Judge Thomas Barber – Nominee for the U.S. District Court for the Middle District of Florida

A well-respected state court judge in Florida, Judge Thomas Barber is a fairly uncontroversial choice for the federal bench.


Thomas Patrick Barber was born on December 1, 1966 in Pittsburgh, Pennsylvania.  Barber graduated from the University of Florida in 1989 and from the University of Pennsylvania Law School in 1992.[1]  After graduating, Barber joined the Tampa office of Carlton Fields P.A. as an Associate.

In 1997, Barber became a state prosecutor at the State’s Attorney’s Office, and, after two years, became an Assistant Statewide Prosecutor with the Florida Attorney General’s Office.[2]  In 2000, Barber moved back to Carlton Fields, becoming a Partner in 2002.[3]

In 2004, Barber was appointed to be a County Court Judge for the Thirteenth Judicial Circuit.[4]  He was elevated to be a Circuit Judge in 2008.  He still holds the judgeship.

History of the Seat

Barber has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 29, 2017, when Judge James Whittemore moved to senior status.

Barber was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio.[5]  Barber was formally nominated on May 7, 2018.

Legal Experience

Barber has spent his entire pre-bench career either at the firm of Carlton Fields or as a state prosecutor.  Over the course of his career, Barber has tried approximately seventy cases, including approximately twenty jury trials.[6]

Among the highlights of his career, Barber helped prosecute the leaders of a theft ring that stole baby formula from Florida drug stores for resale in Texas.[7]  The case, which ended with a 76-month prison sentence for the ringleader, revealed links between the operation and the funding for the 1993 terrorist attacks at the World Trade Center.[8]  In other matters, Barber represented a whistleblower who uncovered numerous improprieties at the Florida Department of Health & Rehabilitative Services[9] and represented a family in supporting an elderly patient’s right not to receive skin graft procedures in accordance with her living will.[10]

Judicial Experience

Barber served as a County Judge in Florida from 2004 to 2008 and has served as a Circuit Judge since 2008.  In this role, Barber handles civil cases involving more than $15000 and felony prosecutions.  Over the course of his career, Barber has handled approximately 700 cases.[11]  Among his more prominent cases, Barber ruled that the new Florida “stand your ground” law could not apply to cases currently pending when the law passed.[12]

Over the course of his judicial career, Barber has been reversed approximately thirteen times.  For example, Barber was reversed in two cases for granting motions to dismiss on behalf of criminal defendants.[13]

In one notable case, Barber granted a motion to suppress evidence, finding that the warrant was based on information based on an officer’s nonconsensual entry into a backyard.[14]  The Florida Court of Appeals for the Second District reversed, finding that the affidavit supporting the warrant still met the probable cause requirement without the officer’s personal observations.[15]

Overall Assessment

Looking at Barber’s record overall, senators are unlikely to find his nomination controversial.  His judicial record reflects a relatively low rate of reversal and does not suggest a bias towards either prosecutors and defendants.

However, Barber was among a group of nominees who received his hearing during the October recess, when Democrats were not present.  As such, unless Barber is given a second hearing, he may get some votes against him from Democrats who are protesting their lack of input in the confirmation process.  Barber may also receive questions regarding his ruling limiting the scope of Florida’s “stand your ground” law and for his work representing an elderly woman’s “right to die.”

Nevertheless, Barber faces a strong likelihood of a bipartisan support next year, and will likely be confirmed in due course.


[1] Sen. Comm. on the Judiciary, 114th Cong., Thomas P. Barber: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 46.

[6] See id. at 36.

[7] William R. Levesque, 3 Receive Probation in Baby Formula Theft Ring, St. Petersburg Times, Aug. 25, 1999.

[8] See Barber, supra n. 1 at 37.

[9] See Irven v. Dep’t of Health & Rehab. Servs., Case No. GC-G-95-2652 (Fla. Cir. Ct. 1997).

[10] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[11] See Barber, supra n. 1 at 14. 

[12] State v. Smith, 16-CF-007477 (Fla. Cir. Ct. 2017).

