Ten Upcoming Judicial Nomination Battles

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court.  His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low.  Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation.  Instead, it has returned to a familiar front: lower court nominations.  With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming.  Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight.  (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

10. Cam Barker – Eastern District of Texas

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas.  As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts.  In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans.  Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.”  Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

9. Stephen Clark – Eastern District of Missouri 

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri.  Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage.  For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill.  Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed.  His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

8. Justice Patrick Wyrick – Western District of Oklahoma

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist.  Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt.  His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General.  Specifically, two incidents have been raised.  First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction.  Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence.  Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt.  The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

7. Mark Norris – Western District of Tennessee

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate.  His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017.  Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate.  In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state.  For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

6. Wendy Vitter – Eastern District of Louisiana

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana.  Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified).  Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

5. Howard Nielson – District of Utah

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C.  Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee.  Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush.  Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture.  In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded.  Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry.  In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

4. Ryan Nelson – Ninth Circuit

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit.  Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot.  The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

3. Matthew Kacsmaryk – Northern District of Texas

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.”  In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools.  In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage.  He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement.  Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

2. David Porter – Third Circuit

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey.  As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor.  In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

1. Thomas Farr – Eastern District of North Carolina

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country.  Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate.  Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.”  At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities.  Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.”  Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted.  (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.)  With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.

 

J. Campbell Barker – Nominee to the U.S. District Court for the Eastern District of Texas

Last year, Brett Talley’s nomination to the federal bench died as doubts were raised about his temperament, youth, and inexperience.  Born in 1981, Talley was only 36 at the time of his nomination.  While the Trump Administration has yet to send a nominee as young as Talley, Cam Barker, newly tapped for the Texas federal bench, comes pretty close, at only 37 years old.  While Barker boasts an impressive resume, including stellar academic credentials, his position as Texas Deputy Solicitor General has given him a footprint in many deeply controversial cases.

Background

John Campbell “Cam” Barker was born in New Orleans, LA in 1980.  Barker attended Texas A&M University, graduating with a B.S. summa cum laude in 2002.  He proceeded to the University of Texas Law School, graduating with a J.D. with highest honors in 2005.  After graduating, Barker clerked for Judge John Walker on the U.S. Court of Appeals for the Second Circuit and then for Judge William Bryson on the U.S. Court of Appeals for the Federal Circuit.

After his clerkships, Barker joined the U.S. Department of Justice Criminal Division as a Trial Attorney.  He worked there until 2011.  During that time, he had a short stint as a Special Assistant United States Attorney on detail with the U.S. Attorney’s Office for the Eastern District of Virginia.

In 2011, Barker left the government to join the Houston office of Yetter Coleman LLP as an associate.  In 2014, Barker was named a partner at the firm.

In 2015, Barker was hired by Texas Attorney General Ken Paxton to be Deputy Solicitor General for the State of Texas, working under Solicitor General Scott Keller.  Barker continues to serve in that position today.

History of the Seat

The seat Barker has been nominated for opened on May 15, 2015, with Judge Leonard Davis’ move to senior status.  Although the seat opened with 19 months left in the Obama Administration, no nominee was ever put forward to fill the vacancy, possibly due to an inability to reach an agreement with Texas’ Republican Senators, John Cornyn and Ted Cruz.

In February 2017, Barker applied for a judgeship with the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.[1]  He interviewed with the Committee in March and then with Cornyn and Cruz in May.  Barker’s name was submitted to the White House in July 2017.[2]  After interviews with the White House Counsel’s Office and the Department of Justice, Barker was nominated on January 23, 2018.

Legal Experience

Other than his clerkships, Barker has held three primary legal positions: as a trial attorney with the Department of Justice; in private practice with Yetter Coleman; and as Deputy Solicitor General for Texas.  In these positions, Barker has practiced extensively in state and federal courts.

Department of Justice

From 2007 to 2011, Barker worked in the appellate section of the Criminal Division of the Department of Justice.[3]  In this capacity, Barker argued 12 criminal appeals in the federal appellate courts, generally defending convictions in federal criminal actions,[4] although, in some cases, Barker also appealed from adverse lower court rulings.[5]

In 2009, Barker detailed at the U.S. Attorney’s Office for the Eastern District of Virginia, where he was the lead prosecutor against three MS-13 gang members who were subsequently convicted of conspiracy and racketeering.[6]

Yetter Coleman

From 2011 to 2015, Barker worked as an associate and a partner at Yetter Coleman LLP.  In this role, Barker primarily carried a civil litigation caseload, including representing Bear Ranch, a beef producer, in a contract dispute,[7] and defending Oklahoma Gas & Electric Co. in a multidistrict patent infringement suit.[8]

Other than his civil docket, Barker also represented a Nepali immigrant seeking political asylum in the United States after facing torture from Maoists in Nepal.[9]  Barker was able to reverse the Board of Immigration Appeals decision denying his client asylum.[10]

Deputy Solicitor General

Since 2015, Barker has served as Deputy Solicitor General in Texas.  In this capacity, Barker has participated in a number of controversial cases.

