Mark Bennett – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Experienced Hawaii litigator Mark Bennett is an unusual nominee from the Trump Administration in one key aspect: his age.  While the Trump Administration has generally chosen judges in their 40s and 50s for the appellate bench, Bennett is 65 years old.  Not only is he the oldest of all of Trump’s appellate nominees by far, he is also older than 80% of Obama’s appellate picks.  In fact, in the last thirty years, just two appellate judges have been chosen at an older age than Bennett.  Nevertheless, Bennett’s age, experience and general moderation make him an acceptable nominee for Hawaii’s Democratic home-state Senators, leading to an easier confirmation.

Background

Mark Jeremy Bennett was born on February 24, 1953 in Brooklyn, NY.  After getting a B.A. summa cum laude from Union College in Schenectady, NY in 1976, Bennett received a J.D. magna cum laude from Cornell Law School in 1979.[1]  He then clerked for Judge Samuel King on the U.S. District Court for the District of Hawaii.[2]

After his clerkship and a brief period of self-employment, Bennett joined the U.S. Attorney’s Office for the District of Columbia as an Assistant U.S. Attorney.[3]  Two years later, he moved to Hawaii to be a federal prosecutor at the U.S. Attorney’s Office for the District of Hawaii, staying there for seven years.[4]

In 1990, Bennett joined McCorriston Miller Mukai MacKinnon LLP. as Of Counsel, becoming a Partner in 1991.[5]  While serving as a Partner, Bennett served as a Special Prosecuting Attorney for the City of Honolulu and as Special Deputy Attorney General in the Hawaii Attorney General’s office.[6]

In 2003, the newly elected Republican Governor Linda Lingle chose Bennett to be Hawaii’s new Attorney General.[7]  Bennett was confirmed by the Democratic State Senate and served as Hawaii’s chief legal and law enforcement officer throughout the eight years Lingle was in office.

In 2011, after the election of Democrat Neil Abercrombie to the Governorship, Bennett joined the Hawaii law firm Starn, O’Toole, Marcus & Fisher as a Director.[8]  He serves in that capacity to this day.

History of the Seat

Bennett has been nominated for a Hawaii seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with Judge Richard Clifton’s move to senior status.

Bennett’s name was proposed for the Ninth Circuit by Hawaii Senators Mazie Hirono and Brian Schatz, both Democrats, who reached out to Bennett in mid-2017.[9]  In November 2017, Bennett interviewed with the White House Counsel’s Office and was formally nominated on February 15, 2018.[10]

Political Activity

Bennett has a long history of involvement with the Republican Party of Hawaii, including serving as the Party’s counsel in 2001-02.[11]  Bennett also volunteered on Lingle’s gubernatorial campaigns in 2002 and 2006, as well as supporting Republican James Aiona’s gubernatorial campaign in 2010.[12]  Bennett also supported Lingle in her 2012 Senate bid against Hirono.[13]

Additionally, Bennett has also been a generous donor to the Republican Party of Hawaii, donating almost $5000 over the years, including $400 in October 2017, after his name had been proposed for a federal judgeship but before the formal vetting process had begun.[14]  Bennett has also donated to support Lingle, former U.S. Senator Kelly Ayotte and Hawaii State Legislator Cynthia Thielen, all Republicans.[15]  On the flip side, Bennett financially supported Rep. Colleen Hanabusa (a Democrat) in her primary challenge to Schatz in 2014.[16]

Legal Career

After his clerkship, Bennett spent ten years working as a federal prosecutor in D.C. and Hawaii.  In these roles, Bennett handled both criminal and civil cases, handling prosecutions at the trial level, and defending convictions on appeal.  In 1990, he joined the Honolulu office of McCorriston Miller Mukai MacKinnon LLP, working in complex civil litigation.  While at the firm, Bennett represented Texaco in defending against a $2 billion antitrust case brought by Democratic Governor Benjamin Cayetano.[17]

From 2002 to 2010, Bennett served as the Attorney General of Hawaii (his work as Attorney General is summarized in the next section).  He left the office in early 2011 to join Starn, O’Toole, Marcus & Fisher, working in complex civil litigation.  Among his most important work at the firm, Bennett defended the University of Hawaii against suits by students alleging data breaches, successfully settling the case.[18]  He also represented the Hawaii legislature as amicus before the Hawaii Supreme Court.[19]

While at Starn O’Toole, Bennett also worked as an arbitrator and mediator, requiring him to judge and resolve complex disputes.  Over the last seven years, Bennett has served as an arbitrator in four cases and as a mediator in six.[20]

Attorney General of Hawaii

From 2002 to 2010, Bennett served as Attorney General for the State of Hawaii, an appointed position.  In this role, Bennett defended state laws and policies against litigation, as well as taking on affirmative criminal and civil actions against individuals and corporations.  We summarize some of the legal positions Bennett took as Attorney General.

Gun Control

In 2008, the U.S. Supreme Court struck down the District of Columbia’s ban on ownership of handguns, finding an individual right to bear arms in the Second Amendment of the U.S. Constitution.[21]  When the case was being argued, state attorneys general of both parties weighed in both in favor of and against the D.C. ban.[22]  While 31 attorneys general weighed in against the ban, five, including Bennett, signed onto a brief supporting it.[23]  Speaking about the case, Bennett noted:

“We think that a decision that the Second Amendment prohibits strict gun-control laws is just wrong.”[24]

Notably, at the time of the suit, Hawaii had some of the strictest gun control laws in the country.[25]

Takings

In 2005, Bennett argued Lingle v. Chevron before the Supreme Court.  The case involved a challenge by Chevron to a Hawaii law that limited the rent that Chevron could charge to independent gasoline dealers leasing their stations.  After the Ninth Circuit struck down the law as an unconstitutional “taking” of Chevron’s property, Bennett defended the law in oral arguments before the Supreme Court.[26]  The Supreme Court unanimously held for Hawaii and Bennett’s position, arguing that state economic regulation did not necessarily constitute a “taking” even where it did not advance a legitimate state interest.[27]

LGBT Rights in Hawaii Prisons

In the mid-2000s, the Department of Justice filed a civil rights suit against the State of Hawaii on behalf of three LGBT inmates who faced harassment and abuse from prison staff.[28]  Hawaii also faced a related suit brought by the ACLU.[29]  As Attorney General, Bennett helped settle the suit against the federal government, with Hawaii agreeing to increased conditions and monitoring of its youth prisons, more resources for suicide prevention and the prevention of sexual abuse, and criminal background checks against prison officials.[30]

Discrimination and the Statute of Limitations

Jones v. R.R. Donnelly & Sons Co. involved an action for racial discrimination brought by African American plaintiffs against a printing company.[31]  The key question before the Supreme Court was whether a four-year federal statute of limitation established for all acts passed after 1990 covered the suit in question.  Bennett joined five other state attorneys general, led by future Eleventh Circuit Judge Bill Pryor (and argued by another future Eleventh Circuit Judge, Kevin Newsom), in filing an amicus brief urging the application of a two year statute of limitations under state law.[32]  However, the Supreme Court unanimously rejected Bennett’s position, holding that the four year federal statute of limitations applied to the action in this case.[33]

Incidental Use of Religion in Public Life

Bennett has weighed in as amicus in two court of appeals cases involving the incidental use of religion in public life.  The first case involved a challenge to the voluntary recitation of the pledge of allegiance, which the plaintiff argued was a violation of the Establishment Clause.[34]  Bennett joined an amicus brief on behalf of 30 state attorneys general supporting Loudoun County.[35]  The Fourth Circuit held that the voluntary recitation of the pledge did not violate the Establishment Clause.[36]

The second case was a challenge from notable atheist Michael Newdow to the use of prayer and the phrase “so help me God” in the inauguration ceremony of President Barack Obama.[37]  Bennett joined all 50 state attorneys general in an amicus brief opposing the plaintiffs in the case.[38]  The D.C. Circuit found that the plaintiffs lacked standing.[39]

Rights of Native Hawaiians

As Attorney General, Bennett was a strong advocate for Native Hawaiians’ rights.  For example, Bennett testified in the Senate in support of the Akaka bill, sponsored by former Sen. Daniel Akaka (D-Hawaii), which conferred the same status to native Hawaiians as enjoyed by all other recognized native tribes.[40]

Additionally, Bennett strongly defended the Kamehameha Schools (a group of Hawaii private schools) policy favoring admission for native Hawaiians.  After a Ninth Circuit panel struck down the policy as unconstitutional discrimination, Bennett successfully persuaded an en banc panel to uphold the policy on a 8-7 vote.[41]  Bennett argued that the policy was permissible even though it was intended to create opportunities for native Hawaiians and not for diversity purposes.[42]

Nevertheless, Bennett has taken adverse positions to those of Native Hawaiians.  Notably, he successfully persuaded a unanimous Supreme Court that the “apology resolution” passed by Congress signaling the rights of native Hawaiians to their “ancestral territory” did not create substantive rights that restricted the State of Hawaii.[43]

Overall Assessment

As noted above, Bennett’s age makes him a fairly unusual pick from the Trump Administration.  That being said, his age and level of experience brings several advantages in the confirmation process.  Firstly, it is more difficult to attack Bennett as unqualified or inexperienced.  Rather, objective observers can agree that Bennett possesses the requisite legal qualifications for an appellate appointment.  Secondly, it defuses attacks from Democrats, who might be concerned that defeating Bennett would lead to a younger appointment from Trump.

The disadvantage of Bennett’s long legal history is that it can be mined for partisan opposition.  However, Bennett’s record provides no obvious fault lines for Democrats to oppose his nomination.  Bennett has not taken any positions on many legal hot button issues, including reproductive rights, and the positions he has taken (e.g. gun control) are hardly conservative.

Rather, had Bennett been nominated by a Democratic president, it is likely that Bennett would have drawn strong opposition from conservatives, given his defense of Hawaii’s strong gun laws, and affirmative action based admissions policies.  As the nomination comes from Trump, most conservative opposition is likely to be muted.

Additionally, it is important to note that Bennett’s defense of both gun control and race-based admissions policies were made in his capacity as Hawaii Attorney General.  Given that the Attorney General is charged with defending Hawaii’s laws, Bennett had an ethical responsibility to mount a strong defense.  As such, one cannot necessarily attribute the positions that Bennett took as Attorney General as his own legal views.

