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

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

Background

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

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

History of the Seat

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

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

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

Political Activity & Memberships

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

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

Legal Experience

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

Assistant U.S. Attorney

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

Department of Justice

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

Munger Tolles & Olson

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

Writings

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

Overall Assessment

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

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


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

[2] Id. at 2.

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

[4] Id.

[5] Id.

[6] See id. at 63.

[7] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Collins, supra n. 1 at 5.

[13] Id. at 25.

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

[15] Pub. L. 108-21.

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

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

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

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

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

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

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

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

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

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

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

Background

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

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

History of the Seat

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

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

Legal Experience

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

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

Overall Assessment

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


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

[2] Id.

[3] Id. at 15.

[4] See id.

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

[6] See id.

Peter Welte – Nominee for the U.S. District Court for the District of North Dakota

Peter Welte has worn many hats throughout his career: farmer, student, prosecutor, teacher, and, if his confirmation is secured, judge.

Background

Peter David Welte was born in New Britain, CT on December 21, 1965.  Welte graduated from the University of North Dakota in 1989 and then spent five years working for the U.S. Department of Agriculture and then the Cystic Fibrosis Foundation.[1]  He then attended the University of North Dakota Law School, graduating with distinction.[2]

After graduating, Welte worked as City Attorney in Larimore, North Dakota until he took a position as Assistant State’s Attorney for Grand Forks County.  In 2003, Welte was elected to become State’s Attorney for Grand Forks County, a position he held until 2015.

In 2015, Welte joined the Vogel law firm, a North Dakota institution whose alumni include two Eighth Circuit Judges, and former U.S. Attorney Timothy Purdon.[3]  He serves in that capacity today.

Welte has also been self-employed as a grain farmer at Ash Grove Farm since 1995.

History of the Seat

The seat Welte has been nominated for opened on October 12, 2017, with Judge Ralph Erickson’s elevation to the U.S. Court of Appeals for the Eighth Circuit.  In October 2017, Welte contacted North Dakota’s senators John Hoeven and Heidi Heitkamp to express his interest in the vacancy.[4]   Welte interviewed with the White House in December 2017, after which, his nomination sat in limbo for almost six months.  In May 2018, Welte was preliminary selected as a nominee for the seat.  However, Welte was not nominated until eight months after that, in which time, Heitkamp lost her re-election to Kevin Cramer, a Republican.  Cramer and Hoeven both support Welte’s nomination.

Legal Experience

Welte has spent the most significant portion of his legal career as a state prosecutor in Grand Forks.  As the elected State’s Attorney for Grand Forks County, Welte supervised the office and served as Chief Counsel for 19 county agencies and boards.  Notably, Welte brought the initial state prosecution against Alfonso Rodriguez for the murder of college student Dru Sjodin.[5]  Rodriguez was eventually prosecuted federally by Drew Wrigley (later the Lt. Governor of North Dakota) for the murder and sentenced to death.  Welte also oversaw the results of an investigation into the Grand Forks County Correctional Center after an inmate committed suicide at the institution, deciding not to bring any criminal charges as a result of the death.[6]  In contrast, Welte did bring charges against two Grand Forks Police officers who made an African American man stand outside in sub-zero temperatures without a coat.[7]

Welte’s tenure as Grand Forks prosecutor has not been without controversy, however.  In 2008, Naomi Lee made a complaint of prosecutorial misconduct against Welte and Assistant State’s Attorney Meredith Larson for choosing not to pursue charges against the man Lee claimed had sexually assaulted her.[8]  Larson had chosen not to continue with the prosecution after inculpatory statements made by the defendant were thrown out by a judge.[9]  Welte and Larson faced a hearing before an inquiry committee of the North Dakota State Bar but no disciplinary action appears to have been taken.

Political Activity

Welte is a Republican who was elected to be Grand Forks County State’s Attorney in 2002, 2006, 2010, and 2014.[10]  He has also volunteered on the campaigns of Hoeven, as well as Attorney General Wayne Stenehjem.[11]

Writings

Welte has frequently written both academically and as a blogger on legal issues.  In 2010, Welte wrote an article criticizing the North Dakota Supreme Court’s decision in Riemers v. Eslinger for expanding the right to a jury trial for violations of municipal offenses.[12]  In Riemers, the Court relied on the history of the jury trial right in North Dakota and held that the right extended beyond the protections of the federal constitution to petty offenses.[13]  Welte argued that the right to a jury trial for petty offenses was a waste of resources, noting that a jury empaneled for a $20 ticket cost the state $780.[14]  As such, he encouraged the narrowing of the right through reversal, legislative action, or constitutional amendments.

Overall Assessment

The District of North Dakota desperately needs new federal judges.  Since Erickson’s elevation to the Eighth Circuit, Judge Daniel Hovland has been the only active judge on the court, and he is set to vacate his seat this year.  As such, Welte will certainly be needed.

Looking at Welte’s record overall, it reads as that of a mainstream conservative with a few potential flashpoints but nothing that will draw excessive opposition.  As such, Welte looks likely to join the District of North Dakota this year, the first new judge since Erickson joined sixteen years ago.


[1] Sen. Comm. on the Judiciary, 115th Cong. Peter D. Welte: Questionnaire for Judicial Nominees 3.

[2] See id. at 1.

[3] Id. at 2.

[4] Id. at 51.

