Court of International Trade

Joseph Barloon – Nominee to the U.S. Court of International Trade

As noted previously, nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, generally do not draw the level of rancor that other judicial nominations do.  Joseph Barloon, who currently serves as General Counsel for the U.S. Trade Representative, is more than qualified for a seat on the Court, but may be stuck due to the timing of his nomination.

Background

Born in 1967, Joseph L. Barloon received a B.A. from Harvard University in 1989, an M.A. from the University of Pennsylvania in 1991, and his J.D. from the Georgetown University Law Center in 1996.  After graduating, Barloon clerked for Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit and then joined the Washington D.C. office of Skadden Arps as an Associate.[1]  He was later elevated to be a Partner at the firm.

In 2019, Barloon replaced Stephen P. Vaughn as General Counsel to U.S. Trade Representative Robert Lighthizer.  He currently serves in that role.

History of the Seat

Barloon has been nominated for a seat vacated by Judge Leo Gordon, an appointee of President George W. Bush, on March 22, 2019.  

Legal Experience

Barloon has spent the vast majority of his legal career at the firm of Skadden Arps, where he worked primarily on civil and commercial litigation.  In the mid-2000s, Barloon was on the legal team for accounting firm KPMG as it faced government investigation and potential indictment for its work on tax shelters.[2]  Notes that Barloon took at meetings with prosecutors were later made public in the process of criminally trying several KPMG officials.[3]

Since 2019, Barloon has served as General Counsel to U.S. Trade Representative Robert Lighthizer.  In this role, Barloon has provided legal advice and guidance to Lighthizer and the Acting Deputy Trade Representative.  Notably, Barloon oversaw the Trump Administration’s proposal of tariffs against China on a wide variety of goods.[4]

Statements and Writings

As an associate and a partner at Skadden, Barloon has both written and spoken on the law, including making frequent statements to the media in commentary on legal developments.  For example, Barloon frequently cowrote articles on banking law with fellow Skadden attorneys Anand Raman and Matthew Michael.[5] 

Lending and Disparate Impact

Barloon has frequently commented on the use of “disparate impact” when evaluating fair lending practices.  Disparate impact allows plaintiffs to prove discrimination by showing the impact of banking policies and procedures, instead of presenting evidence of intent, which is frequently unavailable.  While most of his comments on the subject have been descriptive,[6] Barloon has expressed reservations about the use of disparate impact in fair lending lawsuits in his capacity as an attorney for lenders.[7]

CFPB

Barloon has also spoken frequently, in his capacity as a bank lawyer, on the Consumer Financial Protection Bureau (CFPB) and its actions.  For example, Barloon commented on lawsuits challenging the recess appointment of CFPB head Richard Cordray.[8]  He also spoke favorably regarding the CFPB’s approach in regulating payday lenders, finding the regulations to be “data-driven.”[9] 

Overall Assessment

With decades of experience with commercial litigation and international trade, Barloon is qualified for an appointment to the Court of International Trade.  However, now that we have less than two months left in the Trump Administration (and less than three weeks in the current Congress), it is unlikely (albeit not impossible) that the Senate will be able to process Barloon’s nomination in time.

[2] Lynnley Browning, Documents Show KPMG Secretly Met Prosecutors, N.Y. Times, July 6, 2007.

[3] See id.

[4] See Patrick Shanley, Nintendo, Sony, Microsoft Urge Trump to Withdraw China Tariffs in Joint Letter, Hollywoodreporter.com, June 26, 2019.

[5] See, e.g., Anand S. Raman, Joseph L. Barloon, and Matthew D. Michael, Cutting the Risks Built Into Third-Party Lending Relationships, ABA Banking Journal, Pg. 65, Vol. 95, No. 7 (July 2003).

[6] See, e.g., Kevin Wack, Supreme Court Case Could Be Big Help to Banks in Fair-Lending Fight, American Banker, Nov. 14, 2011 (quoting Joseph Barloon).

[7] See Kevin Wack, Banks Hit Legal Setback in Fair Lending Fight, National Mortgage News, Feb. 27, 2012.

[8] Kevin Wack, CFPB Suit Faces Long Odds, But May Still Have Impact, American Banker, July 25, 2012.

