Prof. Richard Myers – Nominee to the U.S. District Court for the Eastern District of North Carolina

The U.S. District Court for the Eastern District of North Carolina is home to one of the longest vacancies in the country, having opened in December of 2005.  Since then, conflicts between senators and the White House have kept this seat vacant through four presidential terms.  Now, Richard Myers, a professor with the University of North Carolina, is the fifth nominee to fill this vacancy.

Background

Richard Earnest Myers was born in Kingston, Jamaica, and grew up in Wilmington, NC.[1]  Myers attended the University of North Carolina at Wilmington and then became a reporter with the Star-News in Wilmington.  In 1995, Myers joined the University of North Carolina School of Law, graduating with high honors in 1998.  

After graduating, Myers clerked for Judge David Sentelle (a North Carolina native) with the U.S. Court of Appeals for the D.C. Circuit and then became an Associate with O’Melveny & Myers in Los Angeles.  In 2002, Myers became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California and later with the U.S. Attorney’s Office for the Eastern District of North Carolina.

In 2004, Myers joined the faculty of the University of North Carolina Law School, where he is currently a professor.

History of the Seat

Myers has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  In 2006, President George W. Bush nominated Thomas Farr, but, Farr’s nomination stalled after Democrats took control of the Senate after the 2006 elections.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[2]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[3]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[4]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[5]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[6]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[7]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[8] this time with the support of Burr and Senator Thom Tillis (R-NC).[9]  However, Farr’s nomination stalled on the Senate floor and was withdrawn due to lack of majority support when Republican Senators Tim Scott and Jeff Flake expressed their opposition based on Farr’s work with Sen. Jesse Helms at the time when the Senator worked to suppress African American votes in North Carolina.[10]  After Republicans picked up two seats in the 2018 Senate elections and Flake left the chamber, conservatives pushed to renominate Farr.[11]  However, Scott maintained his opposition and the White House decided not to move forward, instead choosing Myers.

Legal Experience

Before becoming a law professor, Myers has primarily worked in two legal positions: the first is as an Associate with O’Melveny & Myers; the second is as a federal prosecutor in two districts, the Central District of California and the Eastern District of North Carolina.  At O’Melveny, Myers worked in the White Collar Criminal Law and Environmental and Regulatory Compliance Practice Group.  At the firm, Myers most notably represented Wen Ho Lee, the Los Alamos scientist charged with stealing government secrets.[12]

Writings

As an academic, Myers has written extensively on the law, particularly focusing on criminal law and procedure, which is his area of expertise.

Prosecutorial Power

Myers has been particularly vocal on the growing power of prosecutors in the criminal justice system, speaking on the subject frequently in media.[13]  Myers has noted that this concentration of power can mean that the criminal justice system can be “held hostage” by rogue prosecutors.[14]  Myers’ work on this regard has been cited by African American journalist and author Ta-Nehisi Coates.[15] 

On a similar note, Myers has also criticized the American criminal justice system for making it difficult to “expand liberty” by repealing unjust or outdated criminal laws and penalties.[16]  Instead, Myers suggests that a constitutional amendment be passed that sunsets all criminal laws to expire after a period of twenty-five years unless renewed.[17]  Myers suggests that the proposed amendment would better reflect changes in society and would create a “pro-liberty bias” within criminal law.[18]

Fourth Amendment and the Exclusionary Rule

Myers has also written extensively on the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable searches and seizures.  In particular, Myers is a critic of the “exclusionary rule,” which requires that any evidence obtained through an illegal search be excluded from a criminal prosecution.  In one paper, Myers writes that the exclusionary rule only comes into play when evidence is found through the illegal searches, thus, ensuring that judges see only “guilty people trying to enforce their rights.”[19] 

Instead, Myers advocates for a separate court that oversees the executive branch’s searches and hears from victims of illegal searches who are both innocent and guilty of the underlying offenses.[20]  Myers notes:

“We need a new range of remedies because, to an important segment of the populace, the exclusionary rule clearly benefits the guilty, while providing such an attenuated benefit to the innocent in the form of deterrence that it extracts a high price from the system in terms of perceived legitimacy.”[21]

Political Activity

Myers is a Republican, and a member of the Federalist Society and the National Rifle Association.  However, his only political contribution of record was a $250 contribution in 2016 to Rep. George Holding.[22] 

Overall Assessment

Given how long this seat has sat vacant, and the number of nominees who have fallen by the wayside in the attempt to fill it, one can start to wonder if this seat is cursed.  However, if there is a nominee primed to end this “curse,” it is Myers.  Not only does Myers, as a African American attorney, not attract the same degree of opposition that Farr did, but his record should win him bipartisan approval.  In fact, Myers’ criminal justice jurisprudence largely accords with that of many liberals in its criticism of prosecutorial power and overcriminalization.

