Brantley Starr – Nominee to the U.S. District Court for the Northern District of Texas

Two years ago, the First Assistant Attorney General for the Texas Attorney General’s Office, Jeff Mateer, saw his nomination implode as several controversial comments he had made in the past surfaced.  President Trump has now nominated Mateer’s deputy, Brantley Starr, to fill a lifetime appointment in Texas, where Mateer’s litigation history is likely to be a cause of controversy.

Background

A native Texan, Brantley David Starr was born in San Antonio in 1979.  He attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2004 (overlapping at both institutions with fellow Northern District nominee Matthew Kacsmaryk).[1]  After graduating from law school, Starr spent a year at the Office of the Texas Attorney General and then clerked on the Texas Supreme Court for Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit).  

After his clerkship, Starr rejoined the Texas Attorney General’s Office as a Fellow and Assistant Solicitor General.  In 2008, he joined King & Spalding LLC in Austin as an associate.  In 2011 he returned to the Texas Supreme Court as a Staff Attorney for Justice Eva Guzman.  In 2015, he rejoined the Texas Attorney General’s Office for a third time and currently serves as Deputy First Assistant Attorney General, working directly under former judicial nominee Jeff Mateer.

History of the Seat

Starr has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five of the twelve allotted judgeships for the District currently vacant.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Starr has been nominated to fill opened on September 22, 2018, when Judge Sidney Fitzwater[2] moved to senior status.  For his part, Starr interviewed for a judicial appointment in early 2017, but was not recommended at that time.[3]  Rather, Starr’s name wasn’t sent to the White House until July 2018, when he interviewed with the White House Counsel’s Office.  Starr was finally nominated on March 11, 2019.

Legal Experience

Starr has worked in three primary legal positions in his career: as a Staff Attorney to Texas Supreme Court Justice Eva Guzman; at the Austin office of King & Spalding; and at the Texas Attorney General’s Office.  While Starr largely avoided controversy in the former two positions, his stints at the Attorney General’s Office have involved him in some of the most potent legal issues currently being litigated.

Litigation

At the Attorney General’s Office, Starr has been active in much of Attorney General Ken Paxton’s strategy of activist litigation.  For example, Starr participated in a suit against the Obama Administration’s guidelines supporting the rights of transgender students.[4]  He also defended Texas’ strict voter ID law against a ruling that it was intended to discriminate against minority voters.[5] 

Testimony

In addition to his litigation work, Starr has frequently testified before the Texas legislature about proposed legislation, representing the views of the Texas Attorney General.  Starr’s testimony on these matters has generally been strongly conservative, regardless of the underlying subject matter of the legislation.  For example, Starr testified that legislation protecting the rights of adoption agencies to refuse to place children with same-sex couples was needed to protect “religious rights of conscience.”[6]  Starr also testified on legislation protecting religious objections to same-sex marriage, and persuaded legislators to drop language narrowing the protections only to actions clergy took “in their official capacity.”[7]  In other testimony, Starr suggested that state lawmakers had the flexibility to punish immigration offenses as state crimes,[8] and urged them to pass laws exempting religious groups from nondiscrimination ordinances on hiring and housing, allowing businesses not to sell to same-sex couples, and allowing government employees not to comply with Supreme Court precedent supporting same-sex marriage.[9]  Furthermore, in another instance, Starr testified that local district attorneys were neglecting enforcing the law on electoral and abortion related crimes.[10]  In response, many local prosecutors wrote that Starr’s testimony was misleading and was part of a “false narrative.”[11]

Writings

In addition to the public testimony Starr has offered in his official capacity, Starr has occasionally written on the law as well.  For example, Starr spoke favorably of Mateer’s ill-fated judicial nomination, stating:

“Jeff Mateer leaves a legacy of service to the State of Texas and will now extend that service to all Americans”[12]

In another article which he authored on behalf of the Texas Attorney General’s Office, Starr spoke on the travel ban cases, arguing that the Constitution “cannot extend to someone who is both an alien and who has not yet been admitted into the country.”[13]  In the article, Starr also suggested that a suit against Trump Administration executive orders against “sanctuary cities” may be meritorious.[14] 

Political Activity

Starr has supported Ted Cruz’s campaigns, donating to him to 2011 and 2016.[15]  In addition, Starr was a volunteer for Gov. Greg Abbott’s campaign in 2014.[16]

Overall Assessment

Starr’s nomination has already been approved by the Senate Judiciary Committee on a party-line vote.  This means that, unless four Republican senators oppose Starr, his nomination will eventually be approved on the Senate floor.  For the reasons noted below, such approval is likely but not certain.

First of all, Trump judicial nominees have generally drawn approval from most Republican senators unless there are any particularly controversial or injudicious actions in their past.  While Starr’s record is strongly conservative, he does not have such actions.  Secondly, while Starr is young, his legal ability is largely beyond debate.