[9] See Victoria Finkle, Payday Loan Crackdown Could Have Big Upside for Banks, American Banker, June 29, 2012.

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Stephen Vaden – Nominee to the U.S. Court of International Trade

The U.S. Court of International Trade is a specialized court that hears cases involving international trade and customs laws, but whose judges, nonetheless, sit for lifetime appointments.  While nominees to the court generally attract less opposition due to the court’s specialized nature, there are always exceptions.  Stephen Vaden, who has already had one tough confirmation through the Senate, will likely face questions for his youth, lack of experience, and rocky tenure in his current position.

Background

A native Tennessean, Stephen Alexander Vaden was born in Memphis in 1982.  Vaden grew up in Union City, Tennessee, where his father ran a family farm.[1]  Vaden attended Vanderbilt University and then attended Yale Law School, graduating in 2008.[2]  After graduating, Vaden clerked for Judge Julia Smith Gibbons on the U.S. Court of Appeals for the Sixth Circuit, and then for Judge Samuel Mays on the U.S. District Court for the Western District of Tennessee.[3]

After his clerkships, Vaden joined the Washington D.C. office of Patton Boggs as an Associate.[4]  In 2014, Vaden moved to Jones Day in Washington D.C. as an Associate.[5]

In 2017, Vaden was nominated to be General Counsel for the U.S. Department of Agriculture, and serving as acting General Counsel during his nomination.[6]  However, his nomination was criticized by Democrats for his work defending voter restrictions in Ohio and North Carolina.[7]  After passing out of Committee, Vaden’s nomination sat on the floor for months before being confirmed on a 53-46 vote.[8]  He currently serves in that capacity.

History of the Seat

Vaden has been nominated for a seat vacated by Judge Delissa Ridgeway, an appointee of President Bill Clinton, on January 31, 2019.  

In April 2019, Vaden was contacted by the White House to discuss a judicial appointment.[9]  Vaden interviewed with the Department of Justice and was nominated on October 2, 2019.  

Political Activity

Vaden is a Republican with a long history of contributions to the Tennessee Republican Party.[10]  In addition, Vaden has also given to other Republicans, including his sponsor Rep. David Kustoff.[11] 

Additionally, while in law school, Vaden was President of the Yale Law Republicans, where he opposed the military’s Don’t Ask Don’t Tell policies.[12]

Legal Experience

Before he started at the Department of Agriculture, Vaden worked at the firms of Patton Boggs and Jones Day, where he handled litigation.  During his tenure there, Vaden argued the case of Lilliputian Sys. Inc. v. Pipeline Hazardous Materials Safety Admin. Before the D.C. Circuit, in which he persuaded the Court to overturn federal regulations on carrying fuel cell cartridges on passenger flights.[13]  He also represented amicus parties in defending voter restrictions passed by North Carolina and Ohio.[14] 

Since 2017, Vaden has served as General Counsel to the Department of Agriculture.  Vaden’s nomination to the position came under criticism from sources who argued that Vaden was reassigning career appointees and Democrats to jobs in other parts of the country.[15]  He was also criticized for being “intransigent” and hurting morale among Department attorneys.[16] 

Vaden was also implicated in the widely criticized decision by USDA to relocate the Economic Research Service and the National Institute of Food Agriculture to Kansas City.[17]  The decision was criticized for being politically motivated and for forcing workers to quit.[18]  The move was also lambasted by the Department’s Inspector General, who argued that it violated laws requiring congressional approval before spending money to relocate offices.[19]  In response, Vaden justified the decision in a memo, stating:

“USDA is not required to abide by unconstitutional laws.”[20]

Overall Assessment

While nominations to the Court of International Trade are usually non-controversial, Vaden is likely to draw opposition.  Specifically, Vaden is likely to draw questions regarding his tenure at the Department of Agriculture, his contention that the Department can ignore laws it deems to be unconstitutional, as well as his participation in lawsuits defending voter restrictions.  He is also likely to face questions about his youth and his lack of experience litigating issues of International Trade or appearing in court.  Vaden has not practiced before the Court of International Trade at all, and, by his own account, has only argued in court once in his entire career.  As such, at a time when Trump nominees are drawing criticism for their lack of experience, Vaden will likely face the same scrutiny.

