Meet the Shortlisters: Amy Coney Barrett

Judge Amy Coney Barrett has undergone a meteoric rise.  On the bench for less than a year and having practiced law for only two, Barrett is now a leading contender for the U.S. Supreme Court.  In the jockeying among various candidates on the shortlist, Barrett is the favorite of social conservatives, which may both hurt and assist in the nomination process.

Vital Statistics

Name: Amy Vivian Coney Barrett

Age: 46

Current Position: Judge on the U.S. Court of Appeals for the Seventh Circuit (since 2017)

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School

Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit; Justice Antonin Scalia, U.S. Supreme Court

Prior Experience: Professor of Law at Notre Dame Law School from 2002 to 2017

Jurisprudence

Of all of Trump’s shortlist picks, Barrett has the least amount of judicial experience.  She has served on the U.S. Court of Appeals for the Seventh Circuit since October 2017, and has never been a judge before.  In her eight months on the bench, Barrett has authored just nine opinions, only one of which drew a dissent. Her opinions are outlined below:

Criminal

  • Schmidt v. FosterThis was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.
  • Perrone v. United States – The defendant sought to withdraw a plea agreement he had made, arguing that his counsel had been deficient.  The defendant argued that his counsel should have informed him that the government needed to show that his distribution of cocaine was the but-for cause of the victim’s death.  Barrett rejected this argument, noting that, under the Strickland standard, the defendant would be unable to show that his deficient counsel prejudiced him.
  • United States v. Barnes – The defendant, in this case, sought to challenge his sentence, arguing that the court incorrectly used his local marijuana conviction to enhance his sentence.  Barrett rejected this argument, noting that the defendant failed to properly object to the enhancement, and, as such, forfeited the claim.

Civil

  • Wisconsin Central Ltd. v. TiEnergy, LLC.This case involved a suit to recover demurrage (statutory fees imposed when rail cars are unduly detained).  After a Wisconsin Central car was detained at TiEnergy’s facility, Wisconsin Central filed suit to recover the demurrage incurred.  Barrett wrote for the panel in finding that TiEnergy needed to reimburse the demurrage fees.
  • Goplin v. WeConnect, Inc. – This case turned on whether the plaintiff-employee was bound by an arbitration agreement in resolving his Fair Labor Standards Act (FLSA) claim against defendant-employer.  Barrett ruled that the arbitration agreement did not control, as the company mentioned in the agreement was AEI, not WeConnect. Barrett also rejected the defendant’s argument that AEI was merely the former name of WeConnect.
  • Fiorentini v. Paul Revere Life Insurance Co.The plaintiff, a business owner, received total disability coverage through insurance while undergoing cancer treatment.  After being cancer-free for five years, the plaintiff returned to work, and the total disability coverage ceased. Plaintiff filed suit for breach of contract, arguing that the side effects from the cancer treatment still left him disabled under the insurance agreement.  Barrett disagreed, finding that the plaintiff was able to conduct most of the essential functions of his position, and, as such, he was not totally disabled.
  • Dalton v. Teva North America – The plaintiff sued the manufacturer of an intrauterine device (IUD) after it broke during its removal.  Barrett affirmed the dismissal of the plaintiff’s claims, noting that Indiana law requires the use of expert evidence to prove causation, and the plaintiff had failed to present expert evidence.
  • Boogard v. Nat’l Hockey League – This was a wrongful death action brought by parents of a NHL player who died of a drug overdose.  Barrett affirmed the dismissal of plaintiffs’ claims, noting that the plaintiffs had failed to respond to the defendant’s 12(b)(6) motion, and had, in doing so, forfeited their claims.
  • Webb v. Financial Indus. Regulatory Auth. – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims, the amount had been satisfied.
  • Walton v. EOS CCAThis suit challenged a debt collector’s practices under the Fair Debt Collection Practices Act.  Barrett held that the collector had met their requirements under federal law.

 

Academic Writing

As a law professor for sixteen years before she joined the bench, Barrett was fairly prolific in detailing and explaining her view of the law.  In her academic writings, Barrett occasionally took on controversial positions.

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.  Barrett argues that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.  Barrett was questioned on this “flexible” view of stare decisis during her confirmation hearings, and the issue is likely to come up again if she is elevated.

Additionally, in an article titled Catholic Judges in Capital Cases, Barrett debates whether a Catholic judge would be required to recuse themselves in capital cases based on their religious objections to the death penalty.  Barrett’s ultimate conclusion in the article is as follows:

“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.”

This conclusion led to criticism suggesting that Barrett was advocating that a judge base their decisions on church policy rather than the law.  Such criticism was, in turn, dismissed by some commentators as anti-Catholic.

Why Trump Could Choose Barrett as His Nominee

In his nominee, Trump is seeking someone with Ivy League credentials and a long academic record.  While Barrett is not an Ivy League alumnus, as a Supreme Court clerk, her credentials rival those of any Yale or Harvard graduate.  Furthermore, Barrett has a wider and stronger academic record than any of Trump’s other finalists.

Furthermore, Barrett’s selection makes sense politically.  First, Barrett is a woman, and thus, harder to caricature as a conservative extremist.  Second, Barrett has strong support from social conservatives, a key constituency in the Supreme Court fight.  Third, Barrett is from Indiana, putting Sen. Joe Donnelly (D-Ind.) in an impossible position.  If he opposes Barrett, he risks alienating the center-right voters he needs to win re-election.  If he supports Barrett, he risks alienating his own base, who he also needs.  In other words, a Barrett pick would vastly increase the chances of Donnelly losing re-election, and, as such, of Republicans holding the Senate.

