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.

Judge Kurt Engelhardt – Nominee for the U.S. Court of Appeals for the Fifth Circuit

When Kurt Engelhardt was tapped for the federal bench in 2001, the young conservative looked poised for a swift elevation to the Fifth Circuit, and potentially even further.  Unfortunately, no Louisiana vacancy arose during the Bush Presidency and the election of Barack Obama foreclosed further opportunities.  With the election of Donald Trump, Engelhardt is getting an opportunity for elevation sixteen years after his initial court appointment.

Background

Kurt Damian Engelhardt was born in New Orleans on April 21, 1960.  Engelhardt attended the American Academy of Dramatic Arts and the University of New Orleans before graduating from Louisiana State University in 1982.  After graduating, Engelhardt joined Louisiana State University Law School, getting a J.D. in 1985.

After graduating, Engelhardt completed a two-year clerkship with Judge Charles Grisbaum on the Louisiana Fifth Circuit Court of Appeal, and then joined the Metairie office of Little & Metzger, APLC.  In 1992, Engelhardt joined Hailey, McNamara, Hall, Larman, & Papale, L.L.P. as an Associate.  In 1998, Engelhardt became a Partner at the firm.

On September 4, 2001, Engelhardt, then only 41, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Eastern District of Louisiana vacated by Judge Morey Sear.  Engelhardt’s nomination was championed by then-U.S. Representative David Vitter, who was a close friend.[1]  Engelhardt was confirmed unanimously by the Senate on December 11, 2001.  He became Chief Judge for the Eastern District in 2015 and serves in that capacity today.

History of the Seat

Engelhardt has been nominated for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on with Judge Edith Brown Clement’s announcement of her intent to take senior status upon confirmation of her successor.  Due to the nature of Clement’s announcement, the vacancy will not open until Engelhardt is confirmed.

In February and March 2017, Engelhardt conducted meetings with all the members of Louisiana’s congressional delegation other than Democratic Representative Cedric Richmond.[2]  In May 2017, Engelhardt interviewed with a judicial selection committee set up by Sen. Bill Cassidy (R-LA).[3]  In June 2017, Engelhardt interviewed with the White House Counsel’s Office, and was nominated on October 5, 2017.

Political Activity

Engelhardt was active in the Louisiana Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as Vice President of the Jefferson Parish Young Republicans.[4]  Engelhardt was particularly active in Vitter’s campaign serving as Chairman of his state legislative campaign committee and as Treasurer during Vitter’s congressional bids.[5]  Engelhardt has also donated to Vitter’s campaign, including a $1000 a few months before Engelhardt was nominated to the federal bench.[6]

Legal Career

After his clerkship, Engelhardt’s initial position was with Little & Metzger, APLC, where he worked in commercial litigation, handling contracts, business litigation, and bankruptcy.[7]  Among the cases he handled there, Engelhardt represented plaintiffs in a contract dispute who alleged material misrepresentations during the execution of the purchase contract.[8]

In 1992, Engelhardt joined the Hailey McNamara law firm.  There, Engelhardt continued a focus on commercial litigation, representing insurance companies, federal contractors, and shipyards.  While Engelhardt initially practiced only in the Eastern District of Louisiana, his practice eventually grew to envelop state court matters as well.[9]

Jurisprudence

Engelhardt has served as a judge on the U.S. District Court for the Eastern District of Louisiana for the last sixteen years.  In this role, Engelhardt has presided over hundreds or criminal and civil cases, including seventy six that have gone to verdict or judgment.[10]  We have summarized some of Engelhardt’s most significant cases below.

Danziger Bridge

In perhaps his most famous case, Engelhardt presided over the trials of New Orleans police officers charged in the “Danziger Bridge Incident”, where officers shot and killed unarmed storm survivors during Hurricane Katrina.[11]  In one of the trials, Engelhardt declared a mistrial based on the federal prosecutor’s mentioning “the name of a man who was beaten to death” in an unrelated case.[12]  In 2012, Engelhardt sentenced four of the officers to 38 to 65 years in prison for the shootings, while sentencing a fifth officer to five years for covering up the shootings.[13]  In sentencing the officers, Engelhardt criticized the prosecution for their reliance on cooperating witnesses and mandatory minimum sentences, indicating that he would likely have offered far lower sentences.[14]

