Judge Rossie Alston – Nominee to the U.S. District Court for the Eastern District of Virginia

Judge Rossie Alston, who currently serves on the Virginia Court of Appeals, has had his share of messy confirmation battles.  Three years ago, his confirmation to the Virginia Supreme Court was derailed by a power struggle between the Virginia legislature and Governor Terry McAuliffe.  This time around, his nomination to the U.S. District Court for the Eastern District of Virginia is likely to yield more success.

Background

Rossie David Alston Jr. was born in Washington D.C. on May 31, 1957.  He attended Averett College (now University) in Southern Virginia, graduating cum laude in 1979 and then received a J.D. from North Carolina Central University School of Law in 1982.[1]

After graduation, Alston worked as a Staff Attorney at the National Labor Relations Board and then joined the National Right to Work Legal Defense Foundation, where he worked for five years as a Staff Attorney.[2]  In 1992, Alston joined Smith, Hudson, Hammond and Alston in Manassas as a Name Partner.[3]

In 1998, Alston was appointed to the Juvenile & Domestic Relations Court in Prince William County.[4]  Three years later, he was selected to be a Circuit Court judge in Prince William County.[5]

In 2005, Alston applied for a vacancy on the U.S. District Court for the Eastern District of Virginia, but was not selected as the top candidate by the State Bar (who chose magistrate judge Liam O’Grady and litigator Anthony Trenga).[6]  Alston was still one of five candidates recommended for the seat by Virginia’s Republican Senators (O’Grady was ultimately chosen).[7]

In 2009, Alston was selected by the Virginia General Assembly to join the Virginia Court of Appeals, replacing Judge Jean Harrison Clements.[8]

In 2015, Alston was part of a tangle over a Supreme Court appointment between Gov. Terry McAuliffe and General Assembly leaders.  McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court upon the recommendation of Del. Dave Albo, a Republican.[9]  However, Republican leaders in the Assembly protested the nomination, claiming that they were not adequately consulted, and instead announced plans to elevate Alston to the seat.[10]  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.[11]

Republicans tried to move Alston again after Watkins’ retirement, but Sen. Glen Sturtevant, who replaced Watkins, indicated his opposition to Alston.[12]  After two African American Democrats both reneged on deals to support Alston, Republicans dropped plans to elevate him, and his colleague, Judge Steven McCullough, was elevated instead.

Alston continues to serve on the Virginia Court of Appeals.

History of the Seat

Alston has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on September 30, 2017, when Judge Gerald Bruce Lee moved to senior status.  Virginia Senators Mark Warner and Tim Kaine, both Democrats, recommended Alston alongside federal prosecutor Patricia Giles in December 2017.[13]  Alston was nominated on June 18, 2018.[14]

Legal Experience

Alston started his legal career working as a labor attorney, first at the National Labor Relations Board and then at the National Right to Work Legal Foundation, a non-profit organization that seeks to counter union activities.  From 1989 to 1998, Alston worked in private practice, handling criminal defense, plaintiff’s side civil litigation, and domestic matters.

Some of the clients Alston represented include a woman charged with the death of a toddler scalded with hot bath water,[15] a teen who killed his stepfather to protect his mother from physical abuse,[16] and a driver convicted of reckless driving for participating in a road duel.[17]  Alston was also part of the legal team suing on behalf of the parents of a 13-month-old baby that fell through a window screen and sustained serious injuries.[18]  Alston was able to obtain a $15 million judgment, but the verdict was overturned on appeal.[19]

Jurisprudence

Alston has served as a judge in Virginia for approximately twenty years, starting as a Juvenile & Domestic Relations Judge in Prince William County in 1998, becoming a Circuit Court Judge in 2001, and being elected by the Virginia Assembly to the Court of Appeals in 2009.

Circuit Court Judge

From 2001 to 2009, Alston served as a Circuit Court Judge in Prince William County, where he presided over civil and criminal cases.[20]  On the Circuit Court, Alston developed a reputation for creative sentencing, including imposing “community service and symbolic jail time.”[21]  In one notable case, Alston presided over the trial of a community leader charged with leaving his toddler in a hot car.[22]  The jury found the father guilty and recommended 12 months in jail.[23]  However, Alston gave the father seven years of probation, ordering the father to spend his deceased daughter’s birthday in jail and donate blood on that day for the next seven years.[24]  In so ruling, Alston emphasized that the defendant “was a good man who loved his family and his church.”[25]

Court of Appeals

From 2009 onwards, Alston has served on the Virginia Court of Appeals, one level before the Virginia Supreme Court.  In his time on the court, Alston authored over 200 majority opinions, establishing a largely conservative record.  For example, Alston held, shortly after the Supreme Court legalized same-sex marriage in Obergefell, that cohabitation under Virginia law did not apply to same-sex couples, a decision that was reversed by the Virginia Supreme Court.[26]  In another case, Alston held that making an unsignaled left turn could be grounds for a valid traffic stop by a police car, even if there was no other traffic in the vicinity.[27]

Reversals

Over his twenty years on the bench, Alston’s rulings have been reversed by higher courts eleven times.[28]  Of these reversals, the most significant is in Luttrell v. Cuoco.[29]  Luttrell involved a ruling from a Fairfax judge that a man had to continue to pay alimony to his ex-wife even though his wife was now cohabiting with her female partner.[30]  Alston wrote for the Virginia Court of Appeals in holding that, under Virginia’s alimony law, cohabitation could only be between a man and a woman.[31]  The Virginia Supreme Court reversed, finding that a 1997 amendment expanded the definition of cohabitation to include same-sex couples.[32]

Interestingly, Alston has been reversed four times in cases where he ruled in favor of defendants or against law enforcement.[33]  In contrast, Alston has never had a conviction before him reversed and has only had a sentence before him reversed once.[34]

