Stephen Vaden – Nominee to the U.S. Court of International Trade

The U.S. Court of International Trade is a specialized court that hears cases involving international trade and customs laws, but whose judges, nonetheless, sit for lifetime appointments.  While nominees to the court generally attract less opposition due to the court’s specialized nature, there are always exceptions.  Stephen Vaden, who has already had one tough confirmation through the Senate, will likely face questions for his youth, lack of experience, and rocky tenure in his current position.

Background

A native Tennessean, Stephen Alexander Vaden was born in Memphis in 1982.  Vaden grew up in Union City, Tennessee, where his father ran a family farm.[1]  Vaden attended Vanderbilt University and then attended Yale Law School, graduating in 2008.[2]  After graduating, Vaden clerked for Judge Julia Smith Gibbons on the U.S. Court of Appeals for the Sixth Circuit, and then for Judge Samuel Mays on the U.S. District Court for the Western District of Tennessee.[3]

After his clerkships, Vaden joined the Washington D.C. office of Patton Boggs as an Associate.[4]  In 2014, Vaden moved to Jones Day in Washington D.C. as an Associate.[5]

In 2017, Vaden was nominated to be General Counsel for the U.S. Department of Agriculture, and serving as acting General Counsel during his nomination.[6]  However, his nomination was criticized by Democrats for his work defending voter restrictions in Ohio and North Carolina.[7]  After passing out of Committee, Vaden’s nomination sat on the floor for months before being confirmed on a 53-46 vote.[8]  He currently serves in that capacity.

History of the Seat

Vaden has been nominated for a seat vacated by Judge Delissa Ridgeway, an appointee of President Bill Clinton, on January 31, 2019.  

In April 2019, Vaden was contacted by the White House to discuss a judicial appointment.[9]  Vaden interviewed with the Department of Justice and was nominated on October 2, 2019.  

Political Activity

Vaden is a Republican with a long history of contributions to the Tennessee Republican Party.[10]  In addition, Vaden has also given to other Republicans, including his sponsor Rep. David Kustoff.[11] 

Additionally, while in law school, Vaden was President of the Yale Law Republicans, where he opposed the military’s Don’t Ask Don’t Tell policies.[12]

Legal Experience

Before he started at the Department of Agriculture, Vaden worked at the firms of Patton Boggs and Jones Day, where he handled litigation.  During his tenure there, Vaden argued the case of Lilliputian Sys. Inc. v. Pipeline Hazardous Materials Safety Admin. Before the D.C. Circuit, in which he persuaded the Court to overturn federal regulations on carrying fuel cell cartridges on passenger flights.[13]  He also represented amicus parties in defending voter restrictions passed by North Carolina and Ohio.[14] 

Since 2017, Vaden has served as General Counsel to the Department of Agriculture.  Vaden’s nomination to the position came under criticism from sources who argued that Vaden was reassigning career appointees and Democrats to jobs in other parts of the country.[15]  He was also criticized for being “intransigent” and hurting morale among Department attorneys.[16] 

Vaden was also implicated in the widely criticized decision by USDA to relocate the Economic Research Service and the National Institute of Food Agriculture to Kansas City.[17]  The decision was criticized for being politically motivated and for forcing workers to quit.[18]  The move was also lambasted by the Department’s Inspector General, who argued that it violated laws requiring congressional approval before spending money to relocate offices.[19]  In response, Vaden justified the decision in a memo, stating:

“USDA is not required to abide by unconstitutional laws.”[20]

Overall Assessment

While nominations to the Court of International Trade are usually non-controversial, Vaden is likely to draw opposition.  Specifically, Vaden is likely to draw questions regarding his tenure at the Department of Agriculture, his contention that the Department can ignore laws it deems to be unconstitutional, as well as his participation in lawsuits defending voter restrictions.  He is also likely to face questions about his youth and his lack of experience litigating issues of International Trade or appearing in court.  Vaden has not practiced before the Court of International Trade at all, and, by his own account, has only argued in court once in his entire career.  As such, at a time when Trump nominees are drawing criticism for their lack of experience, Vaden will likely face the same scrutiny.


