Sarah Morrison – Nominee to the U.S. District Court for the Southern District of Ohio

A prominent labor and worker’s compensation attorney from Columbus, Sarah Morrison is favored to short-handed bench where she would become the only active female judge.

Background

Morrison was born Sarah Elizabeth Daggett in Lufkin, TX on November 12, 1970.[1]  Morrison received her B.A. from Ohio State University in 1992 and her J.D. magna cum laude from Capital University Law School in 1997.[2]  Following her graduation, Morrison clerked for Judge John Holschuh on the U.S. District Court for the Southern District of Ohio.[3]

After her clerkship, Morrison joined the Columbus office of Chester, Willcox & Saxbe as an associate.  Morrison became a partner at the firm in 2005.[4]

In 2012, Morrison became General Counsel and Chief Ethics Officer at the Ohio Bureau of Worker’s Compensation.[5]  She became the Administration and Chief Executive Officer in 2016 and continues to serve in that capacity today.

History of the Seat

Morrison has been nominated for a seat on the U.S. District Court for the Southern District of Ohio.  This seat was vacated on May 2, 2016, when Judge Gregory Frost moved to senior status.  Even though this seat opened with more than eight months left in the Obama Presidency, no nomination was put forward for the seat.

In April 2017, Morrison applied for the vacancy with a selection commission put together by Ohio Senators Sherrod Brown, a Democrat, and Rob Portman, a Republican.[6]  Morrison interviewed with the Commission in late August, and was recommended to the senators.[7]  Morrison interviewed with Portman in September and the two senators jointly recommended Morrison shortly after.[8]

In October 2017, Morrison interviewed with the White House.[9]  She was officially nominated on April 12, 2018.

Legal Experience

Morrison began her legal career at Chester, Willcox & Saxbe in Columbus.  While there, Morrison focused on civil and commercial litigation.  During her time there, Morrison notably represented the National Football League (NFL) in defending against a suit filed by the widow of Korey Stringer, an offensive lineman with the Minnesota Vikings who died of heatstroke during a practice.[10]   She also represented Honda against an employment discrimination case brought by the Equal Employment Opportunity Commission.[11]  After becoming a partner at the firm, Morrison represented Ohio State University and the University of Toledo in defending against multiple employment discrimination claims.[12]

In 2012, Morrison moved to the Ohio Bureau of Worker’s Compensation, where she served as General Counsel.  In this role, she headed the Bureau’s legal department and managed both litigation and in-house work.  She has worked in a non-legal capacity as head of the Bureau in 2016.

Political Activity

Morrison has been fairly active in the Ohio Republican Party, having volunteered with the Ohio Republican Women Campaign Fund and Capital Area Republican Women.[13]  Morrison has also served on the Franklin County Republican Party Executive Committee since 2007 and volunteered for a PAC supporting Ohio Gov. John Kasich’s Presidential bid in 2016.[14]

Overall Assessment

Despite her Republican background, Morrison has obtained the support of Sen. Sherrod Brown.  At the same time, despite her work for Trump bete noire Kasich, Morrison has received a judicial nomination from the Administration.  These two facts together speak to Morrison’s general acceptability as a nominee.  Overall, given her strong support from Brown and Portman, Morrison is expected to be comfortably confirmed and add a moderate-conservative voice to the Southern District of Ohio.


[1] Sen. Comm. on the Judiciary, 115th Cong., Sarah D. Morrison: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Id.

[5] Id.

[6] Id. at 49.

[7] Id. 

[8] See id.

[9] Id.

[10] Stringer v. Nat’l Football League, Inc., 474 F. Supp. 2d 894 (S.D. Ohio 2007).

[11] EEOC and Ways v. Honda of North Amerca Mfg., No. 2:06cv233 (S.D. Ohio 2006).

[12] See Crystal Dixon v. University of Toledo, 842 F. Supp. 2d 1044 (N.D. Ohio 2012), aff’d, 702 F.3d 369 (6th Cir. 2012); Sheryl Szeinbach v. Ohio State University, No. 2:08cv822 (S.D. Ohio 2008); Rosa Rodriguez-Monguio v. Ohio State University, No. 2:08cv139 (S.D. Ohio 2008).

[13] See Morrison, supra n. 1 at 35.

[14] Id.

Judge Stephanie Gallagher – Nominee for the U.S. District Court for the District of Maryland

Judge Stephanie Gallagher is the latest of several unconfirmed Obama nominees put forward by President Trump.  While her relatively uncontroversial record secured her a unanimous approval from the Committee in 2016, it was unable to secure a final confirmation vote.  This time, she is likely to be more lucky.