However, Starr’s advocacy and testimony on behalf of the Texas Attorney General’s Office may still draw fire.  For many, “religious conscience” laws are increasingly seen as licenses to discriminate.  As such, Starr’s assertive advocacy on their behalf, and his endorsement of Mateer, may ultimately become an issue.


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

[2] Fitzwater himself was nominated to the Northern District amidst controversy due to his youth and alleged participation in voter suppression efforts.  Fitzwater’s later nomination to the Fifth Circuit was never confirmed.

[3] Id. at 35.

[4] See Daily Signal, Texas Sues Obama Administration Over Transgender Bathroom Directive, Western Free Press, May 26, 2016.

[5] See Paul J. Weber, Judge Again Finds Discrimination in Texas’ Voter ID Law, Salt Lake Tribune, Apr. 10, 2017.

[6] Newstex, Committee Weighs ‘License to Discriminate’ Adoption Bill, Texas Observer, Apr. 16, 2015.

[7] Chuck Lindell, Religious Objections Bill Heads to Senate, Austin American Statesman, May 5, 2015.

[8] Laws Can Be Written to Secure Border: US Attorney, Legal Monitor Worldwide, Dec. 19, 2015.

[9] Chuck Lindell, Senate Panel Weighing ‘Religious Freedom’ Laws, Austin American-Statesman, Feb. 18, 2016.

[10] Emma Platoff, Texas Attorney General Ken Paxton is Seeking More Power This Session to Prosecute Voter Fraud and Abortion-Related Crimes, Texas Tribune, Feb. 4, 2019.

[11] See id.

[12] See Press Release, Office of the Texas Attorney General, Attorney General Paxton Releases Statement on First Assistant Attorney General Jeff Mateer’s Nomination By President Trump to Federal Bench (Sept. 7, 2017).

[13] See Brantley Starr, Executive Power Over Immigration, 22 Tex. Rev. Law & Pol. 283, 285-86 (Winter, 2017).

[14] See id. at 289-93.

[16] See Starr, supra n. 1 at 16.

Judge Peter Phipps – Nominee to the U.S. Court of Appeals for the Third Circuit

The 46-year-old Peter Phipps faced an uncontentious confirmation to the U.S. District Court for the Western District of Pennsylvania last year.  Now, just a few months later, Phipps is up for a seat on the U.S. Court of Appeals for the Third Circuit.

Background

Peter Joseph Phipps was born on April 8, 1973 at Dyess Air Force Base in Abilene, TX.[1]  Phipps attended the University of Dayton, getting a B.A. in History and a B.S. in Physics.[2]  He continued on to the Stanford University Law School, graduating with a J.D. in 1998.  He then joined the Washington D.C. Office of Jones Day (a firm that has sent many alumni to the Trump Administration and the federal bench).[3]

In 2001, Phipps left Jones Day to clerk for Judge R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.[4] 

Phipps was nominated in February 2018 to a seat on the U.S. District Court for the Western District of Pennsylvania.  He was confirmed by voice vote on October 11, 2018, and has served on the federal bench since then.

History of the Seat

Phipps has been nominated to Judge Thomas Vanaskie’s seat on the U.S. Court of Appeals for the Third Circuit.  Vanaskie, a Democrat, was appointed to the U.S. District Court for the Middle District of Pennsyvania by President Bill Clinton in 1994 and to the Third Circuit by President Obama in 2010.

Phipps’ nomination is opposed by Democratic Senator Bob Casey, who argues that Phipps lacks the experience on the bench for a seat on the Court of Appeals.[5] 

Legal Experience

While Phipps’s primary legal occupation has been as a litigator at the Department of Justice, he began his career as an Associate in the Washington D.C. Office of Jones Day, representing corporations in civil litigation.[6]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[7]

As Senior Trial Counsel at the Federal Programs Branch of the Department of Justice, Phipps litigated many contentious cases.  In one case, Phipps defended the U.S. Department of Housing and Urban Development against a class action suit brought by African American plaintiffs alleging racial discrimination in public housing.[8]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[9] 

In another notable case, Phipps defended the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy, which barred individuals engaging in homosexual conduct from serving openly in the armed forces.[10]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[11] 

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[12]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[13]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[14]

Jurisprudence

Phipps has served as a U.S. District Judge on the Western District of Pennsylvania since late October 2018.  In his short time on the bench, Phipps has presided over just one case that has gone to verdict or judgment, a $125,000 jury verdict for a plaintiff in a workplace injury trial.[15]  In other notable opinions, Phipps granted summary judgment against a plaintiff who was injured in a slip-and-fall, finding that there was not enough evidence to support plaintiff’s contention that there was a wet floor on the premises.[16]

Overall Assessment

When Phipps was nominated for the district court, we predicted a painless confirmation due to his relatively apolitical background and strong background.  Notwithstanding Casey’s opposition, there is still little in Phipps’ record to warrant strong opposition to the Third Circuit.  Phipps’ record does not suggest that he is particularly conservative, let alone an activist.  While the White House should have accommodated Casey’s concerns regarding Phipps’ level of experience, the nominee has more judicial experience than five out of the last six nominees selected for the Third Circuit.  As such, I predict a swift, if not entirely painless, confirmation for Phipps to the Third Circuit, and a relatively centrist tenure on the court.