Overall, Bennett represents the kind of appellate nominee who should be more common: a credential, experienced advocate with expertise in a wide range of legal issues.  Barring any flare-ups over the positions he advocated as Attorney General, he should be confirmed smoothly.


[1] Sen. Comm. on the Judiciary, 115th Cong., Mark J. Bennett: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] See Tim Ruel, Lingle Recruits Texaco Defense Lawyer, Honolulu Star-Tribune, Dec. 10, 2002, http://archives.starbulletin.com/2002/12/10/news/story5.html.  

[8] State Attorney General Mark Bennett to Join Law Firm, Hawaii News Now, 2010, http://www.hawaiinewsnow.com/story/13584825/state-attorney-general-mark-bennett-to-join-law-firm.

[9] See Bennett, supra n. 1 at 123.

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

[11] See Bennett, supra n. 1 at 97.

[12] See id.

[13] Id.

[15] Id.

[16] Id.

[17] See Ruel, supra n. 7.

[18] Gross v. University of Hawai’i, No. 11-1-1217-06 (Haw. 1st Cir. Ct.).

[19] Nelson v. Hawaiian Homes Comm’n, 2018 WL 798192 (Haw. Feb. 8, 2018).

[20] See Bennett, supra n. 1 at 99-100.

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

[22] John Gramlich, D.C. Gun-Control Case Divides State Attorneys General, Charleston Gazette, Mar. 9, 2008.

[23] Id.

[24] Id. (quoting Mark Bennett).

[25] See id.

[26] Linda Greenhouse, Justices Appear Reluctant to Increase Land-Use Oversight, N.Y. Times, Feb. 23, 2005.

[27] Lingle v. Chevron, 544 U.S. 528 (2005).

[28] Janis L. Magin, Hawaii Agrees to Broad Changes in Procedures for Incarcerated Gay Youths, N.Y. Times, Feb. 13, 2006.

[29] See id.

[30] Id. 

[31] 541 U.S. 369 (2004).

[32] See id.

[33] Id.

[34] Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395 (4th Cir. 2005).

[35] Id. 

[36] Id. 

[37] Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010).

[38] Id.

[39] Id.

[40] See Testimony of Hawaii Attorney General Mark J. Bennett in Support of Passage of the Akaka Bill, Hawaii Bar Journal (July 2006).

[41] Z-Nation, Schools’ Hawaiians-First Rule Ok’ed, Monterey County Herald, Dec. 6, 2006.

[42] Id.

[43] See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009).

Judge Amy St. Eve – Nominee for the U.S. Court of Appeals for the Seventh Circuit

In 2002, the 35-year-old Amy St. Eve became one of the youngest judges ever appointed to the U.S. District Court for the Northern District of Illinois.  Last month, St. Eve was nominated by President Trump to the prestigious U.S. Court of Appeals for the Seventh Circuit, an elevation that is supported by her home state senators.  It is a promotion she is likely to get.

Background

Amy Joan St. Eve was born in Belleville, Illinois on November 20, 1965.  St. Eve attended Cornell University, getting a B.A. in 1987.  She continued on to Cornell Law School, getting her J.D. in 1990.

After graduating law school, St. Eve joined the New York office of Davis, Polk & Wardwell as an Associate.[1]  In October 1994, St. Eve was hired by Whitewater Independent Counsel Kenneth Starr to be a prosecutor for his office.[2]  In 1996, St. Eve moved to be a federal prosecutor for the U.S. Attorney’s Office for the Northern District of Illinois.[3]  In May 2001, she joined Abbott Laboratories in Abbott Park, Illinois as Senior Counsel of Litigation.[4]

On March 21, 2002, St. Eve was nominated by President George W. Bush for a vacancy on the U.S. District Court for the Northern District of Illinois vacated by Judge George Lindberg.  Engelhardt’s nomination was championed by then-Sen. Peter Fitzgerald (R-Ill.).  St. Eve was confirmed unanimously by the Senate on August 1, 2002.  She serves as a federal district judge today.

History of the Seat

St. Eve has been nominated for a Illinois seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened with Judge Ann Claire Williams’ move to senior status on June 5, 2017.

On June 22, 2017, the White House Counsel’s Office reached out to St. Eve to gauge her interest in the Seventh Circuit appointment.[5]  St. Eve interviewed with the office on June 27.[6]  In December 2017, St. Eve was subsequently informed by Illinois Senators Richard Durbin and Tammy Duckworth that she would be nominated for the vacancy.  Her nomination was officially sent to the Senate on February 15, 2018.

Legal Career

St. Eve began her legal career as an associate at Davis Polk & Wardwell in New York City, where she represented businesses in defending civil and white collar criminal cases.[7]  In 1994, she joined the legal team assembled by Independent Counsel Ken Starr in investigating and prosecuting the Whitewater cases.  As an attorney there, St. Eve helped prosecute then-Arkansas-Governor Jim Guy Tucker for bank fraud and government fraud.[8]

In 1996, St. Eve became a federal prosecutor at the U.S. Attorney’s Office for the Northern District of Illinois.  During her tenure, St. Eve prosecuted white collar crime, narcotics, and fraud.  However, many of her most notable cases focused on government corruption.  For example, St. Eve participated in “Operation Safe Road,” a government investigation of corruption under the Illinois Secretary of State’s office during the tenure of Republican George Ryan (later the Governor).[9]  As a result of the investigation, St. Eve successfully prosecuted numerous employees who had fraudulently given out vehicle operator licenses in exchange for cash bribes.[10]  Ryan himself would eventually be indicted and convicted after St. Eve’s confirmation to the bench.

Jurisprudence & Reversals

St. Eve has served as a judge on the U.S. District Court for the Northern District of Illinois for the last sixteen years.  In this role, St. Eve has presided over 123 trials, 49 in criminal cases and the remaining 74 in civil cases.[11]  We have summarized two areas where St. Eve has made a mark:

Religious Discrimination

In two cases where she reached opposite results, St. Eve has elucidated her views on the level of protection offered to employees when they allege religious discrimination.[12]  In one case, St. Eve found that Wal Mart did not discriminate against a Christian employee when she was dismissed for telling other employees that “gay people are sinners and are going to hell.”[13]  Rather, St. Eve found that, to allege discrimination, the employee needed to show that non-Christian employees who held the same anti-gay views she did were treated differently by Wal Mart.[14]  As no such allegation was made, St. Eve ruled that dismissing the employee was not anti-Christian discrimination.[15]

In contrast, St. Eve declined to dismiss the discrimination case brought by an employee at Sidetrack, a Chicago gay bar, who alleged harassment and discrimination based on his Christian beliefs.[16]  In the suit, the plaintiff alleged “anti-Christian video clips Sidetrack played during comedy nights, offensive performances ridiculing Christians at special events, and degrading comments Sidetrack employees…made to Plaintiff because of his religion.”[17]  In denying summary judgment for Sidetrack, St. Eve found that a reasonable jury could find that the evidence constituted discrimination against the plaintiff based on his religious, rather than his political beliefs.[18]

Civil Rights Cases

During her fifteen years as a judge, St. Eve has presided over many civil rights cases.  In her rulings, St. Eve has been evenhanded, ruling for plaintiffs in some cases,[19] and for the defendants in others.[20]

In one notable case, St. Eve presided over a challenge by a special education teacher who was injured by an autistic student.[21]  The teacher alleged substantive due process violations and Monell liability due to failure to train after a struggle with an autistic student led to head injuries and a serious concussion.[22]  Specifically, the teacher criticized the school’s administration for failing to put the student in a therapeutic day school.[23]

St. Eve rejected the teacher’s claim, arguing that the administration’s decision to allow the student to continue attending school “was not an arbitrary decision, but instead was based on a deliberative process.”[24]  As such, St. Eve granted summary judgment for the defendants.[25]  The Seventh Circuit ultimately affirmed St. Eve’s decision.[26]

Reversals

In the sixteen years that St. Eve has served as a federal judge, she has been reversed by higher courts 43 times: 39 times by the Seventh Circuit; and four times by the Federal Circuit.[27]  In fourteen cases, the Seventh Circuit reversed St. Eve’s dismissal of a plaintiff’s civil complaint or a grant of summary judgment against the plaintiff.[28]  In contrast, St. Eve’s rulings in favor of plaintiffs have been reversed in three cases.[29]  In the criminal context, St. Eve’s sentences have been reversed by the Seventh Circuit in twelve cases.[30]

Overall Assessment

St. Eve comes to the confirmation process with a long judicial paper trail.  This record establishes her as a middle-of-the-road judge with no bias towards either conservative or liberal judicial philosophies.  Additionally, with her long tenure as a federal judge, St. Eve’s qualifications for the appellate bench are unquestionable.

Furthermore, St. Eve’s record as a federal prosecutor also speaks to her evenhandedness.  While she participated in the politically charged investigation over Whitewater, and successfully prosecuted Democratic Governor Jim Guy Tucker, she also worked to bring down a system of patronage and corruption established by a Republican secretary of state in Illinois.  Her success on both fronts makes it difficult to paint her as a partisan prosecutor.

As such, St. Eve is likely to be seen as a “consensus” nominee, one expected to get a swift and uncontroversial confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Amy St. Eve: Questionnaire for Judicial Nominees 1.

[2] See id. at 53.

[3] See id.

[4] See id. at 2.

[5] See id. at 68.

[6] See id.

[7] See id. at 53.

[8] See United States v. McDougal, 95-cr-175 (E.D. Ark.)

[9] See Andrew Zajac and Flynn McRoberts, Operation Safe Road: License Scheme Led to Wider Investigation, Chicago Tribune, Dec. 18, 2003, http://articles.chicagotribune.com/2003-12-18/news/0312180299_1_driver-s-licenses-plates-applicants.

[10] See United States v. Mastrodomenico, 98-cr-623 (N.D. Ill.); United States v. Seibel, 99-cr-78 (N.D. Ill.); United States v. Golumb, 99-cr-871 (N.D. Ill.).

[11] See St. Eve, supra n. 1 at 21.

[12] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[13] Matthews v. Walmart, Inc., No. 08 C 5312, 2010 WL 11545667, at *2 (N.D. Ill. Apr. 26, 2010), aff’d sub nom. Matthews v. Wal-Mart Stores, Inc., 417 F. App’x 552 (7th Cir. 2011).

[14] See id. at *3-4.

