Michael Park – Nominee to the U.S. Court of Appeals for the Second Circuit

The 43 year old Park has spent the last four years as a conservative legal superstar at the boutique firm of Consovoy McCarthy Park PLLC.  He now faces an opportunity to be elevated to one of the most prestigious courts in the nation, but faces the opposition of a uniquely powerful senator.

Background

Michael Hun Park was born in St. Paul Minnesota on April 1, 1976.  Park received his B.A. from Princeton University in 1998 and his J.D. from Yale Law School in 2001.[1]  After graduating, Park clerked for then Judge Samuel Alito on the U.S. Court of Appeals for the Third Circuit and then joined the New York office of Wilmer Cutler Pickering Hale and Dorr LLP as an associate.

In 2006, Park joined the Department of Justice, working in the Office of Legal Counsel.  In 2008, Park left to clerk for Alito, now a Justice on the U.S. Supreme Court.[2]  After his clerkship, Park joined the New York office of Dechert LLP as an Associate, becoming a Partner in 2012.  In 2015, Park left to become a Partner at the conservative boutique firm Consovoy McCarthy Park PLLC, where he currently serves.

History of the Seat

Park has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Gerald Lynch, who moved to senior status on September 5, 2016.

In March 2017, Park was contacted by the White House to gauge his interest in the Second Circuit.[3]  Park’s name was then suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Park began the nomination process in November 2017 and was nominated on October 10, 2018.  Park, however, is not supported by Schumer and Gillibrand, who both declined to return blue slips on his nomination.

Legal Career

Park has had a fairly distinguished career, including clerkships at the U.S. Supreme Court, and stints at the Department of Justice.  Early in his career, Park served as an Associate at Wilmer Cutler in New York where he represented Bankfirst in defending against actions based on the Americans with Disabilities Act.[5]  At the Office of Legal Counsel in the Department of Justice, Park primarily worked in an advisory capacity, but also helped organize the legal defense in immigration actions.[6]  Finally, at Dechert, Park primarily handled commercial and securities matters in state and federal courts.

However, Park has made his mark primarily at the conservative boutique firm Consovoy McCarthy & Park PLLC, which he helped found.  At Consovoy, Park has helped push conservative outcomes through litigation across the country.

Affirmative Action

Park has led in the field of affirmative action, bringing suits challenging the use of race in college admissions across the country, including against the University of North Carolina.[7]  Most notably, Park has led the suit challenging Harvard’s admissions policy for its impact of Asian American students.[8]  The lawsuit has drawn significant media attention as well as divided views across the political spectrum.[9]

Environmental Regulations

Park has represented the Chamber of Commerce and other business groups in their challenge to the Environmental Protection Agency’s “waters of the United States” rule.[10]  Their lawsuit was dismissed by Judge Claire Eagan, and an appeal ultimately ended with an administrative closing in accordance with the revision of the rule by the EPA.

Planned Parenthood

Park has represented the head of the Kansas Department of Health and Environment in suspending state Medicaid contracts with Planned Parenthood affiliates in the state.  The termination was, however, enjoined by Judge Julie Robinson, with her injunction being upheld by the Tenth Circuit.[11]

Overall Assessment

There is little doubt that Park possesses the legal ability and intellectual vigor for a seat on the Second Circuit.  However, given his use of litigation to push conservative policy outcomes at Consovoy, opponents are likely to raise serious concerns regarding Park’s impartiality on the bench.  Combined with the opposition of Schumer, the leader of Senate Democrats, Park’s confirmation may be rockier than that of his contemporaries.


[1] Sen. Comm. on the Judiciary, 115th Cong., Michael Park: 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 Park’s.

[3] See id. at 77.

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

[5] Aquino v. Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d 259 (E.D.N.Y. 2005).

[6] See Gegaj v. Mukasey, 262 Fed. Appx. 343 (2d Cir. 2008).

[7] Students for Fair Admission v. Univ. of N.C., 319 F.R.D. 490 (M.D.N.C. 2017).

[8] Students for Fair Admission, Inc. v. President & Fellows of Harvard College, No. 1:14-cv-14176-ADB (D. Mass. Filed Nov. 17, 2014).

