating from law school, Miller clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.[2]

After his clerkships, Miller joined the Department of Justice, starting in the Appellate Staff of the Civil Division, and then shifting to the Office of Legal Counsel, before returning to the Civil Division in 2004.[3]  In 2006, Miller spent a year as Deputy General Counsel for the Federal Communications Commission and then joined the Office of the Solicitor General.[4]

In 2012, Miller left the Solicitor General’s office to join the Seattle office of Perkins Coie LLP as a Partner.  He continues to serve in that role.

History of the Seat

Miller has been nominated for a Washington seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on March 3, 2018 when Judge Richard Tallman moved to senior status.

In August 2017, Miller was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In September 2017, Miller interviewed with the White House Counsel’s Office and was formally nominated on July 19, 2018.[6]

Both of Miller’s home state senators, Sen. Patty Murray and Sen. Maria Cantwell, have expressed opposition to Miller’s nomination.[7]

Political Activity & Memberships

Miller has a fairly limited political history, having donated $1000 each to Sen. Marco Rubio and Rep. Cathy McMorris Rodgers in 2014-15.[8]

Furthermore, Miller has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) for various stretches, most recently in 2017.[9]

Legal Experience

Miller’s post-clerkship career can be organized into three chunks for analysis.  First, from 2001 to 2006, Miller worked in various capacities at the Department of Justice.  Then, from 2007 to 2012, Miller worked at the Solicitor General’s Office.  Finally, from 2012 to the present, Miller has been a Partner in the Seattle Office of Perkins Coie.

Department of Justice

From 2001 to 2006, Miller worked in the Department of Justice, serving in the appellate staff of the Civil Division from 2001 to 2003 and from 2004 to 2006.  From 2003 to 2004, Miller worked in the Office of Legal Counsel, his tenure coinciding with OLC head Jack Goldsmith, who clashed with the White House over the previous OLC memorandum that authorized enhanced interrogation techniques.

Solicitor General

From 2007 to 2012, Miller served as Assistant to the Solicitor General, working under six Solicitors General in the Bush and Obama Administration.  During this time, Miller argued 14 cases before the U.S. Supreme Court on behalf of the federal government and filed briefs in dozens of others.[10]  Of the cases Miller argued, the position he took prevailed in nine.[11]  Interestingly, Miller lost cases during this time to two future court of appeals judges: Judge Sri Srinivasan[12] and Judge Stephanos Bibas.[13]

Perkins Coie

Since 2012, Miller has been a Partner in the Seattle Office of Perkins Coie working in the appellate practice group.  During Miller’s tenure, he argued an additional two cases before the Supreme Court, both focusing on the issue of the sovereign immunity accorded to Indian tribes.  In the first, Miller prevailed before a unanimous Supreme Court in arguing that tribal sovereign immunity did not bar a suit against a member of the tribe in his individual capacity.[14]  In the second, Miller defended a Washington Supreme Court decision holding that sovereign immunity did not constitute a bar to a land suit and judgment where the court was seeking to exercise in rem jurisdiction.[15]  This time, Miller lost on a 7-2 vote with only Justices Thomas and Alito voting for his position.[16]

Writings

As a law student, Miller authored an article discussing the federal statute dictating Miranda warnings to criminal defendants.[17]  The statute in question, 18 U.S.C. § 3501, was enacted shortly after the landmark decision in Miranda v. Arizona, and sought to overrule the Supreme Court decision in federal criminal cases.[18]  However, in the next three decades, the Supreme Court did not consider the validity of the statute, which was never invoked by the Department of Justice.[19]

In his article, Miller argues that the Supreme Court should consider the constitutionality of the statute sua sponte, and that it was often appropriate for judges to raise issues not raised by the parties, including in cases involving the court’s jurisdiction, the application of judicial restraint, or a court frustration with the way parties have characterized the legal issues in the case.[20]  Miller argues that § 3501 clearly lays out rules for the admissibility of confessions, rules that the court should not ignore just because the parties agree that it should.[21]  Miller does not focus on the article on the constitutionality of § 3501, which was later struck down by the Supreme Court in Dickerson v. United States.[22]

Overall Assessment

Given his extensive appellate practice, it is easy to agree that Miller is qualified for a seat on the Ninth Circuit.  The American Bar Association agreed, giving him a unanimous Well Qualified rating.[23]  However, Miller’s path to confirmation may be complicated by the opposition of home state senators and that of Indian tribes.[24]  The latter argue that Miller has focused his private practice on seeking to cut down the sovereignty of Indian tribes.  Such arguments may be particularly persuasive to senators with large populations affected by such decisions.

As noted earlier, the Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  If Miller is confirmed, he will likely add a conservative voice to the court.  Furthermore, based on his law school writings, one could also argue that Miller would not be hesitant to exercise judicial power in raising issues not addressed by the parties where he believed the issues to be paramount to the case.  As such, one could expect Miller to be a more assertive voice on the court than the more circumspect judge he replaces.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Miller, supra n. 1 at 42.

[6] Press Release, White House, President Donald J. Trump Announces Sixteenth Wave of Judicial nominees, Sixteenth Wave of United States Attorney Nominees, and Eleventh Wave of United States Marshall Nominees (July 13, 2018) (on file at www.whitehouse.gov/the-press-office).

[7] Agueda Pacheco-Flores, Cantwell and Murray Object to Process for Filling Federal Appeals Court Seat, Seattle Times, Oct. 23, 2018, https://www.seattletimes.com/seattle-news/cantwell-and-murray-object-to-process-for-filling-federal-appeals-court-seat/.  