Why Trump Would Not Choose Barrett as His Nominee

There are three main reasons why Barrett may not be chosen as the nominee.  First, Barrett does not yet have the requisite level of experience for the Supreme Court.  Republicans are still wary from the nomination of Justice David Souter (an expected conservative who became a reliably liberal vote) and may seek stronger confirmation of Barrett’s jurisprudence before elevating her.  Second, Barrett risks fracturing the Republican caucus.  Republican Sen. Susan Collins has already indicated that she will not back any nominee who opposes Roe v. Wade or who does not commit to stare decisis.  Given Barrett’s writings on the subject, her confirmation may end up being much more difficult than those of other shortlisters.  Third, given the comparative paucity of female Supreme Court candidates on the right, Trump may choose to “save” Barrett for a seat vacated by a female Justice (e.g. Justice Ruth Bader Ginsburg).

Expected Lines of Attack

Barrett has already undergone one grueling confirmation process, receiving just three Democratic votes.  If she is nominated again, expect emphasis on Barrett’s view on Roe v. Wade, given her status as the likely fifth vote on rehearing the case.

Likelihood of Nomination

Had the nomination come out this week, I’d have expected Barrett to be the nominee.  However, a brutal series of attacks by social conservatives on expected frontrunner Brett Kavanaugh may have had the side-effect of weakening Barrett as well.  Nevertheless, given the political benefits of nominating Barrett,a Barrett nomination should be no surprise.

Meet the Shortlisters: Thomas Hardiman

Judge Thomas Hardiman was almost nominated to the Supreme Court last year to replace Justice Scalia.  Hardiman, who sits on the U.S. Court of Appeals for the Third Circuit, was feted for his “blue-collar credentials” but was ultimately overlooked for the more privileged Judge Neil Gorsuch.  This time around, Hardiman is once again a shortlister for a Supreme Court appointment.

Vital Statistics

Name: Thomas Michael Hardiman

Age: 52 (53 in five days)

Current Position: Judge on the U.S. Court of Appeals for the Third Circuit (since 2007)

Education: B.A. with Honors from the University of Notre Dame; J.D. from Georgetown University Law Center

Clerkships: None

Prior Experience: Private Practice in Washington D.C. & Pittsburgh 1989-2003; Judge on U.S. District Court for the Western District of Pennsylvania 2003-2007.

Jurisprudence

Hardiman is currently a judge on the U.S. Court of Appeals for the Third Circuit, where he has served since 2007 (and previously served from 2003 to 2007 on the U.S. District Court for the Western District of Pennsylvania).  On the Third Circuit, Hardiman has authored about 600 opinions, including around 30 that sparked a concurrence or dissent. Here are some key opinions that reflect Hardiman’s judicial philosophy on constitutional issues:

First Amendment

 

  • B.H. ex rel. Hawk v. Easton Area School District – The Easton Area School District banned students from wearing breast cancer awareness bracelets that stated “I ♥ Boobies.”  In response, students brought suit under the First Amendment and the Third Circuit struck down the ban on a 9-5 vote.  In dissent, Hardiman noted that, in his opinion, it was “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.”
  • Kelly v. Borough of Carlisle – In a civil rights action, the plaintiff argued that he was unlawfully arrested for filming a police officer during a traffic stop.  Writing for the panel, Hardiman found that, if a First Amendment right to film a police officer existed, it was not clearly established, and that the arresting officer was protected by qualified immunity in the case.
  • Lodge No. 5 of Fraternal Order of Police v. Philadelphia – In a First Amendment challenge, Hardiman held that the City of Philadelphia could not bar police officers from making campaign contributions to the PAC of the police union.

Second Amendment

  • Drake v. Filko – Under New Jersey law, individuals seeking to carry handguns in public must demonstrate a “justifiable need to carry a handgun.”  A 2-1 vote of the Third Circuit upheld this requirement against a Second Amendment challenge.  In dissent, Hardiman argued that the law violated the Second Amendment, arguing that the Supreme Court’s decisions in DC v. Heller and McDonald v. Chicago extend the right to bear firearms beyond the home.

Right to Privacy

  • Florence v. Bd. of Chosen Freeholders – This case involved the challenge to the policy of strip searching all arrestees, regardless of how minor the offenses were.  Hardiman wrote for the panel in upholding the policy, holding that officials may strip-search all arrestees even without suspicion of carrying any contraband.  This ruling was upheld by the U.S. Supreme Court on a 5-4 vote.

LGBT Rights

  • Prowel v. Wise Business Forms, Inc. – This case involved a Title VII gender stereotyping claim brought by a homosexual employee who alleged severe and pervasive harassment from coworkers.  In response, the Defendant argued that the employee was attempting to claim discrimination based on sexual orientation, which is not cognizable under Title VII.  Hardiman ruled that the employee’s claim was based, not on discrimination based on sexual orientation, but rather on gender stereotypes, finding “no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.”

Why Trump Could Choose Hardiman as His Nominee

Hardiman was almost the Supreme Court nominee last year because, in many ways, he was (and remains) a politically sound nominee.  He is from Pittsburgh in the Rust Belt, has a (relatively) less-connected background, and has the support of Judge Maryanne Trump Barry, the President’s sister.  Furthermore, Hardiman has a fairly conservative record on the federal bench, while also having two unanimous confirmations under his belt. Additionally, choosing Hardiman as the nominee may put pressure on Democratic Senator Bob Casey, who may choose to back his home-state nominee.

Why Trump Would Not Choose Hardiman as His Nominee

In his current nominee, Trump is looking for ivy league pedigrees and academic writings.  Hardiman doesn’t bring either to the table. Furthermore, Hardiman’s opinion in Prowel may alienate social conservatives.

Expected Lines of Attack

Hardiman’s judicial record can be mined for opposition.  Opponents may attack Hardiman, for example, for permitting the strip searching of all arrestees, even those charged with minor violations.  They may also raise his dissent in Easton and his opinion in Kelly to suggest that Hardiman would defer to government judgments on First Amendment restrictions.

Additionally, gun control advocates are likely to attack Hardiman as a Second Amendment absolutist, based on his dissent in Drake and his view that Heller and McDonald establish a right to bear firearms outside the home (a right not yet endorsed by the U.S. Supreme Court).