[1] Press Release, Office of Sen. Lamar Alexander, Tennessean Stephen Vaden Has The “Hands-On Experience’ To Be Agriculture Department General Counsel (Nov. 9, 2017).

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

[3] See id. at 2.

[4] Id. at 2.

[5] Id.

[6] See Alexander, supra n. 1.

[7] Lead Lawyer for Agriculture Comes Under Democratic Fire, Congressional Quarterly News, Nov. 9, 2017.

[8] Tennessee Attorney Confirmed as USDA’s General Counsel, A.P. State & Local, Nov. 28, 2018.

[9] See id. at 25.

[10] See Vaden, supra n. 1 at 10.

[12] Thomas Kaplan, Yale Law, Newly Defeated, Allows Military Recruiters, N.Y. Times, Oct. 1, 2007.

[13] 741 F.3d 1309 (D.C. Cir. 2014).

[14] See Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).

[15] Morning Agriculture, Vaden Advances, So Does Related Controversy, Politico, Dec. 12, 2017, https://www.politico.com/newsletters/morning-agriculture/2017/12/12/vaden-advances-so-does-related-controversy-047706.  

[16] Vaden Causes Concern Within USDA, The Frontrunner, Dec. 5, 2017.

[17] Gregory Wallace, USDA May Have Violated Law in Controversial Office Relocation Decision, Inspector General Says, CNN, Aug. 6, 2019.

[18] See id.

[19] See id.

[20] Id. (quoting Stephen Vaden).

Daniel Epstein – Nominee to the U.S. Court of Federal Claims

Dan Epstein, Special Assistant to President Trump, and a former anti-regulatory litigator, is the latest nominee to the Court of Federal Claims (“CFFC”).

Background

David Zachary Epstein was born in Houston in 1983.  Epstein received a B.A. from Kenyon College in 2005 and a J.D. from Emory University School of Law in 2008.[1]  After law school, Epstein joined the Charles Koch Foundation as a legal reform associate.[2]  He then joined the House Committee on Oversight & Government Reform in 2009, working under Rep. Darrell Issa (R-CA).[3]

In 2011, Epstein founded the Cause of Action, Institute, a nonprofit focusing on promoting conservative economic and regulatory positions.[4]  In 2016, he joined the Trump transition team as an Attorney.  After the Trump Administration came into office, he joined the White House as Associate Counsel, getting promoted to Senior Associate Counsel and Special Assistant to the President in 2018.[5] 

History of the Seat

Epstein has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Epstein was nominated for opened up on October 22, 2013, with the with the retirement of Judge Edward Damich.  On May 21, 2014, Armando Bonilla, an Associate Deputy Attorney General was nominated for the vacancy by President Obama.[6]  Bonilla and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[7]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.[8]

In May 2017, Epstein was contacted by the White House to gauge his interest in an appointment to the CFC.  Epstein was nominated on June 24, 2019.

Legal Activity

Epstein’s primary litigation experience has been in his role at Cause of Action, in which he litigated cases, generally against administrative regulations or challenging administrative dispositions.  Epstein notably handled a number of cases seeking to use the Freedom of Information Act (FOIA) to test the boundaries of disclosure.  For example, in one case, Epstein successfully obtained a ruling that taxpayer confidentiality principles could not shield public disclosure of unauthorized inspections or disclosures by government officials.[9]

Among other matters, Epstein represented businesses challenging Federal Trade Commission (“FTC”) enforcement actions,[10] the provision of subsidies to vehicle companies,[11] and the authority of the Consumer Product Safety Commission (“CPSC”) to hold the CEO of Buckyballs personally liable for injuries caused by the magnets he produced.[12] 

Writings

Epstein has frequently written on the law, generally outlining an anti-regulatory perspective.[13]  However, he has also been critical of perceived cases of lack of transparency or corruption in government.  For example, in a 2014 article, Epstein criticizes the use of “fiscal sponsorship” among environmental nonprofits, suggesting that the common practice “not only allows donors to hide from the public, but to hide from the IRS as well…”[14]  Similarly, in a 2015 article, Epstein criticizes the Department of Energy for giving green energy subsidies to Tesla and Fisker while not granting them to other companies he represents.[15]  He concludes by arguing, not that the playing field for subsidies be level, but rather that such subsidy programs should be eliminated entirely as “the capacity for corruption is immense – and inevitable.”[16]