[13] See State v. Ramirez, 198 So.3d 52 (Fla. App. 2d. 2015); State v. Codore, 59 So.3d 1200 (Fla. App. 2d. 2011).

[14] State v. Rodriguez, 56 So. 3d 848 (Fla. Ct. App. 2d. 2011).

[15] See id.

Corey Maze – Nominee for the U.S. District Court for the Northern District of Alabama

The 40-year-old Corey Maze has, like two other Trump judicial nominees from Alabama, served as Alabama Solicitor General.  His tenure in that office, and his subsequent tenure with the Alabama Attorney General, has prepared him well for the federal bench.


Corey Landon Maze was born in Gadsden, Alabama on January 4, 1978.  Maze graduated summa cum laude from Auburn University in 1996 and cum laude from Georgetown University Law Center in 2003.[1]

After graduation, Maze joined the Alabama Attorney General’s Office, working under then-AG William Pryor as Assistant Attorney General in Criminal Trials and Appeals.[2]  In 2008, Attorney General Troy King selected Maze to be Solicitor General of Alabama.  He held the position until 2011, when he became Special Deputy Attorney General for Civil Litigation, a position he still holds.

History of the Seat

Maze has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat opened on June 22, 2018, when Judge Virginia Emerson Hopkins moved to senior status.  However, Maze had contacted Alabama Senator Richard Shelby in November 2016 to express his interest in an appointment to the federal bench.[3]  Maze interviewed with Shelby and then-Sen. Luther Strange in 2017, and with the White House in early 2018.  Maze was officially nominated on May 10, 2018.[4]

Legal Experience

Maze has spent his entire legal career at the Alabama Attorney General’s Office, working as Assistant Attorney General in Criminal Trials and Appeals, as Solicitor General, and, currently, as Special Deputy Attorney General for Civil Litigation.

As Assistant Attorney General, Maze prosecuted both non-capital and capital murder cases in Alabama state courts.  Notably, Maze prosecuted Daniel Wade Moore for the stabbing death of Karen Croft Tipton in 1999.[5]  Moore’s initial conviction was overturned by Judge Glenn Thompson, but was reinstated on appeal.[6]  Moore’s second trial ended in a hung jury, and, in his third, Maze was admonished by Judge Steve Haddock for failing to disclose a disk of FBI evidence to the defense, stating that the conduct of the investigators constituted “willful and intentional misconduct.”[7]  Moore was ultimately acquitted in his third trial.

As Solicitor General, Maze served as Alabama’s chief appellate attorney.  In this role, Maze argued three cases before the U.S. Supreme Court.  In one, Maze successfully defended a death penalty conviction under federal habeas review, as dictated by the Antiterrorism and Effective Death Penalty Act.[8]  In another, the Supreme Court ruled 5-4 against Maze’s position, holding that an inmate who had successfully obtained habeas relief was permitted to raise a challenge to his second death sentence on the same constitutional grounds.[9]  In a third case, the Supreme Court ruled 7-2 against Maze’s position that a railroad transportation company cannot challenge the imposition of Alabama sales tax on the purchase of diesel fuel.[10]

As Special Deputy Attorney General for Civil Litigation, Maze handles complex civil litigation for the state.  For example, Maze has served as Chief Counsel for Alabama’s suit against British Petroleum (BP) for damages resulting from the 2011 oil spill in the Gulf of Mexico.[11]  The suit led to a settlement with approximately $950 million in damages to be paid to the State.[12]

Overall Assessment

Despite his youth, Maze has built an impressive legal career.  Given his experience arguing before the Supreme Court and managing multi-million dollar settlements, Maze can argue that he has the legal and organizational ability to excel on the federal bench.

That being said, Maze may still be questioned regarding his time at the Attorney General’s Office.  Specifically, Maze may receive questions about his conduct in the Moore case, and whether he agrees that his office’s actions constituted misconduct.

Overall, Maze remains a favorite for confirmation.  While Sen. Flake’s blockade on judicial nominees will likely prevent Maze’s confirmation this year, he should be confirmed in due course next Congress.

[1] Sen. Comm. on the Judiciary, 115th Cong., Corey L. Maze: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id. at 33.