[5] Dave Kolpack, Man with Record as Sex Offender Arrested in Connection With Missing North Dakota Student, Associated Press, Dec. 2, 2003.

[6] Kevin Bonham, INVESTIGATION: Jailers Missed Suicide Attempt, Grand Forks Herald, Oct. 14, 2006.

[7] Susanne Nadeau, Officers Face Charges, Grand Forks Herald, Mar. 11, 2008.

[8] Stephen J. Lee, Prosecutors Face Inquiry Over Dismissal Of Rape Case, Grand Forks Herald, Mar. 14, 2008, https://www.grandforksherald.com/news/2070726-prosecutors-face-inquiry-over-dismissal-rape-case.  

[9] See id.

[10] See Welte, supra n. 1 at 35.

[11] See id.

[12] Peter D. Welte, The Law of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, 86 N.D. L. Rev. 505 (2010).

[13] See id. at 514-15.

[14] Id. at 518-19.

Michael Park – Nominee to the U.S. Court of Appeals for the Second Circuit

The 43 year old Park has spent the last four years as a conservative legal superstar at the boutique firm of Consovoy McCarthy Park PLLC.  He now faces an opportunity to be elevated to one of the most prestigious courts in the nation, but faces the opposition of a uniquely powerful senator.

Background

Michael Hun Park was born in St. Paul Minnesota on April 1, 1976.  Park received his B.A. from Princeton University in 1998 and his J.D. from Yale Law School in 2001.[1]  After graduating, Park clerked for then Judge Samuel Alito on the U.S. Court of Appeals for the Third Circuit and then joined the New York office of Wilmer Cutler Pickering Hale and Dorr LLP as an associate.

In 2006, Park joined the Department of Justice, working in the Office of Legal Counsel.  In 2008, Park left to clerk for Alito, now a Justice on the U.S. Supreme Court.[2]  After his clerkship, Park joined the New York office of Dechert LLP as an Associate, becoming a Partner in 2012.  In 2015, Park left to become a Partner at the conservative boutique firm Consovoy McCarthy Park PLLC, where he currently serves.

History of the Seat

Park has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Gerald Lynch, who moved to senior status on September 5, 2016.

In March 2017, Park was contacted by the White House to gauge his interest in the Second Circuit.[3]  Park’s name was then suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Park began the nomination process in November 2017 and was nominated on October 10, 2018.  Park, however, is not supported by Schumer and Gillibrand, who both declined to return blue slips on his nomination.

Legal Career

Park has had a fairly distinguished career, including clerkships at the U.S. Supreme Court, and stints at the Department of Justice.  Early in his career, Park served as an Associate at Wilmer Cutler in New York where he represented Bankfirst in defending against actions based on the Americans with Disabilities Act.[5]  At the Office of Legal Counsel in the Department of Justice, Park primarily worked in an advisory capacity, but also helped organize the legal defense in immigration actions.[6]  Finally, at Dechert, Park primarily handled commercial and securities matters in state and federal courts.

However, Park has made his mark primarily at the conservative boutique firm Consovoy McCarthy & Park PLLC, which he helped found.  At Consovoy, Park has helped push conservative outcomes through litigation across the country.

Affirmative Action

Park has led in the field of affirmative action, bringing suits challenging the use of race in college admissions across the country, including against the University of North Carolina.[7]  Most notably, Park has led the suit challenging Harvard’s admissions policy for its impact of Asian American students.[8]  The lawsuit has drawn significant media attention as well as divided views across the political spectrum.[9]

Environmental Regulations

Park has represented the Chamber of Commerce and other business groups in their challenge to the Environmental Protection Agency’s “waters of the United States” rule.[10]  Their lawsuit was dismissed by Judge Claire Eagan, and an appeal ultimately ended with an administrative closing in accordance with the revision of the rule by the EPA.

Planned Parenthood

Park has represented the head of the Kansas Department of Health and Environment in suspending state Medicaid contracts with Planned Parenthood affiliates in the state.  The termination was, however, enjoined by Judge Julie Robinson, with her injunction being upheld by the Tenth Circuit.[11]

Overall Assessment

There is little doubt that Park possesses the legal ability and intellectual vigor for a seat on the Second Circuit.  However, given his use of litigation to push conservative policy outcomes at Consovoy, opponents are likely to raise serious concerns regarding Park’s impartiality on the bench.  Combined with the opposition of Schumer, the leader of Senate Democrats, Park’s confirmation may be rockier than that of his contemporaries.


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

[2] Judge Andy Oldham on the U.S. Court of Appeals for the Fifth Circuit was a co-clerk of Park’s.

[3] See id. at 77.

[4] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[5] Aquino v. Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d 259 (E.D.N.Y. 2005).

[6] See Gegaj v. Mukasey, 262 Fed. Appx. 343 (2d Cir. 2008).

[7] Students for Fair Admission v. Univ. of N.C., 319 F.R.D. 490 (M.D.N.C. 2017).

[8] Students for Fair Admission, Inc. v. President & Fellows of Harvard College, No. 1:14-cv-14176-ADB (D. Mass. Filed Nov. 17, 2014).

[9] See Carrie Jung, Harvard Discrimination Trial Ends, But Lawsuit is Far From Over, Nat’l Pub. Radio, Nov. 2, 2018, https://www.npr.org/2018/11/02/660734399/harvard-discrimination-trial-is-ending-but-lawsuit-is-far-from-over.  See also P.R. Lockhart, The Lawsuit Against Harvard That Could Change Affirmative Action in College Admissions, Explained, Vox, Oct. 18, 2018, https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.  