[15] See id.

[16] Parker v. Side by Side, Inc., 50 F. Supp. 3d 988, 995 (N.D. Ill. 2014).

[17] Id. at 1002.

[18] Id. at 1013-14.

[19] See, e.g., Ayoubi v. Basilone, No. 14 C 0602, 2016 WL 6962189, at *5 (N.D. Ill. Nov. 28, 2016) (denying Defendants’ motion to dismiss); Sokol v. City of Chicago, Illinois, No. 13 CV 5653, 2014 WL 5473050, at *3 (N.D. Ill. Oct. 29, 2014) (denying proposed order to protect confidential information by Defendants); Pierce v. Cook Cty., No. 12 C 5725, 2014 WL 4376231, at *5 (N.D. Ill. Sept. 4, 2014) (denying Defendants’ motion to dismiss action as unexhausted).  

[20] See, e.g., Smith v. Ramirez, No. 12 C 509, 2014 WL 4070202, at *1 (N.D. Ill. Aug. 14, 2014) (denying Plaintiff’s motion for summary judgment); Hicks v. Young, No. 10 C 3874, 2011 WL 5507379, at *1 (N.D. Ill. Nov. 9, 2011) (granting Defendant’s motion to dismiss for failure to state a claim); Caudle El v. Lake Cty. Sheriffs, No. 08 C 6534, 2010 WL 11546028, at *4 (N.D. Ill. June 1, 2010) (granting summary judgment to Defendants on deliberate indifference claim); Jackson v. Indian Prairie Sch. Dist. 204, No. 08 C 4312, 2010 WL 11545957, at *5 (N.D. Ill. Apr. 30, 2010), aff’d, 653 F.3d 647 (7th Cir. 2011) (granting summary judgment for Defendants).

[21] See Jackson v. Indian Prairie Sch. Dist. 204, No. 08 C 4312, 2010 WL 11545957, at *5 (N.D. Ill. Apr. 30, 2010), aff’d, 653 F.3d 647 (7th Cir. 2011).

[22] Id. at *3.

[23] See id. at *4.

[24] Id.

[25] Id. at *5.

[26] 653 F.3d 647 (7th Cir. 2011).

[27] See St. Eve, supra n. 1 at 40-46.

[28] See Yanhke v. Kane Cnty., 823 F.3d 1066 (7th Cir. 2016); Reid v. Illinois, 808 F.3d 1103 (7th Cir. 2015); Smith v. Dart, 803 F.3d 304 (7th Cir. 2015); Petrovic v. Enter. Leasing Co. of Chicago, LLC, 513 F. App’x 609 (7th Cir. 2013); Todd v. Kohl’s Dep’t Store, 490 F. App’x 824 (7th Cir. 2013); Schwartz v. Prudential Ins. Co. of Am., 450 F.3d 697 (7th Cir. 2006); Shaffer v. Am. Med. Ass’n, 662 F.3d 439 (7th Cir. 2011); Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009); Makor Issues & Rights, Ltd. v. Tellabs, 437 F.3d 588 (7th Cir. 2006); Shapo v. Engle, 463 F.3d 641 (7th Cir. 2006); Davis v. Carter, 452 F.3d 686 (7th Cir. 2006); Bremgettcy v. Horton, 423 F.3d 674 (7th Cir. 2005); Blue Cross & Blue Shield of Ill. v. Cruz, 396 F.3d 793 (7th Cir. 2005); Xechem, Inc. v. Bristol Myers Squibb Co., 372 F.3d 899 (7th Cir. 2004).

[29] See Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005); Transpersonnel, Inc. v. Roadway Express, Inc., 422 F.3d 456 (7th Cir. 2005); Schimmer v. Jaguar Cars, Inc., 384 F.3d 402 (7th Cir. 2004).

[30] See United States v. Harrington, 834 F.3d 733 (7th Cir. 2016); United States v. Rogers, 528 F. App’x 641 (7th Cir. 2013); United States v. Vidal, 705 F.3d 742 (7th Cir. 2013); United States v. Knox, 496 F. App’x 649 (7th Cir. 2012); United States v. Hernandez, 479 F. App’x 735 (7th Cir. 2012); United States v. Knox, 412 F. App’x 867 (7th Cir. 2011); United States v. Black, 625 F.3d 386 (7th Cir. 2010); United States v. Knox, 573 F.3d 441 (7th Cir. 2009); United States v. Adefumi, 279 F. App’x 401 (7th Cir. 2008); United States v. Smith, 276 F. App’x 497 (7th Cir. 2008); United States v. McMahan, 495 F.3d 410 (7th Cir. 2007); United States v. Garcia, 439 F.3d 363 (7th Cir. 2006).

Michael Scudder – Nominee to the U.S. Court of Appeals for the Seventh Circuit

Richard Posner is a hard act to follow.  Like him or hate him, it’s hard to deny the mercurial judge’s legal genius.  After Posner’s abrupt resignation, Trump is looking to replace him with a biglaw litigator with a stellar academic resume.  A former Supreme Court clerk who worked for the Bush White House, Scudder has the credentials to succeed Posner.

Background

Michael Yale Scudder was born in 1971 in Fort Wayne, Indiana.  He attended Saint Joseph’s College in Indiana, graduating summa cum laude in 1993.[1]  He then worked for two years as a staff accountant in the Fort Wayne office of Ernst & Young.[2]

In 1995, Scudder joined the Northwestern University Pritzker School of Law.  He graduated magna cum laude in 1998.[3]  After graduating, Scudder clerked for Judge Paul Niemeyer on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[4][5]

After his clerkship, Scudder joined the Cleveland office of Jones Day, where he served as an associate for two years.  In 2002, Scudder was hired at the U.S. Attorney’s Office for the Southern District of New York to be a federal prosecutor.[6]  In 2006, Scudder moved to Main Justice as Counselor to Deputy Attorney General Paul McNulty.

In 2007, Scudder was hired by the White House as Associate Counsel to the President.[7]  He was promoted to be General Counsel of the National Security Council and Senior Associate Counsel to the President, where he focused on national security issues.[8]  In 2009, Scudder left to join the Chicago Office of Skadden, Arps, Slate, Meagher & Flom LLP as a Partner.  He continues to work in that capacity today.

History of the Seat

Scudder has been nominated for an Illinois seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on September 2, 2017 with the sudden resignation of Judge Richard Posner.[9]  However, Scudder had been under consideration for a judicial appointment much earlier.  On June 6, 2017, Scudder received a call from the White House Counsel’s office gauging his interest in a 7th Circuit seat.[10]  He interviewed with the White House shortly thereafter.[11]

In October 2017, Scudder interviewed with a screening committee set up by Illinois Senators Richard Durbin and Tammy Duckworth.[12]  He interviewed with Durbin and Duckworth later that month, and was designated the presumptive nominee on December 4, 2017.[13]  Scudder was nominated on February 12, 2018.

Political Activity

Scudder has generally steered clear of electoral politics.  He has not volunteered on any campaigns, and his only political contribution of record is a $250 contribution to Republican Congressional candidate Jay Jorgensen in Utah, who clerked on the Supreme Court with Scudder.[14]

Legal Practice

Scudder’s first legal position after his clerkships was at Jones Day, a firm that has yielded many Trump executive attorneys and judicial nominees.  In 2002, Scudder moved on to join the U.S. Attorney’s Office for the Southern District of New York, one of the most prestigious prosecutorial offices in the country, to work under future FBI Director James Comey.[16]  During his four years as a federal prosecutor, Scudder worked with the narcotics, general crimes, and violent crimes units, trying six cases and handling six appeals.[15]  Among his more notable cases, Scudder helped prosecute a pediatrician for traveling abroad to have sex with minors at resorts in Mexico and Honduras.[17]

In 2006, Scudder joined the National Security team at the Deputy Attorney General’s office at the Department of Justice.[18]  In 2007, Scudder moved to the White House Counsel’s Office working on monitoring legislation and litigation related to national security.[19]  A few months after his move, Scudder was promoted to be Senior Associate Counsel to the President and General Counsel of the National Security Council, where he spent his time working with the Council on legal issues associated with national security and counterterrorism.[20]

In 2009, shortly after the inauguration of the Obama Administration, Scudder joined the Chicago Office of Skadden Arps as a partner.[21]  At Skadden, Scudder focused on business litigation, and white collar matters.[22]  He particularly specialized in cases involving accounting and the law.[23]  During his time at Skadden, Scudder handled two jury trials.[24]

Among the most notable cases he handled at Skadden, Scudder has represented the University of North Carolina at Chapel Hill in defending the constitutionality of its admissions process.[25]  Throughout the suit, Scudder has defended the University’s admissions policies, which incorporate race and ethnicity, as constitutional.[26]  Scudder also filed amicus briefs on behalf of the University in supporting the University of Texas’ affirmative action programs in Fisher v. University of Texas at Austin.[27]

Aside from his paid work, Scudder has been active in representing criminal defendants pro bono.  For example, Scudder successfully persuaded the Seventh Circuit to reverse an indigent defendant;s conviction due to the trial judge’s failure to give proper jury instructions regarding the defendant’s prior crimes.[28]  Additionally Scudder has filed amicus briefs in a number of criminal cases at the Supreme Court, generally supporting greater rights for criminal defendants.[29]

Writings

As a law student, Scudder authored an article analyzing the recently passed Private Securities Litigation Reform Act of 1995.[30]  In the article, Scudder discusses the damages cap imposed by the legislation, arguing that Congress’ “theory of damages may have initial appeal, but it lacks empirical support.”[31]  He also argues that a better damages limitation provision would have limited investor recovery to the actual losses they had suffered.[32]

Overall Assessment

While it is always tricky to predict that a nominee will be smoothly confirmed, the odds look fairly good for Michael Scudder.  First of all, Scudder has the strong support of his home state senators, both of whom are Democrats.  Second, Scudder lacks a controversial paper trail and has not participated in many controversial cases.  Rather, in his more hot-button cases, such as the UNC affirmative action suit, Scudder has taken the “liberal” position in litigation.  Third, unlike many Trump appellate nominees, Scudder does not have a history with the Federalist Society.

None of this is to suggest that there are no objections that can be raised against Scudder.  Questions may be raised about Scudder’s work on national security issues at the Bush Administration. Specifically, senators may seek to probe whether Scudder shares the broad views of executive power claimed by the Administration in conducting counterterrorism and national security operations.

