Justice Allison Eid – Nominee to the U.S. Court of Appeals for the Tenth Circuit

Allison Eid shares a similar background to another Trump judicial nominee, David Stras:  like Stras, Eid is a former academic; like Stras, she clerked for Justice Clarence Thomas; and like Stras, she serves on a state supreme court.  However, unlike Stras, whose nomination is currently stymied by the opposition of a home state senator, Eid has received the requisite sign-off from her home state senators, allowing her nomination to move forward.

Background

Eid was born Allison Hartwell in Seattle, Washington in 1965.  After getting a B.A. with distinction from Stanford University, Eid joined the staff of U.S. Secretary of Education William Bennett as a Special Advisor and Speechwriter.  At the end of the Reagan Administration, Eid joined the University of Chicago Law School, graduating with high honors in 1991.  After graduating, Eid clerked for the notoriously conservative Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit, and went on to clerk for Supreme Court Justice Clarence Thomas, clerking at the Supreme Court in a particularly notable year for clerks (prominent co-clerks include Justice Neil Gorsuch, Paul Clement, Prof. Eugene Volokh, and federal judges Brett Kavanaugh, Gary Feinerman, J. Paul Oetken, and Brian Morris).

In 1994, at the conclusion of her clerkship with Thomas, Eid joined Arnold & Porter, working as a litigator there for four years.  She left the firm in 1998, joining the University of Colorado Law School, teaching Torts, Constitutional Law, and Legislation.[1]

In 2005, Eid was tapped by Republican Attorney General John Suthers to be Colorado’s Solicitor General.[2]  Shortly after, Eid was one of three finalists for a vacancy on the U.S. Court of Appeals for the Tenth Circuit (eventually filled by Gorsuch).[3]  However, instead, Eid was instead nominated for a vacancy on the Colorado Supreme Court by Republican Governor Bill Owens.[4]

History of the Seat

Eid was tapped for a Colorado seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat was vacated by now-Justice Neil Gorsuch, who was elevated to the U.S. Supreme Court on April 9, 2017.

Like Gorsuch, Eid was also among the finalists for the Supreme Court vacancy left by Justice Antonin Scalia’s death.[5]

Political Activity

Colorado Supreme Court justices serve ten year terms, with retention elections marking the end of every term.  Since her appointment in 2006, Eid has come up for retention once (in 2008) and was retained with 75% of voters in support.[6]

Other than her time in judicial elections, Eid has minimal involvement with electoral politics.  She has made small contributions to former Republican senator Wayne Allard,[7] and to failed Republican congressional candidate Greg Walcher.[8]

Legal Career

While Eid has spent most of her legal career either as an academic or as a jurist, she has four years of experience in private practice working at Arnold & Porter.  Among her work there, Eid was part of the legal team defending investors who recovered profits from a Ponzi scheme.  Eid helped successfully defend the recovered profits against actions by bankruptcy trustees seeking “fictitious profits”.[9]

Jurisprudence

Eid has served on the Colorado Supreme Court for approximately eleven years.  As the Colorado Supreme Court has discretionary review, Eid hears appeals on issues of exceptional importance, as well as constitutional challenges, death penalty cases, and certain election law issues. During her tenure, Eid has carved out a pattern as the most conservative justice on the court, frequently voting in favor of narrow interpretations of criminal and civil protections.  Below are some patterns drawn from her jurisprudence.

Conservative View of Tort Remedies

A former torts professor, Eid has worked on the bench to narrow avenues for tort remedies, including limiting liability,[10] reading affirmative defenses broadly,[11] and expanding immunity.[12]  In one case, for example, Eid dissented from a majority opinion that expanded the “attractive nuisance” doctrine to cover all children in Colorado.[13]

In another case, the Colorado Supreme Court eliminated the “sudden emergency doctrine”: a common law defense for defendants whose negligence was borne from responding to a “sudden emergency.”[14]  In dissent, Eid noted:

“[The sudden emergency doctrine] simply repeats the standard negligence formulation that the jury is to determine whether the defendant’s conduct was reasonable under the circumstances, including circumstances that would amount to a sudden emergency…”[15]

Narrow Interpretation of Criminal Procedural Protections

Eid also takes a conservative view of criminal procedural protections, interpreting the Fourth, Fifth, and Sixth Amendments and their protections narrowly, and frequently voting against motions to suppress.

For example, in one case, Eid joined a dissent by Justice Nathan Coats arguing that revoking a defendant’s probation for refusing to answer questions posed to him did not violate his Fifth Amendment rights.[16]  In another dissent, Eid argues that threatening a defendant with deportation to Iraq does not render his subsequent statements involuntary.[17]

Similarly, Eid has also generally voted against defendants who have argued for Fourth Amendment relief based on unreasonable searches and seizures.[18]  For example, in one case, Eid was the lone dissenter arguing that a warrantless search of a cell-phone did not violate a defendant’s Fourth Amendment rights as the defendant had abandoned the cell-phone.[19]

Unwillingness to Consider Legislative History

Similar to Justices Scalia and Thomas, Eid refuses to consider legislative history in analyzing the meaning of statutes.[20]

For example, in one case, Eid notes:

“I join the majority opinion because I agree that under the plain language of section 10-4-110.5(1), C.R.S. (2007), Granite State’s late notice resulted in a forty-five-day extension of the old policy, but not in a full-term renewal. See maj. op. at 14. I write separately to note that I would not resort to an examination of the statute’s legislative history.”[21]

Reversals

The Colorado Supreme Court, on which Eid serves, is the final authority on the interpretation of the Colorado Constitution and statutes.  As such, the only decisions of the Colorado Supreme Court that can be appealed to the U.S. Supreme Court are interpretations of the U.S. Constitution or federal law.

During Eid’s eleven year tenure on the bench, only a handful of Colorado Supreme Court cases have made it up to the Supreme Court.  We have outlined the key cases below.

Air Wisconsin Airlines Corp. v. Hoeper was a defamation action brought by a pilot based on statements to the TSA by airline employees questioning his mental stability.  After the jury returned a verdict for the plaintiff, the Colorado Court of Appeals affirmed.  The Colorado Supreme Court also affirmed the verdict in a 4-3 decision, holding that the airline employees were not immunized by Congress for their remarks.[22]  Eid concurred in part and dissented in part, joined by two colleagues, arguing that the airline and its employees were immune from the defamation action under the Aviation and Transportation Security Act (ATSA), and furthermore, that the statements made were not materially false.[23]  The Supreme Court granted certiorari and reversed the Colorado Supreme Court.  Writing for a six justice majority, Justice Sotomayor agreed with Eid’s dissent that the challenged statements were not materially false, and that, in any case, the airline was immunized under the ATSA.[24]  Justice Scalia, joined by Justices Thomas and Kagan, concurred with the opinion, agreeing with the reversal but noting that the material falsity of the challenged statements is a factual issue best left to the lower courts.[25]

Pena-Rodriguez v. Colorado involved the question of whether racial animus on the part of a juror permitted a trial judge to grant a new trial.  One of the jurors in the panel that convicted Pena-Rodriguez expressed anti-Hispanic sentiments during the jury deliberations.  After the trial court denied a motion for a new trial, and the Colorado Court of Appeals affirmed, the Colorado Supreme Court held on a 4-3 vote that the Colorado Rule of Evidence 606(b) barred inquiry into racist juror statements, and that such statements did not violate Pena-Rodriguez’s Sixth Amendment right to a fair trial.[26]  Eid joined a dissent by Justice Monica Marquez, which argued that inquiries into racially biased statements by jurors were permitted when they compromised a defendant’s Sixth Amendment rights.[27]  The U.S. Supreme Court, in a 5-3 vote agreed.  Writing for the majority, Justice Kennedy found that, where there is compelling evidence that racial animus motivated a jury decision, the Sixth Amendment requires examination.[28]

Nelson v. Colorado was a challenge to a Colorado statute that required defendants whose convictions have been reversed or vacated to prove their actual innocence by clear and convicing evidence before they could get a refund of the court costs, fees, and restitution paid.  The Colorado Supreme Court, in a 5-1 decision, with Eid in the majority, held that the statute was constitutional.[29]  In dissent, Justice Richard Hood noted that keeping money paid by a defendant who was legally innocent was a violation of the Due Process Clause.[30]  In a 7-1 decision, the U.S. Supreme Court agreed.  Writing for the majority, Justice Ginsburg found that the Colorado Statute violated the Fourteenth Amendment’s guarantee of due process.[31]  Only Justice Thomas, in a lone dissent, sided with the majority (and Eid).[32]

Scholarship

During her time as a law professor, Eid has written many articles discussing salient law and policy issues.  We have outlined the main topics of her writings below, along with the themes on each topic.

Federalism

Eid has written extensively on constitutional structure, specifically on federalism.  Specifically, Eid has analyzed New Federalism, the re-invogaration of federal structure and states rights by the Rehnquist Court.  Eid defends New Federalism against critiques that it is too formalistic, arguing that the Court’s decisions striking down broad federal schemes recognize the value of federalism.[33]  In another article, Eid argues that formalism in constitutional interpretation helps to “counteract the Justices’ inherent tendency to nationalism.”[34]

Similarly, Eid also argues for a limited role for the federal government in other contexts.  In one article, she disputes the argument that the Property Clause of the U.S. Constitution gives the federal government broad authority to regulate environmental policy.[35]  In another, she notes that the Supremacy Clause is not a “repository of congressional power” but rather a mere conflict-of-laws provision.[36]

Tort Reform

As a former torts professor, Eid has written and spoken repeatedly on tort law, usually in support of conservative tort reform.

In a 2001 symposium talk, Eid speaks approvingly of tort reform measures imposed in Colorado, including limitations on joint and several liability, and caps on punitive damages.[37]  In her law review note as a student, Eid spoke in support of expanded immunity to federal civil rights actions (specifically 1983 suits) for private parties.[38]  Specifically, she notes that opening public and private parties to civil rights liability could cause them to be “deterred by undue fear of frivolous litigation.”[39]

Overall Assessment

Eid is an ideal judicial candidate from a conservative perspective.  She has a conservative pedigree (having clerked for Smith and Thomas) and a conservative record of jurisprudence.  Furthermore, her writings on federalism and tort reform should draw support from those favoring a more right-wing judiciary.

As such, Eid will likely trigger strong opposition from Senate Democrats.  They will likely argue that her judicial record shows an unwillingness to defend the rights of civil plaintiffs and criminal defendants, and will paint her as a clone of her mentor Justice Thomas.  For Senate Republicans, these same qualities will be argued to be a positive.  As Republicans still maintain a majority in the U.S. Senate (and as Democratic Colorado Senator Michael Bennet has returned his blue slip on Eid), there is little Democrats can do to stop her nomination.

As such, Eid is likely to bring a strong voice for limits on government power, and restrictions on tort liability to the Tenth Circuit.  Democrats can take some comfort from the fact that Eid’s departure will permit Democratic Governor John Hickenlooper to make another appointment to the Colorado Supreme Court, reshaping it in a more liberal direction.


[1] Colorado Judicial Branch, Biography of Justice Allison Eid, https://www.courts.state.co.us/Bio.cfm?Employee_ID=70.

[2] Press Release, University of Colorado Law School, Allison Eid is new Colorado Solicitor General (July 30, 2005) (on file at http://lawweb.colorado.edu/news/showArticle.jsp?id=91).  

[3] Alicia Caldwell, Colorado Trio Eyed for U.S. Appeals Post, The Denver Post, Jan. 10, 2006, http://www.denverpost.com/2006/01/10/colorado-trio-eyed-for-u-s-appeals-bench/.  

[4] AP, Owens Names Solicitor General to Supreme Court, Denver ABC 7, Feb. 15, 2006, http://www.thedenverchannel.com/news/owens-names-solicitor-general-to-supreme-court.

[5] Jill Colvin,Trump’s Supreme Court List Underscores Election’s Importance, The Associated Press, May 19, 2017, https://web.archive.org/web/20160519104509/http://hosted.ap.org/dynamic/stories/U/US_GOP_2016_TRUMP_SUPREME_COURT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-05-18-14-08-40.  

[6] Colorado Supreme Court 2008 General Election Results, http://data.denverpost.com/election/results/supreme-court/2008/.

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=allison+hartwell (last visited Sept. 18, 2017).

[9] See Sender v. Simon, 84 F.3d 1299 (10th Cir. 1996).

[10] See, e.g., Fleury v. IntraWest Winter Park Oper., 372 P.3d 349 (Colo. 2016) (finding that an in-bound avalanche was included among the “risks of skiing” for liability purposes).  