[10] Chamber of Commerce of the United States v. EPA, No. 16-5038 (10th Cir.).

[11] Planned Parenthood of Kan. & Mid-Missouri v. Andersen, 882 F.3d 1205 (10th Cir. 2018).

Justice Greg Guidry – Nominee to the U.S. District Court for the Eastern District of Louisiana

Greg Gerard Guidry (R) has been a Louisiana state court judge since 2000.[1] He has served on the state’s 24th Judicial District Court, Fifth Circuit Court of Appeal (state), and as an Associate Justice on the Louisiana Supreme Court, which position he has held since since 2009.[2] In January of 2019, the White House nominated Guidry to a seat on the United States District Court for the Eastern District of Louisiana.[3]

Background

Guidry, 58, is married with two children and currently lives near Covington, Louisiana.[4] He has been “riding and showing Western performance horses since [he] was nine years old,” and has “three horses, two dogs, three cats, four chickens and about 30 cows on a farm in St. Tammany Parish.”[5] He grew up in Marrero, Louisiana, where he attended public schools through high school.[6] According to a 2015 interview with Guidry, he knew he wanted to be a lawyer in high school and “really never strayed from that goal.” Although he “did not have a specific idea of exactly what [he] wanted to do as a lawyer,” he “could see that lawyers played an integral role in public life, and [he] wanted to be a part of that,” which made it “an easy decision.”[7]

Guidry received a bachelor’s degree from Louisiana State University (LSU) in political science and classical civilizations and a Juris Doctor from LSU’s law school (1985).[8] In law school, he was inducted into the Order of the Coif and “selected for the Louisiana Law Review on the basis of grades.”[9] Guidry was also awarded a “Rotary Foundation Scholarship for International Understanding,” during which he studied classical civilizations and Roman law at the University of the Witwatersrand in Johannesburg, Republic of South Africa.[10]

After his scholarship year, Guidry began working at the oil and energy firm Liskow & Lewis in New Orleans in its commercial litigation division.[11] He switched to the public sector in 1990, when he began a nearly ten-year stint as an Assistant United States Attorney for the Eastern District of Louisiana. As a federal prosecutor, Guidry’s work focused mainly on public corruption and commercial fraud,[12] and he also served as a supervisor, ethics officer and grand jury coordinator.[13] Guidry’s Louisiana Supreme Court bio (and other sources that have republished this bio) states that Guidry “received commendations for his work from the United States Attorney General and the Director of the Federal Bureau of Investigations.”[14]

Guidry was a district court judge on the Twenty-Fourth Judicial District Court for the Parish of Jefferson from 2000-06 and a circuit court judge (Louisiana Fifth Circuit Court of Appeal) from 2006-09. In 2009, he won an election for a position as an Associate Justice on the state’s highest court.[15] The New Orleans Advocate noted that “Guidry’s election…represented part of an ideological and partisan shift on the state Supreme Court. He replaced retiring Justice Pascal Calogero, a New Orleans Democrat who had served as the court’s chief justice.”[16] In 2010, Guidry received a master’s degree in judicial studies from the National Judicial College.[17] He has also served as a legal advisor and trial advocacy instructor to the Republic of South Africa and the United States Virgin Islands, and has “helped to train judges and prosecutors in the African nation of Malawi as they come to grips with complex financial fraud and corruption cases.”[18] He has been a member of the Federalist Society since 2000 and has stated publicly that he intends to remain a member if confirmed.[19]

History of the Seat

President Trump nominated Guidry for the seat in January of 2019. Both of Louisiana’s U.S. senators, Bill Cassidy (R) and John Kennedy (R) have praised the nomination.[20] The seat was left open by Judge Kurt Engelhardt, who has been promoted to a position on the U.S. Fifth Circuit Court of Appeals.[21] Guidry’s confirmation would fill the last open seat on the bench at the Eastern District of Louisiana.[22]

Legal Career

Guidry has spent most of his pre-bench career as a federal prosecutor.  In his testimony before the Senate Judiciary Committee, Guidry spoke about this position, noting, “It was the treat of a lifetime to walk into a courtroom and say on a regular basis, ‘I’m here today to represent the United States of America.’”[23] Searchable cases from Guidry’s legal practice are few and far between.[24] A LexisNexis search reveals one published case, a criminal defendant’s appeal from his conviction (U.S. v. Howard, 991 F. 2d 195 (5th Cir. 1993) (affirming conviction; appellant not entitled to a lesser included offense instruction because the indictment was narrowly drawn)), and one unpublished case. U.S. v. Cureaux, 1998 U.S. Dist. LEXIS 14210 (E.D.La. 1998) (denying defendant’s motion for release on bail pending appeal).

