Damon Leichty – Nominee to the U.S. District Court for the Northern District of Indiana

A South Bend based civil litigator, Damon Leichty will likely see a smooth confirmation given his relatively uncontroversial background.

Background

A native Hoosier, Leichty was born In Rensselear, Indiana in 1971.[1]  After getting an B.A. from Wabash College in 1994, Leichty received a Master of Letters from the University of Aberdeen in Scotland and his J.D. from Indiana University Maurer School of Law in 1999.  Following his graduation, Leichty joined the South Bend law office of Barnes & Thornburg LLP, where he has stayed, other than a short clerkship with Judge Robert Miller on the U.S. District Court for the Northern District of Indiana.[2]

History of the Seat

Leichty has been nominated for a seat on the U.S. District Court for the Northern District of Indiana.  This seat was vacated on January 11, 2015, when Judge Robert Miller, his old boss, moved to senior status.

In early 2017, Leichty submitted an application to fill the vacancy.[3]  While he interviewed with Republican Sen. Todd Young in April, he wasn’t selected as the primary candidate by the White House until April 2018 when he interviewed with Democratic Sen. Joe Donnelly.[4]  Leichty was officially nominated on July 17, 2018.

Legal Experience

Leichty has spent virtually his entire legal career at the firm of Barnes & Thornburg, where he worked as a litigator.  Through his career, Leichty has served as lead counsel in five trials, as well as associate counsel in two.[5]  One of his key trials involved successfully defending Interbake Foods, a subsidiary of Mrs. Fields, against a brand damage suit brought by the parent company.[6]

One of his most prominent cases involved the level of public scrutiny that should be imposed on private police departments.  ESPN filed suit against the University of Notre Dame, when the University police department refused to turn over reports under public records laws.[7]  Leichty represented the University, arguing, as an issue of first impression that the university police department draws its authority from trustees, not the state, and as such, is not subject to public records law.[8]  Leichty won the case before Judge Steven Hostetler, but the verdict was overturned by the Indiana Court of Appeals, which was itself overturned by the Indiana Supreme Court.[9]  In another unique case, Leichty defended TASER International against a products liability suit brought by a Massachusetts State Trooper, who suffered injuries by being tased during his training.[10]  Leichty was able to successfully obtain summary judgment by using admissions by the plaintiff’s expert during discovery.[11]

Overall Assessment

For the most part, the cooperation between Young and Donnelly on district court nominees has largely produced a team of relatively uncontroversial nominees.  Leichty is no different, with no partisan history, and a long record as a litigator.  With neither his experience nor his impartiality under serious question, it is likely that Leichty will join his old boss on the bench in the coming months.


[1] Sen. Comm. on the Judiciary, 115th Cong., Damon R. Leichty: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 32-33.

[4] See id.

[5] Id. at 17.

[6] The Mrs. Fields Brands, Inc. v. Interbake Foods LLC., C.A. No. 12201-CB (Del. Ch. 2016-18) (Bouchard, J. Andre).

[7] ESPN Inc. v. Univ. of Notre Dame Police Dept., 62 N.E.3d 1192 (Ind. 2016).

[8] Jeff Parrott, ESPN, ND Case in Court, South Bend Tribune, Apr. 2, 2015.

[9] ESPN Inc. v. Univ. of Notre Dame Police Dept., 62 N.E.3d 1192 (Ind. 2016).

[10] Foley v. TASER International, Inc., No. 4:09-CV-10155 (D. Mass. 2011).

[11] Id. 

James Cain – Nominee to the U.S. District Court for the Western District of Louisiana

A Democrat-turned-Republican from a political family, Cain is the fourth Trump nominee to the Western District of Louisiana, which has undergone a significant amount of turnover in the last two years.

Background

James David Cain Jr. was born in DeRidder, LA on November 30, 1964.  Cain’s father, James David Cain Sr., was a politician who had served as a Democrat in the Louisiana State House and Senate before switching parties in 2003.[1]  Cain attended McNeese State University in Lake Charles, Louisiana, graduating in 1990.  He went straight from college into Southern University Law Center, getting his J.D. in 1993.

After graduating, Cain returned to Lake Charles, joining Lundy & Davis LLP, becoming a Partner in 1998.[2]  In 2007, Cain left and co-founded the firm Loftin, Cain & LeBlanc LLC in Lake Charles.  He currently serves as a Partner there.

History of the Seat

The seat Cain has been nominated for opened on July 31, 2017, with Judge Patricia Minaldi moved to senior status seeking treatment for “severe alcoholism.”[3]  Shortly after, Cain contacted Louisiana senators Bill Cassidy and John Kennedy to express his interest in a judicial appointment.[4]  After interviewing with a Committee set up by Cassidy, Cain was recommended to the White House in late November 2017.  Trump formally nominated Cain on Aug. 28, 2018.