Writings or Comments

In his testimony as a nominee to the Virginia Supreme Court, Alston was asked if businesses should be permitted to turn away LGBT customers based on the business owner’s religious beliefs.[35]  Alston responded:

“There is no reason whatsoever why any person in the United States of America should be denied equal privileges that we all enjoy under the law.”[36]

Senator Don McEachin, a Virginia Democrat, interpreted Alston’s testimony as a rebuke to Virginia Republicans, who were then attempting to pass “religious liberty” laws that would permit such discrimination.[37]

Overall Assessment

While Alston’s elevation to the Virginia Supreme Court may have been entangled in politics, his path to the federal bench looks much smoother.  As Alston has already gotten the sign-off of Virginia’s Democratic senators, it is unlikely that his conservative-leaning jurisprudence would keep many Democrats from backing him.  As such, it is more a question of when, rather than if, Alston will be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rossie D. Alston Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Leef Smith, Judge is Sworn In for Juvenile Court; Alston Takes Over Bench of the Late Patrick Molinari, Wash. Post, Oct. 10, 1998.

[5] See Alston, supra n. 1 at 2.

[6] Alan Cooper, Ney, Wetsel Backed by 4 Bars for VA Appeals Court, Virginia Lawyers Weekly, Dec. 26, 2005.

[7] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.

[8] Alan Cooper, Alston Elected to Virginia Court of Appeals, Virginia Lawyers Weekly, Feb. 11, 2009.

[9] Peter Vieth, Va. GOP Leaders Favor Alston Over Roush for Supreme Court, Virginia Lawyers Weekly, Aug. 3, 2015.

[10] See id.

[11] BIDS, In Vote on SC Justice, GOP’s John Watkins Unites With Democrats, Legal Monitor Worldwide, Aug. 18, 2015.

[12] Jim Nolan, Sturtevant Backs Keeping Roush on Supreme Court, Richmond Times-Dispatch, Jan. 16, 2016, https://www.richmond.com/news/sturtevant-backs-keeping-roush-on-supreme-court/article_b67927be-51f5-5a98-ba90-35e4c60ff314.html.  

[13] Press Release, Office of Sen. Mark Warner, Warner & Kaine Recommend Two for Vacancy On U.S. District Court for the Eastern District of Virginia (Dec. 21, 2017) (available at https://www.warner.senate.gov/public/index.cfm/2017/12/warner-kaine-recommend-two-for-vacancy-on-u-s-district-court-for-the-eastern-district-of-virginia).  

[14] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Candidates, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 7, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[15] See Leef Smith, Autopsy: Girl’s Scalding Intentional, Wash. Post, July 11, 1998.

[16] Avis Thomas-Lister, Teen to be Tried as Juvenile in Stepfather’s Slaying; Pr. William Youth, 15, Testifies in Hearing He Feared Abuse of Mother, Siblings, Wash. Post, June 5, 1991.

[17] Leef Smith, Driver Sentenced in Road Duel That Nearly Killed Va. Child, Wash. Post, Apr. 5, 1997.

[18] Gamble v. Jeld-Wen Inc., No. 138861 (chancery), Fairfax Cnty. Circuit Court, 1997.

[19] Jeld-Win Inc. v. Gamble, 256 Va. 144 (1998).

[20] See Alston, supra n. 1 at 20.

[21] See Josh White, Father Should Go to Jail for Death, Va. Jury Says, Wash. Post, Dec. 5, 2002. 

[22] Commonwealth v. Kelly, No. CR05053304-00 (Cir. Ct. Feb. 21, 2003).

[23] See White, supra n. 21.

[24] Sean O’Driscoll, Father Receives Sentence for Death of Child, Irish Times, Feb. 22, 2003.

[25] See id.

[26] See Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016).

[27] Deborah Elkins, Court Upholds Stop for No-Signal Turn, Virginia Lawyers Weekly, Mar. 6, 2015 (citing Wilson v. Commonwealth).

[28] See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017) (reversing finding that possessing a loaded gun does not constitute felony child neglect); Cole v. Commonwealth, 2017 Va. LEXIS 162 (Nov. 16, 2017) (reversing finding that Court of Appeals did not possess the authority to decide pre-trial issues in appeal); Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016) (holding that Virginia cohabitation statute includes same-sex couples); Commonwealth v. Quarles, 283 Va. 214 (2012) (reversing holding that investigating detective had impermissibly restarted communication after defendant requested counsel); Simms v. Ruby Tuesday, Inc., 281 Va. 114 (2011) (reaffirming validity of “horseplay doctrine”);  Royal Indem. Co. v. Tyco Fire Prods, LP, 281 Va. 157 (2011) (reversing ruling that statute of limitations precluded negligence claims); Commonwealth v. Andrews, 280 Va. 231 (2010) (reversing sentencing due to allowing improper victim testimony); Woods v. Mendez, 265 Va. 68 (2010) (reversing dismissal of claim for punitive damages); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc) (reversing panel decision that defendant did not exercise dominion and control over marijuana in his vehicle); Kapur v. Kapur, 2009 Va. App. LEXIS 234 (May 19, 2009) (reversing sanctions issued against husband in divorce case); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003) (reversing grant of motion to suppress).

[29]  2016 Va. LEXIS 57 (April 28, 2016).

[30] See id. See also Tom Jackman, Va. High Court Limits Spousal Support, Wash. Post, May 3, 2016.

[31] See Jackman, supra n. 31.

[32] Id.

[33]  See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017); Commonwealth v. Quarles, 283 Va. 214 (2012); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003).  

[34] See Commonwealth v. Andrews, 280 Va. 231 (2010).

[36] Id. (quoting Judge Rossie Alston).

