Joseph Dawson – Nominee to the U.S. District Court for the District of South Carolina

The J. Waites Waring Judicial Center in Charleston, SC

There has never been an African American judge on the South Carolina federal bench appointed by a Republican President.  If confirmed, Charleston County attorney Joseph Dawson would break that notable barrier.

Background

Born in 1970, Joseph Dawson III received a B.A. from The Citadel in 1991 and a J.D. from the University of South Carolina Law School in 1997.[1]  While a law student, Dawson worked as a clerk at the Charleston County Attorney’s Office.  Upon graduation, Dawson was hired there as an Assistant County Attorney.  In 2000, Dawson became Deputy County Attorney and has served as County Attorney since 2001.[2] 

Additionally, Dawson has also maintained a part-time solo practice since 2001.

History of the Seat

The seat Dawson has been nominated for opened on February 28, 2019, with Judge Terry Wooten’s move to senior status.  Dawson was nominated on October 23, 2020 at the recommendation of U.S. Sen. Tim Scott.

Legal Experience

Dawson’s primary role is as County Attorney for Charleston County.  In this capacity, Dawson oversees all legal matters for the County and manages the County Attorney’s Office, with a budget of approximately $1.7 million.[3]  Among Dawson’s more prominent cases, he was the primary lawyer defending the County Assessor in a suit challenging tax assessments laid against a new Hampton Inn & Suites.[4]  After losing the suit at trial, Dawson appealed the matter to the South Carolina Court of Appeals and the South Carolina Supreme Court, which ultimately upheld the assessment.[5]

However, Dawson’s tenure as County Attorney has not been without some controversy.  In 2011, Dawson drew criticism for drawing an income of over $300,000 a year from the County, significantly more than other County Attorneys across the state.[6]  Dawson’s contract maintained a fixed salary of $172,500 but permitted compensation for additional legal services, which allowed for the greater income.[7] 

Overall Assessment

Salary issues aside, there is little in Dawson’s background that should attract controversy during his confirmation.  Rather, the biggest issue Dawson is facing is the depleting Senate calendar.  Nonetheless, I expect that, as Dawson has already received a hearing and the Judiciary Chairman is his home-state senator, his nomination will be one of the last confirmed before the end of the Congress.


[1] Sen. Comm. on the Judiciary, 116th Cong., Joseph Dawson III: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 17-18.

[4] See Charleston Cnty. Assessor v. Univ. Ventures, LLC, 427 S.C. 273 (2019).

[5] Id. 

[6] Bill Sharpe, Charleston County Attorney Dodges Questions About His Salary, Live 5 News, May 3, 2011, https://www.live5news.com/story/14566073/charleston-county-attorney-dodges-questions-about-his-salary/.

[7] See id.

Charles Atchley – Nominee to the U.S. District Court for the Eastern District of Tennessee

Longtime federal prosecutor Charles Atchley is President Trump’s latest nominee to the U.S. District Court for the Eastern District of Tennessee.  While Atchley has the support of his home-state senators, he has a very short confirmation window before the end of the year.

Background

A Tennessee native, Charles Edward Atchley Jr. was born in Knoxville in 1966.  He graduated from the University of Tennessee in 1989 and then attended Cumberland School of Law at Samford University, graduating in 1993.[1]  Atchley then joined the Office of the District Attorney General as a state prosecutor in 1994.

In 2001, Atchley became a federal prosecutor at the U.S. Attorney’s Office for the Eastern District of Tennessee.[2]  Atchley became First Assistant with the Office in 2018 and has served in that capacity since.  

History of the Seat

Atchley has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on March 10, 2020, when Judge Harry Mattice moved to senior status.  Atchley applied for a federal judgeship and was recommended by Tennessee’s senators to the White House in September 2019.[3]  However, he was not formally nominated until September 2020, more than a year later.

Legal Career

Atchley has spent virtually his entire legal career as a prosecutor, spending seven years at the state level and nineteen at the federal level.  In this time, Atchley has tried more than 50 cases to judgment or verdict.[4]

During his time as a prosecutor, Atchley has handled a number of high profile cases, most notably prosecuting Allen Ho for trying to recruit nuclear experts to help the Chinese government.[5]  Atchley also prosecuted Tennessee Rep. Joseph Armstrong, a Democrat, for allegedly manipulating the state’s cigarette tax system to make more than $300,000.[6]  Additionally, Atchley prosecuted four Campbell County Sheriff’s deputies for the beating and torture of a suspected drug dealer.[7] 

Overall Assessment

As a relatively apolitical career prosecutor, Atchley’s nomination is likely to be fairly uncontroversial, except for its timing.  With the Trump Administration’s term winding down, Democrats are likely to oppose any nominee at this late stage, arguing that these seats deserve to be filled by President Biden.  If Republicans stick together and prioritize the nomination, they are likely to be able to push Atchley onto the bench.


[1] Sen. Comm. on the Judiciary, 116th Cong., Charles E. Atchley Jr: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 30-31.

[4] Id. at 17.

[5] See Robin Pagnamenta, Nuclear ‘Spy’ Claims FBI Tricked Him Into Confession, The London Times, Aug. 18, 2016.

[6] Erik Schelzig, Prosecutors: Tennessee Lawmaker Acted ‘Above the Law’, A.P. State & Local, Aug. 2, 2016.

[7] See Four Former Campbell Officers Sentenced in Torture Case, A.P. State & Local Wire, July 13, 2005.

Katherine Crytzer – Nominee to the U.S. District Court for the Eastern District of Tennessee

36-year-old Katherine Crytzer was already before the Senate seeking an executive appointment when she was nominated for a federal judgeship.  While Crytzer’s nomination to be Inspector General was never confirmed by the Senate, her nomination to be a federal judge remains an open question.