[9] See Miller, supra n. 1 at 5.

[10] See id. at 18-23.

[11] See Astrue v. Capato, 566 U.S. 541 (2012); Talk Am. v. Michigan Bell Tell Co., 564 U.S. 50 (2011); Staub v. Proctor Hosp., 562 U.S. 411 (2011); United States v. Marcus, 560 U.S. 258 (2010); NRG Power Marketing, LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165 (2010); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); Shinseki v. Sanders, 556 U.S. 396 (2009); Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008); Knight v. Comm’r of Int’l Rev., 552 U.S. 181 (2008).

[12] Abuelhawa v. United States, 556 U.S. 816 (2009).

[13] See Vartelas v. Holder, 566 U.S. 257 (2012).

[14] Lewis v. Clarke, 137 S.Ct. 1285 (2017).

[15] Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018).

[16] See id.

[17] Eric D. Miller, Should Courts Consider 18 U.S.C. 3501 Sua Sponte?, 65 U. Chi. L. Rev. 1029 (Summer 1998).

[18] See id. at 1031-32.

[19] Id. at 1033-38.

[20] Id. at 1039.

[21] Id. at 1052.

[22] 530 U.S. 428 (2000).

[23] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Jan. 31, 2019).

[24] See, e.g., John Echohawk, Eric Miller on the Ninth Circuit? Time for a More Suitable Candidate, Indian Country Today, Sept. 10, 2018, https://newsmaven.io/indiancountrytoday/opinion/eric-miller-on-the-ninth-circuit-time-for-a-more-suitable-candidate-ra4MF3aidUKNy_9AXVc3cQ/.  

Paul Matey – Nominee for the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips, he has held hearings for nine nominees that lack blue slips from one or both home-state senators.  Of those, four have been confirmed on the floor and one has been rejected, the rest, including Paul Matey of New Jersey were blocked from a final vote by then-Sen. Jeff Flake’s objections.  In the new Congress without Flake, he remains a favorite to be confirmed.

Background

Paul Brian Matey was born in Edison, New Jersey on March 29, 1971.  Matey attended Scranton University and then spent four years working for Marvel Entertainment in New York City.[1]

In 1997, Matey joined Seton Hall University School of Law, graduating summa cum laude in 2001.[2]  Matey then clerked for Judge John Lifland on the U.S. District Court for the District of New Jersey and for Judge Robert Cowen on the U.S. Court of Appeals for the Third Circuit (Matey has been nominated for the seat that Cowen once held).

After his clerkships, Matey joined Kellogg, Hansen, Todd, Figel & Frederick LLC as an associate.  In 2005, Matey joined the U.S. Attorney’s Office for the District of New Jersey, working under U.S. Attorney Chris Christie.[3]  When Christie was elected Governor in 2009, Matey joined the Governor’s Office as Assistant Counsel.  He later was elevated to be Senior Counsel and Deputy Chief Counsel.

In 2015, Matey was hired to be General Counsel for University Hospital in Newark.[4]  He left this position in 2018 to become a Partner with Lowenstein Sandler LLP, where he works today.

History of the Seat

Matey has been nominated for a New Jersey seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Julio Fuentes.  Fuentes, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 18, 2016.  As the vacancy opened up relatively late in the Obama Administration, no nominee was put forward to fill the seat.

Shortly after Trump’s election, Christie reached out to the Administration to recommend Matey for the Third Circuit.[5]  In August 2017, news outlets reported that New Jersey’s Democratic Senators, Robert Menendez and Cory Booker, had agreed to sign off on Matey in return for the nominations of Democrats to fill District Court vacancies.[6]  However, the deal never materialized and Matey wasn’t nominated until April 2018.  To date, no district court nominees have been put forward for New Jersey vacancies and Menendez and Booker has not returned blue slips on Matey.

Political Activity

As noted above, Matey worked for Christie when he served as Governor of New Jersey.  In addition, Matey’s only contribution of record is for Christie.[7]  Matey has also been a member of the Federalist Society for Law and Public Policy since 2001 and a member of the Republican National Lawyers Association since 2005.[8]

Legal Experience

While Matey started his legal career as an Associate at Kellogg, Huber, Hansen, Todd, Evans, and Figel PLLC in Washington D.C.[9], he is most known for his later positions with the U.S. Attorney’s Office, working for Gov. Chris Christie, as well as his time with University Hospital.

From 2005 to 2009, Matey worked as an Assistant U.S. Attorney under then-U.S. Attorney Chris Christie.  In this role, Matey worked primarily to prosecute complex white collar crimes, securities fraud, and healthcare fraud.  Matey also handled pornography cases.[10]

In 2010, when Christie was elected to be Governor of New Jersey, Matey joined his office to be Assistant Counsel, later becoming Senior Counsel and Deputy Chief Counsel.  In this role, Matey analyzed legislation, executive orders, and regulations, and gave legal advice to Christie.  Notably, Matey was Deputy Chief Counsel during the Bridgegate Scandal, when officials in the Christie Administration closed down much of George Washington bridge as political retribution against the mayor of Fort Lee.[11]  Matey was one of two officials who ultimately fired Bridget Anne Kelly, the individual who had authorized the lane closures.[12]

From 2015 to 2018, Matey worked as General Counsel for University Hospital in Newark.  Matey’s tenure has already been criticized by Sen. Cory Booker, who noted that patient safety ratings at the Hospital dropped from C to F during his time there.[13]

