Judge Bridget Bade – Nominee to the U.S. Court of Appeals for the Ninth Circuit

A federal magistrate judge for the District of Arizona, Bade was selected to serve on the Ninth Circuit after the White House rejected the top candidate suggested by Arizona senators and two candidates the White House considered never made it to nomination.  As a “compromise” candidate, Bade is likely to see a smooth confirmation.

Background

An Arizona native, Bade was born Bridget Ann Shelton in Phoenix in 1965.  Bade received a B.A. summa cum laude from Arizona State University in 1987 and a J.D. from the Sandra Day O’Connor College of Law at Arizona State University in 1990.[1]  After graduating from law school, Bade clerked for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit and then joined the Department of Justice in the Environmental Torts Litigation Section of the Civil Division.[2]

In 1995, Bade returned to Arizona to be a Shareholder at Beshears Wallwork Bellamy in Phoenix (the firm would later merge with Steptoe and Johnson).[3]  Eleven years later, she moved to become a federal prosecutor with the U.S. Attorney’s Office for the District of Arizona.[4]

In 2012, Chief Judge Roslyn Silver selected Bade to be a U.S. Magistrate Judge on the U.S. District Court for the District of Arizona.  Bade serves on that court currently.

History of the Seat

Bade has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on October 11, 2016 when Judge Barry Silverman moved to senior status.  With the vacancy opening three weeks before the 2016 Presidential election, President Obama made no nomination to fill the vacancy.

In April 2017, Arizona senators John McCain and Jeff Flake, both Republicans, recommended Assistant U.S. Attorney Dominic Lanza to fill the vacancy, alongside Bade and Arizona Supreme Court Justice Ann Scott Timmer as secondary choices.[5]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[6]

The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on former U.S. Attorney Paul Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[7]  Instead, Lanza was nominated and confirmed to a district court seat.

As for the Ninth Circuit vacancy, the White House vetted but declined to nominate Langhofer, as well as their next choice, DOJ Attorney (and White House Counsel alum) James Burnham.[8]  Finally, in April 2018, over a year after her name was originally sent to the White House, Bade was interviewed to fill the vacancy.[9]  She was nominated on August 27, 2018.

Political Activity

Bade has a fairly limited political history, having hosted a political reception for Mike Bailey, a Republican candidate for Maricopa County Attorney in 2004.[10]  Additionally, Bade gave a $250 contribution to Sen. Jon Kyl, a Republican, in 2006.[11]

Unlike most of Trump’s appellate nominees, Bade does not appear to be a member of the Federalist Society for Law and Policy.[12]

Legal Experience

Before joining the bench, Bade worked both in private practice and as a government attorney.  In this role, Bade handled primarily civil and appellate law.  Over the course of her career, Bade has tried three bench trials in federal court and two state court jury trials.[13]  Early in her career, Bade was part of a legal team defending the United States against a class action alleging that leaks from a defense facility had contaminated their groundwater.[14]

Notably, Bade handled two catastrophic tort suits against the U.S. Border Patrol, involving injuries suffered from passengers in vehicles crossing the border as they attempted to evade Border Patrol agents.[15]  Bade was able to successfully settle both cases and received a commendation from the Border Patrol from her work on the matters.

Jurisprudence

Bade has spent the last six years serving as U.S. Magistrate Judge in the District of Arizona.  In this role, Bade presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues.  In her six years, Bade has presided over three bench trials and one jury trial.[16]  The lone jury trial that Bade has presided over involved a personal injury suit arising from an automobile accident.[17]

Notably, Bade ruled that an Arizona Supreme Court rule that required attorneys seeking admission in Arizona to have reciprocal admission for Arizona attorneys was valid under the Dormant Commerce Clause and the First Amendment.[18]

In her time as a judge, Bade has had her reports and recommendations rejected by district judges in six cases.[19]  In an additional six cases, Bade’s reports and recommendations have been partially rejected by district judges.[20]  Furthermore, in four cases, Bade’s rulings were reversed on appeal.[21]

Overall Assessment

Bade may not have been the Administration’s first choice for the Ninth Circuit, but she may nonetheless prove to be the right one.  As a (relatively) older nominee with judicial experience, Bade is unlikely to attract the lightning rod of opposition that Langhofer or Burnham could have.  In fact, had it not been for her home-state senator’s blockade on judicial confirmations, it is likely that Bade would have been confirmed before the end of the year.

That being said, Bade may still ultimately draw negative votes in both committee and on the floor as her hearing was held over a recess, with no Democrats present.  Despite that factor, however, Bade is likely to be confirmed early next year (assuming that Senator-elect Kyrsten Sinema raises no objections).


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[6] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[7] See id.

[8] Betsy Woodruff, Alleged Mueller Witness James Burnham Is On Trump’s Judicial Wish List, Daily Beast, Oct. 8, 2017, https://www.thedailybeast.com/alleged-mueller-witness-james-burnham-is-on-trumps-judicial-wish-list.  

[9] See Bade, supra n. 1 at 64.

[10] See id. at 44-45.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=bridget+bade&cycle=&state=&zip=&employ=&cand= (last visited Nov. 15, 2018).  

[12] See Bade, supra n. 1 at 4-6 (listing her professional affiliations).

[13] See id. at 47.

[14] See Bates v. Tenco Services, Inc., et al., CV 87-1313-SB (D.S.C.).

[15] Castillejos v. United States, CV 08-1645-DKD (D. Ariz.); Lopez-Sauceda v. United States, CV 07-2267-DGC (D. Ariz.).

[16] See Bade, supra n.1 at 23.

[17] Valejo v. Grietl, et al., Case No. CV-13-01687-PHX-BSB (D. Ariz.).

[18] Nat’l Assoc. for the Advancement of Multijurisdictional Practice v. Berch, 973 F. Supp. 2d 1082 (D. Ariz. 2013), aff’d, 773 F.3d 1037 (9th Cir. 2014), cert. denied, 135 S. Ct. 2374 (2015).

[19] Pouncey v. Maricopa Cnty. Sheriff’s Off., No. CV-17-723-PHX-JAT (BSB) (D. Ariz. Sept. 11, 2017); Dominguez-Rojas v. United States, No. CV-16-2179-PHX-SRB (BSB), (D. Ariz. Apr. 25, 2017); Brinkman v. Ryan, 2016 WL 7474014 (D. Ariz. Dec. 27, 2016); Grant v. United States, 2016 WL 6327762 (D. Ariz. Oct. 31, 2016); Muktadir v. Donahue, No. CV-15-2009-PHX-ROS (BSB), 2017 WL 4349390 (D. Ariz. Mar. 31, 2016); Gibson v. Sternes, No. CV-14-8156-PHX-DLR (BSB) (D. Ariz. May 1, 2015).  

