Carolyn Lerner – Nominee to the U.S. Court of Federal Claims

Carolyn Lerner, who currently serves as Chief Mediator for the Washington D.C. federal court system, has built up a significant portfolio of government service and litigation experience, including six years as the top whistleblower advocate in the nation. She has now been nominated for a seat on the U.S. Court of Federal Claims.

Background

Born on January 13, 1965 in Detroit, Carolyn N. Lerner graduated from the University of Michigan in 1986 with a Bachelor of General Studies, and earned her J.D. from the New York University School of Law in 1989. Upon graduating from law school, she clerked for Judge Julian Cook of the U.S. District Court for the Eastern District of Michigan before joining Kator, Scott, Heller & Huron as a litigation attorney. In 1996, Lerner helped found the civil rights firm Heller, Huron, Chertkof, Lerner, Simon & Salzman. In 2011, Lerner was confirmed to head the Office of Special Counsel, where served until 2017. Since 2017, Lerner has been the Chief Mediator for the U.S. Courts of the D.C. Circuit.

History of the seat

Lerner 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 Lerner was nominated for opened up when Judge Margaret Sweeney’s term expired on October 24, 2020. The Trump Administration nominated Stephen Kubiatowski to fill this vacancy, but his nomination was not confirmed before the end of the Administration.

Legal Career

For the first twenty years of her legal career, Lerner primarily practiced employment and whistleblower protection law. For example, she represented Larry Bryant, a civilian employee in the Department of the Army who was blocked from publishing letters supportive of allowing homosexuals to serve openly in the military. See Bryant v. Secretary of the Army, 862 F. Supp. 574 (D.D.C. 1994). She also represented Melodi Navab-Safavi, a contractor who was terminated after participating in a music video protesting the Iraq War. Navab-Safavi v. Broad. Bd., 650 F. Supp. 2d 40 (D.D.C. 2009) (affirmed by 637 F.3d 311 (D.C. Cir. 2011)).

From 2011 to 2017, Lerner headed the United States Office of Special Counsel after being unanimously confirmed by the Senate for the role. Among other roles, Lerner served as the primary advocate for government whistleblowers, working to ensure that they were safe from retaliation and investigating allegations of misconduct.

Lerner’s tenure as Special Counsel was met with widespread support for her aggressive advocacy on behalf of whistleblowers. See, e.g., Press Release, Office of Rep. Rod Blum, Blum Leads Effort to Retain Special Counsel Lerner (Feb. 10, 2017). See also Press Release, Washington Accountability Project Organization, Trump Withdraws Reappointment Nomination of Popular Whistleblower Advocate (Mar. 24, 2017). For example, in 2012, Lerner issued a directive finding that the FDA broke the law in monitoring the personal emails of whistleblowers, and urging agencies to review their electronic surveillance practices. See Johnathan Rickman, Lawyers for FDA Whistleblowers Tie Surveillance Guidance to Email Flap, Washington Drug Letter, June 25, 2012.

One of Lerner’s most prominent investigations involved alleged abuses of overtime at the Department of Homeland Security. See Jennifer Scholtes, DHS Announces Suspension of Overtime Privileges Ahead of Hearing, Congressional Quarterly Homeland Security, Jan. 28, 2014. Lerner also investigated allegations that the remains of war dead were mishandled at Dover Air Force Base. See Mackenzie Weinger, Probe: War Dead Mishandled at Dover, Politico, Nov. 8, 2011.

As Special Counsel, Lerner was also charged with enforcing the Hatch Act, which bars political activity by federal employees while on duty. In that role, Lerner ruled, in response to complaints, that the White House Office of Political Strategy and Outreach did not appear to have violated the Hatch Act. See Lauren French, W.H. Cleared of Hatch Act Violations, Politico, July 24, 2014. In contrast, Lerner found that HUD Secretary Julian Castro violated the Hatch Act by promoting Hillary Clinton’s candidacy during a TV interview. Joan Lowy, Gov’t Watchdog: HUD Secretary Violates Hatch Act, A.P. State & Local, July 18, 2016.

