Judge Halil Ozerden – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Frequently reversed? A faux conservative? Judge Halil “Sul” Ozerden is getting hit hard from the right as a nominee to the Fifth Circuit.  As he is not guaranteed support from Democrats, it is an open question whether Ozerden can be confirmed.  However, he does bring a significant amount of judicial experience as a nominee.

Background

Halil Suleyman Ozerden was born in Hattiesburg, MS on December 5, 1966, the son of Turkish immigrants.  Ozerden graduated from the Georgetown University School of Foreign Service in 1989 and then spent six years as a fighter pilot in the U.S. Navy.  Ozerden then attended Stanford Law, graduating in 1998.

After graduating, Ozerden clerked for Judge Eldon Fallon on the U.S. District Court for the Eastern District of Louisiana and then joined the Gulfport firm, Dukes, Dukes, Keating & Faneca, P.A. as an Associate.  In 2003, Ozerden became a Partner at the firm.

In 2006, Ozerden, then only 39, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Southern District of Mississippi vacated by Judge David Bramlette.  Ozerden was confirmed unanimously by the Senate on April 24, 2007.  He serves in that capacity today.

History of the Seat

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

In April 2017, Ozerden conducted meetings with Mississippi’s U.S. Senators and was recommended to the White House.[1]  However, despite interviewing with the White House in July 2017, Ozerden was not selected as the nominee until April 2018.[2]  Even after that point, there was no action on Ozerden’s nomination for a year.  During this time, some grumbled that Ozerden was not conservative enough to be nominated.[3]  Nevertheless, Ozerden was finally nominated after the intervention of White House Chief of Staff Mick Mulvaney, who served as a groomsman in Ozerden’s wedding.[4]

Political Activity

Ozerden was active in the Mississippi Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as a Board Member of the Harrison County Republican Club.[5]  Compared to other appellate nominees, Ozerden is a latecomer to joining the Federalist Society, only doing so in 2019 when his nomination was under consideration.

Legal Career

Between 1999 and 2007, Ozerden worked in Gulfport, MS, handling general civil litigation.  During this time, he defended the Harrison County Sheriff against a civil rights action alleging that the plaintiff was wrongfully arrested and incarcerated.[6]  He also represented the office after a Sheriff’s Investigator caused a car accident which triggered severe medical injuries for the plaintiff.[7]

Jurisprudence

Ozerden has served as a judge on the U.S. District Court for the Southern District of Mississippi for the last twelve years.  In this role, Ozerden has presided over hundreds or criminal and civil cases, including sixty nine that have gone to verdict or judgment.[8]  We have summarized some of Ozerden’s most significant cases below:

Religious Rights

Ozerden has drawn criticism for conservative groups for his alleged “hostility” to religious rights.  The opposition is largely based on his ruling in Catholic Diocese of Biloxi v. Sebelius, in which he dismissed a challenge to the Obamacare contraceptive mandate on ripeness grounds.[9]

However, Ozerden’s record overall does not reflect a hostility to religious rights.  For example, Ozerden reviewed a claim of religious discrimination against the Woodland Village Nursing Home Center.[10]  In the claim, the plaintiff, a Jehovah’s Witness, was fired after she refused to pray the rosary with a Catholic nursing home resident.[11]  The nursing home moved to dismiss the lawsuit, arguing that the plaintiff had never identified the basis of her religious belief or objection to her employer, but had merely stated that it was religious.  Ozerden held that this was not a barrier and that the religious discrimination claim could move forward.[12]

However, the Fifth Circuit reversed, holding that the employee had failed to inform the employers of the specific nature of her religious belief, and that, as such, her claim wasn’t viable.[13]

The Fifth Circuit’s ruling was reversed and remanded by the U.S. Supreme Court.[14]  After the remand, the Fifth Circuit once again held for the defendant.[15]