[20] Amaral v. Ryan, No. CV-16-594-PHX-JAT (BSB), 2017 WL 6463052 (D. Ariz. Dec. 19, 2017); Flowers v. O’Neil, No. CV-15-2670-PHX-JAT (BSB), 2017 WL 6276367 (D. Ariz. Dec. 11, 2017); Hiland v. Ryan, No. CV-13-8110-PHX-PGR (BSB), 2017 WL 3953945 (D. Ariz. June 29, 2015); Bosquez v. Ryan, No. CV-13-1714-PHX-PGR (BSB), (D. Ariz. Mar. 10, 2015); Equal Employment Opportunity Comm’n v. Recession Proof, No. CV-11-1355-PHX-BSB, 2013 WL 6327994 (D. Ariz. Dec. 5, 2013); Olmos v. Ryan, No. CV-11-344-PHX-GMS (BSB)(D. Ariz. June 24, 2013).

[21] Velasco v. United States, No. CV-15-1389-PHX-NVW (BSB), 2018 WL 947667 (9th Cir. Feb. 5, 2018; Colter v. Berryhill, 685 F. App’x 616 (9th Cir. 2017); Miller v. Parties, No. CV-16-1427-PHX-DGC (BSB), 2017 WL 6210796 (9th Cir. July 27, 2017); Baxla v. Colvin, 671 F. App’x 477 (9th Cir. 2016)

Chad Readler – Nominee to the U.S. Court of Appeals for the Sixth Circuit

DOJ Attorney Chad Readler would have been controversial simply by the nature of his work for the Trump campaign, and in defending some of the White House’s most controversial initiatives.  However, the strong opposition by home-state Sen. Sherrod Brown doesn’t ease his path any further.

Background

Chad Andrew Readler was born in Pontiac Michigan in 1972.  Readler received his B.A. from the University of Michigan in 1994 and his J.D. cum laude from the University of Michigan Law School in 1997.[1]  He then clerked for Judge Alan Norris on the U.S. Court of Appeals for the Sixth Circuit.[2]

After his clerkship, Readler joined the Columbus office of Jones Day as an Associate.[3]  In 2007, he became a Partner at the firm.[4]

In 2017, after the election of Donald Trump, Readler joined the Department of Justice as Acting Assistant Attorney General for the Civil Division.[5]  He maintained that position until the confirmation of Jody Hunt in September 2018, and now serves as Principal Deputy.

History of the Seat

Readler has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Deborah Cook has indicated that she will vacate the seat upon the confirmation of a successor.

Readler was directly contacted by the White House to gauge his interest in an appointment to the Sixth Circuit.[6]  After interviews with the White House, Readler interviewed with Brown and Republican Senator Rob Portman in late 2017.[7]  He was officially nominated on June 18, 2018.  Brown has indicated his strong opposition to Readler’s nomination and has indicated that he will not return a blue slip.[8]

Political Activity

Readler had served as Outside Counsel for the Trump campaign in 2016.[9]

He was also the Ohio Co-Chair of Lawyers for Romney in 2012 and assisted with several Republican judicial election campaigns.[10]  Readler has also donated frequently to Republican candidates, giving over $12000 over the last twelve years.[11]

Private Practice

Until he joined the Department of Justice last year, Readler was a Partner in the Columbus office of Jones Day, frequently described as Trump’s favorite law firm, which has produced many Trump judicial nominees.  During his time at the firm, Readler represented a habeas petitioner seeking review of his “actual innocence” based habeas claim despite a time-bar, arguing on the petitioner’s behalf at the Supreme Court, and obtaining a limited 5-4 victory for his client.[12]

Charter School

One of Readler’s most significant cases at Jones Day involved the constitutionality of Ohio’s public funding for charter schools.[13]  The case involved a challenge to public funding of Ohio charter schools, which critics argued could not be considered “public” as they were administered by private entities and managed by for-profit corporations.[14]  Readler defended the designation of charter schools as public because the schools did not discriminate in admissions and were funded with public money.[15]  The Ohio Supreme Court ultimately narrowly sided with Readler, upholding the constitutionality of charter schools by a 4-3 vote.[16]

Later, Readler continued to defend charter schools against efforts by the Ohio government to shut down public schools that were underperforming.[17]  He also served as co-chair of the Ohio Constitutional Modernization Commission, which provided recommendations for constitutional changes, and recommended eliminating a requirement that the state fund a “thorough and efficient” system of schools.[18]

Trump Campaigns

During the 2016 campaign, Readler was one of the attorneys at Jones Day representing the Trump campaign.  Notably, Readler defended comments made by Trump during the campaign suggesting that the election was “rigged” as protected political speech in a suit over voter intimidation by the Trump campaign.[19]

Department of Justice

Since 2017, Readler has served as Acting Assistant Attorney General and Principal Deputy Assistant Attorney General under the Trump Administration.  In these roles, Readler has been to court to defend some of the Administration’s most controversial positions.

Travel Ban

Perhaps the most controversial case that Readler handled is the legal defense of the Trump travel bans, which were ultimately upheld narrowly by the Supreme Court in their third iteration.[20]  Early in the Administration, Readler argued (unsuccessfully) that the Ninth Circuit should reinstate the Trump Administration’s ban on travel with seven Muslim-majority countries (enjoined by Judge James Robart).[21]  He also successfully defended the ban before Judge Anthony Trenga in the U.S. District Court for the Eastern District of Virginia.[22]

CFPB

In 2018, after President Trump replaced outgoing Consumer Financial Protection Bureau head Richard Cordray with Mick Mulvaney, Readler helped defend the constitutionality of the appointment against a challenge from Cordray’s deputy Leandra English.[23]  Readler successfully argued that the President retained the authority to name Mulvaney and persuaded Judge Timothy Kelly to deny a preliminary injunction.[24]

Sanctuary Cities

Readler was also called to defend the legality of a Trump Administration initiative to deny federal funds to  “sanctuary cities” (cities that limit their cooperation with federal immigration enforcement).  In a hearing before Judge William Orrick, Readler argued that the denied grants were relatively minor and disputed arguments by the City of San Francisco that it could lose up to $1.7 Billion in federal funding.[25]  Orrick ultimately disagreed, enjoining the initiative.[26]

Writings

Throughout his legal career, Readler has opined on the law.  Two of his writings are highlighted below.