[1] Sen. Comm. on the Judiciary, 116th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Press Release, Alliance for Justice, Peter Phipps Should Not Be Confirmed to Third Circuit (May 31, 2019).

[6] Id. at 10.

[7] Id. at 11-12.

[8] Thompson v. HUD, No. 95-395 (D. Md.) (Garbis, J.) (Grimm, J.).

[9] See id.

[10] Witt v. United States Air Force, No. 06-5195 (W.D. Wash.) (Leighton, J.).

[11] American Civil Liberties Union of Northern California v. Hargan, No. 16-3539 (N.D. Cal.) (Beeler, M.J.).

[12] See NCAA v. Christie, Nos. 3:12-4947; 3:14-6450 (D.N.J.) (Shipp, J.); Nos. 13-1713,-1714,-1715 (3d Cir.); Nos. 14-4546,-4568,-4569 (3d Cir.) (subsequently en banc); Nos. 13-967; -979; -980, Nos. 16-476,-477 (U.S.).

[13] See id.

[14] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

[15] Powers v. Norfolk Southern Ry. Co., Case No. 2:17-cv-648 (W.D. Pa.).

[16] Wood v. Speedway LLC, Civil Action No. 2:17-cv-1408, 2019 WL 2248671 (W.D. Pa. May 24, 2019).

William Shaw Stickman IV – Nominee to the U.S. District Court for the Western District of Pennsylvania

Sen. Pat Toomey is adept at recommending young male lawyers with bright futures to serve on the Western District of Pennsylvania.  After Judge Peter Phipps and Nicholas Ranjan, he has now recommended William Shaw Stickman IV.  In Stickman’s case, assertive letters to the editor he authored in his youth may cause him difficulty in the confirmation process.

Background

William Shaw Stickman IV was born in Pittsburgh PA in 1979.[1]  Stickman graduated summa cum laude from Duquesne University in 2002 and from Duquesne University Law School in 2005.[2]  He spent a year at the Pittsburgh office of Reed Smith LLP and then clerked for Chief Justice Ralph Cappy on the Pennsylvania Supreme Court.  He then joined the Pittsburgh Office of Del Sole Cavanaugh Stroyd LLC as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Stickman has been nominated for opened on December 6, 2018, with Judge Joy Flowers Conti’s move to senior status.  

Stickman applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Stickman interviewed with Toomey and Casey shortly after but did not start the process with the White House until February 2019.  He was formally nominated on May 13, 2019.

Legal Experience

Stickman has spent entire legal career post clerkship at the Pittsburgh office of Del Sole Cavanaugh Stroyd LLC, handling a litigation practice on both civil and personal injury cases.  Overall, Stickman has litigated six jury trials to verdict.[6]  Notably, Stickman (with Third Circuit Judge Stephanos Bibas as his co-counsel) represented the mother of Ryan Maseth, a Pittsburgh-native soldier who was electrocuted in an Iraqi military base.[7]  Stickman’s case against the military contractor responsible for the barracks was dismissed by Judge Nora Barry Fischer,[8] but was reinstated by the Third Circuit.[9]  The case was ultimately settled.

In another matter, Stickman served as Counsel for the Pennsylvania Reapportionment Commission in defending redistricting plans developed after the 2010 census.[10] 

Political Activity

Stickman is a Republican and has served on the Alleghany County Republican Committee from 2014 to 2019.[11]  He also ran for the Alleghany County Council as a college student in 2001, losing the election to Democratic incumbent Wayne Fontana.[12]  During the election, the Pittsburgh Post-Gazette endorsed Fontana, describing Stickman as “earnest and diligent” but noting his youth and that he “lacks an adequate grasp of specific issues facing the county.”[13]

Writings

In the early 2000s, Stickman authored a number of Letters to the Editor for the Pittsburgh Post Gazette.  Three of these letters are particularly notable for revealing Stickman’s views on key social issues.