A few months after the sentencing, news broke that key prosecutors in the U.S. Attorney’s office had engaged in a series of anonymous posts at news sites about defendants they were charging.[15]  In response to the news, the Danziger defendants moved for a new trial while prosecutors argued that there was no evidence that the anonymous posts had affected the verdicts.  In 2013, Engelhardt granted the motion for a new trial, noting:

“Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole.”[16]

Engelhardt’s ruling drew criticism from the Washington Post Editorial Board, who called his reasoning “unconvincing in the extreme.”[17]

In 2016, Engelhardt accepted guilty pleas from the five Danziger defendants, speaking out at the sentencing against the Department of Justice and the conduct of then Assistant Attorney General Tom Perez, who Engelhardt argued, had covered up prosecutorial misconduct in the case.[18]

British Petroleum (Rainey)

Engelhardt presided over the trial of David Rainey, a vice president at British Petroleum who was charged with lying to investigators in the aftermath of the Deepwater Horizon oil spill.[19]  Before trial, Engelhardt dismissed the lead count of the indictment: obstruction of Congress, only to see the dismissal overturned by the Fifth Circuit.[20]  Nevertheless, Engelhardt dismissed the count again on the first day of trial.[21]

The jury ultimately acquitted Rainey of the remaining counts of lying to investigators.[22]  In dismissing the jury, Engelhardt noted that he “agree[d] with the verdict.”[23]

FEMA Trailer Formaldehyde Litigation

Engelhardt presided over a part of a multidistrict lawsuit brought against FEMA, trailer manufacturers, and contractors for providing trailers contaminated with formaldehyde after Hurricanes Katrina and Rita.[24]  Early in the case, Engelhardt held that the hundreds of claims could not be considered a class action due to the uniqueness of each plaintiff’s situation.[25]  The claims ultimately ended in a settlement.

Overall Assessment

With sixteen years on the bench, Engelhardt has a long record of jurisprudence demonstrating a conservative judicial philosophy.  As such, one can conclude that Engelhardt would maintain a conservative voice on the Fifth Circuit, similar to Judge Clement, whom he would replace.

Depending on your perspective, Engelhardt’s conduct in the Danziger and Rainey trials are either a demonstration of those conservative values, or a deviation from them.  Some could argue that, in those cases, Engelhardt stood up to overzealous prosecutors and maintained the rule of law.  Others can counter that Engelhardt further denied justice to minorities by going out of his way to accommodate police officers and corporate defendants.

Ultimately, given Engelhardt’s mostly uncontroversial tenure on the District Court, he is likely to move through the confirmation process smoothly, and maintain the conservative majority on the Fifth Circuit.


[1] Stephanie Grace, ‘Fascinating Prospect’ David Vitter, President Obama Might Find Common Ground on New Orleans Judge, The Advocate, July 22, 2015, http://www.theadvocate.com/baton_rouge/opinion/stephanie_grace/article_017dafb2-2692-5a5b-a6fc-2b4763ed5aaf.html.  

[2] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 69-70.

[3] See id. at 70.

[4] See id. at 51-52.

[5] Id. at 51.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kurt+engelhardt&order=desc&sort=D (last visited Jan. 7, 2017).

[7] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53.

[8] See Ins. Underwriters Ltd. v. Oxford Mgmt., Inc., No. 87-13771 (La Civ. Dist. Ct.).

[9] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53-54.

[10] Id. at 17.

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

[12] Mistrial for Officer in Katrina Bridge Shootings Inquiry, Charleston Gazette, Jan. 28, 2012.

[13] Bloomberg News, Ex-cops Get Prison for Katrina Slayings, Windsor Star, Apr. 5, 2012.

[14] Campbell Robertson, Five Ex-Officers Sentenced in Katrina Shootings, N.Y. Times, Apr. 5, 2012.

[15] Editorial Desk, Perfidious Prosecutors, N.Y. Times, Dec. 3, 2012.

[16] United States v. Bowen, 969 F. Supp. 2d 546, 627 (E.D. La. 2013).

[17] Editorial Board, Injustice Restored, Wash. Post, Sept. 22, 2013.

[18] Denis Slattery, Interior Boss Ripped in Cop Katrina Slays, N.Y. Daily News, Apr. 24, 2016.