[11] See, e.g., Hesse v. McClintic, 176 P.3d 759 (Colo. 2008) (finding sufficient evidence to submit comparative negligence instruction to jury).  

[12] See, e.g., Burnett v. Colorado Dep’t of Nat. Res., 346 P.3d 1005 (Colo. 2016) (Eid, J., concurring) (finding that the plain text of the Colorado Governmental Immunity Act prevents tort relief from injury caused by tree limb).  

[13] S.W. v. Towers Boat Club, 315 P.3d 1257 (Colo. 2013) (Eid, J., dissenting).

[14] Bedor v. Johnson, 292 P.3d 924 (Colo. 2013).

[15] See id. at 931 (Eid, J., dissenting).

[16] In re People v. Roberson, 377 P.3d 1039, 1049 (Colo. 2016) (Coats, J., dissenting).  

[17] People v. Ramadon, 314 P.3d 836, 845 (Colo. 2013) (Eid, J., dissenting).

[18] See People v. Cox, 2017 Colo. LEXIS 88; People v. Fuerst, 302 P.3d 253 (Colo. 2013) (Hobbs, J., concurring in the judgment); People v. Arapu, 283 P.3d 680 (Colo. 2012); People v. McCarty, 229 P.3d 1041, 1046 (Colo. 2010) (Eid, J., dissenting). But see People v. Herrera, 357 P.3d 1227 (Colo. 2015) (affirming trial court suppression order).

[19] People v. Schutter, 249 P.3d 1123, 1126 (Colo. 2011) (Eid, J., dissenting).  

[20] See Burnett v. Colorado Dep’t of Nat. Res., 346 P.3d 1005 (Colo. 2016) (Eid, J., concurring).

[21] Granite State Ins. Co. v. Ken Caryl Ranch Master Assoc., 183 P.3d 563, 568 (Colo. 2008) (Eid, J., concurring).

[22] Air Wisconsin Airlines Corp. v. Hoeper, 320 P.3d 830 (Colo. 2012).  

[23] Id. at 842 (Eid, J., concurring in part and dissenting in part).

[24] Air Wisconsin Airlines Corp. v. Hoeper, 134 S.Ct. 852, 858 (2014). 

[25] See id. at 867 (Scalia, J., concurring in part and dissenting in part).

[26] State v. Pena-Rodriguez, 350 P.3d 287, 289 (Colo. 2015).  

[27] Id. at 293-94 (Marquez, J., dissenting).  

[28] Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017).  

[29] State v. Nelson, 362 P.3d 1070 (Colo. 2015).  

[30] Id. at 1079 (Hood, J., dissenting).

[31] Nelson v. Colorado, 137 S.Ct. 1249, 1254 (2017).

[32] Id. at 1263 (Thomas, J., dissenting).  

[33] Allison H. Eid, Federalism and Formalism, 11 Wm. & Mary Bill of Rts. J. 1191 (April 2003).

[34] Allison H. Eid, Judge White and the Exercise of Judicial Power: Justice White’s Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism, and Judicial Restraint, 74 U. Colo. L. Rev. 1629, 1634 (Fall 2003).

[35] Allison H. Eid, Constitutional Conflicts on Public Lands: The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241 (Fall 2004).

[36] Allison H. Eid, Pre-emption and the Federalism Five, 37 Rutgers L. J. 1, 38 (Fall 2005).

[37] Allison H. Eid, Symposium: Panel Four: Tort  Law in the Federal System: An Exchange on Constitutional and Policy Considerations, 31 Seton Hall L. Rev. 740 (2001).

[38] Allison Hartwell Eid, Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (Fall 1990).

[39] See id. at 1351.

Judge Ralph Erickson – Nominee to the U.S. Court of Appeals for the Eighth Circuit

Judge Ralph Erickson has served on the bench in some capacity for 24 years, and has served as a federal trial judge for 14 of those years.  As such, he is a fairly experienced and safe choice by the Trump Administration for the Eighth Circuit.

Background

Ralph Robert Erickson was born in in the small town of Thief River Falls, Minnesota in 1959.  After getting a B.A. at Jamestown College (now the University of Jamestown), Erickson attended the University of North Dakota School of Law, graduating with distinction in 1984.  After graduating, Erickson was hired as an associate at Ohnstad Twichell P.C., working on family law and municipal court matters.  Alongside that position, Erickson also served as a prosecutor for the cities of West Fargo and Riverside, North Dakota.

In 1992, Erickson left these positions to run for a seat in the North Dakota state legislature while setting up a private practice.  Erickson lost the race for a seat in the North Dakota House of Representatives, but was appointed as a County Magistrate a year later.  In 1994, Erickson was appointed as a County Judge for a four county district, and in 1995, he became a District Judge for the East Central Judicial District, based in Fargo.

In September 2002, Erickson, then 43, was nominated by President George W. Bush for a lifetime appointment on the U.S. District Court for the District of North Dakota.  Erickson was unanimously confirmed by the U.S. Senate on March 12, 2003.[1]  Erickson currently serves in that capacity.

Erickson has often spoken out about his personal struggles with alcohol.  In a 2007 interview with the University of North Dakota Law School, Erickson described overcoming alcoholism as “one of his greatest strengths.”[2]  He specifically noted:

“I have an insight into personal failures that I would not have if I had not had this particular problem, and as a judge it allows me to refrain from judging other people.”[3]

Erickson is also a frequent speaker at Alcoholics Anonymous, assisting others with finding sobriety.

History of the Seat

Erickson was tapped for a North Dakota seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat was vacated by Judge Kermit Edward Bye, an appointee of President Bill Clinton.  Bye moved to senior status on April 22, 2015, and President Obama nominated Jennifer Klemetsrud Puhl, a federal prosecutor, to fill the vacancy.[4]  Puhl, who had the support of Sen. Heidi Heitkamp (D-ND) and Sen. John Hoeven (R-ND), received a hearing on June 21, 2016,[5] and was unanimously moved to the floor on July 14, 2016.  However, Puhl’s nomination ran into a blockade on confirmations imposed by Senate Majority Leader Mitch McConnell (R-KY), and was never confirmed.

In December 2016, Erickson contacted Hoeven and Heitkamp expressing his interest in the vacancy.  After interviewing with the White House Counsel’s Office and the Department of Justice, Erickson was formally nominated on June 7, 2017.[6]  Like Puhl, Erickson has the support of both Hoeven and Heitkamp.[7]

Political Activity

Before becoming a judge, Erickson was fairly active in the North Dakota Republican Party.  In addition to donating to the party,[8] Erickson served as an Executive Committee member, a Precinct Chair, and a member of the State Republican Committee at various times.  He ceased participation in such roles upon his selection as a judge.

Legal Career

Before becoming a judge, Erickson worked as a part-time prosecutor, prosecuting small traffic and misdemeanor cases between 1984 and 1991.  Erickson also practiced family law and landlord tenant matters, trying approximately thirty five cases.  During this time, Erickson handled the unsuccessful appeal of a construction worker who suffered a heart attack due to workplace stress.[9]  The North Dakota Supreme Court ruled against Erickson’s client 3-2.  Erickson also represented personal injury plaintiffs, including a senior citizen who was struck by a fully loaded luggage cart while on a bus tour of New England,[10] and a single father who was struck by a pickup truck while riding his motorcycle.[11]

Jurisprudence

Erickson has served as a federal trial judge for approximately fourteen years.  During this time, he has established a reputation as a fair, middle of the road judge.[12]  A look at the 500+ orders and decisions Erickson has handed down suggests certain patterns:

Deference to Jury Determinations of Facts

While many federal judges continue to use summary judgment to maintain control of their dockets, Erickson has shown an unwillingness to decide factual disputes reserved for the jury.  As such, he has frequently denied summary judgment on motions of both plaintiffs[13] and defendants.[14]  In one case, Erickson notes

“The parties have not had an opportunity to conduct discovery with regard to any of the claims; therefore, summary judgment is premature as to all claims.”[15]

Similarly, Erickson is generally deferential to jury verdicts, regardless of whether they support the plaintiff or the defendant.  In one case, Erickson rejected a defendant’s motion to overturn a jury verdict for the plaintiff, noting that the verdict was “reasonable based on the substantial evidence provided at trial.”[16]

Narrow Enforcement of Criminal Procedural Protections

While Erickson has generally ruled against criminal defendants raising Fourth, Fifth, and Sixth Amendment claims, he has, under narrow circumstances, shown a willingness to support their claims.  

While sitting by designation on the Eighth Circuit, Erickson held that a defendant’s rights were not violated where he was committed for a mental competency evaluation without being present at the hearing.[17]  Specifically, Erickson noted that while the decision could constitute a trial error, such error was harmless.[18]

However, in another case, Erickson ruled in favor of a defendant seeking to avoid having his request for a lawyer used as an inference of guilt.[19] 

Similarly, while Erickson has generally rejected motions to suppress based on Fourth Amendment violations,[20] he suppressed evidence in a case where the defendant’s consent to search her hotel room was coerced.[21]

Willingness to Reverse Criminal Convictions

While Erickson has affirmed most challenges to criminal convictions before him,[23] he has also shown a willingness to overturn convictions obtained through violations of defendants’ rights.

For example, in one case, Erickson found that a defendant had been convicted despite the failure of the government to provide appropriate Brady evidence.[24] 

Perhaps no case better demonstrates Erickson’s willingness to overturn convictions than U.S. v. Williams.  Alphonso Williams was convicted of participating in a drug trafficking conspiracy despite the fact that “Williams was never seen selling drugs… buying drugs…using drugs…[or] discussing drugs.”[25]  In granting Williams’ motion for acquittal, Erickson describes a jury process that was tainted by race, noting that this was “a trial so tainted and a result so perverse that to allow the verdict to stand would render all of us insecure as citizens.”[26]  Erickson also lambasts his own role as trial judge, stating:

“Rulings that I made and oversight I failed to provide created an atmosphere in which a jury was simply unable to avoid an elephant in the courtroom—an elephant that should never have been allowed in the first place. Had the court made the correct rulings and had the court provided appropriate instructions and guidance, I have no doubt the verdict would have been different.”[27]

Ultimately, Erickson’s decision was partially reversed by the Eighth Circuit.[28]

Reversals

In the fourteen years he has been a federal judge, Erickson has been reversed approximately thirty times, a reasonable rate of reversal.  Many of these have reversed Erickson’s rulings in favor of criminal defendants,[29] although a handful of reversals are based on errors that prejudiced defendants.[30]  Notably, the Eighth Circuit reversed Erickson’s granting of a judgment of acquittal in Williams, although it affirmed his decision to grant Williams a new trial.[31]   

In one key case, Erickson found that police officers who shot a suicidal man were not entitled to qualified immunity, as there was a genuine dispute of material fact involving their actions.[32]  However, the Eighth Circuit reversed, holding that, based on the facts of the case, the officers’ actions were objectively reasonable.[33]

Judicial Controversies

Of the 500+ plus cases that Erickson has presided over, three in particular are likely to draw attention:

United States v. Rodriguez

Rodriguez was the first death penalty trial in North Dakota since 1913.  The defendant was charged with kidnapping, sexually assaulting, and murdering Dru Sjodin.  Erickson managed both the trial and penalty proceedings, ultimately sentencing Rodriguez to the death penalty.[34]

Erickson’s decision was appealed to the Eighth Circuit, who affirmed the death sentence.[35]  However, Judge Melloy dissented, arguing that improper arguments by the prosecutors during the penalty trials required reversal of the death sentence.[36] 

North Dakota v. EPA

This case involved a challenge to an Environmental Protection Agency (EPA) Rule that broadened the definition of “Waters of the United States” under the Clean Water Act to ensure that small streams and wetlands were also protected.[37]  Erickson found that the EPA’s rule was “arbitrary and capricious” and violated the Administrative Procedure Act (APA).[38]

Erickson’s ruling drew sharp criticism at the time,[39] and may be revived to suggest a prejudice against environmental groups.

United States v. Martinez

In this case, Erickson’s conduct was called into question by a defendant he sentenced.  Erickson sentenced Martinez to life in prison after his guilty plea on a trial involving a cartel killing.  However, Martinez challenged the sentence, arguing that his attorney, Thomas Dickson, and Erickson had an improper social relationship, and that Dickson had assured him that Erickson would give him a lower sentence.

After an evidentiary hearing, Judge Jeffrey Viken rejected Martinez’s claims and found that “no improper out-of-court or social relationship existed between Judge Erickson and Mr. Dickson and that they never discussed Mr. Martinez’s plea options outside of the record.”[40]

Overall Assessment

Erickson represents the kind of nominee Trump should nominate more often: experienced, well-respected, and judicially moderate.  With the exception of the rulings highlighted above, it is unlikely that any of Erickson’s judicial conduct will draw scrutiny.  Additionally, given Sen. Heitkamp’s strong support, it is likely that Erickson will be swiftly confirmed.