This is not to say that Myers will be a liberal on the bench.  He will likely be a conservative voice.  However, his criminal justice jurisprudence may well end up surprising many who thought they could pigeonhole the nominee, and despite being a former prosecutor, defense attorneys may well have a friend in Myers.


[1] AP, Trump Nominates Law Professor for Judicial Vacancy, Associated Press, Aug. 15, 2019, https://www.apnews.com/858d3a46c016451cad351b24eb1cc292.  

[2] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[3] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[4] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[5] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[6] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[7] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[8] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Press Release, Burr and Tillis Welcome Nomination of Thomas Myers as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[10] Marianne Levine and Burgess Everett, Tim Scott Sinks Trump Judicial Nominee, Politico, Nov. 29, 2018, https://www.politico.com/story/2018/11/29/senate-confirms-farr-judicial-nominee-1027236.  

[11] Emma Dumain, SC’s Tim Scott Still Opposes Thomas Farr, Has Sharp Words for Conservative Critics, McClatchy DC, Jan. 30, 2019, https://www.mcclatchydc.com/news/politics-government/congress/article225279815.html.  

[12] James Sterngold, Lee’s Dream Team High on Case, Low on Compensation; The Lawyers, Largely Unpaid, Say They’ve Become Fond of Los Alamos Scientist, Contra Costa Times, Sept. 11, 2000.

[13] See, e.g., Richard A. Oppel, Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. Times, Sept. 26, 2011.

[14] See id. (quoting Richard E. Myers).

[15] See Ta-Nehisi Coates, The Collapse of American Criminal Justice, Atlantic Online, Sept. 26, 2011.

[16] Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. Rev. 1327 (Nov. 2008).

[17] See id. at 1361-62.

[18] Id. at 1380.

[19] Richard E. Myers II, “The Exclusionary Rule: Is it On Its Way Out? Should It Be?”, 10 Ohio St. J. Crim. L. 571, 577 (Spring 2013).

[20] Id. at 578.

[21] Id. at 585.

[22] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=richard+myers&cycle=&state=NC&zip=&employ=&cand= (last visited Sept. 27, 2017).  

Daniel Traynor – Nominee to the U.S. District Court for the District of North Dakota

Dan Traynor, a longtime North Dakota Republican, had set his sight on a judicial appointment in the Trump Administration, and, after having been passed over previously, has now been picked for the District Court in North Dakota.

Background

Daniel Mack Traynor was born in Devils Lake, North Dakota in 1970, the son of longtime state senator John T Traynor.  Traynor graduated from the University of North Dakota in 1994 and then attended the University of North Dakota Law School, graduating with distinction in 1997.[1]

After graduating, Traynor clerked for Chief Justice Gerald VandeWalle on the North Dakota Supreme Court and then started a solo practice, which he still maintains.  Traynor has also worked as the City Attorney of Devil’s Lake since 1998.

History of the Seat

While Traynor has been tapped for a seat expected to open with the retirement of Judge Daniel Hovland on November 10, 2019, his name was previously under consideration for the U.S. Court of Appeals for the Eighth Circuit.[2]  However, Traynor was not nominated for that seat, which went to U.S. District Judge Ralph Erickson.  Traynor was also passed over for the seat that Erickson vacated, but has now been tapped for Hovland’s seat.

Legal Experience

Traynor has primarily worked for himself in his hometown of Devil’s Lake, working on personal injury cases on both the plaintiff’s and defendant’s side.  Over the course of his career, Traynor has tried fifteen cases before a jury.  Among those, Traynor represented the defendant in a trial for “timber trespass” for the defendant’s cutting down of trees on the plaintiff’s property.[3] 

Among his other notable cases, Traynor defended the Norman Lutheran Church in Kindred, ND against  a suit brought by disgruntled parishioners who opposed the Church’s use of homosexual clergy.[4]  He also prosecuted, after an appointment from Gov. Doug Burgam, Ward County Sheriff Steven Kukowski after the death of an inmate in his jail facility.[5] 

Political Activity

Traynor is a Republican and has a long history with the North Dakota branch of the party, including having served as the Chairman from 2001 to 2003.[6]  Interestingly, as a Party delegate in the 1990s, Traynor pushed back against resolutions against same-sex marriage and supporting “parental rights.”[7]  Traynor has also served as Chair of the North Dakota chapter of the Republican National Lawyers Association since 2000, as well as being active within the American Bar Association (ABA).

