David Porter – Nominee to the U.S. Court of Appeals for the Third Circuit

While the Trump Administration has displayed a tendency to nominate conservative judges to courts in blue and purple states, the selection of David Porter marks one of the most aggressive moves by the Trump Administration on this front. Porter’s nomination, which comes over the repeated objections of Pennsylvania Senator Bob Casey, sends a clear signal that the White House will not accommodate senatorial objections to their preferred candidates on the circuit court level.

Background

David Porter was born in Kittanning, Pennsylvania on March 8, 1966. He graduated from Grove City College in Northwest Pennsylvania in 1988 and graduated from George Mason Law School in 1992. Upon earning his J.D., Porter went to clerk for Judge D. Brooks Smith on the U.S. District Court for the Western District of Pennsylvania for two years. Following his clerkship, Porter joined the law firm Buchanan Ingersoll & Rooney and has stayed at the firm ever since.[1]

In 2014, Porter’s name was floated by Sen. Pat Toomey to fill a vacancy on the U.S. District Court on the Western District of Pennsylvania.[2]  While Toomey had struck a deal with Sen. Bob Casey to nominate one judge for every three that Casey put forward, Porter’s nomination was ultimately scrapped due to progressive backlash (legal groups were able to raise 40,000 signatures against Porter) and Casey’s opposition.[3]

History of the Seat

Porter is nominated to take the seat of Judge D. Michael Fisher, another GOP stalwart from Western Pennsylvania who in 2002 served as the GOP nominee for governor, who moved to senior status on February 1, 2017.[4]  Porter had been in contact with the White House and was selected as a prospective nominee early in 2017.[5]  However, Casey informed the White House of his opposition to the nomination soon after and indicated that he had “serious concerns” with Porter.[6]  As Casey’s opposition was clear, the White House sat on the nomination for a year, only nominating Porter after Chairman Chuck Grassley substantially cut back the blue slip policy for Circuit Court nominees, indicating that he would only block action on nominees where home state senators had not been adequately consulted.[7]

Legal Career

Porter’s legal career at Buchanan Ingersoll consists mostly of defense side commercial litigation work and First Amendment work for media and broadcasters.[8]  However, he notably represented former Sen. Rick Santorum in sorting out a residency challenge during his 2006 re-election campaign (which coincidentally was won by Casey).[9]

Political Activity and Affiliations

Porter has been a frequent GOP political donor since 2000. Over the last two decades, He has made 29 donations to GOP candidates and/or the Republican National Committee. He has no recorded donations to a Democrat. His donations to the GOP and GOP candidates totaled $13,550.

Porter has been a particular supporter of Santorum; making eight donations worth $4150 to Santorum’s campaigns over the years. From 2010 to 2016, he also has made four donations of $500 each to Pat Toomey.[10]

Porter also leads the Pittsburgh Chapter of the Federalist Society, a conservative legal advocacy group,[11] and is a member of the Republican National Lawyers Association. He served as a counsel on the Bush-Cheney 2004 reelection campaign.

Writings and Advocacy

While Porter has not been as prolific a writer as other Trump nominees, he has frequently advocated for conservative legal positions.  In 2009, Porter co-founded the Pennsylvania Judicial Network, which opposed the nomination of then-Judge Sonia Sotomayor to the U.S. Supreme Court, branding her nomination a sign of “judicial elitism.”[12]

Additionally, Porter was a strong opponent of the constitutionality of the Affordable Care Act as challenged in NFIB v. Sebelius. In the Pittsburgh Post-Gazette, he wrote a piece titled “Is the health care law constitutional? No, strike it down.”  In the piece, Porter emphasizes originalist arguments, writing that “[t]he framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable.”[13] He adds that original understandings of the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause made clear “the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.”[14]

In another piece on the Commerce Clause, Porter stressed that a ruling for the ACA would “break the Framers’ structural design that for 225 years has preserved individual liberty and served as a check on unlimited federal power.”[15]

Porter likewise found fault with the externality and tax arguments in favor of the ACA. He called the notion that we are all part of the healthcare marketplace a “metaphysical abstraction,”[16] and claimed that such a reading could “require people to buy a car.”[17] He said of the tax argument “that the Supreme Court is not likely to adopt it, either. Nor should it.”[18]  Ultimately, the Supreme Court upheld the individual mandate of the Affordable Care Act as a tax.

Overall Assessment

Looking at his overall record, there is little doubt that Porter will be a conservative judge on the Third Circuit.  His writings also suggest a strong leaning towards an originalist judicial philosophy.  This philosophy, combined with his advocacy against the Affordable Care Act and Justice Sotomayor’s nomination, has already drawn the strong opposition of liberal groups and, likely, will draw the opposition of senators as well.

However, one cannot talk about Porter without addressing the procedural problems with his nomination.  During the 114th Congress, the Obama Administration nominated Rebecca Ross Haywood, a well-respected appellate prosecutor, to the Third Circuit.  Haywood was blocked by Toomey, and Grassley respected his use of a blue slip and declined to give Haywood a hearing.  Grassley’ has now refused to extend the same courtesy to Casey.

While three appellate nominees have been given hearings in this Congress without home-state senatorial support, there is something different about Porter.  Namely, when the White House nominated Porter, Casey’s opposition was clearly (and publicly) laid out.  While the White House is under no obligation to honor a senator’s preferences on appellate nominees, one would expect the Judiciary Chairman to uphold the standards he himself laid out.  Grassley previously indicated that he would move forward on circuit court judges without blue slips only where the recalcitrant home state senators had been adequately consulted.  It is hard to demonstrate meaningful consultation in a case like this, where the home state senator has repeatedly and consistently expressed his opposition to a prospective nominee, and the nominee was put forward anyway.

Overall, it is unclear whether Casey’s objections will carry any weight among his Republican colleagues.  Assuming they don’t, Porter remains a favorite for confirmation, adding an assertive conservative voice to the relatively collegial Third Circuit.


[1] Sen. Comm. on the Judiciary, 115th Cong., David James Porter Questionnaire for Judicial Nominees, at 1-2.

[2] Jennifer Bendery, Pennsylvania Progressives Race to Stave Off Potential Republican Obama Nominee, HuffPost, March 27, 2014, https://www.huffingtonpost.com/2014/03/27/obama-judicial-nominee-david-porter_n_5042326.html.  

[3] Jennifer Bendery, Pennsylvania Progressives Torpedo Nomination of Potential GOP Obama Pick, HuffPost, June 2, 2014, https://www.huffingtonpost.com/2014/06/02/david-porter-toomey-obama-nominee_n_5433446.html.  

[5] See Porter, supra n. 1 at 28-29.

[6] Jennifer Bendery, Democrats Can’t Stop Trump’s Agenda. But They Can Block His Judicial Nominees., HuffPost, May 10, 2017, https://www.huffingtonpost.com/entry/trump-judicial-nominees-democrats-blue-slips_us_59137061e4b0bc71ddae8749?section=us_politics.  