[1] Jeff Zent, Senate Confirms Confirms as Judge, Inforum, Mar. 14, 2003, http://www.inforum.com/content/senate-confirms-confirms-judge.

[2] The University of North Dakota School of Law, The Case of a Lifetime, UND Law, Summer 2007, 4, 7, https://law.und.edu/_files/docs/alumni/pdf/nd-law/07nd-law02.pdf.

[3] 

[4] Press Release, The White House Archives, President Obama Nominates Jennifer Klemetsrud Puhl to Serve on the United States Court of Appeals (Jan. 28, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office/2016/01/29/president-obama-nominates-jennifer-klemetsrud-puhl-serve-united-states).

[5] Patrick Springer, Senate Hearing Friendly for Appointment to Replace Fargo-Based Appeals Judge, The Bismarck Tribune, June 21, 2016, http://bismarcktribune.com/news/state-and-regional/senate-hearing-friendly-for-appointment-to-replace-fargo-based-appeals/article_5155ec6c-fe6e-5445-910a-6816105c8f51.html.

[6] AP, North Dakota Federal Judge Nominated for Appeals Court, US News, June 7, 2017, https://www.usnews.com/news/best-states/north-dakota/articles/2017-06-07/north-dakota-federal-judge-nominated-for-appeals-court.  

[7] See id.  See also Press Release, Office of Sen. Heidi Heitkamp, Heitkamp Statement on Nomination of Ralph Erickson to Serve as Judge on 8th Circuit Court of Appeals (June 7, 2017) (on file at https://www.heitkamp.senate.gov/public/index.cfm/2017/6/heitkamp-statement-on-nomination-of-ralph-erickson-to-serve-as-judge-on-8th-circuit-court-of-appeals).

[9] See Grace v. North Dakota Workers Comp. Bureau, 395 N.W.2d 576 (N.D. 1986).

[10] Sellie v. North Dakota Ins. Guaranty Assoc., 494 N.W.2d 151 (N.D. 1992).

[11] In re the Matter of Kyle Smith, 119 B.R. 714 (Bankr. D.N.D. 1990).

[12] See Patrick Springer, Trump Nominates U.S. District Judge in Fargo to Federal Appeals Court, The Bismarck Tribune, June 9, 2017, http://bismarcktribune.com/news/state-and-regional/trump-nominates-u-s-district-court-judge-in-fargo-to/article_401fa1b0-5d60-5ad5-a2c2-0b39d7675640.html (quoting Prof. Carl Tobias) (“[Erickson] enjoys a reputation for being a fair, mainstream jurist who possesses great judicial temperament.”).

[13] See, e.g., Associated Potato Growers, Inc. v. BNSF Ry. Co., corporation, No. 2:15-CV-11, 2016 WL 7495845, at *1 (D.N.D. May 12, 2016); Tioga Townhomes, LLC v. Auto-Owners Ins. Co., No. 4:14-CV-99, 2016 WL 7507792, at *1 (D.N.D. Jan. 4, 2016).

[14] See, e.g., Ewina v. Basic Energy Servs., Inc., No. 4:14-CV-157, 2016 WL 4717985, at *1 (D.N.D. Sept. 9, 2016); BNSF Ry. Co. v. Progress Rail Servs. Corp., No. 3:13-CV-80, 2016 WL 7496873, at *1 (D.N.D. Aug. 16, 2016); Max Bancorp, LLC v. Nat’l Bank of Harvey, No. 4:14-CV-152, 2016 WL 7496899, at *1 (D.N.D. May 25, 2016); Korinek v. FlexTM, Inc., No. 3:14-CV-74, 2015 WL 12591730, at *1 (D.N.D. Mar. 2, 2015).

[15] A & R Fugleberg Farms, Inc. v. Triangle Ag, LLC, No. 3:09-CV-07, 2010 WL 1418870, at *1 (D.N.D. Apr. 7, 2010).  

[16] Energy Heating, LLC v. Heat On-The-Fly, LLC, No. 4:13-CV-10, 2016 WL 3762697, at *1 (D.N.D. Mar. 4, 2016).

[17] United States v. Zavesky, 839 F.3d 688, 691 (8th Cir. 2016), cert. denied, 137 S. Ct. 1388, 197 L. Ed. 2d 565 (2017).

[18] See id. at 694-95.

[19] United States v. Garcia, No. 4:13-CR-207, 2015 WL 13229566, at *1 (D.N.D. Apr. 14, 2015).

[20] See United States v. Trotter, No. 2:14-CR-96, 2015 WL 13101987, at *1 (D.N.D. Mar. 4, 2015); United States v. Brown, No. 2:11-CR-84, 2011 WL 13130436, at *2 (D.N.D. Oct. 25, 2011); United States v. Hager, No. 3:11-CR-11, 2011 WL 3862072, at *1 (D.N.D. Aug. 31, 2011), aff’d, 710 F.3d 830 (8th Cir. 2013).

[21] United States v. Quintero, No. 3:10-CR-51, 2010 WL 3522251, at *1 (D.N.D. Sept. 8, 2010), aff’d, 648 F.3d 660 (8th Cir. 2011).

[22] State of Minn. v. Obeta, 796 N.W.2d 282 (Minn. 2011) (Stras, J., dissenting).

[23] See, e.g., United States v. Banks, No. 2:11-CR-4, 2015 WL 12723043, at *1 (D.N.D. July 30, 2015); United States v. Trotter, No. 2:14-CR-96-02, 2015 WL 13101986, at *1 (D.N.D. Apr. 21, 2015); United States v. Bagola, No. 2:12-CR-63, 2013 WL 11322598, at *6 (D.N.D. Dec. 5, 2013), aff’d, 796 F.3d 903 (8th Cir. 2015); United States of Am. Plaintiff, v. Jonathan Jason McClarin, a/k/a Jay Defendant., No. 3:09-CR-155-3, 2012 WL 12966187, at *1 (D.N.D. June 28, 2012); United States v. Garrett, 648 F.3d 618, 621 (8th Cir. 2011).

[24] Cvijanovich v. United States, No. 3:07-CR-55, 2011 WL 2680485, at *11 (D.N.D. July 8, 2011).

[25] United States v. Williams, No. 3:09-CR-55-02, 2010 WL 9137843, at *2 (D.N.D. Jan. 22, 2010).

[26] Id. at *1.

[27] Id. at *1.

[28] United States v. Williams, 647 F.3d 855 (8th Cir. 2011).

[29] See Davis v. United States, No. 12-cr-109, Doc. No. 243 (D.N.D. Mar. 30, 2016), rev’d, __ F.3d __, 2017 WL 2295789 (8th Cir. 2017); Taylor v. United States, No. 3:09-cr-69, Doc. No. 723 (D.N.D. Jan. 30, 2014), rev’d, 792 F.3d 865 (8th Cir. 2015); United States v. Cavanaugh, 680 F. Supp. 2d 1062, 1077 (D.N.D. 2009), rev’d, 643 F.3d 592 (8th Cir. 2011)

[30] See, e.g., United States v. Robertson, No. 08-cr-62, Doc. No. 65 (D.N.D. Feb. 18, 2009), rev’d, 606 F.3d 943 (8th Cir. 2010); United States v. Chalupnick, No. 06-cr-94, Doc. No. 23 (D.N.D. Feb. 5, 2007), rev’d, 514 F.3d 748 (8th Cir. 2008).

[31] See United States v. Williams, 647 F.3d 855 (8th Cir. 2011).

[32] Partlow v. Stadler, No. 3:12-CV-80, 2014 WL 12059001, at *5 (D.N.D. Jan. 22, 2014), rev’d, 774 F.3d 497 (8th Cir. 2014).  

[33] See 774 F.3d 497 (8th Cir. 2014).

[34] United States v. Rodriguez, 581 F.3d 775, 784 (8th Cir. 2009).

[35] See id. at 783.

[36] Id. at 816 (Melloy, J., concurring in part and dissenting in part).

[37] North Dakota v. U.S. E.P.A., 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015).

[38] See id. 

[39] Samantha Page, Judge Steps in at the Last Minute to Block EPA, Heroically Saves America from Clean Water, ThinkProgress, Aug. 28, 2015, https://thinkprogress.org/judge-steps-in-at-last-minute-to-block-epa-heroically-saves-america-from-clean-water-3de1d55fd473.

[40] United States v. Martinez, No. 3:06-CR-14-17, 2017 WL 944188, at *7 (D.N.D. Mar. 8, 2017).

Justice David R. Stras – Nominee to the U.S. Court of Appeals for the Eighth Circuit

At 43 years old, Justice David Stras is the youngest appellate nominee put forward by the Trump Administration.  Despite his youth, Stras, who has spent seven years on the Minnesota Supreme Court, has both the academic and judicial qualifications for the job.  However, the Trump Administration’s failure, once again, to preclear Stras’ nomination with Minnesota’s senators could jeopardize a comfortable confirmation.

Background

David Ryan Stras was born in Wichita, Kansas on July 4, 1974.  After getting a B.A. with highest distinction at the University of Kansas, Stras attended the University of Kansas School of Law for a joint JD/MBA program.  After graduating, Stras clerked for Judge Melvin Brunetti at the U.S. Court of Appeals for the Ninth Circuit, and then for conservative superstar Judge J. Michael Luttig with the U.S. Court of Appeals for the Fourth Circuit.  After his clerkship, Stras was hired as an associate at the Washington D.C. Office of Sidley Austin LLP.

In 2002, Stras left Sidley to take a prestigious clerkship with Supreme Court Justice Clarence Thomas.  After clerking for Thomas, Stras moved to the University of Alabama School of Law as a Hugo Black Faculty Fellow, teaching Federal Jurisdiction and Law and Economics.  After his fellowship, Stras was hired as an Associate Professor of Law at the University of Minnesota Law School, where Stras taught Federal Jurisdiction and Constitutional Law.

In 2010, Stras was tapped by Republican Governor Tim Pawlenty for an opening on the Minnesota Supreme Court.[1]  The appointment drew criticism both for Stras’ age (35) and inexperience, and for the timing of the appointment, coming shortly after the Supreme Court had narrowly rejected Pawlenty’s use of unallotments to reduce state spending.[2]  Stras was subsequently elected to a six year term on the court and currently serves as a supreme court justice.[3] 

History of the Seat

Stras was tapped for a Minnesota seat on the U.S. Court of Appeals for the Eighth Circuit vacated by Judge Diana Murphy.  Murphy, a centrist voice on the court who was tapped for the U.S. District Court for the District of Minnesota by President Jimmy Carter, and elevated to the Eighth Circuit by President Bill Clinton in 1994, moved to senior status on Nov. 29, 2016.  

Stras, who was on President Trump’s shortlist for the Supreme Court vacancy created by the death of Justice Antonin Scalia,[4] was contacted regarding his interest in the Minnesota seat in January 2017.  He interviewed with the White House Counsel in March and was formally nominated on May 8, 2017.  Stras’ nomination was met with skepticism by Minnesota Senators Amy Klobachar and Al Franken, who indicated that they were not meaningfully consulted about Stras prior to the nomination.[5]

Political Activity

Minnesota Supreme Court justices are elected to 6-year terms in nonpartisan elections.  In theory, this allows candidates to run for open seats.  However, since 1992, every new justice has been appointed by the Minnesota Governor and has run as an incumbent.  In 2012, Stras was challenged for a full six year term by magistrate judge Tim Tingelstad and attorney Alan Nelson.  Stras led the first round of balloting with 49% of the vote, and faced Tingelstad who received 29%.  

In the general election, Stras emphasized his apolitical nature, and the bipartisan support he had received, while Tingelstad pushed for the elimination of court appointments.[6]  Faith became a dividing line between the candidates, as Tingelstad emphasized his Christian faith, while Stras, who is Jewish, stated “I do not think that God dictates any of my decisions.”[7]  In the general election, Stras defeated Tingelstad, taking 56% of the vote.[8]

Other than his run for judicial office, Stras has minimal involvement with electoral politics.  His only involvement with campaigns involved attending fundraising events for Gov. Pawlenty in the years before his appointment to the Supreme Court.