Non-Discrimination Ordinances

As a young lawyer, Readler wrote an article discussing the impact of local and municipal anti-discrimination protections, specifically arguing that such protections are ineffective.[27]  Specifically, Readler notes that local non-discrimination ordinances are not publicized as well to employers, rarely enforced, and, thus, are less effective.[28]  As an example, Readler suggests that stringent ordinances protecting same-sex couples in Columbus would force companies with offices in Columbus and other cities (such as Cincinnati) to adopt company wide anti-discrimination policies, and that such adoption would override “the will of the people of Cincinnati.”[29]

As such, Readler recommends federal control of anti-discrimination laws, and suggests that having private companies “free to choose their own employment policies” would be even better as that would avoid the resources needed to debate such issues on the governmental level.[30]

Charter Schools

In 2014, Readler co-authored a paper with fellow Jones Day attorney Ken Grose, in which he described and discussed recent legal victories on behalf of charter schools, suggesting that the rulings have reaffirmed the legitimacy of charter schools and comparing the wins to the victory of David over Goliath.[31]  In the paper, Readler also accuses charter school opponents of “ignoring the law” and of treating charter schools as “second class citizens.”[32]

Overall Assessment

Let’s get the obvious out of the way first: Readler is a controversial nominee.  His record is likely to be strongly objectionable to Democrats, given his close affiliation with Trump and the Administration’s initiatives.  Add to that the fact that Democratic Sen. Sherrod Brown is opposed, and it’s likely that every single Democratic vote at the end of the day will come down against Readler.  As such, his confirmation will depend on how many Republicans join them.

As of right now, there is little reason to think that any will.  Readler’s intellectual capacity and his intelligence are unquestionable, and Republicans have generally backed even controversial Trump nominations.  Furthermore, Readler’s backers can also argue that he should not be penalized for defending the positions taken by his client.

As such, Readler remains a favorite to be confirmed.  If and when he is, he will add a strongly conservative voice to the Sixth Circuit, continuing the Trump Administration’s efforts to reshape the federal bench.


[1] Sen. Comm. on the Judiciary, 115th Cong., Chad A. Readler: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] See Readler, supra n. 1 at 81.

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

[8] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[9] See Readler, supra n. 1 at 60-61.

[10] See id.

[12] See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).

[13] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[14] Ohio Supreme Court to Rule on Charter Law; Fate of Nearly 300 Charter Schools May Hinge on Decision, Education Week, Dec. 7, 2005.

[15] See id.

[16] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[17] Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. Times, Nov. 8, 2007.

[18] Jeremy P. Kelley, School Funding Plan Brings Sharp Debate; Some Education Boards in Ohio Oppose Proposal; Vote Possible., Dayton Daily News, July 10, 2014.

[19] Mark Gillespie, Judge Orders Trump Backers to Stop Voter Harassment, Charleston Gazette-Mail, Nov. 5, 2016.

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

[21] David J. Lynch, Federal Appeals Court Refuses to Reinstate Seven-Nation Travel Ban; U.S. Executive Order, Financial Times, Feb. 6, 2017.

[22] Rachel Weiner, Va. Judge: Trump’s New Travel Ban Likely to Pass Muster, Wash. Post, Mar. 26, 2017.

[23] See English v. Trump, 279 F. Supp. 3d 307 (D.D.C. 2018).

[24] See id.

[25] See Maura Dolan, Trump Lawyer Says Sanctuary City Rule Won’t Pummel Cities, Augusta Chronicle, Apr. 15, 2017.

[26] See Bloomberg News, Crackdown Confronts Sanctuary Cities in Court, Telegram & Gazette, Apr. 15, 2017.

[27] Chad A. Readler, Local Government Anti-Discrimination Laws: Do They Make a Difference?, 31 U. Mich. J. L. Reform 777 (Spring 1998).

[28] Id. at 805-08.

[29] Id. at 808.

[30] Id. at 811-812.

[31] Chad A. Readler and Kenneth M. Grose, Adjudging Education Policy: How the Courts Shaped Ohio’s Charter School Movement, 45 U. Tol. L. Rev. 601, 603 (Spring 2014).

[32] See id. at 604, 617.

Allison Rushing – Nominee to the U.S. Court of Appeals for the Fourth Circuit

At just 36 years old, Allison Jones Rushing is the youngest nominee Trump has put forward so far to an appellate seat.  While Rushing has a stellar resume, her youth will likely raise concerns in the confirmation process.

Background

Rushing was born Allison Blair Jones in Hendersonville, North Carolina in 1982.  She received a B.A. summa cum laude from Wake Forest University in 2002 and a J.D. magna cum laude from the Duke University School of Law in 2007.  As a law student, Rushing worked as a summer intern at the Alliance Defense Fund (ADF) (now Alliance Defending Freedom).[1]  ADF has drawn controversy for its advocacy involving “religious freedom” and has been labeled a hate group by the Southern Poverty Law Center.[2]

After graduating, Rushing clerked for then-Judge Neil Gorsuch on the Tenth Circuit, Judge David Sentelle on the D.C. Circuit, and for Justice Clarence Thomas on the U.S. Supreme Court, with a short stint as an Associate at Williams & Connolly in between.[3]

After her clerkships, Rushing rejoined the D.C. office of Williams & Connolly as an Associate.  In 2016, Rushing became a Partner at the firm, where she continues to serve.

History of the Seat

Rushing has been nominated to replace U.S. Circuit Judge Allyson Kay Duncan, who has indicated her intention to move to senior status upon the confirmation of her successor.  In June 2018, shortly after Duncan announced her departure, Rushing was contacted by the White House to gauge her interest in an appointment to the Fourth Circuit.[4]  After an interview, Rushing was informed by the White House that she would be nominated.[5]  Rushing was officially nominated on August 27, 2018.

Legal Experience

Other than her clerkships, Rushing has spent her legal career at the firm of Williams & Connolly, specifically focusing on appellate and commercial litigation.  Over the course of her career, Rushing has handled four trials in federal district court as well as over 47 briefs at the U.S. Supreme Court.[6]  In her litigation work, she has frequently collaborated with Williams & Connolly partner Kannon Shanmugam, himself a famous conservative attorney.