[7] See Harsh Voruganti, “Bending Blue Slips: Grassley’s Strategic Error,” Vetting Room (Nov. 24, 2017) at  https://vettingroom.org/tag/blue-slips/.

[8] Supra Porter, note 1 at 15.

[9] Andrew Conte, “Santorum’s lawyer rebuffs challenge to residency,” Pittsburgh Tribune Review (May 26, 2006).

[11] Supra, note 1, at 4.

[12] See Letter from Vanita Gupta, President & CEO, Leadership Conference on Civil and Human Rights to U.S. Senate (June 4, 2018) (available at https://civilrights.org/oppose-confirmation-david-porter-u-s-court-appeals-third-circuit/#_ftn14).

[13] Porter, “Is the health care law constitutional? No, strike it down.”  Pittsburgh Post-Gazette (Mar 25. 2012) at http://www.post-gazette.com/opinion/Op-Ed/2012/03/25/Is-the-health-care-law-constitutional-No-strike-it-down/stories/201203250223.

[14] Id.

[15] Porter, “A Whirlwind Tour of the Supreme Court’s Commerce Clause Jurisprudence,” Center for vision and values (Apr. 2, 2012) at http://www.visionandvalues.org/2012/04/a-whirlwind-tour-of-the-supreme-courts-commerce-clause-jurisprudence/.

[16] Id.

[17] Supra, note 13.

[18] Supra, note 13.

Judge A. Marvin Quattlebaum – Nominee for the U.S. Court of Appeals for the Fourth Circuit

If the name A. Marvin Quattlebaum sounds familiar, it should: we wrote on his nomination to the district court just last year.  At the time we said the following:

“Nominees expected to sail through the process become bogged down, while nominees expected to draw controversy surprise everyone by getting confirmed easily.  Nevertheless, A. Marvin Quattlebaum, nominated for a vacancy on the U.S. District Court for the District of South Carolina, should feel good about his chances.”

The qualifying sentence proved surprisingly prescient when Quattlebaum’s confirmation drew 28 no votes (to be fair, the no votes were not about Quattlebaum but rather about the two African American Obama nominees to the same seat who never received the courtesy of a Senate vote).  Just one month after his confirmation to the U.S. District Court, Quattlebaum became a nominee again, this time for the U.S. Court of Appeals for the Fourth Circuit.  As such, here is an updated take on his nomination.

Background

Arthur Marvin Quattlebaum Jr. was born on August 2, 1964 in Durham, NC.  He received a B.A. with Honors from Rhodes College in 1986 and a J.D. from the University of South Carolina Law School in 1989.  While a law student, Quattlebaum worked as a summer associate at the Columbia law firm Nelson, Mullins, Riley & Scarborough, LLP.  Upon graduation, Quattlebaum was hired there as an Associate.

In 1996, Quattlebaum left Nelson Mullins to be a partner at the law firm Robinson & Quattlebaum.  A year later, Quattlebaum returned to Nelson Mullins as a Partner.

On August 3, 2017, Quattlebaum was nominated by President Trump to be a U.S. District Court Judge for the District of South Carolina to fill the seat vacated by Judge Cameron Currie on October 3, 2013.  Two African American Obama nominees, Judge Allison Lee and Justice Donald Beatty, were blocked from a final vote for this seat by the opposition of South Carolina’s Republican Senators.  For his part, Quattlebaum attracted little controversy but was confirmed on March 1, 2018 by a relatively narrow 69-28 vote with Democrats citing the treatment of Lee and Beatty as the reason for their opposition.  Quattlebaum serves as a U.S. District Court Judge today.

History of the Seat

Quattlebaum has been nominated to replace U.S. Circuit Judge William Traxler, who is scheduled to move to senior status on August 31, 2018.  Traxler, who was appointed to the U.S. District Court by President George H.W. Bush and to the Fourth Circuit by President Bill Clinton, has been a fairly conservative judge.

Legal Experience

Other than one year working on plaintiff’s side law at Robertson & Quattlebaum, Quattlebaum spent his entire pre-bench legal career practicing business litigation at Nelson Mullins.  As a partner in the Greenville office, Quattlebaum primarily focused on the defense of product liability actions.

Among Quattlebaum’s more prominent cases, he was the primary lawyer defending Michelin North America Inc. against a suit alleging injuries from the sale of a defective tire.[1]  He also represented Michelin in antitrust and breach of contract actions.[2]  In another key case, Quattlebaum successfully defended an industrial manufacturer from a wrongful death claim based on an earth compactor that rolled over.[3]

Jurisprudence

Quattlebaum has been a federal judge since March 6, 2018.  In those two months, he has only had a chance to hear and decide a handful of cases, none of which have reached a resolution on appeal.  Most of these cases involve 1983 civil rights suits brought by state prisoners, which Quattlebaum has generally accepted recommendations to dismiss.[4]

One notable case handled by Quattlebaum in his short tenure was a constitutional challenge to a unique traffic control plan imposed by Myrtle Beach on participants in Bikefest.[5]  The NAACP brought the suit, alleging that the restrictions on Bikefest, whose participants are predominantly African American, violated the First Amendment and the Equal Protection Clause, noting that similar restrictions were not levied against the majority-white participants in Harley Week.[6]  Quattlebaum declined to grant a preliminary injunction against the traffic control plan, noting that plaintiffs had failed to make the requisite factual findings.[7]

Political Activity

Quattlebaum has a long history of contributions to Congressional Republicans.  This includes approximately $8000 to Graham, $7600 to Scott, and $6400 to Gowdy.[8]  Additionally, Quattlebaum has also donated to former Sen. Jim DeMint, and former Rep. Bob Inglis, both South Carolina Republicans.[9]  In contrast, Quattlebaum has only one contribution to a Democrat, donating $1000 to Alex Sanders’ Senate bid against Graham in 2001.[10]

In addition, Quattlebaum has served in a volunteer capacity in the campaigns of Graham, Scott, and Gowdy.  Quattlebaum also served on the South Carolina Lottery Commission from 2003-2010, appointed to that role by Republican Governor (and now Congressman) Mark Sanford.

Overall Assessment

Quattlebaum’s nomination to the District Court drew opposition primarily based on the history of the specific seat he was nominated for rather than his own personal characteristics.  Furthermore, he has not been on the District Court long enough to draw a controversial record.  As such, one can reasonably conclude that his nomination is unlikely to attract a significant degree of controversy.

However, nominations to the Court of Appeals tend to attract significantly more controversy than those to the District Court, and factors that were forgiven in confirming Quattlebaum earlier, such as his political donation history, may draw more weight for an appellate nominee.  Additionally, critics may argue that Quattlebaum, having only been a judge for two months, lacks the requisite judicial experience to be an appellate judge (although many appellate nominees lack any judicial experience whatsoever).

Overall, Quattlebaum still remains favored for a comfortable confirmation.  However, as his initial confirmation rodeo proved, nothing can be taken for granted.


[1] See Demas v. Michelin N. Am., Inc., No. 09 L 013814, Illinois Circuit Court (Judge Daniel Lynch).