Likelihood of Being Nominated

Despite the ringing endorsement of Judge Barry, Hardiman was not chosen for the Supreme Court last term.  His chances are, if anything, slightly worse this time around. Supreme Court selections are ultimately about chemistry as much as they are about ideology.  In 2009, President Obama chose then 2nd Circuit Judge Sonia Sotomayor based largely on Sotomayor’s strong performance in her personal interview.  Given that Trump has already overlooked Hardiman once, his odds may not be as high as those of fresher faces.

Meet the Shortlisters: Amul Thapar

This is the second time that Judge Amul Roger Thapar has been considered by President Trump for a Supreme Court appointment.  Last year, Thapar was interviewed by Trump and White House Counsel Don McGahn for the seat opened by Justice Scalia’s death, despite only being a District Court judge at the time.[1]  Shortly after, Thapar was nominated to the U.S. Court of Appeals for the Sixth Circuit (Trump’s first lower court judicial nominee) and was confirmed on a party-line 52-44 vote.

Vital Statistics

Name: Amul Roger Thapar

Age: 49

Current Position: Judge on the U.S. Court of Appeals for the Sixth Circuit since 2017

Education: B.S. from Boston College; J.D. from U.C. Berkeley School of Law

Clerkships: Judge S. Arthur Spiegel on the U.S. District Court for the Southern District of Ohio; Judge Nathaniel Jones on the U.S. Court of Appeals for the Sixth Circuit

Prior Experience: Associate at Williams & Connolly; Assistant U.S. Attorney for the Southern District of Ohio; U.S. Attorney for the Eastern District of Kentucky; U.S. District Judge for the Eastern District of Kentucky

Jurisprudence

Thapar has served on the U.S. Court of Appeals for the Sixth Circuit since May 25, 2017.  In the past thirteen months on the Sixth Circuit, Thapar has authored approximately forty opinions.  These opinions are mostly unanimous, with only two sparking a dissent by a panel judge.[2]  In one case, Thapar reversed summary judgment against plaintiffs in a civil rights case for a warrantless entry, but held that a malicious prosecution claim was forfeited.[3]  In dissent, Judge Eric Clay noted:

“While it is true that Plaintiffs could have done a better job presenting their argument as to this claim, the brief is not so lacking in support and development as to consider the argument forfeited or waived. Indeed, Plaintiffs discussed the issue for four pages, throughout which they cited the standard for a malicious prosecution claim and identified sections of the record purportedly showing that elements of the claim are disputed. Plaintiffs also identified statements in the police report that they contend are false. Therefore, Plaintiffs have done enough in their brief for their argument not to be considered forfeited or waived.”[4]

In criminal and civil rights cases, Thapar has generally struck a conservative tone.  For example, in Fields v. Henry County, Tenn. (decided while he was sitting by designation), Thapar held that the Constitution did not prohibit the automatic detention of domestic violence arrestees, holding that there is no constitutional right to speedy bail.[5]  In another notable case, while sitting by designation on the Sixth Circuit, Thapar held that a defendant’s purchase of a one-month subscription to a child pornography website sixteen months earlier created probable cause for a search of his home.[6]  Thapar’s reasoning was lambasted in dissent by Judge Karen Nelson Moore, who suggested that Thapar had a “radical view of probable cause” that was “far more expansive than any circuit had taken to date.”[7]

Thapar has, on occasion, issued decisions that could be considered more “liberal.”  For example, Thapar held that police officers were protected by the First Amendment in exposing illegal wiretapping of private conversations conducted by law enforcement.[8]  In another case, Thapar affirmed the suppression of evidence where the searching officer did not abide by the conditions of the anticipatory warrant issued.[9]

Before his elevation, Thapar served on the U.S. District Court for the Eastern District of Kentucky for nine years.  During this time, Thapar maintained a fairly conservative record, particularly on criminal issues.[10]  In civil cases, Thapar also developed a reputation for denying motions for summary judgment in cases where factual disputes required cases to go to the jury.[11]

Notably, as a District Judge, Thapar struck down several canons of the Kentucky Code of Judicial Conduct, including restrictions on holding political fundraisers.[12]  The Sixth Circuit affirmed most of Thapar’s opinion but reversed his striking of the political fundraiser restriction.[13]

Why Trump Could Choose Thapar as His Nominee

By all accounts, Trump is looking for credentialed young conservatives for the Supreme Court.  Thapar meets all three criteria: he has strong academic credentials; is younger than every Supreme Court nominee since Clarence Thomas; and has a relatively conservative record on the bench.  Furthermore, Thapar is strongly supported by Senate Majority Leader Mitch McConnell, and would likely be confirmed smoothly, given his mentor’s strong reputation among the Senate Republican Caucus.  Finally, Thapar would make history as the first Indian American, Asian American, and South Asian American Supreme Court Justice, potentially blunting the effectiveness of attacks painting him as a conservative ideologue.

Why Trump Would Not Choose Thapar as His Nominee

Trump has apparently asked that his nominee have stellar academic credentials and a strong body of academic writings.[14]  In contrast with other shortlisters, Thapar did not attend Harvard or Yale, did not clerk on the U.S. Supreme Court, and has authored just three academic articles in his entire career.

Furthermore, Thapar’s jurisprudence, while conservative, also includes a fair share of liberal anomalies.  This may lead Trump to more “reliably” conservative nominees.

Expected Lines of Attack

If Thapar is nominated, expect ads to focus on his connection to McConnell, who remains significantly less popular than Trump.  Furthermore, Thapar may face criticism for his overturning of canons in Kentucky’s Code of Judicial Conduct, which may be paralleled to the Supreme Court’s ruling in Citizens United.

Likelihood of Being Nominated

Thapar would not be where he is today without the support of Senate Majority Leader Mitch McConnell (R-KY), who was Thapar’s sponsor as he became the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first Indian American judge on the Sixth Circuit.  As such, one can only assume that the powerful McConnell is (at least partially) responsible for Thapar’s consideration for the Supreme Court.