Nonetheless, Scudder is well-placed for a comfortable confirmation.  Additionally, given his academic credentials, clerkships, and uncontroversial background, Scudder should be considered a strong likelihood for a future Supreme Court nominee, especially under a Republican presidency.


[1] Sen. Comm. on the Judiciary, 115th Cong., Michael Y. Scudder: Questionnaire for Judicial Nominees 1.

[2] Id. at 3.

[3] Id. at 1.

[4] Id. at 2.

[5] Scudder was joined at the court by other luminaries such as Judge Ketanji Brown Jackson, Supreme Court advocate Kannon Shanmugam and law professors Benjamin Liebman, Rebecca Tushnet, Kermit Roosevelt III, Tim Wu, and Richard Primus.

[6] Id. 

[7] Peter Baker and R. Jeffrey Smith, Miers Steps Down as White House Gears For Battle, Wash. Post, Jan. 5, 2007.

[8] See Scudder, supra n. 1 at 2.

[9] Jason Meisner and Patrick O’Connell, Richard Posner Announces Sudden Retirement From Federal Appeals Court in Chicago, Chicago Tribune, Sept. 1, 2017, http://www.chicagotribune.com/news/local/breaking/ct-judge-richard-posner-retires-met-20170901-story.html.

[10] See Scudder, supra n. 1 at 33.

[11] See id.

[12] Id.

[13] Id. 

[15] See Scudder, supra n. 1 at 18.

[16] See United States v. Gabb, 80 Fed. Appx. 142 (2d Cir. 2003).

[17] See Susan Saulny, Ex-Doctor Receives Sentence of 21 Years in Child Sex Case, N.Y. Times, Feb. 14, 2004.

[18] See Scudder, supra n. 1 at 18.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] See, e.g., In re Robert D. Hesselgesser, CPA, United States Securities and Exchange Commission No. 3-17214 (April 19, 2016).

[24] See id.

[25] Students for Fair Admissions, Inc. v. Univ. of North Carolina, No. 1:14-cv-00954-LCB-JLW (M.D.N.C. filed Nov. 17, 2014).

[26] See id.

[27] See Brief of Amicus Curiae The University of North Carolina at Chapel Hill in Support of Respondents, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

[28] United States v. Robinson, 724 F.3d 878 (7th Cir. 2013).

[29] See Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioners, Camreta v. Greene, 563 U.S. 692 (2011) (Nos. 09-1454 & 09-1478); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioner, Bailey v. United States, 568 U.S. 186 (2013) (No. 11-770); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Respondents, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

[30] Michael Y. Scudder, The Implications of Market-Based Damages Caps in Securities Class Actions, 92 Nw. U.L. Rev. 435 (Fall 1997).

[31] Id. at 474.

[32] See id.i

John Nalbandian – Nominee for the U.S. Court of Appeals for the Sixth Circuit

So far, the Trump Administration has moved relatively quickly to fill vacancies on the Court of Appeals.  However, the nomination of John Nalbandian to the Sixth Circuit was seemingly finalized in supernatural speed, coming just two days after Judge John Rogers announced his intent to move to senior status.  This speed is a sign that Nalbandian was being vetted before the vacancy was announced, potentially for the Ohio seat vacated by Judge Alice Batchelder.

Background

John Baylor Nalbandian was born in 1969 in Fort Ord, California.[1]  After getting a B.S. magna cum laude from the University of Pennsylvania and a J.D. from the University of Virginia Law School, Nalbandian clerked for Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.[2]  After his clerkship, Nalbandian joined the Washington D.C. office of Jones Day.

In 2000, Nalbandian moved from Jones Day to the Cincinnati office of Taft Stettinius & Hollister LLP.[3]  He became a partner there in 2004 and continues to serve in that capacity today.

In 2010, upon the recommendation of Senate Republican Leader Mitch McConnell (R-KY), Nalbandian was appointed by President Obama to serve on the board of directors of the State Justice Institute (SJI), a nonprofit organization focused on improving resources for judges and court staff.[4]  Nalbandian continues to serve as a director.

History of the Seat

Nalbandian has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in January 2018 with Judge John Rogers’ announcement that he would move to senior status upon confirmation of his successor.  However, Nalbandian had been under consideration for a federal judgeship as far back as November 2016, when he first began talking to McConnell about a judicial appointment.[5]  While he interviewed with McConnell in January 2017, he wasn’t contacted by the White House until September (approximately when Judge Alice Batchelder announced her move to senior status in an Ohio seat).  Nalbandian interviewed with the White House and the Department of Justice in October 2017, and was nominated on January 24, 2018.

Political Activity

Nalbandian is a Republican and has a long history with the Kentucky Republican party, including serving as the Party’s General Counsel between 2010 and 2016, and serving as a Delegate to the 2016 Republican National Convention.[6]  Nalbandian also advised and volunteered on the campaigns of several Kentucky Republicans including those of McConnell, Sen. Rand Paul, Rep. Andy Barr, Rep. James Comer, and former State Senate President David Williams.[7]

Nalbandian has also been an active donor to Republicans, having given almost $15000 over the last thirteen years.[8]  Barr has been a particular beneficiary of the donations, having received $3250 of the donations.[9]  Nalbandian has also donated to other Republicans including Senators Todd Young and Tom Cotton.[10]

Nalbandian has been active in the Federalist Society for the past twenty seven years, including serving as President of the Cincinnati Lawyers Chapter from 2000 to 2008, and serving as an Advisory Board Member from 2010 to the present.[11]

Legal Experience

Nalbandian has practiced law for around twenty five years, cutting his teeth by representing a habeas petitioner as a law student at the University of Virginia.[12]  In his time at Jones Day and at Taft Stettinius, Nalbandian has specialized in appellate practice, representing businesses on commercial, environmental, labor, and other matters.[13]  For example, Nalbandian helped defend the brand name manufacturers of Percocet in a series of class-action lawsuits borne out of injuries caused by the drug.[14]  Throughout his career, Nalbandian has handled a vast array of cases.  We summarize some of them below:

Criminal Defense

Nalbandian has developed a thriving criminal defense practice, working on many white collar criminal defense matters.[19]  Notably, he has also represented capital and habeas defendants pro bono.  For example, Nalbandian represented an Ohio death penalty petitioner in seeking a new sentencing hearing.[20]  In challenging the death penalty sentence, Nalbandian successfully argued that the petitioner did not receive the effective assistance of his counsel at the penalty phase of his trial, leading to the Sixth Circuit reversing the death penalty on a 2-1 vote.[21]

Environmental Pollution & Toxic Torts

Nalbandian has represented many businesses in suits over environmental pollution or toxic torts, typically seeking to shield the business from penalties or civil damages.  In one suit, Nalbandian represented a steel company seeking to reverse damages assigned to plaintiffs based on “fugitive dust” that had migrated to the plaintiffs’ properties.[15]  However, Nalbandian has also represented plaintiffs in contamination and toxic tort actions, in one case, suing on behalf of plaintiffs who had consumed contaminated water in West Virginia.[16]

Local Government

Throughout his career, Nalbandian has also occasionally represented municipalities in zoning and other such suits.[17]  In one of his more prominent cases, Nalbandian represented Northern Ohio municipalities in an unsuccessful challenge to the regional stormwater management program implemented by the Sewer District.[18]

Election Law

As part of his election law practice, Nalbandian represented Hamilton County Judge John Williams in a contentious election challenge.[22]  In the 2010 elections, Williams was challenged by Democrat Tracie Hunter, and was certified as the winner with a narrow lead in the final vote count.  However, Hunter challenged the results, arguing that 849 provisional ballots were erroneously thrown out due to poll worker error.[23]  When outgoing Ohio Secretary of State Jennifer Brunner, a Democrat, stepped in to offer guidance in reviewing the 849 disputed ballots, Nalbandian sued on Williams’ behalf, successfully getting the Republican-dominated Ohio Supreme Court to step in and block Brunner’s guidance.[24]

In response to the Ohio Supreme Court’s intervention, Hunter filed a federal suit, and U.S. District Judge Susan Dlott granted a preliminary injunction in Hunter’s favor to count the disputed ballots.[25]  When Nalbandian appealed, a divided panel of the Sixth Circuit affirmed the injunction,[26] and with the recounting of 149 additional ballots, Hunter was declared the winner of the election.

Academic Judgment

In one of his more unusual cases, Nalbandian represented the Case Western Reserve University in seeking to revoke a medical school diploma given to one of its students.[27]  The plaintiff in the case, Amir Al-Dabagh, had fulfilled all the academic requirements for a medical degree.[28]  However, the Medical School declined to give him a degree, citing numerous “professionalism” violations, including incurring a DUI in North Carolina.[29]  Al-Dabagh filed suit, arguing that the failure to give him a medical degree violated its state law duties of fair dealing and good faith, and U.S. District Judge James Gwin ruled in his favor.[30]  However, Nalbandian filed an appeal and was able to convince the Sixth Circuit to reverse the ruling.  Writing for the court, Judge Jeffrey Sutton found that the Medical School’s decision not to award the degree based on “professionalism” was an “academic judgment” that could not be second-guessed by the court.[31]

Overall Assessment

Kentucky nominees to the Sixth Circuit have not had the smoothest confirmations under Trump, with both Judges Thapar and Bush being confirmed by narrow partisan margins.  While Nalbandian has already been unanimously confirmed by the senate once, this does not necessarily portend an easy confirmation for him this time around.  The State Justice Institute, while important, focuses on education rather than shaping law or policy.  As such, it is unlikely that Democrats, who were willing to confirm Nalbandian to the SJI, will be equally accommodating when the prize is a lifetime appointment one step below the supreme court.

Furthermore, Nalbandian is active in the Federalist Society, and the conservative legal organization has become a a bete noire for Senate Democrats.  As such, it is likely that Nalbandian will see significantly more opposition to this nomination than he did eight years ago.

That being said, unlike the previous two nominees to the Sixth Circuit from Kentucky, Nalbandian lacks both a judicial paper trail and a bevy of controversial statements that can be mined for opposition research.  Furthermore, unlike most Trump nominees, Nalbandian has worked with diversity-based legal organizations, including as an active member of the Greater Cincinnati Minority Counsel Program  and the National Asian Pacific American Bar Association.  His active role in the Asian American legal community and his pro bono work should also deflect criticism.