Writings and Speeches

While not an academic, Matey has written and elaborated on the law.  Much of his work is descriptive rather than normative.  For example, Matey authored an article explaining a recent New Jersey Supreme Court decision regarding the statute of limitations as it relates to toxic tort actions.[14]  Notably, in 2005, Matey co-authored a paper with Justice Neil Gorsuch criticizing securities class actions for creating “vast social costs.”[15]  In another 2003 paper, Matey argued that the First Amendment rights of network broadcasters should be evaluated based on the “market power of the broadcast content.”[16]  Matey argues that this approach would limit government regulation of the First Amendment rights of broadcasters with regard to areas such as Presidential Debates.[17]

Overall Assessment

Matey’s nomination has advanced, so far, without the support of New Jersey Senators Bob Menendez and Cory Booker.  Under the new blue slip regime, however, the lack of such support is not fatal.  That being said, Matey is still likely to face strong opposition based on his conservative judicial views, membership in the Federalist Society, and close associations to Christie.

Specifically, some may argue that Matey was handpicked over other better-qualified candidates due to his close association with Christie.  The ABA, notably, gave Matey a middling Qualified/Not Qualified rating.[18]

However, with a narrow Republican majority, Matey remains a favorite to be confirmed.  At this point, it would take four Republican defections to kill Matey’s nomination, a tall order as only one Trump nominee has seen that many defections on the floor, and those defections were from the right.  As such, it is likely that Matey will be confirmed in short order.


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

[2] See id.

[3] Id. at 2.

[4] See id. 

[5] See id. at 27-28.

[6] Andrew Seidman and Jonathan Tamari, Trump Poised to Nominate Christie Ally for U.S. Attorney in Complex Political Deal, Philadelphia Inquirer, Aug. 10, 2017, http://www2.philly.com/philly/news/politics/presidential/trump-poised-to-nominate-christie-ally-for-u-s-attorney-post-20170810.html.  

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=paul+matey&cycle=&state=&zip=&employ=&cand= (last visited Nov. 10, 2018).

[8] See Matey, supra n. 1 at 5.

[9] During his time at Kellogg, Matey did have a chance to work with then-partner Neil Gorsuch.

[10] See, e.g., United States v. Valenzuela, 07-CR-00412 (N.J. 2007); United States v. Adams, 07-CR-00859 (N.J. 2007).

[11] See Matt Katz, Exclusive: Inside Bridgegate, New Jersey Monthly, Jan. 18, 2016, https://njmonthly.com/articles/jersey-living/exclusive-inside-bridgegate/.  

[12] Id. 

[13] See Twitter, @CoryBooker, Nov. 13, 2018, https://twitter.com/corybooker/status/1062474801560895493?lang=en.  

[14] Paul B. Matey, Surveys of Recent Developments in New Jersey Law – Torts: The Discovery Rule, 30 Seton Hall L. Rev. 101 (2003).

[15] Neil Gorsuch and Paul Matey, Settlements in Securities Fraud Class Actions: Improving Investor Protection, Wash. Legal Found., Working Paper No. 128, 2005. 

[16] Paul B. Matey, Abundant Media, Viewer Scarcity: A Marketplace Alternative to First Amendment Broadcast Rights and the Regulation of Televised Presidential Debates, 36 Ind. L. Rev. 101, 102 (2003).

[17] Id. at 137.

Judge Bridget Bade – Nominee to the U.S. Court of Appeals for the Ninth Circuit

A federal magistrate judge for the District of Arizona, Bade was selected to serve on the Ninth Circuit after the White House rejected the top candidate suggested by Arizona senators and two candidates the White House considered never made it to nomination.  As a “compromise” candidate, Bade is likely to see a smooth confirmation.

Background

An Arizona native, Bade was born Bridget Ann Shelton in Phoenix in 1965.  Bade received a B.A. summa cum laude from Arizona State University in 1987 and a J.D. from the Sandra Day O’Connor College of Law at Arizona State University in 1990.[1]  After graduating from law school, Bade clerked for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit and then joined the Department of Justice in the Environmental Torts Litigation Section of the Civil Division.[2]

In 1995, Bade returned to Arizona to be a Shareholder at Beshears Wallwork Bellamy in Phoenix (the firm would later merge with Steptoe and Johnson).[3]  Eleven years later, she moved to become a federal prosecutor with the U.S. Attorney’s Office for the District of Arizona.[4]

In 2012, Chief Judge Roslyn Silver selected Bade to be a U.S. Magistrate Judge on the U.S. District Court for the District of Arizona.  Bade serves on that court currently.

History of the Seat

Bade has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on October 11, 2016 when Judge Barry Silverman moved to senior status.  With the vacancy opening three weeks before the 2016 Presidential election, President Obama made no nomination to fill the vacancy.

In April 2017, Arizona senators John McCain and Jeff Flake, both Republicans, recommended Assistant U.S. Attorney Dominic Lanza to fill the vacancy, alongside Bade and Arizona Supreme Court Justice Ann Scott Timmer as secondary choices.[5]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[6]

The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on former U.S. Attorney Paul Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[7]  Instead, Lanza was nominated and confirmed to a district court seat.

As for the Ninth Circuit vacancy, the White House vetted but declined to nominate Langhofer, as well as their next choice, DOJ Attorney (and White House Counsel alum) James Burnham.[8]  Finally, in April 2018, over a year after her name was originally sent to the White House, Bade was interviewed to fill the vacancy.[9]  She was nominated on August 27, 2018.