[4] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial Nominees, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 10, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[5] Sheryl Marsh, Spending 4 Weeks on a Jury: Judge Quizzes Potential Jurors About Lengthy Trial in Tipton Murder Case, Decatur Daily, Feb. 12, 2008.

[6] See id.

[7] Sheryl Marsh, Tipton Judge Cites Misconduct; Haddock Says Prosecutors Withheld Evidence, But Delays Motion to Dismiss Charges; Jury Selection Begins, Decatur Daily, Apr. 14, 2009.

[8] See Wood v. Allen, 130 S.Ct. 841 (2010).

[9] Magwood v. Patterson, 130 S.Ct. 2788 (2010).

[10] CSX Transp. Inc. v. Alabama Dep’t of Revenue, 131 S.Ct. 1101 (2011).

[11] Kyle Barnett, Ala. AG’s Office Re-Deputized Private Firm to Avoid Legal Challenge From BP, Has Always Intended to Use Firm for Trial, Legal News Line, June 2, 2015.

[12] Jessica Karmasek, Alabama’s $1B Settlement with BP Over 2010 Gulf Oil Spill ‘Officially Approved By All Parties’, Legal News Line, Oct. 15, 2015.

Judge Clifton Corker – Nominee to the U.S. District Court for the Eastern District of Tennessee

Judge Cliff Corker (no relation to Sen. Bob Corker) is Trump’s first nominee to the federal court that covers much of Eastern Tennessee.  While Corker is an experienced judge and advocate, some intemperate writings from his college years may cause him some heartburn.


Clifton Leland Corker was born in Richmond, VA in 1967.  He graduated from James Madison University in 1990 and then attended William & Mary Law School, graduating in 1993.[1]  Corker then clerked for Judge Cynthia Kinser, then a magistrate on the U.S. District Court for the Western District of Virginia.[2]

After his clerkship, Corker worked as a volunteer for the Public Defender in Greenville, Tennessee for a year and then as an Associate at Terry, Terry & Stapleton briefly before opening his own law practice in Johnson City.[3]  Corker stayed at the practice until he became a U.S. Magistrate Judge for the Eastern District of Tennessee in 2015, where he serves today.[4]

History of the Seat

Corker has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on June 30, 2018, when Judge J. Ronnie Greer moved to senior status.  In June 2018, Corker was interviewed for the vacancy by the White House and was nominated on October 10, 2018.[5]

Legal Career

Corker started his legal career by clerking on the U.S. District Court for the Western District of Virginia.  He then worked as a Public Defender and at a small litigation practice.  Overall, Corker tried approximately 25 jury trials before joining the bench.[6]

From 1996 to 2005, Corker handled litigation matters in Johnson City, including the representation of indigent defendants on a court-appointed basis.[7]  During this time, he represented Gary Moore, an indigent defendant charged with conspiracy to distribute crack cocaine.[8]  Corker was able to successfully get the evidence of the crack cocaine suppressed by arguing that the officers lacked probable cause for a search incident to arrest.[9]  Similarly, Corker was able to get a search warrant issued by an associate municipal judge in Johnson City overturned, forcing a ruling that municipal judges had no authority to issue search warrants.[10]

However, Corker was less successful in arguing before the Tennessee Supreme Court that the Tennessee Constitution provides broader protections for defendants seeking access to counsel than the U.S. Constitution.[11]

Political Activity

Corker has a modest political history working for Republican candidates.  He volunteered for George H.W. Bush as a college student and has supported Tennessee Republicans more recently.[12]  Corker also contributed to the Presidential campaign of Mike Huckabee in 2008.[13]

Jurisprudence and Reversals

Corker has served as a U.S. Magistrate Judge since his appointment in 2015.  In his three years on the bench, Corker has presided over 149 cases where parties have consented to his jurisdiction, a remarkably high number.[14]

Over his three years on the bench, Corker has only had his reports and recommendations rejected twice.  In the first, Judge Greer rejected Corker’s recommendation that an ALJ’s denial of social security benefits be affirmed.[15]  In the second, Judge Pamela Reeves rejected Corker’s ruling that the criminal statute defendant was charged upon was not unconstitutionally vague.[16]