[37] Brad Kutner, Senator Don McEachin Talks LGBTQ Issues Ahead of the 2016 General Assembly Session, GayRVA, Aug. 26, 2015, http://www.gayrva.com/news-views/senator-don-mceachin-talks-lgbtq-issues-ahead-of-the-2016-general-assembly-session/.  

Sarah Morrison – Nominee to the U.S. District Court for the Southern District of Ohio

A prominent labor and worker’s compensation attorney from Columbus, Sarah Morrison is favored to short-handed bench where she would become the only active female judge.

Background

Morrison was born Sarah Elizabeth Daggett in Lufkin, TX on November 12, 1970.[1]  Morrison received her B.A. from Ohio State University in 1992 and her J.D. magna cum laude from Capital University Law School in 1997.[2]  Following her graduation, Morrison clerked for Judge John Holschuh on the U.S. District Court for the Southern District of Ohio.[3]

After her clerkship, Morrison joined the Columbus office of Chester, Willcox & Saxbe as an associate.  Morrison became a partner at the firm in 2005.[4]

In 2012, Morrison became General Counsel and Chief Ethics Officer at the Ohio Bureau of Worker’s Compensation.[5]  She became the Administration and Chief Executive Officer in 2016 and continues to serve in that capacity today.

History of the Seat

Morrison has been nominated for a seat on the U.S. District Court for the Southern District of Ohio.  This seat was vacated on May 2, 2016, when Judge Gregory Frost moved to senior status.  Even though this seat opened with more than eight months left in the Obama Presidency, no nomination was put forward for the seat.

In April 2017, Morrison applied for the vacancy with a selection commission put together by Ohio Senators Sherrod Brown, a Democrat, and Rob Portman, a Republican.[6]  Morrison interviewed with the Commission in late August, and was recommended to the senators.[7]  Morrison interviewed with Portman in September and the two senators jointly recommended Morrison shortly after.[8]

In October 2017, Morrison interviewed with the White House.[9]  She was officially nominated on April 12, 2018.

Legal Experience

Morrison began her legal career at Chester, Willcox & Saxbe in Columbus.  While there, Morrison focused on civil and commercial litigation.  During her time there, Morrison notably represented the National Football League (NFL) in defending against a suit filed by the widow of Korey Stringer, an offensive lineman with the Minnesota Vikings who died of heatstroke during a practice.[10]   She also represented Honda against an employment discrimination case brought by the Equal Employment Opportunity Commission.[11]  After becoming a partner at the firm, Morrison represented Ohio State University and the University of Toledo in defending against multiple employment discrimination claims.[12]

In 2012, Morrison moved to the Ohio Bureau of Worker’s Compensation, where she served as General Counsel.  In this role, she headed the Bureau’s legal department and managed both litigation and in-house work.  She has worked in a non-legal capacity as head of the Bureau in 2016.

Political Activity

Morrison has been fairly active in the Ohio Republican Party, having volunteered with the Ohio Republican Women Campaign Fund and Capital Area Republican Women.[13]  Morrison has also served on the Franklin County Republican Party Executive Committee since 2007 and volunteered for a PAC supporting Ohio Gov. John Kasich’s Presidential bid in 2016.[14]

Overall Assessment

Despite her Republican background, Morrison has obtained the support of Sen. Sherrod Brown.  At the same time, despite her work for Trump bete noire Kasich, Morrison has received a judicial nomination from the Administration.  These two facts together speak to Morrison’s general acceptability as a nominee.  Overall, given her strong support from Brown and Portman, Morrison is expected to be comfortably confirmed and add a moderate-conservative voice to the Southern District of Ohio.


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

[2] Id. at 2.

[3] Id. 

[4] Id.

[5] Id.

[6] Id. at 49.

[7] Id. 

[8] See id.

[9] Id.

[10] Stringer v. Nat’l Football League, Inc., 474 F. Supp. 2d 894 (S.D. Ohio 2007).

[11] EEOC and Ways v. Honda of North Amerca Mfg., No. 2:06cv233 (S.D. Ohio 2006).

[12] See Crystal Dixon v. University of Toledo, 842 F. Supp. 2d 1044 (N.D. Ohio 2012), aff’d, 702 F.3d 369 (6th Cir. 2012); Sheryl Szeinbach v. Ohio State University, No. 2:08cv822 (S.D. Ohio 2008); Rosa Rodriguez-Monguio v. Ohio State University, No. 2:08cv139 (S.D. Ohio 2008).

[13] See Morrison, supra n. 1 at 35.

[14] Id.

Judge Stephanie Gallagher – Nominee for the U.S. District Court for the District of Maryland

Judge Stephanie Gallagher is the latest of several unconfirmed Obama nominees put forward by President Trump.  While her relatively uncontroversial record secured her a unanimous approval from the Committee in 2016, it was unable to secure a final confirmation vote.  This time, she is likely to be more lucky.

Background

Gallagher was born Stephanie Marie Agli in Rockville, Connecticut in 1972.  Gallagher received a B.A. from Georgetown University in the Government Honors Program magna cum laude in 1994, and then procured a J.D. cum laude from Harvard Law School in 2007.[1]

After graduation, Gallagher clerked for Judge J. Frederick Motz on the U.S. District Court for the District of Maryland. She then joined the D.C. office of Akin, Gump, Strauss, Hauer, & Feld as an associate.[2]  In 2002, Gallagher left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Maryland.[3]

In 2008, Gallagher founder the Baltimore firm Levin & Gallagher LLC.[4]  She stayed at the firm until she was appointed as a U.S. Magistrate Judge in 2011, replacing Judge James Bredar, who had been elevated to be a U.S. District Judge.[5]

History of the Seat

Gallagher has been nominated for a seat on the U.S. District Court for the District of Maryland.  This seat opened on February 1, 2016, when Judge William Quarles moved to senior status.[6]  In March 2013, Gallagher applied to fill other vacancies that had opened on the U.S. District Court for the District of Maryland.[7]  While Gallagher was recommended by then-Sen. Barbara Mikulski (D-Md.), the Administration selected other candidates.[8]  Nevertheless, Gallagher’s name was resubmitted to the White House in 2015, and she was nominated on September 8, 2015.[9]

Gallagher’s nomination sat before the Judiciary Committee for approximately seven months before she received a hearing on April 20, 2016.  On May 19, 2016, the Committee voted unanimously to send Gallagher’s nomination to the full Senate, where she was blocked from a final vote by Senate Republican leader Mitch McConnell.