Speeches and Writings

Throughout her career, Lerner has commented on developments in the law. For example, in the 1990s, she encouraged companies to develop usage guidelines for company emails, noting that such emails were frequently relevant to employment litigation. See Loretta Prencipe, E-mail: The Litigation Time Bomb; Your E-Mail Can Become Evidence, So Craft a Usage Policy That You Can Stand Behind, Network World, Apr. 8, 1997.

As Special Counsel, Lerner also spoke out in favor of reform of the Hatch Act, arguing that the law is difficult to interpret and apply to modern technologies. See Josh Gerstein, Hatch Act Enforcer Seeks Reforms, Politico, Oct. 6, 2011. In a New York Times op-ed, Lerner urged Congress to rewrite the law to allow candidates tied to negligence amounts of federal funds to run for state and local office. See Carolyn Lerner, A Law Misused for Political Ends, N.Y. Times, Oct. 31, 2011. She also urged Congress to allow more flexibilities in penalties offered under the Act, noting that the standard of termination often leads to agencies refusing to report violations in an effort to avoid the harsh penalty. See Gerstein.

Overall Assessment

The last time Lerner came before the Senate, she received bipartisan support on her way to a smooth confirmation. Given the widespread accolades she has received for her service in the Office of the Special Counsel and extensive experience with the law, it is likely that she will be confirmed the Court of Federal Claims with similar bipartisan support.

Judge Lydia Griggsby – Nominee to the U.S. District Court for the District of Maryland

Judge Lydia Griggsby, nominated to be a federal trial judge in Maryland, should have a short learning curve for her new role, given that she has served as a trial judge on the specialized Court of Federal Claims for the last seven years.

Background

A native Marylander, Lydia Kay Griggsby was born on January 16, 1968 in Baltimore.  Griggsby received a B.A. from the University of Pennsylvania in 1990, and then obtained a J.D. from the Georgetown University Law Center in 1993.[1]

After graduation, Griggsby worked for the Baltimore office of DLA Piper for two years before joining the U.S. Department of Justice as a trial attorney. [2]  In 1998, Griggsby became a federal prosecutor with the U.S. Attorney’s Office for the District of Columbia.

In 2004, Griggsby left to become Counsel for the Senate Committee on Ethics.  In 2006, she became Counsel to Sen. Patrick Leahy at the Senate Judiciary Committee, working on privacy and technology issues.[3]

In 2014, Griggsby was nominated by President Obama to be a Judge on the U.S. Court of Federal Claims, replacing Judge Francis Allegra.  Griggsby was confirmed by voice vote on December 5, 2014, and has served in that position ever since.

History of the Seat

Griggsby has been nominated for a seat on the U.S. District Court for the District of Maryland.  While the exact seat has not been specified, Griggsby will likely fill the seat opened by Judge Ellen Lipton Hollander’s move to senior status upon the confirmation of her successor.

Legal Career

Griggsby has held a number of positions throughout her career, including work in private practice, for the federal government, and as a staffer for the U.S. Senate.  Interestingly, by her own description, most of these roles did not involve Griggsby working on litigation, and Griggsby did not actively try any cases except on the pleadings.[4]

Nonetheless, Griggsby has worked on a number of complex cases.  For example, Griggsby worked as part of the federal government in negotiating a consent decree requiring better environmental protections in vehicles produced by Toyota. [5]  She also defended the Bureau of Prisons against a constitutional lawsuit challenging regulations governing the inmates’ use of mail.[6] 

Political Activity

Griggsby has a fairly short political history, consisting primarily of two stints conducting voter protection for the Obama campaigns in 2008 and 2012.[7]

Jurisprudence 

Griggsby has served as a U.S. Court of Federal Claims judge since her appointment in 2014.  In this role, she adjudicates suits involving monetary claims against the federal government as well as specialized cases, including vaccine injury suits.  Among her notable rulings on the Court of Federal Claims, Griggsby ruled, in a decision upheld by the Federal Circuit, that a protester to the award of a government contract did not have standing to file a challenge if the protester was unable to perform the contract.[8]  

Overall Assessment

Seven years ago, Griggsby was confirmed unanimously for a seat on the Court of Federal Claims.  Given the lack of controversy in her background, there is little reason to think that her confirmation to the District of Maryland will be too different.

[1]See Sen. Comm. on the Judiciary, 113rd Cong., Lydia Griggsby: Questionnaire for Judicial Nominees 1.