Background

Gallagher was born Stephanie Marie Agli in Rockville, Connecticut in 1972.  Gallagher received a B.A. from Georgetown University in the Government Honors Program magna cum laude in 1994, and then procured a J.D. cum laude from Harvard Law School in 2007.[1]

After graduation, Gallagher clerked for Judge J. Frederick Motz on the U.S. District Court for the District of Maryland. She then joined the D.C. office of Akin, Gump, Strauss, Hauer, & Feld as an associate.[2]  In 2002, Gallagher left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Maryland.[3]

In 2008, Gallagher founder the Baltimore firm Levin & Gallagher LLC.[4]  She stayed at the firm until she was appointed as a U.S. Magistrate Judge in 2011, replacing Judge James Bredar, who had been elevated to be a U.S. District Judge.[5]

History of the Seat

Gallagher has been nominated for a seat on the U.S. District Court for the District of Maryland.  This seat opened on February 1, 2016, when Judge William Quarles moved to senior status.[6]  In March 2013, Gallagher applied to fill other vacancies that had opened on the U.S. District Court for the District of Maryland.[7]  While Gallagher was recommended by then-Sen. Barbara Mikulski (D-Md.), the Administration selected other candidates.[8]  Nevertheless, Gallagher’s name was resubmitted to the White House in 2015, and she was nominated on September 8, 2015.[9]

Gallagher’s nomination sat before the Judiciary Committee for approximately seven months before she received a hearing on April 20, 2016.  On May 19, 2016, the Committee voted unanimously to send Gallagher’s nomination to the full Senate, where she was blocked from a final vote by Senate Republican leader Mitch McConnell.

After the election of President Trump, no further action was taken on Gallagher’s nomination, and her nomination was returned unconfirmed to the President in 2017.  President Trump renominated her on June 11, 2018 to fill the same vacancy.

Legal Career

Gallagher began her legal career as an associate at Akin Gump, where she represented large corporations in civil litigation.  Notably, Gallagher was part of the defense team representing the Holy Land Foundation for Relief and Development, an Arab American charity charged with fundraising for Hamas.[10]

In 2001, Gallagher moved to the U.S. Attorney’s Office for the District of Maryland, prosecuting a variety of cases, including white collar crimes, narcotics, and firearms offenses.  In an early case, Gallagher successfully prosecuted a defendant for conspiracy to distribute marijuana, securing a 63-month sentence.[11]  She also prosecuted a defendant charged with a narcotics conspiracy and multiple homicides, leading a two-week trial and defending the conviction successfully on appeal.[12]

From 2008 to 2011, Gallagher started her own practice focusing on white collar criminal defense matters.[13]  She also handled some court-appointed criminal defense work and general civil litigation.[14]

Political Activity

Somewhat unusually, Gallagher’s political involvement is evenly divided between the two major parties.  Gallagher was a volunteer for the campaign of Gregg Bernstein, a Democrat, to serve as Baltimore City Attorney in 2010, but also hosted a fundraiser at her home for former Gov. Robert Ehrlich the same year (Ehrlich, a Republican was challenging Democratic Gov. Martin O’Malley).[15]

Her contributions reflect a similar pattern.  In 2006, Gallagher gave $250 to Democratic Sen. Ben Cardin, but two years later donated $500 to Sen. John McCain’s campaign to be U.S. President.[16]

Jurisprudence and Reversals

Gallagher has served as a U.S. Magistrate judge in Maryland since her appointment in 2011.  In this role, she handles settlement, discovery, and makes recommendations on dispositive motions.  She also presides over cases where the parties consent.  Between 2011 and 2016, Gallagher presided over one jury trial and four bench trials.[17]  Gallagher’s more prominent trials include a damages case over the disappearance of a truckload of frozen salmon,[18] the calculation of damages for a wrongful termination case under the Family and Medical Leave Act,[19] and a bench trial arising from a traffic collision at Fort Meade.[20]

Gallagher has had a relatively low reversal rate during her tenure as a U.S. Magistrate Judge.  In one prominent reversal, Gallagher granted summary judgment against a road worker who was injured during work while suspended above traffic, finding that he had assumed the risk of injury.[21]  The Fourth Circuit reversed, finding that the assumption of risk defense did not apply in that case.[22]  She was also reversed by the Fourth Circuit after holding that a civil rights plaintiff had forfeited his right to attorney’s fees by not timely filing a motion with the court after judgment.[23]

Overall Assessment

Having been recommended for the federal bench by two Democrats and previously nominated by President Obama, Gallagher should face a relatively smooth path to confirmation.  Even though her initial foray as a nominee was unsuccessful, Gallagher’s renomination by President Trump should ensure a bipartisan confirmation.


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

[2] Id. at 2.

[3] Id.

[4] Id. at 1-2.

[5] Brendan Kearney, Stephanie A. Gallagher Hearing Cases as New Magistrate Judge in Baltimore, The Daily Record, Apr. 24, 2011.

[6] Quarles, like Gallagher, was a failed judicial nominee renominated by a subsequent president.

[7] Gallagher, supra n. 1 at 39.

[8] Specifically, Judges Theodore Chuang, and George Hazel.

[9] Gallagher, supra n. 1 at 39.

[10] See James Grimaldi, An Arab American Charitable Connection That Might Be Too Close for Comfort, Wash. Post, Dec. 17, 2001.

[11] United States v. Butler, Criminal No. 01-0161-AW, aff’d, 61 F. App’x 857, 2003 WL 1711275 (4th Cir. Apr. 1, 2003) (unpublished per curiam opinion).

[12] United States v. Baskerville, Criminal No. 02-0410-CCB, aff’d, 253 F. App’x 280, 2007 WL 3306474 (4th Cir. Nov. 7, 2007) (unpublished per curiam opinion).