After the election of President Trump, no further action was taken on Gallagher’s nomination, and her nomination was returned unconfirmed to the President in 2017.  President Trump renominated her on June 11, 2018 to fill the same vacancy.

Legal Career

Gallagher began her legal career as an associate at Akin Gump, where she represented large corporations in civil litigation.  Notably, Gallagher was part of the defense team representing the Holy Land Foundation for Relief and Development, an Arab American charity charged with fundraising for Hamas.[10]

In 2001, Gallagher moved to the U.S. Attorney’s Office for the District of Maryland, prosecuting a variety of cases, including white collar crimes, narcotics, and firearms offenses.  In an early case, Gallagher successfully prosecuted a defendant for conspiracy to distribute marijuana, securing a 63-month sentence.[11]  She also prosecuted a defendant charged with a narcotics conspiracy and multiple homicides, leading a two-week trial and defending the conviction successfully on appeal.[12]

From 2008 to 2011, Gallagher started her own practice focusing on white collar criminal defense matters.[13]  She also handled some court-appointed criminal defense work and general civil litigation.[14]

Political Activity

Somewhat unusually, Gallagher’s political involvement is evenly divided between the two major parties.  Gallagher was a volunteer for the campaign of Gregg Bernstein, a Democrat, to serve as Baltimore City Attorney in 2010, but also hosted a fundraiser at her home for former Gov. Robert Ehrlich the same year (Ehrlich, a Republican was challenging Democratic Gov. Martin O’Malley).[15]

Her contributions reflect a similar pattern.  In 2006, Gallagher gave $250 to Democratic Sen. Ben Cardin, but two years later donated $500 to Sen. John McCain’s campaign to be U.S. President.[16]

Jurisprudence and Reversals

Gallagher has served as a U.S. Magistrate judge in Maryland since her appointment in 2011.  In this role, she handles settlement, discovery, and makes recommendations on dispositive motions.  She also presides over cases where the parties consent.  Between 2011 and 2016, Gallagher presided over one jury trial and four bench trials.[17]  Gallagher’s more prominent trials include a damages case over the disappearance of a truckload of frozen salmon,[18] the calculation of damages for a wrongful termination case under the Family and Medical Leave Act,[19] and a bench trial arising from a traffic collision at Fort Meade.[20]

Gallagher has had a relatively low reversal rate during her tenure as a U.S. Magistrate Judge.  In one prominent reversal, Gallagher granted summary judgment against a road worker who was injured during work while suspended above traffic, finding that he had assumed the risk of injury.[21]  The Fourth Circuit reversed, finding that the assumption of risk defense did not apply in that case.[22]  She was also reversed by the Fourth Circuit after holding that a civil rights plaintiff had forfeited his right to attorney’s fees by not timely filing a motion with the court after judgment.[23]

Overall Assessment

Having been recommended for the federal bench by two Democrats and previously nominated by President Obama, Gallagher should face a relatively smooth path to confirmation.  Even though her initial foray as a nominee was unsuccessful, Gallagher’s renomination by President Trump should ensure a bipartisan confirmation.


[1] Sen. Comm. on the Judiciary, 114th Cong., Stephanie Gallagher: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id. at 1-2.

[5] Brendan Kearney, Stephanie A. Gallagher Hearing Cases as New Magistrate Judge in Baltimore, The Daily Record, Apr. 24, 2011.

[6] Quarles, like Gallagher, was a failed judicial nominee renominated by a subsequent president.

[7] Gallagher, supra n. 1 at 39.

[8] Specifically, Judges Theodore Chuang, and George Hazel.

[9] Gallagher, supra n. 1 at 39.

[10] See James Grimaldi, An Arab American Charitable Connection That Might Be Too Close for Comfort, Wash. Post, Dec. 17, 2001.

[11] United States v. Butler, Criminal No. 01-0161-AW, aff’d, 61 F. App’x 857, 2003 WL 1711275 (4th Cir. Apr. 1, 2003) (unpublished per curiam opinion).

[12] United States v. Baskerville, Criminal No. 02-0410-CCB, aff’d, 253 F. App’x 280, 2007 WL 3306474 (4th Cir. Nov. 7, 2007) (unpublished per curiam opinion).

[13] Gallagher, supra n. 1 at 28.

[14] See id.

[15] Id. at 27.

[17] See Gallagher, supra n. 1 at 11.

[18] Merchants Terminal Corp. v. L&O Transport, Inc. et. al., Civil No. 09-2065-SAG, 2012 WL 1416631 (D. Md. Apr. 20, 2012).

[19] Neel v. Mid-Atlantic of Fairfield, LLC., Civil No. 10-0405-SAG, 2012 WL 3264965 (D. Md. Aug. 9, 2012).

[20] United States v. McNeill, Traffic Violation No. 2359730.

[21] See Meyers v. Lamar, No. SAG-11-3507, 2013 WL 1325295 (D. Md. Mar. 29, 2013).

[22] Meyers v. Lamar, 743 F.3d 908 (4th Cir. 2014).