Legal Career

Having spent most of his legal career either as an academic or as a jurist, Stras has comparatively little experience in the practice of law.  Stras’ litigation experience consists of one year as an associate at Sidley Austin LLP., and one year serving as Of Counsel in the Minneapolis office of Faegre Baker Daniels LLP.  During his time at Sidley, Stras worked on white collar criminal defense and the representations of telecommunications, railroads, and utilities on appeal.  At Faegre, Stras served as an advisor on appellate and federal court matters, including the representation of a mortgage company seeking to foreclose on homes in Minnesota.[9]

Jurisprudence

Stras has served on the Minnesota Supreme Court for approximately seven years, hearing appeals from the Minnesota lower courts, and serving as the final voice on Minnesota state law. During his tenure, Stras has developed a reputation as an idiosyncratic conservative, frequently staking out liberal positions in dissent.[10]  Below are some patterns drawn from his jurisprudence.

Limited View of a Judge’s Role

Throughout his tenure, Stras has frequently written concurrences and dissents criticizing his colleagues for departing from the appropriate “role of a judge.”  In doing so, Stras has criticized equitable, judge-made doctrines that seek to remedy wrongdoing.  Stras has been particularly critical of the “interests of justice” standard, noting in one case:

“…I continue to doubt our authority to reduce sentences or reverse convictions in the interests of justice or under some comparable, “highly subjective” power…”[11]

In another case, the Minnesota Supreme Court held that the Minnesota Department of Health must comply with the informed consent provisions of the Genetic Privacy Act before collecting blood samples from newborn children to screen for diseases.[12]  In dissent, Stras noted:

“In my view, the court reaches the correct policy result. If I were a legislator, I would vote for legislation protecting blood samples under the Genetic Privacy Act. However, my role as a judge is not to implement my own policy preferences, but to interpret the law as written.”[13]

Strictness on Jurisdiction and Timeliness

Stras has also taken a very narrow view of the Minnesota Supreme Court’s jurisdiction, frequently arguing that cases should be dismissed for lack of jurisdiction, untimeliness, or mootness.[14]

For example, in one case, Stras lambasted his colleagues for deciding an appeal he deemed untimely:

“The court’s rule in the decision we announce today can be boiled down to the following proposition: we may treat the time limits for filing an appeal as optional in some cases and mandatory in others, depending on our intuition about whether judicial economy favors review.”[15] 

Similarly, Stras notes in another case:

“The majority undoubtedly addresses an issue of great importance for sexual assault prosecutions in Minnesota. The majority does so, however, in a case over which we have no jurisdiction.”[16]

Willingness to Enforce Criminal Procedural Rules

Despite his conservative background, Stras’ jurisprudence is relatively friendly to those charged with crimes, interpreting the Fourth, Fifth, and Sixth Amendments and their protections strictly.

Like most judges, Stras has generally affirmed convictions against procedural arguments.[17]  However, compared to his colleagues, Stras has frequently found the violation of criminal defendants’ procedural rights.  In State v. Bernard, Stras dissented from a 5-2 decision holding that compelled breath tests looking for alcohol did not violate the Fourth Amendment.[18]  Similarly, in State v. Brooks, Stras wrote in dissent that a driver did not voluntarily consent to a blood and urine test.[19]  Specifically, Stras noted:

“It is hard to imagine how Brooks’ consent could have been voluntary when he was advised that refusal to consent to a search is a crime.”[20] 

In another case, Stras held that a defendant had a Sixth Amendment right to have a jury, not a judge, determine his statutory “risk level” for sentencing purposes.[21]  In yet another case, Stras joined a dissent arguing that a 21-month delay violated a defendant’s speedy trial rights under the Sixth Amendment.[22]

However, in a few cases, Stras has disagreed with colleagues who have overturned the convictions of defendants.[23]  In one case, Stras found that a defendant’s waiver of counsel should be treated as knowing and voluntary even after a significant charging change by the prosecution.[24]  In another case, Stras disagreed with the court majority in their ruling that the state’s attempt to interfere in the testimony of a defense expert witness required reversal of the conviction.[25]

Reluctance to Grant Postconviction Relief

While Stras has been willing to find for criminal defendants whose procedural rights were violated, he is much less friendly to defendants challenging their convictions based on trial errors or evidentiary issues.  Specifically, Stras has rejected claims based on prosecutorial misconduct,[26] incorrect evidentiary rulings,[27] or sufficiency of the evidence.[28]  Stras is particularly willing to dismiss collateral challenges as procedurally barred.[29]

However, Stras has shown a willingness to reverse convictions that rely on jury instructions that misstate the elements of the offense or the burden of proof.[30]

Reversals

The Minnesota Supreme Court, on which Stras serves, is the final authority on the interpretation of the Minnesota Constitution and statutes.  As such, the only decisions of the Minnesota Supreme Court that can be appealed to the U.S. Supreme Court are interpretations of the U.S. Constitution or federal law.  

During Stras’ seven year tenure on the bench, none of his opinions have been reversed by the Supreme Court.  However, the Supreme Court did indirectly reverse Stras’ view in one case.

State v. Bernard was a challenge to a Minnesota law making it a crime to refuse to take a chemical test to detect alcohol in a DWI case.  Bernard challenged the statute as a violation of his due process rights, as the search itself was unreasonable under the Fourth Amendment.  The Minnesota Supreme Court, in a 5-2 opinion, upheld the law, arguing that chemical tests are a proper search incident-to-arrest and as such, criminalizing the refusal of the search did not implicate due process rights.[31]  In a joint dissent, Stras and Justice Alan Page sharply criticized the majority’s reasoning, arguing that it was contrary to Supreme Court precedent limiting the search incident-to-arrest exception.[32]

On a consolidated appeal, the U.S. Supreme Court found that warrantless breath tests did not implicate the Fourth Amendment, essentially affirming the Minnesota Supreme Court decision, and implicitly disagreeing with Stras’ dissent.[33]  Stras’ position did draw the votes of Justices Sotomayor and Ginsburg.[34]

Scholarship

During his time as a law professor, and, to a lesser extent, during his years on the Minnesota Supreme Court, Stras has written fairly extensively about the Constitution, the rule of law, and legal decisionmaking.  We have outlined the main topics of his writings below, along with the themes on each topic.

Role of the Law Clerk

Both as a law professor and as a justice, Stras has written and spoken extensively on the role of law clerks in the judicial process.  In a 2007 book review, Stras, a former Supreme Court clerk himself, noted the importance of law clerks who serve in the cert pool, and thus help limit the number of petitions granted by the court.[35]  In another article, Stras notes the significant role that law clerks placed in the oral argument preparation for Justice Harry Blackmun.[36]

Stras has also spoken candidly on his own experience both as a law clerk and as a justice hiring law clerks.  In his keynote address at the Marquette University Law School’s conference, Judicial Assistants or Junior Judges: The Hiring, Utilization, and Influence of Law Clerks, Stras explained the different roles for clerks at the Fourth Circuit, the Ninth Circuit, and the U.S. Supreme Court (where Stras clerked) as well as the Minnesota Supreme Court.[37]  In the speech, Stras noted that, while he uses clerks extensively for preliminary work on cases, he does not use clerk input for oral argument.[38]  At the same conference, Stras noted that he does not have a political “litmus test” for his clerks and hires clerks from all backgrounds.[39]  Rather, he noted:

“I just want people with diverse backgrounds, which can include things like race, region, things like that.”[40]

Life Tenure

Stras has written and spoken repeatedly in defense of the constitutional guarantee of life tenure for federal judges.  

In a 2005 law review article, Stras argued that Congress could not abrogate life tenure for federal judges without violating a number of constitutional provisions, including the tenure and salary clauses.[41]  He also defended life tenure against critics in the article, noting that it insulates judges from political pressure.[42]  He has further expanded on this defense using empirical evidence to counter critics of life tenure.[43]

In a 2009 panel held by the Federalist Society, Stras debated Prof. Stephen Burbank, Prof. James Lindgren, and supreme court advocate Charles Cooper in strong defense of life tenure.  During his remarks, he described himself as “a fundamental Burkean conservative who believes that everything in the Constitution has very strong meaning and very strong reasons behind it.”[44]  He went on to defend the uniqueness of the Judiciary, praising its “anti-majoritarian” nature.[45]

Support for Conservative Judges

Stras has gone on record multiple times praising conservative judges and judicial philosophies.  In 2005, during the confirmation debate over then-Judge Samuel Alito, Stras published an editorial arguing for his confirmation.  Specifically, Stras noted:

“[Justice Alito] is a mainstream conservative jurist that has shown great respect for the rule of law.”[46]

Stras also authored an article praising Justice Pierce Butler, a justice who served on the Supreme Court early in the 20th century.  In the article, Stras describes Butler as “stereotypically libertarian” with a strong commitment to protecting private property rights.[47]  Stras disagrees with the traditional view of Butler as a “conservative”, pointing out that Butler’s jurisprudence took a broad view of the rights of criminal defendants.[48]  Stras also speaks approvingly of Butler’s opinion striking down New York’s minimum wage law as an infringement on the right to contract,[49] even while acknowledging that Butler’s broad views of private property rights did not extend to resident aliens.[50]

Overall, Stras acknowledges that Butler’s broad view of economic liberty and the right to contract are “on the wrong side of history” but nonetheless praises him as a “judicial minimalist” who decided cases in a “narrow, concise, and technical manner.”[51]  Stras’ praise of Butler suggests that he would seek to emulate similar qualities on the bench.

Overall Assessment

Had the Trump Administration pre-cleared Stras’ nomination with Sens. Klobuchar and Franken, his confirmation would be all but assured.  Not only does Stras have the requisite qualifications for the Eighth Circuit, his jurisprudence places him well within the mainstream of his future colleagues.  

Critics of Stras’ nomination will likely draw concern from his praise of Pierce Butler and his jurisprudence on economic liberty.  They could argue that, as a federal judge, Stras would seek to strike down economic and environmental regulations that he deemed violations of “liberty.”  However, there is nothing in Stras’ seven-year record on the Minnesota Supreme Court that suggests a hostility to government or regulation.  On the contrary, Stras’ tenure suggests that he, like Butler is a “judicial minimalist”, seeking to take the court out of policy debates and allow legislatures the freedom to legislate.

Now, Stras is still a judicial conservative, and many of his rulings will likely upset those with a more liberal view of the law.  Nonetheless, he is also likely to disappoint conservatives on the bench.  As a Minnesota Supreme Court justice, Stras frequently joined Justice Alan Page, one of the most liberal members of the court, in dissent against rulings by the conservative majority.  It would be unsurprising if, on the Eighth Circuit, Stras frequently voted with Judge Jane Kelly (the circuit’s sole liberal voice) in holding law enforcement accountable for violations of Fourth, Fifth, and Sixth Amendments.

In this sense, Stras is likely to emulate Justice Scalia, another conservative lion who nevertheless proved to be a criminal defendant’s best advocate on many cases.  If that is the case, the federal bench will be lucky to have him.


[1] Press Release, Office of Governor Tim Pawlenty, Governor Pawlenty Names Gildea Chief Justice, Appoints Stras to Supreme Court (May 13, 2010) (on file at https://www.leg.state.mn.us/docs/2010/other/101582/www.governor.state.mn.us/mediacenter/pressreleases/JudicialSelections/PROD009980.html).  

[2] See Eric Black, Pawlenty’s Supreme Court Picks Raise Sticky and Embarrassing Issues, MinnPost, May 14, 2010, https://www.minnpost.com/eric-black-ink/2010/05/pawlentys-supreme-court-picks-raise-sticky-and-embarrassing-issues. See also Peter S. Wattson, Unallotment Conflict in Minnesota 2009-2010, Senate Counsel, State of Minnesota, June 3, 2010, https://www.senate.mn/departments/scr/treatise/Unallotment/Unallotment_Conflict_in_Minnesota.pdf.

[3] Wendy Erlein, Election Results 2012: Voters Name Lorie Skjervein Gildea Minnesota Supreme Court Chief Justice, Maple Grove Patch, Nov. 8, 2012, https://patch.com/minnesota/maplegrove/election-results-2012-voters-choose-lorie-skjerven-gi0f19fe5885.

[4] Ricardo Lopez, Minnesota Justice David Stras on Trump Shortlist of Potential Supreme Court Picks, Minnesota Star Tribune, May 18, 2016, http://www.startribune.com/minnesota-justice-david-stras-on-trump-shortlist-of-potential-supreme-court-picks/379988881/.

[5] See Press Release, Office of Sen. Al Franken, Sen. Franken’s Statement on Trump Nomination of Minnesota Supreme Court Justice David Stras for the Eighth Circuit (May 8, 2017) (on file at https://www.franken.senate.gov/?p=press_release&id=3693). But see Scott Johnson, The Luger Lobby: Sen. Klobuchar Comments, Western Free Press, Apr. 10, 2017, http://www.westernfreepress.com/2017/04/10/the-luger-lobby-sen-klobuchar-comments/ (suggesting that Klobuchar was aware of Stras’ nomination in April 2017).