As a college student, Corker frequently wrote articles and letters to the editor for The Breeze, the JMU college paper.  In these writings, Corker takes strongly conservative positions, frequently employing hyperbolic language to lampoon the perceived weaknesses of ideological opponents.  For example, in one piece, Corker writes that the “evil spirit of liberalism is beginning to ooze out of the hearts and minds of those it holds captive, seeking to add more to its chains of slavery.”[17]  In another piece, Corker defends Col. Oliver North as “the victim of a prosecutor with an unlimited budget” and describes the U.S. Congress as the “enemy” for investigating North and interfering with the Reagan Administration’s foreign policy.[18]  In another column announcing a debate over the Reagan Administration’s Strategic Defense Initiative (SDI), Corker takes the first paragraph to dismiss the designation of Nov. 9-16 as Nuclear Awareness Week and Gay Rights Week, noting:

“This leads me to question as to whether it is the gays who want more nuclear awareness or the nuclear awareness persons who want more gay rights?”[19]

In other articles, Corker praises the Supreme Court candidacy of Robert Bork, arguing that “[w]omen’s rights will not suffer at all” by recognizing that, unlike with race, there are “reasonable differences between genders,”[20] and criticizes the push for divestment from South Africa due to apartheid, arguing that current sanctions “are neither helping blacks nor aiding in the abolishment of apartheid.”[21]

Overall Assessment

Is Corker a consensus nominee?  If we look at Corker’s record starting with his time in law school, the answer would unquestionably be “yes.”  His record as a judge is truly impressive with a very low rate of reversal.  Additionally, his background working to expand the rights of criminal defendants is fairly unique among federal judicial nominees, among whom prosecutors tend to be more common.

However, when you bring in Corker’s college writings, in which he calls liberals “evil”, suggests that opponents of Reagan are un-American, and mocks the designation of “Gay Rights Week” they paint a different picture.  To be fair, individuals change and grow throughout their lives, and it is likely that Corker is a different person today than when he wrote those statements.  As such, it remains to be seen how relevant senators find his college writings when contrasted with the rest of his record.  It is also important to see if Corker is willing to distance himself from these writings (at least in tone if not in substance).

[1] Sen. Comm. on the Judiciary, 114th Cong., Clifton L. Corker: Questionnaire for Judicial Nominees 1.

[2] Kinser would later serve on the Virginia Supreme Court.

[3] Id. at 2.

[4] Id.

[5] See id. at 51.

[6] Id. at 42.

[7] Id. at 40-41.

[8] See United States v. Brown, 390 F. App’x 503 (6th Cir. 2010).

[9] See id.

[10] United States v. Hall, No. 2:01-cr-0027-1 (E.D. Tenn. Aug. 6, 2001).

[11] See State v. Saylor, 117 S.W.3d 239 (Tenn. 2003).

[12] See Corker, supra n.1 at 39.

[14] See Corker, supra n.1 at 18.

[15] McMillan v. Colvin, Comm’r of Social Security, No. 2:15-cv-167 (E.D. Tenn. Aug. 30, 2016).

[16] See United States v. Lopez, No. 2:17-cr-62 (E.D. Tenn. Dec. 12, 2017).

[17] See Letter to the Editor, Evil Liberal Spirit Returns, The Breeze, Mar. 24, 1988, at 35, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1481&context=i19801989.

[18] Letter to the Editor, Anti-North Groups Really Resent ‘Success of Reagan Revolution’, The Breeze, Jan. 30, 1989, at 12, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1528&context=i19801989.

[19] Letter to the Editor, National Defense Debated: Two Sides to Arms Build-Up Discussed By High-Ranking Officers, The Breeze, Nov. 12, 1987, at 21, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1457&context=i19801989.

[20] Letter to the Editor, Bork Views Based on Sound Judgment, The Breeze, Oct. 8, 1987, at 27, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1448&context=i19801989.

[21] Clifton Corker, End Apartheid: Invest in South Africa, The Breeze, Feb. 23, 1989, at 10, available at https://commons.lib.jmu.edu/cgi/viewcontent.cgi?article=1535&context=i19801989.