Abortion

During the 2004 election, Stickman wrote a response to another letter comparing the number of abortions in the U.S. to the number of deaths in Iraq.  In the letter, Stickman describes the abortion industry as “grotesque,” stating that “since Roe vs. Wade more than 39 million babies have been killed by abortion.”[14]  Stickman also criticizes the comparison between abortion and the Iraq war, stating:

“To argue that there is moral equivalence between the accidental deaths of Iraqi civilians while liberating them from a murderous tyrant and the intentional deaths of many millions of babies is specious at best.”[15]

Gay Rights

In 2003, shortly after the Supreme Court struck down anti-sodomy laws in its Lawrence v. Texas decision, Stickman wrote a letter defending the disapproval and anti-LGBT views of Sen. Rick Santorum.[16]  In the letter, Stickman describes gay rights groups criticizing Santorum as “leftist sharks” and states:

“Even if the senator did equate homosexual intercourse with adultery, bigamy and incest, isn’t that his prerogative?  Are we and the leaders we elect no longer allowed to disagree with the activities of certain groups?”[17] 

Anti-Catholic Bias

In a 2002 letter, Stickman criticized the Post-Gazette’s coverage of sexual abuse cases involving Catholic priests.[18]  Stickman suggested that the coverage sensationalized the scandal and was motivated by anti-Catholic prejudice, comparing it to the Ku Klux Klan burning crosses to intimidate his Catholic grandmother.[19]  Stickman also alludes to the campaign against anti-Muslim bigotry after the September 11 attacks, asking: “is anti-Catholicism the last acceptable prejudice in our society?”[20]  Stickman notes that only 1.8 percent of Catholic priests have been implicated in scandal, noting:

“…the PG [Post-Gazette] should apologize to the 98.2 percent of priests who have suffered due to one-sided coverage.”[21]

Overall Assessment

The 40-year-old Stickman is young, conservative, and seems to have the support of his home state senators (even Democratic Sen. Bob Casey).  Furthermore, his career as a lawyer has not attracted much controversy, and he has accrued the requisite level of experience for a federal trial judge.  As such, his confirmation seems fairly assured.  

However, senators are likely to raise concerns about Stickman’s letters to the editor, suggesting that such letters do not reflect an appropriate judicial temperament.  Furthermore, Stickman’s beliefs, as divined from those letters, can be read to suggest that abortion is equivalent to murder, that homosexuality is equivalent to incest, that criticism of the Catholic church for its role in covering up child abuse is motivated solely by anti-Catholic animus, and that criticism of homophobia is an attempt to suppress speech.  While a nominee’s personal views shouldn’t necessarily dictate their judicial decisions, the boundary is nonetheless appropriate for senators to explore.

Of course, as with any nominee whose previous writings come under scrutiny, the key question is whether the nominee maintains the same views today or if his views have evolved with time.  That will be the question that must be explored regarding Stickman.


[1] Sen. Comm. on the Judiciary, 115th Cong., William S. Stickman IV: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 15.

[7] See Joe Mandak, Judge: No Iraqi Law in Pa. Soldier’s Shower Death, Associated Press, Oct. 3, 2011.

[8] Joe Mandak, Judge Nixes Pa. Soldier’s Iraq Electrocution Suit, Associated Press, July 16, 2012.

[9] Joe Mandak, Suit Over Pa. Soldier’s Death  in Iraq is Revived, Associated Press, Aug. 1, 2013.

[10] See Angela Couloumbis, Pa. Justices Hear Arguments Over New Legislative Plans, Philadelphia Inquirer, Sept. 13, 2012.

[11] See Stickman, supra n. 1 at 13-14.

[12] Id. at 13.

[13] Editorial, Fontana for District 12; More a Worker than a Reformer on County Council, Pittsburgh Post-Gazette, Oct. 26, 2001.

[14] See William S. Stickman IV, Accidental Deaths Vs. Intentional Deaths: No Comparison, Pittsburgh Post-Gazette, Oct. 29, 2004.

[15] Id.

[16] William S. Stickman IV, Free to Disagree, Pittsburgh Post-Gazette, Apr. 30, 2003.

[17] See id. 

[18] William Stickman, An Acceptable Prejudice?, Pittsburgh Post-Gazette, Mar. 29, 2002.

[19] See id.

[20] Id.

[21] Id.

Jason Pulliam – Nominee to the U.S. District Court for the Western District of Texas

The lack of diversity of Trump’s judicial nominees has already drawn criticism.  Trump has been especially slow about nominating African American judges, naming just six to date.  As such, the nomination of Jason Pulliam, who will be the first African American judge on the Western District of Texas, is particularly welcome.

Background

Jason Kenneth Pulliam was born in 1971 in Brooklyn.  After getting a B.A. and an M.A. from Brooklyn College, CUNY, Pulliam received a J.D. Texas Southern University Thurgood Marshall School of Law in 2000.  After his graduation, Pulliam spent three years as a Judge Advocate in the U.S. Marine Corps.[1]

After leaving the Marines, Pulliam spent the next six years as an associate in private practice, moving between The Carlson Law Firm, Ball & Weed P.C. and Ford & Murray PLLC.  In 2011, Pulliam became a Judge with the Bexar County Court of Law No. 5.[2]  In 2015, he was appointed by outgoing Gov. Rick Perry as a Justice on the Fourth Circuit Court of Appeals.  However, in 2016, Pulliam lost re-election to fellow Bexar County Court judge Irene Alarcon Rios.  He then joined the San Antonio office of Prichard Young LLP as a Counsel.