[9] See Carrie Jung, Harvard Discrimination Trial Ends, But Lawsuit is Far From Over, Nat’l Pub. Radio, Nov. 2, 2018, https://www.npr.org/2018/11/02/660734399/harvard-discrimination-trial-is-ending-but-lawsuit-is-far-from-over.  See also P.R. Lockhart, The Lawsuit Against Harvard That Could Change Affirmative Action in College Admissions, Explained, Vox, Oct. 18, 2018, https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.  

[10] Chamber of Commerce of the United States v. EPA, No. 16-5038 (10th Cir.).

[11] Planned Parenthood of Kan. & Mid-Missouri v. Andersen, 882 F.3d 1205 (10th Cir. 2018).

Judge Joseph Bianco – Nominee to the U.S. Court of Appeals for the Second Circuit

Joseph Frank Bianco, a 52-year old federal judge for the Eastern District of New York, has been nominated for a seat on the Second Circuit Court of Appeals. From his days prosecuting crimes related to the September 11th attacks to ruling on MS-13 cases, Bianco earned a strong reputation as both a lawyer and a judge. He is well-respected in the legal community and likely to be confirmed.

Background

Bianco was born on September 11, 1966 in Flushing, New York. Bianco graduated from Columbia Law School in 1991 and clerked for the Reagan-appointed judge, Peter Leisure, of the United States District Court for the Southern District of New York from 1992 to 1993. After Bianco’s clerkship, he entered private practice as an associate at Simpson, Thatcher and Bartlett.

In 1994, Bianco began his long career in the public sector, serving as an Assistant United States Attorney (AUSA) for the Southern District of New York. As an AUSA, Bianco gained exposure to cases involving terrorism and organized crime. Bianco briefly returned to private practice from 2003 to 2004 as counsel at the law firm of Debevoise & Plimpton. From 2004 until his judicial nomination in 2005, Bianco served as a Deputy Assistant Attorney General in the United States Department of Justice’s Criminal Division.

Bianco was nominated by President George W. Bush, and subsequently confirmed by the Senate, in 2005 to serve as a United States District Court Judge for the Eastern District of New York.

Throughout his career, Bianco has taught courses on terrorism, national security, and criminal procedure as an adjunct professor at Fordham University School of Law, Maurice A. Deane School of Law at Hofstra University, the Touro Law Center, and St. John’s University School of Law.

A Catholic, Bianco earned his Master of Arts from the Seminary of the Immaculate Conception in 2013 and is an ordained Roman Catholic deacon.

History of the Seat

Bianco was nominated by President Trump on October 10, 2018 to sit on the Second Circuit Court of Appeals. He is nominated to fill the seat vacated by Judge Reena Raggi, who took Senior Status on August 31, 2018.

Because the Senate did not act on his nomination before the end of the 115th Congress, Bianco’s nomination was returned to Trump on January 3, 2019. Trump subsequently resubmitted Bianco’s nomination, along with 51 others, on January 23, 2019, and the Senate Judiciary Committee held a hearing on his nomination on February 13, 2019.

While both home state Senators Chuck Schumer and Hillary Clinton supported Bianco’s 2005 judicial nomination at that time, neither Senator Schumer nor Senator Kirsten Gillibrand returned a blue slip for his current nomination. Gillibrand has since stated that she and Schumer strongly object to the appointments of the “far-right-wing judicial nominees” Michael Park (also nominated for a seat on the Second Circuit) and Joseph Bianco.[1]

Political History

Bianco’s involvement in politics is limited to campaigning for Jack Kemp’s presidential bid in 1988 as an undergraduate student at Georgetown University.

Legal Career

Bianco spent his legal career prosecuting high-profile terrorism and organized crime cases. As an AUSA, Bianco brought cases against Mokhtar Haouari (for conspiring to provide material support to the terrorist plot to bomb LAX),[2] Ahmed Sattar and Lynne Stewart (for providing material support to a terrorist organization),[3] Ihab Ali Nawawi (Osama bin Laden’s personal pilot and messenger),[4] the Lucchese crime family (one of the “five families” of the Mafia),[5] and the Westies (an organized crime group operating out of Hell’s Kitchen).[6] At one point, Bianco led the unit prosecuting crimes related to the September 11th terrorist attacks.