[13] Gallagher, supra n. 1 at 28.

[14] See id.

[15] Id. at 27.

[17] See Gallagher, supra n. 1 at 11.

[18] Merchants Terminal Corp. v. L&O Transport, Inc. et. al., Civil No. 09-2065-SAG, 2012 WL 1416631 (D. Md. Apr. 20, 2012).

[19] Neel v. Mid-Atlantic of Fairfield, LLC., Civil No. 10-0405-SAG, 2012 WL 3264965 (D. Md. Aug. 9, 2012).

[20] United States v. McNeill, Traffic Violation No. 2359730.

[21] See Meyers v. Lamar, No. SAG-11-3507, 2013 WL 1325295 (D. Md. Mar. 29, 2013).

[22] Meyers v. Lamar, 743 F.3d 908 (4th Cir. 2014).

[23] Fernandes v. Craine, 538 F. App’x 274 (4th Cir. 2013) (unpublished decision).

Judge Kavanaugh and the Failure of the Vetting Process

This blog started twenty months ago with a post titled “Why Vetting Matters.”  That post noted:

“The modern appointments process involves several layers of “vetting” of potential judicial nominees.  Candidates are generally first evaluated by their home state Senators and their staff.  Then, they are vetted again by the White House Counsel’s office and the Department of Justice.  They are then examined by the FBI and the American Bar Association (ABA).  Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum.  At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.”

Today, what we are seeing with regard to Judge Brett Kavanaugh is a failure of that process.  A compelling and credible allegation of sexual assault has been raised against the judge, an allegation that did not surface during the vetting that he underwent for the Supreme Court, nor during his prior vetting for his current seat on the D.C. Circuit.  Some have used this point to suggest that the allegation, raised by Dr. Christine Blasey Ford, should not be believed.  I would argue, rather, that it is an indictment of our current vetting process and its limitations.

As noted in our opening post, the current vetting system for judicial nominees involves several entities, including the White House, the Department of Justice, the FBI, and Senate staff.  In their investigation, the “vetters”, depending on their particular role, review all the written and background material submitted by the nominee, do criminal background checks, and conduct interviews with the nominee’s friends, colleagues, and associates.  Again, depending on their role, the vetters might be looking for ideological inconsistencies, intellectual ability, or issues with the nominee’s truthfulness or character.  The involvement of these different entities, along with outside groups such as the American Bar Association, is, in theory, supposed to ensure a thorough vetting of any nominee.

In practice, however, there are still holes in this process.  Take allegations of sexual assault, for example, comparable to those made by Dr. Ford.  Where the allegations have not been reported to the police, they will not show up in a criminal background check.  Unless there has been news coverage or some public record of the allegations, they will not show up in Google or record searches.  Furthermore, unless the nominee volunteers the information, it will not be revealed in the disclosures.  As such, investigators generally probe such allegations of misconduct in their private interviews with the nominee’s friends, family, and colleagues.

However, even these interviews are unlikely to reveal such misconduct.  Most DOJ, FBI, and ABA interviews are conducted either with friends and colleagues invested in the nominee’s success, or, with opposing counsel and judges who are too far removed to be aware of, let alone comfortable revealing, any allegations of impropriety.  As such, unless an individual alleging misconduct is directly interviewed, it is unlikely that their allegations would be revealed in the interview process.

In the case of Judge Kavanaugh, the flaws in the vetting process may have been magnified by its speed.  Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018.  Judge Kavanaugh was announced as the nominee on July 9, just 12 days later.  In comparison, President Obama nominated Justice Sotomayor 26 days after Justice Souter’s leaked retirement in 2009, and Justice Kagan 31 days after Justice Stevens’ retirement in 2010.  Similarly, his nomination of Judge Merrick Garland in 2016 came 31 days after Justice Scalia’s untimely passing.  While Justice Gorsuch’s nomination came 11 days after President Trump’s inauguration, it was to a vacancy that had been pending almost a year.  Even assuming that Judge Kavanaugh had been partially vetted before Justice Kennedy’s retirement, the pace of his nomination was still incredibly fast.

Similarly, the Senate Judiciary Committee held a hearing on Judge Kavanaugh less than two months after his nomination despite the Committee not having a chance to look over significant portions of his record.  As such, at the time of the hearing, only one of the 21 Judiciary Committee senators was even aware of Dr. Ford’s allegations.

At any rate, any deficiencies in the process could have been corrected once Dr. Ford’s allegations went public.  At that point, the White House could have reopened Judge Kavanaugh’s background check, allowing the FBI to investigate the allegations (something they have done hundreds of times before).  The White House chose not to.  The Senate Judiciary Committee could have chosen to take sworn testimony from Dr. Ford’s corroborators, including those with whom she shared the allegations, and those who could corroborate the events in question.  The Committee chose not to.

Instead, the American people were subjected to the spectacle of a sexual assault survivor being cross-examined by a prosecutor, while a gallery of stone-faced senators watched.  No other witnesses were called, and no follow up questions were asked.  If it was not for a carefully-negotiated rebellion on the part of Sen. Jeff Flake, there would have been no follow-up from Dr. Ford’s testimony at all.