Political Activity

As noted above, Epstein was a part of the Trump transition team in 2016.  In addition, he also was a volunteer for the Trump campaign as well as one for the Romney campaign in 2012.[17]

Overall Assessment

Like many of Trump’s nominees to the CFC, Epstein is very young (only 36).  Additionally, Epstein does not seem to have litigated significantly within the CFC.  However, Epstein’s focus on government accountability and transparency are relevant to a court handling claims against the federal government.  In weighing Epstein’s nomination, senators may question him to ensure that he would follow the law and facts in evaluating claims rather than focus on policy considerations relating to government transparency.


[1]  Sen. Comm. on the Judiciary, 115th Cong., David Z. Epstein: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See id.

[6] Press Release, White House, Presidential Nominations Sent to the Senate (May 21, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[7] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[8] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[9] See Cause of Action v. Treasury Inspector Gen. for Tax Admin., 70 F. Supp. 3d 45 (D.D.C. 2014).

[10] In the Matter of LabMD, Inc., No. 9357 (Nov. 13, 2015).

[11] See XP Vehicles, Inc. v. Dep’t of Energy, 118 F. Supp. 3d 38 (D.D.C. 2015).

[12] Zucker v. CPSC, No. 13-3355 (D. Md. 2013).

[13] See, e.g., Dan Epstein, Hounded Out of Business By Regulators, Wall St. Journal, Nov. 19, 2015, https://www.wsj.com/articles/hounded-out-of-business-by-regulators-1447978301.  

[14] Dan Epstein, The Dark Money Complex, Roll Call, Aug. 13, 2014, https://www.rollcall.com/news/the_dark_money_complex_commentary-235693-1.html.  

[15] Dan Epstein, A Case Study in Pay-to-Play Cronyism, The Hill, Aug. 4, 2015, https://thehill.com/blogs/congress-blog/the-administration/250109-a-case-study-in-pay-to-play-cronyism.  

[16] Id.

[17] See Epstein, supra n.1 at 32-33.

Eleni Roumel – Nominee to the U.S. Court of Federal Claims

As noted before, the U.S. Court of Federal Claims (CFC) is facing a vacancy crisis.  One of the factors exacerbating the situation is the Trump Administration’s slow pace in nominations and their predilection for naming young attorneys with little background in the court’s specialized docket.  The nomination of Eleni Roumel follows that pattern.

Background

Eleni Maria Roumel was born in Washington D.C. in 1974.  She received a B.A. from Wake Forest University in 1996, and a joint J.D. and M.B.A. from Tulane in 2000.[1]  After graduation, Roumel joined Skadden Arps’ New York City Office.[2]

After two years at Skadden, Roumel completed a two-year clerkship for Judge William Pauley on the U.S. District Court for the Southern District of New York, and then joined the New York office of Wilmer Hale.  In 2006, she moved to the Charleston, SC office of Nelson Mullins Riley & Scarborough LLP, where she was a Partner.[3] 

In 2012, Roumel returned to D.C. to be Assistant General Counsel to the U.S. House of Representatives, then under Republican control.[4]  In 2018, she left to join Vice President Mike Pence’s Office as Deputy Counsel.[5]

History of the Seat

Roumel has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Roumel was nominated for opened up on July 14, 2018, with the conclusion of the term of Judge Mary Ellen Coster Williams.

In November 2018, Roumel interviewed with the White House regarding a vacancy on the CFC.  She was preliminarily selected as a nominee in January 2019 and nominated on June 24, 2019.[6] 

Legal Experience

For the past year, Roumel has served as Deputy Counsel to Pence, providing legal advice to his office.  However, she has prior experience working for the U.S. House of Representatives and in private practice.