State Farm

Ozerden presided over a qui tam lawsuit brought by State Farm insurance adjusters claiming that State Farm had instructed them to falsely identify wind damage as flood damage, so that the federal government would be responsible for the losses.[16]  State Farm attempted to secure dismissal of the lawsuit due to the plaintiff’s failure to keep the complaint under seal for 60 days, a motion that Ozerden denied.[17]  The Fifth Circuit affirmed Ozerden’s ruling and the Supreme Court affirmed in a unanimous opinion by Justice Anthony Kennedy.[18]

Reversal Rates

Ozerden has also been criticized for his high reversal rate, estimated by Severino at around 25%.[19]  Ozerden, for his part, has claimed that his reversal rate is around 4%.  Generally, the reversal rate of a judge can be determined in many ways: one is by comparing the number of cases in which a judge has been reversed to the total number of decisions issued by the judge; another is by comparing the number of cases in which a judge has been reversed to the total number of decisions issued by the judge that have been appealed.    

According to Ozerden’s questionnaire, his rulings have been wholly or partially reversed in seventeen cases.  In comparison, he has issued approximately 1400 opinions, leaving a reversal rate of around 2%.  However, because most interlocutory opinions are not appealable, a better comparison may be to focus on the number of cases that have actually been appealed (351).  This would give him a reversal rate of approximately 4%.  One could also use the number of cases that proceeded to verdict or judgment (69) , which would give you a rate of 25%. 

All in all, consider the following: Trump has nominated eight federal district court judges other than Ozerden to be appellate judges.  Of those, Thapar had 15 reversals in nine years; Erickson had 30 reversals in fourteen years; Engelhardt had 12 reversals in sixteen years; St. Eve had 43 reversals in sixteen years; Sullivan had 24 reversals in eleven years; Bianco had 13 reversals in twelve years; and Quattlebaum and Phipps had not been reversed in their short tenures.  As such, Ozerden’s seventeen reversals are fairly comparable to those of Trump’s other nominees.

Overall Assessment

Unlike Trump’s other nominees to the Fifth Circuit, Ozerden has attracted a fair amount of opposition from conservative groups.  This opposition is based largely on two arguments: first, that Ozerden’s high reversal rate shows a lack of “judicial competence”; second, that Ozerden has not been a conservative “leader” on the bench.  As noted earlier, while reasonable minds can differ, we don’t see Ozerden’s reversal rate as substantially different than those of Trump’s other nominees.  

Regarding the second complaint, the fundamental quality that litigants seek in judges is fairness.  As such, one expects that a judge will comport their rulings with the law rather than with politics or any judicial ideology or philosophy.  Ozerden’s record, overall, is conservative.  However, if it does not reflect conservative “leadership”, then it is to the judge’s credit.

Overall, it will be particularly interesting to see how Democrats choose to vote on Ozerden.  Will they see Ozerden as the best nominee they can expect from this Administration, or will they oppose Ozerden, forcing Republicans to find the votes to push him through?


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

[2] See id. at 56.

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

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

[5] See id. at 41-42.

[6] See Harris v. Forrest Cnty., Miss., No. 2:03-cv-604-KS-MTP (S.D. Miss.).

[7] See Mullins v. Haden, No. A2401-2002-0672 (Miss. Cir. Ct.).

[8] See Ozerden, supra n.1 at 15.

[9] Catholic Diocese of Biloxi Inc. et al. v. Sebelius et al., Civil No. 1:12CV158-HSO-RHW (Dec. 20, 2012).

[10] Nobach v. Woodland Village Nursing Cntr, Inc., 2013 WL 2145723 (S.D. Miss. May 15, 2013).

[11] See id.

[12] See id.

[13] Nobach v. Woodland Village Nursing Cntr, Inc., 762 F.3d 442 (5th Cir. 2014).

[14] Nobach v. Woodland Village Nursing Cntr, Inc., 135 S. Ct. 2803 (2015).

[15] Nobach v. Woodland Village Nursing Cntr, Inc., 799 F.3d 374 (5th Cir. 2015), cert. Denied, 136 S. Ct. 1166 (2016).

[16] See United States ex rel. Rigsby v. State Farm Fire & Cas. Co., 794 F.3d 457 (5th Cir. 2015).

[17] See id.

[18] See State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 137 S. Ct. 436 (U.S. 2016).