[2] Michelin N. Am., Inc. v. Inter-city Tire, No. 6:13-cv-01067 HMH, 2015 WL 12843914 (D.S.C. Jan 20, 2015) (Judge Henry Herlong).  

[3] Edwards v. Ingersoll Rand Co., No. 6:01-cv-02205-HFF (D.S.C.).

[4] See, e.g., Rose v. Nettles, No. CV01702000AMQPJG, 2018 WL 2268021, at *1 (D.S.C. May 16, 2018); Townsend v. S. Health Partners, No. 0:18-CV-00414-AMQ, 2018 WL 2220282, at *1 (D.S.C. May 15, 2018); Tyler v. Chavis, No. CV 9:17-3270-AMQ-BM, 2018 WL 2011526, at *1 (D.S.C. Apr. 30, 2018); Hurley v. Lovett, No. CV 8:17-1993-AMQ-KFM, 2018 WL 1811371, at *1 (D.S.C. Apr. 17, 2018).

[5] NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., et al., Plaintiffs, v. CITY OF MYRTLE BEACH, et al., Defendants. Additional Party Names: Cedric Stevenson, City of Myrtle Beach Police Dep’t, Leslie Stevenson, Simuel Jones, No. 4:18-CV-00554, 2018 WL 2332018 (D.S.C. May 23, 2018).

[6] Id. at *1.

[7] Id. at *4-*5.

[8] Center for Responsive Government, https://www.opensecrets.org/donor-lookup/results?name=Marvin+Quattlebaum&order=desc&page=1&sort=D (last visited Oct. 3, 2017).  

[9] See id.

[10] Id.

Andrew Oldham – Nominee for the U.S. Court of Appeals for the Fifth Circuit

Young, well-credentialed, and fiercely conservative, Andy Oldham is exactly the type of nominee that Trump promised to name to the federal bench if elected.  While Oldham’s involvement in aggressive conservative litigation may have secured him the nomination, it is likely to draw strong opposition from Senate Democrats.

Background

Andrew Stephen Oldham was born in Richmond, VA on December 15, 1978.  Oldham received a B.A. with Highest Honors from the University of Virginia in 2001, and then received a Master of Philosophy from the University of Cambridge in 2002.[1]  Oldham then attended Harvard Law School, graduating magna cum laude in 2005.  (At Harvard Law, one of Oldham’s professors was U.S. Sen. Elizabeth Warren).[2]

After law school, Oldham moved to Washington D.C. to clerk for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit.  Oldham then moved to the Office of Legal Counsel (OLC), working under acting Assistant Attorney General Stephen Bradbury.  In 2008, Oldham secured a clerkship with Justice Samuel Alito on the U.S. Supreme Court.[3]

In 2009, Oldham joined the law firm Kellogg Huber as an Associate.  Just three years later, Texas Attorney General Greg Abbott hired Oldham as Deputy Solicitor General, working with fellow judicial nominee Cam Barker.

In 2015, when Abbott was elected to be Texas Governor, Oldham became his Deputy General Counsel.[4]  Oldham became the Acting General Counsel in 2017 and the General Counsel in 2018.

History of the Seat

Oldham has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on April 2, 2018 with Judge Edward Prado’s resignation to be the U.S. Ambassador to Argentina.  However, Oldham had been on the White House’s radar much earlier.  In 2017, Oldham was a finalist alongside Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney James Ho to fill two Texas vacancies on the Fifth Circuit.[5]  Ho and Willett were ultimately nominated on September 28, 2017 and confirmed in December 2017.[6]  Oldham remained under consideration, however, and was nominated to the Prado seat on February 15, 2018.

Political Activity

Oldham does not have a long donation history, with his only donation of record being a $500 contribution to Cruz during his presidential campaign in 2016.[7]  Additionally, Oldham served as an envelope stuffer for Republican George Allen’s senatorial campaign in 2000.[8]

Oldham has also been a member of the Federalist Society for Law and Public Policy Studies, a conservative legal organization that has produced many Trump nominees, since 2002.[9]  He has also been a member of the National Rifle Association since 2015.[10]

Legal Experience

Oldham has served in both advisory positions: at the Office of Legal Counsel and then as Abbott’s General Counsel; and litigation positions: at Kellogg Huber and the Texas Attorney General’s Office.  While Oldham has engaged substantively with the law in each of these positions, the bulk of his most controversial (and significant) cases have been handled as Deputy Solicitor General of Texas, a role in which Oldham spearheaded much conservative activist litigation, as well as amicus work handled as Abbott’s Counsel.  Below, we highlight some of Oldham’s work on hot-button issues:

DAPA & Immigration

Oldham was lead counsel in challenging the Obama Administration’s Deferred Action for Parental Accountability (DAPA), which deferred action status for deportation purposes for immigrants with children who were American citizens or lawful permanent residents.[11]  Oldham drafted the initial complaint and successfully argued for a nationwide injunction before Judge Andrew Hanen.[12]

Abortion and Healthcare

As Deputy Solicitor General of Texas, Oldham managed the defense of Texas laws that critics alleged impeded a woman’s right to have an abortion.  Oldham was part of the legal team that successfully persuaded the Fifth Circuit to overturn a trial injunction and find that Texas laws requiring abortion providers to have admitting privileges in local hospitals and restricting medication abortions were constitutional.[13]  Oldham was also involved in the defense of the restrictions under an “as-applied challenge” brought by a McAllen Texas abortion clinic.[14]  The Supreme Court would eventually find that the provisions created an “undue burden” on a woman’s right to choose.[15]

Oldham was also lead counsel in a challenge to the Affordable Care Act under the “Origination Clause” of the Constitution.[16]  Shortly after Oldham left the case, the Fifth Circuit dismissed the challenge for lack of standing.

Habeas Rights

As Deputy Texas Solicitor General, Oldham argued two cases before the Supreme Court, in both cases arguing, unsuccessfully, for the barring of habeas claims raised by the plaintiffs.  In the first case, a 5-4 majority of the Supreme Court ruled against Oldham’s position, finding that the ineffective assistance of state habeas counsel can excuse the procedural default of a habeas claim.[17]  In the second case, a 6-3 majority held that a habeas inmate did not need to cross-appeal a claim he had lost on the trial level in order to raise it during a defense of claims he had won.[18]

Second Amendment

As Deputy General Counsel for Governor Abbott, Oldham filed an amicus brief on behalf of the Governors of Texas, Louisiana, Maine, Mississippi, Oklahoma, and South Dakota in a Second Amendment challenge to a California law requiring good cause to carry a concealed firearm.[19]  Despite Oldham’s and other briefs filed supporting the Second Amendment challenge, the Ninth Circuit held en banc that the Second Amendment does not protect a right to concealed carry.[20]

Campaign Finance

In the Texas Attorney General’s Office, Oldham helped defend Texas’ campaign finance laws against First Amendment challenges brought by a group of nonprofits and general-purpose political committees.[21]  The plaintiffs challenged Texas’ ban on corporate contributions for issue-oriented general-purpose committees, as well as requirements that the committees have appointed treasurers, collect ten contributions, and wait sixty days before exceeding $500 in contributions and expenditures.[22]  In the challenge defended by Oldham, the Fifth Circuit struck down the ten contribution limit and the sixty day waiting period but upheld the other requirements.[23]

Environmental & Administrative Law

At the Texas Attorney General’s Office, Oldham helped craft the challenge to greenhouse gas rules promulgated by the EPA under the Clean Air Act.  Specifically, Oldham focused on the challenge to the EPA “tailoring” rule, which determined which sources emitting air pollutants were required to get permits, and argued that the rule should not be subjected to Chevron deference.  The Supreme Court struck down the “tailoring” rule by a 5-4 margin.[24]

Overall Assessment

Oldham, with his impeccable academic credentials, his youth, and future Supreme Court potential, was always going to attract attention in the confirmation process.  However, given Oldham’s involvement in conservative impact litigation, his nomination is likely to be deeply controversial.