U.S. House of Representatives

From 2012 to 2018, Roumel was Assistant General Counsel in the U.S. House of Representatives.  In this role, Roumel was notably involved in the House’s lawsuit to prevent the Obama Administration from making payments to insurance companies under the Affordable Care Act.[7]  The case eventually ended in a settlement after a ruling in favor of the House’s position.[8]  She also represented Rep. Eric Cantor in seeking to block subpoenas in a terrorism financing case involving the Bank of China and the Israeli government.[9]

Private Practice

From 2004 to 2012, Roumel worked in private practice in New York City and Charleston, primarily working in intellectual property and commercial litigation.  For example, Roumel represented a candle manufacturer in a breach of contract action against grocery store chains Supervalu and New Albertson’s Inc.[10]  However, she also handled some pro bono cases during this time.  For example, she represented a state prisoner who had been seriously injured in a beating by a prison guard.[11]

Overall Assessment

In reviewing another CFC nominee, Richard Hertling, we said the following:

“Ultimately, the more interesting fact about Roumel is the fact that he was nominated for the CFC rather than the U.S. District Court for the District of Columbia.  Given his intense legislative experience, the latter would seem like a better perch for such a legislative expert.”

The same analysis applies to Roumel, whose expertise does not, at immediate glance, suggest appointment to a court primarily known for handling government contract issues and vaccine injury claims.  Nonetheless, her experience and lawyerly ability is reflected through the high level positions she has enjoyed, and, while she is unlikely to attract much Democratic support, she will likely be confirmed in due course.


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

[2] Id. at 2.

[3] Id.

[4] See id.

[5] See Statement of Speaker Paul Ryan, Apr. 5, 2018.

[6] See Roumel, supra n. 1 at 29-30.

[7] See Jonathan Turley, Federal Court to Hear Historic Challenge Over Separation of Powers, Res Ipsa Loquitor, May 27, 2015.

[8] See Mary Ellen McIntire, House, Administration Settle Lawsuit Over Health Law Payments, RollCall, May 16, 2018, https://www.rollcall.com/news/politics/house-administration-settle-lawsuit-health-law-payments.  

[9] Yonah Jeremy Bob, Eric Cantor Fights Subpoena While Ex-Israeli Agent Pushes to Testify in Bank of China Terror Financing Case, Oct. 2, 2014.

[10] MVP Group Int’l, LLC v. Supervalu, Inc., 2:09-cv-2636 (D.S.C.).

[11] See Orange v. Fielding, 06-cv-2601 (D.S.C.).

Judge Robert Molloy – Nominee to the U.S. District Court of the Virgin Islands

The District Court of the Virgin Islands is a territorial court whose judges serve ten year terms.  Judge Curtis Gomez had his term expire in 2015, but is still sitting on the court due to the failure by Congress and the President to name a successor.  The nomination of Judge Robert Molloy offers the best chance in years for this court to gain a new judge.

Background

Robert Anthony Molloy was born in Christiansted, St. Croix in 1975.  Molloy received his B.S. from Hampton University in 1997, his J.D. from American University Washington College of Law in 2003 and his MBA from American University Kogod School of Business in 2004.[1]  After graduating, Molloy clerked on the Circuit Court of Arlington County and for Judge Raymond Finch on the U.S. District Court of the Virgin Islands.[2]

After his clerkships, Molloy worked as an Assistant Attorney General in the Office of Collective Bargaining with the Virgin Islands Government.[3]  In 2013, he was appointed by Gov. John de Jongh Jr. to the Superior Court of the Virgin Islands, where he currently serves.[4]

History of the Seat

The District Court of the Virgin Islands has two judgeships authorized.  Judge Jose Gomez, who was appointed by President Bush, saw his appointment expire in 2015.[5]  The Obama Administration declined to reappoint Gomez, but also refused to make another appointment, presumably due to unwillingness to expend energy on a pick likely to be blocked by the Republican Senate.[6]

In June 2018, Molloy was contacted by Anthony Ciolli, the President of the Virgin Islands Bar Association, to gauge his interest in the judgeship.[7]  After Molloy confirmed his interest, his nomination was sent to the White House by Congresswoman Stacey Plaskett, a Democrat.[8]  Molloy was nominated on May 29, 2019.