[1] Press Release, Office of Sen. Lamar Alexander, Tennessean Stephen Vaden Has The “Hands-On Experience’ To Be Agriculture Department General Counsel (Nov. 9, 2017).

[2] Sen. Comm. on the Judiciary, 116th Cong., Stephen Vaden: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id. at 2.

[5] Id.

[6] See Alexander, supra n. 1.

[7] Lead Lawyer for Agriculture Comes Under Democratic Fire, Congressional Quarterly News, Nov. 9, 2017.

[8] Tennessee Attorney Confirmed as USDA’s General Counsel, A.P. State & Local, Nov. 28, 2018.

[9] See id. at 25.

[10] See Vaden, supra n. 1 at 10.

[12] Thomas Kaplan, Yale Law, Newly Defeated, Allows Military Recruiters, N.Y. Times, Oct. 1, 2007.

[13] 741 F.3d 1309 (D.C. Cir. 2014).

[14] See Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).

[15] Morning Agriculture, Vaden Advances, So Does Related Controversy, Politico, Dec. 12, 2017, https://www.politico.com/newsletters/morning-agriculture/2017/12/12/vaden-advances-so-does-related-controversy-047706.  

[16] Vaden Causes Concern Within USDA, The Frontrunner, Dec. 5, 2017.

[17] Gregory Wallace, USDA May Have Violated Law in Controversial Office Relocation Decision, Inspector General Says, CNN, Aug. 6, 2019.

[18] See id.

[19] See id.

[20] Id. (quoting Stephen Vaden).

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M. Miller Baker – Nominee for the U.S. Court of International Trade

As noted previously, nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, generally do not draw the level of rancor that other judicial nominations do.  However, M. Miller Baker, a conservative attorney with a history of lawsuits on election law and voting law, may find himself an exception to that rule.

Background

Maurice Miller Baker was born in Houma, Louisiana, in 1962.  Baker did not graduate from college, although he attended Nicholls State University and Louisiana State University, and was accepted to Tulane University Law School in 1981 under an accelerated program.[1]  After graduating, Baker clerked for Judge John M. Duhe on the U.S. District Court for the Western District of Louisiana, and then for Judge Thomas Gee on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkships, Baker joined the Department of Justice, working in the Office of Legal Policy and the Civil Rights Division before leaving in 1989 to go into private practice.[3]  In 1991, Baker joined the staff of U.S. Sen. Orrin Hatch on the Senate Judiciary Committee.[4]

In 1993, Baker joined Carr Goodson Warner P.C. as an Associate and became a Partner in 1996.  In 2000, he moved laterally to McDermott Will & Emery LLP, where he serves as a Partner today.

In 2006, Baker was one of five people recommended by Virginia Senators to serve on the U.S. District Court for the Eastern District of Virginia (fellow Trump nominee Rossie Alston was another name on the list).[5]  The Bush Administration selected U.S. Magistrate Judge Liam O’Grady instead.

History of the Seat

Baker has been nominated for a seat vacated by Judge Donald Pogue, an appointee of President Bill Clinton, on July 1, 2014.  President Obama nominated Jeanne Davidson to fill the vacancy on July 30, 2015, but Davidson was never processed by the Republican-controlled Senate.  While Davidson was supported by a unanimous Senate Judiciary Committee vote, she never received a final confirmation on the Senate floor.

In April 2017, Baker was contacted by the White House to discuss a judicial appointment.[6]  Baker interviewed with the Department of Justice in September 2017 and was nominated on June 18, 2018.