Among her more prominent clients, Rushing has represented the Bank of America corporation,[7] KPMG,[8] Ernst & Young,[9] and Eli Lilly.[10]  Rushing also represented Jesse Litvak, a bond trader convicted of securities fraud based on statements he had made during negotiations, on appeal, successfully reversing the convictions on the basis that Litvak’s misstatements were immaterial.[11]  Rushing also represented the New York City Council Black, Latino and Asian Caucus as amicus in a case involving New York City’s policy of preventing worship services in schools.[12]

Writings

As a law student, Rushing authored an article discussing the Rooker-Feldman doctrine, which bars lower federal courts from reviewing state court judgments.[13]  In the paper, Rushing outlines the doctrine, as well as changes to its contours in later decisions such as Exxon Mobil Corp. v. Saudi Basic Industries Corp., which clarified that the Rooker-Feldman doctrine does not bar “parallel suits.”[14]

Political Activity & Membersips

Rushing has been a member of the Federalist Society for Law and Public Policy Studies since 2012.[15]  Rushing also served as a legal advisor in the Mitt Romney Presidential Campaign, to which she also donated $500.[16]

On the flip side, Rushing campaigned for Democratic Maryland Delegate Sam Arora, a former aide to Senator Hillary Clinton.[17]

Overall Assessment

With her hearing today, Rushing is on track to be the  youngest appellate judge confirmed since Alex Kozinski was appointed in 1985.  As such, it is likely that much of the debate around Rushing will revolve around her qualifications and experience.

While Rushing falls narrowly short of the American Bar Association’s twelve years of practice requirement, she was nonetheless rated “Qualified” by the group.[18]  This is likely a testament to Rushing’s substantial litigation experience, including extensive practice in the courts of appeals.

However, this does not mean that no questions can be raised about Rushing’s background.  Specifically, North Carolina lawyers might question Rushing’s connection with the court and the state that she will be serving.  While Rushing is a native North Carolinian, she has not practiced law in the state since law school, is not a member of the North Carolina bar, and, according to her firm biography, is not admitted to practice in the Fourth Circuit, the court to which she has been appointed.[19]

Given these factors and her relative youth, many will argue that there are many more qualified and experienced candidates for this vacancy.  However, the ultimate question around Rushing, as around any other nominee, is not whether she is the “most qualified” candidate, but rather, whether she meets the requisite levels of qualifications to be an appellate judge.  As Rushing’s intellect and legal ability are unquestioned, how senators vote will ultimately depend on which factors they consider in answering that question.


[1] Sen. Comm. on the Judiciary, 115th Congress, Allison Jones Rushing: Questionnaire for Judicial Nominees 2.

[2] See Southern Poverty Law Center, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom (last visited Oct. 17, 2018).

[3] See Rushing, supra n. 1 at 2.

[4] Id. at 28.

[5] Id.

[6] Id. at 13-14.

[7] See United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 83 F. Supp. 3d 528 (S.D.N.Y. 2015).

[8] See Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, LLP, 798 F.3d 113 (2d Cir. 2015).

[9] Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[10] See Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357 (Fed. Cir. 2017).

[11] See United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) and 808 F.3d 160 (2d Cir. 2015).

[12] The Bronx Household of Faith et al. v. Bd. of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014).

[13] Allison B. Jones, The Rooker-Feldman Doctrine: What Does It Mean to be Inextricably Intertwined, 56 Duke L.J. 643 (Nov. 2006).

[14] Id. at 658-59.

[15] See Rushing, supra n. 1 at 5.

[17] See Rushing, supra n. 1 at 10.

[18] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Oct. 17, 2018).

[19] See Williams & Connolly, Allison Rushing, https://www.wc.com/Attorneys/Allison-Jones-Rushing (last visited Oct. 17, 2018).

Eric Murphy – Nominee for the U.S. Court of Appeals for the Sixth Circuit

Eric Murphy was not even thirty-five when he was selected to be Ohio’s top appellate attorney.  Now, still shy of forty, Murphy has been nominated to a lifetime appointment to the Sixth Circuit.  However, Murphy’s nomination is strongly opposed by Sen. Sherrod Brown, his home-state senator.

Background

Eric Earl Murphy was born in Indianapolis in 1979.  Murphy received his B.A. from Miami University in 2001 and his J.D. from the University of Chicago Law School in 2005.[1]  He clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[2]

After his clerkships, Murphy joined the Columbus office of Jones Day as an Associate.[3]  In 2013, Ohio Attorney General Mike DeWine selected Murphy as the new Solicitor General for the state, replacing Alexandra Schimmer.[4]  He serves in that position today.

History of the Seat

Murphy has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Alice Batchelder has indicated that she will vacate the seat upon the confirmation of a successor.

In September 2017, Murphy reached out to the White House Counsel’s Office to express his interest in a judicial appointment.[5]  After interviews with the White House, Murphy interviewed with Brown and Republican Senator Rob Portman in late 2017.  He was officially nominated on June 18, 2018.[6]   Notably, Brown has indicated his strong opposition to Murphy’s nomination and has indicated that he will not return a blue slip.[7]

Political Activity

Murphy has a relatively limited political history, having served as part of the local Republican Party chapter as a college student and having volunteered for DeWine in the 2000 elections.[8]

Private Practice

After his clerkships, Murphy worked in the Columbus office (alongside fellow nominee Chad Readler) as an Associate in the Issues and Appeals section.  In this role, Murphy handled appeals in state and federal court, representing a variety of corporate clients, including R.J. Reynolds Tobacco Co., Goodyear Tires, and Procter & Gamble.[9]  Notably, Murphy represented the Washington Legal Foundation, a free-market conservative organization, in arguing that the First Amendment permits promoting a prescription drug for an off-label use, successfully getting a conviction overturned.[10]

Solicitor General

Since 2013, Murphy has served as the Solicitor General of Ohio, representing Ohio before state and appellate panels, defending state laws, and pushing for conservative legal outcomes in other cases.  In his five years as Solicitor General, Murphy has argued five cases before the U.S. Supreme Court.[11]  He has also filed four amicus briefs as counsel of record and has participated at the certiorari level in over eighty additional cases.[12]  We have highlighted some of the key positions he took as Solicitor General.