Background

Born in 1984, Katherine A. Crytzer graduated from Middle Tennessee State University in 2006 and attended George Mason University Law School, graduating in 2009.  Crytzer then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.

After her clerkship, Crytzer joined Kirkland & Ellis as an associate.  In 2014, Crytzer joined the U.S. Attorney’s Office for the Eastern District of Kentucky as a federal prosecutor.  In 2017, Crytzer joined the Office of Legal Policy at the Department of Justice.  Since 2020, Crytzer has served as Principal Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In 2020, Crytzer was nominated to be the Inspector General for the Tennessee Valley Authority, replacing acting Inspector General Jill Matthews.[1]  However, Crytzer’s nomination came under fire for her refusal to disavow the Administration’s practice of dismissing Inspector Generals for their investigation and oversight activities.[2]  Crytzer’s nomination cleared the Senate Environment and Public Works Committee by a narrow 12-11 vote, but never received a vote on the Senate floor.

History of the Seat

Crytzer has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on September 10, 2020, with the untimely death of Judge Pamela Reeves.

Legal Career

Crytzer started her legal career by clerking on the U.S. Court of Appeals for the Eighth Circuit and then in private practice at Kirkland & Ellis.  While at the firm, Crytzer was part of a legal team that challenged California’s Low Carbon Fuel Standard as being pre-empted by federal law, and discriminating against interstate commerce in violation of the Dormant Commerce Clause.[3]

From 2014 to 2017, Crytzer worked as a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Kentucky.  As a prosecutor, Crytzer argued before the Sixth Circuit in support of the stop, detention, and frisk of suspected drug traffickers.[4]  A 2-1 decision of the Sixth Circuit held that the Officer lacked probable cause for the frisk, and vacated the conviction.[5] 

Since 2017, Crytzer has worked at the Department of Legal Policy, working primarily on judicial nominations.  In this role, Crytzer helped “shepherd” the nomination of Justice Brett Kavanaugh through the Senate.[6]

Writings

As a law student, Crytzer authored a law review article considering when, under Supreme Court precedent, the publication of unfavorable information about a public employee implicates their due process interests.[7]  Crytzer argued that the Supreme Court should confirm an “actual publication” test adopted by two circuits, holding that the only way that an employee’s due process rights would be harmed is with the “actual publication” of the unfavorable information to third parties.[8]

Overall Assessment

With less than ten weeks left in the Trump Presidency, Crytzer faces a narrow window for confirmation.  Additionally, given her youth, the opposition to her executive appointment, and her work on Justice Kavanaugh’s confirmation process, Crytzer is likely to be considered a controversial nominee.


[1] Georgiana Vines, Katie Crytzer Introduced as Potential TVA Inspector General, Knox News, May 31, 2020, https://www.knoxnews.com/story/news/columnists/georgiana-vines/2020/06/01/katie-crytzer-introduced-potential-tva-inspector-general/5284749002/.

[2] Newswire, Democrats Balk at TVA Inspector General Pick, Greenwire, July 1, 2020.

[3] See Rocky Mt. Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2012).

[4] See United States v. Noble, 762 F.3d 509 (6th Cir. 2014).

[5] See id. at 529.

[6] See Jerry Lambe, Trump’s Latest Judicial Nominee Is DOJ Attorney Who Helped Kavanaugh’s Confirmation to Supreme Court, Newstex Blogs, Sept. 16, 2020.

[7] Katherine Crytzer, You’re Fired! Bishop v. Wood: When Does a Letter in a Former Public Employee’s Personnel File Deny a Due Process Liberty Right, 16 Geo. Mason L. Rev. 447 (Winter 2009).

[8] See id. at 449.

Thomas Kirsch – Nominee to the U.S. Court of Appeals for the Seventh Circuit

U.S. Attorney Thomas Kirsch, nominated to replace now-Justice Amy Coney Barrett, has an exceedingly narrow time window to confirmation.  Nonetheless, with the Presidency switching parties in two months, Republicans are nonetheless expected to prioritize the nomination.

Background

Thomas Lee Kirsch II was born on January 25, 1974.  He attended Indiana University, graduating in 1996.  He then received his J.D. from Harvard Law School in 1999.  After graduating, Kirsch clerked for Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana.[1] 

After his clerkship, Kirsch spent a year at the firm of Jenner & Block and then joined the U.S. Attorney’s Office for the Northern District of Indiana as a federal prosecutor.  In 2006, Kirsch was detailed to Main Justice as Counsel for the Office of Legal Policy.

In 2008, Kirsch left to join the Chicago office of Winston & Strawn as a Partner.  He worked as the firm until he was chosen to be U.S. Attorney for the Northern District of Indiana by the Trump Administration in 2017.[2]  He continues to work in that capacity today.

History of the Seat

Kirsch has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on October 26, 2020, when Judge Amy Coney Barrett was elevated to the U.S. Supreme Court.  Kirsch’s nomination was announced five days earlier on October 21, 2020.

Political Activity

Kirsch has occasionally donated to political candidates, exclusively Republicans.[3]  Among the recipients are Sen. John McCain, Sen. Richard Lugar, Sen. Mitt Romney, Rep. Todd Rokita, and Sen. Todd Young.

Legal Practice

Kirsch’s first legal position after his clerkship was at Jenner & Block.  Since that point, he has extensive experience in two primary roles: as a federal prosecutor; and as a defense attorney at Winston & Strawn.

