Thoughts on the Sept. 6th Judiciary Committee Hearing

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee.  Here are my preliminary thoughts on the proceedings, which can be watched here.  (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER:  These are just my opinions.  Reasonable observers of the hearing can obviously disagree on any of these points.

  1. Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawn liberal criticism.  Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.
  2. Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee.  Over the course of the hearing, it was clear why.  Larsen was poised and comfortably conversed with senators on several legal issues.  She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence.  She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there.  As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation.  Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.
  3. Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.”  Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism.  For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law.  However, much of the posturing was undone by two key missteps.  First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution.  Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge?  Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF).  When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF.  She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group.  It was an unnecessarily defensive performance and undermined her careful answers until that point.
  4. Franken Remains the Minority’s Best Questioner – In the last “big” hearing,  Franken helped lead the Democrat’s charge against John Bush and Damien Schiff.  This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed.  Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.
  5. Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all.  This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees.  He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so.  Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions.  Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round.  At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.

“Chip” Campbell – Nominee to the U.S. District Court for the Middle District of Tennessee

As federal judges are often selected by home state senators, and senators tend to choose nominees they have a connection to, partners of the same law firm are occasionally nominated to the same court.  In 2013, for example, two partners at the California law firm, Munger, Tolles & Olson, were chosen to fill vacancies on the Ninth Circuit.  However, it is more unusual for two partners to be simultaneously nominated for judgeships in different states.  The midwestern law firm Frost, Brown, & Todd LLC. achieved this when Nashville partner William L. “Chip” Campbell was tapped for a judgeship a month after Lexington partner Claria Horn Boom.

Background

William Lynn Campbell, Jr., professionally known as Chip, was born in 1969 in Nashville, TN.  After getting a Bachelor of Science from the United States Naval Academy in 1991, Campbell joined the United States Marine Corps, serving for seven years.  In 1998, Campbell left the Marine Corps to attend the University of Alabama Law School.  Campbell served as Editor-in-Chief of the Alabama Law Review and graduated magna cum laude in 2001.

After graduating, Campbell joined the Birmingham office of Maynard, Cooper, & Gale, P.C.  In 2003, Campbell left Maynard, moving to Nashville, and joining Riley, Warnock, & Jacobsen, PLC. as an associate.  Campbell became a member at Riley Warnock in 2010.[1]

In 2011, Campbell moved to the Nashville Office of Frost, Brown, & Todd LLC. as a partner.  He currently practices in the firm’s business litigation practice.  He was nominated for a seat on the federal bench on July 13, 2017.

History of the Seat

Campbell has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Tennessee.  This vacancy opened on April 15, 2017, when Judge Kevin Sharp left the bench.  Sharp, an Obama appointee, was only 54, but resigned his judgeship based on his dissatisfaction with mandatory minimum sentencing laws, arguing that he could not continue to impose unjust sentences.[2]

For his part, Campbell expressed his interest in a district court appointment in November 2016, shortly after the election of President Trump.  From November 2016 to March 2017, Campbell communicated with the staff of Sens. Lamar Alexander and Bob Corker.  Campbell met with the White House Counsel’s Office on March 28, 2017.  His nomination was officially submitted to the Senate on July 13, 2017.[3]

Legal Experience

Campbell began his legal career in Alabama, litigating labor, tort, and employment cases.  Notably, Campbell was on the legal team defending a coal company against tort claims filed by the widow of a worker killed in a mining accident.[4]

After moving to Nashville to work at Riley Warnock, Campbell changed his focus to business litigation, representing corporations in contract, tort, intellectual property, and regulatory actions. He served as associate counsel in a copyright infringement suit against a karaoke company.[5]  He also successfully defended a check verification company against a Fair Credit Reporting Act lawsuit.[6]

In 2011, Campbell moved to Frost Brown Todd as a partner.  In that capacity, Campbell handled class actions, antitrust, and fraud claims. He also represented the City of Chattanooga in a lawsuit challenging the city’s telecommunications regulations.[7]