Overall, while Nalbandian may not see the unanimous support he received eight years ago, he will likely be confirmed with a bipartisan majority.  His expected confirmation will make him the second Asian Pacific American on the Sixth Circuit, and will help secure the court’s conservative majority.


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

[2] Id. at 2.

[3] See id.

[4] See The Salt Lake Tribune, Utah Court Official Appointed by Obama to National Board, The Salt Lake Tribune, July 1, 2010.

[5] See Nalbandian, supra n. 1 at 25.

[6] See id. at 11.

[7] See id. at 11-12.

[9] See id.

[10] See id.

[11] See Nalbandian, supra n. 1 at 4.

[12] In re: Burnley, 998 F.2d 1 (4th Cir. 1992).

[13] See Nalbandian, supra n. 1 at 13.

[14] See Germain et al. v. Teva Pharmaceuticals USA Inc., 756 F.3d 917 (6th Cir. 2014).

[15] Ellis et al. v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004).

[16] See Rhodes et al. v. E.I. Du Pont De Nemours & Co., 636 F.3d 88 (4th Cir. 2011).

[17] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[18] See Northeast Ohio Regional Sewer Dist. v. Bath Twnship, 44 N.E.3d 246 (Ohio 2015).

[19] See, e.g., United States v. Romanini, 502 Fed. Appx. 503 (6th Cir. 2012).

[20] See Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003).

[21] See Frazier v. Huffman, 343 F.3d 780, 801 (6th Cir. 2003).

[22] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[23] See id. at 226.

[24] The State ex rel. Painter et al. v. Brunner, 941 N.E.2d 782 (Ohio 2011).

[25] See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-00820-Dlott, 2010 U.S. Dist. LEXIS 128434 (S.D. Ohio, Nov. 22, 2010).

[26] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[27] See Al-Dabagh v. Case Western Reserve University, 777 F.3d 355 (6th Cir. 2015).

[28] See id. at 358.

[29] See id.

[30] See id. at 358-59.

[31] See id. at 360.

Judge Joel Carson: Nominee to the U.S. Court of Appeals for the Tenth Circuit

A prominent Roswell-based attorney for the oil and gas industry and a part-time federal magistrate judge, Joel Carson is Trump’s second nominee to the U.S. Court of Appeals for the Tenth Circuit, replacing the conservative Judge Paul Kelly.

Background

Joel McElroy Carson III was born in Artesia, New Mexico on November 16, 1971.[1]  Carson attended Texas Tech University in Lubbock, getting a B.B.A. in Finance in 1994.[2]  After graduating, Carson returned to New Mexico to attend the University of New Mexico Law School, getting his J.D. in 1997.  Carson then clerked for Judge Bobby Baldock on the U.S. Court of Appeals for the Tenth Circuit and then joined the Roswell firm Hinkle Hensley Shanor & Martin LLP as an associate. In 2002, Carson became a partner at the firm.[3]

In 2008, Carson left the firm to join the Mack Energy Corporation as General Counsel.[4]  He stayed there for five years, leaving in 2014 to start his own firm Carson Ryan LLC.[5]

In 2015, Carson was tapped to be a part-time federal magistrate judge in Roswell, New Mexico.[6]  He continues to serve in that capacity, while maintaining his firm.

History of the Seat

Carson has been tapped for a New Mexico seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat is being vacated by Judge Paul Kelly’s decision to move to senior status upon the confirmation of his successor.

In early 2017, Carson expressed his interest in the Tenth Circuit appointment to Rep. Steve Pearce (R-NM) and Sen. Tom Udall (D-NM).[7]  After an interview with the White House Counsel’s Office in May 2017, Carson was selected as a finalist for the seat by the White House, who sent five names to Udall and Sen. Martin Heinrich (D-NM).[8]  Among the names sent was that of William Levi, a Washington D.C. based associate at Sidley Austin who had been a clerk to Supreme Court Justice Samuel Alito and was only 33 years old.[9]  Udall balked at Levi’s name and suggested that another finalist, Judge James Browning of the U.S. District Court for the District of New Mexico, would have his support.[10]  Nevertheless, the White House decided not to nominate Browning or Levi, and instead nominated Carson for the seat on December 20, 2017.

Political Activity

Carson has been active in the Republican Party of New Mexico, serving on its Executive Committee, as well as the Secretary in 2011.[11]   Carson also volunteered with the Romney campaign in 2012 and the campaign of former senator Pete Domenici.[12]  Carson has also frequently spoken at Chavez County Republican Party functions, introducing other speakers including Domenici, Pearce, and Governor Susana Martinez.[13]

Carson has also frequently contributed to Republican candidates, including Domenici.  Notably, he has given approximately $10000 to Pearce over the last fifteen years.[14]  Carson also donated to the unsuccessful senate candidacies of Republicans Heather Wilson and Rick Berg in 2012 and to Sen. Ted Cruz in 2015.[15]  Carson has occasionally donated to New Mexico Democrats as well, including former Congressman Harry Teague and former Governor Bill Richardson.[16]

Legal Career

Carson has spent most of his legal career working with issues involving the energy industry, utilities, water and land rights.  As an attorney in private practice and as an in-house counsel at the Mack Energy Corporation, Carson handled complex energy litigation and transactions.  Among his more prominent cases, Carson represented an energy company seeking Takings Clause damages for the government’s delay in approving applications for permits to drill (APDs).[17]  While the Court of Federal Claims ruled for Carson’s client in the case, the Federal Circuit reversed, rejecting Carson’s argument that the delay in approving the permits constituted a regulatory taking.[18]

Outside his oil and gas expertise, Carson also represented the New Mexico legislature in defending its redistricting plans against legal challenges.[19]  Carson has also frequently represented indigent defendants as court-appointed counsel.[20]

Jurisprudence

Carson has served as a part-time federal magistrate judge since 2015.  In this role, Carson manages only criminal proceedings and habeas actions.  In the last three years, Carson has handled three cases to verdict or judgment, as well as writing one recommendation for a district judge.[21]  The three trials Carson handled, two bench and one jury, all involve criminal citations arising from crimes committed on federal property.  In the sole jury trial he presided over, the jury found the defendant not guilty of driving under the influence on an air force base.[22]  In the two bench trials, Carson found for the United States in one case[23] and for the defendant in another.[24]  In the sole habeas case he handled, Carson recommended that a prisoner’s habeas petition based on ineffective assistance of counsel be dismissed.[25]

Scholarship

As a law student at the University of New Mexico, Carson authored a paper titled “Reintroducing the Mexican Wolf”, which discussed the constitutional implications of property loss through the reintroduction of endangered species.[26]  Specifically, Carson argues that federal officials who reintroduce the wolf may find themselves constitutionally liable for damage the wolf inflicts.

In the paper, Carson argues that reintroducing a predator species such as the Mexican wolf would open officials up to Takings Clause actions from cattle farmers who lose animals.  Specifically, Carson suggests that such losses would constitute both a per se taking and a regulatory taking.[27]  While acknowledging that courts have previously held that damage from protected wildlife does not constitute a compensable taking,[28] Carson argues that such cases would come out differently when the government exercises “pervasive control” over the animals.[29]  Carson notes that “[d]epradations by Mexican wolves appear to fit neatly within the academic confines of takings law.”[30]

Carson goes on to suggest that federal officials who reintroduce endangered species could be liable for damages under Bivens.[31]  Specifically, Carson suggests that the federal government’s refusal to timely remove a wolf that roams onto private land would be “a picture perfect scenario for a Bivens claim.”[32]  Nevertheless, Carson steps back from a wholesale endorsement of Bivens actions based on wolf depredation, arguing that the Fish & Wildlife Service should instead create a compensation procedure to avoid the attorney’s costs associated with lawsuits.[33]  He concludes with the following observation:

“When citizens lose livestock to Mexican wolves, their private property has been taken for a public purpose.  Just compensation is due and the citizen should not be required to litigate all the way to the Supreme Court to recover.”[34]

Overall Assessment

Having worked there for twenty years, Carson is well-respected in the New Mexico legal community.  His (albeit brief) record on the federal bench does not suggest a bias for or against criminal defendants or the government.  In fact, his two bench rulings have come down evenly, one conviction and one acquittal.  Furthermore, unlike most Trump appellate nominees, Carson does not appear to have any ties to the Federalist Society.  As such, it is reasonable to assume that Carson will likely have a smooth confirmation to the federal bench.

However, Carson may face questions regarding his view on Takings jurisprudence.  Specifically, he may be questioned as to whether he will follow Tenth Circuit precedent holding that losses from wild animals do not constitute compensable takings.  He may also be questioned as to whether he agrees that federal officials who reintroduce wild animals can be sued under Bivens. (Interestingly, his broad view of Bivens liability may endear him to civil rights attorneys who argue that Bivens has been construed unduly narrowly by the courts).

If senators find that Carson’s views on Bivens and the Takings Clause are within the legal mainstream, he will likely be confirmed swiftly, and, at only forty-six, will shape Tenth Circuit jurisprudence for decades to come.


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

[2] See id.

[3] Id. at 2.

[4] Id.

[5] See id.

[6] See id. at 1-2.

[7] Sen. Comm. on the Judiciary, 115th Cong., Joel Carson: Questionnaire for Judicial Nominees 29-30.

[8] Id. at 30.

[9] Michael Coleman, Court Nominee’s Lack of NM Roots Prompts Concern, Albuquerque Journal, Sept. 10, 2017, https://www.abqjournal.com/1061212/court-nominees-lack-of-nm-roots-prompts-concern.html.  

[10] See id.

[11] Supra Carson, n. 1 at 15.

[12] See id.

[13] See id. at 7-9.

[15] See id. 

[16] See id.

[17] See Bass Enterprises Production Co. v. United States, 381 F.3d 1360 (Fed. Cir. 2004).

[18] See id. at 1365-66.

[19] See Jepsen v. Virgil-Giron, First Judicial District Court, Santa Fe County Case No. D-101-CV-2001102177 (2001).

[20] See, e.g., United States v. Madrid, 533 F.3d 1222 (10th Cir. 2011); United States v. Gonzalez-Jacquez, 566 F.3d 1270 (10th Cir. 2009).

[21] Supra Carson n. 1 at 9-10.

[22] See United States v. Bordayo, Case. No. 1:16-CR-3340-JMC (2016).