[2]Id. at 2.

[3] See id.

[4] Id. at 14-15.

[5]See United States v. Toyota Motor Corp., No. 99-018888 (D.D.C. July 1, 2003).

[6] McCain v. Reno, 98 F. Supp. 2d 5 (D.D.C. 2000).

[7] See Griggsby, supra n. 1 at 11.

[8] See Stuart Turner and Nathaniel Castellano, Fed. Circ. Ruling Highlights Bid Protester Standing Issues, Mondaq, Sept. 28, 2018.

Stephanie L. Haines – Nominee to the U.S. District Court for the Western District of Pennsylvania

A prosecutor with a relatively apolitical background, Stephanie Haines looks poised for a comfortable confirmation to the federal bench in Pennsylvania.

Background

A Western Pennsylvania native, Haines was born in Johnstown in 1969.[1]  Haines attended Juniata College in Huntingdon, Pa. and received a B.A. degree in 1992, subsequently getting a law degree from Ohio Northern University.[2]

After graduating, Haines clerked for Judge Eugene Fike in Somerset, Pa. and then joined the U.S. Army, working in various legal roles, including as a Legal Assistance Attorney, a Prosecutor, and an Appellate Defense Attorney.[3]  Since 2005, Haines has been a Judge Advocate with the West Virginia National Guard.

In 2002, Haines became a federal prosecutor in West Virginia and, since 2007, has served as a federal prosecutor in Johnstown, Pennsylvania (the sole one since 2018).[4]

History of the Seat

The seat Haines has been nominated for opened on November 24, 2017, with the move to senior status of Judge David Cercone.  In March 2017, Haines applied for a federal judgeship with the application committee set up by Pennsylvania’s U.S. Senators Bob Casey (D-PA) and Pat Toomey (R-PA).[5]  While the panel recommended Haines, no further action was taken until July 31, 2018, when Toomey interviewed Haines and her name was passed to the White House.[6]

Haines was officially nominated on March 5, 2019.

Legal Experience

Haines has practiced law for over twenty years, working in one of two capacities: as a military lawyer; and as a federal prosecutor.  In the former position, Haines represented service members in assisting with estate planning, family law, and other matters, as well as prosecuting and defending soldiers in military courts.[7]  Since 2002, Haines has represented the U.S. government as a federal prosecutor, first in West Virginia and, since 2007, in Pennsylvania.  During this time, Haines tried approximately 40 cases.[8]

Among the most notable cases Haines handled, she prosecuted Rev. Joseph Maurizio, a Catholic priest, charged with sexually exploiting minors during trips to Honduras.[9]  Early in the case, Haines successfully convinced Judge Kim Gibson to reverse the grant of home detention for the defendant.[10]  Maurizio was eventually found guilty in a jury trial of five counts, including those alleging illicit sexual conduct.[11]

Overall Assessment

As a result of close cooperation between Casey and Toomey, Pennsylvania’s district court nominees have generally avoided the partisan rancor that other states have produced.  Haines looks likely to be no different, and, given her background as a prosecutor and her long service record, she is unlikely to draw much controversy.


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

[2] See id.

[3] Id. at 1-2.

[4] Id. at 2.

[5] See id. at 25.

[6] Id.

[7] See id. at 12-13.

[8] See id. at 13-14.

[9] See United States v. Maurizio, Crim. No. 3:14-23 J (W.D. Pa.).

[10] See Paul Pierce, Priest Charged in Sex Case Won’t Be Freed, Pittsburgh Tribune Review, Nov. 15, 2014; see also Paul Pierce, Priest’s Home Detention Irks Prosecutor, Pittsburgh Tribune Review, Nov. 7, 2014.

[11] Paul Pierce, Somerset County Priest Found Guilty, Pittsburgh Tribune Review, Sept. 23, 2015.

Daniel P. Collins – Nominee for the U.S. Court of Appeals for the Ninth Circuit

Longtime appellate attorney and former Scalia clerk Dan Collins is one of three California nominees to the Ninth Circuit who face the joint opposition of home state senators Dianne Feinstein and Kamala Harris.  His nomination moved out of the Senate Judiciary Committee on a party-line vote despite this opposition.