False Speech in Advertising

Murphy’s first argued case before the Supreme Court was Susan B. Anthony List v. Dreihaus.  The case involved a challenge by the Susan B. Anthony List, an anti-abortion group, to an Ohio law criminalizing the use of “false statements” in political advertising.  After a lower court held that the SBA List could not challenge the law for lack of standing, the Supreme Court granted certiorari and Murphy defended the law.  The Supreme Court unanimously held against Murphy’s position and found that the SBA List could challenge the law under the First Amendment.[13]

Death Penalty Protocol

In 2016, prisoners challenged Ohio’s three-drug protocol for executions, and its use of the drug Midzolam.[14]  After the District Court granted an injunction against the protocol, and the Sixth Circuit affirmed, Murphy was able to convince an en banc seating of the Sixth Circuit to reverse.[15]

Same Sex Marriage

As Solicitor General, Murphy led the defense of Ohio’s ban on same sex marriage, consolidated with the bans in Tennessee, Kentucky, and Michigan.[16]  Murphy defended the bans before the Sixth Circuit, arguing that gay marriage was an issue for voters, not the courts.[17]  However, the Supreme Court ultimately rejected Murphy’s position, holding that same sex marriage bans violate the Constitution.[18]

Restrictions on Voting

As Solicitor General, Murphy led the defense of Ohio voting restrictions, including two prominent cases that involved the Supreme Court.  The first case involved a challenge to the reduction of Ohio’s early voting period from 35 days to 28.[19]  Murphy defended the restrictions, successfully reinstating them before the Sixth Circuit after the District Court struck them down.[20]  The Supreme Court denied a stay.

The second case was a challenge under the National Voter Registration Act to Ohio’s practice of purging voters from the rolls after a two-year inactive period of voting.[21]  After the District Court permitted the practice, a panel of the Sixth Circuit reversed and the Supreme Court granted certiorari.  Murphy argued the case before the Supreme Court, which reversed 5-4.[22]

Overall Assessment

Murphy has accomplished a lot given his relative youth.  Despite barely meeting the 12 years of practice criteria set by the American Bar Association, it is hard to argue that Murphy is not qualified for the appellate bench.

However, this does not mean that Murphy will be deemed a “consensus” nominee.  Murphy has been advanced without the support of his home-state senator, which automatically puts a nominee at risk of opposition.  Additionally, Murphy’s record as Solicitor General can be characterized as constituting conservative activism.  Murphy’s defense of Ohio voting restrictions and same-sex marriage ban will be particularly scrutinized.

At the same time, Solicitors General and Attorneys General have a responsibility to defend their state statutes and policies, provided that there is a reasonable defense.  Murphy’s supporters can point to his defense of the Ohio “false statements” law, challenged by conservative groups, to argue that Murphy’s top priority is the law, rather than ideology.

Overall, given Senate Republicans’ abandonment of the “blue slip” policy for appellate nominees, Murphy will likely be confirmed.  However, he is unlikely to get the support of many, if any Democrats, in that process.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric E. Murphy: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Murphy, supra n. 1 at 47.

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

[7] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[8] See Murphy, supra n. 1 at 14-15.

[9] See Murphy, supra n. 1 at 16-17.

[10] See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).

[11] See Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018); Sheriff v. Gillie, 136 S. Ct. 1594 (2016); Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[12] See Murphy, supra n. 1 at 19-24.

[13] Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[14] In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) (en banc).

[15] Id. 

[16] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

[17] Robert Barnes, Gay-Marriage Backers Meet a Skeptical Court, Wash. Post, Aug. 7, 2014.

[18] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[19] Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); Husted v. Ohio State Conference of the NAACP, 135 S. Ct. 42 (2014).

[20] Id. 

[21] Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).

[22] Id.

Judge Richard Sullivan – Nominee to the U.S. Court of Appeals for the Second Circuit

When the 43 year old Sullivan was confirmed to the U.S. District Court for the Southern District of New York in 2007, legal observers predicted that the young judge would go far. However, the election of President Obama in 2008 short-circuited Sullivan’s expected rise to the Second Circuit (and potentially further).  Now, ten years later, the 54-year-old conservative is getting the long-delayed promotion.

Background

A native New Yorker, Richard Joseph Sullivan was born in Manhasset on April 10, 1964.  Sullivan received his B.A. from the College of William & Mary in 1986 and his J.D. from Yale Law School in 1990.[1]  After graduating, Sullivan clerked for Judge David Ebel on the U.S. Court of Appeals for the Tenth Circuit and then joined the New York firm Watchell Lipton Rosen & Katz as an associate.

In 1994, Sullivan joined the U.S. Attorney’s Office for the Southern District of New York, working as a prosecutor for the next 11 years.  In 2005, Sullivan joined Marsh Inc. as General Counsel.[2]  Two years later, President George W. Bush nominated Sullivan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Michael Mukasey’s move to senior status.  Sullivan was unanimously confirmed by the U.S. Senate on June 28, 2007.  Sullivan currently serves in that capacity.

History of the Seat

Sullivan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Richard Wesley, who moved to senior status on August 1, 2016.

In March 2017, Sullivan was contacted by the White House to gauge his interest in the Second Circuit.[3]  Sullivan’s name was suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Once approved, Sullivan began the nomination process in November 2017 and was nominated on May 7, 2018.

Legal Career

Sullivan has spent the most significant portion of his pre-bench career as a federal prosecutor.  Notably, Sullivan served as head of the Narcotics Unit at the U.S. Attorney’s Office for the Southern District of New York.  As such, Sullivan prosecuted a number of cases involving international drug trafficking, drug-related organized crimes, and drug-related corruption cases.[5]

From 2005 to 2007, Sullivan served as Deputy General Counsel for Litigation at Marsh & McLennan Companies, Inc. and then as General Counsel at Marsh, Inc.  In this role, Sullivan managed the in-house legal team at Marsh, a large insurance broker.

Jurisprudence

Sullivan has served as a federal trial judge for approximately eleven years.  His record on the bench is generally conservative, particularly on criminal issues.[6]  One observer has noted that the assignment of a criminal case to Sullivan strikes “fear into defense attorneys and their Wall Street clients…”[7]  Notably, New York federal prosecutors were criticized by the Second Circuit for maneuvering to keep criminal cases before Judge Sullivan rather than risk a random assignment to another judge.[8]  Below are some notable decisions by Sullivan in Constitutional cases:

Lederman v. New York City Department of Parks & Recreation[9] –  In this case, two visual artists who usually sold their works on New York sidewalks challenged an ordinance that limited the sales of expressive works to certain designated spots.  Sullivan upheld the restrictions, finding that they were narrowly tailored to achieve the government’s interest in “alleviating congestion and improving circulation” in parks and sidewalks.[10]  Sullivan’s decision was itself upheld by the Second Circuit.[11]

Nnebe v. Daus[12] – This case (and its successors) were challenges to New York’s policy of suspending the licenses of taxi drivers summarily after their arrest for certain enumerated crimes.  The plaintiffs argued that, by not providing them with a hearing prior to the suspension, New York had deprived them of their rights under the Due Process Clause.  They also argued that their rights were violated due to the inadequacies of the notice of the suspension and the post-suspension hearing.  Sullivan held that the hearings (or lack thereof) did not violate the plaintiff’s substantive or procedural due process rights.  He held, however, that the notice was inadequate, but declined to impose either injunctive relief or damages beyond nominal damages.