At the Department of Justice, Bianco supervised the Counterterrorism Section, the Fraud Section, the Appellate Section, and the Capital Case Unit.[7] During this time, Bianco worked closely with former FBI directors Robert Mueller and James Comey, and current FBI director Christopher Wray.

Jurisprudence

Bianco has served as a judge for the Eastern District of New York since 2006. Approximately 70% of his caseload is civil, while 30% is criminal. From 2008 to 2018, ninety-five of Bianco’s judgments were appealed; only five have been remanded, reversed, or vacated by the reviewing court.

Criminal Law

Since 2011, Judge Bianco has overseen a large number of criminal cases involving MS-13 members. At least one of these cases—that of Josue Portillo, a MS-13 member who plead guilty to a quadruple murder in August 2018—garnered the attention of Trump, who used the case as a rallying cry to crack down on illegal immigration.[8]

Though Portillo was just 15 years-old at the time of the murders, Bianco granted the government’s motion to charge him (as well as the co-defendants in the case) as adults, citing the severity of the crime and inadequacy of the juvenile justice system as partial justifications.[9] In other cases involving MS-13 members, however, Judge Bianco has shown leniency. In the case of Elmer Alexander Lopez, Bianco handed down less than the maximum sentence because the defendant had shown remorse for his actions.[10]

Employment Law

Bianco has a tendency to favor the defendant in employment law cases, fully or partially granting a motion to dismiss 84% of the time.[11] Bianco notably granted a motion to dismiss federal claims in Zarda v. Altitude Express, Inc.[12] In Zarda, the plaintiff claimed he was discriminated against by his employer because of his sexual orientation, arguing that such discrimination was in violation of Title VII’s prohibition of sex discrimination.

Per Second Circuit precedent at that time,[13] Bianco dismissed Zarda’s federal claims but allowed his state claims to proceed to trial. In 2018, the Second Circuit, sitting en banc, overturned decades-old precedent in finding that Title VII’s prohibition of discrimination on the basis of sex necessarily encompasses claims of discrimination based on sexual orientation.

Search & Seizure

Bianco often rules in favor of the state in Fourth Amendment search and seizure cases. In the case of U.S. v. Bailey,[14] Bianco’s ruling on a Summers detainment led to a reversal by the United States Supreme Court.

In Bailey, Bianco held that police validly detained the defendant pursuant to a warrant to search the defendant’s home, despite detaining him about a mile away from his property. Relying on the Summers rule, which allows officers “to detain occupants of the premises while a proper search is conducted,” Bianco held that the detention was valid because it was made “as soon as practicable.”

The Supreme Court reversed Bianco’s decision, holding that detainments pursuant to Summers are “limited to the immediate vicinity of the property to be searched,” further stating that the defendant in the case at hand was “detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.”[15]

Speeches

Bianco has a long list of speaking engagements, dating back to his early years of practice. He speaks frequently at Federalist Society events on topics such as originalism, judicial restraint, national security, and government enforcement in the private sector.

Originalism

Bianco describes himself as a “really big fan of Justice Scalia,” stating that, “as a judge, I strongly share his originalist or textualist philosophy.”[16] In the last two years, Bianco has spoken at two Federalist Society events celebrating Scalia’s legacy.[17]

National Security

During his career as a prosecutor, Bianco spoke at a number of events, often highlighting the need of military courts and alternative tribunals in terrorism prosecutions. At a March 2007 event titled, “The Role of Terrorism on Judges and Judicial Activism,” Bianco expressed a need for tribunals and alternative judicial forums to try international terrorism cases. During his presentation he stated, “People will say to me, ‘Well, just let it go through the open court system,’ but without that classified evidence, some cases just won’t go very far.”[18]
More recently, at a January 2017 event, Bianco stated that, “[c]ivilian courts are not well-equipped to try terrorists whose terrorist activity takes place entirely, or almost entirely, overseas.” And at an October 2018 event, Bianco spoke about the difficulties of bringing foreign witnesses or classified evidence into U.S. Courts.[19]