[23] United States v. Paige, Case. No. CVB CAFB 6038129 (2016).

[24] United States v. Malouf, Case No. CVB HAFB 3905866 (2016).

[25] Thomas v. Hatch, Case No. 1:17-CV-885 WJ/JMC (2018).

[26] Joel M. Carson, Reintroducing the Mexican Wolf: Will the Public Share the Costs, or Will the Burden Be Borne by a Few, 38 Natural Resources Journal 298 (1998).

[27] Id. at 305-06.

[28] Id. at 308-11 (citing Christy v. Hodel, 857 F.3d 1324 (9th Cir. 1988) and Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986).

[29] Id. at 311.

[30] Id. at 316.

[31] In Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), the Supreme Court recognized a private right of action for individuals seeking to sue federal officials for damages from the violations of their constitutional rights.

[32] Id. at 321.

[33] See id. at 323-25.

[34] Id. at 325.

Ryan Bounds – Nominee for the U.S. Court of Appeals for the Ninth Circuit

Ryan Bounds, a federal prosecutor, is President Trump’s first nominee for the Ninth Circuit Court of Appeals.  An Oregon native and an accomplished lawyer, with experience in private practice and the public sector, Bounds has not received the support of the state’s senators, who contend that his nomination was made in contravention of the state’s bipartisan selection process.

Background

Ryan Wesley Bounds was born on June 28, 1973 and is a Hermiston, Oregon native.[1]  He graduated from Stanford University in 1995 with a B.A. in psychology and political science.  At Stanford, he was an editor of the conservative student-run newspaper, The Stanford Review,[2] and of The Thinker, a Stanford newspaper that Bounds and a liberal student founded with the stated goal of providing a neutral forum to express opposing opinions about the topics du jour, an ethos captured in its masthead: “For every issue, there is another side; think about it.”[3]  In 1999,

Bounds graduated from Yale Law School, where he was editor-in-chief of the Yale Law and Policy Review, an editor of the Yale Law Journal, and vice-president of the Yale Federalist Society.[4]  He was also editor-in-chief of a 1998 Federalist Society symposium issue of the Harvard Journal of Law and Public Policy.[5]

From 1999-2000, Bounds clerked for Judge Diarmuid  F. O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit,[6] whose vacancy he would fill if confirmed.[7]  From 2000-04, he practiced commercial law at Stoel Rives LLP in Portland, Oregon.[8]  From 2004-07, he served as Deputy Assistant Attorney General and Chief of Staff in the Office of Legal Policy at the DOJ.  From 2007-08 and for part of 2009 he was the Special Assistant United States Attorney for the District of Columbia.  From 2008-09 he was the Special Assistant to the President for Justice and Immigration Policy for the Domestic Policy Council.[9]  From 2010 until the present, he has prosecuted federal crimes as an Assistant U.S. Attorney for the District of Oregon.10

History of the Seat

Bounds has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with O’Scannlain’s move to senior status.  Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.11  Oregon’s two democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez to the White House.  However, the White House nominated Bounds on September 7, 2017.

In response, both Wyden and Merkley declined to return blue slips on Bounds, noting, in a letter to White House Counsel Don McGahn that Bounds had not been approved by the state’s bipartisan judicial selection committee as of his nomination date, and that they had not been adequately consulted.12  McGahn disputed the lack of consultation and instread criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.13  Bounds’ American Bar Association rating is ‘Unanimously Qualified.’14

Legal Career

Bounds has a well-rounded legal career: trial and appellate work, civil and criminal work, and government and private practice at a top firm in Portland.15  Bounds’ career as an Assistant U.S. Attorney has centered on prosecuting immigration crimes (2010-2011) and fraud and environmental crimes (2011-present).16

Most of the major actions Bounds has worked on are in immigration and criminal law. The following cases are examples of his work: U.S. v. Vasquez, 843 F. Supp. 2d 1147 (D. Or. 2012) (dismissing assault with a dangerous weapon indictment because prison floor that defendant inmate slammed his victim into was not a dangerous weapon); U.S. v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1170 (D. Or. 2012)(holding illegal entry defendant in custodypending prosecution violated his statutory right to pretrial release); U.S. v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) (illegal entry defendant had been adequately informed that he was ineligible for voluntary departure due to previous rape conviction, and could not successfully collaterally attack his earlier removal order on grounds that he had not been so advised);Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (Board of Immigration Appeals abused its discretion by denying defendant’s motion to reopen his case as untimely because equitable tolling applied); Price v. U.S., 985 A.2d 434, 435 (D.C. Cir. 2009) (affirming theft conviction).

Speeches/Writings

As Deputy Assistant Attorney General, Bounds advocated for the maintenance of the Prison Litigation Reform Act (PLRA) when the issue was before the House of Representatives in 2007.  The question at bar was whether the PLRA’s terms, including the requirement that prisoners exhaust administrative remedies, that attorney’s fees are capped at 150% of any monetary recovery (i.e., if the recovery is $1, the PLRA caps attorney’s fees at $1.50), and that serial filers will be liable for court costs, have led to meritorious claims of prison abuses going unremedied.17  Bounds argued that the PLRA’s stated objective of decreasing frivolous prisoner lawsuits”has preserved the ability of legitimately harmed inmates to gain access to the courts and prevented the negative effects of frivolous cases in ever greater numbers.”18

While an undergrad at Stanford, Bounds co-founded The Thinker, a student publication aimed at providing a neutral forum where people of different political views can express their opinions freely and thoughtfully.20  Explaining what led him to co-found the paper, he expressed irritation “that there were some issues that I couldn’t talk about honestly on this campus.”  Bounds called Stanford’s conservative publication, The Review, “a service” in providing a forum where “people don’t toe the liberal line,” as in the liberal publication Stanford Daily, but saw the need for a single platform where “people with opposing viewpoints can meet on common ground.”21

Overall Assessment

Bounds’ relatively long, diverse career in litigation makes him an experienced candidate for the bench. While Bounds’ political orientation is decidedly conservative, his public positions have not been dogmatic or particularly ideological.  If Bounds is able to overcome the blue slip hurdle and gain the support of his home state senators, he will likely be confirmed.


[1]1http://pioneercourthouse.org/board-members-bios.html; http://www.oregonlive.com/portland/index.ssf/2017/09/trump_nominates_oregon_federal.html

[3]3https://web.stanford.edu/dept/news/pr/95/950605Arc5195.html

[4]4https://ballotpedia.org/Ryan_Bounds

[5]5https://ballotpedia.org/Ryan_Bounds; http://heinonline.org/HOL/LandingPage?handle=hein.journals/hjlpp21&div=8&id=&page=

[6]6https://ballotpedia.org/Ryan_Bounds

[7]7https://www.congress.gov/nomination/115th-congress/987

[8]8https://ballotpedia.org/Ryan_Bounds

Michael B. Brennan – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The last time the U.S. Court of Appeals for the Seventh Circuit had a full complement of judges was on January 16, 2010.  The next day, Judge Terence Evans moved to senior status.  Evans’ seat, informally assigned to Wisconsin, remains vacant to this day.  Due to infighting between his home-state senators, Michael Brennan, Trump’s nominee to fill the seat, is unlikely to see a smooth confirmation to the seat.

Background

Michael B. Brennan was born in 1963 in Milwaukee, Wisconsin.  Brennan received his B.A. cum laude from the University of Notre Dame in 1986.  He then proceeded to Northwestern University Law School, where he served as coordinating note and comment editor at the Northwestern University Law Review.  After graduating from law school, Brennan completed a two-year clerkship with Judge Robert Warren[1] on the U.S. District Court for the Eastern District of Wisconsin.[2]

After his clerkship, Brennan joined the Milwaukee office of Foley & Lardner, where he served as an associate for four years.  In 1995, Brennan left Foley to clerk for Judge Daniel Mannion on the U.S. Court of Appeals for the Seventh Circuit.

In 1997, Brennan joined the Milwaukee County District Attorney’s Office as an Assistant District Attorney.  The next year, while maintaining his position, Brennan also joined the Wisconsin Criminal Penalties Committee, a Committee intended to study and recommend changes in sentencing, as a staff attorney.  In 2000, Brennan was appointed by Gov. Tommy Thompson to be a judge on the Milwaukee County Circuit Court.

In 2003, Brennan applied to the Wisconsin Federal Judicial Commission for a vacancy opening up on the Seventh Circuit.[3]  However, Wisconsin Supreme Court Justice Diane Sykes got the nomination (and was ultimately confirmed).  In 2007, Brennan applied simultaneously for vacancies on the U.S. District Courts for the Eastern and Western Districts of Wisconsin.[4]  He was not selected for either vacancy, however, with the nominations going to fellow state judges Timothy Dugan and J. Mac Davis respectively.  However, neither candidate was ultimately confirmed.

In November 2008, Brennan unexpectedly announced his resignation from the bench to join Gass Weber Mullins LLC., a Milwaukee based complex litigation firm.[5]  He continues to practice there as a Partner.

History of the Seat

The seat Brennan has been nominated for is the longest pending appellate vacancy.  This seat opened on January 17, 2010 with the retirement of Judge Terence Evans.[6]  On January 22, 2010, Wisconsin Senators Herb Kohl and Russ Feingold, both Democrats, recommended four candidates for the vacancy to President Obama: U.S. District Judge Lynn Adelman; Prof. Victoria Nourse of the University of Wisconsin Law School; Judge Richard Sankovitz of the Milwaukee County Circuit Court; and defense attorney Dean Strang.[7]  On July 14, Obama nominated Nourse for the seat.[8]  No action was taken on Nourse’s nomination before the end of the 111th Congress.

In the 2010 elections, Feingold was defeated by Republican Ron Johnson.  Upon joining the Senate in 2011, Johnson indicated his opposition to Nourse’s nomination, claiming both procedural and substantive reasons for his opposition.[9]  Due to Johnson’s withholding of a blue slip, Nourse never got a hearing and her nomination was withdrawn at the end of 2011.