In Guidry’s legal career, he has occasionally faced allegations of legal and ethical improprieties. For example, in early 2000, while running for a judgeship, Guidry was accused by his opponent of violating the Hatch Act, which regulates federal employees’ political activities. Specifically, he was accused of accepting endorsements for his campaign for state district court judge before formally resigning as an Assistant United States Attorney. Guidry denies knowing about the complaint when it was made, being contacted by the DOJ in an investigation into the complaint, and engaging in any unauthorized political activity.[25]

In 2007, while Guidry was on the state appellate court, that court’s chief of central staff, Jerrold Peterson, committed suicide in his office, leaving notes revealing illegal practices by the court. For 13 years the court had been denying pro se prisoners’ writ applications without a three-judge panel reviewing them, as required by law.[26] The court had instead illegally allowed one judge to handle all pro se writ applications from 1994 to 2007.[27] Guidry’s opponent in the 2009 election for a position on the state Supreme Court criticized this practice, to which Guidry responded “I had no hand in it or knowledge of it.”[28]

During his 2008 campaign for the state Supreme Court, Guidry’s opponent in the race also accused him of using official court stationary to solicit campaign funds. Guidry has vehemently denied that this happened, contending that the stationary “was designed, created, printed, and distributed without public funds,” and that “the letter was not a solicitation, but an invitation for volunteers to serve on [his] campaign committee.”[29] The Louisiana Judicial Campaign Oversight Committee found Guidry’s opponent’s claims unsubstantiated.[30]

However, the same committee found that a mailer that Guidry had prepared for part of his 2008 campaign for the state Supreme Court violated the state’s code of judicial conduct, which prohibits judges and judicial candidates from “knowingly make or cause to be made a false statement concerning the identity, qualifications, present position or other fact concerning the candidate or an opponent.”). Guidry’s objectionable statements pertained to decisions by his opponent for the seat, Judge Jimmy Kuhn, and were “found not to be supported by the facts.”[31] The committee had investigated the statements in response to a complaint about same. In a public statement, Guidry explained the statements in detail, that “[a] media consultant retained by my campaign had created them, and I had relied upon the facts as presented to me,” and that he “specifically and unequivocally took full responsibility for the use of this campaign literature without any delay.”[32] No discipline was ever imposed as a result of the flyers. Guidry stated of this incident: “nothing similar has happened in my career either before or after these mailers. If confirmed, I will maintain the highest standards of ethical conduct and comply with the Code of Conduct for United States Judges.”[33]

Also in 2008, Guidry was the only judicial candidate nationwide that was endorsed by the Family Research Council (FRC), a group criticized as being antichoice and anti-LGBTQ, who has received the designation of hate group by the Southern Poverty Law Center.[34] The FRC’s executive director, David Nammo, has claimed to have had “several conversations with Guidry and that they considered Guidry’s election crucial to the future of the Louisiana court.”[35] Guidry has denied seeking the FRC’s endorsement.[36]

Jurisprudence

Describing his judicial philosophy, Guidry has said, “I believe that every person that comes to court deserves to be treated the same.”[37] Guidry has also noted that cases “involving the death penalty and the termination of parental rights” are “the two categories of cases that are most likely to cause me to lose sleep at night because of their extreme consequences.”[38] Reflecting on changes he has seen in his involvement in the judicial system, Guidry stated that “[t]he cost of accessing our court system has risen to a level which I believe is not acceptable.” Indeed, to the extent that a “first offense misdemeanor charge could lead to a massive financial obligation for someone of meager means[,] [s]ometimes, we are setting people up to fail.”[39]

Guidry has served on the Louisiana Supreme Court since 2009.  As such, Guidry was the sole dissenting judge in the Louisiana Supreme Court case Louisiana Federation of Teachers v. State, 118 So.3d 1033 (2013), which struck down Louisiana’s school voucher system as violating the state Constitution. The state Constitution establishes how monies are to be allocated to public schools based on a formula adopted by the state board of education. Then-Governor Bobby Jindal’s 2012 package of education reforms diverted money from each student’s per-pupil allocation to cover the cost of private or parochial school tuition.[40] In Guidry’s view, “the record showed that, once a student leaves a school district, the district is no longer entitled to the state’s share of the [per-pupil allocation] for that student, and thus the district’s state share…is removed from” the district’s overall allocation of funds, thus avoiding any constitutional problem.[41]

Additionally, in Costanza, et al. v. Caldwell, et al. (NO. 2014-CA-2090), which was the state of Louisiana’s appeal from a lower court’s ruling declaring Louisiana’s Defense of Marriage Act unconstitutional, the Louisiana Supreme Court considered the effect of the Supreme Court’s Obergefell decision, which came down while the appeal was pending.  The plaintiff-appellees were Louisiana women who got married in California, which had legalized gay marriage, and then sought to enforce their marriage when they returned to Louisiana, where same-sex marriage was still illegal. Additionally, one of the plaintiff-appellees had a biological son, who the other plaintiff-appellee sought to legally adopt after they were married. In light of SCOTUS’s then-recent opinion, the Louisiana Supreme Court issued a per curium opinion denying the appeal as moot, noting that SCOTUS’s “interpretation of the federal constitution is final and binding on this court.”[42] Guidry wrote separately in a concurrence to criticize a dissenting judge. The full text of Guidry’s concurrence:[43]

Judges are bound by oath to follow the law regardless of our personal opinions, and we insist that everyone appearing before us do the same. The dissenting opinion suggests we should not follow the holding of the Supreme Court of the United States. However, it cites no legal authority. It cannot, because there is none to support its position. I am bound by my oath as an elected justice of this state to abide by the rule of law.