Legal Experience

Cain has only worked in two positions since graduating from law school: at Lundy & Davis LLP. and at Loftin, Cain & LeBlanc LLC.  In the former position, Cain focused primarily on civil litigation, business litigation, and products liability, including representing $350000 in damages for a woman injured when she hit a defective stretch of the highway.[5]

After moving to Loftin Cain, Cain focused on representing the Lake Charles City Police Department and the Calcasieu Parish Sheriff’s Department against civil rights suits.[6]  One of Cain’s most notable cases at Loftin involved a suit against the City of Lake Charles for granting building permits for the construction of a retaining wall that ended up damaging a neighboring estate.[7]  Cain represented the City through trial, at which it was found to be 2% at fault for the damages for issuing the building permit.[8]

Political Activity

As noted above, Cain comes from a political family as his father served in the state legislature for almost thirty years.  For his own part, Cain started his career giving to Democrats but has given exclusively to Republicans over the last ten years.[9]  For example, Cain gave $5000 to Sen. Kennedy’s PAC in 2017, as well as donating $1800 to Rep. Stave Scalise (R-LA).[10]  In the past, Cain gave $2000 to Sen. John Edwards’ presidential campaign in 2003 and donated to Democratic Sen. Donald Cravins in 2008.[11]

Cain is also a member of the Federalist Society for Law and Policy.

Overall Assessment

Cain brings twenty-five years of legal experience to the federal bench in Louisiana and, as such, can be considered qualified for a judicial appointment.  Having represented both plaintiffs and defendants in civil cases, Cain’s career does not suggest a bias for one position over another.

That being said, Cain’s Federalist Society affiliations may raise some questions in the confirmation process.  Nevertheless, Cain looks fairly likely to win a comfortable confirmation.


[1] As a legislator, Cain notably sponsored a bill, approved by the House, to reduce the penalties for attacking a flag burner to $25.  See Peter Applebombe, A Dash of Flamboyance in the Lawmaking Stew, N.Y. Times, Jun 29, 1990.

[2] Sen. Comm. on the Judiciary, 115th Cong., James D. Cain: Questionnaire for Judicial Nominees 2.

[3] Michael Kunzelman, Louisiana Federal Judge Retires After Taking Leave for Treatment of Severe Alcoholism, The Advocate, Aug. 2, 2017, https://www.theadvocate.com/baton_rouge/news/article_b6ae40bc-7797-11e7-ada4-e392c1d133c8.html.

[4] See Cain, supra n. 1 at 21.

[5] Benoit v. State of Louisiana, through the Dep’t of Transp. And Development and Thomas, 805 So.2d 428. Judge David Painter (2000-2001).  

[6] 

[7] D. Husers and L. Husers v. The City of Lake Charles et al., 14th Judicial District Ct., Calcasieu Parish, Louisiana, Case No. 2006-5675.

[8] See id.

[10] Id.

[11] Id.

J. Nicholas Ranjan – Nominee for the U.S. District Court for the Western District of Pennsylvania

While President Trump has received much criticism about the relative paucity of nominees of color among his judicial appointments, he has outpaced previous Administrations with regard to Asian-American nominees.  One such nominee is J. Nicholas Ranjan, who is of Indian origin.

Background

Jagan Nicholas Ranjan was born in Lancaster Ohio in 1978.[1]  Ranjan graduated summa cum laude from Grove City College in 2000 and cum laude from the University of Michigan Law School in 2003.[2]  He spent a year at the Office of the Ohio Solicitor General and then clerked for Judge Deborah Cook on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Pittsburgh Office of K&L Gates as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Ranjan has been nominated for opened on June 3, 2016, with Judge Kim Gibson’s move to senior status.  While the seat opened in the Obama Administration, no nomination was put forward to fill the vacancy.

Ranjan applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Ranjan interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on July 24, 2018.