Political Activity

As a prosecutor in 2008, Molloy donated in support of the campaign of President Obama, giving $658.[9] 

Legal Experience

Molloy has spent his pre-bench legal career handling labor and employment matters for the Territorial Government as an Assistant Attorney General.  During his career, Molloy has tried 83 cases to verdict in bench trials but has not handled any jury trials.[10]  Notably, Molloy was part of the defense team that successfully argued that a Virgin Islands statute instituting an eight percent salary reduction on many territorial employees did not violate the Constitution.[11]

Jurisprudence

Molloy has served on the Superior Court of the Virgin Islands since 2013, where he has heard criminal, civil, and administrative cases.[12]  Molloy has also sat by designation with the Supreme Court of the Virgin Islands 10 times and has also sat with the Appellate Division of the District Court of the Virgin Islands.[13]  According to Molloy, he has presided over nineteen cases that proceeded to verdict or judgment, including thirteen jury trials.[14]

Among the most notable cases he handled, Molloy oversaw the first prosecution in the Virgin Islands for a prison guard having sexual relations with an inmate.[15]  In the case, Molloy upheld the statute criminalizing such conduct and held that it was not unconstitutionally vague.[16]  In another case, Molloy denied a motion to dismiss a class action based on a fungus infestation of plaintiffs’ property, holding that such an action was not preempted by federal law.[17]

Overall Assessment

Molloy has accomplished much in his relatively short legal career.  Despite not even being 45, Molloy has already served the better part of a decade on the territorial bench and is poised for elevation to the federal bench.  Given his political contributors and his backers, Molloy is likely a Democrat.  Nevertheless, the political cost to the Administration for nominating a Democrat is the least when it comes to a territorial court.  As such, Molloy’s expected confirmation should allow Gomez, who has now served four years past the end of his term, a chance to take a break and step down.


[1] Sen. Comm. on the Judiciary, 115th Cong., Robert A. Molloy: Questionnaire for Judicial Nominees 1.

[2] Id. at 1-2.

[3] See id. at 2.

[4] Id.

[5] Bernetia Atkins, Undercurrents: At District Court, They Also Serve Who Wait – For Replacement, The St. Thomas Source, Feb. 29, 2016, https://stthomassource.com/content/2016/02/29/undercurrents-at-district-court-they-also-serve-who-wait-for-replacement/.  

[6] See id.

[7] See Molloy, supra n. 1 at 52-53.

[8] Press Release, Congresswoman Stacey Plaskett’s Statement Regarding The Appointment Of Judge Robert Molloy To The United States District Court Of The Virgin Islands (May 29, 2019) (on file at https://plaskett.house.gov/news/documentsingle.aspx?DocumentID=3517).  

[10] See Molloy, supra n. 1 at 40-41.

[11] United Steelworkers, et al. v. Gov’t of the Virgin Islands, 66 V.I. 631 (2012), rev’d, 842 F.3d 201 (3d Cir. 2015).

[12] See Molloy, supra n. 1 at 9-10.

[13] See id. at 10.

[14] Id.

[15] People of the Virgin Islands v. Whyte, Super. Ct. Crim. No. SX-13-CR-026, 62 V.I. 95 (Super Ct. 2015).

[16] See id. 

[17] Alleyne, et al.v. Diageo USVI, Inc., et al., 63 V.I. 384 (Super Ct. 2015).

Judge David Tapp – Nominee to the U.S. Court of Federal Claims

Judge David Tapp is a longstanding state judge in Kentucky.  He has now been tapped, not for a seat on the federal bench in Kentucky (which has no vacancies currently) but, rather, to a vacancy on the U.S. Court of Federal Claims (CFC), a specialized court based in Washington D.C.

