A district judgeship is a bit of a consolation prize for Daniel Domenico, who lost out on Neil Gorsuch’s seat on the U.S. Court of Appeals for the Tenth Circuit to Colorado Supreme Court Justice Allison Eid.  Nevertheless, Domenico, who is well-established in Colorado conservative legal circles, is likely to have a smooth confirmation for a trial judgeship.

Background

A native Coloradoan, Daniel Desmond Domenico was born in 1972 in Boulder.  After a brief stint at the University of Colorado, Domenico attended Georgetown University., graduating magna cum laude in 1995.[1]  After graduating, Domenico joined the Bob Dole for President campaign as an Assistant to the Polling Director.  After the campaign, Domenico briefly worked at the Welfare to Work Partnership as a Research Associate.

In 1997, Domenico joined the University of Virginia School of Law.  Domenico graduated Order of the Coif in 2000, and joined the Denver office of Hogan & Hartson.[2]  After three years at Hogan, Domenico left to clerk for the newly appointed Judge Timothy Tymkovich on the U.S. Court of Appeals for the Tenth Circuit.[3]

After his clerkship, Domenico joined the Senate campaign of Rep. John Thune who was challenging Senate Minority Leader Tom Daschle in South Dakota.[4]  After Thune’s successful election, Domenico joined the Department of the Interior as Special Assistant to the Solicitor.[5]

In 2006, Domenico was hired by Colorado Attorney General John Suthers to be Colorado’s Solicitor General, taking the position previously held by Tymkovich and Eid.[6]  Domenico held the position until 2015, when he left to join the firm of Kittredge LLC. as a principal.[7]

History of the Seat

Domenico has been nominated for a vacancy on the U.S. District Court for the District of Colorado.  This seat was opened by Judge Robert Blackburn’s move to senior status on April 12, 2016.  On April 28, 2016, Obama nominated Hogan Lovells partner Regina Rodriguez to fill the vacancy.[8]  Rodriguez had the support of Democratic Senator Michael Bennet and Republican Senator Cory Gardner.[9]  However, despite their support, the Senate Judiciary Committee took no action on Rodriguez’s nomination and it expired at the end of the 114th Congress.

While Domenico had previously applied for the Blackburn seat in 2015, in 2017, he reached out to Gardner’s office to express interest in the Tenth Circuit seat opened with Gorsuch’s elevation to the U.S. Supreme Court.[10]  Domenico also expressed his interest directly to officials at the Department of Justice.[11]  Despite his lobbying, the nomination for the Tenth Circuit went to Colorado Supreme Court Justice Alison Eid, and Domenico was instead nominated for the vacant judgeship on the U.S. District Court.

Legal Experience

Domenico began his legal career at the firm of Hogan & Hartson LLP. (now Hogan Lovells).  At the firm, Domenico handled primarily transactional materials, not appearing in court during his tenure.[12]  After leaving the firm and completing a clerkship for Tymkovich, Domenico worked as Counsel for Thune’s campaign, again handling compliance and transactional work and not appearing in court.[13]

Department of the Interior

From 2005 to 2006, Domenico served as Assistant to the Solicitor for the Department of the Interior.  In this role, Domenico advised the Secretary of the Interior on various legal matters and worked with the Department of Justice on litigation issues.[14]  Among the cases he handled at the Department of the Interior, Domenico helped develop a memorandum for the Bureau of Land Management to handle the ownership of dirt back-roads in states.[15]

Colorado Solicitor General

In 2006, despite not having appeared in court, Domenico was selected to be Colorado’s Solicitor General, replacing Eid, who was appointed to the Colorado Supreme Court.  At just thirty four years old, Domenico was the youngest Solicitor General in Colorado history.