Political Activity

Bade has a fairly limited political history, having hosted a political reception for Mike Bailey, a Republican candidate for Maricopa County Attorney in 2004.[10]  Additionally, Bade gave a $250 contribution to Sen. Jon Kyl, a Republican, in 2006.[11]

Unlike most of Trump’s appellate nominees, Bade does not appear to be a member of the Federalist Society for Law and Policy.[12]

Legal Experience

Before joining the bench, Bade worked both in private practice and as a government attorney.  In this role, Bade handled primarily civil and appellate law.  Over the course of her career, Bade has tried three bench trials in federal court and two state court jury trials.[13]  Early in her career, Bade was part of a legal team defending the United States against a class action alleging that leaks from a defense facility had contaminated their groundwater.[14]

Notably, Bade handled two catastrophic tort suits against the U.S. Border Patrol, involving injuries suffered from passengers in vehicles crossing the border as they attempted to evade Border Patrol agents.[15]  Bade was able to successfully settle both cases and received a commendation from the Border Patrol from her work on the matters.

Jurisprudence

Bade has spent the last six years serving as U.S. Magistrate Judge in the District of Arizona.  In this role, Bade presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues.  In her six years, Bade has presided over three bench trials and one jury trial.[16]  The lone jury trial that Bade has presided over involved a personal injury suit arising from an automobile accident.[17]

Notably, Bade ruled that an Arizona Supreme Court rule that required attorneys seeking admission in Arizona to have reciprocal admission for Arizona attorneys was valid under the Dormant Commerce Clause and the First Amendment.[18]

In her time as a judge, Bade has had her reports and recommendations rejected by district judges in six cases.[19]  In an additional six cases, Bade’s reports and recommendations have been partially rejected by district judges.[20]  Furthermore, in four cases, Bade’s rulings were reversed on appeal.[21]

Overall Assessment

Bade may not have been the Administration’s first choice for the Ninth Circuit, but she may nonetheless prove to be the right one.  As a (relatively) older nominee with judicial experience, Bade is unlikely to attract the lightning rod of opposition that Langhofer or Burnham could have.  In fact, had it not been for her home-state senator’s blockade on judicial confirmations, it is likely that Bade would have been confirmed before the end of the year.

That being said, Bade may still ultimately draw negative votes in both committee and on the floor as her hearing was held over a recess, with no Democrats present.  Despite that factor, however, Bade is likely to be confirmed early next year (assuming that Senator-elect Kyrsten Sinema raises no objections).


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[6] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[7] See id.

[8] Betsy Woodruff, Alleged Mueller Witness James Burnham Is On Trump’s Judicial Wish List, Daily Beast, Oct. 8, 2017, https://www.thedailybeast.com/alleged-mueller-witness-james-burnham-is-on-trumps-judicial-wish-list.  

[9] See Bade, supra n. 1 at 64.

[10] See id. at 44-45.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=bridget+bade&cycle=&state=&zip=&employ=&cand= (last visited Nov. 15, 2018).  

[12] See Bade, supra n. 1 at 4-6 (listing her professional affiliations).

[13] See id. at 47.

[14] See Bates v. Tenco Services, Inc., et al., CV 87-1313-SB (D.S.C.).

[15] Castillejos v. United States, CV 08-1645-DKD (D. Ariz.); Lopez-Sauceda v. United States, CV 07-2267-DGC (D. Ariz.).

[16] See Bade, supra n.1 at 23.

[17] Valejo v. Grietl, et al., Case No. CV-13-01687-PHX-BSB (D. Ariz.).

[18] Nat’l Assoc. for the Advancement of Multijurisdictional Practice v. Berch, 973 F. Supp. 2d 1082 (D. Ariz. 2013), aff’d, 773 F.3d 1037 (9th Cir. 2014), cert. denied, 135 S. Ct. 2374 (2015).

[19] Pouncey v. Maricopa Cnty. Sheriff’s Off., No. CV-17-723-PHX-JAT (BSB) (D. Ariz. Sept. 11, 2017); Dominguez-Rojas v. United States, No. CV-16-2179-PHX-SRB (BSB), (D. Ariz. Apr. 25, 2017); Brinkman v. Ryan, 2016 WL 7474014 (D. Ariz. Dec. 27, 2016); Grant v. United States, 2016 WL 6327762 (D. Ariz. Oct. 31, 2016); Muktadir v. Donahue, No. CV-15-2009-PHX-ROS (BSB), 2017 WL 4349390 (D. Ariz. Mar. 31, 2016); Gibson v. Sternes, No. CV-14-8156-PHX-DLR (BSB) (D. Ariz. May 1, 2015).  

[20] Amaral v. Ryan, No. CV-16-594-PHX-JAT (BSB), 2017 WL 6463052 (D. Ariz. Dec. 19, 2017); Flowers v. O’Neil, No. CV-15-2670-PHX-JAT (BSB), 2017 WL 6276367 (D. Ariz. Dec. 11, 2017); Hiland v. Ryan, No. CV-13-8110-PHX-PGR (BSB), 2017 WL 3953945 (D. Ariz. June 29, 2015); Bosquez v. Ryan, No. CV-13-1714-PHX-PGR (BSB), (D. Ariz. Mar. 10, 2015); Equal Employment Opportunity Comm’n v. Recession Proof, No. CV-11-1355-PHX-BSB, 2013 WL 6327994 (D. Ariz. Dec. 5, 2013); Olmos v. Ryan, No. CV-11-344-PHX-GMS (BSB)(D. Ariz. June 24, 2013).