I must also respond to the dissenting opinion’s assertion that the “most troubling prospect of same sex marriage is the adoption by same sex partners of a young child of the same sex.” The dissenting opinion appears to be unaware of the facts of the case before us, which involves the intra-family adoption of a boy by the female spouse of the boy’s biological mother. See In re Adoption of N.B., 14-314 (La. App. 3 Cir. 6/11/14), 140 So.3d 1263. In any event, the dissenting opinion cites no legal or scientific authority, nor does the record contain any evidence, that would support its insinuation.

Guidry echoed this sentiment in his answers to written questions from Senator Feinstein in February, 2019.[44] E.g., Answer 2(a) (“if I am confirmed as a district court judge, I will follow Roe v. Wade, which has been Supreme Court precedent for more than 40 years, as well as all other Supreme Court and Fifth Circuit precedent.”)

Speeches/Writings

In 1984, Guidry published a student note that criticized Louisiana’s physician-patient privilege statute and suggested that courts should be allowed to circumvent it in certain circumstances. Greg G. Guidry, Note, The Louisiana Supreme Court and the Physician Patient Privilege: Arsenaux v. Arsenaux, 44 La. L. Rev. 1813 (1984). He analyzed a state supreme court case, Arsenaux v. Arsenaux, in which a husband sought to access his wife’s medical records “in order to use evidence of an alleged abortion against her in divorce proceedings.”[45] The trial court held that the records were privileged, which Guidry criticized as an “inequitable” and “harsh” result. Senator Feinstein asked Guidry about this note earlier this year: “Do you still believe that the judiciary should be given the flexibility to undermine physician-patient privilege, even when it would interfere with a woman’s right to privacy in her reproductive choices?”[46] Guidry responded: “The issue presented in Arsenaux v. Arsenaux was whether the husband, who had undergone a vasectomy, was entitled to the medical records of the wife to prove adultery as a ground for divorce. In my case note for the Louisiana Law Review, I pointed out that the majority of the court felt constrained by the language of the health care provider statute and had correctly adopted a literal interpretation of the statute as enacted by the legislature, rather than judicially create any additional exceptions to the medical records’ privilege. 44 La. L. Rev. at 1819. It was properly within the legislature’s purview to provide any further guidance to the courts to resolve actions in which an essential issue is the existence of a mental or physical condition or ailment.”[47]

Guidry was published in the Louisiana Law Review again in 2010. Greg G. Guidry, The Louisiana Judiciary: In the Wake of Destruction, 70 La. L. Rev. 1145 (2010).[48] His aim was to “offer insight into the intimate details of the state courts’ response when faced with the near collapse of the legal system’s infrastructure,” in the wake of Hurricane Katrina. Id. at 1146. “These post-storm issues include the magnitude of catastrophic destruction, the longterm displacement of the entire New Orleans population, the paralysis of neighboring cities and states with the mandatory evacuation of coastal communities, and the scope of inadequate governmental response.”

Overall Assessment

Guidry is highly qualified for the federal judiciary and, as seen from his concurrence in the Costanza matter, appears to apply the law faithfully, regardless of political orientation. The ethical violations raised against him in the past are unlikely to pose difficulties for his confirmation, as they are either relatively minor or actively contested by Guidry himself.  As such, it is likely that most Republicans (who control the Senate) will give Guidry the benefit of the doubt on the matter.


[9]Id.

[10]http://www.lasc.org/justices/guidry.asp. A complete list of Guidry’s honors, recognitions, an employment can be found in his response to the Senate’s Questionnaire for Judicial Nominees, available at https://www.judiciary.senate.gov/imo/media/doc/Greg%20Guidry%20SJQ%20-%20PUBLIC.pdf.

[19] https://www.judiciary.senate.gov/imo/media/doc/Guidry%20Responses%20to%20QFRs.pdf (Sen. Feinstein Questions, at 7; Sen. Whitehouse Questions, at 3).

[24] The author found no cases from Guidry’s time in private practice.

[36] Id.

Judge Joseph Bianco – Nominee to the U.S. Court of Appeals for the Second Circuit

Joseph Frank Bianco, a 52-year old federal judge for the Eastern District of New York, has been nominated for a seat on the Second Circuit Court of Appeals. From his days prosecuting crimes related to the September 11th attacks to ruling on MS-13 cases, Bianco earned a strong reputation as both a lawyer and a judge. He is well-respected in the legal community and likely to be confirmed.

Background

Bianco was born on September 11, 1966 in Flushing, New York. Bianco graduated from Columbia Law School in 1991 and clerked for the Reagan-appointed judge, Peter Leisure, of the United States District Court for the Southern District of New York from 1992 to 1993. After Bianco’s clerkship, he entered private practice as an associate at Simpson, Thatcher and Bartlett.

In 1994, Bianco began his long career in the public sector, serving as an Assistant United States Attorney (AUSA) for the Southern District of New York. As an AUSA, Bianco gained exposure to cases involving terrorism and organized crime. Bianco briefly returned to private practice from 2003 to 2004 as counsel at the law firm of Debevoise & Plimpton. From 2004 until his judicial nomination in 2005, Bianco served as a Deputy Assistant Attorney General in the United States Department of Justice’s Criminal Division.

Bianco was nominated by President George W. Bush, and subsequently confirmed by the Senate, in 2005 to serve as a United States District Court Judge for the Eastern District of New York.

Throughout his career, Bianco has taught courses on terrorism, national security, and criminal procedure as an adjunct professor at Fordham University School of Law, Maurice A. Deane School of Law at Hofstra University, the Touro Law Center, and St. John’s University School of Law.