Overall Assessment

The District of North Dakota is one of only three districts in the country that have just two active judgeships attached.  It’s already seen a fair amount of turnover with Ericksen’s elevation and replacement with Peter Welte.  With a largely mainstream record, Traynor looks favored to join the bench without too much controversy.


[1] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Daniel Mack Traynor 1.

[2] See David Lat, More Judicial Nominations From the Trump Administration, Above the Law, May 8, 2017, https://abovethelaw.com/2017/05/more-judicial-nominations-from-the-trump-administration/.  

[3] Haider v. Moen, Ward County Civil No. 51-2014-CV-00890.

[4] Grabanski v. Evangelical Lutheran Church in America, et al., Cass County Civil No. 09-2016-CV-00022.

[5] Jill Schramm, Kukowski’s Criminal and Civil Cases May Be Settled, The Bismarck Tribune, Apr. 12, 2017.

[6] See Traynor, supra n. 1 at 28.

[7] Compare John MacDonald, It’s No to Tax Hikes, Bismarck Tribune, Mar. 29, 1996, with Frederic Smith, GOP Panel OKs ‘Parental Rights,’ Bismarck Tribune, Mar. 30, 1996.

Jodi Dishman – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Jodi Dishman, an Oklahoma City based attorney, is Trump’s fourth pick for the Western District of Oklahoma, and will be the first woman appointed to the court after twenty five years.

Background

Dishman was born Jodi Marie Warmbrod in Memphis, TN in 1979.  Dishman attended Southern Methodist University, where she served as Student Body President.[1]  Dishman then attended the University of Oklahoma College of Law, where she graduated summa cum laude.[2]  After graduation, Dishman clerked on the U.S. Court of Appeals for the Fifth Circuit for Judges Carolyn Dineen King and Edward Prado.

After her clerkships, Dishman joined the San Antonio office of Akin Gump Strauss Hauer & Feld LLP as an Associate.  She become Counsel in 2010.  In 2012, she moved to Oklahoma City to join McAfee & Taft, where she became a Shareholder in 2014.  It is a position she currently holds.

History of the Seat

Dishman has been nominated to the U.S. District Court for the Western District of Oklahoma.  Judge Vicki Miles-LeGrange, who was the first African American appointed to this court when she joined in 1994, vacated this seat on November 5, 2018.  Dishman had previously interviewed with Oklahoma Senators in January 2017 to fill one of three other vacancies on the Western District, but was not selected.[3]  After Judges Miles-LeGrange moved to senior status, Dishman again expressed her interest.[4]  After another interview with an advisory committee set up by the senators, Dishman was selected as the nominee.

Legal Experience

Whether at Akin Gump or at McAfee & Taft, Dishman’s career has focused on commercial litigation.  Dishman has tried three cases as chief counsel and one as associate counsel in her career.[5]  The most prominent of these involved a lawsuit against an insurance company (her client) alleging that they breached their agreement in failing to make needed claim payments.[6]  Dishman also represented the company on appeal after a split verdict from the jury.

In another notable case, Dishman represented the Oklahoma City Landfill, LLC in a class action case by property owners who alleged that the landfill interfered with their properties.[7]  The case eventually settled.  

Overall Assessment

While most of Trump’s Oklahoma nominees have been fairly controversial, it’s unlikely that Dishman will be one of them.  While she is very young, Dishman has cut their teeth on some fairly complex cases, and, at forty, Dishman is the same age as the judge she will be replacing, Judge Miles-LeGrange, was at the time of her nomination.


[1] NBC News Broadcast, Attack on America, 12:00 Midnight, NBC, Sept. 15, 2001.

[2] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Jodi Dishman 1.

[3] Those seats were all filled with male candidates, Scott Palk, Charles Goodwin, and Patrick Wyrick.

[4] See id. at 32-33.

[5] See id. at 17.

[6] See Lavoy v. USAA General Indemnity Co., Case No. CJ-2014-131, District Ct., Jackson Cnty., Okla.