As Solicitor General, Domenico was charged with representing the state of Colorado in litigation, including the defense of Colorado laws against constitutional challenges.  In this capacity, Domenico defended Colorado’s Taxpayer’s Bill of Rights, which required voters to approve any tax increases,[16] Colorado’s expansion of background checks on gun purchases,[17] and a Colorado statute preventing state funds from going to “pervasively sectarian” institutions.[18]

As Solicitor General, Domenico argued two cases before the U.S. Supreme Court.[19]  In Wood v. Milyard, the Supreme Court was called onto decide if the Court of Appeals had the authority to raise a statute of limitations defense sua sponte and if the State of Colorado, in not challenging a claim on statute of limitations grounds, had waived the issue.[20]  Appearing for Colorado, Domenico argued that choosing not to challenge the statute of limitations did not constitute a waiver.  However, in a 9-0 decision, the Supreme Court disagreed and held that Colorado had waived the statute of limitations defense.[21]  In the second case, Direct Marketing Association v. Brohl, Domenico lost 9-0 in his argument that a suit challenging Colorado’s implementation of an online sales tax is barred by the Anti-Injunction Act.[22]

Kittredge LLC.

From 2015, Domenico has been running a solo practice called Kittredge LLC. where he handles both litigation and public policy on behalf of individuals and businesses.  Notably, Domenico represented a team of plaintiffs in successfully enjoining a Colorado law criminalizing the showing of marked ballots to another party.[23]  Domenico also represented the Chamber of Commerce as amicus in a case challenging the exercise of Wisconsin jurisdiction over a corporation who appointed a registered agent in Wisconsin.[24]  The Wisconsin Supreme Court sided with the corporation in a 4-2 decision.[25]

Writings

While Domenico has not been as prolific as other Trump nominees, two editorials he authored may come up in his confirmation hearings.  First, in 2015, Domenico authored an op-ed criticizing the Obama Administration’s negotiation of the Joint Comprehensive Plan of Action with regard to Iran’s nuclear program.[26]  Specifically, Domenico argued that Iran’s development of nuclear power was unlikely to be “purely peaceful” and criticized the Obama Administration’s leadership on the issue.[27]

In a 2016 article, Domenico argued that Senate Republicans had the “right to delay the Supreme Court process” with regard to Judge Merrick Garland’s nomination.[28]  The article published alongside an op-ed by University of Denver law professor Alan Chen arguing the opposite perspective, argues that it is appropriate to delay a Supreme Court nomination to allow the American people to weigh in.[29]  The dueling articles drew many responses from local readers, with Greenwood Village resident Martin Berliner disputing Domenico’s perspective, arguing that American voters already weighed in by electing President Obama.[30]

Political Activity

Domenico has a long and active history in the Republican Party, going back to his role as an intern and an assistant in the Bob Dole campaign in 1996.[31]  While serving as Solicitor General in 2006, 2010, and 2014, Domenico advised the Attorney General campaigns of Republicans John Suthers and Cynthia Coffman.[32]  Additionally, Domenico also served as Counsel on John Thune’s successful senate campaign in 2004.[33]

Overall Assessment

While, Domenico’s record suggests a conservative judicial philosophy and political ideology,  his nomination will likely draw bipartisan support for several reasons.

First, Domenico has the support of Democratic Sen. Michael Bennet, who has returned a blue slip on his nomination.  While returning a blue slip does not necessarily indicate support, Bennet could have used his blue slip to block Domenico had he considered the nomination particularly egregious.

Second, Domenico’s record both at the Colorado Solicitor General’s Office and in private practice is not particularly ideological.  As Solicitor General, Domenico has defended conservative laws as well as liberal ones, including gun control legislation that he presumably opposes.

Opponents of Domenico will likely point to his op-eds opposing the Iran Deal and supporting the Supreme Court blockade of Justice Scalia’s seat as evidence of conservative activism.  Furthermore, they may argue that his appointment as Solicitor General was not particularly successful, pointing to his two 9-0 losses at the Supreme Court.

However, such criticism is unlikely to carry much weight.  After all, regardless of the outcomes of his arguments, one could argue that appearing at the Supreme Court twice is itself a significant accomplishment.  As such, given his support from home state senators, Domenico is likely to be confirmed smoothly.

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