Overall Assessment

Bianco has enjoyed an illustrious career prosecuting and overseeing some of the highest-profile terrorism and organized crime cases of his time. While neither home state senator has returned a blue slip for his nomination, Bianco enjoys a unanimous “Well Qualified” rating from the American Bar Association[20] and frequent praise from his colleagues.[21]

Bianco, a self-proclaimed originalist with a record of conservatism on matters of national security and police powers, will likely soon assume a seat on the Second Circuit Court of Appeals.


[1] Sens. Gillibrand, Schumer Object to Federal Court Appointments, Watertown Daily Times, Feb. 17, 2019, https://www.watertowndailytimes.com/news03/sens-gillibrand-schumer-object-to-federal-court-appointments-20190217&.

[2] U.S. v. Haouari, 2001 WL 1154714 (S.D.N.Y. 2001).

[3] U.S. v. Sattar, 2003 WL 22137012 (S.D.N.Y. 2003).

[4] In re: Grand Jury Subpoena of Ihab Ali, 1999 WL 595665 (S.D.N.Y. 1999); see also Nancy Peckenham, Judge Rules Government May Restrict Access to Evidence in Case Tied to Bin Laden, CNN, Nov. 6, 2000, http://www.cnn.com/2000/LAW/11/06/ali.perjury.trial.int/.

[5] U.S. v. Defede, 7 F.Supp.2d 390 (S.D.N.Y. 1998).

[6] U.S. v. Bokun, 73 F.3d 8 (S.D.N.Y. 1995).

[7] United States District Court, Eastern District of New York, Judge Joseph F. Bianco, https://www.nyed.uscourts.gov/content/judge-joseph-f-bianco.

[8] Liz Robbins, MS-13 Gang Member Pleads Guilty in Quadruple Murder Highlighted by Trump, New York Times, Aug. 20, 2018.

[9] U.S. v. Juvenile Male, 327 F. Supp. 3d 573 (E.D.N.Y. 2018).

[10] Michael O’Keefe, MS-13 Member Sentenced to 25 Years for Killing Fellow Gang Member in Brentwood, Newsday, Dec. 18, 2018, https://www.newsday.com/long-island/crime/ms-13-killings-brentwood-1.24712041.

[11] Carmen Castro-Pagan, Know Your Judge: Joseph F. Bianco, Bloomberg Law, April 18, 2018, https://biglawbusiness.com/know-your-judge-joseph-f-bianco.

[12] Zarda v. Altitude Express, Inc., No. 10 Civ. 4334 (oral decision), aff’d, 855 F.3d 76 (2d. Cir. 2017), rev’d en banc, 883 F.3d 100 (2d Cir. 2018).

[13] Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).

[14] Bailey v. U.S., 568 U.S. 186 (2013).

[15] U.S. v. Bailey, 133 S.Ct. 1031, 1042 (2013).

[16] Sen. Comm. on the Judiciary, 115th Cong., Nomination of Joseph Bianco to the U.S. Court of Appeals for the Second Circuit, Questions for the Record, Feb. 20, 2019, https://www.judiciary.senate.gov/imo/media/doc/Bianco%20Responses%20to%20QFRs.pdf.

[17] The Federalist Society, Contributors: Joseph Bianco, https://fedsoc.org/contributors/joseph-bianco (last visited March 1, 2019).  

[18] Columbia Law School, Judge Bianco on Terrorism and the Role of Judges, March 2007, https://www.law.columbia.edu/pt-br/node/83221.

[19] Columbia Law School, Federal Judge Provides Behind-the-Scene Look at Terrorism Cases, Oct. 26, 2018.

[20] American Bar Association, Ratings of Article III and Article IV Judicial Nominees (last visited March 2, 2019), https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf.

[21] James M. Wick, Hon. Joseph Bianco, The Federal Lawyer, Aug. 2018, http://www.fedbar.org/Resources_1/Judicial-Profiles/Judicial-PDFs/Hon-Bianco.aspx.

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.