Regardless of what the reopened FBI investigation uncovers, this saga has already laid bare the weaknesses of the current vetting process.  Perhaps there is no foolproof way that unreported allegations of sexual assault can be uncovered through the vetting process.  However, it is important to recognize that.  Given the documented barriers to reporting sexual assault claims, there are likely other unreported claims against other federal judges and nominees.  As such, the next time that similar allegations are raised against a nominee, vetters may need to look in the mirror before asking why the allegations were not uncovered earlier.

This blog reflects solely the views of the author and does not reflect the positions of any of the other writers or researchers at the Vetting Room.

 

 

Judge Brett Kavanaugh – First Amendment Rulings

The First Amendment to the U.S. Constitution is colloquially known for establishing the right to free speech, but it actually encompasses several rights, including the freedom of the press, and the right of assemble, demonstrate, and petition your elected representative.  Additionally, the religion clauses of the First Amendment guarantee the right to practice your religion without government interference, as well as prohibiting government endorsement or establishment of religion.  The myriad rights recognized by the First Amendment have been further fleshed out by the Supreme Court and lower courts.  Kavanaugh himself has written several opinions in First Amendment cases.  In these opinions, summarized below, Kavanaugh has generally taken an expansive view of First Amendment rights, showing a willingness to strike down regulations that impinge, even slightly, on First Amendment territory.

Freedom of Speech

The First Amendment guarantees the freedom of speech to all Americans.  In other words, we cannot be punished by the government for expressing our views.  As noted above, Kavanaugh has taken an expansive view of this freedom, particularly as it relates to campaign and communication regulations.

Campaign Regulations

The most recent frontier in free speech cases has involved campaign finance.  In its landmark decision in Citizens United v. FEC, the Supreme Court struck down government restrictions on independent expenditures made by corporations and unions in campaigns, ruling that such restrictions were an infringement of the First Amendment.[1]  Since then, numerous campaign regulations have been challenged on First Amendment grounds.

In 2016, Kavanaugh decided one such challenge in holding that the Independence Institute, a non-profit organization, should be allowed to proceed in its First Amendment challenge against federal regulations requiring them to disclose their donors.[2]  In his majority opinion, Kavanaugh acknowledged that the Supreme Court had upheld disclosure requirements in the past (including in Citizens United) but noted that the Independence Institute was a 501(c)(3) organization, rather than the 501(cv)(4) involved in Citizens United.[3]  This distinction, Kavanaugh ruled, was sufficient to allow the case to proceed.[4]

In dissent, Judge Robert Wilkins argued that the First Amendment challenge was precluded by Citizens United, and that the factual distinctions drawn by Kavanaugh were “immaterial.”[5]

Kavanaugh also has the notable distinction of having struck down campaign finance regulations on First Amendment grounds before Citizens United.  In Emily’s List v. FEC, Kavanaugh struck down a series of FEC regulations limiting the use of “soft money” by non-profits in election spending.[6]  In striking down the regulations, Kavanaugh noted:

“Donations to and spending by a non-profit cannot corrupt a candidate or officeholder, at least in the absence of some McConnell-like evidence establishing such corruption or the appearance thereof.”[7]

Judge Janice Rogers Brown refused to join Kavanaugh’s First Amendment analysis in the case, noting:

“I have grave doubts about the court’s analysis, which bears at most a passing resemblance to the parties’ briefs, and which will profoundly affect campaign finance law in this circuit.”[8]

Communications Regulation

Kavanaugh has also sought to apply the First Amendment in the context of communications regulation.  As the D.C. Circuit upheld Federal Communications Commission (FCC) regulations barring exclusive contracts between cable operators and affiliated cable programming networks, Kavanaugh dissented.[9]  In his dissent, Kavanaugh argued, as cable networks and operators both engage in protected speech, that the FCC regulations (which are intended to avoid monopolies) implicate First Amendment rights.[10]  Applying the First Amendment, Kavanaugh found that a changed competitive marketplace for cable means that the FCC bans no longer further an interest in fair competition and must be struck down.[11]

Press

The First Amendment also protects a free press from both government censorship and excessive regulation or litigation.  As such, the Supreme Court has recognized fairly broad protections from journalists against defamation suits (which seek damages for the publication of false information).  Kavanaugh reaffirmed this principle in one notable defamation case.[12]  In the case, a prisoner filed a defamation action against the Bureau of National Affairs (BNA) for attributing some negative comments during his sentencing hearing to the judge rather than the prosecutor.[13]  After the district judge denied BNA’s motion to dismiss, Kavanaugh reversed the ruling on appeal, noting that the First Amendment protected the BNA’s actions as long as they were not made with “actual malice” and that the plaintiff could not make such a showing.[14]

Freedom of Assembly + Petition

In addition to the Freedom of Speech and the Press, the First Amendment encompasses the Freedom of Assembly, or the right of people to come towards to express their ideas collectively.  Encompassed within that right is the right to associational freedom: the right to join organizations that are formed around causes you believe in; as well as the right not to join organizations you disagree with.  Additionally, the First Amendment includes the right to peacefully petition your elected representatives on issues that are important to you.