Brian Buescher – Nominee to the U.S. District Court for the District of Nebraska

In 2014, Brian Buescher ran as a strong conservative for the Nebraska Attorney General’s office, but came in second to Doug Petersen.  Four years later, Buescher has an opportunity for an incredible consolation prize: a lifetime appointment to the federal bench.


A native cornhusker, Brian Craig Buescher was born on January 16, 1975 in Beatrice, Nebraska.  Buscher attended the University of Nebraska at Lincoln and then Georgetown University Law Center, getting his J.D. in 2000.[1]  During law school, Buescher worked as a summer associate at Kutak Rock LLP, the largest law firm in Nebraska.  He was hired by the firm as an Associate upon graduation.[2]  Buescher became a Partner in 2007 and Chair of Agribusiness Litigation in 2009.[3]

In 2014, Buescher joined the race to be Nebraska Attorney General, replacing Jon Bruning, who was running for Governor of Nebraska.  Buescher ultimately got approximately 25% of the vote, coming in second in the five way race and losing to eventual winner Doug Peterson.

History of the Seat

Buescher has been nominated for a vacancy on the U.S. District Court for the District of Nebraska.  This seat will open on December 1, 2018, when Judge Laurie Smith Camp moves to senior status.  In early 2018, Buescher expressed his interest in a judgeship with representatives of Sen. Ben Sasse.[4]  Buescher interviewed with Sasse, Sen. Deb Fischer, and the White House in May 2018.  Buscher was selected as a preliminary nominee in early June and was nominated in October 2018.

Legal Experience

Buescher has spent virtually his entire legal career at the firm of Kutak Rock LLP in Omaha.  Barring a short stint working on detail as a Douglas County Domestic Violence Unit prosecutor, Buescher has worked in commercial litigation, primarily focusing on agribusiness cases.  Over the course of his career, Buescher has tried 10 cases.[5]

Notably, Buescher represented Lee Simmons, a Nebraska landowner who challenged the National Park Service’s designation of boundaries that implicated some of his properties.[6]  Both the district court and the Eighth Circuit rejected the challenge, arguing that the boundary designation was not arbitrary or capricious under the Administrative Procedure Act.[7]  Buescher touted his representation of Nebraska farmers and landowners in suits against the federal government in his fight for the Attorney General seat.[8]

Writings and Public Positions

Having run for Attorney General in 2014, Buescher’s public positions on many issues are well-known and are strongly conservative.  Some of the key ones are highlighted below.

Attorney General Campaign

During his campaign for the Republican nomination to be Nebraska Attorney General, Buescher ran as a strong conservative.[9]  In his campaign, Buescher repeatedly emphasized four platform positions: fighting federal regulations;[10] opposing Obamacare;[11] support for pro-life policies;[12] and reforming Nebraska’s good time law to prevent repeat offenders from leaving their prison sentences early.[13]  Buescher ran campaign commercials promising to “protect the rights of the unborn” and “stand up to the Obama Administration.”[14]  He also praised the concept of a “limited government”[15] and described himself as “very passionate about conservative, pro-life politics.”[16]

Conflict of Interest

As a law student, Buescher authored two articles discussing conflicts of interest and legal ethics.[17]  In the first, he discussed Nebraska’s bright line rule preventing representations where an appearance of impropriety can be raised due to a potential conflict of interest.[18]  Buescher argued that the rule’s strictness limited the mobility of lawyers and staff and had caused an exodus of lawyers from the state.[19]  Instead, Buescher recommended the adoption of the looser Model Rules approach to conflict of interest.[20]

In the second paper, Buescher addressed ABA Model Rule 7.6 which prevents political contributions made with the intention of procuring legal work.[21]  Buescher argues that the rule is ineffective because a violation is nearly impossible to prove, and that, instead, the burden should rest on lawyers to prove that their contributions were made for reasons other than to secure legal work.[22]