[23] Fernandes v. Craine, 538 F. App’x 274 (4th Cir. 2013) (unpublished decision).

Judge Mary Rowland – Nominee for the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

When the White House negotiates judge packages with Senators, it is inevitable that both sides have to accept nominees they would not otherwise have chosen.  That is likely what led the Trump Administration to nominate Judge Mary Rowland, an otherwise left-of-center nominee, for the federal bench.

Background

Mary Margaret Rowland was born on October 8, 1961 in Akron, OH.  Rowland graduated from the University of Michigan in 1984 and then worked for seven months as a field coordinator for the Senate campaign of Sen. Carl Levin (D-Mich.).[1]  Rowland then attended the University of Chicago Law School, graduating in 1988.

After graduation, Rowland clerked for Judge Julian Cook on the U.S. District Court for the Eastern District of Michigan.  She then joined the Federal Defender’s Office in Chicago, becoming the Chief Appellate Attorney in 1995.[2]  In 2000, Rowland became an Income Partner at Hughes Socol Piers Resnick & Dym, Ltd.[3]  In 2012, Rowland was appointed as a Magistrate Judge on the U.S. District Court for the Northern District of Illinois.[4]  She continues to serve on that Court.

In 2009, Rowland was recommended to the Obama Administration for a federal judgeship by Sen. Dick Durbin, which could have made her the first openly gay nominee to the federal bench.[5]  The Administration ended up nominating three other choices: Sharon Coleman; Gary Feinerman; and Edmund Chang.

History of the Seat

Rowland has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on May 25, 2018, when Judge Amy St. Eve was elevated to the U.S. Court of Appeals for the Seventh Circuit.

Unlike Seeger and Pacold, who had their first contact with the White House, Rowland applied directly to the screening committee set up by Durbin and Sen. Tammy Duckworth.[6]  In February 2018, she interviewed with Durbin and his staff.[7]  She interviewed with the White House in April and was officially nominated in June.

Legal Career

Rowland’s legal career before she became a judge largely focused on criminal defense and civil rights work.  As a federal defender in Chicago, Rowland tried five jury cases.[8]  She also served as Chief Appellate Attorney, arguing, among other cases, to successfully overturn the sentence of Mr. Stanback, convicted of a firearms offense.[9]

In private practice, Rowland notably represented a group of 3000 African Americans in a disparate impact suit against the City of Chicago after they were denied jobs as entry-level firefighters.[10]  Her team secured a trial verdict in favor of the firefighters.[11]  After the verdict was overturned on appeal, it was reinstated by the Supreme Court.[12]

Jurisprudence and Reversals

Rowland has served as a U.S. Magistrate Judge since her appointment in 2012.  In this role, she presides over arraignments, bail hearings, and non-dispositive motions.  She also handles civil cases by consent of the parties.  In her six years on the bench, Rowland has presided over three jury and two bench trials.  One of her jury trials involved a false arrest and excessive force claim brought against the Chicago police, which concluded with a partial verdict for the plaintiff.[13]

Over the course of her six year tenure on the state bench, Rowland has been reversed by higher courts in three cases.[14]  Two of those cases involved Rowlings’ rulings supporting ALJ denials of benefits being reversed by higher courts.[15]  The final case reversed Rowland’s use of a multiplier in determining fees in a class action case.[16]

Political Activity

Rowland has a limited political history, mainly consisting of her work for former Sen. Carl Levin and volunteering for President Barack Obama’s campaign in 2008.[17]

Overall Assessment

If Rowland had been nominated by President Obama in 2010, she would have been the first LGBT judge on the Illinois federal bench (an honor that went to Judge Staci Yandle in 2014).  It speaks to the Trump Administration’s assertiveness with judicial dealmaking that they proceeded with Rowland’s nomination.  That being said, her nomination by Trump and support from Durbin and Duckworth essentially guarantees Rowland a comfortable confirmation and gives Trump his first LGBT judicial appointee.


[1] Sen. Comm. on the Judiciary, 115th Cong., Mary M. Rowland: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Bill Dwyer, Oak Park’s Rowland Possible Nominee for Federal Bench, OakPark.com, Aug. 25, 2009, http://www.oakpark.com/News/Articles/8-25-2009/Oak-Park’s-Rowland-possible-nominee-for-federal-bench/.

[6] See. Rowland, supra n. 1 at 47.

[7] Id. 

[8] See id. at 35-36.

[9] See United States v. Stanback, 113 F.3d 651 (7th Cir. 1997).

[10] Lewis v. City of Chic., 2005 WL 693618 (N.D. Ill. Mar. 22, 2005), rev’d, 528 F.3d 488 (7th Cir. 2008), rev’d, 130 S. Ct. 2191 (2010).

[11] See id.

[12] See Trudy Ring, Lesbian Attorney Becomes Federal Magistrate Judge in Illinois, Advocate, Nov. 16, 2012, https://www.advocate.com/society/law/2012/11/16/lesbian-attorney-becomes-federal-magistrate-judge-illinois.  

[13] See Fox-Martin v. Tryba, No. 09-cv-1690, 2013 U.S. Dist. LEXIS 99237 (N.D. Ill. July 16, 2013).

[14] Rowland, supra n. 1 at 29.

[15] See Cullinan v. Colvin, No. 15-cv-11499, 2016 U.S. Dist. LEXIS 171975 (N.D. Ill. Dec. 13, 2016), rev’d, Cullinan v. Berryhill, 878 F.3d 598 (7th Cir. 2017) (reversing ruling holding that ALJ decision was supported by substantial evidence); Stahl v. Colvin, No. 13-cv-0752, 2015 U.S. Dist. LEXIS 5841 (N.D. Ill. Jan. 20, 2015), rev’d, 632 F. App’x 853 (7th Cir. 2015) (reversing finding that substantial evidence supported ALJ determination).