Background

A native Kentuckyian, David Austin Tapp was born in Lexington in 1962.  Tapp received a B.A. from Morehead State University in 1983 and then joined the Rowan County Sheriff’s Office as a Deputy Sheriff.[1]  After stints as a loss prevention officer and as a social worker, Tapp received an M.A. from Chaminade University of Honolulu and a J.D. from the University of Louisville Brandeis School of Law.[2]

After law school, Tapp became a state prosecutor in Somerset, Kentucky.[3]  Two years later, he started his own law practice, working in criminal defense.  He held that position until he was elected to the state bench in 2004 (he was appointed to the Circuit Court by Governor Ernie Fletcher in 2005.)[4] 

History of the Seat

Tapp has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Tapp was nominated for opened up on October 21, 2013, with the with the retirement of Judge Lynn Bush.  On April 10, 2014, Thomas Halkowski, a Principal in the Delaware office of Fish & Richardson, P.C. was nominated for the vacancy by President Obama.[5]  Halkowski and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously.  However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[6]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.[7]

The Trump Administration nominated Stephen Schwartz on June 7, 2017 to fill this vacancy. However, Schwartz’s nomination ran into trouble due to concerns about his youth and lack of experience.[8]

For his part, in June 2018, Tapp was contacted by Senate Majority Leader Mitch McConnell to gauge his interest in an appointment to the CFC.  Tapp was nominated on March 5, 2019.

Jurisprudence

Tapp has been a circuit court judge in Kentucky since 2005, a trial court with some appellate jurisdiction over the lower level Kentucky District Court.  In his fourteen years on the bench, Tapp has overseen almost 20,000 cases, including approximately 225 jury trials.[9]

Among his most important rulings, in 2008, Tapp issued a restraining order barring the release of prisoners under a new Kentucky law allowing for such early release.[10]  The restraining order was prompted by a petition filed by prosecutor Eddy Montgomery, and was criticized by defense attorneys as being motivated by “a lack of political courage to do the right thing.”[11]  The criticism by local defense attorney Robert Norfleet sparked a bar complaint against him, and a subsequent motion by Norfleet to have Tapp recuse himself from all of his cases, noting that Tapp had frequently noted his “hatred” of Norfleet.[12]  Tapp’s injunction was ultimately partially reversed by the Kentucky Supreme Court after being affirmed by the Kentucky Court of Appeals.[13]

Political Activity

In 2018, Tapp ran for a seat on the Kentucky Supreme Court, but ultimately only took 25% of the vote, coming in third behind Kentucky Court of Appeals Judge Debra Hembree Lambert (who ultimately won the election) and fellow circuit judge Dan Ballou.

Overall Assessment

Given Tapp’s long history on the bench, he seems to meet the base level of qualifications needed for a federal appointment.  However, what is unusual is the court that Tapp has been nominated to.  It does not seem that Tapp has practiced extensively before the CFC or that his docket in Kentucky covers the subject matter that the CFC reviews.  As such, senators may question the specific court that Tapp has been tapped for, even if his legal credentials are beyond dispute.


[1]  Sen. Comm. on the Judiciary, 115th Cong., David A. Tapp: Questionnaire for Judicial Nominees 2.

[2] Id. at 1.

[3] Id.

[4] See id.

[5] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[6] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[7] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[9] See Tapp, supra n. 1 at 45.

[10] Heather Pyles, Defense Attorneys Decry Tapp Ruling: Norfleet, Stanziano Respond to Decision to Block Release of Prisoners or Parolees, Commonwealth Journal, Aug. 21, 2008.

[11] See id. (quoting Robert Norfleet).

[12] See Heather Pyles, Attorney, Local Judges at War, Commonwealth Journal, Sept. 20, 2008.

[13] Commonwealth v. Thompson, 300 S.W.3d 152 (Ky. 2010).

Matthew Solomson – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down to just five that are filled.  There are multiple reasons behind the high number of vacancies, including the obstruction of five qualified nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC.  Additionally, three of the nominees the Administration has put forward have withdrawn before confirmation.  In comparison, Matthew Solomson, the latest nominee, looks to have a brighter future.