Federal Prosecutor

From 2001 to 2008, Kirsch worked as a federal prosecutor in the Northern District of Indiana.  During his time with the office, Kirsch prosecuted James Fife, an aide to East Chicago Mayor Robert Pastrick, for hiding hundreds of thousands of dollars in public money.[4]

Winston & Strawn

In 2008, Kirsch joined the Chicago Office of Winston & Strawn as a partner.  At Winston, Kirsch primarily focused on white collar criminal defense, including advising companies that were targets of government investigations.  

Among the most notable cases he handled at Winston, Kirsch represented William Cellini, an Illinois Republican with close ties to former Gov. Rod Blagojevich who was convicted for extorting campaign contributions from Blagojevich.[5]  Kirsch also represented TV pitchman Kevin Trudeau, who was convicted of lying in his infomercials.[6] 

U.S. Attorney

Since 2017, Kirsch has served as U.S. Attorney for the Northern District of Indiana.  In this role, Kirsch leads all federal prosecutors in the district, sets enforcement priorities, and handles high profile matters.  Notably, shortly after his confirmation, Kirsch had to oversee a series of high-profile prosecutions related to the use of pipe bombs.  For example, Kirsch prosecuted GOP activist Eric Krieg for mailing a pipe bomb to an attorney (the bomb exploded at a post office).[7]  More recently, Kirsch has led investigations into scammers targeting individuals during the coronavirus pandemic.[8]

Writings

As an associate at Jenner & Block, Kirsch authored an article discussing the difficulties of securing victim cooperation in prosecuting domestic violence.[9]  In the article, Kirsch discusses various factors that might lead victims not to cooperate with prosecutors, and evaluates the possibility of forcing victims to testify.  Kirsch ultimately concludes that the costs of forcing a victim to participate, which include the possibility of retraumatizing the victim, ultimately outweigh the benefits.[10]

Overall Assessment

As Barrett was undergoing confirmation to the U.S. Supreme Court, the White House vetted a number of candidates for the Seventh Circuit, including White House attorney Kate Todd.[11]  In choosing Kirsch over a younger, more ideological choice like Todd, the White House is recognizing the political reality.  No President since Jimmy Carter has seen a post-election confirmation of an appellate nominee (and the confirmation of Judge Stephen Breyer late in 1980 was only done with the acquiescence of Senate Republicans).  With Democrats unlikely to endorse filling judgeships this late in the Trump Presidency, Republicans will have to stick together to confirm Kirsch.  The good news for Kirsch backers is that the nominee is unlikely to incite much opposition and, barring any unexpected developments, Republicans are likely to squeeze him through.


[1] Tinder was later elevated to the Seventh Circuit and held the seat that Kirsch now seeks appointment to.

[4] See A.P., Former East Chicago Mayor Aide Gets Prison Time for Hiding Money, A.P. State & Local Wire, Apr. 3, 2006.

[5] See Michael Tarm, Prosecutors: Cellini Deserves 8 Years in Prison, A.P. State & Local Wire, July 13, 2012.

[6] See Michael Tarm, TV Pitchman Jailed After Jurors Find Him Guilty, A.P. State & Local Wire, Nov. 12, 2013.

[7] A.P., Man Gets 29 Years for Post Office Pipe Bomb Addressed to Lawyer, The Indiana Lawyer, Apr. 5, 2019, https://www.theindianalawyer.com/articles/49911-man-gets-29-years-for-post-office-pipe-bomb-addressed-to-lawyer.

[8] See Marek Mazurek, Scammers Capitalize on Virus Fears, South Bend Tribune, Apr. 13, 2020.

[9]Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims Be Forced to Participate in the Prosecution of Their Abusers?, 7 Wm. & Mary J. of Women & L. 383 (Winter 2001).

[10] See id. at 426-27.

[11] Chip Somodeville, Trump and McConnell Are Reportedly Already Discussing Amy Coney Barrett’s 7th Circuit Replacement, The Week, Sept. 28, 2020, https://theweek.com/speedreads/940066/trump-mcconnell-are-reportedly-already-discussing-amy-coney-barretts-7th-circuit-replacement.   

When Judges Disagree – Dissents From Judge Barrett’s Positions

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  Last post, we looked at key cases in which Judge Barrett concurred or dissented from the majority on her panel.  Today, we review cases where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Reynolds v. Hepp, 902 F.3d 699 (7th Cir. 2018) – This was a collateral challenge to a conviction where the state of Wisconsin cut off payment to the plaintiff’s attorney during his appeal.  Barrett joined the majority opinion by Judge David Hamilton dismissing the suit under the deferential standard of review.  Judge Diane Wood dissented, arguing that the attorney had prejudiced the petitioner by ceasing work on the appeal after the state had cut off funding, and that the state court decision denying relief was an unreasonable application of Supreme Court precedent.

Immigration Appeals

Alvarenga-Flores v. Sessions, 901 F.3d 922 (7th Cir. 2018) – Mr. Alvarenga-Flores was seeking asylum in the United States, arguing that he was under threat from gang members in El Salvador.  An immigration judge ruled against him, finding him not credible, and the Board of Immigration Appeals affirmed.  Barrett wrote for the panel majority in affirming the Board.  Judge Thomas Durkin, sitting by designation, dissented in part, disagreeing that the adverse credibility determination was justified.

Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019) – In this case, the plaintiff, a U.S. citizen, challenged the denial of a visa to his wife, alleging that the consular official made up a claim that his wife had attempted to smuggle children into the United States.  Barrett wrote for the majority in dismissing the claim under the consular non-reviewability doctrine, which holds that visa decisions cannot be challenged in federal court.  Judge Kenneth Ripple dissented, arguing that the doctrine departed from Supreme Court precedent and was read too broadly by the majority.  The Seventh Circuit later denied en banc rehearing over the opinion, with Judges Diane Wood, Ilana Rovner, and David Hamilton dissenting, stating that the majority opinion was “a dangerous abdication of judicial responsibility.”  Barrett authored a concurrence, joined by Judge Joel Flaum, defending her opinion.  In the concurrence, Barrett argued that her position was compelled by Supreme Court precedent.