[6] See Minnesota Lawyer Staff, Minnesota Supreme Court, Seat 4: Stras v. Tingelstad, Minnesota Lawyer, Oct. 5, 2012, http://minnlawyer.com/2012/10/05/minnesota-supreme-court-seat-4-stras-v-tingelstad/.

[7] Court Opponents Don’t Agree on What Counts as Experience, The Bemidji Pioneer, Oct. 28, 2012, http://www.bemidjipioneer.com/content/court-opponents-don%E2%80%99t-agree-what-counts-experience.

[8] Wendy Erlein, Election Results 2012: Voters Name Lorie Skjervein Gildea Minnesota Supreme Court Chief Justice, Maple Grove Patch, Nov. 8, 2012, https://patch.com/minnesota/maplegrove/election-results-2012-voters-choose-lorie-skjerven-gi0f19fe5885.

[9] See Williams v. Geithner, Case No. 09-CV-1959 (Minn. 2009).

[10] See Bob Collins, On MN Supreme Court, Stras Found Unlikely Allies, Minnesota Pub. Radio, May 18, 2016, http://blogs.mprnews.org/newscut/2016/05/on-mn-supreme-court-david-stras-found-unlikely-allies/.

[11] Nose v. State of Minn., 845 N.W.2d 193 (Minn. 2014) (Stras, J., concurring).

[12] Bearder v. State of Minn. et al., 806 N.W.2d 766 (Minn. 2011).

[13] See id. at 784 (Stras, J., dissenting).

[14] See Bicking v. City of Minneapolis et al., 891 N.W.2d 304 (Minn. 2017) (Stras, J. dissenting) (arguing that the case before the court is nonjusticiable); In re Guardianship of Tschumy, 853 N.W.2d 728 (Minn. 2014) (Stras, J., dissenting) (stating that there was no case or controversy); Schober v. Comm’r of Revenue, 853 N.W.2d 102 (Minn. 2013) (Stras, J., dissenting) (arguing that the petition is untimely); Berkowitz v. Office of Appellate Cts., 826 N.W.2d 203 (Minn. 2013) (holding that the petition for relief is untimely; Carlton v. State, 816 N.W.2d 590 (Minn. 2012) (Stras, J., concurring) (expressing disagreement with the use of equitable tolling to revive untimely petitions for relief); State v. Ali, 806 N.W.2d 45 (Minn. 2011) (Stras, J., concurring) (expressing disagreement with the collateral order doctrine).

[15] Harbaugh v. Comm’r of Revenue, 830 N.W.2d 881, 885 (Minn. 2013) (internal citations omitted).

[16] State of Minn. v. Obeta, 796 N.W.2d 282 (Minn. 2011) (Stras, J., dissenting).

[17] See Sanchez v. State of Minn., 890 N.W.2d 716 (Minn. 2017); State v. McAllister, 862 N.W.2d 49 (Minn. 2015); State v. Lemert, 843 N.W.2d 227 (Minn. 2014); Ferguson v. State of Minn., 826 N.W.2d 808 (Minn. 2013); State v. Ortega, 813 N.W.2d 86 (Minn. 2012); State v. Brist, 812 N.W.2d 51 (Minn. 2012). See also State v. Beecroft, 813 N.W.2d 814 (Minn. 2012) (Stras, J., dissenting); State v. Rhoads, 813 N.W.2d 880 (Minn. 2012) (Stras, J. dissenting).  

[18] State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Page J. and Stras J., dissenting jointly).

[19] State v. Brooks, 838 N.W.2d 563, 573 (Minn. 2013) (Stras, J., dissenting). See also State v. Fawcett, 884 N.W.2d 380 (Minn. 2016) (Stras, J., dissenting) (stating that a search for alcohol and controlled substances in a blood test violates the Fourth Amendment when the warrant only mentions alcohol).

[20] Id. at 573-74 (internal citations omitted).

[21] State v. Ge Her, 862 N.W.2d 692 (Minn. 2015).

[22] State v. Osorio, 891 N.W.2d 620, 633-38 (Minn. 2017) (Hudson, J., dissenting).

[23] See, e.g., United States v. Sydnor, No. CR 16-21-ART-HAI-(2), 2017 WL 772341, at *6 (E.D. Ky. Feb. 28, 2017) (suppressing non-Mirandized statement as elicited in violation of the Fifth Amendment).

[24] State v. Rhoads, 813 N.W.2d 880 (Minn. 2012) (Stras, J. dissenting).  

[25] See State v. Beecroft, 813 N.W.2d 814 (Minn. 2012) (Stras, J., dissenting).

[26] See Hooper v. State, 838 N.W.2d 775 (Minn. 2013); State v. Hill, 801 N.W.2d 646 (Minn. 2011).

[27] See State v. Horst, 880 N.W.2d 24 (Minn 2016); Bobo v. State, 820 N.W.2d 511 (Minn. 2012) (Stras, J., concurring in part and dissenting in part); State v. Tanksley, 809 N.W.2d 706 (Minn. 2012). See also State v. Pass, 832 N.W.2d 836 (Minn. 2013) (reversing trial court exclusion of evidence as substantially prejudicial to defendant). But see Caldwell v. State, 853 N.W.2d 766 (Minn. 2014) (granting evidentiary hearing to defendant).

[28] See State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013); State v. Hayes, 826 N.W.2d 799 (Minn. 2013); State v. Hohenwald, 815 N.W.2d 823 (Minn. 2012). But see State v. Nelson, 842 N.W.2d 443 (Minn. 2014) (reversing conviction for insufficiency of the evidence).

[29] See Gail v. State, 888 N.W.2d 474 (Minn. 2016); Davis v. State, 880 N.W.2d 373 (Minn. 2016); Taylor v. State, 874 N.W.2d 429 (Minn. 2016); Wayne v. State, 870 N.W.2d 389 (Minn. 2015); Williams v. State, 869 N.W.2d 316 (Minn. 2015); Lussier v. State, 853 N.W.2d 149 (Minn. 2014); Wallace v. State, 820 N.W.2d 843 (Minn. 2012); Buckingham v. State, 799 N.W.2d 229 (Minn. 2011).

[30] See, e.g.,State v. Struzyk, 869 N.W.2d 280 (Minn. 2015) (Stras, J., concurring); State v. Kelly, 855 N.W.2d 269 (Minn. 2014) (Stras, J., concurring); State v. Koppi, 798 N.W.2d 358 (Minn. 2011).

[31] State v. Bernard, 859 N.W.2d 762, 764 (Minn. 2015).  

[32] See id. at 774 (Page, J., and Stras, J., jointly dissenting).

[33] See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

[34] See id. at 2187 (Sotomayor, J., concurring in part and dissenting in part).

[35] David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Texas L. Rev. 947 (2007).

[36] Timothy R. Johnson, David R. Stras, and Ryan C. Black, Advice from the Bench (Memo): Clerk Influence on Supreme Court Oral Arguments, 98 Marq. L. Rev. 21 (Fall 2014).

[37] David R. Stras, Keynote Address: Secret Agents: Using Law Clerks Effectively, 98 Marq. L. Rev. 151 (Fall 2014).

[38] See id. at 172.

[39] Chad Oldfather, Panel Discussion: Judges’ Perspective on Law Clerk Hiring, Utilization, and Influence, 98 Marq. L. Rev. 441 (Fall 2014).

[40] See id. at 464.

[41] David R. Stras and Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute”, 83 Wash. U. L. Q. 1397 (2005).

[42] See id. at 1424-25.

[43] See David R. Stras, The Incentives Approach to Judicial Retirement, 90 Minn. L. Rev. 1417 (May 2006); David R. Stras and Ryan W. Scott, An Empirical Analysis of Life Tenure: A Response to Professors Calabresi and Lindgren, 30 Harv. J. L. & Pub Pol’y 791 (Summer 2007).

[44] Federalist Society Transcript: Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Non-Renewable Terms?, 12 Barry L. Rev. 173 (Spring 2009).  

[45] Id. at

[46] David Stras, No Nukes, Nat’l Rev., Nov. 7, 2005, http://www.nationalreview.com/article/215882/no-nukes-david-stras.  

[47] David R. Stras, Pierce Butler: A Supreme Tactician, 62 Vand. L. Rev. 695, 717-720 (March 2009).

[48] See id. at 721 (citing Olmstead v. United States, 277 U.S. 438, 486-88 (1928) (Butler, J., dissenting)).

[49] See id. at 727 (citing Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936)).

[50] See id. at 728.

[51] Id. at 756.

Justice Joan L. Larsen – Nominee to the U.S. Court of Appeals for the Sixth Circuit

Justice Joan Larsen of the Michigan Supreme Court, has been on President Trump’s radar for a long time.  Over a year ago, Trump included Larsen among a list of 11 jurists he would consider for the vacancy on the U.S. Supreme Court.[1]  While Trump chose Neil Gorsuch for that vacancy, Larsen was tapped shortly after for a vacancy on the U.S. Court of Appeals for the Sixth Circuit.  While the White House may hope for a swift confirmation for Larsen, her conservative record, along with the lack of consultation with Michigan’s senators, may raise concerns.

Background

Joan Louise Larsen was born in Waterloo-Cedar Falls, Iowa in December 1968.  After getting a B.A. with Highest Honors at the University of Northern Iowa,[2] Larsen attended Northwestern University School of Law, graduating first in her class in 1993.  After graduating, Larsen clerked for Judge David Sentelle at the U.S. Court of Appeals for the D.C. Circuit, and then for Justice Antonin Scalia on the United States Supreme Court.  After her clerkship, Larsen returned to the Washington D.C. Office of Sidley Austin LLP (where she had summered as a law student).  

In 1998, Larsen left Sidley to join the faculty of the University of Michigan Law School.[3]  Other than a short sixteen month stint at the Office of Legal Counsel (OLC) at the U.S. Department of Justice, Larsen taught constitutional law and criminal procedure there until 2015.

In 2015, Larsen was selected by Michigan Governor Rick Snyder for an opening on the Michigan Supreme Court.[4]  Larsen’s appoint drew bipartisan support, but was opposed by the Michigan ACLU, who objected to Larsen’s role at OLC in the Bush Administration.[5]

In 2016, Larsen’s name was included on a list of 11 jurists that would be considered for the Supreme Court under the Trump Administration.[6]  While Larsen reportedly did not solicit the mention, she nonetheless recused herself from a challenge to Trump’s electoral win by Green Party candidate Dr. Jill Stein.[7]

On March 9, 2017, Larsen was contacted by the White House Counsel’s Office about a judicial appointment.  While she interviewed with White House Counsel Don McGahn, Larsen’s name did not come from Michigan’s senators, and was not pre-cleared with them.  Larsen was officially nominated on May 8.[8]

History of the Seat

Larsen has been nominated for a Michigan seat on the U.S. Court of Appeals for the Sixth Circuit vacated by Judge David McKeague.  McKeague, a Republican who was tapped for the U.S. District Court for the Western District of Michigan by President George H.W. Bush, and elevated to the Sixth Circuit by President George W. Bush in 2005, has indicated that he will move to senior status upon confirmation of a successor.  As such, the seat will not open on the court until Larsen’s confirmation.

Political Activity

Michigan Supreme Court justices are elected in statewide elections to 8-year terms.  Even though these elections are ostensibly nonpartisan, the candidates are still nominated by political parties.  After Larsen’s appointment to the Michigan Supreme Court, she was nominated by the Michigan Republican Party to run for a full term on the court.[9]

During her campaign, Larsen described herself as a “Constitutional, rule of law judge.”  In campaign ads, Larsen emphasized her commitment to “equal justice for all.”  At the same time, Larsen’s supporters including the Chamber of Commerce described her and fellow Justice David Viviano as “not the kind of judges who will let people off on a technicality, implying that Larsen would be unwilling to overturn convictions even if they were obtained through police and prosecutorial misconduct.  In the 2016 general election, Larsen defeated Deborah Thomas, a judge in Michigan’s Third Circuit Court (and the Democratic nominee), winning 58% of the vote, performing significantly worse than fellow Justice David Viviano.[10]

Other than her own campaign for the Michigan Supreme Court, Larsen has scant experience with electoral politics.  In 1996, Larsen drafted and edited policy papers for the presidential campaign of then-Sen. Bob Dole.  In 2012, Larsen made a $500 contribution to Republican presidential candidate Mitt Romney, her only political contribution of record.

Legal Experience

Larsen has spent the vast majority of her legal career either in academia or on the bench.  Nevertheless, her short tenure in the practice of law (including two years at Sidley Austin and one year at OLC) suggests a conservative legal philosophy.