Kavanaugh authored a notable opinion discussing the latter right.  In We the People Foundation, Inc. v. United States, the plaintiffs submitted “petitions with extensive lists of inquiries” related to questions about the government’s violation of the taxing and war powers clauses.[15]  When the government agencies to whom the petitions were addressed failed to respond, the plaintiffs brought suit, alleging two claims: first, that the First Amendment right to petition encompassed a right to a “good faith exchange” between the government and the petitioner; second, that the First Amendment prohibited the government from retaliating against plaintiffs for filing the petition.[16]  Kavanaugh wrote for a majority of the D.C. Circuit rejected the claim under the First Amendment, finding that, under the Supreme Court’s holding in Smith v. Arkansas State Highway Employees, there was no “affirmative obligation” under the First Amendment to have the government respond to a petition.[17]

In concurring with the main opinion, Judge Judith Ann Wilson Rogers noted the depth of historical sources that plaintiffs had cited, and suggested that, as such evidence had not presented to the Supreme Court in prior cases, that the outcome of Smith and other precedent may have been different had the record on the right to petition been fully explored.[18]

Freedom of Religion

The Free Exercise Clause of the First Amendment protects the right to worship and believe in accordance with any and no faith.  Congress extended the protections of the Free Exercise Clause in the Religious Freedom Restoration Act (RFRA), which required any government action or regulation that substantially burdened a sincerely held religious belief to be narrowly tailored to a compelling governmental interest.

In one notable case, a panel of the D.C. Circuit found that the religious rights of Catholic nonprofits were not violated by the ACA’s “religious accommodation” opt-out from its contraceptive mandate.[22]  The full D.C. Circuit then declined to take the case en banc, with Kavanaugh in dissent.  In his dissent, Kavanaugh argued that the challenged accommodations substantially burden Catholic non-profits by making them “conduits” to providing contraceptive coverage through an alternative means.[23]

Establishment of Religion

The Establishment Clause of the First Amendment prevents the government from endorsing, establishing, or placing a stamp of approval on one faith or kind of religious service.  While Kavanaugh has generally interpreted the other rights in the First Amendment broadly, he has not done so for the Establishment Clause.

In In re Navy Chaplaincy, Kavanaugh rejected an Establishment Clause challenge to the retirement system for Navy Chaplains, which plaintiffs alleged discriminated in favor of Catholic chaplains.[19]  Kavanaugh found that the plaintiffs, current and retired non-liturgical Protestant chaplains lacked standing to raise an Establishment Clause claim, finding that being exposed a “message” of preference for Catholic chaplains is insufficient to constitute an injury.[20]

In dissent, Judge Judith Ann Wilson Rogers wrote that Kavanaugh’s opinion “ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing…”[21]

 


[1] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[2] Ind. Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016).

[3] Id. at 117.

[4] Id.

[5] See id. (Wilkins, J., dissenting).

[6] Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 4 (D.C. Cir. 2009).

[7] See id. at 18 (citations omitted) (emphasis in original).

[8] See id. at 25 (Brown, J., concurring in part).

[9] Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1315 (D.C. Cir. 2010) (Kavanaugh, J., dissenting).

[10] Id. at 1322.

[11] Id. at 1325.

[12] Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106 (D.C. Cir.), cert. denied sub nom. Von Kahl v. Bureau of Nat. Affairs, Inc., 138 S. Ct. 366, 199 L. Ed. 2d 269 (2017).

[13] See id. at 110.

[14] Id. at 117-18.

[15] We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007).

[16] Plaintiffs alleged that the federal government had retaliated by prosecuting plaintiffs who refused to pay federal income taxes out of protest.

[17] See id. at 145.

[18] See id. at 145-48 (Rogers, J., concurring).

[19] In re Navy Chaplaincy, 534 F.3d 756, 758 (D.C. Cir. 2008).

[20] Id. at 764.

[21] Id. at 770-71 (Rogers, J., dissenting).

[22] Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014).

[23] Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc).

Judge Mary Rowland – Nominee for the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

When the White House negotiates judge packages with Senators, it is inevitable that both sides have to accept nominees they would not otherwise have chosen.  That is likely what led the Trump Administration to nominate Judge Mary Rowland, an otherwise left-of-center nominee, for the federal bench.

Background

Mary Margaret Rowland was born on October 8, 1961 in Akron, OH.  Rowland graduated from the University of Michigan in 1984 and then worked for seven months as a field coordinator for the Senate campaign of Sen. Carl Levin (D-Mich.).[1]  Rowland then attended the University of Chicago Law School, graduating in 1988.

After graduation, Rowland clerked for Judge Julian Cook on the U.S. District Court for the Eastern District of Michigan.  She then joined the Federal Defender’s Office in Chicago, becoming the Chief Appellate Attorney in 1995.[2]  In 2000, Rowland became an Income Partner at Hughes Socol Piers Resnick & Dym, Ltd.[3]  In 2012, Rowland was appointed as a Magistrate Judge on the U.S. District Court for the Northern District of Illinois.[4]  She continues to serve on that Court.

In 2009, Rowland was recommended to the Obama Administration for a federal judgeship by Sen. Dick Durbin, which could have made her the first openly gay nominee to the federal bench.[5]  The Administration ended up nominating three other choices: Sharon Coleman; Gary Feinerman; and Edmund Chang.