[21] Velasco v. United States, No. CV-15-1389-PHX-NVW (BSB), 2018 WL 947667 (9th Cir. Feb. 5, 2018; Colter v. Berryhill, 685 F. App’x 616 (9th Cir. 2017); Miller v. Parties, No. CV-16-1427-PHX-DGC (BSB), 2017 WL 6210796 (9th Cir. July 27, 2017); Baxla v. Colvin, 671 F. App’x 477 (9th Cir. 2016)

Chad Readler – Nominee to the U.S. Court of Appeals for the Sixth Circuit

DOJ Attorney Chad Readler would have been controversial simply by the nature of his work for the Trump campaign, and in defending some of the White House’s most controversial initiatives.  However, the strong opposition by home-state Sen. Sherrod Brown doesn’t ease his path any further.

Background

Chad Andrew Readler was born in Pontiac Michigan in 1972.  Readler received his B.A. from the University of Michigan in 1994 and his J.D. cum laude from the University of Michigan Law School in 1997.[1]  He then clerked for Judge Alan Norris on the U.S. Court of Appeals for the Sixth Circuit.[2]

After his clerkship, Readler joined the Columbus office of Jones Day as an Associate.[3]  In 2007, he became a Partner at the firm.[4]

In 2017, after the election of Donald Trump, Readler joined the Department of Justice as Acting Assistant Attorney General for the Civil Division.[5]  He maintained that position until the confirmation of Jody Hunt in September 2018, and now serves as Principal Deputy.

History of the Seat

Readler has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Deborah Cook has indicated that she will vacate the seat upon the confirmation of a successor.

Readler was directly contacted by the White House to gauge his interest in an appointment to the Sixth Circuit.[6]  After interviews with the White House, Readler interviewed with Brown and Republican Senator Rob Portman in late 2017.[7]  He was officially nominated on June 18, 2018.  Brown has indicated his strong opposition to Readler’s nomination and has indicated that he will not return a blue slip.[8]

Political Activity

Readler had served as Outside Counsel for the Trump campaign in 2016.[9]

He was also the Ohio Co-Chair of Lawyers for Romney in 2012 and assisted with several Republican judicial election campaigns.[10]  Readler has also donated frequently to Republican candidates, giving over $12000 over the last twelve years.[11]

Private Practice

Until he joined the Department of Justice last year, Readler was a Partner in the Columbus office of Jones Day, frequently described as Trump’s favorite law firm, which has produced many Trump judicial nominees.  During his time at the firm, Readler represented a habeas petitioner seeking review of his “actual innocence” based habeas claim despite a time-bar, arguing on the petitioner’s behalf at the Supreme Court, and obtaining a limited 5-4 victory for his client.[12]

Charter School

One of Readler’s most significant cases at Jones Day involved the constitutionality of Ohio’s public funding for charter schools.[13]  The case involved a challenge to public funding of Ohio charter schools, which critics argued could not be considered “public” as they were administered by private entities and managed by for-profit corporations.[14]  Readler defended the designation of charter schools as public because the schools did not discriminate in admissions and were funded with public money.[15]  The Ohio Supreme Court ultimately narrowly sided with Readler, upholding the constitutionality of charter schools by a 4-3 vote.[16]

Later, Readler continued to defend charter schools against efforts by the Ohio government to shut down public schools that were underperforming.[17]  He also served as co-chair of the Ohio Constitutional Modernization Commission, which provided recommendations for constitutional changes, and recommended eliminating a requirement that the state fund a “thorough and efficient” system of schools.[18]

Trump Campaigns

During the 2016 campaign, Readler was one of the attorneys at Jones Day representing the Trump campaign.  Notably, Readler defended comments made by Trump during the campaign suggesting that the election was “rigged” as protected political speech in a suit over voter intimidation by the Trump campaign.[19]

Department of Justice

Since 2017, Readler has served as Acting Assistant Attorney General and Principal Deputy Assistant Attorney General under the Trump Administration.  In these roles, Readler has been to court to defend some of the Administration’s most controversial positions.

Travel Ban

Perhaps the most controversial case that Readler handled is the legal defense of the Trump travel bans, which were ultimately upheld narrowly by the Supreme Court in their third iteration.[20]  Early in the Administration, Readler argued (unsuccessfully) that the Ninth Circuit should reinstate the Trump Administration’s ban on travel with seven Muslim-majority countries (enjoined by Judge James Robart).[21]  He also successfully defended the ban before Judge Anthony Trenga in the U.S. District Court for the Eastern District of Virginia.[22]

CFPB

In 2018, after President Trump replaced outgoing Consumer Financial Protection Bureau head Richard Cordray with Mick Mulvaney, Readler helped defend the constitutionality of the appointment against a challenge from Cordray’s deputy Leandra English.[23]  Readler successfully argued that the President retained the authority to name Mulvaney and persuaded Judge Timothy Kelly to deny a preliminary injunction.[24]

Sanctuary Cities

Readler was also called to defend the legality of a Trump Administration initiative to deny federal funds to  “sanctuary cities” (cities that limit their cooperation with federal immigration enforcement).  In a hearing before Judge William Orrick, Readler argued that the denied grants were relatively minor and disputed arguments by the City of San Francisco that it could lose up to $1.7 Billion in federal funding.[25]  Orrick ultimately disagreed, enjoining the initiative.[26]

Writings

Throughout his legal career, Readler has opined on the law.  Two of his writings are highlighted below.