A Catholic, Bianco earned his Master of Arts from the Seminary of the Immaculate Conception in 2013 and is an ordained Roman Catholic deacon.

History of the Seat

Bianco was nominated by President Trump on October 10, 2018 to sit on the Second Circuit Court of Appeals. He is nominated to fill the seat vacated by Judge Reena Raggi, who took Senior Status on August 31, 2018.

Because the Senate did not act on his nomination before the end of the 115th Congress, Bianco’s nomination was returned to Trump on January 3, 2019. Trump subsequently resubmitted Bianco’s nomination, along with 51 others, on January 23, 2019, and the Senate Judiciary Committee held a hearing on his nomination on February 13, 2019.

While both home state Senators Chuck Schumer and Hillary Clinton supported Bianco’s 2005 judicial nomination at that time, neither Senator Schumer nor Senator Kirsten Gillibrand returned a blue slip for his current nomination. Gillibrand has since stated that she and Schumer strongly object to the appointments of the “far-right-wing judicial nominees” Michael Park (also nominated for a seat on the Second Circuit) and Joseph Bianco.[1]

Political History

Bianco’s involvement in politics is limited to campaigning for Jack Kemp’s presidential bid in 1988 as an undergraduate student at Georgetown University.

Legal Career

Bianco spent his legal career prosecuting high-profile terrorism and organized crime cases. As an AUSA, Bianco brought cases against Mokhtar Haouari (for conspiring to provide material support to the terrorist plot to bomb LAX),[2] Ahmed Sattar and Lynne Stewart (for providing material support to a terrorist organization),[3] Ihab Ali Nawawi (Osama bin Laden’s personal pilot and messenger),[4] the Lucchese crime family (one of the “five families” of the Mafia),[5] and the Westies (an organized crime group operating out of Hell’s Kitchen).[6] At one point, Bianco led the unit prosecuting crimes related to the September 11th terrorist attacks.

At the Department of Justice, Bianco supervised the Counterterrorism Section, the Fraud Section, the Appellate Section, and the Capital Case Unit.[7] During this time, Bianco worked closely with former FBI directors Robert Mueller and James Comey, and current FBI director Christopher Wray.

Jurisprudence

Bianco has served as a judge for the Eastern District of New York since 2006. Approximately 70% of his caseload is civil, while 30% is criminal. From 2008 to 2018, ninety-five of Bianco’s judgments were appealed; only five have been remanded, reversed, or vacated by the reviewing court.

Criminal Law

Since 2011, Judge Bianco has overseen a large number of criminal cases involving MS-13 members. At least one of these cases—that of Josue Portillo, a MS-13 member who plead guilty to a quadruple murder in August 2018—garnered the attention of Trump, who used the case as a rallying cry to crack down on illegal immigration.[8]

Though Portillo was just 15 years-old at the time of the murders, Bianco granted the government’s motion to charge him (as well as the co-defendants in the case) as adults, citing the severity of the crime and inadequacy of the juvenile justice system as partial justifications.[9] In other cases involving MS-13 members, however, Judge Bianco has shown leniency. In the case of Elmer Alexander Lopez, Bianco handed down less than the maximum sentence because the defendant had shown remorse for his actions.[10]

Employment Law

Bianco has a tendency to favor the defendant in employment law cases, fully or partially granting a motion to dismiss 84% of the time.[11] Bianco notably granted a motion to dismiss federal claims in Zarda v. Altitude Express, Inc.[12] In Zarda, the plaintiff claimed he was discriminated against by his employer because of his sexual orientation, arguing that such discrimination was in violation of Title VII’s prohibition of sex discrimination.

Per Second Circuit precedent at that time,[13] Bianco dismissed Zarda’s federal claims but allowed his state claims to proceed to trial. In 2018, the Second Circuit, sitting en banc, overturned decades-old precedent in finding that Title VII’s prohibition of discrimination on the basis of sex necessarily encompasses claims of discrimination based on sexual orientation.

Search & Seizure

Bianco often rules in favor of the state in Fourth Amendment search and seizure cases. In the case of U.S. v. Bailey,[14] Bianco’s ruling on a Summers detainment led to a reversal by the United States Supreme Court.

In Bailey, Bianco held that police validly detained the defendant pursuant to a warrant to search the defendant’s home, despite detaining him about a mile away from his property. Relying on the Summers rule, which allows officers “to detain occupants of the premises while a proper search is conducted,” Bianco held that the detention was valid because it was made “as soon as practicable.”

The Supreme Court reversed Bianco’s decision, holding that detainments pursuant to Summers are “limited to the immediate vicinity of the property to be searched,” further stating that the defendant in the case at hand was “detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.”[15]

Speeches

Bianco has a long list of speaking engagements, dating back to his early years of practice. He speaks frequently at Federalist Society events on topics such as originalism, judicial restraint, national security, and government enforcement in the private sector.