History of the Seat

Rowland has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on May 25, 2018, when Judge Amy St. Eve was elevated to the U.S. Court of Appeals for the Seventh Circuit.

Unlike Seeger and Pacold, who had their first contact with the White House, Rowland applied directly to the screening committee set up by Durbin and Sen. Tammy Duckworth.[6]  In February 2018, she interviewed with Durbin and his staff.[7]  She interviewed with the White House in April and was officially nominated in June.

Legal Career

Rowland’s legal career before she became a judge largely focused on criminal defense and civil rights work.  As a federal defender in Chicago, Rowland tried five jury cases.[8]  She also served as Chief Appellate Attorney, arguing, among other cases, to successfully overturn the sentence of Mr. Stanback, convicted of a firearms offense.[9]

In private practice, Rowland notably represented a group of 3000 African Americans in a disparate impact suit against the City of Chicago after they were denied jobs as entry-level firefighters.[10]  Her team secured a trial verdict in favor of the firefighters.[11]  After the verdict was overturned on appeal, it was reinstated by the Supreme Court.[12]

Jurisprudence and Reversals

Rowland has served as a U.S. Magistrate Judge since her appointment in 2012.  In this role, she presides over arraignments, bail hearings, and non-dispositive motions.  She also handles civil cases by consent of the parties.  In her six years on the bench, Rowland has presided over three jury and two bench trials.  One of her jury trials involved a false arrest and excessive force claim brought against the Chicago police, which concluded with a partial verdict for the plaintiff.[13]

Over the course of her six year tenure on the state bench, Rowland has been reversed by higher courts in three cases.[14]  Two of those cases involved Rowlings’ rulings supporting ALJ denials of benefits being reversed by higher courts.[15]  The final case reversed Rowland’s use of a multiplier in determining fees in a class action case.[16]

Political Activity

Rowland has a limited political history, mainly consisting of her work for former Sen. Carl Levin and volunteering for President Barack Obama’s campaign in 2008.[17]

Overall Assessment

If Rowland had been nominated by President Obama in 2010, she would have been the first LGBT judge on the Illinois federal bench (an honor that went to Judge Staci Yandle in 2014).  It speaks to the Trump Administration’s assertiveness with judicial dealmaking that they proceeded with Rowland’s nomination.  That being said, her nomination by Trump and support from Durbin and Duckworth essentially guarantees Rowland a comfortable confirmation and gives Trump his first LGBT judicial appointee.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Bill Dwyer, Oak Park’s Rowland Possible Nominee for Federal Bench, OakPark.com, Aug. 25, 2009, http://www.oakpark.com/News/Articles/8-25-2009/Oak-Park’s-Rowland-possible-nominee-for-federal-bench/.

[6] See. Rowland, supra n. 1 at 47.

[7] Id. 

[8] See id. at 35-36.

[9] See United States v. Stanback, 113 F.3d 651 (7th Cir. 1997).

[10] Lewis v. City of Chic., 2005 WL 693618 (N.D. Ill. Mar. 22, 2005), rev’d, 528 F.3d 488 (7th Cir. 2008), rev’d, 130 S. Ct. 2191 (2010).

[11] See id.

[12] See Trudy Ring, Lesbian Attorney Becomes Federal Magistrate Judge in Illinois, Advocate, Nov. 16, 2012, https://www.advocate.com/society/law/2012/11/16/lesbian-attorney-becomes-federal-magistrate-judge-illinois.  

[13] See Fox-Martin v. Tryba, No. 09-cv-1690, 2013 U.S. Dist. LEXIS 99237 (N.D. Ill. July 16, 2013).

[14] Rowland, supra n. 1 at 29.

[15] See Cullinan v. Colvin, No. 15-cv-11499, 2016 U.S. Dist. LEXIS 171975 (N.D. Ill. Dec. 13, 2016), rev’d, Cullinan v. Berryhill, 878 F.3d 598 (7th Cir. 2017) (reversing ruling holding that ALJ decision was supported by substantial evidence); Stahl v. Colvin, No. 13-cv-0752, 2015 U.S. Dist. LEXIS 5841 (N.D. Ill. Jan. 20, 2015), rev’d, 632 F. App’x 853 (7th Cir. 2015) (reversing finding that substantial evidence supported ALJ determination).

[16] In re Sears, Roebuck & Co. Front-Loading Washer Prods. Liab. Litig., 867 F.3d 791 (7th Cir. 2017).

[17] See Rowland, supra n. 1 at 32.

Martha Pacold – Nominee to the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

Martha Pacold, only 39, is part of a 3-judge package for the Northern District of Illinois negotiated between Senators Richard Durbin & Tammy Duckworth, and the White House.  While Pacold is currently based out of Washington D.C., she has spent the majority of her legal career in Chicago and is favored to return there as a federal judge.

Background

Martha Maria Pacold was born on February 3, 1979, in Richmond, VA.  Pacold attended Indiana University, graduating with highest honors in 1999 (at just 20).[1]  She then attended the University of Chicago Law School, graduating with honors in 2002.