Background

Daniel Paul Collins was born in Brooklyn in 1963.  Collins received an A.B. from Harvard in 1985 and a J.D. from the Stanford Law School in 1988.[1]  After graduating from law school, Collins clerked for Judge Dorothy Nelson on the U.S. Court of Appeals for the Ninth Circuit and then spent two years at the Department of Justice Office of Legal Counsel.  Collins then clerked for Justice Antonin Scalia on the U.S. Supreme Court, clerking with Judge Jeffrey Sutton of the Sixth Circuit and conservative lawyer Ed Whelan.[2][3]

After his clerkships, Collins became a federal prosecutor in the Central District of California, leaving in 1996 to join the Los Angeles Office of Munger, Tolles & Olson LLP.[4]  In 2001, Collins left Munger to work as Associate Deputy Attorney General at the U.S. Department of Justice.[5]  Collins rejoined Munger in 2003 and has served as a Partner since.

History of the Seat

Collins has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 11, 2015 when Judge Harry Pregerson moved to senior status.  On February 25, 2016, President Obama nominate U.S. District Judge Lucy Koh to fill the vacancy.  Even though the Senate was controlled by Republicans, Koh received a favorable reception before the Senate Judiciary Committee and was approved 13-7 on September 15, 2016.  However, she was blocked from a final floor vote by Senate Majority Leader Mitch McConnell and never confirmed.

In March 2017, Collins was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[6]  In late 2017 and early 2018, Collins interviewed with Advisory Committees set up by California’s Democratic Senators.[7]  Collins’ nomination was announced in October 2018 and he was renominated on February 6, 2019.

Both of Collins’s home state senators, Sen. Dianne Feinstein and Sen. Kamala Harris, have expressed opposition to Collins’s nomination.

Political Activity & Memberships

Collins has a very active political history, having donated extensively to Republican candidates from 1998 to 2016.[8]  Over this time, Collins has given over $85000 to Republican candidates.[9]  For example, in a single contribution in December 2013, Collins gave $15000 to the National Republican Senatorial Committee.[10]  Similarly, in October 2016, Collins gave $2700 contributions to Republican Senate candidates Marco Rubio, Todd Young, Ron Johnson, and Joe Heck (all except Heck won their elections).[11]

Furthermore, Collins has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1995.[12]

Legal Experience

Collins has primarily worked in two legal postures.  The first is at the government, as a prosecutor from 1992 to 1996 and at the Department of Justice, where he was from 2001 to 2003.  The second is at Munger, Tolles & Olson, where he has spent virtually the rest of his legal career.

Assistant U.S. Attorney

From 1992 to 1996, Collins worked as an Assistant U.S. Attorney with the Central District of California.  Here, Collins primarily handled appeals, while also trying eight jury trials during his tenure.[13]  One of those trials was that of Jeffrey Van Poyck who was convicted of two counts of armed bank robbery and one count of conspiracy (the convictions were upheld on appeal).[14]

Department of Justice

From 2001 to 2003, Collins worked in the Department of Justice, serving as Associate Deputy Attorney General.  In this role, Collins worked on several of the Department’s legislative initiatives, including the drafting and passage of the PROTECT Act of 2003, which increases penalties and authorizes additional law enforcement tools relating to child pornography and sexual abuse.[15]  To this end, Collins testified in Congress in support of much of the language that eventually found its way into the PROTECT Act, specifically noting that such language would not interfere with “First Amendment freedoms.”[16]

Munger Tolles & Olson

Since 2003, Collins has been a Partner in the Los Angeles Office of Munger, Tolles & Olson LLP working in appeals and complex civil litigation.  As a Munger Partner, Collins helped recruit Paul Watford (now a judge on the Ninth Circuit) to the firm.[17]  At the firm, Collins has extensive experience with complex commercial appeals, including representing Occidental Petroleum Corp. against suits alleging complicity in illegal bombings conducted by the Colombian military,[18] defending Jeppesen Data Plan, Inc. against allegations that they transported the plaintiffs to locations where they were tortured,[19] and representing Philip Morris in a suit to successfully strike down Massachusetts regulations restricting cigarette advertising.[20]  Particularly notably, Collins represented a series of oil companies in defending against a suit by native american tribes seeking damages for global warming.[21]