[19] See Severino, supra n.3.

Daniel Bress – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Like fellow nominee Dan Collins, Daniel Bress is also a former clerk for the late Justice Antonin Scalia and also faces the joint opposition of home state senators Dianne Feinstein and Kamala Harris.

Background

Daniel Aaron Bress was born in Hollister, CA in 1979.  Bress received an A.B. from Harvard in 2001 and a J.D. from the University of Virginia Law School in 2005.[1]  After graduating from law school, Bress clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Antonin Scalia on the U.S. Supreme Court, clerking alongside future Sen. Mike Lee, and future Sixth Circuit Judge Eric Murphy.[2] 

After his clerkships, Bress joined the San Francisco Office of Munger, Tolles & Olson LLP.  He left a year later to join Kirkland & Ellis in Washington D.C. where he has been a Partner since 2011.[3] 

Additionally, Bress has taught courses on textualism as a method of constitutional and statutory interpretation at the University of Virginia and Catholic University Law Schools.[4]

History of the Seat

Bress has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 18, 2017 when Judge Alex Kozinski resigned from the bench in the midst of heavy controversy.  On October 10, 2018, Trump nominated Patrick Bumatay, a federal prosecutor who would have been the first openly gay judge on the Ninth Circuit.  Based on a disagreement with California’s Senators, however, Bumatay was withdrawn and nominated to the U.S. District Court for the Southern District of California.

In May 2017, Bress was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In late 2017 and early 2018, Bress interviewed with Advisory Committees set up by California’s Democratic Senators.[6]  Bress’ nomination was sent to the Senate on February 6, 2019.

Both of Bress’s home state senators, Sen. Dianne Feinstein and Sen. Kamala Harris, have expressed opposition to Bress’s nomination, citing Bress’ residence and career in DC and lack of ties to the California legal community.[7]

Political Activity & Memberships

Bress is a Republican who has donated to the campaigns of Mitt Romney, John McCain, and Sen. Jeff Flake.[8]  He was also a member of the D.C. Chapter of Lawyers for Romney in the 2012 elections.[9]

Furthermore, Bress has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 2003.[10] 

Legal Experience

Bress has spent his legal career as a civil litigator, most of it at the D.C. Office of Kirkland & Ellis.  Over the course of his 12 year legal career, Bress has not tried any cases to verdict but has participated in appellate matters before the U.S. Supreme Court and the federal courts of appeals.

Among the most notable cases he handled, Bress sued under California’s Parent Empowerment Act to challenge the denial of a petition to convert Palm Lane Elementary School (a public school) into a charter school.[11]  Bress, who handled the case on a pro bono basis, argued successfully that the school’s decision to reject the petition was arbitrary.[12]

In other cases, Bress is defending Honeywell Int’l in a suit against a government alleging that anti-ballistic products they manufactured were defective.[13]  He also represented an Alabama death row inmate in challenging an Alabama procedural rule on successive habeas petitions.[14]

Writings

Of Bress’ writings on the law, two are particularly notable.  As an associate at Munger, Bress coauthored an article alongside other Supreme Court clerks at the firm (including future Ninth Circuit Judge Michelle Freidland) on the death penalty.[15]  The article focused on Justice Stevens’ dissent from a 7-2 decision upholding Kentucky’s death penalty protocol in Baze v. Rees, and the changed position from Justice Stevens’ affirmation of the death penalty in Gregg v. Georgia thirty years earlier.[16]  The article posits that “constant exposure to the horrors of capital crimes and the utter finality of executions” motivated Stevens’ change in position.[17]

In the other notable article, authored as a law student, Bress argues that the inherent power of administrative agencies to reconsider their final decisions (barring any statutory authority) must be limited and proscribed.[18]