After graduating, Pacold clerked for Judge Arthur Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit, for Judge Jay Bybee on the U.S. Court of Appeals for the Ninth Circuit, and then for Justice Clarence Thomas on the U.S. Supreme Court.  In the latter position, Pacold was co-clerks with former Solicitor General Jeff Wall.

After finishing up her clerkships, Pacold joined the Department of Justice as Counsel to Attorney General Alberto Gonzalez.[2]  After a year, she joined the U.S. Attorney’s Office for the Eastern District of Virginia as a Special Assistant United States Attorney (SAUSA).[3]

In 2007, Pacold joined the Chicago Office of Bartlit Beck Herman Palenchar & Scott LLP as an Associate.  She became a Partner at the firm in 2010.[4]  In 2017, she left that position to serve as Executive Secretary in the Department of the Treasury.  She became Deputy General Counsel a few months later and currently serves in that capacity.

History of the Seat

Pacold has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on March 1, 2017, when Judge John Darrah moved to senior status.

In June 2017, Pacold was contacted by the White House to gauge her interest in a federal judgeship.[5]  In February 2018, she applied with a screening committee set up by Sens. Dick Durbin and Tammy Duckworth, both Democrats.[6]  Pacold was chosen as a prospective nominee for the Northern District by the end of February and was nominated as part of a three-judge package on June 7, 2018.

Legal Experience

While Pacold has held many legal positions throughout her legal career, the most significant and longest is her ten year tenure at Bartlit Beck Herman Palenchar & Scott LLP in Chicago.  In this position, Pacold primarily handled civil litigation on behalf of corporations.  For example, Pacold represented chemical company DuPont in defending against allegations of environmental contamination in New Jersey.[7]  She also represented Bayer Pharmaceuticals in a patent suit against Novartis.[8]

Notably, Pacold represented the City of Chicago and a team of Chicago police officers against a 1983 action based on claims of excessive force and false arrest.[9]  The case emerged from the defendant’s arrest while she was questioning police officers regarding their simultaneous arrest of her son.[10]  After a jury verdict in favor of the officers, Pacold successfully defended the decision on appeal.[11]

Political Activity

Over the last ten years, Pacold has made a handful of political contributions, all to Republicans.[12]  Among the recipients included the Presidential campaigns of John McCain and Mitt Romney, Secretary of State Mike Pompeo, and Sens. Ted Cruz and Tom Cotton.[13]

Writings

Of Pacold’s writings, two may draw attention.  First, as a law student, Pacold authored a paper discussing fee shifting provisions in class actions.[14]  In the paper, Pacold argues that current fee shifting statutes give plaintiff’s attorneys too strong an incentive to settle rather than take cases to trial, as their attorney fee recoveries are often higher during settlement.[15]  Pacold notes that this is counterintuitive as “the desire of plaintiffs’ attorneys to obtain higher fees at the expense of their clients is not a legitimate reason to increase the rate of settlements further.”[16]  Instead, Pacold proposes reforming the statutory fee shifting structure by not applying it in the settlements context.[17]

Pacold’s second notable writing is a Letter to the Editor written as an undergraduate, in which Pacold argues that laws prohibiting sex discrimination do not prohibit same-sex sexual harassment (relating to the then-pending Oncale case).[18]  Instead, Pacold argues that Oncale, a male who suffered sexual harassment from his male boss, cannot prove sex discrimination because his workplace has no females.[19]  The Supreme Court disagreed in a unanimous decision.[20]

Overall Assessment

While Martha Pacold is, ultimately, a package nominee, to be considered with two others supported by Senators and the Administration, she may draw more opposition than her fellow nominees.  This is for three reasons: first, Pacold is the youngest of the nominees at only 39 (although she does meet the ABA’s 12 years of practice requirement); second, Pacold is on record indicating that Title VII does not protect same-sex sexual harassment, a controversial position given the current focus on Title VII’s protection for transgender and LGBT individuals; third, Pacold clerked for Justice Thomas, who is notorious for selecting many deeply conservative individuals to clerk for him.  The combination of these factors may draw some raised eyebrows from Democrats.

However, with support from Durbin and Duckworth, Pacold remains likely to be ultimately confirmed with a strong bipartisan majority.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 31.

[6] Id. 

[7] In re Environmental Contamination of Pompton Lakes, N.J.: Super. Ct. (Bergen Cnty.).

[8] See In re Bayer HealthCare LLC and CSL Behring LLC, Case No. 2010-M918 (Fed. Cir.).

[9] Whitehead v. Bond, 680 F.3d 919 (7th Cir. 2012).

[10] See id. at 922-25.

[11] See id. at 926.

[13] See id.

[14] Martha Pacold, Attorneys’ Fees in Class Actions Governed by Fee-Shifting Statutes, 68 U. Chi. L. Rev. 1007 (Summer 2001).

[15] Id. at 1028.

[16] Id. at 1029.

[17] See id. at 1030-32.

[18] Martha M. Pacold, When is Sexual Harassment Discrimination, Wash. Post, Dec. 17, 1997.

[19] See id.

[20] See Oncale v. Sundowner Offshore Srvs, Inc., 523 US 75 (1998).

Steven Seeger – Nominee to the U.S. District Court for the Northern District of Illinois

The Dirksen Courthouse - where the Northern District of Illinois sits.