Background

Matthew Hillel Solomson was born in Hartford, Connecticut in 1974.  Solomson graduated cum laude from Brandeis University in 1995 and received a joint JD/MBA from the University of Maryland Law School/School of Business in 2002.[1]

After graduating law school, Solomson clerked on the CFC for Judge Francis Allegra, and then joined the D.C. office of Arnold & Porter as a Government Contracts Associate, where he stayed until 2007 (barring a year at Skadden Arps doing patent work).  In 2007, Solomson joined the Commercial Litigation Branch of the Department of Justice.[2]

In 2011, Solomson joined Sidley Austin as Counsel and a year later moved to Booz Allen Hamilton as Associate General Counsel.  Since 2015, Solomson has served as Chief Legal Officer of Federal Governmental Solutions at Anthem, Inc., a health insurance company.[3]

History of the Seat

Solomson has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government.  Judges to the CFC are appointed for 15-year terms, and can be reappointed.  The seat Solomson was nominated for opened up on October 21, 2013, with the retirement of Judge Emily Hewitt.  On May 21, 2014, President Obama nominated Patricia McCarthy, a lawyer with the U.S. Department of Justice, to fill the vacancy.[4]  While McCarthy and four other nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[5]  Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any more vacancies on the Court, leaving six of the sixteen judgeships vacant by the end of the 114th Congress.[6]

In late 2016, Solomson submitted his resume to the Presidential Transition team, expressing his interest in an appointment to the CFC.[7]  Solomson interviewed with the White House in April 2017, and was selected for further vetting in April 2018.[8]  Solomson was officially nominated on March 5, 2019.

Legal Experience

Solomson’s specialty is government contracts law.  Throughout his career, Solomson has focused on procurements, regulatory compliance, and other areas involved in government contracts at Sidley Austin, Booz Allen, and Anthem.  Over his career, Solomson has tried four cases, including two as counsel of record.[9]

Among his more prominent cases, Solomson successfully argued before the Federal Circuit that a federal employee’s due process rights were violated when he was removed without having an opportunity to challenge ex parte communications against him.[10]

Political Activity

Solomson has a limited political history, having donated $1000 to then candidate Mitt Romney in 2012.[11]

Overall Assessment

Given Solomson’s focus on government contracts law, and his lack of a paper trail on controversial issues, he is unlikely to draw the same degree of controversy as other CFC nominees.  However, given the general lack of emphasis on CFC nominations under the Administration and the Senate, I wouldn’t expect a quick confirmation for Solomson.


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

[2] Id. at 2.

[3] See id.

[4] Press Release, White House, Presidential Nominations Sent to the Senate (May 21, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[5] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[6] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[7] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Solomson: Questionnaire for Judicial Nominees 29-30.

[8] See id.

[9] Id. at 17.

[10] Young v. Dep’t of Hous. and Urban Dev., 706 F.3d 1372 (Fed. Cir. 2013).

M. Miller Baker – Nominee for the U.S. Court of International Trade

As noted previously, nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, generally do not draw the level of rancor that other judicial nominations do.  However, M. Miller Baker, a conservative attorney with a history of lawsuits on election law and voting law, may find himself an exception to that rule.

Background

Maurice Miller Baker was born in Houma, Louisiana, in 1962.  Baker did not graduate from college, although he attended Nicholls State University and Louisiana State University, and was accepted to Tulane University Law School in 1981 under an accelerated program.[1]  After graduating, Baker clerked for Judge John M. Duhe on the U.S. District Court for the Western District of Louisiana, and then for Judge Thomas Gee on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkships, Baker joined the Department of Justice, working in the Office of Legal Policy and the Civil Rights Division before leaving in 1989 to go into private practice.[3]  In 1991, Baker joined the staff of U.S. Sen. Orrin Hatch on the Senate Judiciary Committee.[4]

In 1993, Baker joined Carr Goodson Warner P.C. as an Associate and became a Partner in 1996.  In 2000, he moved laterally to McDermott Will & Emery LLP, where he serves as a Partner today.

In 2006, Baker was one of five people recommended by Virginia Senators to serve on the U.S. District Court for the Eastern District of Virginia (fellow Trump nominee Rossie Alston was another name on the list).[5]  The Bush Administration selected U.S. Magistrate Judge Liam O’Grady instead.