Overall Assessment

Bress may be the youngest of Trump’s three California nominees to the Ninth Circuit, but that’s not what makes him the most controversial.  Rather, the issue is geography.  Traditionally, circuit nominees have been tied to individual states within a circuit (and statutorily, each state is required to have at least one judge on a circuit).  Bress has been nominated to a California seat but has spent almost his entire legal career in Washington D.C.  In a Judiciary Committee meeting earlier this year, Chairman Lindsay Graham acknowledged the legitimacy of concerns regarding Bress’ ties to California.  Furthermore, Bress’ legal ties are primarily to the D.C. legal community and he resides in Alexandria, Virginia.  On the flip side, Bress has litigated in California courts, was born in California, and is a member of the state bar.  Nevertheless, the Alliance for Justice has already noted that Bress’ firm biography has been edited to emphasize California ties, suggesting that his supporters are concerned about the attack.[19]

Overall, Bress’ substitution for Bumatay suggests that the White House considered the former less controversial for an appellate seat.  In the unlikely event that Bress’ nomination is derailed by questions of geography, the White House could, in theory, substitute Bumatay back for the Ninth Circuit, giving the court its first openly gay judge.


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

[2] Id. at 2.

[3] Id. at 3.

[4] Id. at 30.

[5] See id. at 33.

[6] Id.

[7] See Press Release, Office of Sen. Dianne Feinstein, Feinstein: Don’t Confirm a D.C. Lawyer to California’s Seat on Ninth Circuit (May 16, 2019); Press Release, Office of Sen. Kamala Harris, Harris on Trump’s Ninth Circuit Nominee: Daniel Bress Is Not a California Lawyer (May 17, 2019).

[8] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=daniel+bress&order=desc&sort=D (last visited May 21, 2019).

[9] See Bress, supra n. 1 at 12.

[10] See id. at 5.

[11] See Ochoa v. Anaheim City Sch. Dist., 11 Cal. App. 5th 209 (2017).

[12] Joseph Pimental and Roxana Kopetman, Court to Rule on Parents’ Charter School Demand, Chico Enterprise-Record, Mar. 2, 2017.

[13] United States v. Honeywell Int’l Inc., Case No. 08-cv-961 (D.D.C.).

[14] Kuenzel v. Alabama, 137 S. Ct. 375 (No. 16-213).

[15] Jeffrey Bleich, Aimee Feinberg, Michelle Freidland, Daniel Bress, and David Han, Change of Heart – Justice Stevens Reassesses the Death Penalty, 34 San Francisco Att’y 32 (Fall 2008).

[16] Id. 

[17] Id. at 34.

[18] Daniel Bress, Administrative Reconsideration, 91 Va. L. Rev. 1737 (Nov. 2005).

[19] Press Release, Alliance for Justice, Bress is Wrong for the Ninth Circuit (May 17, 2019).

Kenneth Lee – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Jenner & Block Partner Kenneth Lee is President Trump’s first nonwhite nominee to the Ninth Circuit.  He has drawn strong opposition based largely on college writings that lay out controversial views.

Background

Kenneth Kiyul Lee was born in Seoul on August 30, 1975.  Lee received a B.A. from Cornell University in 1997 and a J.D. from the Havard Law School in 2000.[1]  After graduating from law school, Lee clerked for Judge Emilio Garza on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Lee joined Wachtell Lipton Rosen & Katz as an associate in their New York City Office.[3]  Five years later, he moved to the White House Counsel’s Office in the Bush Administration.[4]  In 2009, Lee moved to Jenner & Block’s Los Angeles Office as a Partner and has served there since.

History of the Seat

Lee has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on March 29, 2018 when Judge Stephen Reinhardt, a liberal lion, passed away.

However, Lee had been under consideration for a judicial appointment over a year earlier, when he interviewed with the White House Counsel’s Office and the Department of Justice.[5]  In November 2017, Lee interviewed with a Judicial Advisory Commission set up by Sen. Dianne Feinstein (D-CA) and in March 2018, with a Commission set up by Sen. Kamala Harris (D-CA).  Lee was formally nominated on November 13, 2018, without the support of either senator.

Political Activity & Memberships

Lee is a Republican who has occasionally donated to Republican candidates, including a $2000 donation to Sen. Tom Cotton in 2014.[6]  Lee has also donated to U.S. Sen. Ted Cruz and Rep. Elise Stefanik.[7]

Furthermore, Lee has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[8]

Legal Experience

After his clerkship, Lee has spent his career focusing on both trial and appellate level litigation.  He has served as Chief Trial Counsel in four cases, as well as serving as Second Chair in one additional case.