Writings

Collins has frequently written on the law, starting as a law student, when he authored a student note discussing the role of circumstantial evidence and the burden of proof on a decision to grant or deny summary judgment.[22]  In much of his writing, Collins looks back to the original understanding or meaning of a law to decipher its current application, suggesting that Collins would identify as an “originalist.”  For example, in one article, Collins outlines the history of the Alien Tort Statute as a way of understanding its scope.[23]  In another article, Collins argues that the right to a jury trial is innately tied with the accuracy of the outcome, citing the debates over the jury right during the drafting of the Constitution.[24]

Overall Assessment

It is easy to compare Collins with his former Munger colleague Judge Watford.  Both were former Supreme Court clerks (Watford clerked for Justice Ginsburg) and longtime commercial litigators at Munger when nominated for the bench.  As such, some may argue that Collins deserves the bipartisan confirmation that Watford received in 2012.  However, opponents are likely to draw a few distinctions.  First, Watford had built a largely nonideological profile before his nomination, with prominent conservatives confessing that they had no idea what his political views were.  In contrast, Collins is a clearly defined conservative with his writings showing an originalist lean and a long political history.  Second, Watford had the support of his home-state senators, unlike Collins.

On his own merits, Collins obviously has the intellectual capacity and legal ability for the Ninth Circuit.  It remains for senators to decide if his record has demonstrated the requisite level of impartiality needed to be a fair judge as opposed to an advocate.


[1] Sen. Comm. on the Judiciary, 115th Cong., Daniel P. Collins: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Other clerks that year included future federal judges Jeffrey Meyer, Gregory Katsas, and Gregory Maggs.

[4] Id.

[5] Id.

[6] See id. at 63.

[7] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Collins, supra n. 1 at 5.

[13] Id. at 25.

[14] See United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996).

[15] Pub. L. 108-21.

[16] Lyndall Schuster, Regulating Virtual Child Pornography in the Wake of Ashcroft v. Free Speech Coalition, 80 Denv. U.L. Rev. 429, 444 (2002) (citing the Child Obscenity and Pornography Prevention Act of 2002 and the Sex Tourism Prohibition Improvement Act of 2002: Hearing on H.R. 4623 and H.R. 4477 Before the Subcomm. On Crime, Terrorism, and Homeland Sec. of the Comm. on the Judiciary, 107th Cong. (2002) (statement of Associate Deputy Attorney General Daniel P. Collins, on behalf of the Department of Justice)).

[17] Carol J. Williams, Lawyer Tapped For 9th Circuit, Los Angeles Times, Oct. 18, 2011.  

[18] Galvis Mujica v. Occidental Petroleum Corp., 771 F.3d 580 (9th Cir. 2014).

[19] Mohamed v. Jeppesen DataPlan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).

[20] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

[21] Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012).

[22] Daniel P. Collins, Summary Judgment and Circumstantial Evidence, 40 Stan. L. Rev. 491 (January 1988).

[23] Kristin Linsley Myles and Daniel P. Collins, Burdens, the Future of International Human Rights Litigation, 32 Litigation 40 (Spring 2006).

[24] Daniel P. Collins, Juries and the Criminal Justice System: What Role?: Making Juries Better Factfinders, 20 Harv. J.L. & Pub. Pol’y 489 (Winter 1997).

James Wesley Hendrix – Nominee for the U.S. District Court for the Northern District of Texas

James Wesley Hendrix is not even 42 yet, and still has the distinction of having been nominated to the bench by Presidents of two different parties.  After his initial nomination under President Obama stalled, Hendrix has a new opportunity under President Trump.

Background

James Wesley Hendrix was born in Lubbock, TX in 1977.  He attended the University of Chicago, receiving his Bachelor of Arts with Honors in 2000 and a Juris Doctor with High Honors from the University of Texas School of Law in 2003 (alongside fellow Northern District nominee Matthew Kacsmaryk).  After graduating from law school, Hendrix clerked for Judge Patrick Higginbotham on the U.S. Court of Appeals for the Fifth Circuit and then joined the Dallas office of Baker Botts as an associate (again, alongside Kacsmaryk).