History of the Seat

Baker has been nominated for a seat vacated by Judge Donald Pogue, an appointee of President Bill Clinton, on July 1, 2014.  President Obama nominated Jeanne Davidson to fill the vacancy on July 30, 2015, but Davidson was never processed by the Republican-controlled Senate.  While Davidson was supported by a unanimous Senate Judiciary Committee vote, she never received a final confirmation on the Senate floor.

In April 2017, Baker was contacted by the White House to discuss a judicial appointment.[6]  Baker interviewed with the Department of Justice in September 2017 and was nominated on June 18, 2018.

Political Activity

Baker has a long political history, including his run as a Republican against Virginia State Senator George Barker in 2011.[7]  In the campaign, Baker highlighted his Federalist Society membership and ran as a “proven conservative,” running on lowering taxes and improving teacher pay.[8]  Ultimately, Baker lost, getting 47% of the vote.[9]

Other than his own run, Baker has volunteered and provided legal services to several Republican campaigns, including those of Ken Cuccinelli, Mark Obenshain, George Allen, David Vitter, Orrin Hatch, John Ashcroft, and James Gilmore.[10]  In his youth, Baker was a Democrat, having volunteered for the Carter-Mondale campaign in 1980 and serving as a member of the Young Democrats of Louisiana.[11]

Legal Experience

Baker has had a fairly distinguished legal career, including arguing three cases before the U.S. Supreme Court.  In his first case before the Court, Baker successfully won a unanimous decision that Louisiana’s open primary law violated federal statutes by allowing members of Congress to be chosen up to a month before the uniform election day.[12]  In the second, Beck once again won unanimously, with the Supreme Court finding that his client, a bankruptcy trustee, did not breach his fiduciary duty to his clients.[13]  In the third, Baker represented Arthur Andersen LLP in arguing that the company could seek to stay a federal lawsuit against it pending arbitration proceedings even where it was not a signatory to the arbitration agreement.[14]  The Supreme Court agreed in a 6-3 opinion.[15]

In addition to his Supreme Court work, Baker has been particularly active in suits regarding voting regulations.  For example, Baker represented Concerned Women of America, a conservative group, in seeking to distribute campaign materials without registering as a political committee.[16]  Baker also led an unsuccessful challenge to Oregon’s vote by mail process,[17] and to Texas laws permitting early voting.[18]

Overall Assessment

While nominations to the Court of International Trade are usually non-controversial, Baker’s is likely to draw opposition.  Specifically, Baker is likely to be challenged regarding the voting lawsuits he has brought, and specifically the contention that early voting and that vote by mail violates federal law.  Given the ubiquity of early voting (to a much greater degree than existed at the time of the suit), most reasonable observers would agree that the practice is both legal and constitutional.  As such, senators will most likely probe Baker’s views on the subject.

At the same time, Baker is being nominated to a specialized court.  While he may have the opportunity to “sit by designation”, on the Court of International Trade, Baker’s views on voting are unlikely to play much role.  As such, Democrats may choose to save their fire and focus their attention on nominees likely to cause more damage.

Note: A previous version of this article incorrectly stated that judges on the Court of International Trade do not have lifetime tenure. They do.


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

[2] See id. at 3.

[3] Id. at 2.

[4] Id.

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

[6] See id. at 48-49.

[7] Christy Goodman, Voters to See Redrawn Election Districts, Wash. Post, May 12, 2011.

[8] State Senate District 39, Wash. Post, Aug. 18, 2011.

[9] See Baker, supra n. 1 at 21-22.

[10] Id. at 22.

[11] Id.

[12] Foster v. Love, 522 U.S. 67 (1997).

[13] Beck v. PACE Int’l Union, 551 U.S. 96 (2006).

[14] Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009).

[15] See id.

[16] Rajiv Chandrasekharan, Conservatives Sue Va. and Democrats; Groups Seek Protection For Election Material, Wash. Post, Oct. 10, 1995.

[17] See Voting Integrity Project et al. v. Bomer, 61 F. Supp. 2d 600 (S.D. Tex. 1999).

[18] Voting Integrity Project et al. v. Keisling, 1999 U.S. Dist. LEXIS 22727 (D. Ore. Mar. 22, 1999).