United States v. Scott[13] – This was a criminal case involving the Defendant’s unlawful re-entry after deportation.  Lacey Scott was born in Jamaica to unmarried parents.  His father later immigrated to the United States and Scott joined him under his legal custody.  Scott’s father later became a naturalized citizen, and a few years later, Scott was convicted of multiple felonies and deported to Jamaica.  In the proceedings before Sullivan, Scott argued that he should have received “derivative citizenship” by being a minor in the lawful custody of a U.S. citizen parent.  Sullivan held that Scott did not receive derivative citizenship because the statute does not extend such citizenship to children whose parents did not have a “legal separation.”  Furthermore, Sullivan rejected an Equal Protection Challenge to the statute, holding that “Congress had a rational basis here for distinguishing between legitimate (or legitimated) and illegitimate children.”[14]

United States v. Torres[15] – This case questioned whether officers had reasonable suspicion to stop and frisk the Defendant.  Sullivan found that the officers had reasonable suspicion for both the stop and the search where the defendant was in a high-crime area and ran away from the police.  In doing so, Sullivan rejected the Defendant’s argument that it was reasonable to run from plain-clothes officers where they failed to identify themselves as police.

United States v. Ortiz[16] – This case involved the suppression of incriminating statements made by the Defendant after officers threatened to arrest the Defendant’s mother and aunt.  Sullivan found that the threat rendered the subsequent statements involuntary and suppressed them.  However, he declined to suppress additional incriminating statements made by the Defendant in a later interview at the precinct, finding that sufficient time had elapsed since the threat to make the statements voluntary.

Overall Assessment

There is little doubt that Sullivan is well-qualified for a seat on the Second Circuit.  There is also little doubt that, if confirmed, Sullivan would add a new conservative voice to the Second Circuit, particularly on criminal issues.  Given the support that Sullivan has received from the influential Schumer and Gillibrand, it is likely that he will be confirmed before the end of the year.  The only question is whether that confirmation will look anything like his unanimous approval eleven years ago.


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

[2] See id. at 2.

[3] See id. at 77.

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

[5] See, e.g., United States v. Martinez, 464 F.3d 184 (2d Cir. 2006); United States v. Magana, 322 F. Supp. 2d 359 (S.D.N.Y. 2004); United States v. Madrid, 302 F. Supp. 2d (S.D.N.Y. 2003); United States v. Maisonet, 213 F.3d 637 (S.D.N.Y. 2001).

[6] See Charles Levinson, Tough Judge Richard Sullivan’s Rulings Are in the Spotlight, The Wall St. Journal, April 30, 2014, https://www.wsj.com/articles/tough-judge-richard-sullivans-rulings-are-in-the-spotlight-1398898973.

[7] See id.

[8] See Alison Frankel, Judge-Shopping Accusations Resurface Against Manhattan Federal Prosecutors, Reuters, June 15, 2017, https://www.reuters.com/article/us-otc-shopping/judge-shopping-accusations-resurface-against-manhattan-federal-prosecutors-idUSKBN1962Q9.  

[9] 901 F. Supp. 2d 464 (S.D.N.Y. 2012), aff’d, 731 F.3d 199 (2d Cir. 2013).

[10] See id. at 475.

[11] See 731 F.3d 199 (2d Cir. 2013).

[12]184 F. Supp. 3d 54, 72 (S.D.N.Y. 2016), appeal dismissed, (May 25, 2016),

[13] 919 F. Supp. 2d 423 (S.D.N.Y. 2013).

[14] Id. at 431.

[15] 252 F. Supp. 3d 229 (S.D.N.Y. 2017)

[16] 943 F. Supp. 2d 447 (S.D.N.Y. 2013)

Jonathan Kobes – Nominee for the U.S. Court of Appeals for the Eighth Circuit

So far, President Trump’s nominees to the Eighth Circuit have included a state supreme court justice with an extensive judicial and academic record, a long-serving federal judge, and a private attorney with a lengthy paper trail.  By contrast, his latest nominee, Jonathan Kobes, a Senate staffer with a varied resume, has virtually no writings or opinions revealing his views on the law.

Background

Jonathan Allen Kobes was born in Sioux City, Iowa, on August 25, 1974.  Kobes attended Dordt College, a small Christian liberal arts school based in Sioux Center, Iowa.  After graduating in 1996, Kobes spent a year in Chicago working for Zurich Kemper Investments.[1]  He then attended Harvard Law School and clerked for Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.

After his clerkship, Kobes spent a year working as an Honors Attorney with the Central Intelligence Agency (CIA).  He then became a federal prosecutor with the U.S. Attorney’s Office for the District of South Dakota, working there until 2005.[2]  Kobes then joined the Sioux Falls firm Murphy, Goldammer & Prendergast LLP as an Associate.

In 2008, Kobes transitioned to be Counsel at POET LLC, a biofuel company based in Sioux Falls.[3]  In 2012, he shifted to DuPont Pioneer, a seed manufacturer, serving as Senior Regulatory Counsel.  Finally, in 2013, he shifted, again, to Raven Industries, a manufacturer of agricultural products, to be Director of Corporate Compliance.[4]  In that position, Kobes worked for former Democratic Representative Stephanie Herseth Sandlin.[5]

In 2014, after South Dakota Governor Mike Rounds was elected to the U.S. Senate, Rounds hired Kobes to be his Deputy Chief of Staff and his Counsel.[6]  He currently works for Rounds as his General Counsel.

History of the Seat

Kobes has been nominated to replace his former boss, Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.  According to Kobes, he was contacted directly by the White House to gauge his interest in an appointment to the Eighth Circuit (before Judge Wollman’s move to senior status was public).[7]

After confirming his interest, Kobes interviewed with the White House in November 2017.  Kobes was formally nominated on June 11, 2018.[8]

Political Activity

Working as a staffer for Rounds, Kobes is participating in a political position.  However, setting his relationship to Rounds aside, Kobes does not have an extensive political history.  Kobes, a Republican, volunteered for both Rounds’ senate campaign and the campaign of Republican Secretary of State Shantel Krebs.[9]  Kobes also served as a Republican Precinct Committeeman in Sioux Falls.