[16] In re Sears, Roebuck & Co. Front-Loading Washer Prods. Liab. Litig., 867 F.3d 791 (7th Cir. 2017).

[17] See Rowland, supra n. 1 at 32.

Martha Pacold – Nominee to the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

Martha Pacold, only 39, is part of a 3-judge package for the Northern District of Illinois negotiated between Senators Richard Durbin & Tammy Duckworth, and the White House.  While Pacold is currently based out of Washington D.C., she has spent the majority of her legal career in Chicago and is favored to return there as a federal judge.

Background

Martha Maria Pacold was born on February 3, 1979, in Richmond, VA.  Pacold attended Indiana University, graduating with highest honors in 1999 (at just 20).[1]  She then attended the University of Chicago Law School, graduating with honors in 2002.

After graduating, Pacold clerked for Judge Arthur Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit, for Judge Jay Bybee on the U.S. Court of Appeals for the Ninth Circuit, and then for Justice Clarence Thomas on the U.S. Supreme Court.  In the latter position, Pacold was co-clerks with former Solicitor General Jeff Wall.

After finishing up her clerkships, Pacold joined the Department of Justice as Counsel to Attorney General Alberto Gonzalez.[2]  After a year, she joined the U.S. Attorney’s Office for the Eastern District of Virginia as a Special Assistant United States Attorney (SAUSA).[3]

In 2007, Pacold joined the Chicago Office of Bartlit Beck Herman Palenchar & Scott LLP as an Associate.  She became a Partner at the firm in 2010.[4]  In 2017, she left that position to serve as Executive Secretary in the Department of the Treasury.  She became Deputy General Counsel a few months later and currently serves in that capacity.

History of the Seat

Pacold has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on March 1, 2017, when Judge John Darrah moved to senior status.

In June 2017, Pacold was contacted by the White House to gauge her interest in a federal judgeship.[5]  In February 2018, she applied with a screening committee set up by Sens. Dick Durbin and Tammy Duckworth, both Democrats.[6]  Pacold was chosen as a prospective nominee for the Northern District by the end of February and was nominated as part of a three-judge package on June 7, 2018.

Legal Experience

While Pacold has held many legal positions throughout her legal career, the most significant and longest is her ten year tenure at Bartlit Beck Herman Palenchar & Scott LLP in Chicago.  In this position, Pacold primarily handled civil litigation on behalf of corporations.  For example, Pacold represented chemical company DuPont in defending against allegations of environmental contamination in New Jersey.[7]  She also represented Bayer Pharmaceuticals in a patent suit against Novartis.[8]

Notably, Pacold represented the City of Chicago and a team of Chicago police officers against a 1983 action based on claims of excessive force and false arrest.[9]  The case emerged from the defendant’s arrest while she was questioning police officers regarding their simultaneous arrest of her son.[10]  After a jury verdict in favor of the officers, Pacold successfully defended the decision on appeal.[11]

Political Activity

Over the last ten years, Pacold has made a handful of political contributions, all to Republicans.[12]  Among the recipients included the Presidential campaigns of John McCain and Mitt Romney, Secretary of State Mike Pompeo, and Sens. Ted Cruz and Tom Cotton.[13]

Writings

Of Pacold’s writings, two may draw attention.  First, as a law student, Pacold authored a paper discussing fee shifting provisions in class actions.[14]  In the paper, Pacold argues that current fee shifting statutes give plaintiff’s attorneys too strong an incentive to settle rather than take cases to trial, as their attorney fee recoveries are often higher during settlement.[15]  Pacold notes that this is counterintuitive as “the desire of plaintiffs’ attorneys to obtain higher fees at the expense of their clients is not a legitimate reason to increase the rate of settlements further.”[16]  Instead, Pacold proposes reforming the statutory fee shifting structure by not applying it in the settlements context.[17]

Pacold’s second notable writing is a Letter to the Editor written as an undergraduate, in which Pacold argues that laws prohibiting sex discrimination do not prohibit same-sex sexual harassment (relating to the then-pending Oncale case).[18]  Instead, Pacold argues that Oncale, a male who suffered sexual harassment from his male boss, cannot prove sex discrimination because his workplace has no females.[19]  The Supreme Court disagreed in a unanimous decision.[20]

Overall Assessment

While Martha Pacold is, ultimately, a package nominee, to be considered with two others supported by Senators and the Administration, she may draw more opposition than her fellow nominees.  This is for three reasons: first, Pacold is the youngest of the nominees at only 39 (although she does meet the ABA’s 12 years of practice requirement); second, Pacold is on record indicating that Title VII does not protect same-sex sexual harassment, a controversial position given the current focus on Title VII’s protection for transgender and LGBT individuals; third, Pacold clerked for Justice Thomas, who is notorious for selecting many deeply conservative individuals to clerk for him.  The combination of these factors may draw some raised eyebrows from Democrats.

However, with support from Durbin and Duckworth, Pacold remains likely to be ultimately confirmed with a strong bipartisan majority.


[1] Sen. Comm. on the Judiciary, 115th Cong. Martha M. Pacold: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 31.

[6] Id. 

[7] In re Environmental Contamination of Pompton Lakes, N.J.: Super. Ct. (Bergen Cnty.).

[8] See In re Bayer HealthCare LLC and CSL Behring LLC, Case No. 2010-M918 (Fed. Cir.).

[9] Whitehead v. Bond, 680 F.3d 919 (7th Cir. 2012).

[10] See id. at 922-25.

[11] See id. at 926.

[13] See id.

[14] Martha Pacold, Attorneys’ Fees in Class Actions Governed by Fee-Shifting Statutes, 68 U. Chi. L. Rev. 1007 (Summer 2001).