Political Activity

Baker has a long political history, including his run as a Republican against Virginia State Senator George Barker in 2011.[7]  In the campaign, Baker highlighted his Federalist Society membership and ran as a “proven conservative,” running on lowering taxes and improving teacher pay.[8]  Ultimately, Baker lost, getting 47% of the vote.[9]

Other than his own run, Baker has volunteered and provided legal services to several Republican campaigns, including those of Ken Cuccinelli, Mark Obenshain, George Allen, David Vitter, Orrin Hatch, John Ashcroft, and James Gilmore.[10]  In his youth, Baker was a Democrat, having volunteered for the Carter-Mondale campaign in 1980 and serving as a member of the Young Democrats of Louisiana.[11]

Legal Experience

Baker has had a fairly distinguished legal career, including arguing three cases before the U.S. Supreme Court.  In his first case before the Court, Baker successfully won a unanimous decision that Louisiana’s open primary law violated federal statutes by allowing members of Congress to be chosen up to a month before the uniform election day.[12]  In the second, Beck once again won unanimously, with the Supreme Court finding that his client, a bankruptcy trustee, did not breach his fiduciary duty to his clients.[13]  In the third, Baker represented Arthur Andersen LLP in arguing that the company could seek to stay a federal lawsuit against it pending arbitration proceedings even where it was not a signatory to the arbitration agreement.[14]  The Supreme Court agreed in a 6-3 opinion.[15]

In addition to his Supreme Court work, Baker has been particularly active in suits regarding voting regulations.  For example, Baker represented Concerned Women of America, a conservative group, in seeking to distribute campaign materials without registering as a political committee.[16]  Baker also led an unsuccessful challenge to Oregon’s vote by mail process,[17] and to Texas laws permitting early voting.[18]

Overall Assessment

While nominations to the Court of International Trade are usually non-controversial, Baker’s is likely to draw opposition.  Specifically, Baker is likely to be challenged regarding the voting lawsuits he has brought, and specifically the contention that early voting and that vote by mail violates federal law.  Given the ubiquity of early voting (to a much greater degree than existed at the time of the suit), most reasonable observers would agree that the practice is both legal and constitutional.  As such, senators will most likely probe Baker’s views on the subject.

At the same time, Baker is being nominated to a specialized court.  While he may have the opportunity to “sit by designation”, on the Court of International Trade, Baker’s views on voting are unlikely to play much role.  As such, Democrats may choose to save their fire and focus their attention on nominees likely to cause more damage.

Note: A previous version of this article incorrectly stated that judges on the Court of International Trade do not have lifetime tenure. They do.

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

[2] See id. at 3.

[3] Id. at 2.

[4] Id.

[5] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.

[6] See id. at 48-49.

[7] Christy Goodman, Voters to See Redrawn Election Districts, Wash. Post, May 12, 2011.

[8] State Senate District 39, Wash. Post, Aug. 18, 2011.

[9] See Baker, supra n. 1 at 21-22.

[10] Id. at 22.

[11] Id.

[12] Foster v. Love, 522 U.S. 67 (1997).

[13] Beck v. PACE Int’l Union, 551 U.S. 96 (2006).

[14] Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009).

[15] See id.

[16] Rajiv Chandrasekharan, Conservatives Sue Va. and Democrats; Groups Seek Protection For Election Material, Wash. Post, Oct. 10, 1995.

[17] See Voting Integrity Project et al. v. Bomer, 61 F. Supp. 2d 600 (S.D. Tex. 1999).

[18] Voting Integrity Project et al. v. Keisling, 1999 U.S. Dist. LEXIS 22727 (D. Ore. Mar. 22, 1999).

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Timothy Reif – Nominee to the U.S. Court of International Trade

Nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, have generally not drawn the level of rancor that other judicial nominations have.  The last Obama judicial nominees confirmed by a Republican Senate in 2016, for example, were two selections for the Court of International Trade.  Timothy Reif, tapped by President Trump to fill a longstanding vacancy on the court, looks likely to maintain that tradition.

Background

Timothy Mark Reif was born in New York City on April 12, 1959.  Reif attended Princeton University and Columbia Law School.[1]  He was also a Fulbright Scholar, spending a year in Egypt.

After graduating law school, Reif joined Milbank Tweed Hadley & McCloy LLP as an Associate.[2]  In 1987, Reif joined the U.S. Trade Commission as an Attorney Advisor, and, in 1989, moved to the Office of the U.S. Trade Representative.[3]

In 1993, Reif joined the House Committee on Ways and Means as Trade Counsel.  He left in 1995 after Republicans took control of Congress to join Dewey Ballantine LLP as Special International Trade Counsel.[4]  In 1998, he returned to the Committee to serve as Chief International Trade Counsel, where he stayed until 2009.

