Judge Susan Brnovich – Nominee to the U.S. District Court for the District of Arizona

Judge Susan Brnovich, a well-respected state judge in Arizona, has been nominated to the federal bench upon the recommendation of Arizona’s Republican senators.  It is a promotion she is likely to get.

Background

Brnovich was born Susan Marie Skibba in 1968 in Madison, WI.  Brnovich graduated from the University of Wisconsin in 1990 and then jointly attended the University of Wisconsin Law School and Graduate School, getting a J.D. and an M.S. in Business in 1994.[1]

After graduation, Brnovich spent a year working as a bartender at an Applebee’s in Tempe, Arizona. She then joined the Maricopa County Attorney’s Office as a Deputy County Attorney.[2]  In 2003, she joined the Maricopa County Superior Court as a Commissioner, handling certain uncontested cases and other assigned matters.[3]  In 2009, Brnovich was appointed to the Court as a Superior Court Judge by Democratic Governor Janet Napolitano.[4]  She continues to serve on that Court.

In 2012, Brnovich applied for appointment to the Arizona Supreme Court, for the vacancy opened by the elevation of Justice Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit.[5]  Brnovich was not selected as one of the three finalists, and the seat went to Arizona Court of Appeals Judge Ann Scott Timmer.

History of the Seat

Brnovich has been nominated for a seat on the U.S. District Court for the District of Arizona.  This seat opened on July 5, 2016, when Judge Neil Vincent Wake moved to senior status.  As the seat opened with only six months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In early 2017, Brnovich applied for the judgeship with a selection committee put together by Senators John McCain and Jeff Flake.[6]  She then interviewed with the committee in March and was selected unanimously as a finalist for the District Court, alongside five other candidates.[7]

Brnovich interviewed with the White House Counsel’s Office in April 2017.[8]  President Trump nominated her on January 24, 2018.[9]

Legal Career

Brnovich has spent her entire pre-bench legal career as a Deputy County Attorney for Maricopa County.  As a state prosecutor, Brnovich gained experience working with misdemeanors, felonies, and domestic violence cases.[10]  During her seven years as a prosecutor, Brnovich tried 49 jury trials and one bench trial.[11]

Notably, Brnovich prosecuted and secured the death penalty against a father who burned his two year old daughter to death.[12]  She also prosecuted Scottsdale abortion doctor Dr. John Biskind for the death of one of his patients after a ruptured uterus sustained during an abortion.[13]  The doctor was found guilty of manslaughter and sentenced to five years in prison.[14]

Jurisprudence and Reversals

Brnovich has served as a Superior Court judge since her appointment in 2009.  In this role, she serves as a primary trial judge, supervising criminal and civil cases.  Over the last nine years, Brnovich has presided over approximately 100 trials, including approximately 70 jury trials.[15]  Among her more notable decisions, Brnovich sentenced a man convicted of beating an 81-year-old monk to death to 21 years in prison,[16] tossed a Republican state legislative candidate off the ballot due to the failure to submit enough valid signatures,[17] and reversed the indictment of a Phoenix man charged with live streaming the rape of a passed-out woman, finding that the prosecution had erred by informing the grand jury that the defendant had exercised his right to remain silent.[18]

Over the course of her nine year tenure on the state bench, Brnovich has been reversed by higher courts in five cases.[19]  Of those five reversals, in two cases, Brnovich’s rulings on issues of family support in divorce cases were reversed by the Arizona Court of Appeals.[20]  Another two cases involved reversals of convictions based on trial errors made by Brnovich.[21]  The final case reversed a sentence granted by Brnovich based on a subsequent superseding precedent that changed the law.[22]

Political Activity

Brnovich has a fairly limited political history, having donated to the Arizona Republican Party once in 2002.[23]

In 2014, while Brnovich was a sitting state judge, her husband Mark ran for and won the election to be Arizona’s Attorney General.  During the election, Brnovich refrained from campaigning on behalf of her husband but did attend some election events and appeared in a campaign video.[24]

Overall Assessment

Looking at Brnovich’s overall record, it is unlikely that she will face much opposition in the confirmation process.  With almost a decade on the state court bench and a dozen years of legal experience before, she is unquestionably qualified for a federal appointment.  Furthermore, her record on the state bench is fairly uncontroversial and she has shown a willingness to rule against Republican interests.  It is also unlikely that her prosecution of Dr. Biskind will be used against her, as her prosecution was based, not on the abortion itself, but on the lack of medical treatment offered to the patient.  Furthermore, as a line prosecutor, Brnovich was likely not the last word on charging decisions in high profile cases.