In particular, Oldham’s role in litigation against DAPA, and EPA rules, as well as his role defending abortion restrictions that were struck down as unconstitutional will be argued to suggest that he is a conservative extremist.  Democrats may note that Oldham had an unusually active role in shaping and filing litigation intended to further conservative policy goals and stymie liberal ones.  As such, they will argue that Oldham will continue that goal on the bench and be a judicial activist.

Oldham’s supporters, including Cornyn and Cruz, who sit on the Senate Judiciary Committee, will undoubtedly argue that it is inappropriate to impute a lawyer’s positions on behalf of his client to the lawyer himself.  However, as Cruz himself voted against Trump nominee Mark Bennett based on stances he took as Hawaii Attorney General, Democrats may decide that what’s sauce for the goose is sauce for the gander.  As such, Oldham’s confirmation will ultimately turn on his decisions rather than his qualifications.


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

[2] Fred Thys, Warren’s Former Students See Her As Anything But ‘Elitist’, WBUR, Apr. 23, 2012, http://legacy.wbur.org/2012/04/23/warren-popular-former-students.

[3] See Oldham, supra n. 1 at 2.

[4] Id.

[5] 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.

[6] 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.

[8] Oldham, supra n. 1 at 14.

[9] See id. at 5.

[10] Id.

[11] Texas v. United States, 86 F. Supp. 591 (S.D. Tex. 2015) (issuing a preliminary injunction against DAPA).

[12] See id.

[13] Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014).

[14] Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014).

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

[16] Holtz v. Burwell, 784 F.3d 984 (5th Cir. 2015).

[17] Trevino v. Thaler, 133 S. Ct. 1911 (2013).

[18] Jennings v. Stephens, 135 S. Ct. 793 (2015).

[19] Peruta v. Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).

[20] See id. at 924.

[21] Catholic Leadership Coalition of Texas v. Reisman, et al., 764 F.3d 409 (5th Cir. 2014).

[22] See id. at 414.

[23] Id.

[24] Texas v. EPA; Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).

Justice Britt Grant – Nominee for the U.S. Court of Appeals for the Eleventh Circuit

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

Background

Britt Cagle[1] Grant is a 40-year-old Atlanta native who graduated summa cum laude from Wake Forest University in 2000 and graduated with distinction from Stanford Law School in 2007.[2] Between the two, she worked for then-Congressman (now-Governor) Nathan Deal’s office, followed by several years of domestic-policy work in the White House of George W. Bush.[3]

While in law school, Grant served as the president of the Stanford Federalist Society, the co-founder and co-president of the Stanford National Security and the Law Society, and the managing editor of the Stanford Journal of International Law.[4] She then clerked for conservative superstar Judge Brett Kavanaugh of the D.C. Circuit (2007-2008) before turning to a multi-year stint doing commercial litigation at the D.C. office of Kirkland & Ellis.[5] In 2012, she left Washington to work for the Georgia Attorney General’s office. She worked first as “Counsel for Legal Policy,” and then in January 2015 she was appointed Solicitor General of Georgia, in which role she served until her appointment to the Supreme Court of Georgia by her former boss, now-Governor Nathan Deal, in January 2017.[6] She is the Georgia Supreme Court’s third female justice in history,[7] and she serves alongside the second female justice, Carol Hunstein.[8] At her swearing in, Grant “promised to honor the rule of law with humility and fairness. And she set another goal: ‘clarity and coherence.’”[9] A few months after her appointment, the Georgia Supreme Court’s Chief Justice Hines had this to say about Grant and her fellow recent appointee Nels Peterson: “They are as bright as new pennies. And they’re good people.”[10]

Grant is a member of the American Law Institute, the Joseph Henry Lumpkin American Inn of Court, the Appellate Practice Section of the Georgia Bar, and the Emory University Board of Visitors.[11] She has also served on various Supreme Court of Georgia Committee concerning matters such as professionalism, dispute resolution, and public trust.[12] Grant also serves on the Federalism & Separation of Powers Executive Committee of the Federalist Society and is also a member of the advisory board of the Atlanta chapter of that group.[13] (The Federalist Society’s Separation of Powers practice group’s Executive Committee seems to be a particular productive reservoir of Trump nominees. I noted in my post on Kevin Newsom that he had been a member of that same committee, along with current Eleventh Circuit Judge William Pryor and fellow Trump nominee David Stras, who has since been confirmed to the Eighth Circuit. Grant’s nomination is thus at least the third Trump nomination to come from that committee. I am no longer able to determine the other current members of that committee, because following the publication of my post on Kevin Newsom, the Federalist Society has taken down the list of committee members from their website,[14] although the website makes clear that each committee indeed still does have an executive committee that meets once a month.[15])

Although there is no current vacancy on the U.S. Supreme Court, in November 2017, Grant was added to President Trump’s running list of possible Supreme Court nominees (which includes her former boss, Judge Kavanaugh).[16]

History of the Seat

Grant has been nominated to a vacancy on the U.S. Court of Appeals for the Eleventh Circuit to a seat opened by Judge Julie Carnes’s move to senior status in June 2018.  As noted, however, Grant had been on the White House’s radar much earlier.  She was vetted in 2017 for the vacancy opened by Judge Frank Hull’s move to senior status, a vacancy ultimately filled by Judge Lisa Branch.[17]

Legal Career

Grant’s career in litigation relevant to her nominated position appears to be limited to her years as Georgia’s Solicitor General. In that capacity, she appeared in some capacity (i.e., with her name appearing on the briefs) in eighteen cases before the Supreme Court of Georgia.[18] Of those eighteen, certiorari was denied in five,[19] three were transferred to the Georgia Court of Appeals,[20] one was an application for interlocutory appeal that was denied (Grant was Appellee),[21] one was dismissed on a motion to dismiss (Grant was Appellee),[22] and the remaining eight were disposed of through opinions. Of those eight, she served as a neutral amicus in one,[23] and among the remaining seven, her office won six and lost one. The wins: she was appellee in Olvera v. University System of Georgia’s Board of Regents[24] and amicus appellee in Hertz v. Bennett,[25] and the opinions below were unanimously affirmed; as appellant in McKinney v. Fuciarelli,[26] Kemp v. Monroe County,[27] and In the Interest of B.R.F. f/k/a/ B.R.M.,[28] she won unanimous reversal or vacate-and-remand; and as appellant in Turner v. Georgia River Network,[29] she won reversal with the support of all those participating except Justice Melton, who dissented.The case her office lost was Grady County Board of Commissioners v. Georgia River Network,[30] with all those participating voting against her team–except Justice Melton.