After Kohl was replaced by fellow Democrat Tammy Baldwin in 2012, Baldwin and Johnson struck a deal on a process to fill three federal judicial vacancies for Wisconsin, including the Seventh Circuit seat.[10]  The deal had both Johnson and Baldwin appoint three members to a Commission, which would then solicit applications and recommend no less than four candidates for each vacancy (for a candidate to be recommended, they needed support from five out of six commissioners).[11]

The deal allowed for the successful confirmations of Judges James Petersen and Pamela Pepper in 2014.  However, the Commission was unable to agree on four candidates to fill the Seventh Circuit vacancy, with only two out of eight finalists: Sankovitz and Madison attorney Donald Schott, receiving the requisite five votes.[12]  While Johnson offered to send only the names of Sankovitz and Schott to the White House, Baldwin instead sent all eight candidates, an action that Johnson characterized as breaking the original agreement.[13]

In January 2016, the White House nominated Schott to the vacancy.[14]  While Johnson initially demurred to support Schott,[15] he ultimately returned a blue slip to allow Schott’s nomination to proceed.  The Republican-controlled Senate Judiciary Committee held a hearing on Schott and advanced the nomination on a 13-7 vote on June 16, 2016.[16]  However, Senate Majority Leader Mitch McConnell blocked all further action on the nomination, and it expired at the end of the 114th Congress.

After the election of Trump and the re-election of Johnson in 2016, Johnson and Baldwin renewed their 2013 deal for the recommendations for federal judicial vacancies.[17]  In March 2017, Brennan was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[18]  After interviewing with the White House Counsel’s Office and the Department of Justice in March 2017, Brennan applied to the Commission set up by Johnson and Baldwin.[19]  However, the Commission did not recommend Brennan (or any other applicant) due to the inability to secure five votes.[20]  Despite the lack of recommendation for Brennan (who secured votes from all three Republican Commissioners and one Democratic Commissioner), the White House submitted his nomination to the Senate on August 3, 2017.[21]

As Brennan had not been recommended by the Wisconsin Federal Judicial Commission, Baldwin has indicated that she is “troubled” by his nomination, and has not yet returned a blue slip enabling the Judiciary Committee to hold a hearing.[22]  Nevertheless, the Senate Judiciary Committee is moving to a hearing on January 24, 2018.

Political Activity

Brennan has a long history of contributions and volunteering for the Wisconsin Republican party.  Brennan has volunteered and held positions in the campaigns of several Republicans including Johnson, Gov. Scott Walker, Congressman James Sensenbrenner, and former Governor and Senate candidate Tommy Thompson.[23]  Brennan also served on the Finance Committee of the Wisconsin Republican Party for four years.[24]  Brennan has also contributed financially to Republican candidates, including $1500 to Johnson and $4000 to Thompson.[25]

Additionally, Brennan is connected closely with Walker, serving as the Chair of Walker’s Judicial Selection Advisory Committee.[26]  While he chaired the Committee, it drew criticism for relying heavily on partisan identification and contributions when selecting judges for the state court.[27]  Brennan is also the founding member of the Milwaukee chapter of the Federalist Society, a conservative legal organization advocating for an originalist and textualist interpretation of the Constitution.[28]

Legal Practice

Brennan’s first legal position after his clerkship was at Foley & Lardner as a litigation associate.  In this capacity, Brennan largely represented corporations in federal and state court.[29]  For example, Brennan represented Great-West Life Assurance Company in defending an action for ERISA benefits filed by a widowed plaintiff.[30]  However, Brennan also participated in some more political actions.  In a notable case, Brennan successfully challenged a Fond Du Lac ordinance regulating the sale of tobacco products, arguing that the ordinance was pre-empted by state regulations on tobacco distribution.[31]  In another case, Brennan represented the Wisconsin Republican party who sought to prevent the placement of white supremacist David Duke on the Republican primary ballot in Wisconsin.[32]

From 1997 to 1999, Brennan served as Assistant District Attorney at the Milwaukee County District Attorney’s Office.[33]  In that capacity, Brennan represented Milwaukee County District Attorney E. Michael McCann in defending a Wisconsin statute requiring doctors to tell victims of rape and incest that services are available that allow women to listen to the heartbeat or view images of their unborn child.[34]  The Seventh Circuit upheld the statute in a 2-1 vote.[35]

After stepping off the bench in 2008, Brennan has served as a partner at Gass Weber Mullins LLC.  In this capacity, Brennan handles a combination of commercial litigation, catastrophic injury cases, and mediation.[36]  Among the more significant matters he has handled, Brennan has represented numerous correctional institutions in defending against §1983 suits.[37]

Jurisprudence & Reversals

Brennan served as a judge on the Milwaukee County Circuit Court from 2000 to 2008.  During that time, Brennan handled civil, criminal, landlord-tenant, traffic, juvenile, and probate matters.[38]  Brennan ran for re-election in 2001 and 2007, being unopposed both times.

During his tenure on the state bench, Brennan established a fairly conservative record, including as a strict sentencing judge.  In one notable case, Brennan sentenced a defendant to 66 years in jail after he drove drunk and caused an accident killing four people and injuring two others.[39]  In another case, Brennan sentenced a defendant charged with reckless homicide to 35 years in prison and an additional 20 years of extended supervision.[40]  In another notable case, Brennan presided over the sentencing of four Democrats, including the son of Congresswoman Gwen Moore (D-WI), who had pleaded no contest to slashing the tires of Republican election vans.[41]  Despite prosecutors recommending no jail time, Brennan threw out the plea agreements and imposed sentences of four to six months.[42]

In one of his most widely reported cases, Brennan presided over the criminal trial of a school-bus driver, who was charged with physical and verbal abuse towards a student with disabilities.[43]  Part of the evidence against the driver was from a recorder placed by the student’s parents in his backpack.  Brennan declined to exclude the recorded evidence, holding that the statements were not barred by Wisconsin’s Electronic Surveillance Control Law.[44]  Brennan’s ruling was overturned by the Wisconsin Court of Appeals but ultimately affirmed by the Wisconsin Supreme Court.[45]

Reversals

Over his eight years on the state bench, Brennan has been reversed in approximately fifteen cases.  The majority of these cases involved criminal convictions or rulings against defendants being reversed.[46]  For example, State v. Haas involved a defendant convicted solely on the basis of eyewitness testimony implicating him in a burglary.[47]  The defense sought to bring in the clothing the defendant was arrested in to impeach the eyewitness’ testimony.[48]  However, the clothing had been destroyed by the police and the defendant was convicted.[49]  Brennan denied a motion for a new trial.  However, the Wisconsin Court of Appeals reversed, holding that the destroyed exculpatory evidence clearly required reversal.[50]   Similarly, in State v. Alicea, a police officer failed to comply with a pretrial ruling barring all references to a robbery accusation against the defendant.[51]  Brennan, who presided over the trial, declined to declare a mistrial or allow the defense to explain that the robbery accusation was untrue, instead instructing the jury to disregard the reference.[52]  The Court of Appeals reversed for a new trial, finding that the police officer’s improper reference to the robbery accusation had violated the defendant’s rights.[53]

Surprisingly, some cases in which Brennan’s rulings were reversed by appellate courts appear to have been omitted from his Senate Judiciary Questionnaire.[54]  Among these cases is one where Brennan ruled that a tenant whose hair dryer caused a fire which damaged her rental unit was liable for the damage even without any showing of negligence.[55]  In reversing, the Wisconsin Court of Appeals found that the lease provision dictating liability was invalid under Wisconsin law.[56]  In another case, a landlord sought to evict a deaf tenant for breaching his lease by assaulting another resident.[57]  Brennan rejected the tenant’s argument that he had not been given an opportunity to remedy the breach, holding that quasi-criminal breaches were non-remediable as a matter of law.[58]  The Wisconsin Court of Appeals reversed, noting that Brennan’s ruling “cited no case law to support these conclusions…ignored the procedure set out in the statute and ignored the fact that Greenfield stated in its five’day notice that Tannehill could remedy the breach by having no future contact with Pell.”[59]

Speeches and Writings

Brennan has frequently written on legal issues, including Wisconsin court rulings, judicial politics, and trial tactics.  Brennan’s writings suggest strong conservative underpinnings in his judicial philosophy and will likely draw support from Republican senators and concern from Democrats.

Judicial Activism

Brennan has frequently written on the subject of judicial activism.  In 2005, as a sitting state judge, he authored an article criticizing the Wisconsin Supreme Court for “activist” decisions.[60]  Brennan’s article sparked a response from federal judge Lynn Adelman, who called the charge of activism “a rhetorically charged shorthand for decisions the speaker disagrees with.”[61]

In an earlier article, Brennan took the opposing perspective, disagreeing with calls for judicial restraint on the part of conservative judges, noting that “justices and judges faced with activist legislatures are not required to roll over in the name of judicial restraint.  That would leave in place a one-way ratchet of constantly expanding government.”[62]

Judicial Nominations

In 2011, as Johnson was blocking the Nourse nomination, Brennan, then the Chair of Walker’s Judicial Selection Advisory Committee, wrote in support of Johnson’s actions.[63]  In the op-ed, joined by other attorneys including two current Wisconsin Supreme Court Justices (selected by Brennan’s committee), Brennan notes that Johnson, as an elected Wisconsin senator deserves to “participate in the selection of a judge for a Wisconsin seat” and that the Nourse nomination was moved “in disregard of a senator’s duty of ‘advice and consent’ under Article II Section II.”[64]

Expert Testimony

In early 2012, Brennan and his partner J. Ric Gass gave a presentation on the Daubert standard for expert witnesses and the selection of experts in the context of scientific testimony.[65]  In his notes for the presentation, Brennan focuses on the inherent unpredictability of scientific testimony, noting that “[s]cience is inherently changeable” and “[p]roblems with scientific accuracy have always been with us.”  As such, Brennan encourages attorneys to prepare their scientific expert witnesses well and to recognize possible weaknesses in their scientific opinions.

Overall Assessment

There are two arguments that can made against Brennan’s nomination: one based on process, and one based on substance.  The procedural argument against Brennan’s argument is essentially parallel to the argument he and Johnson laid out against Nourse’s elevation.  Essentially, Brennan’s nomination is moving without the consent of the duly elected senator from his home state.  Democrats can reasonably argue that, given their past willingness to defer to Johnson’s objections to Obama’s nominees, Baldwin deserves the same deference with regard to Brennan.

The substantive argument against Brennan has little to do with his legal ability.  Given his experience as both a trial judge and a complex litigator, Brennan is well-prepared to handle the intellectual rigors of the Seventh Circuit.  As such, the argument against Brennan will likely focus on his conservative ideology.