As an associate at Sidley Austin, Larsen was part of the trial team representing Glendale Federal Bank in a breach of contract case against the federal government.  Larsen helped formulate the theory of damages that secured a $381 million judgment for her client.[11]  Larsen also defended the manager of a meat-packing plant who was accused of discharging pollutants into federal waterways.[12]

From 2002 to 2003, Larsen worked as a Deputy Assistant Attorney General at OLC, essentially advising the Bush White House on the legality of its actions.  During Larsen’s tenure, OLC, under the leadership of then-head John Yoo, released a series of controversial memoranda arguing that the use of waterboarding on terror suspects did not violate the law.[13]  While Larsen has insisted that she was not involved in the drafting of those documents, the ACLU claims that she is the author of a classified memo on habeas corpus rights, and may be involved in more high profile discussions.[14]  As of May 2016, the memo authored by Larsen remains classified and has not been released.[15]

Jurisprudence

Larsen has served on the Michigan Supreme Court for approximately two years, hearing appeals from the Michigan lower courts, and serving as the final voice on Michigan state law. During her tenure, Larsen has written only six opinions.  They are outlined below:

In re Application of Consumers Energy Co. – Michigan state law permits businesses to recover the costs of purchasing pollutant allowances if the purchases were prompted by state law changes prior to October 6, 2008.  In this case, the plaintiffs sought to recover the costs of purchasing nitrous oxide allowances from the Michigan Public Service Commission.[16]  While a majority of the Michigan Supreme Court found that state law barred recovery, Larsen, joined by Justice David Viviano, dissented.  Larsen argued that, while the regulations in question were passed before the October 6 deadline, the extended timeline of implementing such regulations meant that the regulations would not come into effect until after that date.  As such, Larsen stated that the plaintiffs should be allowed to recover the costs of the allowances.[17]

People v. Seewald – This case involved a challenge to the conspiracy conviction of two campaign workers for former Rep. Thaddeus McCotter (R-MI).  The question was whether the defendants, who had agreed to falsely sign nominating petitions as “circulators” had committed “conspiracy” under the Michigan statute.  While the Court of Appeals found for the defendants, Larsen, writing for the unanimous Supreme Court, reversed, finding that the Michigan conspiracy statute covered the defendants’ conduct.[18]

Hodge v. State Farm Mut. Auto. Ins. Co. – This case asked whether Michigan district courts, which have subject matter jurisdictions over all civil cases involving less than $25000 in damages, have jurisdiction over a suit where the initial complaint alleges $25000 in damages, but the evidence in trial establishes greater damages.  Writing for a unanimous court, Larsen held that trial evidence of damages that exceed the jurisdictional limit does not divest a district court of jurisdiction over a civil case.[19]  Rather, Larsen found that jurisdiction is determined by the initial good-faith allegation of damages in the complaint.[20]

Arbuckle v. General Motors, LLC. – This case involved the coordination of workers’ compensation benefits and disability payments by General Motors in a way that allowed offsetting the benefits.  Larsen wrote for a unanimous court in finding that such coordination was permitted under Michigan law.[21]

Yono v. Dep’t of Transportation – The key question in this case was whether the government could be held liable for an injury that occurred on a parallel parking lane on a highway.  Larsen, writing for a 4-3 majority on the court, found that a parallel parking lane could not be considered “designed for vehicular travel” under the highway exception to the Governmental Tort Liability Act.[22]  As such, Larsen held that the government was immune against the plaintiff’s suit.[23]  In dissent, Justice Bridget McCormack argued that parking is necessarily part of “vehicular travel” and that, as such, the highway exception to governmental immunity did apply.[24]

In re Hicks – This case involved a challenge to the termination of the intellectually disabled plaintiff’s parental rights.  Writing for a unanimous court, Larsen found that the trial court had failed to consider the plaintiff’s intellectual disability in determining whether the termination was appropriate.[25]

In addition to the opinions she authored, the opinions Larsen has joined suggest a willingness to rule against plaintiffs[26] and criminal defendants.[27]  For example, in Hecht v. Nat’l Heritage Acads., Larsen joined an opinion by Chief Justice Robert Young vacating a grant of damages to a white teacher who was terminated based on racial bias.[28]  In Covenant Medical Center v. State Farm, Larsen joined Justice Brian Zahra in holding that healthcare providers couldn’t sue no-fault insurers for PIP benefits.[29]  In dissent, Justice Richard Bernstein argued that the majority’s reading contradicted the “plain language of the statute.”[30]

However, Larsen has also joined opinions that achieve more liberal outcomes.  For example, in Associated Builders & Contractors v. City of Lansing, Larsen joined Young’s opinion rejecting a challenge to Lansing’s minimum wage ordinance.[31]  In another case, Larsen joined a 5-2 majority on the court in holding that prosecutors were statutorily barred from using false statements made by police officers in an internal investigation to later prosecute those officers.[32]  In dissent, Justice Steven Markman argued that the majority’s reading of Michigan law goes against the “obvious purpose of the statute.”[33]

Speeches and Writings

As a prominent academic, Larsen has written extensively on constitutional structure, civil rights, and other areas of law.  One of her earliest articles, her law review note at Northwestern, explores the bar on using specific acts to show propensity in criminal cases.[34]  Specifically, Larsen argues that the bar should only be applied against evidence presented by the prosecution, and that barring the use of specific act evidence by a defendant prejudices a their ability to present a complete defense.[35]

In her writings, Larsen has generally been an advocate of expansive presidential powers. Notably, Larsen co-authored a paper on the Incompatibility Clause of the U.S. Constitution.[36]  Larsen and co-author Prof. Steven Calabresi argued that this clause was an essential guard of presidential power and prerogatives.[37]  Eliminating the clause would, Larsen wrote, “result in a fusion of the executive and legislative powers, with the Congress-filled Cabinet controlling the President’s exercise of his constitutionally granted powers.”[38]

Similarly, in an op-ed with the Detroit News, Larsen defended the use of presidential signing statements.[39]  Specifically, Larsen noted that signing statements (statements issued by the executive that “clarify” the scope of the law being signed) represent “the president’s independent vision of what the Constitution requires.”[40]  Larsen specifically brings up President Bush’s signing statement attached to a 2006 anti-torture bill.  She notes that the statement essentially says: “if the circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute.”[41]  Larsen’s endorsement of the use of signing statements in such a context reinforces her broad view of presidential powers and prerogatives.

Additionally, many of Larsen’s writings show an endorsement of originalism as the primary source of constitutional interpretation.  Originalism, or the theory that the constitution should be interpreted in accordance with the original meaning of the text, has drawn much criticism by liberal legal scholars.[42]  Nevertheless, Larsen frequently employs originalism as a tool for constitutional interpretation.[43]

Overall Assessment

Like most other appellate nominations made by the Trump Administration, Larsen is both young and judicially conservative.  Unfortunately for Larsen, these same factors make it likely that Democrats will look at her nomination with skepticism.

For critics of Larsen’s nomination, the best argument is procedural.  In nominating Larsen, the Trump Administration ignored decades of precedent and failed to consult with Michigan senators.  As such, Sen. Debbie Stabenow and Sen. Gary Peters are well within their rights to refuse to return blue slips and demand that the Administration engage in good faith consultations.  However, if blue slips are returned, Larsen’s thin paper trail will make it difficult to create a compelling case against her confirmation.

Larsen’s expansive views on presidential power are also likely to raise concerns among senators.  Her 2006 op-ed, and her statement that the president could claim to protect the nation by violating the law would raise concerns among those who favor a limited executive.

Additionally, with the emoluments clause suits proceeding against President Trump, senators may also raise Larsen’s writings on the related incompatibility clause.  Furthermore, some senators may raise Larsen’s votes in Yono and Hecht to suggest that she is biased against civil plaintiffs, although others will likely use her vote for the city in Associated Builders to point out her neutrality.

Overall, it is fairly clear that Larsen has both the intellectual heft and the requisite qualifications to serve on the judiciary.  The key question is whether her ideology would make her a result-oriented jurist.  If senators can answer that question in the negative, there is no reason to oppose her nomination. 


[1] Dara Lind and Dylan Matthews, Your Guide to President Donald Trump’s Supreme Court Shortlist, Vox, May 19, 2016, https://www.vox.com/2016/5/18/11703416/trump-supreme-court-shortlist.

[2] As a college student, Larsen stuffed envelopes and made phone calls for the presidential campaign of then-Senator Joe Biden.

[3] She also spent a semester as a visiting professor at Northwestern University Law School.

[4] Paul Egan, Snyder Appoints Joan Larsen to Supreme Court, Detroit Free Press, Sept. 30, 2015, http://www.freep.com/story/news/local/michigan/2015/09/30/snyder-appoints-joan-larsen-supreme-court/73079114/.

[5] See id.

[6] Lind, supra n.1.

[7] Kathleen Gray, Michigan Supreme Court Justices Recuse Themselves from Recount Case, Detroit Free Press, Dec. 9, 2016, http://www.freep.com/story/news/politics/2016/12/09/michigan-supreme-court-recount/95194974/.

[8] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[9] Emily Lawlor, See Democratic and Republican Candidates for Supreme Court, University Boards, MLive.com, Aug. 28, 2016, http://www.mlive.com/news/index.ssf/2016/08/see_democratic_and_republican.html.

[10] Michael Gerstein, Viviano, Larsen Win Re-Election to Mich. Supreme Court, The Detroit News, Nov. 8, 2016, http://www.detroitnews.com/story/news/politics/elections/2016/11/08/michigan-supreme-court-results/93501312/.

[11] Glendale Federal Bank v. United States, 43 Fed. Cl. 390 (1999).

[12] See United States v. Sinskey, 4:96-cr-40010-LLP-1 (D.S.D. 1996), aff’d 119 F.3d 712 (8th Cir. 1997).

[13] See Lind, supra n. 1.

[14] Rick Pluta, UM Law Professor Joan Larsen Named to Michgan [sic] Supreme Court”, WDET, Oct. 1, 2015, http://wdet.org/posts/2015/10/01/81659-um-law-professor-joan-larsen-named-to-michgan-supreme-court/.

[15] See Lind, supra n. 1.

[16] See In re Application of Consumers Energy Co., 876 N.W.2d 566 (Mich. 2016).

[17] See id. (Larsen, J., dissenting).

[18] People v. Seewald, 879 N.W.2d 237, 242 (Mich. 2016).

[19] Hodge v. State Farm Mut. Auto. Ins. Co., 884 N.W.2d 238 (Mich 2016).

[20] See id. at 239.

[21] Arbuckle v. General Motors, LLC., 885 N.W.2d 232 (Mich. 2016).

[22] Yono v. Dept’ of Transp., 885 N.W.2d 445 (Mich 2016).

[23] See id. at 456.

[24] See id. at 458-59 (McCormack, J., dissenting).

[25] In re Hicks, 893 N.W.2d 637 (Mich. 2017).

[26] See Deacon v. Pandora, 885 N.W.2d 628 (Mich. 2016) (holding that plaintiff did not constitute a “customer” of Pandora’s for the purpose of seeking damages for publicly disclosing his personal information).

[27] See People v. Hall, 884 N.W.2d 561 (Mich 2016) (holding that a defendant who forged signatures on a nominating petition, could be charged with felony forgery).

[28] Hecht v. Nat’l Heritage Acads, 886 N.W.2d 135 (Mich. 2016).

[29] Covenant Med Cntr. v. State Farm Mut. Auto. Ins. Co., __ N.W.2d __ (Mich. 2017) (No. 152758).

[30] Id. at *28 (Bernstein, J., dissenting).

[31] Assoc. Builders & Contractors v. City of Lansing, 880 N.W.2d 765 (Mich. 2016).

[32] People v. Harris, 885 N.W.2d 832 (Mich 2016).  

[33] See id. at 860 (Markman, J., concurring in part and dissenting in part).

[34] Joan Larsen, Of Propensity, Prejudice, and Plain Meaning: The Accused’s Use of Exculpatory Specific Acts Evidence and the Need to Amend Rule 404(b), 87 NW. U. L. Rev. 651 (1993).  

[35] See id. at 690.

[36] Article I, Section 6, Clause 2 prohibits individuals from serving simultaneously in the executive and the legislative branches.

[37] Steven G. Calabresi and Joan Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 Cornell L. Rev. 1045 (1994).

[38] Id. at 1118.

[39] Joan Larsen, Bar Group is Wrong, Presidents can Interpret Laws They Sign, Detroit News, Sept. 13, 2006, https://www.law.umich.edu/newsandinfo/pdf/Documents/06_09_september_bargroup.pdf.

[40] Id.