In 2018, Pulliam once again ran for the Fourth Circuit, but again lost the election to incumbent judge Patricia Alvarez, a Democrat.

History of the Seat

Pulliam has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on December 31, 2017, when Judge Sam Sparks took senior status.  While Pulliam was previously considered for vacancies filled by Judges Walter Counts and Fernando Rodriguez, he was ultimately recommended in mid-2018 for the Sparks vacancy, based out of Austin.[3]  However, while Pulliam was selected as a nominee by the White House in August 2018, he was not formally nominated until March 2019.

Legal Experience

Pulliam started his legal career as a Judge Advocate in the U.S. Marine Corps, where he served as a criminal defense and legal assistance attorney while serving on active duty.  During this period, Pulliam was trial defense counsel for James D. Mohammad, who was convicted for failing to follow an order to get inoculated based on his Muslim faith.[4]  Mohammad appealed, arguing that Pulliam was ineffective in his defense, but the Court of Criminal Appeals found that Pulliam had adequately researched the defenses Mohammad sought and had declined to bring them because they were specious.[5]

From 2004 to 2010, Pulliam worked in private practice, where he handled a variety of cases, including personal injury, civil litigation, and malpractice.  In this period, Pulliam notably defended RV Insurance Solutions LLC, a collection agency, against allegations that it had illegally misappropriated customer funds.[6]

Jurisprudence

Pulliam served as a county court judge from 2011 to 2014 and as an appellate judge from 2015 to 2016.  In the latter position, Pulliam sat as part of 3-judge panels to oversee appeals in the Fourth Circuit, which covered much of Southern Texas.  As an appellate judge, Pulliam notably dismissed a class action suit by a team of 1400 plaintiffs who alleged that payday lenders had improperly used criminal prosecution against their debtors.[7]  In his opinion, Pulliam found that the suits were foreclosed by arbitration clauses in the payday contracts.[8]  However, Judge Rebeca Martinez dissented from Pulliam’s conclusion.[9]

In another notable case, Pulliam held that Dino Villareal, a transgender man[10], could not bring suit for a paternity action for the adoptive children of his female partner.[11]  This holding also drew dissents, including one on the merits from Judge Martinez.[12]

Political Activity

As noted earlier, Pulliam ran as a Republican in Texas judicial elections, losing to Democratic candidates in 2016 and 2018.  In addition, Pulliam donated to Rep. Cathy McMorris Rodgers in 2016.[13]

Speeches and Writings

While a sitting judge and judicial candidate in 2016, Pulliam appeared on an interview with the Black Video Network, where he discussed his role as a judge and key issues.[14]  Among the topics he is asked to address, Pulliam discusses police brutality and Black Lives Matter noting:

“[Protestors] have an absolute right to protest under the First Amendment.  They have a right to seek redress for grievances, and I think we should encourage that as long as it doesn’t ever become violent.  Folks probably need to have a specific agenda and list of items that they seek redress for those grievances.  They may want to petition their city council or their state legislature, and then seek to change by being part of the process.”[15]

Later in the interview, Pulliam contrasted himself with Judge Rios, his opponent, by noting that he has criminal and civil experience, while Rios only has civil experience.[16]

Overall Assessment

Pulliam was the first African American Republican to be a Bexar County judge when he was appointed in 2011.  He then became the first African American on the Fourth Circuit and, would, if confirmed, become the first African American on the U.S. District Court for the Western District of Texas.

Setting aside his contribution to the diversity of the federal bench, Pulliam’s record is conservative but not overly political.  While Pulliam may draw criticism for his decisions in the CASH BIZ and Sandoval cases, such concerns are unlikely to derail his nomination.


[1] Sen. Comm. on the Judiciary, 115th Cong., Jason K. Pulliam: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] See id. at 60-61.

[4] United States v. Mohammad, 2006 WL 1499986 (U.S. Navy-Marine Corps Ct. of Crim. App. May 31, 2006).

[5] See id. at *5.

[6] Motorhomebytel, Inc. v. RV Ins. Sols. LLC., Bexar Cnty. St. Dist. No. Cause 2007C105629.

[7] CASH BIZ, LP v. Henry, No. 04-15-00469-CV, 2016 WL 4013794 (Tex. App. – San Antonio, July 27, 2016, pet. filed).

[8] See id.

[9] Charles Kuffner, Appeals Court Blocks Litigation Against Payday Lenders, Off the Kuff, Aug. 7, 2016.