Non-Discrimination Ordinances

As a young lawyer, Readler wrote an article discussing the impact of local and municipal anti-discrimination protections, specifically arguing that such protections are ineffective.[27]  Specifically, Readler notes that local non-discrimination ordinances are not publicized as well to employers, rarely enforced, and, thus, are less effective.[28]  As an example, Readler suggests that stringent ordinances protecting same-sex couples in Columbus would force companies with offices in Columbus and other cities (such as Cincinnati) to adopt company wide anti-discrimination policies, and that such adoption would override “the will of the people of Cincinnati.”[29]

As such, Readler recommends federal control of anti-discrimination laws, and suggests that having private companies “free to choose their own employment policies” would be even better as that would avoid the resources needed to debate such issues on the governmental level.[30]

Charter Schools

In 2014, Readler co-authored a paper with fellow Jones Day attorney Ken Grose, in which he described and discussed recent legal victories on behalf of charter schools, suggesting that the rulings have reaffirmed the legitimacy of charter schools and comparing the wins to the victory of David over Goliath.[31]  In the paper, Readler also accuses charter school opponents of “ignoring the law” and of treating charter schools as “second class citizens.”[32]

Overall Assessment

Let’s get the obvious out of the way first: Readler is a controversial nominee.  His record is likely to be strongly objectionable to Democrats, given his close affiliation with Trump and the Administration’s initiatives.  Add to that the fact that Democratic Sen. Sherrod Brown is opposed, and it’s likely that every single Democratic vote at the end of the day will come down against Readler.  As such, his confirmation will depend on how many Republicans join them.

As of right now, there is little reason to think that any will.  Readler’s intellectual capacity and his intelligence are unquestionable, and Republicans have generally backed even controversial Trump nominations.  Furthermore, Readler’s backers can also argue that he should not be penalized for defending the positions taken by his client.

As such, Readler remains a favorite to be confirmed.  If and when he is, he will add a strongly conservative voice to the Sixth Circuit, continuing the Trump Administration’s efforts to reshape the federal bench.


[1] Sen. Comm. on the Judiciary, 115th Cong., Chad A. Readler: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] See Readler, supra n. 1 at 81.

[7] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[9] See Readler, supra n. 1 at 60-61.

[10] See id.

[12] See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).

[13] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[14] Ohio Supreme Court to Rule on Charter Law; Fate of Nearly 300 Charter Schools May Hinge on Decision, Education Week, Dec. 7, 2005.

[15] See id.

[16] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[17] Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. Times, Nov. 8, 2007.

[18] Jeremy P. Kelley, School Funding Plan Brings Sharp Debate; Some Education Boards in Ohio Oppose Proposal; Vote Possible., Dayton Daily News, July 10, 2014.

[19] Mark Gillespie, Judge Orders Trump Backers to Stop Voter Harassment, Charleston Gazette-Mail, Nov. 5, 2016.

[20] District of Columbia v. Heller, 554 U.S. 570 (2008).

[21] David J. Lynch, Federal Appeals Court Refuses to Reinstate Seven-Nation Travel Ban; U.S. Executive Order, Financial Times, Feb. 6, 2017.

[22] Rachel Weiner, Va. Judge: Trump’s New Travel Ban Likely to Pass Muster, Wash. Post, Mar. 26, 2017.

[23] See English v. Trump, 279 F. Supp. 3d 307 (D.D.C. 2018).

[24] See id.

[25] See Maura Dolan, Trump Lawyer Says Sanctuary City Rule Won’t Pummel Cities, Augusta Chronicle, Apr. 15, 2017.

[26] See Bloomberg News, Crackdown Confronts Sanctuary Cities in Court, Telegram & Gazette, Apr. 15, 2017.

[27] Chad A. Readler, Local Government Anti-Discrimination Laws: Do They Make a Difference?, 31 U. Mich. J. L. Reform 777 (Spring 1998).

[28] Id. at 805-08.

[29] Id. at 808.

[30] Id. at 811-812.

[31] Chad A. Readler and Kenneth M. Grose, Adjudging Education Policy: How the Courts Shaped Ohio’s Charter School Movement, 45 U. Tol. L. Rev. 601, 603 (Spring 2014).

[32] See id. at 604, 617.

Allison Rushing – Nominee to the U.S. Court of Appeals for the Fourth Circuit

At just 36 years old, Allison Jones Rushing is the youngest nominee Trump has put forward so far to an appellate seat.  While Rushing has a stellar resume, her youth will likely raise concerns in the confirmation process.

Background

Rushing was born Allison Blair Jones in Hendersonville, North Carolina in 1982.  She received a B.A. summa cum laude from Wake Forest University in 2002 and a J.D. magna cum laude from the Duke University School of Law in 2007.  As a law student, Rushing worked as a summer intern at the Alliance Defense Fund (ADF) (now Alliance Defending Freedom).[1]  ADF has drawn controversy for its advocacy involving “religious freedom” and has been labeled a hate group by the Southern Poverty Law Center.[2]

After graduating, Rushing clerked for then-Judge Neil Gorsuch on the Tenth Circuit, Judge David Sentelle on the D.C. Circuit, and for Justice Clarence Thomas on the U.S. Supreme Court, with a short stint as an Associate at Williams & Connolly in between.[3]

After her clerkships, Rushing rejoined the D.C. office of Williams & Connolly as an Associate.  In 2016, Rushing became a Partner at the firm, where she continues to serve.