[7] See McCarty et al. v. Oklahoma City Landfill, LLC, et al., Case No. 5:12-cv-01152-C, W.D. Okla.

Judge Raag Singhal – Nominee to the U.S. District Court for the Southern District of Florida

Florida state court judge Raag Singhal is nothing if not persistent, having applied to be a judge 15 times before he was selected.  Singhal is now up for a federal judgeship after narrowly missing an appointment to the Florida Supreme Court.

Background

Anuraag Hari “Raag” Singhal was born in Philadelphia in 1963, the son of Indian parents who had moved to the U.S. in 1960.[1]  Singhal attended Rice University and Wake Forest University Law School.[2]

After graduation, Singhal spent a year with Fleming, O’Brien & Fleming as an Associate and then became a prosecutor in Ft. Lauderdale.[3]  In 1993, Singhal became a Partner in a criminal defense practice in Ft. Lauderdale, which he maintained until 2011.[4] 

In 2011, Singhal, who had previously applied fifteen times to be a judge, was finally appointed to be a Circuit Court Judge in Broward County by Republican Governor Rick Scott.  His appointment made him the first Asian-American judge in the county and only the third in Florida.[5]  Singhal continues to serve on that court.

In 2019, Singhal was considered by Gov. Ron DeSantis for appointment to the Florida Supreme Court, but DeSantis chose three other candidates instead.[6]

History of the Seat

Singhal has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on August 5, 2016, when Judge James Cohn moved to senior status.  In October 2017, Singhal applied and interviewed with the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson.  The JNC chose Singhal as one of ten finalists to be passed onto the Senators.[7]  After interviews with Rubio and Nelson, Singhal was contacted by the Trump Administration in February 2018.[8]  After interviewing with the White House Counsel’s Office and the Department of Justice, Singhal was not contacted for a year before vetting resumed in April 2019.  Singhal was ultimately nominated in August 2019.  

Legal Career

For most of his pre-bench legal career, Singhal has worked as a criminal defense attorney, handling both white collar and violent crime cases.  Over the course of his career, Singhal tried over 200 jury trials, including 33 First Degree Murder cases.[9]  Singhal also accepted court appointments to represent difficult or problematic clients.

Among his most prominent appointments, Singhal was appointed to represent serial killer Aileen Wuornos, who was awaiting execution.[10]  While representing her, Singhal came to believe that Wuornos was not competent to be executed and communicated as such to the Florida Supreme Court.[11]  In response, then-Gov. Jeb Bush stayed Wuornos’ execution, pending review from psychiatrists.[12]  However, the examiners found Wuornos to be competent and she was subsequently executed.[13]  Even after the execution, which Wuornos had wanted, Singhal maintained his belief that she was insane.[14]

Jurisprudence

Singhal served as a Circuit Judge in Broward County since 2011.  As a Circuit Judge, Singhal handles major felonies and any civil cases with more than $15000 in controversy.  Over his eight year tenure on state court, Singhal has heard approximately 8000 cases, including over 450 trials.  Interestingly, Singhal was on the bench when an inmate slipped through his restraints and escaped in the middle of open court.[15]  The inmate later apologized to Singhal, who stayed on the case despite being named as a defense witness, arguing that he was escaping to obtain evidence of his innocence.[16] 

Most recently, Singhal presided over suits related to Brenda Snipes, the head of the Broward County Election Board, who has been criticized by Republicans for her poor management of elections.[17]  In August 2018, Singhal issued an injunction ordering Snipes not to open vote-by-mail ballots before they could be reviewed by the Canvassing Board.[18]  Singhal also presided over a suit brought by law professor Tim Canova, who alleged that ballots had been improperly destroyed by Snipes in his race against Rep. Debbie Wasserman-Schultz.[19]  Singhal ruled that Snipes acted contrary to state and federal law in destroying ballots in the race.[20]

Political Activity

Other than his own campaigns for judicial office, Singhal has volunteered with the Broward County Republican Party as an attorney.[21]  Singhal resigned his post with the Republican Party in 2010 to support the Independent Senate candidacy of Gov. Charlie Crist (Crist is now a Democrat serving in Congress).[22] 

Singhal has also been a member of the South Florida Chapter of the Federalist Society since 2011.[23]

Speeches, Writings, and Public Statements

As a criminal defense attorney, Singhal frequently spoke out in support of more compassionate sentencing and a reduction in over-incarceration.  For example, Singhal has generally pushed for treatment of drug addicts rather than incarceration.[24]  He has also argued for the reduction in federal disparities on crack cocaine sentencing, noting that the disparity unfairly targets African Americans for incarceration.[25]