Legal Experience

Ranjan began his career with a fellowship in the Ohio Solicitor General’s Office and a clerkship on the Sixth Circuit, but he’s spent his entire legal career since then at the Pittsburgh office of K&L Gates, handling commercial and appellate litigation.  Overall, Ranjan has worked as counsel of record in fourteen civil trials, including two jury trials.[6]  Both jury trials involved representations of prisoners suing guards for civil rights violations: one involving an excessive force claim;[7] the other involving inappropriate sexual contact.[8]

In another significant case, Ranjan represented Joseph Ruggieri, a Plum Borough teacher convicted for sex abuse of a student in a civil suit brought by the student.[9]  The suit was ultimately resolved through a confidential settlement.[10]

Writings and Statements

Over his legal career, Ranjan has written on and made public statements about legal and policy issues.  We have summarized his major positions below:

Medicaid and “Prior Authorization”

As a law student, Ranjan authored a note discussing the constitutionality of the Maine Rx program, which offered prior authorization of non-complying drugs to drug manufacturers as long as they offered rebates on those drugs to Maine residents.[11]  In the note, Ranjan argues that the program and similar programs are unconstitutional because they are pre-empted by federal Medicaid law, and because they violate the Dormant Commerce Clause, a controversial doctrine holding that states cannot discriminate against interstate commerce in their regulations.[12]

Legal Diversity

Ranjan serves as Chair of the Pittsburgh Office Diversity Committee at K&L Gates, and has used his role to improve legal diversity.  During his tenure, K&L Gates received a perfect score in a Human Rights Campaign survey tracking employer benefits and protections for LGBTQIA employees.[13]  Ranjan has also supported the Pittsburgh Legal Diversity & Inclusion Coalition, an initiative that seeks to improve diversity among the legal profession.[14]

Clarence Thomas

As a law student at the University of Michigan, Ranjan authored a book review of Andrew Peyton Thomas’ biography of Justice Clarence Thomas.[15]  In the book review, Ranjan posits an unusual theory: that the Justice’s life and jurisprudence, as well as the often-vitriolic response to him, is best understood by viewing the Justice as a “political figure rather than as merely a jurist.”[16]  Specifically, Ranjan argues that Justice Thomas’ jurisprudence on race is inconsistent with the originalist lens he takes with other issues, and that this disparity can be perceived as political, rather than judicial.[17]  Additionally, he notes that the Justice effectively politicized his race in his confirmation battle, stating that Thomas “changed the tone of the hearings from a sexual harassment investigation [to] a racist manhunt for Thomas by fiendish political lynchers.”[18]  At the same time, Ranjan criticizes much of the criticism of Thomas as “unreasoned, bitterly partisan, and grossly propagandized.”[19]  He suggests that viewing Thomas as a political, rather than a judicial, figure helps explain the level of opposition he faces.

Overall Assessment

In comparison to other, more controversial nominees sent forward by the Trump Administration recently, Ranjan should sail to confirmation.  His efforts on legal diversity are generally laudable and his legal career has been generally uncontroversial.  While Ranjan may face some questions regarding his description of Justice Thomas as a “political figure,” it is unlikely that this would derail his confirmation.  As such , it is even possible that Ranjan may see confirmation by the end of the year.


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

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 19.

[7] Byrnes v. Moody, No. 2:15-cv-00570 (W.D. Pa. 2017).

[8] Caldwell v. Folino, No. 2:08-cv-00122 (W.D. Pa. 2012).

[9] See Natasha Lindstrom, Plum Reaches Tentative Settlement in Sex-Abuse Lawsuit, Pittsburgh Tribune Review, July 29, 2017.

[10] See id.

[11] Jagan Nicholas Ranjan, Medicaid and the Unconstitutional Dimensions of Prior Authorization, 101 Mich. L. Rev. 602 (Nov. 2002).

[12] See id. At 608.

[13] See Tracy Carbasho, Five Local Firms Score Well in LGBT Equality, 16 Lawyers J. 3 (Dec. 26, 2014).

[14] See Susan Yohe, Pittsburgh Legal Diversity & Inclusion Coalition to Launch Model Career Advocate Program: Charting a Path to a More Diverse Pittsburgh, 20 Lawyers J. 1 (Oct. 12, 2018).

[15] Jagan Nicholas Ranjan, The Politicization of Clarence Thomas Clarence Thomas: A Biography. By Andrew Peyton Thomas, 101 Mich. L. Rev. 2084 (May 2003).

[16] Id. at 2086.

[17] See id. at 2094-95.

[18] Id. at 2096.

[19] Id.

Judge Rodney Smith – Nominee to the U.S. District Court for the Southern District of Florida

Judge Rodney Smith was the second African American judicial nominee to be sent forward by the Trump Administration when he was nominated back in May.  Now, as his nomination finally starts moving, Smith is poised to fill a long-pending vacancy on the court.