Wachtell

From 2001 to 2006, Lee served as as Associate at Wachtell Lipton Rosen & Katz where he primarily handled commercial litigation.  Lee notably second-chaired a trial securing $4.6 billion in insurance damages for his client, the leaseholder of the World Trade Center, after the September 11 attacks.[9]

White House Counsel

From 2006 to 2009, Lee served as Associate Counsel to President Bush.  In that role, Lee defended the White House against investigations for the incoming Democratic Congress while working on litigation strategy in cases implicating the White House.

Jenner & Block

Since 2009, Lee has been a Partner with Jenner & Block handling matters of complex civil litigation.  During this time, Lee notably represented Kraft Foods in defending against a putative class action suit alleging false advertising relating to the fruit content in Newtons.[10]  Lee also defended Clorox in false advertising suits relating to Fresh Step cat litter ads.[11]

Writings

Like previous appellate nominees Ryan Bounds and Neomi Rao, Lee has his share of controversial writings, primarily based in his college years.  For example, in a 1993 article titled “Is America Evil,” Lee argued against criticism of racism, sexism, and homophobia in the United States.[12]  In the article, Lee suggests that criticism of structural racism arises from “statistical chicanery” and that charges of sexism are “irrelevant pouting.”[13]  Lee also writes against criticisms of sexism, noting:

“Unfortunately, no matter how many times they cry that both genders are equal, the reality is that men and women are biologically different…Anyone who disputes that fact disputes nature.  Some tasks are better suited for men, and others for women.  This is not sexism; it is reality.”[14]

Lee goes on to suggest that sexism is worse in other cultures than in America, noting that the Koran “states that ‘men have authority over women because Allah has made the one superior to the other.’”[15]

In another article, Lee wrote that “nine out of 10 people with AIDS are gay or drug users.”[16]

To be fair, Lee has walked back from many of his college writings, stating before the Judiciary Committee that he was “embarrassed” of them.[17]  His disavowal was sufficient to secure the support of Sen. Tim Scott, whose opposition killed other Trump nominees.[18]

Overall Assessment

As the Senate prepares for a final vote on Lee’s nomination, his confirmation looks likely. (While, in theory, the opposition of four GOP senators is enough to kill a nomination, the actual hurdle is higher, since many Democratic senators have been missing votes while campaigning for the Presidential nomination.)

Looking at Lee’s record overall, it reads (setting aside the college writings) as that as a mainstream (albeit conservative) nominee.  That being said, the college writings can reasonably be described as sexist, homophobic, and Islamophobic, and may be enough, in and of themselves, to persuade senators not to support Lee.  As such, senators must determine how heavily they must weigh such writings in their review of his overall record.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Lee, supra n. 1 at 27.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kenneth+lee&cycle=&state=CA&zip=&employ=&cand= (last visited May 11, 2019).  

[7] Id.

[8] See Lee, supra n. 1 at 5.

[9] SR Int’l Bus. Ins. Co., et al. v. World Trade Cntr. Props. LLC, et al., No. 01-CV-9291 (S.D.N.Y.), 345 F.3d 154 (2d Cir. 2003).

[10] Evangeline Red v. Kraft Foods, 754 F. Supp. 2d 1137 (2010); Manchouk v. Mondelez, 603 Fed. App’x 632 (9th Cir. May 18, 2015).

[11] In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (2012).

[12] Kenneth Lee, Is America Evil, The Cornell Review, Nov. 11, 1993, https://afj.org/wp-content/uploads/2019/02/Is-America-Evil.pdf.  

[13] See id.

[14] Id.

[15] Id. 

[16] Emma Dumain and Emily Cadei, Trump Pick on Track to Join Californias 9th Circuit Despite Feinstein, Harris Opposition, Sacramento Bee, Mar. 13, 2019, https://www.sacbee.com/latest-news/article227517189.html..  

[17] Id.

[18] Id.

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/.