Scholarship

Since his student days, Campbell has analyzed statutes, policy and jurisprudence in scholarly articles.  As a law student at the University of Alabama, Campbell published a student note titled “Moving Against the Tide: An Analysis of Home School Regulation in Alabama.”[8]  In the note, Campbell analyzed the regulation of homeschooling through the lens of constitutional rights.  Specifically, Campbell concluded that, under Supreme Court, there is no fundamental constitutional right to an education, although the Supreme Court has recognized a parent’s fundamental right to direct their child’s education.[9]  Campbell went on to criticize Alabama’s disparate treatment of homeschooling depending on whether the home school program is affiliated with a church or not.[10]  He recommended that the state relax its certification standards for home school teachers, instead focusing on educational outcomes through student testing.[11]

As a young lawyer at Maynard, Campbell authored an article explaining Alabama statutes governing co-employee liability for workplace injuries.[12]  In the article, Campbell explained that Alabama treats co-employee liability extremely narrowly and that “co-employee claims are generally difficult for plaintiffs to win.”[13]

One unusual topic of Campbell’s more recent writings is drones.  Specifically, Campbell has written extensively on the potential use and regulation of commercial drones.[14]  In these articles, Campbell generally argues for the greater use of drones, noting their potential for medical and police uses.[15]  Campbell also dismisses privacy concerns raised due to the extensive use of drones, noting that there is no “reasonable expectation of privacy in areas that are visible from the air.”[16]

Campbell also maintains a Twitter account.  This account generally focuses on articles and commentary on drone usage and regulations.

Overall Assessment

Generally, district court nominees don’t draw opposition unless they have a history of activism, a controversial paper trail, or serious ethical issues.  Campbell has none of these.  His apolitical background and lack of a judicial paper trail should keep most critics off his back.  Campbell may draw some criticism for his writings on drone technology, but such criticism is unlikely to overcome his strong academic credentials and balanced legal experience.  Even the American Bar Association agrees, rating Campbell “Well Qualified” for a federal judgeship.


[1] The Alabama Lawyer, Department: About Members, Among Firms, 71 Ala. Law. 251 (May 2010).

[2] Stacey Barchender, Why Federal Judge Kevin Sharp Left the Bench in Nashville, Tennessean, Apr. 17, 2017, http://www.tennessean.com/story/news/2017/04/17/why-federal-judge-kevin-sharp-left-bench-nashville/100419782/.  

[3] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (on file at www.whitehouse.gov) (July 13, 2017).

[4] Ex Parte Walter Indus. Inc., 879 So.2d 547 (Ala. 2003).

[5] Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007).

[6] Holmes v. TeleCheck Intern. Inc., No. 3:05-0633 (M.D. Tenn.) (Judge Campbell).

[7] Zayo Group LLC. v. The City of Chattanooga, No. 1:16-cv-00466 (E.D. Tenn.) (Judge Reeves).

[8] William L. Campbell, Jr., Moving Against the Tide: An Analysis of Home School Regulation in Alabama, 52 Ala. L. Rev. 649 (Winter 2001).

[9] See id. at 652-54.

[10] See id. at 658-59.

[11] Id. at 672.

[12] William L. Campbell Jr., Kevin W. Patton, Alabama Code § 25-5-11: A Narrow Cause of Action Against Co-Employees, 64 Ala. Law. 38 (January 2003).  

[13] Id. at 47-48.

[14] See, e.g., Chip Campbell, What is All the Buzz About Drones, Linkedin Pulse, Jan. 29, 2016, https://www.linkedin.com/pulse/what-all-buzz-drones-chip-campbell?trk=mp-reader-card.

[15] See Chip Campbell, Where Can Drones Do Some Good (And Gain Community Acceptance)?, Linkedin Pulse, Feb. 16, 2016, https://www.linkedin.com/pulse/where-can-drones-do-some-good-gain-community-chip-campbell?trk=mp-reader-card.

[16] Chip Campbell, Does Drone Technology Present New Threats to Privacy, Linkedin Pulse, March 17, 2016, https://www.linkedin.com/pulse/does-drone-technology-present-new-threats-privacy-chip-campbell?trk=prof-post.