[19] See United States v. Rainey, No. 12-cr-291 (E.D. La.).

[20] Brian M. Heberlig, Congressional Gamesmanship Leads to an Acquittal in Deepwater Horizon Case, United States v. David Rainey: A Case Study, 20 Berkeley J. Crim. L. 260 (Fall 2015).  See also United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

[21] See id.

[22] Former BP Executive Found Not Guilty of Making False Statement Over Oil Spill, thespec.com, June 5, 2015.

[23] Id.

[24] See In re FEMA Trailer Formaldehyde Prod. Liab. Litig., MDL No. 07-1873 (E.D. La.).

[25] Class Action Denied in FEMA Trailer Suit, Wash. Post, Dec. 30, 2008.

Kyle Duncan – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)[6] for Louisiana’s AG’s office from 2008-2012.[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)[12] and of the Knights of Columbus,[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016.  Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, [16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was  “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.[18] In the motion, Duncan also  repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,[31] and the case is on appeal for the second time to the Fifth Circuit.[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),[43] Zubik (contraception),[44] Trinity Lutheran (religious funding),[45] Windsor and Obergefell (marriage for same-sex couples),[46] and others.

Duncan has written and spoken most often on the contraception mandate.[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.


[1] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[2] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, 4-5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[3] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[4] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2-3, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[5] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[6] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[7] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[8] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[9] https://www.becketlaw.org/about-us/mission/.

[10] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[11] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[12] https://fedsoc.org/.

[13] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[14] http://www.kofc.org/un/en/todays-knights/what-we-do.html.

[15] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 30, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[16] 1:16-cv-236-TDS-JEP (M.D.N.C.).

[17] https://www.aclu.org/legal-document/carcano-et-al-v-mccrory-et-al-complaint.

[18] ECF No. 34 at 2 (PDF p. 8), in 1:16-cv-236-TDS-JEP (M.D.N.C.)..

[19] ECF No. 34 at 2-3 (PDF pp. 8-9), in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[20] ECF No. 127, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[21] E.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[22] E.g., Stone v. Trump, No. CV MJG-17-2459, 2017 WL 5589122 (D. Md. Nov. 21, 2017); Doe 1 v. Trump, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015); see also Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[23] ECF No. 103 at 87-88, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[24] ECF No. 103 at 89, in 1:16-cv-236-TDS-JEP (M.D.N.C.) (emphasis added).

[25] Resp. to Pet. for Writ of Cert. at 2-3 (PDF. pp. 11-12), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[26] Resp. to Pet. for Writ of Cert. at 9, 12-14 (PDF. pp. 18, 21-23), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[27] 136 S.Ct. 1017 (2016).

[28] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[29] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[30] http://www.scotusblog.com/wp-content/uploads/2016/02/15-274-bsac-AAPS.pdf.

[31] ECF No. 274, in 3:14-cv-525-JWD-RLB (M.D. La.).

[32] No 17-30397 (5th Cir.).

[33] ECF No. 274 at 67 ¶ 230, in 3:14-cv-525-JWD-RLB (M.D. La.).

[34] ECF No. 274 at 70 ¶¶ 240, 242, in 3:14-cv-525-JWD-RLB (M.D. La.).

[35] Holt v. Hobbs, 135 S. Ct. 853 (2015).

[36] 2016 WL 1377728.

[37] 2009 WL 2564713.

[38] 2015 WL 1608213.

[39] http://www.scotusblog.com/wp-content/uploads/2017/01/16-833-cert-petition.pdf.

[40] 2015 WL 5064004.

[41] 563 U.S. 51 (2011).

[42] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[43] https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/hobby-lobby-spells-doom-for-mandate-20.

[44] https://www.schaerr-duncan.com/supplemental-briefs-in-zubik-v-burwell.

[45] https://www.schaerr-duncan.com/trinity-lutheran-church-v-pauley.

[46] https://www.schaerr-duncan.com/symposium-overruling-windsor; http://www.thepublicdiscourse.com/2015/04/14894/.

[47] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 6-7, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[48] https://www.firstthings.com/article/2013/10/how-fares-religious-freedom.

[49] http://www.ncregister.com/daily-news/the-other-health-care-mandate-good-samaritan-turned-upside-down.