However, given his limited academic record and his (relatively) unpredictable jurisprudence, I’d predict that Thapar is the least likely of the five finalists to be nominated.


[1] Shane Goldmacher, Eliana Johnson, & Josh Gerstein, How Trump Got to Yes on Gorsuch, Politico, Jan. 31, 2017, https://www.politico.com/story/2017/01/trump-supreme-court-gorsuch-234474.  

[2] See Stein v. Atlas Indus., Inc., No. 17-3737, 2018 WL 1719097, at *6 (6th Cir. Apr. 9, 2018) (Batchelder, J., dissenting) (dissenting from majority opinion reversing dismissal of plaintiff’s ERISA claim); Brenay v. Schartow, 709 F. App’x 331, 337 (6th Cir. 2017) (Clay, J., dissenting) (stating that Plaintiffs did not waive their malicious prosecution claims).

[3] Brenay v. Schartow, 709 F. App’x 331.

[4] Id. at 338 (Clay, J., dissenting).

[5] See Fields v. Henry Cnty., Tenn., 701 F.3d 180, 185 (6th Cir. 2012).

[6] See United States v. Frechette, 583 F.3d 374, 376 (6th Cir. 2009).

[7] Id. at 381 (Moore, J., dissenting).

[8] Kiessel v. Oltersdorf, 459 Fed. Appx. 510 (6th Cir. 2012).

[9] United States v. Perkins, 887 F.3d 272 (6th Cir. 2018).

[10] See Harsh Voruganti, Judge Amul R. Thapar – Nominee to the U.S. Court of Appeals for the Sixth Circuit, The Vetting Room, Apr. 26, 2017, https://vettingroom.org/2017/04/26/judge-amul-r-thapar-nominee-to-the-u-s-court-of-appeals-for-the-sixth-circuit/.  

[11] See Voruganti, supra n. 2.

[12] Winter v. Wolnitzek, 56 F. Supp. 3d 884, 889 (E.D. Ky. 2014).

[13] Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

[14] Michelle Mark, Trump Has Narrowed His Supreme Court Nominee Shortlist to 5 Candiates – And There Are Reportedly 3 Qualities the Winner Must Embody, Business Insider, June 30, 2018, http://www.businessinsider.com/trump-supreme-court-nominee-shortlist-3-main-qualities-2018-6.  

How to Fight a Supreme Court Nomination (And Win)

In case you were, like me, on a plane without wifi this afternoon, Justice Anthony Kennedy is retiring.  Many on Twitter and in the blogosphere (not to mention the mainstream news) are bemoaning the loss of the Supreme Court “swing vote,” and decrying the “shortlist” put forward by the Trump Administration.  Others, of course, are celebrating.  Setting aside the dubious labeling of Justice Kennedy’s “legacy” happening, I want to address one key question: can liberals defeat the confirmation of Kennedy’s successor? And if they can, how will such a defeat happen?

A gut answer is that they can’t.  Not that it’s impossible to defeat a Supreme Court nomination (see Merrick Garland), but it’s pretty difficult to do so while the President’s party controls the U.S. Senate.  Five out of the last six defeated Supreme Court nominees went down before a Senate controlled by the opposing party.  The exception, Harriet Miers, was doomed by conservative opposition, not the Democratic minority.  As such, many observers have resigned themselves to Trump’s next nominee replacing Kennedy.

However, this does not mean that liberals can’t defeat a Trump SCOTUS nominee.  In fact, I’d proffer that they can, provided that certain factors go their way.

1. Maintain Messaging Discipline

“I am not a member of any organized party – I am a Democrat”

The Will Rogers quote above may have been tongue in cheek, but it perfectly encapsulates Democrats’ current problem.  Compared to Republicans, Democrats have a greater amount of ideological diversity within their party.  This diversity has allowed Democrats to maintain a close gap in the Senate despite being sharply outnumbered in the number of states that lean in their direction.  However, this diversity also means that it is difficult to keep the caucus united.  However, if Democrats are to win a SCOTUS battle, it’ll be because they maintained, if not unity, then messaging discipline.

Take the example of Merrick Garland.  Within hours of Justice Scalia’s passing, Senate Majority Leader Mitch McConnell announced that he would leave that seat open until after the 2016 Presidential election.  That became the official stance of the Republican Party relatively quickly and stayed consistent throughout the election.  To win this battle, Democrats need to maintain a similar messaging discipline.

2. Highlight the Right Messenger

Let’s say you’re a swing voter who is undecided about the new nominee President Trump has sent forward for Kennedy’s seat.  The nominee seems smart, competent, and reminds you of your next door neighbor (the one who always has his lawn mowed).  Now, you hear your Democratic senator call the nominee a “conservative ideologue” and an “extreme right-wing jurist.”  Is that going to convince you to oppose the nominee?  More importantly, will it persuade you to pick up the phone and call your senator?  My guess is no.

Now, instead, let’s say you see the following ad on television:

A young man in a military uniform stands before an American flag.  He explains that he and his brother enrolled in the military together to serve their country; that they served several tours of duty together.  Then one day, his brother died.  Not because of the enemy, but because the military contractor in charge of making body armor cut corners and sent him shoddy equipment.  He goes on: his family sued the contractor, demanding justice, but that the case was thrown out by the judge on a technicality.  Another judge would have given them a chance to refile.  This judge didn’t care.  And now the President wants to give this judge a promotion.  

Isn’t that more likely to move you to action?

Even if you disagree with the example I’ve laid out, there is evidence that campaigns with a personal touch are remarkably effective.

In 2014, conservative groups successfully defeated the nomination of NAACP attorney Debo Adegbile to head the DOJ’s Civil Rights Division.  The opposition was largely based on Adegbile’s representation of Mumia Abu-Jamal, who was convicted of the 1981 murder of Philadelphia police officer Daniel Faulkner.  Conservatives effectively leveraged the testimony of Maureen Faulkner, the officer’s widow, who publicly urged senators to oppose Adegbile.