Singhal has also been a strong advocate of more compassionate treatment of offenders convicted of white collar crimes, noting in one interview:

“Typically, the white collar criminal is more able to do good things than other people charged with violent offenses, and that’s just the way it is.”[26]

In the same interview, he pushed back against suggestions that white collar criminals are given special treatment, arguing that the disparity in sentencing for non-violent drug offenders and white collar criminals speaks in favor of leniency for both rather than stricter sentences.[27]

Overall Assessment

While Singhal has a long history with the Federalist Society and the Republican Party, he is unlikely be considered a controversial nominee.  This is primarily for two reasons.  First, as a criminal defense attorney, Singhal has a long record of advocating for the rights of defendants, which is likely to appeal to Democrats such as Sen. Cory Booker, who are passionate about overincarceration and implicit bias in criminal justice.  Second, Singhal’s record as a judge is fairly uncontroversial and does not demonstrate a bias towards any party.  As such, Singhal is likely to get a fairly comfortable confirmation and will present a moderate conservative voice on the Southern District of Florida.


[1] Paula McMahon, Broward’s First Asian-American Judge Formally Sworn In, South Florida Sun Sentinel, Jan. 20, 2012, https://www.sun-sentinel.com/news/fl-xpm-2012-01-20-fl-first-asian-american-judge-broward-20120120-story.html.  

[2] Sen. Comm. on the Judiciary, 116th Cong., Anuraag Singhal: Questionnaire for Judicial Nominees 1.

[3] Id. at 2.

[4] Id.

[5] See McMahon, supra n. 1.

[6] John Breslin, DeSantis Set to Announce Appointment of Second Supreme Court Justice, Florida Record, Jan. 14, 2019, https://flarecord.com/stories/511720805-desantis-set-to-announce-appointment-of-second-supreme-court-justice.  

[7] David Markus, Breaking — JNC Makes the Cut to 10 Finalists for District Judge, Southern District of Florida Blog, Nov. 29, 2017, http://sdfla.blogspot.com/2017/11/breaking-jnc-makes-cut-to-10-finalists.html.

[8] See Singhal, supra n. 1 at 64.

[9] Id. at 55.

[10] See Jackie Hallifax, Lawyer Tells High Court of ‘Grave Doubts’ About Wuornos, A.P., Sept. 24, 2002.

[11] Id. 

[12] Jackie Hallifax, Gov. Bush Issues Stays of Two Executions; Inmates’ Mental Competence to Waive Appeals at Issue, A.P., Sept. 30, 2002.

[13] Ron Word, Female Serial Killer Executed For Murders of Six Men, A.P., Oct. 9, 2002.

[14] Rich McKay, ‘I’ll Be Back,’ Serial Killer Declares Before Her Execution; Grin, Final Words Puzzle Witnesses, Orlando Sentinel, Oct. 10, 2002.

[15] See Elahe Izadi, ‘Worst Fears Were Realized’: Manhunt Underway for Murder Suspect Who Escaped Courthouse; Dayonte Resiles, 21, Escaped the Broward County Courthouse on Friday Morning, Leaving His Shackles and Jumpsuit Behind, Wash. Post, July 15, 2016.

[16] Ariel Zilber, ‘I Hope You Don’t Take It Personal’: Florida Man on Trial for Murder Pens Apology Letter to Judge After Escaping His Courtroom ‘To Gather Evidence That Would Prove My Innocence’, Daily Mail, Sept. 11, 2016.

[17] See Alana Goodman, Republicans Protest Broward County Election Overseer Who Is a Registered Democrat With Years of Ballot Blunders – As Lawyer Who Commissioned ‘Golden Showers’ Dossier Pushes For Recount to Topple Florida GOP ‘Winners’, Daily Mail, Nov. 9, 2018.

[18] See id.

[19] Marc Caputo, Florida to Monitor Broward Election Chief After Judge Finds ‘Unlawful’ Ballot Destruction in Wasserman Schultz Race, Politico, May 14, 2018.

[20] See id.

[21] See Anna Scott, Political System is Broken, Crist Says, Sarasota Herald Tribune, Apr. 30, 2010.

[22] See id.

[23] See Singhal, supra n. 1 at 5.