[41] Id.

[42] See, e.g., Nina Totenberg, Justice Breyer: The Case Against ‘Originalists’, Nat’l Pub. Radio, Sept. 30, 2005, http://www.npr.org/templates/story/story.php?storyId=4930456.

[43] See, e.g., Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010), Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1309-16 (2004).  

Professor Amy Coney Barrett – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The Seventh Circuit is known for attracting academics.  Three of its most prominent judges, Richard Posner, Frank Easterbrook, and Diane Wood, served as law professors before being elevated to the bench.  If confirmed, Prof. Amy Coney Barrett will continue that trend.

History of the Seat

Barrett has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened in February 2015 with the retirement of Judge John Daniel Tinder.[1]  Even though Tinder’s plans were leaked almost a year before his actual retirement,[2] the Obama Administration did not submit a nominee to the Senate until January 2016, when Myra Selby, a former justice on the Indiana Supreme Court, was nominated.[3] 

While Selby’s nomination was strongly supported by Sen. Joe Donnelly (D-IN), Sen. Dan Coats (R-IN) opposed the nomination, arguing that the nominee should be selected by a bipartisan commission for the state.[4]  With Coats declining to return a blue slip, the Senate Judiciary Committee did not take any action on Selby’s nomination, and it was returned unconfirmed at the end of the 114th Congress.  As such, the vacancy was left open for Trump to fill.

Background

Barrett was born as Amy Vivian Coney on Jan. 28, 1972 in New Orleans, Louisiana.  After getting a B.A. from Rhodes College, Barrett attended Notre Dame Law School, where she was executive editor of the Notre Dame Law Review.  After graudating from law school, Barrett clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and obtained a prestigious Supreme Court clerkship with Justice Antonin Scalia.  

After her clerkship, Barrett joined the D.C. office of Miller, Cassidy, Larocca & Lewin LLP, which merged into Baker Botts LLP.  While at Baker, Barrett was a part of the legal team representing then-Governor George W. Bush in Bush v. Gore.  

As an attorney at Baker, Barrett started working as an adjunct faculty member at the George Washington University Law School, co-teaching a class with fellow Baker attorney John Elwood (himself a distinguished Supreme Court practitioner).  Shortly after, Barrett joined the Law School as a John H. Olin Fellow in Law.  In 2002, Barrett moved to become a Professor of Law at Notre Dame Law School, her alma mater.  Other than a short stint as a Visiting Associate Professor of Law at the University of Virginia, Barrett has served at Notre Dame ever since.  

In February 2017, Barrett was contacted by the Office of Sen. Todd Young (R-IN), and asked about her interest in a Seventh Circuit opening.  After confirming her interest, Barrett completed an application, met with the Senator, the White House and the Department of Justice.[5]  On May 8, President Trump formally nominated Barrett to the Seventh Circuit.[6]

Legal Practice

Because Barrett has spent the vast majority of her professional life as a law professor, she has relatively little experience in litigation.  During her two years at Baker Botts, Barrett worked on cases in the trial and appellate courts, including the second-chairing of an accounting malpractice case in Virginia state court.[7]  As noted earlier, Barrett was also part of the legal team in Bush v. Gore.  

In 1999, Barrett assisted the appellate counsel for two individuals convicted of conspiracy to defraud several government agencies.[8]  Barrett, working with other attorneys, raised several challenges to the convictions and sentence, including challenges to the sufficiency of the evidence, and the jury instructions.  Ultimately, the Second Circuit affirmed the convictions and the sentences.[9]

In 2000, Barrett was part of the legal team representing the National Council of Resistance of Iran in challenging their designation as a “foreign terrorist organization” by the State Department.[10]  The D.C. Circuit sided with Barrett, holding that the designation violated the Council’s due process rights, reversing and remanding.[11]  The designation was eventually lifted by Secretary of State Hillary Clinton in 2012.[12]

Writings

As a law professor, Barrett has written exhaustively on a range of legal issues, often taking legal positions that call into question established legal doctrines.  For example, in one article, Barrett argues that the traditionally held view of the Supreme Court’s supervisory power over lower courts is flawed.[13]  In her confirmation, Barrett is particularly likely to face questions about her writings challenging the principle of stare decisis.

The legal doctrine of stare decisis is the foundation of a common law system.  The doctrine asks courts to generally follow the precedent made by previous courts, even where a judge may disagree with the previous outcome.  As Justice Louis Brandeis once noted, “it is more important that the applicable rule of law be settled than that it be settled right.”[14]  While stare decisis is not inflexible (Brandeis goes on to note that courts have an obligation to reverse incorrect constitutional rulings),[15] judges generally will follow rulings from previous panels, even where they might have ruled differently.[16]

For her part, Barrett has repeatedly questioned stare decisis, and whether the doctrine should be applied as broadly as it is.  In a 2013 article, Barrett argued that a weakened form of stare decisis in constitutional cases helps promote pluralism on the Supreme Court and mitigates disagreements.[17]

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process, posits that, in many instances, the application of stare decisis violates the due process rights of litigants, as it denies them the opportunity to litigate the merits of their own claim.[18]  Specifically, Barrett argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.[19]  Barrett notes that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.[20]  In other words, as Barrett notes, she suggests using precedent in a way analogous to the way it is used in civil law systems, as a “shortcut” in figuring out how to reach a decision.[21]

Barrett also questions stare decisis in the statutory context in a separate article, where she urges that the doctrine is “an ill fit in the inferior courts.”[22]

Overall Assessment

As an academic, Barrett is paid to push the envelope on legal thought and theory.  While this makes her a prolific and talented writer, it leaves little sign of how she would rule on the bench.  Barrett’s experience in litigation is fairly limited.  By her own admission, Barrett has never tried a case as first chair, never argued an appeal, and never been counsel of record in an appellate case.  This may cause critics to suggest that she is unqualified for the federal bench.

On the other hand, Barrett’s academic credentials are beyond question.  Her clerkships to two legal luminaries, Judge Silberman and Justice Scalia, are enough to put to rest any questions about her legal ability.  While she may lack litigation experience, the Seventh Circuit is full of former academics who have distinguished themselves on the bench.

A bigger question is Barrett’s commitment to following precedent that she disagrees with.  Given her repeated questioning of stare decisis, it is reasonable to expect Senators to explore her willingness to abide by it.  

Another point which may hurt Barrett is her likely status as a future Supreme Court nominee.  Barrett is young (only 45), a woman, and has impeccable academic credentials.  It remains to be seen if Democrats will attempt to handicap her ascent by attacking her appellate confirmation.  

Provided Barrett manages to allay concerns about her experience and her views on precedent, there is little reason to oppose her nomination.  In all likelihood, Barrett will avoid the fate of Myra Selby and be confirmed in due course to the Seventh Circuit.


[1] Dave Stafford, Tinder Departs 7th Circuit, The Indiana Lawyer, July 29, 2015, http://www.theindianalawyer.com/tinder-departs-7th-circuit/PARAMS/article/37799.

[2] Dave Stafford, Judge Tinder’s Retirement Plans Leaked, The Indiana Lawyer, Mar. 12, 2014, http://www.theindianalawyer.com/judge-tinders-retirement-plans-leaked/PARAMS/article/33639.  

[3] Press Release, White House Archives, President Obama Nominates Two to Serve on the United States Court of Appeals (January 12, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).  

[4] Press Release, Office of Sen. Dan Coats, Coats Responds to President’s Nominations for Indiana Judicial Vacancies (Jan. 12, 2016) (on file at www.legistorm.com).  

[5] There are no indications of any meetings or consultations with Sen. Joe Donnelly (D-IN).

[6] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Tassi Drywall Construction Co., Inc. v. Turner Jones & Assoc., P.C. et al., No. L190384 (Va. Cir. Ct.).

[8] United States v. Berger, 224 F.3d 107 (2d Cir. 2000).

[9] Id. at 111.

[10] Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001).

[11] Id.

[12] Shane Scott, Iranian Dissidents Convince U.S. to Drop Terrorist Label, N.Y. Times, Sept. 21, 2012, http://www.nytimes.com/2012/09/22/world/middleeast/iranian-opposition-group-mek-wins-removal-from-us-terrorist-list.html.

[13] Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006).

[14] Burnet v. Coronodo Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).

[15] Id. at 407.

[16] See, e.g., United States Inter. Revenue Serv. v. Osborne, 76 F.3d 306 (9th Cir. 1996).  

[17] Amy Coney Barrett, Symposium: Constitutional Foundation: Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1737 (2013).

[18] Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).

[19] See id. at 1035.

[20] Id. at 1074 (“To the extent, however, that precedent is well-established in a court of appeals, it is unlikely that many litigants would press for overruling it, even with a flexible system of stare decisis in place.”).

[21] Id. at 1069.

[22] Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 351 (2005).

Senate Invokes Cloture on Thapar’s Nomination

Today, the U.S. Senate invoked cloture on Judge Amul Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit.  The 52-48 vote was surprisingly close, with every Democrat voting against cloture.

Democrats’ unified opposition to Thapar is notable, as his record is not particularly extreme, and several mainstream legal groups, including the National Asian Pacific American Bar Association support his nomination.  If anything, Thapar’s record is more moderate than that of Justice Neil Gorsuch.  Yet, the four Democrats who supported cloture for Gorsuch all voted against Thapar.  Three factors may explain the unanimity:

  1. Thapar is Trump’s first lower court nomination.  By establishing firm opposition to him, Democrats are setting a baseline for their standards, refusing to vote for any nominee to Thapar’s right.
  2. Thapar is a prospective Supreme Court nominee if Justice Kennedy retires.  Voting against him unanimously gives Democratic Senators cover to reject Thapar if he is ever elevated.
  3. Thapar’s nomination has moved incredibly quickly.  He spent a mere five days on the Senate Executive Calendar before cloture was filed.  In contrast, during the Obama Administration, Republicans made even non-controversial Obama appointees wait months before a confirmation vote.  By voting no, Democrats are registering their opposition to the speed of Thapar’s confirmation.

At any rate, Thapar’s nomination can be compared to that of Judge David Hamilton, the first circuit court nominee President Obama sent to the Senate.  Hamilton, who had a relatively moderate profile, and strong support from Indiana Republicans, faced intense Republican opposition and accusations of being a judicial activist.  After languishing on the floor for over five months, Hamilton was confirmed with the support of just one Republican Senator (his home state Senator Richard Lugar).

Tomorrow, we will see if Thapar can manage even the one cross-party vote that Hamilton got.  Based on the vote today, I wouldn’t count on it.

Kevin C. Newsom – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Kevin Newsom, President Trump’s first nominee to the Eleventh Circuit, is a seasoned appellate litigator, seemingly universally respected, with extensive experience in diverse areas of law.  A longtime member of the Federalist Society, his confirmation would cement the somewhat evenly balanced Eleventh Circuit back onto a firm conservative footing.

Background

Kevin Christopher Newsom, born in 1972,[1] graduated first in his class from Samford University in 1994 before moving on Harvard Law School, where he graduated magna cum laude in 1997 and served on the Harvard Law Review.[2]  After law school, Newsom clerked for prominent conservative Judge Diarmuid O’Scannlain on the Ninth Circuit (1997-98).  Clerking for O’Scannlain, a “feeder judge” for the Supreme Court, led Newsom to a clerkship with Justice David Souter (2000-01).[3]  Newsom described working for Justice Souter—who is not known for his conservative views—as a “dream job,” and characterized his former boss as “blindingly brilliant.”[4]

After clerking for Justice Souter, Newsom stayed in DC doing appellate litigation for Covington & Burlington.  He chose Covington & Burlington because he wanted to become a law professor and had heard that the firm had “a strong reputation for sending its alumni into the teaching field.”[5]  But he became entranced with appellate law and after two years left the firm to take a position as Alabama’s Solicitor General in 2003.[6]  The man who hired him? Then-Alabama Attorney General—now Eleventh Circuit judge—William Pryor.[7]

In 2007, Newsom left the SG gig for Bradley Arant, where he remains as a partner today.[8]  Since his start at Bradley Arant, he has at various times served as an adjunct professor at Samford University’s Cumberland School of Law, Vanderbilt University Law School, and the Georgetown University Law Center.[9]

Newsom has been a member of the Federalist Society since 1999.[10]  He was President of the Birmingham Lawyers Chapter from 2012-2015, and since 2007 he has regularly presented at Society events and has been a member of the Executive Committee of the Society’s Federalism and Separation of Powers Practice Group.[11]  His fellow members on that committee include conservative legal luminaries such as Paul Clement, Greg Katsas, Eleventh Circuit Judge William Pryor, and fellow Trump nominee for the Eighth Circuit and current Minnesota Supreme Court Justice David Stras.[12]  Newsom has also been a member of the American Law Institute since 2006.[13]  Since 2011, he has served on the U.S. Judicial Conference’s Advisory Committee on Appellate Rules.[14]

 History of the Seat

The seat Newsom was tapped for has been open since the retirement of Judge Joel Dubina in 2013.[15]  Dubina, the father of Alabama Republican Representative Martha Roby, left the Circuit at a time of significant turnover, with four seats out of twelve open on the court.  While the Obama Administration appointed three judges to the Circuit, somewhat moderating its conservative tilt, Alabama Senators Richard Shelby and Jeff Sessions were unable to come to an agreement with the Obama Administration over a nominee for the Dubina vacancy.[16]

More than two years after the vacancy opened, Obama nominated Judge Abdul Kallon to fill the vacancy.[17]  While Kallon, a former Bradley Arant partner himself, had been confirmed as a federal district judge with Shelby and Sessions’s support, they refused to return blue slips for his elevation.[18]  With no blue slips, the Judiciary Committee took no action on Kallon’s nomination, and the seat was left unfilled during the Obama Administration.