History of the Seat

Rushing has been nominated to replace U.S. Circuit Judge Allyson Kay Duncan, who has indicated her intention to move to senior status upon the confirmation of her successor.  In June 2018, shortly after Duncan announced her departure, Rushing was contacted by the White House to gauge her interest in an appointment to the Fourth Circuit.[4]  After an interview, Rushing was informed by the White House that she would be nominated.[5]  Rushing was officially nominated on August 27, 2018.

Legal Experience

Other than her clerkships, Rushing has spent her legal career at the firm of Williams & Connolly, specifically focusing on appellate and commercial litigation.  Over the course of her career, Rushing has handled four trials in federal district court as well as over 47 briefs at the U.S. Supreme Court.[6]  In her litigation work, she has frequently collaborated with Williams & Connolly partner Kannon Shanmugam, himself a famous conservative attorney.

Among her more prominent clients, Rushing has represented the Bank of America corporation,[7] KPMG,[8] Ernst & Young,[9] and Eli Lilly.[10]  Rushing also represented Jesse Litvak, a bond trader convicted of securities fraud based on statements he had made during negotiations, on appeal, successfully reversing the convictions on the basis that Litvak’s misstatements were immaterial.[11]  Rushing also represented the New York City Council Black, Latino and Asian Caucus as amicus in a case involving New York City’s policy of preventing worship services in schools.[12]

Writings

As a law student, Rushing authored an article discussing the Rooker-Feldman doctrine, which bars lower federal courts from reviewing state court judgments.[13]  In the paper, Rushing outlines the doctrine, as well as changes to its contours in later decisions such as Exxon Mobil Corp. v. Saudi Basic Industries Corp., which clarified that the Rooker-Feldman doctrine does not bar “parallel suits.”[14]

Political Activity & Membersips

Rushing has been a member of the Federalist Society for Law and Public Policy Studies since 2012.[15]  Rushing also served as a legal advisor in the Mitt Romney Presidential Campaign, to which she also donated $500.[16]

On the flip side, Rushing campaigned for Democratic Maryland Delegate Sam Arora, a former aide to Senator Hillary Clinton.[17]

Overall Assessment

With her hearing today, Rushing is on track to be the  youngest appellate judge confirmed since Alex Kozinski was appointed in 1985.  As such, it is likely that much of the debate around Rushing will revolve around her qualifications and experience.

While Rushing falls narrowly short of the American Bar Association’s twelve years of practice requirement, she was nonetheless rated “Qualified” by the group.[18]  This is likely a testament to Rushing’s substantial litigation experience, including extensive practice in the courts of appeals.

However, this does not mean that no questions can be raised about Rushing’s background.  Specifically, North Carolina lawyers might question Rushing’s connection with the court and the state that she will be serving.  While Rushing is a native North Carolinian, she has not practiced law in the state since law school, is not a member of the North Carolina bar, and, according to her firm biography, is not admitted to practice in the Fourth Circuit, the court to which she has been appointed.[19]

Given these factors and her relative youth, many will argue that there are many more qualified and experienced candidates for this vacancy.  However, the ultimate question around Rushing, as around any other nominee, is not whether she is the “most qualified” candidate, but rather, whether she meets the requisite levels of qualifications to be an appellate judge.  As Rushing’s intellect and legal ability are unquestioned, how senators vote will ultimately depend on which factors they consider in answering that question.


[1] Sen. Comm. on the Judiciary, 115th Congress, Allison Jones Rushing: Questionnaire for Judicial Nominees 2.

[2] See Southern Poverty Law Center, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom (last visited Oct. 17, 2018).

[3] See Rushing, supra n. 1 at 2.

[4] Id. at 28.

[5] Id.

[6] Id. at 13-14.

[7] See United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 83 F. Supp. 3d 528 (S.D.N.Y. 2015).

[8] See Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, LLP, 798 F.3d 113 (2d Cir. 2015).

[9] Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[10] See Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357 (Fed. Cir. 2017).

[11] See United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) and 808 F.3d 160 (2d Cir. 2015).

[12] The Bronx Household of Faith et al. v. Bd. of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014).

[13] Allison B. Jones, The Rooker-Feldman Doctrine: What Does It Mean to be Inextricably Intertwined, 56 Duke L.J. 643 (Nov. 2006).

[14] Id. at 658-59.

[15] See Rushing, supra n. 1 at 5.

[17] See Rushing, supra n. 1 at 10.

[18] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Oct. 17, 2018).

[19] See Williams & Connolly, Allison Rushing, https://www.wc.com/Attorneys/Allison-Jones-Rushing (last visited Oct. 17, 2018).

Eric Murphy – Nominee for the U.S. Court of Appeals for the Sixth Circuit

Eric Murphy was not even thirty-five when he was selected to be Ohio’s top appellate attorney.  Now, still shy of forty, Murphy has been nominated to a lifetime appointment to the Sixth Circuit.  However, Murphy’s nomination is strongly opposed by Sen. Sherrod Brown, his home-state senator.

Background

Eric Earl Murphy was born in Indianapolis in 1979.  Murphy received his B.A. from Miami University in 2001 and his J.D. from the University of Chicago Law School in 2005.[1]  He clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[2]

After his clerkships, Murphy joined the Columbus office of Jones Day as an Associate.[3]  In 2013, Ohio Attorney General Mike DeWine selected Murphy as the new Solicitor General for the state, replacing Alexandra Schimmer.[4]  He serves in that position today.