[50] Kyle Duncan, Obergefell Fallout, in Same-Sex Marriage: A Reference Handbook, 2nd Edition, at 132 (preview available on Google Books).

[51] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[52] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[53] Kyle Duncan, Misunderstanding Freedom from Religion: Two Cents on Madison’s Three Pence, 9 Nev. L.J. 32 (2008).

[54] Kyle Duncan, Bringing Scalia’s Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 (2007).

[55] Kyle Duncan, Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).

[56] Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 497 (2003).

Bending Blue Slips: Grassley’s Strategic Error

In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction.  In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties.  Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration.  This period covers three Democratic Administrations and three Republican Administrations (twenty years of each).  In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

  • U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • U.S. Magistrate Judge J. Rich Leonard – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Judge Helene White of the Michigan Court of Appeals – nominated in 1997 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • Jorge C. Rangel – nominated in 1997 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • North Carolina Appeals Court Judge James Wynn – nominated in 1999 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Enrique Moreno – nominated in 1999 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • Kathleen McCree Lewis – nominated in 1999 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • James Lyons – nominated in 1999 to the Tenth Circuit (blue slipped by Republican Sen. Wayne Allard)
  • U.S. District Judge Robert Cindrich – nominated in 2000 to the Third Circuit (blue slipped by Republican Sen. Rick Santorum)
  • Victoria Nourse – nominated in 2010 for the Seventh Circuit (blue slipped by Republican Sen. Ron Johnson)
  • Steven Six – nominated in 2011 for the Tenth Circuit (blue slips returned but blocked upon request by Republican Sens. Pat Roberts and Jerry Moran)
  • Myra Selby – nominated in 2016 for the Seventh Circuit (blue slipped by Republican Sen. Dan Coats)
  • U.S. District Judge Abdul Kallon – nominated in 2016 for the Eleventh Circuit (blue slipped by Republican Sens. Richard Shelby and Jeff Sessions)
  • Justice Lisabeth Hughes – nominated in 2016 for the Sixth Circuit (blue slipped by Republican Sen. Mitch McConnell)
  • Rebecca Ross Haywood – nominated in 2016 for the Third Circuit (blue slipped by Republican Sen. Pat Toomey)

During Republican Administrations:

  • Stuart Summit – nominated in 1987 to the Second Circuit (processed by Judiciary Committee but blocked upon request of Sen. Alphonse D’Amato)
  • Stephen Murphy – nominated in 2006 to the Sixth Circuit (blue slipped by Democratic Sens. Carl Levin and Debbie Stabenow but ultimately confirmed to the District Court)
  • Shalom Stone – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sens. Frank Lautenberg and Bob Menendez)
  • E. Duncan Getchell – nominated in 2007 to the Fourth Circuit (blue slipped by Republican Sen. John Warner and Democratic Sen. James Webb)
  • U.S. District Judge Gene Pratter – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sen. Bob Casey)
  • Rod Rosenstein – nominated in 2007 to the Fourth Circuit (blue slipped by Democratic Sens. Barbara Mikulski and Ben Cardin)
  • U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked.  While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators.  As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on.  During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states.  In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans.  In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals.  In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees.  Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed.  Of these, 35 were from states requiring blue-slips from Republican senators.  Of these 35…

  • Five were District Court Judges originally nominated by Republican Presidents: Judges Fred Parker, Marcus, Traxler, Sotomayor, & Williams.
  • Four were District Court Judges nominated by Democratic Presidents but with strongly conservative records on the trial court: Judges Cabranes, Murphy, Hull, & Rendell.
  • Two were directly recommended by Republican senators: Judges Silverman & Tallman.
  • Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed.  Of these, 26 were from states with Republican home-state senators.  Of these 26…

  • Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.
  • Three were State Court Judges/Officials nominated by Republican Governors: Judge Christen, Phillips, & McHugh.
  • One was recommended by Republican senators: Judge Higginson.
  • Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.
  • Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.
  • Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed.  Of these, 31 were in states that had Democratic home-state senators.  Of these 31:

  • Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.
  • None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).
  • One was recommended by a Democratic senator: Judge Helene White.
  • Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall?  Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench.  Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges.  In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration.  Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals.  In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.