Originalism

Bianco describes himself as a “really big fan of Justice Scalia,” stating that, “as a judge, I strongly share his originalist or textualist philosophy.”[16] In the last two years, Bianco has spoken at two Federalist Society events celebrating Scalia’s legacy.[17]

National Security

During his career as a prosecutor, Bianco spoke at a number of events, often highlighting the need of military courts and alternative tribunals in terrorism prosecutions. At a March 2007 event titled, “The Role of Terrorism on Judges and Judicial Activism,” Bianco expressed a need for tribunals and alternative judicial forums to try international terrorism cases. During his presentation he stated, “People will say to me, ‘Well, just let it go through the open court system,’ but without that classified evidence, some cases just won’t go very far.”[18]
More recently, at a January 2017 event, Bianco stated that, “[c]ivilian courts are not well-equipped to try terrorists whose terrorist activity takes place entirely, or almost entirely, overseas.” And at an October 2018 event, Bianco spoke about the difficulties of bringing foreign witnesses or classified evidence into U.S. Courts.[19]

Overall Assessment

Bianco has enjoyed an illustrious career prosecuting and overseeing some of the highest-profile terrorism and organized crime cases of his time. While neither home state senator has returned a blue slip for his nomination, Bianco enjoys a unanimous “Well Qualified” rating from the American Bar Association[20] and frequent praise from his colleagues.[21]

Bianco, a self-proclaimed originalist with a record of conservatism on matters of national security and police powers, will likely soon assume a seat on the Second Circuit Court of Appeals.


[1] Sens. Gillibrand, Schumer Object to Federal Court Appointments, Watertown Daily Times, Feb. 17, 2019, https://www.watertowndailytimes.com/news03/sens-gillibrand-schumer-object-to-federal-court-appointments-20190217&.

[2] U.S. v. Haouari, 2001 WL 1154714 (S.D.N.Y. 2001).

[3] U.S. v. Sattar, 2003 WL 22137012 (S.D.N.Y. 2003).

[4] In re: Grand Jury Subpoena of Ihab Ali, 1999 WL 595665 (S.D.N.Y. 1999); see also Nancy Peckenham, Judge Rules Government May Restrict Access to Evidence in Case Tied to Bin Laden, CNN, Nov. 6, 2000, http://www.cnn.com/2000/LAW/11/06/ali.perjury.trial.int/.

[5] U.S. v. Defede, 7 F.Supp.2d 390 (S.D.N.Y. 1998).

[6] U.S. v. Bokun, 73 F.3d 8 (S.D.N.Y. 1995).

[7] United States District Court, Eastern District of New York, Judge Joseph F. Bianco, https://www.nyed.uscourts.gov/content/judge-joseph-f-bianco.

[8] Liz Robbins, MS-13 Gang Member Pleads Guilty in Quadruple Murder Highlighted by Trump, New York Times, Aug. 20, 2018.

[9] U.S. v. Juvenile Male, 327 F. Supp. 3d 573 (E.D.N.Y. 2018).

[10] Michael O’Keefe, MS-13 Member Sentenced to 25 Years for Killing Fellow Gang Member in Brentwood, Newsday, Dec. 18, 2018, https://www.newsday.com/long-island/crime/ms-13-killings-brentwood-1.24712041.

[11] Carmen Castro-Pagan, Know Your Judge: Joseph F. Bianco, Bloomberg Law, April 18, 2018, https://biglawbusiness.com/know-your-judge-joseph-f-bianco.

[12] Zarda v. Altitude Express, Inc., No. 10 Civ. 4334 (oral decision), aff’d, 855 F.3d 76 (2d. Cir. 2017), rev’d en banc, 883 F.3d 100 (2d Cir. 2018).

[13] Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).

[14] Bailey v. U.S., 568 U.S. 186 (2013).

[15] U.S. v. Bailey, 133 S.Ct. 1031, 1042 (2013).

[16] Sen. Comm. on the Judiciary, 115th Cong., Nomination of Joseph Bianco to the U.S. Court of Appeals for the Second Circuit, Questions for the Record, Feb. 20, 2019, https://www.judiciary.senate.gov/imo/media/doc/Bianco%20Responses%20to%20QFRs.pdf.

[17] The Federalist Society, Contributors: Joseph Bianco, https://fedsoc.org/contributors/joseph-bianco (last visited March 1, 2019).  

[18] Columbia Law School, Judge Bianco on Terrorism and the Role of Judges, March 2007, https://www.law.columbia.edu/pt-br/node/83221.

[19] Columbia Law School, Federal Judge Provides Behind-the-Scene Look at Terrorism Cases, Oct. 26, 2018.

[20] American Bar Association, Ratings of Article III and Article IV Judicial Nominees (last visited March 2, 2019), https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf.

[21] James M. Wick, Hon. Joseph Bianco, The Federal Lawyer, Aug. 2018, http://www.fedbar.org/Resources_1/Judicial-Profiles/Judicial-PDFs/Hon-Bianco.aspx.

Michael Liburdi – Nominee to the U.S. District Court for the District of Arizona

Usually, district court nominees don’t attract as much controversy as those appellate picks, particularly when the nominee has support from home state senators from both parties.  However, when it comes to Michael Liburdi, the support for his nomination is actually hurting home state senator Kyrsten Sinema, creating an interesting reversal of the usual dynamic.

Background

Michael Thomas Liburdi Jr. was born in Scranton, Pennsylvania in 1977.  Liburdi attended Arizona State University, graduating summa cum laude in 1998.[1]  After graduation, Liburdi spent a year in working as a legislative assistant at DeMenna and Associates.[2]

In 1999, Liburdi matriculated at Arizona State College of Law, graduating in 2002.[3]  He then clerked for Justice Ruth McGregor on the Arizona Supreme Court.  Following his clerkship, Liburdi joined the Phoenix Office of Perkins Coie as an associate.[4]  He stayed until 2011 (barring a year long stint in 2008 at the Federal Election Commission).