History of the Seat

Murphy has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Alice Batchelder has indicated that she will vacate the seat upon the confirmation of a successor.

In September 2017, Murphy reached out to the White House Counsel’s Office to express his interest in a judicial appointment.[5]  After interviews with the White House, Murphy interviewed with Brown and Republican Senator Rob Portman in late 2017.  He was officially nominated on June 18, 2018.[6]   Notably, Brown has indicated his strong opposition to Murphy’s nomination and has indicated that he will not return a blue slip.[7]

Political Activity

Murphy has a relatively limited political history, having served as part of the local Republican Party chapter as a college student and having volunteered for DeWine in the 2000 elections.[8]

Private Practice

After his clerkships, Murphy worked in the Columbus office (alongside fellow nominee Chad Readler) as an Associate in the Issues and Appeals section.  In this role, Murphy handled appeals in state and federal court, representing a variety of corporate clients, including R.J. Reynolds Tobacco Co., Goodyear Tires, and Procter & Gamble.[9]  Notably, Murphy represented the Washington Legal Foundation, a free-market conservative organization, in arguing that the First Amendment permits promoting a prescription drug for an off-label use, successfully getting a conviction overturned.[10]

Solicitor General

Since 2013, Murphy has served as the Solicitor General of Ohio, representing Ohio before state and appellate panels, defending state laws, and pushing for conservative legal outcomes in other cases.  In his five years as Solicitor General, Murphy has argued five cases before the U.S. Supreme Court.[11]  He has also filed four amicus briefs as counsel of record and has participated at the certiorari level in over eighty additional cases.[12]  We have highlighted some of the key positions he took as Solicitor General.

False Speech in Advertising

Murphy’s first argued case before the Supreme Court was Susan B. Anthony List v. Dreihaus.  The case involved a challenge by the Susan B. Anthony List, an anti-abortion group, to an Ohio law criminalizing the use of “false statements” in political advertising.  After a lower court held that the SBA List could not challenge the law for lack of standing, the Supreme Court granted certiorari and Murphy defended the law.  The Supreme Court unanimously held against Murphy’s position and found that the SBA List could challenge the law under the First Amendment.[13]

Death Penalty Protocol

In 2016, prisoners challenged Ohio’s three-drug protocol for executions, and its use of the drug Midzolam.[14]  After the District Court granted an injunction against the protocol, and the Sixth Circuit affirmed, Murphy was able to convince an en banc seating of the Sixth Circuit to reverse.[15]

Same Sex Marriage

As Solicitor General, Murphy led the defense of Ohio’s ban on same sex marriage, consolidated with the bans in Tennessee, Kentucky, and Michigan.[16]  Murphy defended the bans before the Sixth Circuit, arguing that gay marriage was an issue for voters, not the courts.[17]  However, the Supreme Court ultimately rejected Murphy’s position, holding that same sex marriage bans violate the Constitution.[18]

Restrictions on Voting

As Solicitor General, Murphy led the defense of Ohio voting restrictions, including two prominent cases that involved the Supreme Court.  The first case involved a challenge to the reduction of Ohio’s early voting period from 35 days to 28.[19]  Murphy defended the restrictions, successfully reinstating them before the Sixth Circuit after the District Court struck them down.[20]  The Supreme Court denied a stay.

The second case was a challenge under the National Voter Registration Act to Ohio’s practice of purging voters from the rolls after a two-year inactive period of voting.[21]  After the District Court permitted the practice, a panel of the Sixth Circuit reversed and the Supreme Court granted certiorari.  Murphy argued the case before the Supreme Court, which reversed 5-4.[22]

Overall Assessment

Murphy has accomplished a lot given his relative youth.  Despite barely meeting the 12 years of practice criteria set by the American Bar Association, it is hard to argue that Murphy is not qualified for the appellate bench.

However, this does not mean that Murphy will be deemed a “consensus” nominee.  Murphy has been advanced without the support of his home-state senator, which automatically puts a nominee at risk of opposition.  Additionally, Murphy’s record as Solicitor General can be characterized as constituting conservative activism.  Murphy’s defense of Ohio voting restrictions and same-sex marriage ban will be particularly scrutinized.

At the same time, Solicitors General and Attorneys General have a responsibility to defend their state statutes and policies, provided that there is a reasonable defense.  Murphy’s supporters can point to his defense of the Ohio “false statements” law, challenged by conservative groups, to argue that Murphy’s top priority is the law, rather than ideology.

Overall, given Senate Republicans’ abandonment of the “blue slip” policy for appellate nominees, Murphy will likely be confirmed.  However, he is unlikely to get the support of many, if any Democrats, in that process.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric E. Murphy: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Murphy, supra n. 1 at 47.

[6] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[8] See Murphy, supra n. 1 at 14-15.

[9] See Murphy, supra n. 1 at 16-17.

[10] See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).

[11] See Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018); Sheriff v. Gillie, 136 S. Ct. 1594 (2016); Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[12] See Murphy, supra n. 1 at 19-24.

[13] Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[14] In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) (en banc).

[15] Id. 

[16] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

[17] Robert Barnes, Gay-Marriage Backers Meet a Skeptical Court, Wash. Post, Aug. 7, 2014.

[18] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[19] Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); Husted v. Ohio State Conference of the NAACP, 135 S. Ct. 42 (2014).

[20] Id. 

[21] Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).

[22] Id.