In 2009, Reif joined the Office of the U.S. Trade Representative as General Counsel.[5]  In 2017, he became Senior Advisor to the Trade Representative, where he serves today.

History of the Seat

Reif has been nominated for a seat vacated by Judge Richard Eaton, an appointee of President Bill Clinton, on August 22, 2014.  President Obama nominated Elizabeth J. Drake, a D.C. based attorney, to fill the vacancy on July 30, 2015, but Drake was never processed by the Republican-controlled Senate.  While Drake was supported by a unanimous Senate Judiciary Committee vote, she never received a final confirmation on the Senate floor.

In the Fall of 2017, U.S. Trade Representative Robert Lighthizer recommended Reif for an appointment to the U.S. Court of International Trade.[6]  Reif interviewed with the White House in December 2017 and was nominated on June 18, 2018.

Political Activity

Reif has been a lifelong Democrat, volunteering for Ted Kennedy’s Presidential campaign in 1980, and volunteering for the Presidential campaigns of John Kerry and Barack Obama.[7]  Reif also donated to the campaign of Hillary Clinton in 2016.[8]

Legal Experience

Throughout his career, Reif has taken on many different positions, working with the U.S. Trade Representative, in Congress, and in private practice.

U.S. Trade Representative

Between 1989 and 1993, and, since 2009, Reif has worked for the U.S. Trade Representative, negotiating trade agreements and representing the United States in international tribunals.  Notably, Reif is one of the few Obama Administration officials to continue to serve to this day in the Trump Administration.

As general counsel to the U.S. Trade Representative, Reif challenged European Union subsidies offered to Airbus, arguing that they were intended to undercut competition from Boeing.[9]  Reif also defended U.S. Country of Origin labeling and Dolphin-Safe Tuna labeling against challenges from Canada and Mexico respectively.[10]

Committee on Ways and Means

From 1993 to 1994, and then from 1998 to 2009, Reif worked for the House Committee on Ways and Means, advising members on trade issues.  Reif’s tenure coincided with both Democratic and Republican majorities on the Committee, during the latter of which, Reif served as lead Democratic trade counsel.  During this time, Reif helped work on a bill normalizing trade relations with Vietnam.[11]

Private Practice

From 1995 to 1998, Reif worked as Special International Trade Counsel at Dewey Ballantine.  In that position, Reif represented clients working with the U.S. Trade Representative and the U.S. Department of Agriculture.  During that time, Reif was also involved in a fierce dispute over two paintings by Austrian painter Egon Schiele.[12]  The paintings were once owned by his ancestor Fritz Grunbaum and were seized by the Nazis after Grunbaum was sent to a concentration camp.[13]  Reif sought a claim to heirship of the paintings, under display in the Leopold Foundation in Vienna.[14]

Overall Assessment

As noted above, nominations to the Court of International Trade are usually non-controversial.  Reif’s is likely to particularly so, given his Democratic pedigree and his broad experience with issues of international trade.  As such, Reif is likely to secure a near unanimous confirmation to this unique tribunal.

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

[2] See id. at 2.

[3] Id. at 1.

[4] Id. at 2.

[5] See id. 

[6] See id. at 55-56.

[7] See Reif, supra n. 1 at 41.

[9] Nicola Clark, Trade Group Rules Broadly for Boeing; Airbus Got Subsidies for all Planes, But Not All Were Illegal, WTO Says, Int’l Herald Tribune, July 1, 2010.  

[10] Tim Carman, Tuna, Meat Labels Face International Challenges, Wash. Post, Jan. 11, 2012.

[11] David J. Lynch, Vietnam Trade Bill Grinds to a Halt; Bush Will Show Up For Visit Overseas Empty-Handed as Vote Delayed Until December, USA Today, Nov. 15, 2006.

[12] Judith B. Dobrzynski, More Paintings by Schiele Face Ownership Questions, N.Y. Times, Jan. 15, 1998.

[13] See id.

[14] Judith B. Dobrzynski, German Court Revokes Ruling on Ownership of a Schiele Painting, N.Y. Times, Apr. 16, 1998.

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