More recently, California voters threw out Judge Aaron Persky based on his sentencing Brock Turner, convicted of sexual assault, to a six months in prison.  Persky’s recall, while supported by political officials, was ultimately kickstarted by the victim’s statement going viral, reinforcing the theme: highlighting the right messenger is key.

If Democrats do defeat the next SCOTUS nominee, it’ll be because they stepped back and highlighted the right messengers to make these arguments.

3. Raise the Political Cost of a Yes Vote

 

In 2014, I was meeting with the staffer of a Senate Democrat, a moderate and key swing vote, to urge the support of a particularly embattled nominee.  I listed all the reasons that the nominee was well-qualified for the position, explained the spuriousness of the opposition’s charges, and detailed the importance of filling this position.  The staffer  listened to me politely.  As I finished, he stated that he understood my points and added:

“If you want the senator to ignore the fact that constituents contacting the office in opposition outnumber supporters 10:1, that’s one thing; when it’s 100:1, our hands are tied.”

The staffer’s point was clear.  The merits of a particular stance on a nominee don’t ultimately decide the vote.  The vote is dictated by the political cost of voting yes.  In this case, the senator couldn’t vote to support the nominee unless the political cost was lower.

Similarly, if liberals want to defeat a Trump SCOTUS nominee, their top priority needs to be to highlight the political costs of a “yes” vote.  And this requires erasing the engagement gap.

4. Erase the Engagement Gap

Conservatives care more about courts than liberals.  They have for years.  It is because of their view on judges that Donald Trump is now President.  It is because of their view on judges that McConnell felt politically safe in holding open a Supreme Court seat for a new President to fill, and why he feels safe in filling Kennedy’s vacancy, even though we are less than six months from an election.

There are many reasons why this engagement gap exists, not the least of which being that conservatives have carefully tilled the ground on court issues for the last forty years.  Liberals, having focused on a variety of other issues, are now trying to catch up.  I feel safe in predicting that, without erasing the engagement gap on judges, liberals cannot win a SCOTUS fight.  And to erase the engagement gap, liberals need to build the appropriate infrastructure.

5. Build the Infrastructure

Name a prominent conservative organization:

Some of you would name the Federalist Society, the conservative legal organization whose membership card can be found in the wallets of many judges and nominees.  Others might suggest the National Rifle Association (NRA), one of the most powerful pro-gun lobbying groups in the country.  Other names should come to mind quickly: Focus on the Family; Moral Majority; Christian Coalition of America; Family Research Council, etc.  What do all these organizations have in common?  They are all involved in judicial politics (Now, the Federalist Society does not take positions on judges, but prominent FedSoc leader Leonard Leo advises the President on judicial issues).

Now name a prominent liberal organization:

Most of you would name the ACLU, which is one of the only organizations on the left whose fundraising and membership rival the conservative groups mentioned above.  However, unlike the groups noted above, the ACLU does not take a position on nominations and steers clear of judicial politics.

While other organizations, including Planned Parenthood, NARAL, the Leadership Conference, and People for the American Way, do get involved on judges, their ability to mobilize voters and constituents still pales in comparison.

Take an example:

The Judicial Crisis Network, run by Justice Thomas clerk Carrie Severino, has raised and spent millions to fight Obama judges and promote Trump’s picks.  Yet, no liberal equivalent existed until this year, when Demand Justice was founded.

To be clear, the infrastructure gap will not go away overnight, but Democrats will only be able to win a SCOTUS fight if they have managed to significantly narrow it.

 

As the SCOTUS fight unfolds and both sides flex their muscle, keep an eye on the five factors highlighted above.  Conservatives have shown how to win on judges for decades, but if liberals can maintain unity, highlight the right messenger, raise the political cost of a yes vote, erase the engagement gap, and build the infrastructure, they may be able to pull off an upset.

 

Roy Altman – Nominee for the U.S. District Court for the Southern District of Florida

A former federal prosecutor, Roy Altman was on the shortlist to be the top federal prosecutor in the Southern District of Florida before getting the nod for a judgeship instead.  Today, at age 36, Altman is the youngest judge Trump has nominated, and the youngest judicial nominee put forward since Judge David Bunning was nominated in 2001.

Background

Roy Kalman Altman was born in Caracas, Venezuela in 1982.  Altman received his B.A. cum laude from Columbia University in 2004 and his J.D. from Yale Law School in 2007.[1]  After receiving his J.D., Altman clerked for Judge Stanley Marcus on the U.S. Court of Appeals for the Eleventh Circuit.

After finishing his clerkship, Altman became a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Florida, staying with the office for six years.[2]  During his last year at the office, Altman served as Deputy Chief of the Special Prosecutions Section of the office.[3]  In 2014, Altman joined the Miami office of Podhurst Orseck, P.A. as a Partner.[4]  He continues to work there to this day.

In 2017, Altman’s name was floated as a candidate to be U.S. Attorney for the Southern District of Florida by the newly elected Trump Administration.[5]  The Administration ultimately ended up nominating Miami-Dade Circuit Judge Ariana Fajardo Orshan to that position.[6]

History of the Seat

Altman has been nominated for a vacancy on the U.S. District Court for the Southern District of Florida.  This seat opened when Judge Joan Lenard moved to senior status on July 1, 2017.  In October 2017, Altman interviewed with the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson.  The JNC chose Altman as one of ten finalists to be passed onto the Senators.[7]  After interviews with Rubio and Nelson, Altman Altman was contacted by the Trump Administration in February 2018.[8]  After interviewing with the White House Counsel’s Office and the Department of Justice, Altman was formally nominated on May 8, 2018.