Political Activity

Other than his Attorney General campaign, Buescher has a long and active history in the Nebraska Republican Party, including serving on the State Central Committee from 2004 to 2018.[23]  In addition, Buescher has served as Counsel for the Nebraska Republican Party, for Gov. Pete Ricketts’ campaign in 2014, and has volunteered for numerous Nebraska Republicans including Sasse, Fischer, Ricketts, Rep. Don Bacon, and former Sen. Mike Johanns.[24]

Overall Assessment

Overall, while Buescher’s legal career reinforces his legal credentials, he is nonetheless likely to face some questions regarding his political activity.  Specifically, Buescher is likely to be closely questioned on his expressed commitment to “conservative, pro-life” politics.  While advocates are generally supposed to set aside their policy views upon ascension to the bench, opponents may argue that, given his own description of his beliefs, Buescher will be unable to do so.

In comparison, Buescher’s supporters will nonetheless argue that a past political career should not be a barrier to joining the judiciary and that many distinguished judges had previously run for office.

Ultimately, Buescher’s nomination shows the risks of appointing former candidates for office to the bench.  Statements that are encouraged for elected representatives to make usually raise eyebrows when made by a judge.  It remains to be seen if Buescher will, in his hearing, dispel any concerns about the kind of judge he will be.

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

[2] See id. at 2.

[3] Id.

[4] Id. at 40.

[5] See id. at 29-30.

[6] Simmons v. Smith, 888 F.3d 994 (8th Cir. 2018).

[7] Id. at 1002.

[8] NTVNews, Brian Buescher 4-30-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=NcyJFZMr2BA.

[9] See Elizabeth Anna Valla, Buescher Opposes Federal Government’s Overreach, Columbus Telegram, Apr. 18, 2014.

[10] See, e.g., yorknewstimes, Brian Buescher Interview, YouTube (Mar. 7, 2014), https://www.youtube.com/watch?v=yqo0DaYH6wE (noting Buescher’s opposition to “undue interference from the federal government.”).  See also Brian Buescher, Brian Buescher for Attorney General, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

[11] Brian Buescher, Brian Buescher for Attorney General, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

[12] NTVNews, Brian Buescher 3-17-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=IbWctFT9ZLU.

[13] See NBC Nebraska, News 5 at 10 – Attorney General Candidates Talk Prison Reform/ April 29, 2014, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=eL5Z51SdwgE.  See also NTVNews, Brian Buescher 3-17-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=IbWctFT9ZLU; NTVNews, Brian Buescher 4-30-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=NcyJFZMr2BA.

[14] Brian Buescher, Brian Buescher for Attorney General, YouTube (Apr. 30, 2014), https://www.youtube.com/watch?v=SOW_dbaPv6s.

[15] NTVNews, Brian Buescher 4-30-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=NcyJFZMr2BA.

[16] NTVNews, Brian Buescher 3-17-14, YouTube (May 1, 2014), https://www.youtube.com/watch?v=IbWctFT9ZLU.

[17] See Brian Buescher, ABA Model Rule 7.6: The ABA Pleases the SEC, But Does Not Solve Pay to Play, 14 Geo. L. J. Ethics 139 (Fall 2000); Brian Buescher, Out With the Code and In With the Rules: The Disastrous Nebraska “Bright Line” Rule for Conflict of Interest: A Direct Consequence of th Shortcomings in the Model Code, 12 Geo. L. J. Ethics 717 (Summer 1999).

[18] See Brian Buescher, Out With the Code and In With the Rules: The Disastrous Nebraska “Bright Line” Rule for Conflict of Interest: A Direct Consequence of th Shortcomings in the Model Code, 12 Geo. L. J. Ethics 717, 727 (Summer 1999).

[19] See id. at 728-31.

[20] Id. at 737-38.

[21] Brian Buescher, ABA Model Rule 7.6: The ABA Pleases the SEC, But Does Not Solve Pay to Play, 14 Geo. L. J. Ethics 139 (Fall 2000).

[22] Id. at 154.

[23] See Buescher, supra n. 1 at 24-25.

[24] See id.