Civil Procedure

Webb v. Financial Indus. Regulatory Auth., 889 F.3d 853 (7th Cir. 2018) – 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 at the pleading stage, the amount had been satisfied.

Employment Law

United States EEOC v. Autozone, Inc., 875 F.3d 860 (7th Cir. 2017) – The question in this case was whether a business’ decision to intentionally segregate their employees by race between stores violated Title VII of the Civil Rights Act.  A panel of the Seventh Circuit held that, without evidence that such division adversely affected the employees, there was no Title VII violation.  The Seventh Circuit then denied en banc rehearing, with Barrett voting not to rehear the decision.  In her dissent from denial of rehearing, Judge Diane Wood argued that the decision essentially enshrined “separate but equal” into Title VII.

Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc) – The key question in this case was whether the Age Discrimination in Employment Act (“ADEA”) allowed job applicants to sue under a disparate impact theory of discrimination.  A seven-judge majority on the court, including Barrett, joined the opinion of Judge Michael Scudder, who held that job applicants, unlike employees, were not permitted to file disparate impact claims under ADEA.  Judge David Hamilton dissented on behalf of four judges.

Equal Protection

St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003 (7th Cir. 2019) – This case involved a challenge to the Milwaukee School District’s policy of adding extra restrictions to private schools who wished to participate in the district’s busing program.  Barrett joined Judge Amy St. Eve in finding the differential treatment to be constitutional under rational basis review.  Judge Diane Sykes dissented.

Van Dyke v. Vill. of Alsip, 2020 U.S. LEXIS 27943 (7th Cir. Sept. 2, 2020) – This case involved a challenge to a zoning restriction that prevented the plaintiff from renting out her garden apartment.  The Seventh Circuit, with Barrett joining, rejected the plaintiff’s takings and equal protection claims in an unsigned order.  Judge Ilana Rovner dissented, finding that the plaintiff had stated a claim on her equal protection challenge.

Tort Litigation

Chronis v. United States, 932 F.3d 544 (7th Cir. 2019) – The question in this case was whether the district court erred in dismissing the plaintiff’s tort claim against the federal government for failure to send a demand letter before suing.  Barrett wrote for the panel majority in dismissing the claim, finding that the plaintiff had failed to make a proper demand before suing.  Judge Ilana Rovner dissented, arguing that the court should adopt a more flexible standard to permit plaintiffs to be able to not have cases thrown out because of “technical deficiencies.” 

1983 & Prisoner Suits

J.K.J. v. Polk Cty., 960 F.3d 367 (7th Cir. 2020) (en banc) – This case involved a civil rights suit brought by two women who were repeatedly sexually assaulted by a correctional officer.  A panel of the Seventh Circuit overturned a jury verdict in favor of the plaintiffs, and the Seventh Circuit reversed the panel on a 7-4 vote.  Barrett joined the majority opinion by Judge Michael Scudder upholding the jury verdict in favor of the women.  Judges Frank Easterbrook and Michael Brennan authored separate dissents.

Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (en banc) – This was a class action suit brought by inmates at Lincoln Correctional Center who were subjected to mass strip searches as part of cadet training exercises.  Barrett joined the majority on the en banc court in holding that the Fourth Amendment protected the right of bodily privacy to the inmates, and thus, summary judgment should not have been granted against the plaintiffs.  Judge Frank Easterbrook was the sole dissenter, finding that there was no evidence of bad intent by the prison official.

Hildreth v. Butler, 2020 U.S. App. LEXIS 26377 (7th Cir. Aug. 19, 2020) – In this case, a 2-1 panel of the Seventh Circuit denied the appeal of a prisoner alleging that prison officials failed to refill needed medication, holding that there was insufficient evidence of deliberate indifference.  A judge sought an en banc vote, and the court denied rehearing 7-4, with Barrett voting to deny en banc rehearing.  

When Judges Disagree – Judge Amy Coney Barrett’s Concurrences and Dissents

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  To that end, we have summarized key cases in which Judge Barrett concurred or dissented from the majority on her panel.  We’ll then follow up with a post where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018), rev’d en banc, 911 F.3d 469 (7th Cir. 2018).   – This 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.  Barrett’s view was ultimately vindicated by the en banc Seventh Circuit, where the full court held in a 8-3 decision that, while the ex parte hearing was “constitutionally dubious,” it could not be reversed under the deferential standard that federal courts must apply when reviewing state court decisions.

Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019).  – This was a collateral challenge to the defendant’s attempted murder conviction.  After his conviction, it came to light that the prosecutor had withheld evidence that the sole witness to identify the defendant had undergone hypnosis prior to trial to enhance his recollection of the incident.  On habeas review, the majority of the Seventh Circuit panel overturned the conviction, in an opinion by Judge William Bauer.  Bauer found that the evidence was required to be disclosed under the Supreme Court’s rulings in Brady v. Maryland and Giglio v. United States, and that the prosecutor’s case rested on the eyewitness testimony, making the disclosure essential.  Barrett dissented, arguing that, while the lack of disclosure did violate the defendant’s rights under Brady, the state court decisions refusing relief were not an unreasonable application of Supreme Court precedent, and, as such, there was no basis for the Seventh Circuit to grant relief.  