Legal Experience

Altman’s legal career can be divided into two primary segments: working as a federal prosecutor; and being a Partner at Podhurst Orseck.  As a federal prosecutor, Altman handled a wide variety of cases, including drug crimes, white collar crimes, and immigration cases.[9]  During his time at the office, Altman had 22 jury trials (two as sole counsel, and 15 as lead counsel), and argued three appeals before the Eleventh Circuit.[10]  Among his more prominent cases, Altman prosecuted sex-trafficker Damian St. Patrick Baston and obtained a twenty-seven year sentence.[11]  During the trial, Altman’s cross-examination prompted Baston to accuse the attorney of being “an evil dude,” an outburst which did not ultimately help him either in the guilt or sentencing phases.[12]

From December 2014 onwards, Altman has worked as a Partner at Podhurst Orseck, working primarily in aviation disaster litigation.[13]  Notably, Altman represents the families of passengers killed in the disappearance of Malaysia Airlines Flight MH370, handling a multidistrict litigation before Judge Ketanji Jackson in Washington D.C.[14]

Writings

Over the last few years, Altman has occasionally voiced his opinion on public policy issues, usually advocating for conservative positions.

Border Security

In 2013, Altman authored an op-ed criticizing the recent Ninth Circuit decision in United States v. Cotterman.[15]  The Cotterman decision held that border patrol agents could not conduct a forensic search of a laptop seized at the border without reasonable suspicion of criminal activity.[16]  In his op-ed, Altman sharply criticizes the opinion, stating that the reasonable suspicion standard “will severely restrict the ability of federal agents to protect America’s borders.”[17]  He also argues that the opinion is “unworkable” and suggests that the Supreme Court should overturn the opinion (the Supreme Court denied to review the Cotterman decision, which remains good law to this day).

Search Incident to Arrest

In 2014, Altman authored an article advocating for an expansion of the search-incident-to-arrest doctrine (a doctrine that permits warrantless searches of items found on or around an arrestee’s person) to cover cell phones.[18]  In the article, Altman argues that, despite the storage capacity of modern cell phones, that:

“There is likewise little reason to treat cell phones differently because they may contain more “personal” information than a briefcase, suitcase, or address book.”[19]

Altman goes on to argue that criminals frequently use cell phones to “facilitate their illegal enterprises” and as such, they should not be granted protection against searches incident to arrest.[20]

Iran Deal

Altman has also been sharply critical of the Joint Comprehensive Plan of Action (Iran Nuclear Deal).  In a 2015 editorial, Altman urged Senator Chuck Schumer to fight the deal, stating:

“…wrongdoers must be punished, not rewarded; liars must be checked, not trusted; and terrorists must remain the objects of our enmity and the targets of our aggression, not our partners in negotiations or the subjects of our contrition.”[21]

Altman goes on to argue that the Deal will “embolden our enemies and discourage our allies” and urges Schumer to abandon his leadership ambitions to kill the deal.[22]

Political Activity

Altman has been fairly active as a donor and volunteer for Republican campaigns.  For example, Altman supported the campaigns of Miami Mayor Francis Suarez, Lt. Gov. Carlos Lopez Cantera, Rep. Mario Diaz-Balart, and Sen. Marco Rubio, all Republicans.[23]  Altman has also donated exclusively to Republicans, giving $4750 over the last five years.[24]

Additionally, Altman is also a member of the Republican Jewish Coalition, the American Enterprise Institute Enterprise Club, and the Federalist Society for Law and Public Policy Studies.[25]

Overall Assessment

While Altman is undoubtedly an intelligent and talented attorney, his nomination looks likely to draw opposition due to a number of factors.

First, Altman is remarkably young.  As noted above, Altman is only 36 years old, younger than any judicial nominee in the last sixteen years.  While Altman has gained a significant degree of experience in his 36 years, he still falls short of the twelve years of practice requirement the ABA recommends (an admittedly arbitrary cutoff).  Second, Altman has spoken and written in support of conservative legal and policy outcomes.  While Altman’s opposition to the Iran Nuclear Deal could be dismissed as a personal view irrelevant to his jurisprudence, his endorsement of broad law enforcement powers to search suspects could draw the ire of civil liberties groups and those rightfully distrustful of granting broad police powers to law enforcement.

Taking together his age, his writings, and his political activism Altman may face a tougher confirmation process than his fellow Southern District nominees.


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

[2] See id. at 2.

[3] Id.

[4] Id. at 1.

[5] David Markus, Candidate List for U.S. Attorney Expands (UPDATED), Southern District of Florida Blog, June 7, 2017, http://sdfla.blogspot.com/2017/06/candidate-list-for-us-attorney-expands.html.  

[6] Jay Weaver, Trump Nominates First Woman Ever to be U.S. Attorney in South Florida, Miami Herald, June 7, 2018, https://www.miamiherald.com/news/local/article212767819.html.  

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

[8] See Altman, supra n. 1 at 40.

[9] Id. at 20.

[10] Id. at 20, 23-24.

[11] United States v. Baston, No. 13-20914-CR-CMA (S.D. Fla. 2013).

[12] Jay Weaver, Jamaican Man Denies Being Global Pimp in Miami Sex-Trafficking Trial, Miami Herald, June 24, 2014, http://www.miamiherald.com/news/local/community/miami-dade/article1968022.html.  

[13]See Altman, supra n. 1 at 22.

[14] See Air Crash Over the S. Indian Ocean, No. 16-mc-00184-KBJ (D.D.C. 2016) (Jackson, J.) (pending).

[15] Roy Altman, Judges for Lax Border Security, Wall St. Journal, Apr. 3, 2013, https://www.wsj.com/articles/SB10001424127887323296504578397382773377250.  

[16] See United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc).

[17] See Altman, supra n. 15.

[18] Roy K. Altman, The Case for Incident-to-Arrest Searches of Cell Phones, 29 Crim. Just. 28 (Spring 2014).

[19] See id.

[20] See id.

[21] Roy K. Altman, Schumer Says the Right Thing on the Iran Deal – Now He Needs to Persuade Eleven More Senators, Nat’l Rev., Aug. 10, 2015, https://www.nationalreview.com/2015/08/charles-schumer-obama-iran-deal-senate-democrats/.