Judge Karin Immergut – Nominee to the U.S. District Court for the District of Oregon

Judge Karin Immergut has built a largely mainstream record as a state court judge in Oregon and has the support of her Democratic home-state senators.  Nevertheless, her involvement in working under former Independent Counsel Ken Starr as well as questions raised from her tenure as U.S. Attorney may cause her heartburn in the confirmation process.


Karen Johanna Immergut was born on December 22, 1960 in Brooklyn, NY.  Immergut graduated from Amherst University in 1982 and then worked for two years with the New York City Department of Juvenile Justice and Corrections.[1]  She then received her law degree from the University of California Boalt Hall School of Law in 1987.[2]

After graduation, Immergut spent a year working as a litigation associate at Covington & Burling in Washington D.C.  She then joined the U.S. Attorney’s Office for the Central District of California as an Assistant U.S. Attorney.[3]  In 1992, she was designated Deputy Chief of the Narcotics Section.

In 1994, she left to join Gravel & Shea’s Burlington, Vermont office as a litigation associate.  She then joined the Multnomah County District Attorney’s Office in 1996.[4]  In 1998, Immergut left for a brief stint working under Independent Counsel Ken Starr on the Monica Lewinsky investigation (working alongside now Justice Brett Kavanaugh).[5]  She returned to Multnomah County after the investigation.

In 2001, Immergut joined the U.S. Attorney’s Office for the District of Oregon as an Assistant U.S. Attorney.[6]  In 2003, President George W. Bush appointed her to be U.S. Attorney for the District of Oregon, replacing Michael Mosman, who had been appointed to the federal bench.[7]

In 2008, when Judge Garr King moved to senior status, Republican Sen. Gordon Smith recommended Immergut to fill the vacancy.[8]  Ultimately, Immergut was not selected and Bush chose Washington County Circuit Judge Marco Hernandez to fill the seat on July 23, 2008.  With Hernandez’s nomination coming late in the Presidency, it never received a hearing or a vote in the Democratic Senate.  Hernandez was ultimately renominated for the vacancy by President Obama, and confirmed at that time.

In 2009, Immergut resigned as U.S. Attorney after the election of Barack Obama to the presidency.  She was appointed by Democratic Gov. Ted Kulongoski to be Multnomah County Circuit Judge in 2009, where she currently serves.[9]

History of the Seat

Immergut has been nominated for a seat on the U.S. District Court for the District of Oregon.  This seat opened on July 27, 2017, when Judge Anna J. Brown moved to senior status.

In October 2017, Immergut applied for the judgeship with a selection committee put together by Senators Ron Wyden and Jeff Merkley.[10]  She then interviewed with the committee in January 2018 and was selected as a finalist for the District Court, alongside three other candidates in February.[11]  Immergut interviewed with the White House Counsel’s Office in February 2018.[12]  President Trump nominated her on June 6, 2018.

Legal Career

Immergut has had a fairly varied career, including working in private practice, and as a state and federal prosecutor.  However, the two highlights of her career before joining the bench are her role in the Monica Lewinsky investigation and her tenure as U.S. Attorney.

Ken Starr

In 1998, Immergut served under Independent Counsel Ken Starr in the Monica Lewinsky investigation .  Specifically, Immergut conducted the deposition of Monica Lewinsky, where Lewinsky detailed the sexual relationship between herself and President Bill Clinton.[13]  Immergut also worked alongside Justice Brett Kavanaugh.  Shortly after her tenure, Immergut defended the Independent Counsel law (now expired) as a powerful tool to ensure that crimes committed by the President can be investigated.[14]

U.S. Attorney

Immergut served as U.S. Attorney for the District of Oregon between 2003 and 2009.  Notably, Immergut investigated Brandon Mayfield, an Oregon attorney and convert to Islam who was jailed after his fingerprints were erroneously matched to the Madrid bombing.[15]  Mayfield argued that his imprisonment was based on his religion.[16]  Immergut denied that Mayfield’s religion played any role in the investigation, but an FBI internal report found that Mayfield’s Muslim faith had contributed to the investigation and that this was acknowledged by both FBI and DOJ officials.[17]