In 2007, Hendrix left Baker Botts and joined the U.S. Attorney’s Office for the Northern District of Texas as an Assistant U.S. Attorney (AUSA) (Kacsmaryk would make the same move a year later).  For his part, Hendrix stuck with the office, serving as Chief of the Appellate Division since 2011.

History of the Seat

Hendrix has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas to a seat vacated by Judge Samuel Cummings on December 31, 2014.  On March 15, 2016, Obama, with the approval of Texas Senators John Cornyn and Ted Cruz, nominated U.S. Magistrate Judge E. Scott Frost to fill the vacancy.  Hendrix himself was nominated for a different vacancy on the court.  While both Frost and Hendrix received favorable receptions before the Senate Judiciary Committee, neither was reported out before the end of the Obama Administration.

While Hendrix applied almost immediately for a renomination, he was not initially recommended by Cornyn and Cruz to the Trump Administration.[1]  It was only after Hendrix reapplied in 2018 that Cornyn and Cruz sent his name to the White House.  Nevertheless, Hendrix interviewed with the White House in July 2018 and was nominated on January 17, 2019.[2]

Legal Experience

Hendrix has worked in two primary legal positions in his career: as an associate at Baker Botts; and as a federal prosecutor.  In his initial position at Baker Botts, Hendrix focused on civil litigation, handling wage-and-hour, patent, and real estate litigation.[3]

Since 2007, Hendrix worked as a federal prosecutor in the U.S. Attorney’s Office for the Northern District of Texas.  In this capacity, Hendrix worked primarily with the appellate division, handling over 350 appeals over the course of his career.[4]  Notably, Hendrix argued before the en banc Fifth Circuit that Texas burglary constituted a qualifying offense under the Armed Career Criminal Act, which would trigger enhanced sentencing penalties.[5]  The Fifth Circuit narrowly found against Hendrix’s position on a 8 to 7 vote in an opinion authored by his former boss, Judge Higginbotham.[6]

Overall Assessment

While his career has largely been parallel to that of Kacsmaryk’s, Hendrix is unlikely to share Kacsmaryk’s controversy.  While Kacsmaryk has attracted opposition for his work for the First Liberty Institute, Hendrix has gained respect across the board with his work in the government.  Furthermore, Hendrix’s nomination by the Obama Administration, and the reluctant endorsement by Cornyn and Cruz, suggests that he is not an aggressive conservative, and will likely be confirmed by a bipartisan majority this year.


[1] Sen. Comm. on the Judiciary, 115th Cong., James W. Hendrix: Questionnaire for Judicial Nominees 31.

[2] Id.

[3] Id. at 15.

[4] See id.

[5] See United States v. Herrold, 883 F.3d 517 (5th Cir. 2018).

[6] See id.

Dan Domenico – Nominee for the U.S. District Court for the District of Colorado

A district judgeship is a bit of a consolation prize for Daniel Domenico, who lost out on Neil Gorsuch’s seat on the U.S. Court of Appeals for the Tenth Circuit to Colorado Supreme Court Justice Allison Eid.  Nevertheless, Domenico, who is well-established in Colorado conservative legal circles, is likely to have a smooth confirmation for a trial judgeship.

Background

A native Coloradoan, Daniel Desmond Domenico was born in 1972 in Boulder.  After a brief stint at the University of Colorado, Domenico attended Georgetown University., graduating magna cum laude in 1995.[1]  After graduating, Domenico joined the Bob Dole for President campaign as an Assistant to the Polling Director.  After the campaign, Domenico briefly worked at the Welfare to Work Partnership as a Research Associate.

In 1997, Domenico joined the University of Virginia School of Law.  Domenico graduated Order of the Coif in 2000, and joined the Denver office of Hogan & Hartson.[2]  After three years at Hogan, Domenico left to clerk for the newly appointed Judge Timothy Tymkovich on the U.S. Court of Appeals for the Tenth Circuit.[3]

After his clerkship, Domenico joined the Senate campaign of Rep. John Thune who was challenging Senate Minority Leader Tom Daschle in South Dakota.[4]  After Thune’s successful election, Domenico joined the Department of the Interior as Special Assistant to the Solicitor.[5]

In 2006, Domenico was hired by Colorado Attorney General John Suthers to be Colorado’s Solicitor General, taking the position previously held by Tymkovich and Eid.[6]  Domenico held the position until 2015, when he left to join the firm of Kittredge LLC. as a principal.[7]

History of the Seat

Domenico has been nominated for a vacancy on the U.S. District Court for the District of Colorado.  This seat was opened by Judge Robert Blackburn’s move to senior status on April 12, 2016.  On April 28, 2016, Obama nominated Hogan Lovells partner Regina Rodriguez to fill the vacancy.[8]  Rodriguez had the support of Democratic Senator Michael Bennet and Republican Senator Cory Gardner.[9]  However, despite their support, the Senate Judiciary Committee took no action on Rodriguez’s nomination and it expired at the end of the 114th Congress.