[10] Interestingly, while Mr. Villareal has obtained an Order Granting Change of Identity, and, while Pulliam’s original opinion refers to him as male, Pulliam’s SJC Questionnaire appears to misgender him.  See Pulliam, supra n. 1 at 26 (“The underlying matter involved two women who were in a relationship (Sandoval and another woman who identified as a man named Dino.”).

[11] In re Sandoval, No. 04-15-00244-CV, 2016 WL 353010 (Tex. App._San Antonio Jan. 27, 2016, orig. proceeding).

[12] Art Leonard, Texas Appeals Panel Denies Transgender Man Standing to Bring Paternity Action Concerning Children He Was Parenting, Art Leonard Observations, Jan. 30, 2016, https://www.artleonardobservations.com/texas-appeals-panel-denies-transgender-man-standing-to-bring-paternity-action-concerning-children-he-was-parenting/.  

[14] See Black Excellence – Jason Pulliam for Judge, https://www.youtube.com/watch?v=PJQY-FerUFM.  

[15] See id.

[16] Id.

Judge Robert Colville – Nominee to the U.S. District Court for the Western District of Pennsylvania

When the Obama Administration ended, four district court nominees in Pennsylvania were left unconfirmed before the Republican Senate.  With the nomination of Judge Robert Colville to the Western District, all four have now been renominated by President Trump.

Background

A Western Pennsylvania native, Colville was born in Pittsburgh in 1965, the son of Robert E Colville.[1]  The senior Colville was a longtime Alleghany County District Attorney and Pennsylvania Judge.  The younger Colville attended Pennsylvania State University, graduating with a B.A. in 1989.  Colville went on to get a Juris Doctor from Duquesne University School of Law.[2]

After graduating, Colville clerked for Pennsylvania Supreme Court Justice Ralph Cappy and then joined the Pittsburgh Office of Pietragallo Bosick & Gordon as an Associate.

In 2000, Colville became a judge on the Court of Common Pleas for Alleghany County.[3]   Colville continues to serve in that position today.

On July 30, 2015, President Obama nominated Colville to the U.S. District Court for the Western District of Pennsylvania to fill a vacancy opened by the death of Judge Gary Lancaster.  Colville received a hearing before the Senate Judiciary Committee but was never voted out by the Committee, where Republican Senators objected to Colville’s answers relating to Roe v. Wade and abortion rights.[4]

History of the Seat

As noted above, Colville’s nomination to the Lancaster seat on the Western District of Pennsylvania stalled in the Obama Administration.  President Trump chose not to renominate Colville to that seat, instead choosing another failed Obama nominee, Judge Marilyn Horan, who was confirmed.

Nevertheless, in August 2018, the White House reached out to Colville to vet him for a federal judgeship.[5]  Colville was nominated on March 5, 2019 for a seat that opened on January 1, 2018, with the move to senior status of Judge Arthur Schwab.

Legal Experience

From 1994 to 1999, Colville worked as an associate and a partner at Pietragallo Bosick & Gordon in Pittsburgh.  At the firm, Colville tried approximately four cases in Pennsylvania state court, focusing on general civil litigation.[6]  Among the most significant matters that Colville handled at the firm, he represented Universal Underwriters, an insurance company, in defending against a reimbursement action before the Pennsylvania Supreme Court.[7]

Jurisprudence

Colville has served as a state court judge in Alleghany County since 2000.  He spent his first two years in the Juvenile Division, the third year in the Family Division, and has been with the Civil Division since 2003.[8]  Colville has presided over around 400 civil trials.[9]

Among his more prominent cases, Colville presided over a medical malpractice case arising from the death of a patient from a perforated bowel.[10]  In another notable case, Colville presided over a $5.7 million verdict for the plaintiff in a medical malpractice case where a patient was not adequately screened for liver cancer and died as a result.[11]

Political Activity

Colville comes from a prominent Western Pennsylvania Democratic family and has only one donation of record, a $600 contribution to the Pennsylvania Democratic Party.[12]

Overall Assessment

As noted before, any nominee found worthy of nomination by two administrations of different political parties is likely to be fairly uncontroversial.  While Colville has bipartisan support, however, he is nonetheless likely to draw some opposition.  His initial nomination failed to make it out of Committee due to his (perceived) support for abortion rights, and his second nomination has already drawn Republican opposition.  None of this is to say that Colville will not be ultimately confirmed, but it does suggest that Colville will not attract the level of support that other Pennsylvania nominees have drawn.


[1] Sen. Comm. on the Judiciary, 116th Cong., Robert J. Colville: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominees Fail to Advance, The Daily Signal, Jan. 29, 2016, https://www.dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[5] See Colville, supra n. 1 at 60.

[6] See Colville, supra  n. 1 at 53-54.