Immergut has served as a Circuit Court Judge since her appointment in 2009.  In this role, she serves as a primary trial judge, supervising criminal and civil cases.  Over the last nine years, Immergut has presided over approximately 250 cases.[18]  Among her more notable decisions, Immergut sentenced a man convicted of forcing disabled women to 190 months of incarceration,[19] sentenced a grandfather for sexually abusing his five-year-old granddaughter,[20] and, in a bench trial, found that a defendant who poses as a magazine salesman to rape his victim was not guilty of attempted murder where there was little evidence that the defendant intended to kill his victim.[21]

Political Activity

Early in her career, Immergut was a registered Democrat.[22]  She re-registered as an Independent shortly before going to work for Starr, and then became a Republican in 2001 around the time she joined the U.S. Attorney’s Office.[23]  She has been described as a “moderate, pro-choice Republican.”[24]

Immergut has a fairly limited political donation history, having donated $300 to Smith in 2002, and, as a sitting state judge, having given $750 to Rep. Susan Brooks in the 2011-12 cycle.[25]

Overall Assessment

As a nominee, Immergut is a study in contradictions.  On one side, she has the strong support of her Democratic home state senators, was appointed to the state bench by a Democratic Governor, and has a long history as a Democrat.  On the other hand, Immergut was intimately involved in the Lewinsky investigation, and has been accused of prosecuting a Muslim attorney based on his religion.  Overall, while Immergut remains a favorite to be confirmed, she may draw more controversy than a shallow look at her record would suggest.

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

[2] Id. at 1.

[3] Id. at 2.

[4] Id.

[5] Id.

[6] Id.

[7] See James Gordon Meek, Mull Bill Prober for Fed Bench, New York Daily News, June 6, 2003.

[8] James Pitkin, Judgement Call: Gordon Smith’s Choice for a Plum Federal Court Job May Be in Trouble. Hint: It Has More than a Little to do with Monica Lewisnky, Willamette Week, January 15, 2008, https://www.wweek.com/portland/article-8295-judgment-call.html.

[9] Bryan Denson, U.S. Attorney Lands Job as Oregon Circuit Judge, The Oregonian, May 9, 2009, https://www.oregonlive.com/news/index.ssf/2009/05/us_attorney_lands_job_as_orego.html.  

[10] Immergut, supra n. 1 at 68-69.

[11] Nigel Jaquiss, Oregon Senators on a Collision Course with White House Over Openings on Federal Courts, Willamette Week, Feb. 12, 2018, https://www.wweek.com/news/2018/02/12/oregons-senators-on-a-collision-course-with-white-house-over-openings-on-federal-courts/.

[12] See Immergut, supra n. 1 at 26.

[13] Body of Evidence, Monica Talks to the Grand Jury, New York Daily News, Sept. 22, 1998 (detailing deposition transcript).

[14] MetNews Staff Writer, Starr Aides Tell Attorneys Independent Counsel Law Should Be Renewed, Deny Involvement in Leaks, Metropolitan News Enterprise, Feb. 8, 1999.

[15] See Sarah Kershaw and Eric Lichtblau, Bomb Case Against Lawyer is Rejected, N.Y. Times, May 25, 2004.

[16] See FBI Apologizes to Detained Attorney, York Dispatch, May 25, 2004.

[17] See Dan Eggen, Report Links Lawyer’s Religion to FBI’s Zeal, Wash. Post, Jan. 7, 2006.

[18] See Immergut, supra n. 1 at 40.

[19] State v. Paye, No.15CR50132 (Cir. Ct. Multnomah Cty).

[20] State v. Saunders, No. 14CR20839 (Cir. Ct. Multnomah Cty).

[21] State v. Washington, No. 0904-31605 (Cir. Ct. Multnomah Cty), aff’d, 337 P.3d 859 (2014), rev. denied, 345 P.3d 456 (2015).

[22] Bryan Denson, U.S. Attorney Lands Job as Oregon Circuit Judge, The Oregonian, May 9, 2009, https://www.oregonlive.com/news/index.ssf/2009/05/us_attorney_lands_job_as_orego.html.  

[23] See id.

[24] Id.

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.


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.


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).  


[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.