Legal Career

As the Solicitor General for Alabama, Newsom argued many cases and participated in a number of filings before the U.S. Supreme Court.[19]  He was the counsel of record in an amicus filing on behalf of 25 states in a case challenging a three-drug lethal-injection protocol, Hill v. McDonough, 547 U.S. 573 (2006).  Hill had brought his claim under § 1983, but the Eleventh Circuit held that his § 1983 claim was the functional equivalent of a habeas petition, and because Hill had previously sought federal habeas relief, his new claim was barred as successive under 28 U.S.C. § 2244.[20]  In his amicus brief for the various States, Newsom endorsed this view and further made the case that “[e]leventh-hour litigation like Hill’s fatally frustrates” the States’ “ability to carry out duly-adjudicated death sentences in a timely manner.”[21]  Permitting “all manner of execution-related challenges to proceed via §1983,” Newsom contended, would come “at the cost of the finality interests that the federal habeas corpus statute is designed to protect.”[22]  To illustrate his concerns, Newsom related the story of former Alabama prisoner David Lee Nelson, who—as told by Newsom—manipulated the Supreme Court into granting him continued litigation on his claims.[23]  Newsom argued Alabama’s position in Nelson’s appeal,[24] and in Newsom’s view, permitting Hill to challenge the execution protocol under § 1983 would compound the supposed flaw in the Supreme Court’s treatment of Nelson.[25]

In its opinion, the Supreme Court unanimously reversed the Eleventh Circuit.[26]  Although the Court stated that “the State and the victims of crime have an important interest in the timely enforcement of a sentence” and that “courts should not tolerate abusive litigation tactics,” the Court unanimously rejected Newsom’s arguments, as well as those by the respondents and the federal government (as amicus), as inconsistent with the Federal Rules of Civil Procedure and the court’s precedent.[27]  In Hill’s case, Newsom’s fear about further protracted litigation did not come to fruition.   The Supreme Court’s reversing opinion—in which it noted that it was not ruling on the “equities and the merits of Hill’s underlying action”—was handed down on June 12, 2006.[28]  Three months later, on September 20, 2006—following several more opinions from the district court and Eleventh Circuit[29]—Hill was executed.[30]

Newsom, again as Alabama’s SG, also defended against a constitutional challenge to Alabama’s statutory ban on the distribution of sex toys.[31]  (Disclosure: The ACLU, for whom I work, was opposing counsel in the case.) The Eleventh Circuit, in several opinions (the Williams cases), addressed the question whether the ban could survive Supreme Court precedent—including, ultimately, Lawrence v. Texas, 539 U.S. 558 (2003)—holding that it did.[32]  Newsom’s position, accepted by the court, was—in the court’s words—that “public morality remains a legitimate rational basis for the challenged legislation even after Lawrence.”[33]  A decade later, however, the Eleventh Circuit has granted rehearing en banc in another case on the question whether one of the Williams cases is still good law and whether a Georgia municipality’s ban on the sale of sex toys is constitutional.[34]  Although the specific Williams case in question is not the one in which Newsom was counsel, the broader constitutional inquiry that the court will address directly implicates the case in which he was involved as well.[35]  Oral argument in that case will be held on June 6, 2017.[36]

Finally, Newsom also argued for Alabama in a case concerning preclearance under the Voting Rights Act, Riley v. Kennedy, 553 U.S. 406 (2008).  There, Alabama—a “covered” jurisdiction under the VRA, meaning it must obtain “preclearance” from the U.S. DOJ before changing voting procedures—sought to reinstate a prior voting practice following the Alabama Supreme Court’s conclusion that a newer practice was unconstitutional.[37]  Newsom successfully contended that Alabama’s return to its prior practice did not qualify as a change requiring preclearance—Justice Ginsburg wrote the 7-2 opinion in Alabama’s favor.[38]  Justice Stevens, along with Newsom’s former boss, Justice Souter, dissented.[39]

Writings

Newsom has received some scholarly attention for an article he published in the Yale Law Journal while working as an associate at Covington & Burling: “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases.”[40]  In that article, which he developed while serving as a research assistant on Professor Laurence Tribe’s constitutional law treatise,[41] Newsom takes on the Fourteenth Amendment’s Privileges or Immunities Clause, arguing that the conventional scholarly interpretation of the Slaughter-House Cases is mistaken.  While many commentators believe the Clause incorporates most or all of the protections of the Bill of Rights against the states and that the Slaughter-House Cases were therefore wrongly decided, Newsom agrees with former and disagrees with the latter, instead arguing that the Cases are consistent with an incorporationist interpretation of the Clause.

In reaching this conclusion, Newsom offers his views on the doctrine of substantive due process, stating that his interpretation “would permit courts to lay aside the historically confused and semantically untenable doctrine of ‘substantive due process,’ a doctrine that has for years visited suspicion and disrepute on the judiciary’s attempt to protect even textually specified constitutional freedoms, such as those set out in the Bill of Rights, against state interference.”  Although he states that his primary concern about what his interpretation of Slaughter-House means for substantive-due-process doctrine is the protection of “substantive Bill of Rights freedoms” (such as the freedom of speech), purportedly leaving “for another day” what his reinterpretation means for the “more controversial branch of substantive due process”—“the protection of unenumerated rights against state interference”—he nevertheless makes plain those views as well: (1) substantive due process is inconsistent with the constitutional text; (2) it is inconsistent with the intent of the framers of the Fourteenth Amendment; (3) because of those reasons, reliance on the doctrine undermines the integrity of the Supreme Court and the “institution of judicial review”; and (4) the doctrine can be traced to the Dred Scott decision and therefore suffers a “pedigree” problem.  On this latter point, Newsom offers his advice to judges: “courts invoking substantive due process—the idea of grounding protection for a substantive right in what is, by all accounts, a purely procedural provision—would do well to remember that all roads lead first to Roe, then on to Lochner, and ultimately to Dred Scott.”  Presumably, this statement is intended to suggest that all three decisions—not simply Dred Scott and Lochner, but also Roe—were wrongly decided.

Newsom’s views on substantive due process put him at odds with current Supreme Court caselaw—which obviously recognizes the existence of substantive-due-process doctrine—but it does not place him out of the conservative mainstream, which has long challenged Roe in particular and substantive due process more generally.  Notably, his potential future colleague on the Eleventh Circuit—should Newsom be confirmed—is Judge William Pryor, who called Roe the “worst abomination in the history of constitutional law.”[42]  (Judge Pryor was initially filibustered by Senate Democrats and was installed as a circuit-court judge by President George W. Bush through a recess appointment.[43])  Newson’s apparent wholesale rejection of substantive due process is also shared by at least one member of the current U.S. Supreme Court—Justice Clarence Thomas.  Justice Thomas was confirmed in 1991 by a narrow margin and in a confirmation environment that was much more forgiving than today’s.  Given the change in environment and Justice Thomas’s willingness to overturn otherwise settled law in a variety of areas “in an appropriate case”[44]—including in the area of substantive due process[45]—it is not clear that he could be reconfirmed today.  What this means with someone of Newsom’s specific views on substantive due process is unclear, but given that Newsom is not being nominated for the Supreme Court but for Eleventh Circuit, he would not be in a position—for the moment, at least—to overturn Supreme Court caselaw in that or in any other area.  At most, he will be in a position to narrowly interpret or distinguish such cases.  This is true of any other judge on the court, but it is not insignificant, particularly given his assertion that “courts invoking substantive due process … would do well to remember that all roads lead first to Roe….”  This advice was not directed solely at the Supreme Court but rather courts, plural—presumably including the court to which he has been nominated.  The statement seems to suggest that all courts should consider the putative illegitimacy of Roe when addressing claims involving the doctrine of substantive due process.

Such a statement is at odds with Supreme Court precedent, which not only reaffirmed Roe in 1992 (Casey[46]) but relied on it as recently as 2016 (Whole Woman’s Health[47]).  Perhaps this interpretation of Newsom’s writing accurately reflects his views as a recent law school graduate, but there does not appear to be any publicly available indication that he would in bad faith resist the application of Supreme Court caselaw with which he disagrees.  When I asked former Alabama Solicitor General John Neiman for his own view on Newsom’s nomination, he replied, “[h]e is a great pick and extremely qualified.”

Overall Assessment

On paper, Kevin Newsom is an eminently qualified nominee for the Eleventh Circuit. His views on substantive due process, however, while not out of step in the community of conservative legal superstars through which he moves, are inconsistent with current caselaw, and his apparent views on Roe in particular could draw significant concern from some quarters. Nevertheless, I believe that Newsom is a highly qualified pick for the President.


[1] Kevin Newsom, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[9] Kevin Newsom, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[10] Kevin Newsom, Questionnaire for Judicial Nominees at 6, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[11] Id.

[13] Kevin Newsom, Questionnaire for Judicial Nominees at 6, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[14] Kevin Newsom, Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[15] Dottie Perry, Exodus from 11th Circuit Presents a Ripe Opportunity…That Will Likely Rot, The Legal Examiner Mobile, Aug. 26, 2013, http://mobile.legalexaminer.com/miscellaneous/exodus-from-11th-circuit-presents-a-ripe-opportunity-that-will-likely-rot/.

[16] Mary Troyan, Shelby Blames White House for Lack of Judges, Montgomery Adviser, Sept. 21, 2015, http://www.montgomeryadvertiser.com/story/news/2015/09/22/shelby-blames-white-house-lack-judges/72604440/.

[17] Mary Troyan, Obama Appoints Judge Abdul Kallon to 11th Circuit, Montgomery Adviser, Feb. 11, 2016, http://www.greenvilleonline.com/story/news/2016/02/11/obama-appoints-judge-abdul-kallon-11th-circuit/80253358/.

[18] Id.

[19] Kevin Newsom, Questionnaire for Judicial Nominees at 26-28, https://www.judiciary.senate.gov/imo/media/doc/Newsom%20SJQ.pdf.

[20] Hill v. McDonough, 547 U.S. 573, 576 (2006).

[24] See Nelson v. Campbell, 541 U.S. 637 (2004).

[26] Hill v. McDonough, 547 U.S. 573 (2006).

[27] Id. at 582-83.

[28] Id. at 585.

[29] Hill v. McDonough, 462 F.3d 1313 (11th Cir. 2006); Hill v. McDonough, No. 4:06-CV-032-SPM, 2006 WL 2556938 (N.D. Fla. Sept. 1, 2006); Hill v. McDonough, No. 4:06-CV-032-SPM, 2006 WL 2598002 (N.D. Fla. Sept. 11, 2006); Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006); see also Hill v. McDonough, 548 U.S. 940 (2006).

[30] Florida prisoner executed after court rejects cruelty claim, https://www.theguardian.com/world/2006/sep/21/usa.edpilkington.

[31] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[32] See id. at 1318-19; see also Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[33] Williams v. Morgan, 478 F.3d 1316, 1318 (11th Cir. 2007).

[35] See id.

[36] Id.

[37] See Riley v. Kennedy, 553 U.S. 406, 411-12 (2008).

[38] Id. at 411, 421-22.

[39] Id. at 429.

[40] Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000).

[41] Bryan H. Wildenthal, How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism, 23 T. Jefferson L. Rev. 241, 244 n.11 (2001).

[44] E.g., Shepard v. United States, 544 U.S. 13, 28 (2005) (Thomas, J., concurring).

[45] E.g., McDonald v. City of Chicago, Ill., 561 U.S. 742, 811-13 (2010) (Thomas, J., concurring in part and concurring in the judgment).

[46] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).

[47] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).