While Domenico had previously applied for the Blackburn seat in 2015, in 2017, he reached out to Gardner’s office to express interest in the Tenth Circuit seat opened with Gorsuch’s elevation to the U.S. Supreme Court.[10]  Domenico also expressed his interest directly to officials at the Department of Justice.[11]  Despite his lobbying, the nomination for the Tenth Circuit went to Colorado Supreme Court Justice Alison Eid, and Domenico was instead nominated for the vacant judgeship on the U.S. District Court.

Legal Experience

Domenico began his legal career at the firm of Hogan & Hartson LLP. (now Hogan Lovells).  At the firm, Domenico handled primarily transactional materials, not appearing in court during his tenure.[12]  After leaving the firm and completing a clerkship for Tymkovich, Domenico worked as Counsel for Thune’s campaign, again handling compliance and transactional work and not appearing in court.[13]

Department of the Interior

From 2005 to 2006, Domenico served as Assistant to the Solicitor for the Department of the Interior.  In this role, Domenico advised the Secretary of the Interior on various legal matters and worked with the Department of Justice on litigation issues.[14]  Among the cases he handled at the Department of the Interior, Domenico helped develop a memorandum for the Bureau of Land Management to handle the ownership of dirt back-roads in states.[15]

Colorado Solicitor General

In 2006, despite not having appeared in court, Domenico was selected to be Colorado’s Solicitor General, replacing Eid, who was appointed to the Colorado Supreme Court.  At just thirty four years old, Domenico was the youngest Solicitor General in Colorado history.

As Solicitor General, Domenico was charged with representing the state of Colorado in litigation, including the defense of Colorado laws against constitutional challenges.  In this capacity, Domenico defended Colorado’s Taxpayer’s Bill of Rights, which required voters to approve any tax increases,[16] Colorado’s expansion of background checks on gun purchases,[17] and a Colorado statute preventing state funds from going to “pervasively sectarian” institutions.[18]

As Solicitor General, Domenico argued two cases before the U.S. Supreme Court.[19]  In Wood v. Milyard, the Supreme Court was called onto decide if the Court of Appeals had the authority to raise a statute of limitations defense sua sponte and if the State of Colorado, in not challenging a claim on statute of limitations grounds, had waived the issue.[20]  Appearing for Colorado, Domenico argued that choosing not to challenge the statute of limitations did not constitute a waiver.  However, in a 9-0 decision, the Supreme Court disagreed and held that Colorado had waived the statute of limitations defense.[21]  In the second case, Direct Marketing Association v. Brohl, Domenico lost 9-0 in his argument that a suit challenging Colorado’s implementation of an online sales tax is barred by the Anti-Injunction Act.[22]

Kittredge LLC.

From 2015, Domenico has been running a solo practice called Kittredge LLC. where he handles both litigation and public policy on behalf of individuals and businesses.  Notably, Domenico represented a team of plaintiffs in successfully enjoining a Colorado law criminalizing the showing of marked ballots to another party.[23]  Domenico also represented the Chamber of Commerce as amicus in a case challenging the exercise of Wisconsin jurisdiction over a corporation who appointed a registered agent in Wisconsin.[24]  The Wisconsin Supreme Court sided with the corporation in a 4-2 decision.[25]

Writings

While Domenico has not been as prolific as other Trump nominees, two editorials he authored may come up in his confirmation hearings.  First, in 2015, Domenico authored an op-ed criticizing the Obama Administration’s negotiation of the Joint Comprehensive Plan of Action with regard to Iran’s nuclear program.[26]  Specifically, Domenico argued that Iran’s development of nuclear power was unlikely to be “purely peaceful” and criticized the Obama Administration’s leadership on the issue.[27]