[15] Id. at 1028.

[16] Id. at 1029.

[17] See id. at 1030-32.

[18] Martha M. Pacold, When is Sexual Harassment Discrimination, Wash. Post, Dec. 17, 1997.

[19] See id.

[20] See Oncale v. Sundowner Offshore Srvs, Inc., 523 US 75 (1998).

Steven Seeger – Nominee to the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

Steven Seeger, a trial attorney for the Securities & Exchange Commission (SEC) is part of a 3-judge package that Trump has put forward for the Northern District of Illinois.

Background

A native Illinoisan, Steven Charles Seeger was born in Normal on March 18, 1971.  Seeger attended Wheaton College, a small liberal arts school, receiving his B.A. summa cum laude in 1993, and then spent a year working as an English teacher in Japan.[1]

Seeger received his J.D. magna cum laude from the University of Michigan Law School, where he served as Articles Editor at the Law Review.[2]  Seeger then clerked for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit and then joined the Chicago Office of Kirkland & Ellis as an associate.  He was made a Partner at the firm in 2003.[3]

In 2010, Seeger joined the Securities & Exchange Commission, based in Chicago as Senior Trial Counsel.[4]  He has held that position since then.

History of the Seat

Seeger has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on October 21, 2016, when Judge James Zagel moved to senior status.  As the seat opened with only three months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In early 2017, Seeger reached out to Illinois Republicans to express his interest in a federal judgeship.[5]  In February 2018, he applied with a screening committee set up by Sens. Dick Durbin and Tammy Duckworth, both Democrats.[6]  Seeger was chosen as a prospective nominee for the Northern District by the end of February.

On March 20, 2018, Seeger interviewed with Durbin and Duckworth.[7]  President Trump announced Seeger’s nomination as part of a three-judge package on June 7, 2018.

Legal Career

Seeger has spent his legal career primarily in two positions: at Kirkland & Ellis, and at the SEC.  In the former, Seeger primarily worked in general litigation, while in the latter, Seeger worked exclusively on the enforcement of SEC matters.  Over the course of his legal career, Seeger handled two jury and one bench trials.[8]

At Kirkland, Seeger handled the linerboard antitrust litigation, a series of lawsuits that paper companies had violated the Sherman Act by artificially restricting the supply of linerboard.[9]  In the litigation, Seeger represented International Paper, and the suit eventually led to a settlement.  Additionally, while at Kirkland, Seeger co-authored an amicus brief at the U.S. Supreme Court in support of McCreary County’s display of the Ten Commandments before a courthouse.[10]  The display was ultimately struck down by the Supreme Court as a violation of the First Amendment.[11]

Since 2010, Seeger has worked as an SEC trial litigator.  Among his more prominent cases, Seeger prosecuted radio talk-show host Pat Kiley for allegedly soliciting clients for a Ponzi scheme,[12] and investor Jason Bo-Alan Beckman for running an investment fraud scheme.[13]

Writings

In 1997, Seeger authored an article on the Religious Freedom Restoration Act (RFRA) and the proper test in evaluating religious burdens under the law.[14]  In the article, Seeger weighs three competing tests for evaluating burdens under RFRA and adopts the broadest: the religious motivation test.[15]  The religious motivation test asks if a burdened act is “motivated” by a religious belief to determine if RFRA protects it.[16]  In supporting this test, Seeger argues that it allows for the broadest application to RFRA’s test, while tests that require the burdened act to be “central to” or “compelled by” faith leaves out non-Abrahamic faith traditions that apply faith restrictions more loosely.[17]  Seeger also argues that this approach keeps judges out of the task of parsing the weight of religious prohibitions, noting:

“Courts cannot decide whether a practice is central to or compelled by a litigant’s religion without making a theological interpretation of the believer’s faith.[18]

Overall Assessment

Generally speaking (although not guaranteed), package nominees generally sail to confirmation as both the White House and senators have an incentive not to let the package die.  Seeger is similarly favored.

Nonetheless, Seeger may face questions regarding his views on RFRA.  Specifically, senators may probe Seeger’s endorsement of a “religious motivation” view, noting that corporations and individuals may use “religious motivation” to avoid compliance with civil rights and discrimination laws.  Seeger may be asked to clarify his view on the application of RFRA in such circumstances.  With the backing of Durbin and Duckworth, however, Seeger is, nonetheless, likely to overcome such questions and be confirmed.


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

[2] Id. at 3.

[3] Id. at 2.

[4] Id.

[5] Id. at 26-27.

[6] Id. at 27.

[7] Id.

[8] See id. at 10.

[9] See In re Linerboard Antitrust Litig., C.A. Nos. 98-5055, 99-3141, MDL No. 1261 (E.D. Pa. filed March 16, 1999).

[10] See McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005), brief at 2004 WL 2825469.

[11] See id.

[12] See Dan Browning, Kiley Denies Role in Cook Ponzi Scheme; Talk-show Host Pat Kiley Alleged That His Former Lawyers Had Taken Orders From Convicted Schemer Trevor Cook, Minneapolis Star Tribune, Oct. 15, 2010.

[13] David Hanners, Federal Judge Freezes Beckman Assets in Investor Fraud Case, St. Paul

[14] Steven C. Seeger, Restoring Rights to Rites: The Religious Motivation Test and the Religious Freedom Restoration Act, 95 Mich. L. Rev. 1472 (1997).

[15] See id. at 1475.

[16] Id.

[17] Id. at 1503-05.

[18] Id. at 1510.

Judge Gary Brown – Nominee to the U.S. District Court for the Eastern District of New York

Judge Gary Brown has been waiting over three years for confirmation to the federal bench, a very long wait for a nominee with virtually no controversy about his record.  However, as he has now been renominated by a Republican Administration and has the support of his Democratic home state senators, he may see the bench before too long.