Given these factors, Brnovich should be confirmed fairly comfortably, adding another conservative voice to the Arizona federal bench.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Gary Grado, Arizona Supreme Court Vacancy Attracts 14 Applicants, The Arizona Capitol Times, July 19, 2012.

[6] Brnovich, supra n. 1 at 26.

[7] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, Apr. 24, 2017.

[8] See Brnovich, supra n. 1 at 26.

[9] Press Release, White House, President Donald J. Trump Announces Tenth Wave of Judicial Candidates (Feb. 12, 2018) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-tenth-wave-judicial-candidates).  

[10] See Brnovich, supra n. 1 at 18-19.

[11] Id. at 19.

[12] State v. Grell, CR1999-095294 (Ariz. Super. Ct.).

[13] State v. Biskind, CR1999-000198 (Ariz. Super. Ct.).

[14] Scottsdale Abortion Doctor Sentenced to Five Years in Prison, Arizona Daily Sun, May 4, 2001, http://azdailysun.com/scottsdale-abortion-doctor-sentenced-to-five-years-in-prison/article_d08ec172-9b1c-55da-9a1f-b94c9f9ada55.html.  

[15] See Brnovich, supra n. 1 at 8.

[16] Mike Sakal, 21 Years for Man Convicted of Mesa Assault, Attempted Murder of Former Monk, East Valley Tribune, Feb. 27, 2012.

[17] Ben Giles, Judge Tosses Begody-Begay From Election Ballot, Arizona Capital Times, June 24, 2016.

[18] Gary Grado, Judge: Rape Suspect’s Rights Violated, East Valley Tribune, Jan. 30, 2010.

[19] Brnovich, supra n. 1 at 15-16.

[20] See Egizii v. Egizii, No. 1 CA-CV 17-0199 (Ariz. Ct. App. Apr. 12, 2018) (reversing and remanding for specific finding on how parties are to split the proceeds from the sale of the home); In re Marriage of Gersten, 219 P.3d 309 (Ariz. Ct. App. 2009) (reversing rulings on child support).

[21] See State v. Stuart, No. 1 CA-CR 12-0340 (Ariz. Ct. App. Aug. 13, 2013) (reversing conviction due to improper expert testimony); State v. Bunting, 250 P.3d 1201 (Ariz. Ct. App. 2011) (reversing conviction based on improper colloquy as part of defendant’s waiver of jury rights).

[22] State v. Thomas, No. 1 CA-CR 11-0250 (Ariz. Ct. App. July 12, 2012).

[24] See Brnovich, supra n. 1 at 17.

Dominic Lanza – Nominee for the U.S. District Court for the District of Arizona

Generally, when a well-respected U.S. Attorney makes calls on behalf of your nomination, it helps you stand apart from the crowd.  However, such calls may have cost Dominic Lanza a nod for the Ninth Circuit.  As such, a nomination to the U.S. District Court for the District of Arizona serves as Lanza’s consolation prize.

Background

Dominic William Lanza was born in Seattle in 1976.  Lanza attended Dartmouth University, graduating summa cum laude in 1998.[1]  While in college, Lanza was a student athlete, playing football.  After graduation, Lanza spent a year in New York City working as a Sales and Trading Associate at the investment firm, D.E. Shaw & Associates.[2]

In 1999, Lanza matriculated at Harvard Law School, graduating cum laude in 2002.[3]  He then clerked for Judge Pamela Rymer on the U.S. Court of Appeals for the Ninth Circuit.  Following his clerkship, Lanza joined the Los Angeles Office of Gibson Dunn as an associate.[4]

In 2008, Lanza joined the U.S. Attorney’s Office for the District of Arizona as an Assistant U.S. Attorney.[5]  In 2012, Lanza was promoted to be Chief of the Financial Crimes and Public Integrity Section, and in 2015, became the Chief Assistant U.S. Attorney.[6]  Lanza serves in that capacity today.

History of the Seat

Lanza has been nominated to the U.S. District Court for the District of Arizona, to a seat vacated on September 1, 2016, by Judge Susan Ritchie Bolton’s move to senior status.  However, this was not the seat that Lanza was originally recommended for.  In April 2017, Lanza was recommended by Arizona senators John McCain and Jeff Flake, both Republicans, to fill an Arizona vacancy on the U.S. Court of Appeals for the Ninth Circuit, a seat vacated on October 11, 2016, by Judge Barry Silverman.[7]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[8]

Furthermore, Lanza’s mentor, former U.S. Attorney Paul Charlton, proved to be a liability as well.[9]  The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[10]  Allegedly, one source close to the vetting process noted: “That Lanza dude is toast.”[11]  As such, no action was taken on Lanza’s nomination for several months after his name was submitted to the White House.  Finally, the Administration nominated Lanza to the District Court on January 24, 2018.