In a 2016 article, Domenico argued that Senate Republicans had the “right to delay the Supreme Court process” with regard to Judge Merrick Garland’s nomination.[28]  The article published alongside an op-ed by University of Denver law professor Alan Chen arguing the opposite perspective, argues that it is appropriate to delay a Supreme Court nomination to allow the American people to weigh in.[29]  The dueling articles drew many responses from local readers, with Greenwood Village resident Martin Berliner disputing Domenico’s perspective, arguing that American voters already weighed in by electing President Obama.[30]

Political Activity

Domenico has a long and active history in the Republican Party, going back to his role as an intern and an assistant in the Bob Dole campaign in 1996.[31]  While serving as Solicitor General in 2006, 2010, and 2014, Domenico advised the Attorney General campaigns of Republicans John Suthers and Cynthia Coffman.[32]  Additionally, Domenico also served as Counsel on John Thune’s successful senate campaign in 2004.[33]

Overall Assessment

While, Domenico’s record suggests a conservative judicial philosophy and political ideology,  his nomination will likely draw bipartisan support for several reasons.

First, Domenico has the support of Democratic Sen. Michael Bennet, who has returned a blue slip on his nomination.  While returning a blue slip does not necessarily indicate support, Bennet could have used his blue slip to block Domenico had he considered the nomination particularly egregious.

Second, Domenico’s record both at the Colorado Solicitor General’s Office and in private practice is not particularly ideological.  As Solicitor General, Domenico has defended conservative laws as well as liberal ones, including gun control legislation that he presumably opposes.

Opponents of Domenico will likely point to his op-eds opposing the Iran Deal and supporting the Supreme Court blockade of Justice Scalia’s seat as evidence of conservative activism.  Furthermore, they may argue that his appointment as Solicitor General was not particularly successful, pointing to his two 9-0 losses at the Supreme Court.

However, such criticism is unlikely to carry much weight.  After all, regardless of the outcomes of his arguments, one could argue that appearing at the Supreme Court twice is itself a significant accomplishment.  As such, given his support from home state senators, Domenico is likely to be confirmed smoothly.


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

[2] See id. at 2.

[3] See id. 

[4] White House Counsel Don McGahn, who handles the selection of judicial nominees, is also a Jones Day alumnus.

[5] See id. at 2.

[6] Id.

[7] Id.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Court (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Press Release, Office of Senator Michael Bennet, Bennet, Gardner Urge Judiciary Committee to Consider Regina Rodriguez Nomination (July 12, 2016) (on file at https://www.bennet.senate.gov/?p=release&id=3735).  

[10] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 31.

[11] Id.

[12] Id. at 16-17.

[13] See id. at 17.

[14] Id. at 15-16.

[15] Joe Baird, Utah Case Now Model for New BLM Road Policy, The Salt Lake Tribune, Mar. 22, 2006.

[16] Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo. 2012), vacated 744 F.3d 1156 (10th Cir. 2014), petition vacated 135 S. Ct. 2927 (2015).

[17] Colorado Outfitters Ass’n v. Hickenlooper, No. 13-cv-1300 (D. Colo. 2015).

[18] Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

[19] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 18.

[20] See Wood v. Milyard, 132 S. Ct. 1826 (2012).

[21] See id.

[22] See Direct Marketing Assoc. v. Brohl, 134 S. Ct. 2901 (2015).

[23] See Hill v. Williams, 2016 WL 8667798 (D. Colo. Nov. 4, 2016).

[24] Ambac Assurance Corp. v. Countrywide Home Loans Inc., 898 N.W.2d 70 (Wisc. 2017).

[25] Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).

[26] Dan Domenico, Iran Deal’s Defenders Reveal Weak View of U.S. Leadership, Colo. Statesman, Sept. 25, 2015.

[27] See id.

[28] Dan Domenico, Senate Has the Right to Delay Supreme Court Nomination Process, Denv. Post, Feb, 19, 2016.

[29] See id.

[30] Martin Berliner, Debating GOP’s Plan to Block Any Nominee from Obama, Denv. Post, Feb. 28, 2016.

[31] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 13.

[32] See id.

[33] Id. at 23-24.