[7] See State Farm Mutual Auto Ins. Co. v. Universal Underwriters, 701 A.2d 1330 (Pa. 1997).

[8] See Colville, supra n. 1 at 1-2.

[9] Id. at 25.

[10] See Cunning v. Ellwood City Hospital, No. GD12-020914, Alleghany Cnty., May 14, 2015 (trial date).

[11] See Kander v. Agha, No. GD 13-007761, Alleghany Cnty., Apr. 9, 2015 (jury verdict).

Steven Grimberg – Nominee to the U.S. District Court for the Northern District of Georgia

A former prosecutor focused on economic crimes, Steven Grimberg currently serves in an unusual capacity for a judicial nominee, as General Counsel for a global investigations firm.

Background

Steven Daniel Grimberg was born in New York City in 1974.[1]  After getting an B.A. from the University of Florida in 1995, Grimberg attended Emory University Law School, graduating in 1998.  Following his graduation, Grimberg spent a year at Vial, Hamilton, Koch & Knox LLP in Dallas, three years at Muller Mintz P.A. in Miami, and three years at Hunton & Williams in Atlanta.[2]

In 2005, Grimberg joined the Department of Justice in Washington D.C. as a trial attorney in the Tax Division.  In 2010, he moved to the U.S. Attorney’s Office for the Northern District of Georgia to be Deputy Chief of the Economic Crimes Division under then U.S. Attorney Sally Yates.[3]

In 2018, Grimberg became General Counsel at Nardello & Co, a global investigations firm.

History of the Seat

Grimberg has been nominated for a seat on the U.S. District Court for the Northern District of Georgia.  This seat was vacated on December 1, 2018, when Judge Richard Story moved to senior status.  Grimberg had applied with the Georgia senators for the vacancy that opened with Judge William Duffey’s move to senior status, but was not selected for that seat.[4]  However, in October 2018, when Story announced his intention to take senior status, the White House began vetting Grimberg.[5]  Grimberg was nominated on April 2, 2019.

Legal Experience

While Grimberg began his legal career in private practice, he has spent the most critical portion of his career as a prosecutor.  As a federal prosecutor, Grimberg prosecuted Becky McCord, a Georgia Superior Court clerk, of stealing $134,000 in fees and funds.[6]  He also prosecuted Annamalai Annamalai, a self-proclaimed spiritual leader who defrauded much of the Georgian Hindu community through fraudulent credit card transactions, which he used to finance a lavish lifestyle.[7]

Since 2018, Grimberg has served as General Counsel for the Americas at Nardello & Co, a global investigations firm.  In this role, Grimberg serves as the primary legal guide for the firm, which conducts investigations on behalf of law firms and financial institutions.

Political Activity

Grimberg is a member of the Federalist Society for Law & Public Policy.[8]  He has also donated to the Presidential campaign of Sen. Marco Rubio.[9]

Writings

In 2018, Grimberg co-authored a paper with former FBI Agent Mark Ray discussing cybersecurity measures that should be taken by corporations.[10]  The article suggested that corporations should conduct a cybersecurity assessment to determine their level of vulnerability to a data breach and then implement and test incident response plans to respond to such data breaches.[11]

Overall Assessment

While Grimberg’s current position in house with an investigations firm is unusual for a judicial nominee, his background as a prosecutor is not.  Grimberg is now the third (of four) Trump nominee to the Northern District with prosecutorial experience.  If confirmed, Grimberg is expected to add another conservative voice to that court.


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

[2] Id. at 2.

[3] Id.

[4] That nomination went to State Judge J.P. Boulee.

[5] Id. at 37.

[6] Andria Simmons, Crime and Punishment; Court Clerk Accused of Fraud, Atlanta Journal-Constitution, Apr. 27, 2011.

[7] United States v. Annamalai Annamalai, et al., No. 1:13-CR-00437-TCB-CMS (N.D. Ga.).

[8] See Grimberg, supra n. 1 at 7.

[9] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=steven+grimberg&cycle=&state=&zip=&employ=&cand= (last visited Apr. 29, 2019).  

[10] Steven Grimberg and Mark Ray, A Call to Action: Cybersecurity Due Diligence in Today’s Business Climate, 5 Emory Corp. Accountability Rev. 73 (2018).

[11] Id. at 75.

Judge Mark Pittman – Nominee to the U.S. District Court for the Northern District of Texas

A young state court judge with a conservative pedigree, Judge Mark Pittman is right out of central casting for the Trump Administration in its judicial nominees.