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019). – The question in this case was whether the petitioner’s conviction for “escape” qualified as a violent felony under the Armed Career Criminal Act.  Judge Michael Scudder wrote for the court in ruling that the conviction did not so qualify based on recent precedent narrowing the scope of the Act.  Barrett concurred, but wrote separately to argue that the court needs to simplify the caselaw addressing such petitions.

United States v. Rutherford, 810 Fed. App’x 464 (7th Cir. June 23, 2020).This suit involved an appeal filed by an individual seeking resentencing under the First Step Act.  In an unpublished order, the Seventh Circuit exercised jurisdiction but affirmed the district court’s decision regarding the sentence.  Barrett dissented, arguing that the appeal was not timely, and, as such, the Seventh Circuit lacked jurisdiction over the appeal. 

United States v. Wilson, 963 F.3d 701 (7th Cir. 2020). – The question in this case was whether police had reasonable suspicion to stop and search the defendant based on a dispatch call description that did not match the defendant.  Judge Daniel Manion, writing for the court, found that the police had reasonable suspicion based on the totality of all the facts.  Barrett concurred, noting that, while the defendant “wasn’t even in the ballpark” when compared to the dispatch description, his flight from the police justified their subsequent stop and search under Supreme Court precedent. 

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. 2020) (en banc).In this case, an 8-3 majority of the en banc Seventh Circuit held that the First Step Act could be applied to the benefit of a defendant who had committed his offense and was convicted before the Act’s passage, but had his sentence vacated and was resentenced after. Barrett authored a dissent joined by Judges Michael Brennan and Michael Scudder, arguing that the Act should not apply to the defendant because he was initially sentenced prior to the Act’s passage, and that the subsequent vacating of the sentence by the Seventh Circuit did not allow him to take advantage of the Act. 

Second Amendment

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). – This was a Second Amendment challenge to federal statutes that barred the plaintiff, who had been convicted of one count of mail fraud, from owning a gun as a felon.  Judge Joel Flaum, writing for the panel majority, rejected the challenge, finding that the Supreme Court had expressly noted the constitutionality of felon dispossession laws under D.C. v. Heller and McDonald v. City of Chicago.  Judge Flaum then found that historical evidence regarding the scope of felon dispossession was inconclusive, and, applying intermediate scrutiny, upheld the laws. Barrett dissented, arguing that the history of gun rights showed that felons were traditionally only barred from holding weapons when there was evidence of their dangerousness.  As such, Barrett argued that a blanket ban on felons owning weapons violated the Second Amendment. 

Section 1983 Suits

McCottrell v. White, 933 F.3d 651 (7th Cir. 2019). – This case involved a 1983 suit for injuries brought by inmates in an Illinois prison who were injured after guards fired warning shots with a shotgun over a crowded prison hall.  Judge Ilana Rovner, writing for the panel majority, held that the injuries suffered by the inmates were sufficiently serious to potentially violate the Eighth Amendment, and that disputes of material facts between the parties needed to be resolved by a jury.  Barrett dissented, arguing that, as plaintiffs admitted that the guards were not intentionally trying to hit anyone with the shotgun, they could not prove that the guards acted “maliciously and sadistically” and, as such, could not recover. 

Williams v. Wexford Health Sources, Inc., 957 F.3d 828 (7th Cir. 2020).The question in this case was whether, under Illinois law, a prisoner exhausted his administrative claims by filing an emergency petition in the prison system. Judge Diane Wood, writing for the panel, held that the prisoner had exhausted his remedies as he reasonably believed that filing the emergency procedure was necessary.  Barrett concurred, disagreeing that the inmate had exhausted his remedies, but arguing that the prison had failed to prove lack of exhaustion under their burden. 

Reproductive Rights

Planned Parenthood of Ind. & Ky. v. Box, 949 F.3d 997 (7th Cir. 2019) (en banc). – After a district court judge granted an injunction banning a series of Indiana restrictions on abortion clinics, and a 2-1 panel of the Seventh Circuit affirmed, the state sought en banc rehearing before the 11 judge court.  The court denied rehearing by a 6-5 margin.  While Barrett did not write her own dissent, she joined a dissent to denial of en banc rehearing written by Judge Michael Kanne, who argued that the full court should have considered the scope of pre-enforcement challenges to state laws. 

Administrative Law

Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020). – This was a challenge to the Trump Administration’s “public charge” rule, which interpreted the Immigration and Nationality Act (“INA”) to deny admission to the U.S. or adjustment of status to any individual who receives certain cash and non-cash government benefits.  Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois granted an injunction against the regulation, and a divided panel of the Seventh Circuit denied to stay Judge Feinerman’s injunction.  Barrett dissented against the denial of stay.  After the Supreme Court stepped in and stayed the injunction, the Seventh Circuit affirmed Feinerman’s ruling striking down the regulation on the merits.  Barrett dissented again, arguing that the regulation is a reasonable interpretation of the INA’s ambiguity on defining a public charge. 

The Post-RBG World

Justice Ruth Bader Ginsburg: trailblazing icon; civil rights veteran; judicial superstar; the Notorious RBG.  Justice Ginsburg was an institution in American law and popular culture, and it’s difficult to imagine a world, let alone a court, without her characteristic witty asides and sharp questions.  Given Justice Ginsburg’s current status as a liberal icon, it’s hard to believe that she was actually considered a conservative choice when President Clinton picked her for the Supreme Court in 1993, pushed by Sen. Orrin Hatch (R-UT) as a moderate consensus-builder.  Now, whether Justice Ginsburg shifted leftwards on the court or whether the court moved to the right depends on who you talk to, but Justice Ginsburg’s passing certainly leaves a void on the Supreme Court’s left flank.  Sadly, we, as a country, don’t have much time to mourn and reflect upon her life and legacy.  You see, the battle is coming.