[22] See id.

[23] See Altman, supra n. 1 at 17-18.

[25] See Altman, supra n. 1 at 5-6.

Judge Rudy Ruiz – Nominee for the U.S. District Court for the Southern District of Florida

Rudy Ruiz, a state court judge in South Florida joined the bench at just 33 years old. Today, at age 39, he has been nominated to the federal bench.

Background

Rodolfo Armando Ruiz II was born in Miami in 1979.  Ruiz graduated from Duke University in 2002 and then from the Georgetown University Law Center in 2005.[1]

After graduation, Ruiz clerked for Judge Federico Moreno on the U.S. District Court for the Southern District of Florida, and then joined the Miami Office of White & Case as an Associate.[2]  In 2009, he moved to the Miami-Dade County Attorney’s Office.[3]

In 2012, Ruiz became a County Court Judge, appointed to the position by Republican Governor Rick Scott.  In 2015, Ruiz was appointed by Scott to be a Circuit Court Judge on the Eleventh Judicial Circuit of Florida, where he sits to this day.

History of the Seat

Ruiz has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on January 31, 2017, when Judge William Zloch moved to senior status.  In October 2017, Ruiz applied and interviewed with the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson.  The JNC chose Ruiz as one of ten finalists to be passed onto the Senators.[4]  After interviews with Rubio and Nelson, Ruiz was contacted by the Trump Administration in February 2018.[5]  After interviewing with the White House Counsel’s Office and the Department of Justice, Ruiz was formally nominated on May 8, 2018.

Legal Career

Ruiz began his legal career as a law clerk on the U.S. District Court for the Southern District of Florida.  After he left that position, Ruiz joined the Miami office of White & Case, working in the Corporate Latin America transactional practice group.[6]  While his work at the firm was primarily transactional, his next position at the Miami-Dade County Attorney’s Office focused on litigation.

As an Assistant County Attorney, Ruiz worked in the Tax & Finance, Torts, & Federal Litigation sections, handling tax, defense of tort claims, and civil rights cases respectively.  During his time at the office, Ruiz tried two cases in Florida state court as associate counsel, while trying six other cases as lead counsel before administrative agencies.[7]

Ruiz’s most prominent cases involved the defense of civil rights claims brought against Miami-Dade County.[8]  In one of the cases, which went to trial, the jury found for the plaintiff, but Ruiz successfully petitioned for a new trial, and defended the grant on appeal.[9]

Jurisprudence

Ruiz served as a County Court Judge in Florida from 2012 to 2015 and has served as a Circuit Judge since 2015.  In the former capacity, Ruiz heard criminal misdemeanor and traffic matters, civil protective orders, and landlord-tenant and small claims litigation.[10]  As a Circuit Judge, Ruiz handles major felonies and any civil cases with more than $15000 in controversy.  Over his six year tenure on state court, Ruiz has heard approximately 300 cases.

Among his more notable decisions, Ruiz vacated a jury award for a plaintiff who had slipped and fallen in the lobby of the defendant’s building,[11] denied a criminal defendant immunity under Florida’s Stand Your Ground law after he had stabbed his colleague,[12] and presided over a plaintiff’s vicarious liability victory in a case where the decedent was electrocuted by a hydraulic conveyor belt boom.[13]

During his tenure as a Circuit Judge, only one case has been overruled by a higher court, a relatively low reversal rate.

Writings

As a law student, Ruiz co-authored an article laying out the law governing Securities Fraud.[14]  The article breaks down the offenses that fall under the Securities Fraud umbrella, including Fraud and Insider Trading, as well as describing common defenses and enforcement mechanisms.[15]

Overall Assessment

While the 39-year-old Ruiz is on the younger end of judicial nominees put forward by the Administration, it is unlikely that Ruiz will attract too much opposition through the confirmation process.  First, Ruiz lacks a paper trail on controversial issues, having avoided op-eds and political activism.  Second, his record on the bench is relatively mainstream, with a low reversal rate.  Third, Ruiz is one of Trump’s few Hispanic nominees, and has a record of supporting minority lawyers, including membership in the Cuban American Bar Association and the Florida Muslim Bar Association.[16]

Furthermore,despite his youth, Ruiz narrowly meets the ABA cutoff of twelve years of legal experience to take the federal bench.  As such, Democrats are likely to keep their powder dry and focus their fire on other nominees.

 


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

[2] Id. at 2.

[3] Id.

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

[5] See Ruiz, supra n. 1 at 40.

[6] Id. at 41.

[7] Id. at 43.

[8] See Rolle v. Miami-Dade Cnty., Case No. 02-219101 CA 01 (25) (Fla. 11th Cir. Ct.), aff’d, 138 So. 3d 457 (Fla. 3d DCA 2014) (per curiam); Isaac v. Miami-Dade Cnty., Case No. 11-22698-CIV-PAS (S.D. Fla. 2011).

[9] See Rolle, supra n. 8.

[10] See Ruiz, supra n. 1 at 17.

[11] Gavers v. Espacio Miami Prop., LLC, Case No. 14-10879 CA 01 (22), 2017 WL 3047581 (Fla. 11th Cir. Ct. June 8, 2017).

[12] State v. Quintana, Case No. F12-23033 (Fla. 11th Cir. Ct. Mar. 2, 2016).

[13] Aldana v. Miami Tile Deliveries Corp., Case No. 15-6122 CA 01 (22) (Fla. 11th Cir. Ct.).

[14] XueMing Jimmy Cheng, Ryan Harrington and Rodolfo Ruiz II, Securities Fraud, 41 Am. Crim. L. Rev. 1079 (2004).

[15] See id.

[16] See Ruiz, supra n. 1 at 5-6.