 

James C. Ho – Nominee to the U.S. Court of Appeals for the Fifth Circuit

As a well-respected appellate attorney, James C. Ho is a safe choice for the federal bench.  Furthermore, Ho, who has both a reputation as a solid conservative and impeccable academic credentials, would give the Trump Administration some badly needed diversity in their judicial ranks, as he would be the first Asian American on the Fifth Circuit, and only the third Taiwanese American federal judge.[1]

Background

Ho was born in Taiwan in 1973, immigrating to the U.S. a year later.  Ho received a B.A. with Honors in Public Policy from Stanford University in 1995, and went onto the University of Chicago Law School, graduating with High Honors in 1999.  After graduating, Ho clerked for Fifth Circuit Judge Jerry Edwin Smith, a noted conservative.

In 2001, Ho moved to Washington D.C. to work for the Civil Rights Division in the Department of Justice.  Ho later moved to the Office of Legal Counsel (OLC), working under Assistant Attorney General (and now federal judge) Jay Bybee.  In 2003, Ho was hired by newly elected Texas Senator John Cornyn to serve as his Chief Counsel.

In 2005, Ho was hired out of the Senate by Justice Clarence Thomas and served a one-year clerkship with the Justice.  After the clerkship concluded, Ho joined the law firm Gibson Dunn as an Associate.  Just two years later, Texas Attorney General Greg Abbott chose Ho to replace the departing Texas Solicitor General (and current U.S. Senator) Ted Cruz.

In 2010, Ho left the Texas Solicitor General’s Office to rejoin Gibson Dunn as a partner in their Dallas office.  Ho currently serves as the co-chair of the firm’s Appellate and Constitutional Law Practice Group.

History of the Seat

Ho has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on December 31, 2013 with Judge Carolyn Dineen King’s move to senior status.  King, an appointee of President Jimmy Carter, moved to senior status with three years left in the Obama Administration.  The Administration vetted Judge Marina Garcia Marmolejo, who Obama has previously tapped for the U.S. District Court for the Southern District of Texas, for the vacancy, but ultimately chose not to move forward with the nomination.[2]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The King vacancy, along with a second Texas vacancy opened by the retirement of Judge Emilio Garza, prompted a long negotiation involving Senators John Cornyn and Ted Cruz, as well as Texas Governor Greg Abbott, as the Trump Administration attempted to accommodate four candidates: Ho; Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[3]  Ho and Willett were ultimately nominated on September 28, 2017.[4]

Political Activity

Ho has been a generous donor to Republican candidates.  Cruz and Cornyn have been particular beneficiaries of his largesse, receiving $21806 and $7300 respectively.[5]  Additionally, Ho has contributed to $7600 to Cruz’s PAC, the Jobs, Growth, & Freedom Fund, and smaller contributions to Senators Chuck Grassley, Mike Lee, and Tom Cotton.

Legal Experience

While Ho is most celebrated as an appellate litigator, he spent the first five years of his legal career in government, working first for the Department of Justice, and then for Cornyn’s staff.  Notably, in February 2002, Ho drafted a memo to John Yoo, the Deputy Assistant Attorney General at OLC regarding the Interpretations of Article 3 of the Geneva Conventions.[6]  While the memo has not been made public, a section of it was cited by Yoo in his own memorandum claiming the legality of waterboarding and other interrogation tactics.[7]

During his initial stint as an associate at Gibson Dunn, Ho represented the American Civil Liberties Union (ACLU) , the Free Market Foundation, and the Texas Eagle Forum in successfully overturning restrictions on campaign money intended to influence the Texas House Speaker’s race.[8]

As Texas Solicitor General, Ho was tasked with representing the State of Texas in proceedings in state and federal court.  During his tenure, Ho argued one case at the U.S. Supreme Court, successfully arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not allow for suit against state officials in their private capacity.[9]  Ho also filed amicus briefs supporting the enforcement of the Second Amendment against municipalities in McDonald v. City of Chicago.[10]

Notably, as Solicitor General, Ho was also involved in the defense of the University of Texas’ affirmative action policies, challenged by conservatives who viewed them as discriminating against white applicants.[11]  Ho defended the affirmative action policies as “nuanced, student-by-student analysis.”[12]

After leaving the Texas Solicitor General’s office for Gibson Dunn, Ho took charge of their Appellate and Constitutional Law practice group.  In that capacity, Ho notably was part of the legal team defending the University of Texas’ admission policy at the U.S. Supreme Court.  The Supreme Court ultimately upheld the admission policy over charges that it constituted race-based discrimination, accepting Ho’s arguments.[13]

Speeches and Writings

Over the course of his legal career, Ho has both spoken and written on the law and the Constitution. Below are some of the key topics he has addressed.