“Hypocrisy” v. Politics

The last Supreme Court Justice to die on the Court was Justice Antonin Scalia.  The conservative powerhouse passed away on February 13, 2016, and Senate Majority Leader Mitch McConnell almost immediately declared that, because it was an election year, the Senate would not consider a nomination to fill the vacancy.  Surprising almost no one, McConnell now has vowed that the Senate will vote on President Trump’s nominee, even though this vacancy opened more than seven months later into the year than the vacancy from Justice Scalia, and though Americans are already voting to potentially replace President Trump.

Now, some have decried the hypocrisy of this, while others have defended his stance, following the principle that it is reasonable for a Senator to set different standards for members of your own party versus another party.

Regardless, McConnell has a thin needle to thread here.  As of this writing, already two Senate Republicans have come out in opposition to considering any nominee before the November elections, which means McConnell can afford only one more defection before he loses his leverage.  Now, some  argue that McConnell would not take such a firm stance if he did not have the votes to back it up.  However, those individuals would do well to look at Sen. John McCain’s defeat of the ACA Repeal in 2017 and the last-minute sinking of Ryan Bounds’ nomination to the Ninth Circuit in 2018.  The Majority Leader, masterful as he is, is not infallible.

Additionally, the timing of this vacancy is not great for Republicans.  We are now six weeks to November 3, election day.  No nominee has been confirmed within six weeks of announcement since Justice John Paul Stevens in 1975.  Simply put, there isn’t enough time.  The modern confirmation process (at least on the Supreme Court level) takes too long.

So, even if President Trump announces a nominee today, the vote on confirmation isn’t coming until the lame duck, at which point, either Trump has won re-election, which eases the pressure, or he has lost, which opens a new Pandora’s box.

The Front-Runners

Ever since her confirmation to the Seventh Circuit in 2017, Judge Amy Coney Barrett has been considered heir apparent to the Supreme Court.  It’s understandable why: Judge Barrett is well-credentialed, young (48), and very conservative.  She is rightly deemed the frontrunner to fill this vacancy.  She will also probably be the nominee.  President Trump, for all his mercurial temperament, has been fairly stolid in his Supreme Court choices, both times picking the conventional frontrunners over less conventional choices.  In any other year, one could confidently say that Judge Amy Coney Barrett will be the nominee.

However, this is an election year.  Specifically, it’s an election year in which the President has been consistently trailing his opponent in polls and one where he needs to use the nomination as a tool to upend the stability of the race.  As such, it would not surprise me to see the President turn to two more unconventional choices from his Supreme Court list.

One is Judge Barbara Lagoa from the Eleventh Circuit.  Lagoa was specifically identified by the President as a possible nominee for this seat, and has two major plus points going for her.  First, Lagoa is from Florida, a key swing state where the President needs to win in order to secure re-election.  Second, Lagoa is Hispanic (in fact, the only Hispanic nominee to the Court of Appeals made by President Trump).  In an election where Hispanics make up a key voting bloc, nominating Lagoa could be a key strategic move by the President to seek an advantage.

The other is Judge Bridget Bade from the U.S. Court of Appeals for the Ninth Circuit. Although she is also on the President’s shortlist, Bade’s name doesn’t come up as often as Lagoa’s or Barrett’s.  However, Bade could neutralize a key ticking time bomb for the President.  Namely, in Arizona, appointed Sen. Martha McSally is consistently running behind Democratic candidate Mark Kelly in the polls.  If Kelly defeats McSally, he could, in theory, be appointed to replace her immediately (as this race is a special election), which would cut the GOP majority they’ll need to confirm a nominee.  Appointing Bade could put both Kelly and Sen. Kyrsten Sinema in a tricky position, as they’d have to stand against a popular judge from their own state.  Even if one of them flips to support Bade, that’d ease the path to confirmation quite significantly.

The Storm to Come

As noted above, regardless of who the nominee will be, the risks to moving forward on a nominee are great.  Gone are the days when Supreme Court  confirmations were largely intellectual exercises.  It is now a body sport where nothing less than total victory is celebrated.  Unfortunately, regardless of whoever wins this particular nomination fight, the country as a whole is likely to have lost.

One can only hope that advocates and senators avoid bombast and brinksmanship, set out clear lines of principle in nominations and confirmations that apply equally to nominees of either party, and take us back to a bipartisan and nonpartisan confirmation process.  Then again, I’m not holding my breath.  The era of RBG is truly over.

Stephen Kubiatowski – 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 six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, and the Senate has moved comparatively slowly on their nominations. With less than three months left in his current term, the President has caught up, putting forward a nominee for the final vacancy: Stephen Kubiatowski.

Background

Stephen Andrew Kubiatowski received his B.A. from Dartmouth College in 1988 and his J.D. from Columbia University School of Law in 1991.[1]  After graduation, Kubiatowski clerked for Judge Michael Kanne for the U.S. Court of Appeals for the Seventh Circuit.[2]

After his clerkship, Kubiatowski joined Mayer Brown as an Associate.  In 1995, he joined the Independent Counsel’s office for the Whitewater Investigation.[3]  Two years later, he became a federal prosecutor with the U.S. Attorney’s Office for the Central District of Illinois.  In 2001, he moved to the U.S. Attorney’s Office for the Northern District of Illinois.[4] 

In 2015, Kubiatowski became a Partner with Faegre Baker Daniels LLP.  He left a year later to be SVP and Deputy General Counsel with Kindred Healthcare, where he currently works.

History of the Seat

Kubiatowski 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 Kubiatowski was nominated for will open up when Judge Margaret Sweeney’s term expires on October 24, 2020.