In 2011, Liburdi joined Snell & Wilmer LLP as an Associate and became a Partner in 2014.[5]  After the election of Republican Doug Ducey to the Arizona Governorship, Liburdi joined his office as his General Counsel.[6]  Liburdi stayed in that capacity until 2018, when he left to join Greenberg Taurig LLP as a Shareholder.

History of the Seat

Liburdi has been nominated to the U.S. District Court for the District of Arizona, to a seat vacated on July 31, 2018, by Judge David Campbell’s move to senior status.  Liburdi had broached his interest in a judicial appointment in late 2016 to senate staff and in August 2018 to the Department of Justice.[7]  He interviewed with the White House in September 2018 and was nominated in January 2019.

Political Activity & Memberships

Liburdi has been particularly active in the Arizona Republican Party, serving as the Campaign Counsel for Gov. Doug Ducey, Secretary of State Michele Reagan, Sen. Martha McSally, former Sen. Jeff Flake, Rep. Paul Gosar, and Congressional candidate Wendy Rogers, among others.[8]  He was also legal counsel for the House and Senate Victory Funds in Arizona in the 2012 election.[9]

In 2012, Liburdi led the assignment of poll watchers for the Arizona Republican Party, coordinating volunteers trained by the voter fraud watchgroup Verify the Vote AZ, which has received criticism for seeking to suppress the votes of minorities.[16]

Liburdi has been a member of the the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 2005.[10]

Legal Experience

Liburdi has developed a career as a conservative attorney, particularly focusing on the area of election law.  He has also gained experience working as Counsel for Governor Doug Ducey.

Private Practice

Throughout his career, Liburdi has built a practice in election law, representing various organizations in lawsuits around electioneering, referendum, and voting.  Early in his career, for example, Liburdi represented the Clean Elections Institute in successfully challenging a referendum that sought to end Arizona’s public financing of campaigns.[11]  Liburdi also represented Arizona Together in unsuccessfully challenging a ballot measure that sought to ban same-sex marriage in Arizona.[12]

On the flip side, Liburdi served as lead plaintiff’s counsel in challenging Arizona’s Independent Redistricting Commission legislative plan, arguing that the Commission had unconstitutionally packed Republican voters.[13]  Liburdi lost the case, and the Supreme Court affirmed.[14]  In another case, Liburdi sought unsuccessfully to block provisional ballots from a heavily latino area of Cochise County, stating that the ballots in question were not sealed.[15]

Governor’s General Counsel

From 2015 to 2018, Liburdi worked for Gov. Ducey as his Chief Counsel, assisting him on judicial nominations, drafting executive orders, and leading efforts to manage and fight litigation against the Governor’s office.  For example, Liburdi defended a lawsuit contending that a school finding settlement negotiated by Ducey violated federal law.[18]  Liburdi also advised on the appointment of three conservatives to the Arizona Supreme Court: Justices Clint Bolick, Andrew Gould, and John Lopez.

Overall Assessment

Arizona Sen. Kyrsten Sinema has already drawn sharp criticism for returning a blue slip on and supporting Liburdi.  Looking at his record overall, one can see both where this criticism comes from, as well as why Sinema may have returned the blue slip.

Looking at the positions of the opposition, Liburdi has had a strongly partisan career.  He has worked and volunteered solely for Republicans, and, while working a Ducey’s counsel, has supported a strongly conservative administration.  Furthermore, Liburdi’s work challenging Arizona’s Independent Commission drawn maps and seeking to prevent the counting of votes from overwhelmingly Latino precincts may also be sources of criticism.

On the flip side, Liburdi is obviously a talented attorney.  Furthermore, not all of his work has been on behalf of conservative groups.  In 2006, Liburdi notably fought the  ballot initiative seeking to ban same-sex marriage, seeking to have it thrown off the ballot.  He has done the same for initiatives challenging Arizona’s public financing system.  These decisions suggest that Liburdi is willing to advocate for legal positions that may run contrary to conservative politics.

Overall, with Sinema’s support, it is likely that Liburdi will be confirmed in due course, even with significant opposition from other Democrats.


[1] Sen. Comm. on the Judiciary, 115th Cong., Michael T. Liburdi: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. at 1.

[4] See id.

[5] See id. at 2.

[6] See id.

[7] See id. At 53.

[8] Id. at 28-29.

[9] Id. at 29.

[10] See id. at 8.

[11] See Clean Elections Inst. Inc. v. Brewer, 209 Arix. 241 (2004).

[12] See Arizona Together v. Brewer, 214 Ariz. 118 (2006).

[13] Harris v. Arizona Ind. Redistricting Comm’n, 993 F. Supp. 2d 1042 (D. Ariz. 2014).

[14] See Harris v. Arizona Ind. Redistricing Comm’n, 136 S. Ct. 1301 (2016).

[15] Ryan J. Reilly, Arizona Republicans Sue to Block Ballots In Latino Precinct, Talking Points Memo, Nov. 13, 2012.

[16] See Evan Wyloge, Arizona Voter Fraud Group Preps Election Day Pounce, The Arizona Capitol Times, Nov. 2, 2012.

[17] See id. at 14.

[18] See Bob Christie, Judge: Land Trust Use to Fund Arizona Schools is Illegal, The Today File, Mar. 27, 2018.