For example, Barker was on the legal team, alongside Keller and Fifth Circuit nominee Andy Oldham, that sought to enjoin the Obama Administration’s DAPA initiative.  Barker succeeded in getting a nationwide injunction against the initiative from U.S. District Judge Andrew Hanen and in defending that injunction before the Fifth Circuit and the U.S. Supreme Court.[11]  The Texas legal team was able to convince Judge Hanen that Texas suffered an injury from the Obama Administration’s prioritization of certain deportations and that the DAPA initiative violated the separation of powers.[12]

In another controversial case, Barker defended Texas’ Voter ID law, which was challenged as an unconstitutional poll tax, being passed with a discriminatory purpose and effect, and creating a substantial burden to the right to vote.[13]  The law has been struck down by Judge Nelva Gonzalez Ramos, whose injunction has been stayed pending appeal.[14]

Barker has also represented the State of Texas as intervenors in the suits over President Trump’s executive orders restricting entry into the United States for travelers from seven predominantly Muslim countries, seeking to defend the constitutionality of the orders.[15]

Writings

As a law student, Barker authored an article discussing the statutory damages award for copyright infringement.[16]  In the article, Barker argues that the aggregation of statutory damages across many instances of misconduct creates a penalty “so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence.”[17]  He notes that this aggregation becomes particularly severe when imposed against those engaged in unauthorized file sharing, such as through sites such as Napster.[18]

Barker argues in the note that, because the statutory damages scheme under the Copyright Act is “punitive” in nature, that it is limited by the Substantive Due Process Clause, as interpreted under BMW of North America, Inc. v. Gore.[19]  He also notes that a defendant who illegally shares multiple files is not proportionally more culpable than a defendant who illegally shares one.[20]  As such, Barker endorses a rethinking of the statutory damages scheme and suggests the imposition of “much smaller penalties across a larger spectrum of the file-sharing public.”[21]

Overall Assessment

Given both his youth and his involvement in the controversial DAPA, voter id, and travel ban cases, it is unlikely that Barker will be considered a consensus nominee.  Barker’s critics will argue that, given Barker’s prominent role in “political” litigation at the Texas Solicitor General’s Office and his support for the travel ban, that this is an instance of the Trump Administration rewarding an unqualified supporter with a federal judgeship.

However, Barker boasts an impressive resume and can point to several factors in his favor.  Firstly, having graduated law school in 2005, Barker meets the ABA’s criteria of twelve years of practice.  Secondly, Barker has clerked for judges appointed by Republican and Democratic presidents.  Thirdly, Barker worked at the Department of Justice under both the Bush and the Obama Administration, defending their legal positions in court.  Finally, Barker can point to his defense in the Sharma case to counter suggestions that he is anti-immigrant.

Barker’s law review note raises an additional point.  While it may not be representative of his current views, the article demonstrates a strong concern with the proportionality of punishment and endorses the active use of the Substantive Due Process Clause to limit civil (and criminal) penalties that are excessive.  If Barker maintains these views, it is possible that he may yet end up endearing himself to liberals and disappointing many conservatives on the bench.


[1] Sen. Comm. on the Judiciary, 115th Cong., J. Campbell Barker: Questionnaire for Judicial Nominees 35.

[2] See id.

[3] See id. at 14.

[4] See, e.g., United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011) (reversing denial of motion to suppress).

[5] See, e.g., United States v. Crespo-Rios, 645 F.3d 37 (1st Cir. 2011) (reversing grant of motion to suppress).

[6] United States v. Gil Bernandez, No. 1:09-cr-216 (E.D. Va.), aff’d, 439 Fed. App’x. 209 (4th Cir. 2011), cert. denied, 565 U.S. 1160 (2012).

[7] See Bear Ranch, LLC v. Heartbrand Beef, Inc., No. 6:12-cv-14 (S.D. Tex.).

[8] See Transdata, Inc. v. Oklahoma Gas & Electric Co., No. 5:11-cv-1032 (W.D. Okla.).

[9] See Sharma v. Holder, 729 F.3d 407 (5th Cir. 2013).

[10] See id. at 413.

[11] See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an evenly divided court, 136 S. Ct. 2271 (2016), reh’g denied, 136 S. Ct. 2271 (2016).

[12] See id.

[13] See Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015).

[14] See Veasey v. Abbott, 265 F. Supp. 3d 684 (S.D. Tex. 2017), order stayed pending appeal by 870 F.3d 387 (5th Cir. 2017).

[15] See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017).  See also Int’l Refugee Assistance Project v. Trump, 2018 U.S. App. LEXIS 3513 (4th Cir. 2018) (en banc); State of Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).

[16] J. Cam Barker, Grossly Excessive Penalties in the Battle Against Illegal File Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525 (Dec. 2004).

[17] Id. at 527.

[18] See id.

[19] Id. at 538 (citing 517 U.S. 559 (1996)).

[20] Id. at 553.

[21] See id. at 559.