Specifically, critics may look to Brennan’s strongly conservative rulings as a judge, alongside his ideologically charged writings, and his role in reshaping Wisconsin’s state judiciary in a conservative direction, and argue that Brennan lacks the requisite impartiality to be a federal judge.  In response, supporters will likely argue that the vast majority of Brennan’s rulings have been affirmed by higher courts, and that conservatives should not be denied seats on the federal bench purely based on their ideology.

With a narrow Republican majority in the senate, Brennan remains more likely than not to be confirmed.  However, given the opposition of his home state senator and the Republicans’ narrow margin of error, the outcome is not set in stone.


[1] An appointee of President Nixon, Warren was the Republican Attorney General of Wisconsin before his confirmation to the bench.  Wolfgang Saxon, Robert W. Warren, 72, Wisconsin Federal Judge, N.Y. Times, Aug. 22, 1998, http://www.nytimes.com/1998/08/22/us/robert-w-warren-72-wisconsin-federal-judge.html.

[2] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 2-3.

[3] Tony Anderson, Twelve Apply for 7th Circuit Seat, Wisconsin Law Journal, July 23, 2003.

[4] See David Ziemer, 17 Apply for Vacancy on United States District Court for the Eastern District of Wisconsin, Wisconsin Law Journal, July 30, 2007.  See also Jack Zemlicka, U.S. District Court Judge Shabaz’s Seat Draws 16 Candidates, Wisconsin Law Journal, Dec. 10, 2007.

[5] Marie Rohde, Two Milwaukee Judges Resigning for Private Practice, Milwaukee Journal Sentinel, Nov. 14, 2008, http://archive.jsonline.com/news/milwaukee/34502294.html/.  

[6] See Martha Neil, Longtime 7th Circuit Judge Terence Evans is Dead After Sudden Illness, ABA Journal, Aug. 11, 2011, http://www.abajournal.com/news/article/7th_circuit_judge_terence_evans_is_dead/ (noting Evans’ move to senior status).

[7] Adam Korbitz, Kohl, Feingold Forward Four Names to President Obama for Seventh Circuit, State Bar of Wisconsin, Jan. 25, 2010, https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=26&ArticleID=5864.

[8] Adam Korbitz, President Nominates Victoria Nourse to Seventh Circuit U.S. Court of Appeals, State Bar of wisconsin, July 15, 2010, https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=14&ArticleID=8620.  

[9] Craig Gilbert, Ron Johnson ‘Filibuster’ of Nourse Nomination to Federal Bench Draws Fire, Milwaukee Journal Sentinel, July 18, 2011, http://archive.jsonline.com/newswatch/125741928.html.

[10] Susan McDonald, Johnson, Baldwin Agree to Judicial Screening Panel, WISN, April 17, 2013, http://www.wisn.com/article/johnson-baldwin-agree-to-judicial-screening-panel/6314857.  

[11] Craig Gilbert, Baldwin, Johnson Bitterly Joust Over Appeals Court Vacancy, Milwaukee Journal Sentinel, Apr. 28, 2016, http://archive.jsonline.com/news/statepolitics/baldwin-johnson-bitterly-joust-over-appeals-court-vacancy-b99715579z1-377503181.html/.  

[12] See id.

[13] See id.

[14] Id.

[15] Press Release, Office of Sen. Ron Johnson, Johnson Responds to Judicial Nomination of Donald K. Schott (Jan. 12, 2016) (on file at https://www.ronjohnson.senate.gov/public/index.cfm/2016/1/johnson-responds-to-judicial-nomination-of-donald-k-schott).

[16] Shawn Johnson, U.S. Senate Panel Advances Wisconsin Judicial Nominee, Wisconsin Pub. Radio, June 16, 2016, https://www.wpr.org/u-s-senate-panel-advances-wisconsin-judicial-nominee.  

[17] Craig Gilbert, Ron Johnson and Tammy Baldwin Renew Deal on Picking Judges, Milwaukee Journal Sentinel, https://www.jsonline.com/story/news/politics/2017/02/13/ron-johnson-and-tammy-baldwin-renew-deal-picking-judges/97871500/.  

[18] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 51.

[19] See id.

[20] Margo Kirchner, Ron Johnson’s Hypocrisy on Federal Judgeship, Wisconsin Justice Initiative, Aug. 22, 2017, https://urbanmilwaukee.com/2017/08/22/op-ed-ron-johnsons-hypocrisy-on-federal-judgeship/.  

[21] Press Release, White House, President Donald J. Trump Announces Sixth Wave of Judicial Candidates and Fifth Wave of U.S. Attorney Candidates (August 3, 2017) (on file at www.whitehouse.gov/the-press-office).

[22] Todd Richmond, Trump Court Appointee Never Cleared Commission, Sen. Tammy Baldwin Says, Wisconsin State Journal, Aug. 5, 2017, http://host.madison.com/wsj/news/local/govt-and-politics/trump-court-appointee-never-cleared-wisconsin-commission-sen-tammy-baldwin/article_82e4070d-4ec3-599d-a437-a9296980894b.html.

[23] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 34-35.

[24] See id.

[26] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 34.

[27] See Eric Litke, Party Politics Color Governors’ Judicial Picks, Green Bay Press-Gazette, Jan. 29, 2016, http://www.greenbaypressgazette.com/story/news/2016/01/29/wisconsin-judicial-appointments–partisanship-walker-doyle/79509122/.  

[28] Carrie Severino, Who is Mike Brennan, Nat’l Rev., Aug. 4, 2017, http://www.nationalreview.com/bench-memos/450159/who-mike-brennan.  

[29] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38.

[30] Edwards v. Great-West Life Assur. Co., 20 F.3d 748 (7th Cir.), cert. denied 512 U.S. 962 (1994).

[31] U.S. Oil Inc. et al. v. City of Fond du Lac, 544 N.W.2d 589 (Wisc. App. 1996).

[32] McCarthy et al. v. Elections Bd. et al., 480 N.W.2d 241 (Wisc. 1992).

[33] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38.

[34] Karlin v. Foust, 188 F.3d 446, 490–91 (7th Cir. 1999)

[35] See id.

[36] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38-39.

[37] See, e.g., Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372 (7th Cir. 2012) (en banc), cert. denied sub nom. Correctional Med. Svcs., Inc. v. Glisson, – U.S. – (2017); James v. Eli, 846 F.3d 951 (7th Cir. 2017), reh’g granted, No. 15-3034, 2017 WL 1228561 (7th Cir. Mar. 31, 2017); Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), reh’g en banc denied, No. 14-3316, 2015 WL 10767326 (7th Cir. Dec. 7, 2015); Estate of Rice v. Correctional Med. Svcs, Inc., 675 F.3d 650 (7th Cir. 2012).

[38] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 20-21.

[39] State v. Promotor, Case No. 2003-CF-2230 (Wis. Cir. Ct. Aug. 3, 2004).

[40] State v. Whitmore, No. 2003-CF-005697 (Wis. Cir. Ct. Oct. 13, 2004).

[41] Week in Review, St. Paul Pioneer Press, Apr. 30, 2006.

[42] See id.

[43] State v. Duchow, No. 2003-CF-002648 (Wis. Cir. Ct. Dec. 29, 2003).

[44] See id.

[45] See State v. Duchow, 749 N.W.2d 913 (Wis. 2008), rev’ing 303 Wis. 2d 744 (Wis. Ct. App. 2007).

[46] See, e.g. State v. Lord, 723 N.W.2d 425 (Wis. 2006); State v. Haas, 750 N.W.2d 518 (Wis. Ct. App. 2008); State v. Jackson, 735 N.W.2d 178 (Wis. Ct. App. 2007); State v. Basley, 726 N.W.2d 671 (Wis. Ct. App. 2006); State v. McGowan, 715 N.W.2d 631 (Wis. Ct. App. 2006); State v. Alicea, 650 N.W.2d 560 (Wis. Ct. App. 2002).

[47] State v. Haas, 750 N.W.2d 518 (Wis. Ct. App. 2008).

[48] See id.

[49] Id.

[50] See id.i

[51] State v. Alicea, 650 N.W.2d 560 (Wis. Ct. App. 2002).

[52] See id.

[53] Id.

[54] See Shadley v. Lloyds of London, 776 N.W.2d 838 (Wis. Ct. App. 2009) (reversing Brennan’s award of attorney’s fees); Maryland Arms Ltd. Partnership v. Connell, 769 N.W.2d 145 (Wis. Ct. App. 2009) (reversing liability determination on fire in tenant unit); Greenfield Senior Housing V, LLC v. Tannehill, 736 N.W.2d 543 (Wis. Ct. App. 2007) (reversing finding that tenant’s breach of the lease was non-remediable); State v. McAdoo, 715 N.W.2d 240 (Wis. Ct. App. 2006) (reversing sentence because 27 months of extended supervision exceeded statutory max of nine months); State v. Simmons, 659 N.W.2d 507 (Wis. Ct. App. 2003) (reversing defendant’s convictions where defendant did not knowingly violate injunction).

[55] See Maryland Arms Ltd. Partnership v. Connell, 769 N.W.2d 145 (Wis. Ct. App. 2009).

[56] See id.

[57] See Greenfield Senior Housing V, LLC v. Tannehill, 736 N.W.2d 543 (Wis. Ct. App. 2007).

[58] See id.

[59] See id. at 552.

[60] Michael B. Brennan, Are Courts Becoming Too Activist, Milwaukee Journal Sentinel, Oct. 2, 2005.

[61] The Honorable Lynn Adelman and Shelley Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425, 427 (Winter 2007) (quoting Kermit Roosevelt III, The Myth of Judicial Activism, Making Sense of Supreme Court Decisions 3 (2006).

[62] Michael B. Brennan, Conservative Judicial Activism: More than Whose Ox Is Being Gored, The Federalist Society, August 2001, https://fedsoc.org/commentary/publications/hot-topics-judicial-activism.  

[63] See Michael B. Brennan, James T. Barry, Steven M. Biskupic, Rebecca G. Bradley, Donald A. Daugherty Jr., Daniel Kelly, David W. Simon, Sen. Johnson Only Wants to Have His Say on Nourse Nomination, Milwaukee Journal-Sentinel, July 23, 2011, http://archive.jsonline.com/news/opinion/126042043.html/.  

[64] See id.

[65] See Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 14.