[24] See, e.g., William Raspberry, A Contemptible System, Wash. Post, Oct. 21, 2002.

[25] See Genaro C. Armas, State Prison Populations Levelling Off, While Federal Facilities Have Largest Increases, A.P. Int’l, Apr. 11, 2002.

[26] Interview with Neal Conan, Penalties Against White-Collar Crime, Nat’l Pub. Radio Talk of the Nation, Jan. 8, 2003.

[27] See id.

Karen Marston – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

Karen Marston is the Administration’s fourth nominee (and first woman) tapped for the U.S. District Court for the Eastern District of Pennsylvania.    

Background

Karen Spencer Marston was born in Portsmouth, Virginia in 1968.  She received a B.A. from Davidson College, an M.A.T. from Salem College and a J.D. from Wake Forest University School of Law.[1]  Marston then joined the Charlotte firm Moore & Van Allen PLLC as an Associate.

In 2000, Marston became a federal prosecutor with the U.S. Attorney’s Office for the Western District of North Carolina.[2]  She moved to the U.S. Attorney’s Office for the Eastern District of Pennsylvania in 2006 and became Chief of the Narcotics & Organized Crime branch in 2018.[3]  She serves there today.

History of the Seat

Marston has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on September 28, 2017, when Judge Legrome Davis moved to senior status.  

In February 2019, Marston applied for and interviewed with the Judicial Nomination Advisory Panel for the Eastern District of Pennsylvania.  Marston then interviewed with Sen. Pat Toomey (R-Pa), Sen. Bob Casey (D-Pa), and the White House.  President Trump announced Marston’s nomination to the vacancy on August 14, 2019.

Legal Experience

Marston has spent most of her career as a federal prosecutor, primarily prosecuting drug and organized crime cases.  In the course of her career, Marston has tried thirty-five jury cases, a sizable number.[4]  Notably, Marston prosecuted the drug company Novartis for marketing its drug Trileptal for off-label uses, despite only being approved by the FDA for treatment of epilepsy.[5]  In 2016, Marston also prosecuted supporters of Sen. Bernie Sanders’ presidential bid for entering a secured area during the Democratic National Convention.[6]   

Political Activity

Marston has been a member of the Federalist Society since 2019.[7]  Other than that, her only political involvement has been as an intern with the National Republican Committee while in college.[8] 

Overall Assessment

For better or for worse, prosecutors generally tend to be uncontroversial nominees, salable as “tough on crime.”  With her record, Marston falls into this pattern and will likely be confirmed by a bipartisan majority.


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

[2] Id. at 2.

[3] Id. 

[4] See id. at 17.

[5] United States v. Novartis Pharmaceutical Corp., 2:10-CR-650 (E.D. Pa.).

[6] See Jeremy Roebuck, Feds Drop Case Against Four DNC Fence-Jumpers, Philadelphia Inquirer, Aug. 9, 2016.

[7] See Marston supra n. 1 at 7-8.

[8] See id. at 13-14.

Sarah Pitlyk – Nominee to the U.S. District Court for the Eastern District of Missouri

The area in white is covered by the Eastern District

Justin Walker is not the only Kavanaugh clerk and surrogate to receive a federal judicial nomination.  Missouri-based pro-life attorney and former Kavanaugh clerk Sarah Pitlyk has been nominated to a judgeship based in St. Louis.

Background

Pitlyk was born Sarah Elizabeth Martin in 1977 in Indianapolis.[1]  She received a B.A. summa cum laude from Boston College in 1999, and then received an M.A. from Katholieke Universiteit Leuven in Belgium, and from Georgetown University before getting a J.D. from Yale University in 2008.[2]  After graduating, Pitlyk worked at Covington & Burling LLP in Washington D.C.  Pitlyk left the firm on hiatus to clerk for Justice Brett Kavanaugh (when he was on the D.C. Circuit), returning after her clerkship in 2011.[3]

In 2013, Pitlyk moved to Missouri to work as an Associate at the RUNNYMEDE law group, working with Stephen Clark (now a Judge on the U.S. District Court for the Eastern District of Missouri).[4]  She left in 2017 to join the Thomas More Society as Special Counsel, where she currently works.

History of the Seat

Pitlyk has been nominated for a vacancy on the U.S. District Court for the Eastern District of Missouri.  This seat opened on December 31, 2018, when Judge Catherine Perry moved to senior status.  In January 2019, newly elected Senator Josh Hawley reached out to Pitlyk to gauge her interest in the judgeship.[5]  In May 2019, Pitlyk began the vetting process with the White House and was nominated in August 2019.