Kobes served as a member of the Federalist Society for Law & Public Policy from 1999 to 2004 and of the National Rifle Association from 2013 to 2014, but is not presently a member of either organization.[10]

Legal Experience

Kobes’ first legal position out of law school was clerking on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Kobes worked for the CIA in Washington D.C, working on maintaining the security of classified information in pending litigation.[11]

In 2003, Kobes joined the U.S. Attorney’s Office for the District of South Dakota as a criminal prosecutor.  During his tenure, Kobes primarily focused on prosecuting cases coming out of the Pine Ridge Indian Reservation.[12]  For example, Kobes prosecuted a Pine Ridge School student for making a bomb threat to blow up the school.[13]  The student argued on appeal that he could not be federally prosecuted for making an intrastate phone call, but the Eighth Circuit sided with Kobes, holding that even intrastate phone calls could be prosecuted as long as they were connected to interstate phone lines.[14]

In 2005, Kobes joined Murphy, Goldammer & Prendergast LLP as an associate, working in civil litigation.  While at the firm, Kobes represented a group of crisis pregnancy centers in seeking to intervene to uphold a South Dakota law requiring the physician to read every woman seeking an abortion a predetermined script and to give them the contact information for a pregnancy help center.[15]  Kobes successfully intervened in the suit but the law was enjoined by Judge Karen Schreier upon suit from Planned Parenthood.[16]  Kobes also participated in the defense of the Corporation of the President Church of Jesus Christ of Latter-Day Saints against a suit by a man who was sexually abused by a missionary of the church.[17]

From 2008 to 2014, Kobes has worked in-house, shifting between three different companies.  From 2008 to 2012, Kobes worked at POET, managing general litigation, as well as handling policy and regulatory issues.[18]  In 2012, Kobes worked on handling legal issues around the sale and export of genetically engineered farm products at DuPont Pioneer.[19]  From 2013 to 2014, Kobes worked at Raven Industries, handling compliance and regulatory work primarily.[20]

Since 2014, Kobes has worked for Rounds in the U.S. Senate.  As Rounds’ General Counsel, Kobes manages the legal, ethics, and compliance of the Office.[21]  He also manages a legislative portfolio dealing with judiciary issues, civil rights, and immigration.[22]

Overall Assessment

Of the three nominees that Trump has put on the Eighth Circuit so far, two have been fairly controversial, while one has sailed through with barely a ripple.  So far, it is unclear if Kobes will follow the Ericksen model or the Grasz one.

Unlike Stras and Grasz (the more controversial Eighth Circuit picks), Kobes does not have a long paper trail on controversial issues.  He has no academic writings, has not directly litigated any hot-button cases, and does not have any current ties to contentious legal groups.  Furthermore, as a legislative staffer, Kobes, presumably, has built up a residual level of trust among his colleagues: trust that can be leveraged in the confirmation process.

On the other hand, Kobes’ involvement in the South Dakota Planned Parenthood suit may raise questions about his commitment to pro-choice precedent, while his previous involvement with the National Rifle Association and the Federalist Society may suggest to critics that Kobes will bend to the organizations’ legal positions on the bench.

Additionally, Kobes may receive criticism for having more limited litigation experience as compared to other nominees.  By his own admission, Kobes rarely appeared in court during his time in-house.  As such, Kobes’ litigation experience is limited to the six years he spent working as a federal prosecutor and at Murphy, a time that covers only six trials and even fewer appeals.[23] While appellate litigation experience is not required for a judicial nominee, the lack of it is particularly notable here given that Kobes does not have compensating academic experience.  However, Kobes’ supporters may note that he will bring regulatory, compliance, and legislative experience to the bench, skills that other judges don’t have.

Looking at Kobes’ record as a whole, he remains a favorite for confirmation.  However, given his limited paper trail, senators will likely push Kobes to elucidate his legal views during the confirmation process.  Kobes’ answers to these questions will give an indication of the kind of judge he will be.


[1] Sen. Comm. on the Judiciary, 115th Cong., Jonathan Kobes: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id.

[4] Id. at 12.

[5] David Montgomery, Rounds Hires Campaign Manager as Chief of Staff, Argus Leader, Dec. 18, 2014, https://www.argusleader.com/story/davidmontgomery/2014/12/18/rounds-skjonsberg-staff/20585699/.  

[6] See id.

[7] See Kobes, supra n. 1 at 23-24.

[8] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Nominees, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 11, 2018) (on file at www.whitehouse.gov/the-press-office).

[9] See Kobes, supra n. 1 at 10.

[10] See id. at 6

[11] See id. at 13.

[12] Id. 

[13] United States v. R.J.S. Jr., 366 F.3d 960 (8th Cir. 2004)

[14] Id. 

[15] Planned Parenthood Minnesota et al. v. Rounds, 2006 U.S. Dist. LEXIS 72778 (D.S.D. Oct. 4, 2006).

[16] See id. at *2.

[17] Joseph v. Corp. of the Pres. Church of Jesus Christ of Latter-Day Saints, 2008 U.S. Dist. LEXIS 7767 (D.S.D. Jan. 31, 2008).

[18] See Kobes, supra n. 1 at 13.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See Kobes, supra n. 1 at 15.

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

Idaho attorney Ryan Nelson was nominated by President Trump last year to be Solicitor (chief appellate attorney) for the Department of the Interior.  However, Nelson’s nomination was never confirmed by the Senate.  Now, Nelson is getting a shot at a different job: a lifetime appointment to the U.S. Court of Appeals for the Ninth Circuit.

Background

An Idaho native, Ryan Douglas Nelson was born in Idaho Falls in 1973.  Nelson received a B.A. from Brigham Young University in 1996 and a J.D. from the J. Reuben Clark Law School at Brigham Young University.[1]  After graduating from law school, Nelson clerked for Judge Karen Henderson on the U.S. Court of Appeals for the D.C. Circuit and for Judges Charles Brower and Richard Mosk on the Iran-United States Claims Tribunal.[2]

After his clerkships, Nelson joined Sidley Austin as an associate in their Washington D.C. Office.[3]  Five years later, he moved to the Department of Justice to be Deputy Assistant Attorney General for the Environment and Natural Resources Division.[4]  In 2008, Nelson moved to the Executive Office of the President as Deputy General Counsel and briefly worked as Special Counsel for the Senate Committee on the Judiciary, focusing on the nomination of Justice Sotomayor.