Her briefing in those cases before the Supreme Court of Georgia reflects traditional adherence to text–with a willingness to look beyond text when it is helpful to advance the needs of the case–and deference to the legislature. In one case concerning sovereign immunity, her office explored the history of various provisions of the Georgia Constitution and wrote: “If the public interest in avoiding what could occasionally be viewed as harsh or unfair results outweighs the public interest in sovereign immunity, then the people of Georgia – through the General Assembly – have the constitutional authority to waive it.”[31] She spoke to “fidelity to the text of the statute” in one case, and argued that the bar to establish the absurdity exception to overcome plain meaning is high one, citing Joseph Story’s Commentaries on the Constitution of the United States.[32] In other cases, she did not limit herself to plain language, contending in one that “The cardinal rule of statutory construction is to seek the intent of the Legislature, and language in part of a statute must be construed in light of the legislative intent as found in the statute as a whole”;[33] in another: “Both text and practice demonstrate that the Board of Regents is not subject to the APA.”[34]

In her briefing, Grant also demonstrated sympathy for practical considerations. Where the Court of Appeals had granted an out-of-time appeal because “a constitutional violation concerning the appeal occurred when the mother’s right to file an application for discretionary appeal with the assistance of a court-appointed attorney was frustrated because of the ineffective assistance or denial of counsel,”[35] Grant acknowledged the burden on the mother–“To be sure, it is regrettable that the mother was unaware that she had the right to counsel for an appeal.”–but bemoaned the “dangers” of the decision of the Court of Appeals: “So long as there is the possibility of an out-of-time discretionary appeal, there will be no certainty for any deprived child that his or her stable, permanent home placement will be maintained. As this Court has recognized, ‘languishing in temporary care’ is not healthy for deprived children, who ‘need permanence of home and emotional stability or they are likely to suffer serious emotional problems.’”[36]

Grant also filed numerous briefs in the Georgia Court of Appeals and the U.S. Court of Appeals for the Eleventh Circuit. In the Eleventh Circuit, she was involved in litigation concerning the EPA’s  “Waters of the United States Rule,”[37] with her jurisdictional arguments ultimately being vindicated in the Supreme Court earlier this year (in a case other than hers).[38]

Her experience leading cases as party counsel before the Supreme Court of the United States includes one case while she was in private practice and four as Georgia’s Solicitor General:

Although the papers do not appear to list her as named counsel in the original-jurisdiction case of Florida v. Georgia (a water case that is still ongoing well after her departure),[39] Grant states that she supervised the litigation team, “provided strategic oversight and budget management, edited briefs, represented the State in status conferences, worked with State officials on budgetary issues, and participated in trial preparation.”[40]

In McLaughlin v. Lejeune, the U.S. Supreme Court denied her cert petition challenging a Georgia Supreme Court decision that refused to apply harmless-error analysis in determining the validity of guilty pleas.  In that case, the defendant was not advised “of the three rights identified in Boykin v. Alabama, 395 U.S. 238 (1969),” “i.e., the rights to trial by jury, to confront one’s accusers and the privilege against compelled self-incrimination.”[41] Three justices of the Georgia Supreme Court had dissented in the decision below,[42] and Governor Deal has since appointed three new justices to the court–including Grant–such that there may now potentially be more than enough votes to overrule the prior decision, should it come before the court again. Such a case would permit one to determine whether the view Grant advocated in her cert petition tracks her own view, but the issue does not appear to have come before the court again since that time–at least not in a form that has resulted in a written opinion.

Grant filed a brief opposing cert in Alves v. Board of Regents of the University System of Georgia, and that petition was denied as well.[43] In Alves, two members of an Eleventh Circuit panel (Judge Wilson and District Judge William Terrell Hodges) held–over Judge Martin’s dissent–that a “written grievance by five [Georgie State University] employees alleging mismanagement by their supervisor which preceded their termination” was not entitled to First Amendment protection.[44] In defending this result, Grant first suggested the case was a poor vehicle for Supreme Court review given that a separate state-court ruling issued a few days prior to the filing of the brief would render the First Amendment question moot once the state-court decision became final.[45] On the merits, while Judge Martin believed the employees were speaking as citizens on matters of public concern,[46] Grant contended that “Petitioners’ attempt to portray their speech as having broader implications for the GSU community amounts to garden-variety complaining about their employment conditions and the tasks they were asked to perform. The gravamen of Petitioners’ memorandum was that they disagreed with the policies their supervisor was implementing . . . . It was only incident to voicing their personal concerns that Petitioners’ remarks touched upon matters that might potentially affect the student body. To hold otherwise would allow Petitioners to constitutionalize a run-of-the-mill employee grievance through inclusion of calculated buzzwords regarding issues that, after investigation, proved to be unfounded.”[47]

Another case, this one decided on the merits, was Foster v. ChatmanFoster was a Batson case in which Chief Justice Roberts–joined by seven other justices (only Justice Thomas dissented)–held that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination in jury selection was clearly erroneous. Grant’s office had argued in its brief that “[t]he facially neutral notes on black prospective jurors, taken eight months after Batson v. Kentucky, 476 U.S. 79 (1986), are not evidence of the State’s intention to engage in purposeful discrimination as alleged by Foster. Instead, they are the result of the State’s efforts to rebut contentions of discrimination.”[48] The State contended that Foster “has failed to show anything but an attempt by a racially diverse prosecution team to demonstrate its compliance with the new evidentiary requirements outlined in Batson.”[49] Chief Justice Roberts squarely rejected this argument, saying it “falls flat”: first, it “reeks of afterthought, having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari. In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”[50] Curiously, while Grant’s name appears on the Joint Appendix of the case,[51] it does not appear on the merits brief just quoted, even though the other four attorneys who appeared with her on the Joint Appendix do indeed appear on it.[52] The Supreme Court’s docket for the case does not appear to contain any explanation for this.

Contrary to what might be expected, the representation that led to the most splintered Supreme Court decision was not in her capacity as Solicitor General but rather in her earlier private practice. In Shady Grove Orthopedic Associates v. Allstate Insurance Company, the Supreme Court held that a New York law placing limits on class actions did not preclude a federal district court sitting in diversity from entertaining a class action under Rule 23.[53] Grant’s brief[54] did not carry the day, although the case produced a highly unusual split, with Justice Scalia writing (for portions of the opinion) for Chief Justice Roberts and Justices Stevens, Thomas, and Sotomayor, while Justice Ginsburg wrote in dissent for Justices Kennedy, Breyer, and Alito.