Legal Experience

Excluding her clerkship, Pitlyk has approximately ten years of litigation experience, with stints at Covington & Burling, the RUNNYMEDE law group, and the Thomas More Society.  During this time, Pitlyk has litigated three cases that have gone to final judgment, including one as Chief Counsel.

Notably, in her short legal career, Pitlyk has litigated a number of controversial cases, generally trying to push the law in a more pro-life direction.  For example, while at RUNNYMEDE, Pitlyk worked with Clark on a suit unsuccessfully trying to establish the personhood of frozen embryos.[6]  At the Thomas More Society, Pitlyk was a part of the defense team for David Daleiden, a pro-life activist who faced criminal and civil suits for releasing videos purporting to show Planned Parenthood officials discussing the sale of fetal tissue.[7]  During her representation, Daleiden and his organization were held in contempt for violating a court order against disseminating the videos (the violations were based on the actions of Daleiden’s attorneys in a related criminal case).[8]

Pitlyk’s most notable case is her challenge to a St. Louis ordinance preventing any employer from discriminating against employees who had undergone abortions.[9]  Pitlyk argued that the ordinance created a protected class “based on social opinion” and infringed on the rights of Catholic organizations in the city.[10]  The ordinance was ultimately partially enjoined by Judge Audrey Fleissig.[11] 

Writings

Similar to Kentucky nominee Justin Walker, Pitlyk was a prominent surrogate for then-Judge Brett Kavanaugh during the campaign to confirm him in 2018.  Notably, Pitlyk sought to counter concerns that Kavanaugh was not committed to women’s rights, noting that he was solicitous of her needs while she was a new mother and clerking for him.[12]  In another interview, Pitlyk called Justice Kavanaugh “an exemplary judge: brilliant, principled, and faithful to the text.”[13]  In a July 2018 article, Pitlyk described Kavanaugh as having a “rock-solid record on the issues that matter most to social conservatives.”[14] 

Overall Assessment

There’s perhaps no issue as divisive in U.S. politics as abortion.  As such, any nominee with a long history of advocacy on either side of the issue is likely to face problems with confirmation.  When you add in the resurgence of the Kavanaugh confirmation as a divisive issue, it is likely that Pitlyk will face an uncomfortable (if not necessarily unsuccessful) confirmation fight.


[1] Sen. Comm. on the Judiciary, 116th Cong., Sarah Pitlyk: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id. at 2.

[4] Id.

[5] Id. at 37-38.

[6] See McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. 2016).

[7] Bob Egelko, Antiabortion Activist, Lawyers Held in Contempt Over Secret Videos, SFGate, July 17, 2017, https://www.sfgate.com/bayarea/article/Antiabortion-activist-lawyers-held-in-contempt-11295298.php.

[8] Nat’l Abortion Fed. v. Ctr. for Med. Progress, 926 F.3d 534 (9th Cir. 2019).

[9] Jim Salter, Catholics Challenge St. Louis ‘Abortion Sanctuary’ Law, A.P., May 22, 2017.

[10] Id. (quoting Sarah Pitlyk).

[11] Our Lady’s Inn. v. City of St. Louis, 349 F. Supp. 3d 805 (E.D. Mo. 2018).

[12] See, e.g., What Kavanaugh Is Like Behind the Scenes, Western Free Press, Aug. 9, 2018.

[13] See Elizabeth Williamson, Phalanx of Former Clerks Rushes Into Action, N.Y. Times, July 12, 2018.

[14] Sarah Pitlyk, Judge Brett Kavanaugh’s Impeccable Record of Constitutional Conservatism, Nat’l Rev., Jul. 3, 2018, https://www.nationalreview.com/2018/07/judge-brett-kavanaughs-impeccable-record-of-constitutional-conservatism/.  

Jeremy Rosen – Nominee to the U.S. District Court for the Central District of California

The Los Angeles-based Jeremy Rosen has been  one of the most prominent conservative attorneys in California for years, frequently commenting on legal issues and working on prominent matters.  After consideration for the Ninth Circuit, Rosen has been tapped for the U.S. District Court for the Central District of California.