In 2009, Nelson returned to Idaho Falls to be General Counsel for Melaleuca, Inc, an online Wellness Product company.[5]  He is still with the company.[6]

On July 31, 2017, Nelson was nominated by Trump to be Solicitor to the Department of the Interior.[7]  On September 19, the nomination was unanimously voted out by the Senate Energy and Natural Resources Committee.  However, soon after, his nomination, alongside three others, was blocked by Sen. Richard Durbin (D-Ill.) as part of his objection to the Administration’s national monuments policy.[8]  At the end of 2017, senators were unable to reach an agreement to hold over Nelson’s nomination and it was returned to the President.

In 2018, Trump renominated Nelson to be Solicitor to the Department of the Interior.  However, his nomination was then blocked by Sen. Bill Nelson (D-Fla.) as part of negotiations with Zinke over drilling off the coast of Florida.[9]  As such, Nelson’s nomination was still pending when his name was announced for the Ninth Circuit, and was withdrawn as his new nomination reached the Senate.

History of the Seat

Nelson has been nominated for an Idaho seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on August 11, 2018 when Judge Norman Randy Smith moves to senior status.

In November 2017, while his nomination to be Solicitor for the Department of the Interior was pending, Nelson expressed his interest in the Ninth Circuit to Idaho senators.[10]  In February 2018, Nelson interviewed with the White House Counsel’s Office and was formally nominated on May 15, 2018.[11]

Political Activity & Memberships

Nelson has been a member of the Idaho Republican Party since 2010, including serving as the Chairman for the 2012 caucus in Idaho Falls.[12]  Nelson also volunteered on the Romney Presidential Campaign in 2012 and worked as a legal advisor for President Bush’s re-election campaign in 2004.[13]

Additionally, Nelson has occasionally donated to Republican candidates, including a $2000 donation to Romney in 2011.[14]  Nelson has also donated to U.S. Senators Mike Lee, James Risch, and Marco Rubio.[15]

Furthermore, Nelson has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[16]

Legal Experience

After his clerkship, Nelson spent five years working as an Associate at Sidley Austin.  In this role, Nelson handled primarily civil and appellate law.  Among the matters he handled at Sidley, Nelson defended a corrections contractor against a civil suit alleging the abuse of undocumented immigrants at the contractor’s facilities.[17]  Nelson was also part of the legal team supporting a suit brought by the State of Utah against efforts by the Census Bureau to fill in gaps in its work.[18]

From 2006 to 2008, Nelson served as Deputy Assistant Attorney General for the Department of Justice, defending agency decisions on land use, environmental, and energy issues.  In this role, Nelson personally argued 13 appeals, including the defense of using purse-seine nets in tuna farming despite the impact on dolphin populations.[19]

Notably, Nelson argued that the presence of a Latin cross in a San Diego war memorial did not violate the Establishment Clause of the U.S. Constitution.[20]  While U.S. District Judge Larry Burns upheld the cross’ constitutionality, the Ninth Circuit eventually reversed.[21]

Since 2009, Nelson has been Counsel to Melaleuca, Inc., an Idaho Falls based wellness company.  During Nelson’s tenure as Counsel, Melaleuca and its founder Frank VanderSloot filed a defamation suit against Mother Jones magazine for its coverage of VanderSloot’s political advocacy, including his alleged “outing” of Idaho investigative reporter Peter Zuckerman as gay.[22]  A second defamation suit was filed against Zuckerman after he complained about the outing on the Rachel Maddow Show.[23]  Ultimately, the suit against Mother Jones was dismissed on First Amendment grounds,[24][25] while the suit against Zuckerman was eventually settled.[26]

Overall Assessment

The Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  As such, the nomination of the conservative Nelson could be touted (in some circles) as an effort to shift the court to the right.  But setting the ideology of the pick aside, Nelson’s background in environmental law is particularly suited to the Circuit covering some of the country’s most scenic public lands.

This is not to say that Nelson will have an easy confirmation.  Specifically, senators may question Nelson’s role in the defamation actions against Mother Jones and reporter Peter Zuckerman.  Given the ultimate dismissal of the suit, senators may probe Nelson’s views of defamation litigation, as well as his perspective of New York Times v. Sullivan and the freedom the press is given in reporting on matters of public concern.  Ultimately, Nelson’s confirmation will likely turn on such questions.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Press Release, White House, President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts (July 31, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Timothy Cama, Durbin Blocks Interior Nominees From Confirmation, The Hill, Nov. 8, 2017, http://thehill.com/policy/energy-environment/359455-durbin-blocks-interior-nominees-from-confirmation.  

[9] Timothy Cama, Dem Senator Puts Hold on Trump Nominees Over Offshore Drilling Plan, The Hill, Jan. 18, 2018, http://thehill.com/policy/energy-environment/369509-dem-senator-puts-hold-on-trump-nominees-over-offshore-drilling-plan.  

[10] See Nelson, supra n. 1 at 40.

[11] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial nominees, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 15, 2018) (on file at www.whitehouse.gov/the-press-office).

[12] See Nelson, supra n. 1 at 8, 16.

[13] See id. at 16.

[15] Id.

[16] See Nelson, supra n. 1 at 8.

[17] Jama v. United States Immigration and Naturalization Servs., 334 F. Supp. 2d (D.N.J. 2004).

[18] See Utah v. Evans, 536 U.S. 452 (2002).

[19] Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).

[20] Trunk v. City of San Diego, 568 F. Supp. 2d 1199 (S.D. Cal. 2008).

[21] See 629 F.3d 1099 (9th Cir. 2011).

[22] Clara Jeffery and Monica Bauerlein, We Were Sued By a Billionaire Political Donor. We Won. Here’s What Happened, Mother Jones, Oct. 8, 2015, https://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit/.  

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

[24] See Melaleuca, Inc. v. Foundation for Nat’l Progress, No. CV-2013-532-OC (7th Jud. Dist. Idaho Oct. 6, 2015); Melaleuca, Inc. v. Zuckerman, No. CV-2014-2510 (7th Jud. Dist. Idaho Oct. 15, 2015).

[25] See DB, Judge Tosses Wealthy Idaho Conservative’s Defamation Lawsuit Against Mother Jones, TPM, Oct. 8, 2015, https://talkingpointsmemo.com/news/judge-tosses-frank-vandersloot-lawsuit-mother-jones.  

[26] Associated Press, Idaho Billionaire Settles Defamation Suit With Ex-Reporter, Pacific Northwest News, Oct. 21, 2015, https://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/10/idaho_billionaire_settles_defa.html.