These cases do not encompass all of Grant’s participation at the Supreme Court of the United States. She was also party counsel for the State of Georgia–but not for the leading state, Texas–in the multi-state challenge to DAPA (Deferred Actions for Parents of Americans), Texas v. United States.[55] And under her leadership, Georgia also participated as amicus in numerous other cases that resulted in highly splintered opinions: Shelby County v. Holder (state coverage under the Voting Rights Act),[56] Town of Greece v. Galloway (legislative prayer),[57] Burwell v. Hobby Lobby (the Affordable Care Act’s contraception mandate),[58] Friedrichs v. California Teachers Association (public-employee unions),[59] Obergefell v. Hodges (marriage for same-sex couples),[60] Glossip v. Gross (lethal-injection protocols),[61] and Gloucester Cty. Sch. Bd. v. G.G. (rights of transgender students),[62] among others.[63] Her Senate questionnaire indicates that for these cases, she “drafted, reviewed, or edited” the relevant filings.[64] Her name does not appear as counsel on them, however. Instead, the briefs list the name of Georgia’s attorney general at the time.

Jurisprudence

By my count, Grant–as a justice on the Supreme Court of Georgia–has written over 40 majority opinions. All but seven were unanimous in reasoning and result,[65] and two were unanimous but contained an additional concurring opinion.[66]

Of the seven majority opinions by Grant that were not unanimous, only two contained an additional opinion actually explaining the disagreement.[67] In both of those concurring opinions, her fellow justices “concurring specially” expressed the view that Grant had decided more than she needed to. In one case concerning official immunity (in particular, the question whether the defendant’s acts were discretionary or ministerial), Barnett v. Caldwell, Justice Melton (joined by Justice Hunstein) stated:

Although I concur with the analysis in the body of the majority opinion, I must write separately because I believe that dicta in footnote two sets forth an overly broad rule that is not applicable to the facts of this case. The majority suggests that: “An action or failure to act is either discretionary or not, and an official cannot alter that fact by doing it well, poorly, or not at all.” I disagree with this statement, and, more fundamentally, I disagree with the majority’s decision to expound upon the issue at all. The judicial process is served neither by inserting unnecessary and complicated issues into a case, nor by proclaiming unwavering rules to govern such complicated issues. The majority does both. I believe that this issue was handled more appropriately by Justice Peterson, who authored the opinion below [(and was thus disqualified in this particular case)]. Justice Peterson reasoned as follows:

Caldwell suggests that a total failure to comply with Section 6.5 would nevertheless be a discretionary act entitled to official immunity. We view such an argument through skeptical eyes, because a total failure to perform an act may involve no exercise of discretion or deliberation whatsoever, and it is not clear that such a failure would be considered a discretionary act covered by official immunity. But given our resolution of this appeal, it is not necessary to decide this question.

Far reaching (and, in this case, overly broad) rules like the one proposed by the majority should not be created in dicta, especially in an area of the law which requires an in depth consideration of the law and facts on a case-by-case basis. For this reason, I cannot concur with the analysis set forth in footnote two.[[68]]

In a separate case, Chrysler Group LLC v. Walden, Grant held that compensation evidence “is subject to the Rule 403 analysis weighing the evidence’s unfair prejudice against its probative value.” Grant noted that Chrysler did not object and thus analyzed the question under the plain-error standard instead of the abuse-of-discretion standard, and–finding no “clear and obvious reversible error”–affirmed the judgment below.[69] Justice Peterson, joined by Justice Boggs, took issue that Grant’s opinion went beyond those points:

I agree with each of those premises, and they are all that is necessary to decide the question this case presents. As such, the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further. But Division II (B) does not stop there; it goes much further (mostly in dicta), and often with sweeping language that travels far beyond this case. Respectfully, I cannot go along.[[70]]

Notably, Justice Melton (who had authored the special concurrence in Barnett suggesting that Grant had gone too far), wrote his own concurring opinion, stating that “[e]ven when considered in light of the concurrence from Justice Peterson, I agree with the analysis in the majority opinion.”[71]

The final majority opinion I will mention is Levis v. State, in which Grant issued a unanimous-in-result opinion reversing a felony-murder conviction on October 31, 2017,[72] then issued another unanimous-in-result opinion on December 11, 2017, superseding the prior opinion and upholding the felony-murder conviction.[73] Each opinion began this way: “Following a jury trial, Lisa Ann Lebis appeals her convictions of felony murder and other crimes related to the shooting death of Officer Sean Callahan. Lebis contends that the evidence was insufficient to support the verdict with regard to a number of counts against her and that trial counsel rendered ineffective assistance in the case.”[74] The October 2017 opinion continued:  “For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis’s convictions of two of the misdemeanor obstruction counts and all of the counts regarding possession of firearms and dangerous weapons; but reversing her conviction of felony murder and of the other two misdemeanor obstructions.”[75] And the December 2017 opinion continued: “For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis’s convictions of two of the misdemeanor obstruction counts, all of the counts regarding possession of firearms and dangerous weapons, and of felony murder; but reversing her conviction of the other two misdemeanor obstructions.”[76] With respect to the felony murder charge, the October 2017 opinion stated that “[a] more difficult question arises when we consider Lebis’s argument that the evidence was insufficient as a matter of law in relation to her conviction of felony murder as charged in the indictment,” ultimately reaching this conclusion:

That understanding renders Lebis’s felony murder conviction improper. Although the indictment charged Lebis with felony murder as a party to the crime, it specified that the predicate felony was Lebis’s joint possession of the murder weapon at the time Tremaine used it to shoot Officer Callahan. But Lebis’s prior constructive possession of the Glock when it was kept with the other weapons in the motel room does not bear on whether she possessed it at the time of the murder as charged in the indictment. The indictment required the State to prove beyond a reasonable doubt that Lebis jointly possessed the murder weapon at the time of the murder; the evidence does not support her joint possession of the Glock at that time. Because the evidence was insufficient to support the charge of felony murder as set forth in the indictment, Lebis’s conviction for this crime must be reversed.[[77]]

In contrast, the December 2017 opinion started that section by declaring, “The evidence was also sufficient to support the jury’s verdict that Lebis was guilty of felony murder as a party to her husband’s possession of a firearm as a convicted felon—a criminal act that proximately caused the death of Officer Callahan.” Explaining, Grant stated:

[A] defendant can be held responsible for the actions of another as a party to the crime or as a co-conspirator, without also concluding that the defendant constructively possessed the contraband actually and solely possessed by another. So even though Lebis did not jointly possess that firearm with Tremaine at the moment of the murder, it remains true that she can be held to account for the actions of another—here, her husband—as a party to the crime or as a co-conspirator. Accordingly, her arguments that she did not constructively possess the firearm do not help her escape responsibility for the crime.