Background

Brown was born in Brooklyn in 1963.  He graduated summa cum laude from Columbia in 1985 and then attended Yale Law School, graduating in 1988.[1]  Brown then clerked for Judge Jacob Mishler on the U.S. District Court for the Eastern District of New York.

After his clerkship, Brown joined the U.S. Attorney’s Office for the Eastern District of New York as an AUSA in the Civil Division.[2]  In 1996, Brown shifted over to the Long Island Criminal Division, becoming the Chief in 2003.[3]

In 2005, Brown became Senior Counsel at Computer Associates International, a company that itself had attracted some attention from federal prosecutors.[4]

In 2011, Brown became a federal magistrate judge on the U.S. District Court for the Eastern District of New York, based in Central Islip in Long Island.  He serves on that court today.

History of the Seat

Brown has been nominated (for a second time) to fill a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on January 21, 2015, when Judge Sandra Feuerstein moved to senior status.  President Obama first nominated Brown to fill the vacancy on July 30, 2015.[5]  While his nomination was unanimously approved by the Senate Judiciary Committee, it was blocked from a final confirmation by Senate Majority Leader Mitch McConnell.

In June 2017, Brown’s name was broached by the White House as part of a package of nominees.[6]  Brown was officially nominated on May 15, 2018.

Legal Career

Brown started his legal career by clerking on the U.S. District Court for the Eastern District of New York.  He then worked as a Civil AUSA in the Eastern District of New York, handling civil lawsuits over scams, contract, tort, and environmental issues.  Notably, Brown helped handle a civil lawsuit based on the largest food stamp fraud perpetrated by a meat market in Brooklyn.[7]

From 1996 to 2005, Brown handled criminal matters out of the Long Island Office.  During this time, he prosecuted serial killer Michael Swango, a doctor who killed several of his patients by injecting them with poisonous substances.[8]  The doctor was found guilty of manslaughter and sentenced to five years in prison.[9]

In 2005, Brown was hired by Computer Associates International as Senior Counsel.  Over the next six years, Brown represented the company in intellectual property, qui tam, and other lawsuits.[10]

Jurisprudence 

Brown has served as a U.S. Magistrate Judge since his appointment in 2011.  As of 2015, Brown had participated in nine consent trials.[11]  Among them, Brown presided over a trial regarding the seizure of an expensive sports car by city officials without due process.[12]

Brown also handled a notable case emerging from damage from Hurricane Sandy.[13]  The case involved damage to a Long Island home that insurance companies refused to cover, arguing that the damage was caused by long-term deterioration and not the hurricane.[14]  However, Brown and plaintiffs discovered that the insurance reports demonstrating this had been secretly altered.[15]  The case eventually resolved with a full insurance payout and attorney’s fees.[16]

Writings

In 1993, Brown wrote an article arguing for the reform of civil forfeiture proceedings.  Specifically, he wrote that civil forfeiture proceedings should be automatically stayed pending the resolution of parallel criminal proceedings.[17]  In the piece, he argues that such a provision would protect the rights of defendants while also helping the government by protecting the secrecy of criminal proceedings from civil discovery.[18]

In a second article, written as a criminal AUSA, Brown discussed the Criminal Street Gangs statute (CSGS) and attached sentencing enhancements.[19]  In the article, Brown argues that the enhancements are ineffective in preventing gang activity because they are burdensome to use, require proof of many elements, and, as such, are rarely used.[20]  As such, Brown advocates for reform using a potential mandatory minimum statutory sentences.[21]

Overall Assessment

Looking at Brown’s record overall, there is little that is likely to draw opposition.  Brown has not written on any hot-button issues and few of his rulings are likely to attract attention.  As the failure of Brown’s initial nomination to the federal bench had little to do with Brown himself and everything to do with the President who nominated him,  his confirmation is likely to be much smoother this time around.


[1] Sen. Comm. on the Judiciary, 114th Cong., Gary Richard Brown: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Ken Schachtner, Computer Associates International Names New Senior Counsel, Long Island Business News, Mar. 18, 2005.

[5] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

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

[7] Selwyn Raab, Food Stamps Used in Scam to Sell Meat, N.Y. Times, Oct. 28, 1992.

[8] Charlie LeDuff, Prosecutors Say Doctor Killed to Feel a Thrill, N.Y. Times, Sept. 7, 2000.

[9] Scottsdale Abortion Doctor Sentenced to Five Years in Prison, Arizona Daily Sun, May 4, 2001, http://azdailysun.com/scottsdale-abortion-doctor-sentenced-to-five-years-in-prison/article_d08ec172-9b1c-55da-9a1f-b94c9f9ada55.html.  

[10] See Brown, supra n. 1 at 33.

[11] See id. at 15.

[12] Ferrari v. Cnty. of Suffolk, Case No. 10-CV-4218 (GRB).

[13] Raimey v. Wright Nat’l Flood Ins. Co., No. 14-CV-461 (JFB) (SIL) (GRB).  

[14] David Chen, Storm Victims Say Damage Reports Were Altered, N.Y. Times, Feb. 17, 2015.

[15] See id.

[16] See Brown, supra n. 1 at 20.

[17] Gary R. Brown, The Civil Justice Reform Act: Reforming Civil Forfeiture Law: The Case for an Automatic Stay Provision, 67 St. Johns’ L. Rev. 705 (Fall 1993).

[18] See id. at 711-12.

[19] Gary R. Brown, Less Bark, More Bite: Fixing the Criminal Street Gang Enhancement, 16 Fed. Sent. R. 148 (2003).

[20] See id. 

[21] See id. at 158.