Steven Seeger, a trial attorney for the Securities & Exchange Commission (SEC) is part of a 3-judge package that Trump has put forward for the Northern District of Illinois.

Background

A native Illinoisan, Steven Charles Seeger was born in Normal on March 18, 1971.  Seeger attended Wheaton College, a small liberal arts school, receiving his B.A. summa cum laude in 1993, and then spent a year working as an English teacher in Japan.[1]

Seeger received his J.D. magna cum laude from the University of Michigan Law School, where he served as Articles Editor at the Law Review.[2]  Seeger then clerked for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit and then joined the Chicago Office of Kirkland & Ellis as an associate.  He was made a Partner at the firm in 2003.[3]

In 2010, Seeger joined the Securities & Exchange Commission, based in Chicago as Senior Trial Counsel.[4]  He has held that position since then.

History of the Seat

Seeger has been nominated for a seat on the U.S. District Court for the Northern District of Illinois.  This seat opened on October 21, 2016, when Judge James Zagel moved to senior status.  As the seat opened with only three months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In early 2017, Seeger reached out to Illinois Republicans to express his interest in a federal judgeship.[5]  In February 2018, he applied with a screening committee set up by Sens. Dick Durbin and Tammy Duckworth, both Democrats.[6]  Seeger was chosen as a prospective nominee for the Northern District by the end of February.

On March 20, 2018, Seeger interviewed with Durbin and Duckworth.[7]  President Trump announced Seeger’s nomination as part of a three-judge package on June 7, 2018.

Legal Career

Seeger has spent his legal career primarily in two positions: at Kirkland & Ellis, and at the SEC.  In the former, Seeger primarily worked in general litigation, while in the latter, Seeger worked exclusively on the enforcement of SEC matters.  Over the course of his legal career, Seeger handled two jury and one bench trials.[8]

At Kirkland, Seeger handled the linerboard antitrust litigation, a series of lawsuits that paper companies had violated the Sherman Act by artificially restricting the supply of linerboard.[9]  In the litigation, Seeger represented International Paper, and the suit eventually led to a settlement.  Additionally, while at Kirkland, Seeger co-authored an amicus brief at the U.S. Supreme Court in support of McCreary County’s display of the Ten Commandments before a courthouse.[10]  The display was ultimately struck down by the Supreme Court as a violation of the First Amendment.[11]

Since 2010, Seeger has worked as an SEC trial litigator.  Among his more prominent cases, Seeger prosecuted radio talk-show host Pat Kiley for allegedly soliciting clients for a Ponzi scheme,[12] and investor Jason Bo-Alan Beckman for running an investment fraud scheme.[13]

Writings

In 1997, Seeger authored an article on the Religious Freedom Restoration Act (RFRA) and the proper test in evaluating religious burdens under the law.[14]  In the article, Seeger weighs three competing tests for evaluating burdens under RFRA and adopts the broadest: the religious motivation test.[15]  The religious motivation test asks if a burdened act is “motivated” by a religious belief to determine if RFRA protects it.[16]  In supporting this test, Seeger argues that it allows for the broadest application to RFRA’s test, while tests that require the burdened act to be “central to” or “compelled by” faith leaves out non-Abrahamic faith traditions that apply faith restrictions more loosely.[17]  Seeger also argues that this approach keeps judges out of the task of parsing the weight of religious prohibitions, noting:

“Courts cannot decide whether a practice is central to or compelled by a litigant’s religion without making a theological interpretation of the believer’s faith.[18]

Overall Assessment

Generally speaking (although not guaranteed), package nominees generally sail to confirmation as both the White House and senators have an incentive not to let the package die.  Seeger is similarly favored.

Nonetheless, Seeger may face questions regarding his views on RFRA.  Specifically, senators may probe Seeger’s endorsement of a “religious motivation” view, noting that corporations and individuals may use “religious motivation” to avoid compliance with civil rights and discrimination laws.  Seeger may be asked to clarify his view on the application of RFRA in such circumstances.  With the backing of Durbin and Duckworth, however, Seeger is, nonetheless, likely to overcome such questions and be confirmed.


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

[2] Id. at 3.

[3] Id. at 2.

[4] Id.

[5] Id. at 26-27.

[6] Id. at 27.

[7] Id.

[8] See id. at 10.

[9] See In re Linerboard Antitrust Litig., C.A. Nos. 98-5055, 99-3141, MDL No. 1261 (E.D. Pa. filed March 16, 1999).

[10] See McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005), brief at 2004 WL 2825469.

[11] See id.

[12] See Dan Browning, Kiley Denies Role in Cook Ponzi Scheme; Talk-show Host Pat Kiley Alleged That His Former Lawyers Had Taken Orders From Convicted Schemer Trevor Cook, Minneapolis Star Tribune, Oct. 15, 2010.

[13] David Hanners, Federal Judge Freezes Beckman Assets in Investor Fraud Case, St. Paul

[14] Steven C. Seeger, Restoring Rights to Rites: The Religious Motivation Test and the Religious Freedom Restoration Act, 95 Mich. L. Rev. 1472 (1997).

[15] See id. at 1475.

[16] Id.

[17] Id. at 1503-05.

[18] Id. at 1510.