Jay Richardson – Nominee for the U.S. Court of Appeals for the Fourth Circuit

On June 17, 2015, Dylann Roof, a 21-year-old white supremacist murdered nine African Americans during a prayer service at Emanuel African Methodist Episcopal Church in Charleston.  During Roof’s subsequent capital trial, the lead federal prosecutor was a well-connected South Carolinian named Jay Richardson.  On April 26, 2018, approximately sixteen months after Roof received the death penalty, Richardson was tapped by President Donald Trump for a seat on the U.S. Court of Appeals for the Fourth Circuit.

Background

A native South Carolinian from a well-connected family with a history in the Palmetto State, Julius Ness Richardson was born on October 26, 1976 in Columbia.  He received a B.S. from Vanderbilt University in 1999 and a J.D. from the University of Chicago Law School in 2003.  After graduating, Richardson worked for the prolific Judge Richard Posner on the U.S. Court of Appeals for the Seventh Circuit and then for Chief Justice William Rehnquist on the U.S. Supreme Court (clerking alongside fellow judicial nominee Martha Pacold and Deputy Solicitor General Jeff Wall).[1]

After his clerkship, Richardson joined the D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel as an Associate.  In 2009, Richardson moved to the U.S. Attorney’s Office for the District of South Carolina, where he continues to serve as an Assistant United States Attorney.[2]

History of the Seat

Richardson has been nominated to replace U.S. Circuit Judge Dennis Shedd, who moved to senior status on January 30, 2018.  In June 2017, a few months before Shedd would announce his departure, Richardson was contacted by the White House to gauge his interest in an appointment to the Fourth Circuit.[3]  Richardson was nominated on May 7, 2018, after interviews with the White House and South Carolina Senators Tim Scott and Lindsey Graham.[4]

Legal Experience

Richardson has held two main legal positions after finishing his clerkships: working as an associate at Kellogg Huber; and working as a federal prosecutor.  In the former position, Richardson focused primary on commercial litigation.  Among the matters he handled at Kellogg Huber, Richardson represented Standard Iron Works, a steel purchaser, in a Sherman Act antitrust action against a series of defendant iron producers, alleging coordinated supply cuts.[5]

As a federal prosecutor, Richardson’s most famous case was the prosecution of Dylann Roof, the aforementioned white supremacist who had murdered nine churchgoers in Charleston.[6]  In the case, Richardson handled all pre-trial matters, as well as the trial and the sentencing phase, successfully leading to the imposition of the death penalty against Roof.[7]  Richardson also successfully defended a challenge based on the constitutionality of the death penalty brought by Roof’s attorneys.[8]

In other cases he handled as a federal prosecutor, Richardson prosecuted MS-13 gang members in a murder-for-hire case,[9] and the longest-serving sheriff in South Carolina for bribery.[10]

Writings

In 2002, as a student at the University of Chicago Law School, Richardson authored an article discussing Federal Rule of Civil Procedure 4(k)(2).[11]  Rule 4(k)(2) allows federal courts to exercise jurisdiction over defendants who would otherwise not fall under the jurisdiction of any state jurisdiction.  Richardson notes that courts vary in interpreting which party has the burden of production to determine that a defendant falls under the purview of 4(k)(2), with at least one court (the Seventh Circuit) placing the burden on the Defendant.[12]

In his paper, Richardson advocates a burden-shifting mechanism, in which plaintiffs bear an initial burden to present a prima facie case that a defendant falls under the purview of 4(k)(2), at which point the burden shifts to the defendant to demonstrate that a state jurisdiction can exercise jurisdiction over themselves.[13]  Richardson notes that this burden-shifting “minimizes the costs of dispute resolution.”[14]

Memberships

Richardson has been a member of the Federalist Society for Law and Public Policy Studies since 2017 (approximately the time that he has been under consideration for a federal judgeship).[15]  Richardson has also been a member of the Palmetto Club and the Forest Lake Club, two private clubs that previously restricted African Americans from membership (the Forest Lake Club admitted its first African American member in 2017).[16]

Overall Assessment

Given his fame as the prosecutor who successfully convicted Dylann Roof, Richardson is not an easy nominee for senators to oppose (the attack ads write themselves).  Nevertheless, even setting the Roof case aside, it is hard to deny that Richardson is qualified for a seat on the federal bench.

First, Richardson has impeccable academic credentials, including having clerked for two of the most influential judges in the country.  Second, Richardson boasts complex litigation experience on both the civil and criminal side.  Additionally, Richardson’s relative reticence on public policy issues and his relative lack of controversy also favor his confirmation.  Furthermore, while Richardson is a member of the Federalist Society, his membership is relatively recent and has not been accompanied by any extensive speaking or political activity.

Overall, barring any unexpected developments, Richardson will likely be confirmed in due course.  On the bench, Richardson looks likely to chart a conservative course, but may, like Posner before him, surprise.


[1] Sen. Comm. on the Judiciary, 115th Congress, Julius Ness Richardson: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id. at 30.

[4] Id.

[5] Standard Iron Works v. Arcelormittal et al., 639 F. Supp. 2d 877 (N.D. Ill. 2009) (denying Defendant steel producers’ motion to dismiss).

[6] See Matt Zapotosky, Roof’s Journal of Racist Rants Revealed on Emotional Day, Wash. Post, Jan. 6, 2017.

[7] Alan Blinder and Kevin Sack, Dylann Roof is Sentenced to Death in Charleston Church Massacre, N.Y. Times, Jan. 10, 2017.

[8] United States v. Roof, 225 F. Supp. 3d 413 (D.S.C. 2016).

[9] United States v. Teran, 496 Fed. App’x. 287 (4th Cir. 2012).

[10] Chris Dixon, Judge Rejects Plea Deal for South Carolina Sheriff, N.Y. Times, Dec. 18, 2014.

[11] Julius Ness Richardson, Shifting the Burden of Production Under Rule 4(k)(2): A Cost-Minimizing Approach, 69 U. Chi. L. Rev. 1427 (Summer 2002).

[12] Id. at 1431

[13] See id. at 1437-39.

[14] Id. at 1441.

[15] See Richardson, supra n. 1 at 5.

[16] Id. at 5-6.