As to the variance in the indictment, the majority opinion now had this to say:

Although Lebis raised sufficiency of the evidence rather than a “fatal variance” between the language of the indictment, which charged joint possession, and the proof at trial, we also note that any suggestion of such a fatal variance would also fail. Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.[[78]]

Grant has also participated in opinions as a concurring colleague. In at least two cases, she concurred in only the judgment as to certain portions of an opinion, but she did not write an opinion explaining the disagreement (as appears to be common in Georgia Supreme Court cases).[79]

She wrote a concurring opinion (joined by Justice Nahmias) in Schumacher v. City of Roswell, which made clear again her focus on following clear textual commands (and the frustration of not having them):

I join the Court’s opinion in full, including its conclusion that the only issue decided today is that a freestanding challenge to the facial validity of a zoning ordinance, unaccompanied by any complaint regarding an individualized determination impacting a particular parcel of land, does not challenge a “decision” of an “administrative agency” under OCGA § 5-6-35 (a) (1). This decision is consistent with the text of the statute, and accordingly with our responsibility as judges to apply even complicated statutes as they are written by the General Assembly.

That said, I understand and appreciate the concerns of the dissenting opinion regarding the lack of clarity in appellate procedures. More often than not, one would expect a close adherence to the textual demands of a statute to lead to greater clarity in the law; an attorney should be able to turn to the statute in the codebook and determine whether a direct appeal or an application is appropriate in a given case. That ideal is not necessarily met here. But the dissent’s approach does not add clarity either, seeking to extend a rationale that we have already deemed to have “fallacies.”

Even in the context of zoning, which has purportedly been the subject of a “bright line rule,” this Court has not been able to agree on which cases require an application. . . .

We recently attempted to bring some needed clarity to this interpretive enterprise by explaining in Keystone Knights that decisions can be “adjudicative,” “legislative,” or “executive,” and that an application is required to seek review of “adjudicative” decisions by administrative agencies. That decision was a valuable step in asserting order over our jurisprudence in this area, but it still left much to be divined by practicing attorneys. Of course, in fairness to Keystone Knights, the complexity of the analysis required under any approach that takes statutory language seriously counsels in favor of a legislative solution. What, for example, is a “decision”? Or an “administrative agency”? And what is the answer when a case raises claims regarding legislative, executive, and adjudicative decisions by a government entity acting in different capacities with respect to each of the “decisions”? The statute invites rather than answers these questions, and we can only do so much to simplify while also remaining faithful to its text.

Accordingly, the General Assembly may wish to clarify the scope of the matters that are subject to the discretionary appeal process. Until then, the best path forward—as remarkable as this is—may well be to follow the advice of two leading Georgia appellate treatises and file a discretionary application in every instance where there is any doubt.[[80]]

And in State v. Cohen (part of the “Waffle House sex tape” saga), Grant herself (joined by Justices Hunstein and Blackwell) contended that the majority decided a question it need not have.[81] That case concerned O.C.G.A. § 16-11-62(2), which states that a person may not use any device “to observe, photograph, or record the activities of another which occur in any private place and out of public view.” (That statute has been discussed on this blog before, as it was also the subject of a news-attracting opinion written by fellow Trump nominee Lisa Branch.[82]) The housekeeper and personal assistant to the chairman of Waffle House was accused of recording the two having sex,[83] and the majority held that:

Although there is nothing in the plain language of former OCGA § 16-11-62 (2) to indicate that Rogers and the other person in the residence would no longer have a reasonable expectation to be safe from the “hostile intrusion” of having their activities secretly video recorded once Brindle entered the residence, and although there is nothing in the former version of OCGA § 16-11-62 (2) to show that the reasonable expectation to be safe from “hostile intrusion or surveillance” under the statute is coextensive with one’s “reasonable expectation of privacy” under the Fourth Amendment to the United States Constitution, we have in the past looked to Fourth Amendment jurisprudence as a guide when interpreting the scope of privacy protected by OCGA § 16-11-62.[[84]]

Grant disagreed with looking to the Fourth Amendment. She noted that in contexts where “government agents were alleged to have illegally surveilled criminal defendants,” “it is no surprise at all to look toward the Fourth Amendment, which serves as a constitutional boundary to the behavior of the government. But here, in analyzing the actions taken by private parties, the Fourth Amendment provides something less than a useful guide; in fact, applying Fourth Amendment rules may even serve to confuse rather than clarify the meaning of the statute.”[85] She continued:

To begin, much of what the majority applies as seminal Fourth Amendment law had not yet been announced by the United States Supreme Court at the time that OCGA § 16-11-62 was drafted. The “private place” definition at issue here was passed by the General Assembly in April 1967, while the United States Supreme Court did not issue its Katz decision until December of that same year.

Nor am I as certain as my colleague that when the General Assembly redefined “private place” to constitute “a place where there is a reasonable expectation of privacy,” the legislature was “squarely invoking the modern Fourth Amendment test.” Concurring op. at 634, 807 S.E.2d 861. (Nahmias, J. concurring in part and concurring specially in part). Perhaps Fourth Amendment tests are more relevant under the new version of the statute—or perhaps not. After all, the amended statute still addresses a privacy interest quite different than the one that we all share against government search and seizure. But we need not make that determination until the proper case is before us, and I would decline to do so here.[86]

Grant also wrote a concurring-in-part-and-dissenting-in-part opinion (joined by Justice Hunstein) in Sponsler v. Sponsler.[87]

Writings

Although Grant does not appear to have published any law-review articles herself, she served as a research assistant for two law-review articles on national-security issues.[88] This interest appears to be a family affair, as her husband once worked at the CIA.[89]

Overall Assessment

Justice Britt Grant appears, like Newsom and Branch before her, to be a mainstream conservative nominee to the Eleventh Circuit.  With the exception of Foster v. Chatman, Grant does not appear to have participated as a lead counsel in any particularly politically charged cases, and even in Foster, the extent of her participation is not clear. Nor, from the materials I have been able to check myself–her amicus briefs notwithstanding, and those do not list her as counsel–does she appear to have publicly expressed positions on the broader constitutional and civil-right questions that would invariably come before her as an Eleventh Circuit judge. Her record as a justice on the Georgia Supreme Court seems to be in line with the other justices on that court–broad unanimity. Her membership and participation in the Federalist Society confirms her conservative views, but her appointment is unlikely–in the short term–to affect the ideological makeup of the court given that the judge she would be replacing is also more conservative.


[1] State Bar of Georgia, Hon. Britt Cagle Grant, https://www.gabar.org/MemberSearchDetail.cfm?ID=MTEzNDAz.

[7] CLOSER LOOK, A new era begins for Georgia’s Supreme Court Deal appointed half of state’s 24 justices to 2 top appellate courts, Atlanta Journal and Constitution, Jan. 10, 2017, 2017 WLNR 804272.

[9] Georgia Politics, Campaigns, and Elections for December 12, 2016, GaPundit, Dec. 12, 2016, 2016 WLNR 37904671.

[10] State’s chief justice visits Cairo, Thomasville Times-Enterprise (GA), May 18, 2017, 2017 WLNR 15729555.

[12] Sen. Comm. on the Judiciary, 115th Cong. Britt Grant: Questionnaire for Judicial Nominees (Grant SJQ) at 5, https://www.judiciary.senate.gov/imo/media/doc/Grant%20SJQ.pdf.

[16] The Latest And Greatest In President Trump’s Judicial Nominations (Part 2), https://abovethelaw.com/2018/01/the-latest-and-greatest-in-president-trumps-judicial-nominations-part-2/2/

[31] Fulton County v. City of Atlanta, 2016 WL 3043850, at *3-9, *24 (Ga. 2016).