Legal Experience

While Kubiatowski started his career in private practice, he has spent the bulk of his career working for the federal government, primarily as a prosecutor.  For example, in that role, Kubiatowski worked as part of a task force targeting health care scams.[5]

In other prosecutions, Kubiatowski prosecuted Richard Collins for defrauding investors of nearly $11 million, a prosecution in which Judge Suzanne Conlon rejected Kubiatowski’s request for a seven year sentence, instead imposing a ten year prison term.[6]  Kubiatowski also prosecuted an Oak Brook couple for making furnishing out of illegally imported animal products,[7] and Tomasz Soltys for assaulting a passenger and flight staff for refusing to let him leave an in-flight aircraft to smoke.[8]

Kubiatowski has also been the defendant in a long-running lawsuit filed by Julio Villars, who was detained as a material witness in a drug trial based on Kubiatowski’s affidavit.[9]  After numerous defective complaints, Judge Robert Dow permitted two counts against Kubiatowski to proceed for failure to comply with requirements for biweekly reports to the court during detention.[10]  The suit ended in 2019 with a grant of summary judgment in Kubiatowski’s favor.[11]

Overall Assessment

Given Kubiatowski’s long experience with litigation in government, he is likely to be deemed qualified for an appointment to the Court of Federal Claims.  If any issues arise, they may be related to his work in the Whitewater investigation or with the suit brought against him, but such issues will be unlikely to derail his confirmation (assuming that the Senate can find the floor time).


[1]  Linkedin, Profile of Stephen Kubiatowski, https://www.linkedin.com/in/stephen-kubiatowski-b5b06467/ (last visited Sept. 13, 2020).

[2] Id. 

[3] Id.

[4] See id.

[5] Tony Cappasso, Task Force Targets Health Care Scams, Copley News Service, Dec. 28, 1997.

[6] See Shamus Toomey, 10-Year Prison Term for Fraud: Judge Shows No Mercy For Owner of Scheme, Chicago Daily Herald, July 15, 2003.

[7] Rob Olmstead, Decor Made from Wildlife Leads to Arrest, Chicago Daily Herald, Jan. 11, 2006.

[8] Rob Olmstead, Mid-Flight Nicotine Craving Leads to Assault Charge, Chicago Daily Herald, Aug. 29, 2006.

[9] See Villars v. Kubiatowski, 128 F. Supp. 3d 1039 (N.D. Ill. 2015).

[10] See id., Case No. 12-cv-4856 (N.D. Ill. Sept. 26, 2017).

[11] See id., Case No. 12-cv-4856 (N.D. Ill. Mar. 12, 2019).

Zachary Somers – 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 six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, and the Senate has moved comparatively slowly on their nominations.  The nomination of Zachary Somers, who is a Senate staffer, may move faster, however.

Background

Zachary Noah Somers received a B.A. cum laude from Georgetown University and received a J.D. from Georgetown University Law Center in 2004.  After graduating, Somers clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.

After his clerkship, Somers joined the Washington D.C. Office of Marzulla Law, LLC, where he worked on takings and breach of contract claims.  He then became Counsel at the House Committee on the Judiciary, where he served for a decade.  

Chairman Lindsey Graham has hired Somers to be his Chief Investigative Counsel for the Senate Judiciary Committee, where Somers currently works. 

History of the Seat

Somers 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 are appointed for 15-year terms.  The seat Somers was nominated will open on October 23, 2020, with Judge Thomas Wheeler’s term coming to an end.

Legal Experience

Somers started his legal career clerking and then worked in litigation at Marzulla Law, LLC., a boutique law firm.  For example, while at the firm, Somers helped litigate a lawsuit involving a challenge to the federal government’s grant of federal trust to 6.9 acres of Indian land.[1]

For the last decade, Somers has been working on Capitol Hill, working as a Counsel for the House Committee for the Judiciary, and then for the Senate Committee on the Judiciary.  In the latter role, Somers led the Committee’s investigations of the Roger Stone arrest,[2] and of Secretary of State Hillary Clinton’s use of private email servers.[3]

Writings

In 2003 and 2004, Somers served as Editor in Chief for the Georgetown Journal of Law and Public Policy.  As Editor in Chief, Somers authored a preface to the Winter 2004 edition arguing that the journal should maintain itself as a forum for conservative thought and writings.[4] 

In another article in the same issue, Somers criticized the Supreme Court’s decision in Everson v. Bd. of Educ. that erected a wall of separation between church and state, arguing that such an interpretation violated the original understanding of the First Amendment.[5]  Instead, Somers argued for a return to the original understanding of the First Amendment, which limited the Establishment Clause to the federal government, and permitted state governments to involve themselves more closely in religious activities.[6]

Overall Assessment

Generally, senate staffers who are nominated for the bench are given a certain amount of deference, as they have worked closely with colleagues who need to approve their confirmation.  Somers should benefit from such deference.  While Somers is sure to attract opposition for his role in Senate investigations and for his writings, he will nonetheless likely be expedited through the process and be confirmed by the end of the year.


[1] Pres. of Los Olivos v. United States DOI, 635 F. Supp. 2d 1076 (C.D. Cal. 2008).

[2] See Press Release, Office of Sen. Lindsey Graham, Graham: FBI Needs to Brief Committee on Roger Stone Arrest, Jan. 30, 2019.

[3] See BFH, Strzok: Clinton, DOJ Struck Deal that Blocked FBI Access to Clinton Foundation Emails on Her Private Server, iOTWreport, Mar. 15, 2019.