Background

A native Texan, Mark Timothy Pittman was born in Big Spring in 1975.  Pittman attended Texas A&M University, receiving his Bachelor of Arts magna cum laude in 1996 and a Juris Doctor from the University of Texas School of Law in 1999.  After graduating from law school, Pittman clerked for Judge Eldon Brooks Mahon on the U.S. District Court for the Northern District of Texas and then joined the Fort Worth office of Kelly, Hart and Hallman LLP as an associate.[1]

In 2004, Pittman joined the U.S. Department of Justice Civil Division in Washington D.C. as a Trial Attorney.  In 2007, he returned to Texas as a federal prosecutor.  In 2009, Pittman joined the Federal Deposit Insurance Corporation in Dallas as a Senior Attorney and in 2011, moved to the Securities and Exchange Commission as an Enforcement Attorney (from 2014 to 2015, he also served as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office).[2]

In 2015, outgoing Gov. Rick Perry appointed Pittman to serve as a District Judge on the 352d District in Texas.  Pittman won re-election in 2016 unopposed as a Republican.  In 2017, Gov. Greg Abbott appointed Pittman to the Texas Second District Court of Appeals, where he won re-election, unopposed, in 2018, and where he currently serves.

History of the Seat

Pittman has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five nominees currently pending before the Senate.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Pittman has been nominated to fill opened on October 9, 2018, when Judge John McBryde moved to senior status.  McBryde himself replaced Judge Mahon, and, as such, if confirmed, Pittman would fill the seat of his once-boss.

Legal Experience

Pittman has had a varied legal career, having worked in six different positions in the approximately 15 years of pre-bench legal work.  Overall, Pittman primarily focused on prosecuting securities and economic crimes, including at the SEC, the FDIC, and at the U.S. Attorney’s Office.  Pittman has tried 11 cases including a three-week long bench trial on a discrimination claim against the Federal Aviation Commission.[3]

In other notable cases, Pittman led investigations that led to prosecutions of an individual defrauding seniors in real estate investments,[4] and a defendant who created straw men to run an oil-and-gas Ponzi scheme.[5]

Jurisprudence

Pittman served as a state district judge from 2015 to 2017 and as an appellate judge since 2017.  In the former position, Pittman presided over approximately 75 trials among approximately 1000 cases.  Among the cases he handled, Pittman faced a motion to dismiss a tort claim brought against the University of North Texas Health Science Center.[6]  The issue was whether the hospital had adequately received notice under Texas law within six months of the underlying incident.  Pittman ruled that notes made in the hospital records reflected the hospital’s notice of potential tort claims.  However, this ruling was overturned by the Court of Appeals, who instructed Pittman to dismiss the action for lack of subject matter jurisdiction.[7]

As an appellate judge, Pittman has generally maintained a conservative record.  For example, in one case, Pittman found that a $10,000 fine assessed by a jury could still be assessed against a defendant where the judge left the fine out of his oral pronouncement.[8]  In dissent, Judge Elizabeth Kerr, a fellow Republican, noted that there was no “ambiguity” where a judge did not pronounce a fine at sentencing.[9]

However, in another case, Pittman affirmed the trial court grant of a motion to suppress a traffic stop based solely on information from the state vehicle insurance database, finding that the trial court had correctly credited testimony regarding the high incidence of error in the database.[10]

Political Activity

Pittman is a Republican who has run for judicial elections as such.  Before he joined the bench, Pittman volunteered with many Texas Republican campaigns, including those of then Governor George Bush, then Senator Phil Gramm, and then Attorney General Greg Abbott.[11]  Pittman is also a Founding Member of the Tarrant County chapter of the Federalist Society.[12]

Overall Assessment

Given the strong concern raised by many Democrats towards participation in the Federalist Society, it is unlikely that Pittman’s involvement with the group will be seen as a positive.  However, setting that aside, Pittman’s record as a judge is that of a mainstream conservative.  As such, while Pittman may not see a bipartisan confirmation, he is unlikely to be a nominee who is fought particularly aggressively.


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

[2] Id.

[3] See Bland v. LaHood, 2010 WL 1328148 (N.D. Tex. Jan. 8, 2010).

[4] United States v. Battie, 3:16-cr-00051-D-1 (N.D. Tex.).

[5] Securities and Exchange Commission v. Halek, et al., 3:14-cv-01106-D (N.D. Tex.).

[6] University of North Tex. Health Science Cntr. v. Jimenez, 2017 WL 3298396 (Tex. App-Fort Worth, pet. Filed Sept. 15, 2017).

[7] See id.

[8] Ette v. State, 551 S.W.3d 783, 789-91 (Tex. App. 2017).

[9] Id. at 797-98 (J. Kerr, dissenting).

[10] See State v. Binkley, 541 S.W.3d 923 (Tex. App. 2018).

[11] See Pittman, supra n. 1 at 28-29.

[12] See Press Release, Office of Governor Greg Abbott, Governor Abbott Appoints Pittman to Second Court of Appeals (Jan. 6, 2017) (available at https://gov.texas.gov/news/post/governor_abbott_appoints_pittman_to_second_court_of_appeals).