[32] McKinney v. Fuciarelli, 2015 WL 10549708, at *3, *18 (Ga.).

[33] Foster v. Ga. Reg’l Transp. Auth., 2015 WL 1576408, *24 (Ga.).

[34] Olvera v. University System of Ga.’s Bd. of Regents, 2015 WL 4641675, *11 (Ga.) (emphasis added).

[35] In Interest of B.R.F., 332 Ga. App. 49, 50, 770 S.E.2d 912, 914 (2015), vacated sub nom. In Interest of B.R.F, 299 Ga. 294, 788 S.E.2d 416 (2016).

[36] In the Interest of B.R.F.F/K/A B.R.M., A Child., 2015 WL 5822948, at *15, *17-18 (2015).

[37] Georgia v. McCarthy, No. 15-14035, 2016 WL 2897733 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2016 WL 3227576 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2015 WL 6163726 (C.A.11); Georgia v. McCarthy, No. 15-14035, 2015 WL 5608569 (C.A.11).

[38] Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018).

[40] Grant SJQ at 44-45.

[42] Lejeune v. McLaughlin, 299 Ga. 546, 789 S.E.2d 191 (2016).

[43] No. 15-971, 2016 WL 1298204 (U.S.).

[44] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1153 (11th Cir. 2015).

[45] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 2016 WL 1298204, *9-10 (2016).

[46] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1153 (11th Cir. 2015) (Martin, J., dissenting).

[47] Alves v. Bd. of Regents of the Univ. Sys. of Ga., 2016 WL 1298204, *38-39 (2016) (citation, quotations, and alterations omitted).

[50] Foster v. Chatman, 136 S. Ct. 1737, 1755 (2016) (quotations and citation omitted).

[53] 559 U.S. 393 (2010).

[63] Grant SJQ at 43.

[64] Grant SJQ at 41.

[65] Ramirez v. State, 811 S.E.2d 416 (Ga. 2018); Barnett v. Caldwell, 302 Ga. 845, 809 S.E.2d 813 (2018); Sutherlin v. Sutherlin, 301 Ga. 581, 802 S.E.2d 204 (2017); Daniel v. State, 301 Ga. 783, 804 S.E.2d 61 (2017); Lebis v. State, 302 Ga. 750, 808 S.E.2d 724 (2017); Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992 (Ga. Mar. 15, 2018); Simpkins v. State, No. S18A0063, 2018 WL 2089505 (Ga. May 7, 2018).

[66] Goodrum v. State, No. S17A1748, 2018 WL 1323269 (Ga. Mar. 15, 2018); Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 807 S.E.2d 876 (2017).

[67] Barnett v. Caldwell, 302 Ga. 845, 809 S.E.2d 813 (2018); Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992 (Ga. Mar. 15, 2018).

[68] Barnett v. Caldwell, 302 Ga. 845, 852–53, 809 S.E.2d 813, 819 (2018) (Melton, J., concurring specially) (citation omitted).

[69] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *1 (Ga. Mar. 15, 2018).

[70] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *9 (Ga. Mar. 15, 2018) (quotations and citations omitted).

[71] Chrysler Grp. LLC v. Walden, No. S17G0832, 2018 WL 1323992, at *8 (Ga. Mar. 15, 2018).

[78] https://scholar.google.com/scholar_case?case=17412431040748197491&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[79] Drews v. State, 810 S.E.2d 502 (Ga. 2018); Undisclosed LLC v. State, 302 Ga. 418, 807 S.E.2d 393 (2017).

[80] Schumacher v. City of Roswell, 301 Ga. 635, 641, 803 S.E.2d 66, 71–73 (2017) (Grant, J., concurring) (footnotes and citation omitted).

[81] State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (2017).

[84] State v. Cohen, 302 Ga. 616, 629, 807 S.E.2d 861, 871–72 (2017).

[85] State v. Cohen, 302 Ga. 616, 635, 807 S.E.2d 861, 875 (2017) (Grant., J., concurring specially in part).

[86] State v. Cohen, 302 Ga. 616, 635-36, 807 S.E.2d 861, 875–76 (2017) (Grant., J., concurring specially in part).

[87] Sponsler v. Sponsler, 301 Ga. 600, 800 S.E.2d 564 (2017).

[88] Mariano-Florentino Cuellar, “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953, 76 U. Chi. L. Rev. 587 (2009); Dara Kay Cohen et. al., Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 Stan. L. Rev. 673 (2006).

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

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

Background

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

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

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

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

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

History of the Seat

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

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

Political Activity

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

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

Legal Career

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

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

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

Attorney General of Hawaii

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

Gun Control

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

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

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

Takings

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

LGBT Rights in Hawaii Prisons

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

Discrimination and the Statute of Limitations

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

Incidental Use of Religion in Public Life

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

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

Rights of Native Hawaiians

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

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

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

Overall Assessment

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

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

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

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

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


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

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

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

[9] See Bennett, supra n. 1 at 123.

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

[11] See Bennett, supra n. 1 at 97.

[12] See id.

[13] Id.

[15] Id.

[16] Id.

[17] See Ruel, supra n. 7.

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

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

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

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

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

[23] Id.

[24] Id. (quoting Mark Bennett).

[25] See id.

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

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

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

[29] See id.

[30] Id. 

[31] 541 U.S. 369 (2004).

[32] See id.

[33] Id.

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

[35] Id. 

[36] Id. 

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

[38] Id.

[39] Id.

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

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

[42] Id.

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

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

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

Background

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

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

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

History of the Seat

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

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

Legal Career

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

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

Jurisprudence & Reversals

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

Religious Discrimination

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

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

Civil Rights Cases

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

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

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

Reversals

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

Overall Assessment

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

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

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


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

[2] See id. at 53.

[3] See id.

[4] See id. at 2.

[5] See id. at 68.

[6] See id.

[7] See id. at 53.

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

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

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

[11] See St. Eve, supra n. 1 at 21.

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

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

[14] See id. at *3-4.

[15] See id.

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

[17] Id. at 1002.

[18] Id. at 1013-14.

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

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

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

[22] Id. at *3.

[23] See id. at *4.

[24] Id.

[25] Id. at *5.

[26] 653 F.3d 647 (7th Cir. 2011).

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

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

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

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

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

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

Background

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

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

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

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

History of the Seat

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

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

Political Activity

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

Legal Practice

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

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

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

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

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

Writings

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

Overall Assessment

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

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

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


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

[2] Id. at 3.

[3] Id. at 1.

[4] Id. at 2.

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

[6] Id. 

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

[8] See Scudder, supra n. 1 at 2.

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

[10] See Scudder, supra n. 1 at 33.

[11] See id.

[12] Id.

[13] Id. 

[15] See Scudder, supra n. 1 at 18.

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

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

[18] See Scudder, supra n. 1 at 18.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

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

[24] See id.

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

[26] See id.

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

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

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

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

[31] Id. at 474.

[32] See id.i