Birthright Citizenship

Ho is a strong proponent of “birthright citizenship”: the guarantee in the Fourteenth Amendment that all individuals born in the United States gain citizenship, regardless of the legal status of their parents.  In 2007, Ho testified before the Texas Legislature against HB 28, a bill that would strip state services from the children of illegal immigrants, arguing that the bill violates the Fourteenth Amendment.[14]  Furthermore, in a 2006 article, Ho sharply criticized proposals to change birthright citizenship for children of illegal immigrants, noting that “birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”[15]

International Law, War, and Terrorism

In 2003, Ho authored an article responding to critics of the U.S. War in Iraq.[16]  Specifically, Ho argued that critics were mistaken in focusing the legitimacy of the coalition efforts on the presence or absence of Weapons of Mass Destruction (WMDs).[17]  Rather, Ho argued:

“…self-defense justification does not turn on evidence of WMD, but rather on the reasonable expectations and fears of the United States and Coalition partners…”[18]

Additionally, Ho co-authored an article with his old boss John Yoo on international law and terrorism.  In the article, Ho and Yoo argued that the September 11th terrorist attacks and subsequent conflict with Al Qaeda qualifies as a “war” under international law.[19]  They went to argue that, despite this fact, Al Qaeda members are not entitled to “prisoner of war” status or the protections that come with it.[20]

Overall Assessment

Ho would bring a truly unusual background to the federal bench.  He would be one of a handful of naturalized citizens serving on the federal judiciary, as well as one of the few with legislative and executive experience.

However, for all the unique qualities Ho would bring to the bench, he is nonetheless a fairly traditional nomination.  As a former Supreme Court clerk with a long history of appellate advocacy, Ho’s qualifications for the bench are unquestionable.  Further, while Ho is a strong conservative, his willingness to defend affirmative action and birthright citizenship for all shows the ability to reject conservative orthodoxy when it conflicts with the law.

Ultimately, many Democrats may decide that a principled conservative like Ho is the best they can hope for from the Trump Administration.  As such, Ho shouldn’t face the level of confirmation opposition as his co-nominee Willett, and will likely be confirmed swiftly.


[1] Judges Raymond Chen and Theodore Chuang are both Taiwanese American.

[2] Debra Cassens Weiss, 5th Circuit Nominees May Include a GOP Judge, ABA Journal, Dec. 10, 2013, http://www.abajournal.com/news/article/5th_circuit_nominees_may_include_a_gop_judge.  

[3] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.  

[4] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.  

[6] Al Kamen, Gonzales Witness Under Their Noses, Wash. Post, Jan. 10, 2005.

[7] Alliance for Justice, AJC Nominee Snapshot: James Ho, https://www.afj.org/wp-content/uploads/2017/11/AFJ-Snapshot-Ho.pdf.  

[8] Laylan Copelin, Outside Cash Allowed in Speaker’s Race, Austin American Statesman, Feb. 27, 2008.

[9] Sossamon v. Texas, 563 U.S. 277 (2011).

[10] 561 U.S. 742 (2010).

[11] Ralph K.M. Haurwitz, Judge Struggles with UT Race Bias Lawsuit, Austin American Statesman, May 20, 2008.

[12] See id.

[13] See Fisher v. University of Texas, 579 U.S. __ (2016).

[14] Juan Castillo, Panels Ask: Can State Fix Border Problems, Austin American Statesman, Mar. 29, 2007.

[15] James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367 (Summer 2006).

[16] James C. Ho, International Law and the Liberation of Iraq, 8 Tex. Rev. Law & Pol. 79 (Fall 2003).

[17] Id. at 79-80.

[18] Id. at 83.

[19] James C. Ho, John Yoo, The New York University – University of Virginia Conference on Exploring the Limits of International Law: The Status of Terrorists, 44 Va. J. Int’l L. 207, 209 (Fall 2003).

[20] Id. at 217-18.