[4] See Zachary N. Somers, PREFACE, 2 Geo. J. L. & Pub. Pol’y 1 (Winter 2004).

[5] Zachary N. Somers, The Mythical Wall of Separation: How the Supreme Court Has Amended the Constitution, 2 Geo. J. L. & Pub. Pol’y 265 (Winter 2004).

[6] See id. at 281-82.

Hector Gonzalez – Nominee to the U.S. District Court for the Eastern District of New York

Hector Gonzalez is a well-experienced litigator whose strong Democratic party ties should win him support from Senators Chuck Schumer and Kirsten Gillibrand.  However, given the short window for confirmation left in the Senate calendar, Gonzalez is an underdog for confirmation.

Background

The 57-year-old Gonzalez got his B.S. from Manhattan College in 1985 and then attended the University of Pennsylvania Law School, graduating in 1988.[1] 

After graduation, Gonzalez started as an associate at Rogers & Wells and then joined the Manhattan District Attorney’s Office as an Assistant District Attorney in 1990.  Gonzalez then shifted over to federal prosecution in 1994, working his way to Chief of the Narcotics Unit at the U.S. Attorney’s Office of the Southern District of New York.[2] 

In 1999, Gonzalez became a Partner at Mayer Brown and moved to Dechert LLP in 2011, where he currently works and chairs the Global Litigation Practice.[3] 

In 2014, Gonzalez was recommended for a seat on the New York Court of Appeals (which ,despite its name, is New York’s highest court), but Judge Eugene Fahey was appointed instead.[4]

History of the Seat

Gonzalez has been nominated for a seat on the U.S. District Court for the Eastern District of New York to the seat vacated by Judge Brian Cogan on June 12, 2020.

Legal Career

While Gonzalez started his career as a firm associate, his first major position was as an Assistant U.S. Attorney for the Southern District of New York.  In the U.S. Attorney’s Office, Gonzalez rose to be Chief of the Narcotics Unit, practicing both at the trial level and the Second Circuit.  In 1999, Gonzalez moved to Mayer Brown Rowe & Maw LLP.  At Mayer Brown, Gonzalez notably was one of the lead attorneys represented telecommunications companies in the landmark Bell Atlantic v. Twombly case, which tightened pleading requirements for plaintiffs in the federal government.[5]

Since 2011, Gonzalez has been a Partner with Dechert LLP.  While at the firm, Gonzalez represented the Takata Corporation in investigations of airbag inflator ruptures.[6]  He also represented the Bank of New York Mellon in a series of investigations and litigation.[7]

Political Activity

Gonzalez’s political history is strongly Democratic.  Over the course of his career, Gonzalez has given to President Obama, Hillary Clinton, Sen. Kirsten Gillibrand, a number of New York house members, and Montana Governor Steve Bullock.[8]

Civilian Complaint Review Board

In 2002, Gonzalez was named by New York City Mayor Michael Bloomberg to be Chairman of the Civilian Complaint Review Board, an independent agency that investigates police misconduct.[9]  Gonzalez’s tenure almost immediately was bogged in controversy when a whistleblower claimed that the agency ignored racial discrimination and was biased towards police.[10]  As Chairman, Gonzalez pushed back against strip searching practices in the NYPD, recommending new training on the issue.[11]  Additionally, Gonzalez led the Board as it charged a deputy chief with misconduct for ordering the arrest of a protester at the 2004 Republican National Convention.[12]  The action, and related statements, drew sharp criticism from NYPD Commissioner Raymond Kelly, who argued that the Department had been careful in its policing.[13]  He also paradoxically was criticized for not doing enough to reign in the Police Department.[14]

Overall Assessment

Gonzalez’s record overall is fairly liberal, and his nomination by the Trump Administration is likely a nod to New York’s Democratic senators.  Nonetheless, given the short window of confirmation left this year, Senate Republicans are unlikely to prioritize Gonzalez’s nomination.  Additionally, Gonzalez is likely to face questions about his tenure supervising police misconduct issues with the NYPD, particularly given the recent focus on the role of policing in society.

Given these factors, Gonzalez is unlikely to be confirmed this year, although he may be renominated next year by a re-elected Trump Administration or by a President Biden.


[1] Hector Gonzalez, Profile, Dechert.com, available at https://www.dechert.com/people/g/hector-gonzalez.pdf (last visited Aug. 21, 2020).

[2] See Peter Lattman, Lead Rajaratnam Prosecutor to Join Dechert, N.Y. Times Blogs, Jan. 13, 2012.

[3] Denise Champagne, COA Nominees Forwarded to Governor, Daily Record of Rochester, Dec. 2, 2014.

[4] See id.

[5] See Twombly v. Bell Atl. Corp., 425 F.3d 99 (2d Cir. 2004).

[6] See Gonzalez, supra n. 1.

[7] See id. 

[9] Diane Cardwell, Bloomberg Fills Gaps, Naming Four to Posts In His Administration, N.Y. Times, Apr. 5, 2002.

[10] Kevin Flynn, Civilian Board on Police Misconduct Defends Itself on Claim That It is Soft, N.Y. Times, Sept. 25, 2002.

[11] William Rashbaum, Police Complaint Board Finds Some Strip Searches Improper, N.Y. Times, May 13, 2004.

[12] Jim Dwyer, Charges, But No Penalty, for a Chief’s Role in a Convention Arrest – Correction Appended, N.Y. Times, Mar. 9, 2006.

[13]See Bradley Hope, Complaints Spike But Police Punish Fewer Officers, N.Y. Sun, June 30, 2006.

[14] See CCRB: Dead Board Walking, NYPD Confidential, Sept. 18, 2006, http://nypdconfidential.com/print/2006p/060918p.html.