Background

Jeremy Brooks Rosen was born in Hanover, NH on October 16, 1971.  Rosen attended Cornell University, getting a B.A. in 1993.[1]  He then received a J.D. magna cum laude from Duke University School of Law in 1997.[2]

After law school, Rosen clerked for Judge William Byrne on the U.S. District Court for the Central District of California and for Judge Ferdinand Fernandez of the U.S. Court of Appeals for the Ninth Circuit.  He then spent a year at Munger Tolles & Olson LLP before joining Horvitz & Levy LLP as an Associate.[3] He became a Partner with the firm in 2008 and has served there ever since.

Additionally, since 2013, Rosen has served as Director of the Ninth Circuit Appellate Advocacy Clinic at Pepperdine University School of Law.[4] 

History of the Seat

Rosen has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on October 29, 2015, by Judge Margaret Morrow’s move to senior status.  Despite the seat opening with more than a year left in the Obama Administration, the Administration did not put a candidate forward to fill the vacancy.  

Rosen had broached his interest in a judicial appointment in June 2017 with the White House.[5]  He interviewed with the White House in August 2017 (for both the Ninth Circuit or a district court seat) and then with selection committees set up by California’s Democratic Senators Dianne Feinstein and Kamala Harris.[6]  In October 2018, Rosen was nominated by the White House to the U.S. District Court for the Central District of Califronaia.

Legal Experience

Unusually for a district court nominee, Rosen has primarily worked as an appellate attorney, handling cases in a variety of legal issue areas.  As such, Rosen has not tried any cases.  Among his more prominent appeals, Rosen represented a pastor who was ousted in a church vote.[7]  He also represented a male inmate who sought to limit observation from female prison guards while he showered and used the bathroom.[8]

As Director of the Ninth Circuit Appellate Advocacy Clinic at Pepperdine University School of Law, Rosen also supervised law students in their legal representations.  For example, he served as a supervisor for students as they represented a Title VII plaintiff seeking relief after her complaint was dismissed for failure to pay the filing fee.[9]

Political Activity

In addition to being a longtime member of the Federalist Society, Rosen is politically active, volunteering for a number of Republican campaigns.[10]  For example, in 1988, Rosen volunteered for George Bush’s presidential campaign.[11]  Similarly, Rosen supported President George W. Bush in 2004, John McCain in 2008, and Jeb Bush in 2016.[12]

Writings & Commentary

Rosen has written extensively on the law and policy, especially discussing California’s anti-SLAPP statute (which allows defendants sued for First Amendment activity to strike the suits against them).[13]  In other matters, Rosen has also commented on judicial nominations issues.  For example, Rosen was one of many conservatives (including Ninth Circuit Judge Dan Collins) who endorsed Judge Paul Watford, when he nominated by President Obama to the Ninth Circuit in 2011.[14]  Watford was ultimately confirmed in 2012, despite drawing opposition from many Republican senators who saw him as a future Supreme Court nominee.

Overall Assessment

As a prominent (but still young) California appellate attorney, Rosen reminds one of other Ninth Circuit nominees such as Watford, or Judge Kenneth Lee.  However, unlike them, Rosen has been tapped for the district court.  Presumably, this is to better accord with the wishes of California’s home state senators.  That being said, while Rosen is probably one of the more acceptable choices for California’s senators when it comes to district court nominees, he may still face questions for his lack of trial court experience.  As such, some senators may be concerned that Rosen has never tried a case and may be unfamiliar with the minutiae of trial-level litigation.  Ironically, Rosen may have better luck as a nominee to the Ninth Circuit, to which his appellate experience seems better suited.


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

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] See id. at 75.

[6] Id.

[7] Hawkins v. St. John Missionary Baptist Church, No. F071584 (Cal. Ct. App. Mar. 15, 2017).

[8] Byrd v. Maricopa Cnty. Bd. of Super., 745 F.3d 919 (9th Cir. 2017).

[9] Escobedo v. Applebees, 787 F.3d 1226 (9th Cir. 2015).

[10] See Rosen, supra n. 1 at 41-42.

[11] Id.

[12] See id.

[13] See, e.g., Jeremy Rosen, Mark Goldowitz, Josephine Mason, Anti-SLAPP: Why We Need a Federal Counterpart, Los Angeles Daily Journal, June 9, 2012.

[14] Ian Millhiser, Is President Obama’s Latest Judicial Nominee Too Qualified to Get Confirmed, ThinkProgress, Oct. 18, 2011, https://thinkprogress.org/is-president-obamas-latest-judicial-nominee-too-qualified-to-get-confirmed-d47438ba802d/.