Background

A native Floridian, Rodney Smith was born in Orlando in 1974.  Smith graduated from Florida A&M University in 1996 and then from Michigan State University School of Law in 1999.[1]

After graduation, Smith joined the Miami-Dade County State’s Attorney’s Office, working as a prosecutor.[2]  In 2003, he moved briefly to the Office of the General Counsel at the United Automobile Insurance Company and then to the firm of McGrain Nosich & Ganz P.A.[3]  He left the firm a year later to join the Law Office of Rebecca W. Ribler as a Senior Trial Attorney.  In 2007, he shifted again to become Senior Assistant City Attorney for the City of Miami Beach.[4]

In 2008, Smith became a County Court Judge, appointed to the position by then-Republican Governor Charlie Crist.  In 2012, Smith was appointed by Gov. Rick Scott to be a Circuit Court Judge on the Eleventh Judicial Circuit of Florida, where he sits to this day.

History of the Seat

Smith has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on June 2, 2014, when Judge Robin Rosenbaum was elevated to the U.S. Court of Appeals for the Eleventh Circuit.  On February 26, 2015, Mary Barzee Flores, a former state court judge in Florida, was nominated by President Obama for the vacancy.[5]  However, while Flores had been recommended for the vacancy by the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson, Rubio refused to return a blue slip on Flores.[6]  Rubio’s stance was criticized by both Republicans and Democrats who described Flores as an “excellent judge.”[7]  Later, Rubio claimed that Flores had misrepresented her past support for the American Civil Liberties Union and other organizations.[8]  With Rubio’s opposition, Flores never got a hearing before the Senate Judiciary Committee and was not confirmed before the end of the Obama Administration.

In October 2017, Smith applied and interviewed with the JNC.  The JNC chose Smith as one of ten finalists to be passed onto the Senators.[9]  After interviews with Rubio and Nelson, Smith interviewed with the White House Counsel’s Office and the Department of Justice.  Smith was formally nominated on May 8, 2018.

Legal Career

Smith began his legal career as a state prosecutor in Miami-Dade County, where he served as the Chief of the Juvenile Division and worked in the Career Criminal/Robbery Division.[10]  As the former, Smith was able to secure a conviction against a defendant who emotionally and sexually abused his step-daughter, even though the child’s mother testified against her.[11]

From 2003 to 2007, Smith worked in private practice.  While working for Rebecca Ribler, Smith defended a case against a plaintiff who broke her hip slipping and falling while exiting the defendant’s restaurant.[12]

From 2007 to 2008, Smith worked as Senior Assistant City Attorney in Miami Beach, defending the city against litigation while also prosecuting ordinance violations.  During his time at the office, Smith successfully obtained summary judgment against a plaintiff who had been rendered a quadriplegic after diving into the ocean and striking a rock.[13]

Jurisprudence

Smith served as a County Court Judge in Florida from 2008 to 2012 and has served as a Circuit Judge since 2012.  In the former capacity, Smith heard criminal misdemeanor and traffic matters, civil protective orders, and landlord-tenant and small claims litigation.  As a Circuit Judge, Smith handles major felonies and any civil cases with more than $15000 in controversy.

Over his ten year tenure on state court, Smith has heard approximately 700 cases.  Of these, approximately 3% have been reversed by a higher court, a relatively low reversal rate.[14]  Of the cases in which Smith has been reversed, approximately one in five involved a confession of error by the prevailing party.[15]

Overall Assessment

Smith is a relatively uncontroversial choice for the federal bench.  His judicial record is fairly mainstream and he has not made any controversial statements or actions in his career.  Additionally, his record as a lawyer is fairly varied and it is hard to argue that Smith lacks the ability to be a district court judge.  As such, Smith will likely be confirmed with bipartisan support.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Press Release, Obama White House Archives, President Obama Nominates Two to Serve on the United States District Courts (Feb. 26, 2015).

[6] Jay Weaver, Rubio Holds Up Obama Nominee He Once Backed for Miami Federal Bench, Miami Herald, Feb. 28, 2016, https://www.miamiherald.com/news/politics-government/article63008137.html.  

[7] See id. (quoting Tom Spencer).

[8] Marc Caputo and Seung Min Kim, Rubio Breaks Silence on Female Judge, Politico, June 9, 2016, https://www.politico.com/story/2016/06/marco-rubio-judge-mary-barzee-flores-224073.  

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

[10] See Smith, supra n. 1 at 46.

[11] State v. Yanes, No. F01-029698, aff’d, 865 So.2d 507 (Fla. 3d DCA 2003).

[12] O’Brien v. GMRI, Inc. d/b/a Bahama Breeze, Case No. 04-23037 CA 20.

[13] Downs v. City of Miami Beach, et al., Case No. 04-08735 CA 15 and Case No. 06-20861 CIV-HUCK/BANDSTRA, aff’d, 13 So.3d 1064 (Fla. 3d DCA 2009).

[14] See Smith, supra n. 1 at 38.

[15] Id. at 37-41.

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).