Political Activity & Memberships

Lanza has not been particularly active in the political sphere.  He has two donations on record: $250 respectively to former Sen. Jon Kyl (R-AZ) and Sen. Tom Cotton (R-AR).[12]

Lanza has been a member of the Arizona Republican Lawyers’ Association from 2011 to the present.[13]  He has also been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 2015.[14]

Legal Experience

Lanza has spent the first six years of his legal career in private practice, working at Gibson Dunn in their constitutional and appellate law practice.  He then spent the next ten years of his career as a federal prosecutor in Arizona.

Private Practice

From 2002 to 2008, Lanza worked as an associate in the Los Angeles office of Gibson Dunn.[15]  In the constitutional and appellate law practice at the firm, Lanza handled a number of product liability lawsuits, including seeking constitutional defenses to punitive damage awards.[16]  While at the firm, Lanza also served as associate trial counsel in six cases.[17]

At the firm, Lanza participated in a number of appeals seeking to reduce or eliminate large awards of punitive damages awarded against corporations.  In one case, Lanza was part of the legal team that successfully reversed a $28 billion punitive damage award against the tobacco company Phillip Morris.[18]  In another case, Lanza and his fellow attorneys successfully reversed a $10 million punitive damage award against Ford automobiles for concealing vehicle histories.[19]

U.S. Attorney’s Office

From 2008, Lanza has served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Arizona, and has served as the Chief Assistant U.S. Attorney since 2015.  In this role, Lanza handles many of the administrative matters in the U.S. Attorney’s Office and serves as an advisor to the U.S. Attorney.[20]  As an AUSA, Lanza has tried seven cases as lead or co-counsel.[21]

Among the cases Lanza has worked on, the most famous is likely that of Jared Lee Loughner, the Tucson mass shooter who murdered six people, including Chief U.S. District Judge John Roll, and injured 13 others, including then Congresswoman Gabrielle Giffords, in 2011.[22]  In the case, Lanza managed to secure an emergency order from the court keeping the government’s investigative materials secret in response to media inquiries.[23]

In addition to his trial work, Lanza has also argued 11 cases before the Ninth Circuit and has handled several appeals including government appeals and defending convictions.[24]  In one unusual case, Lanza was charged with defending the shackling of defendants in Arizona federal court, notwithstanding a Ninth Circuit decision indicating that such shackling was unconstitutional.[25]  While the Ninth Circuit had held in United States v. Sanchez-Gomez that defendants cannot be placed in shackles without individualized determinations from the district court,[26] the court placed the mandate on hold pending a writ of certiorari.[27]  With the mandate placed on hold, many Arizona federal judges (and the government) argued that the Ninth Circuit decision was not binding.[28]  However, the Ninth Circuit granted a mandamus petition requiring the unshackling of defendants, noting that the lack of issuance of the mandate does not prevent the Ninth Circuit decision from being binding.[29]

Writings

Lanza has not been a prolific writer, having only three major articles to his name: two that he authored as a student, and one that he wrote as a lawyer.  Nevertheless, all three pieces yield insights into Lanza’s legal philosophy and his future leanings as a judge.

Global Warming

In 2018, Dominic Lanza co-authored an article with Gibson Dunn partner Theodore Boutrous criticizing the use “public nuisance” suits seeking to combat global warming.[30]  The article, written around the time that Boutrous was defending automakers sued by California for contributing to global warming,[31] argues that tort litigation seeking to combat global warming “represent a naked and wholly improper attempt to override [legislative] policy judgments.”[32]  The article also argues that federal common law does not allow for nuisance suits based on global warming.[33]  It instead suggests that the role of federal courts should be to review regulatory efforts to combat global warming under the framework of Massachusetts v. EPA, not to allow tort claims based on the effects of climate change.[34]

Race-Based Redistricting

As a law student, Lanza authored an article discussing recent Supreme Court jurisprudence on race-based redistricting.[35]  The article discusses the Supreme Court decisions in Shaw v. Reno and Hunt v. Cromartie, where the Supreme Court upheld North Carolina’s majority-minority 12th District.[36]  Lanza argues that Justice Breyer’s majority opinion in Cromartie is inconsistent with the prior decisions in Shaw I and Shaw II.[37]  Specifically, Lanza argues that Cromartie fails to place meaningful limitations on the legislature’s use of race in redistricting, noting that the Court has “radically reduced the scrutiny applied to legislative districting decisions.”[38]  Instead, Lanza notes:

“If a majority of the Court wishes to overturn Shaw II, it should do so explicitly.”[39]

Race-Based Challenges to Athletic Eligibility Requirements

In this article, Lanza analyzes recent Third Circuit decision in Cureton v. NCAA, holding that minimum standardized test score requirements for student athletes did not violate Title VI of the Civil Rights Act of 1964.[40]  Cureton involved a challenge to the NCAA requirements, which the plaintiffs argue disproportionately affected racial minorities.[41]  Lanza notes that, in dismissing the plaintiffs’ challenge, the Third Circuit did not address the merits of the claim, instead ruling that Title VI did not apply to the NCAA.[42]  Nevertheless, Lanza argues that the NCAA requirements should pass muster even if one accepts the disparate impact theory the plaintiffs have advanced, noting:

“Thus, because Proposition 16’s test score requirement is essential in advancing the laudable goal of safeguarding academic integrity, and because no equivalent, less discriminatory alternatives exist, the preferences of standardized-test critics must necessarily be subordinated.”[43]

Overall Assessment

Lanza’s background as a federal prosecutor, his membership in the Federalist Society and Republican groups, and his legal writings all suggest a conservative political orientation.  However, they do not necessarily reflect a discernable judicial philosophy.  In his articles on global warming and on Title VI, Lanza suggests that judges should steer well clear of making decisions with policy ramifications, an implicit endorsement of judicial restraint.  However, in his article on race-based redistricting, Lanza criticizes the Supreme Court for giving legislatures “hyper-deference,” suggesting an endorsement of an active role for judges, even in “political” spheres such as redistricting.  As such, Lanza’s judicial philosophy is difficult to discern.

Regardless, Lanza’s breadth of legal experience in both criminal and civil law is clear.  Furthermore, while the Trump Administration may have viewed it as a negative, Lanza’s association with Paul Charlton, who is well-respected in Arizona legal circles, will likely be a net positive in the confirmation process.

Overall, there is nothing politically disqualifying in Lanza’s background.  He will likely be confirmed in due course and will add a conservative voice to the Arizona trial bench.


[1] Sen. Comm. on the Judiciary, 115th Cong., Dominic W. Lanza: 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] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[8] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[9] See Jeremy Duda, Being Judged by the Company You Keep, Yellow Sheet Report, May 12, 2017.

[10] See id.

[11] See id.

[13] See Lanza, supra n. 1 at 5.

[14] See id.

[15] See id. at 2.

[16] See id. at 12.

[17] See id. at 13-14.

[18] See Bullock v. Phillip Morris USA, Inc., 159 Cal. App. 4th 655 (2008).

[19] But see Johnson et al. v. Ford Motor Company, 113 P.3d 82 (Cal. 2005) (reversing and remanding California Court of Appeals ruling eliminating punitive damages).

[20] See Lanza, supra n. 1 at 12-13.

[21] See id. at 14.

[22] See United States v. Loughner, CR 11-187-TUC-LAB (D. Ariz.).

[23] See id. 

[24] Compare United States v. Rodman, 776 F.3d 638 (9th Cir. 2015) (affirming defendant’s conviction) to United States v. Aguilar-Reyes, 653 F.3d 1053 (9th Cir. 2011) (reversing sentence on government appeal).

[25] In re Zermeno Gomez, 868 F.3d 1048 (9th Cir. 2017).

[26] See 859 F.3d 649, 661 (9th Cir. 2017) (en banc).

[27] See Zermeno Gomez, supra n. 25 at 1050.

[28] See id. at 1051.

[29] See id. at 1053.

[30] Theodore J. Boutrous Jr. and Dominic Lanza, Global Warming Tort Litigation: The Real “Public Nuisance”, 35 Ecology L. Currents 80 (2008).

[31] See Abigail Goldman, He’s a Hired Gun of the Highest Caliber, Los Angeles Times, June 24, 2007, http://articles.latimes.com/2007/jun/24/business/fi-sunprofile24.  

[32] See Boutrous, supra n. 29 at 86.

[33] See id. at 87.

[34] See id. at 88.

[35] Dominic Lanza, Leading Cases, Voting Rights – Race-Based Redistricting, 115 Harv. L. Rev. 386 (2001).

[36] See id. (citing 526 U.S. 541 (1999)).

[37] Id. at 393.

[38] See id. at 396.

[39] Id.

[40] Dominic W. Lanza, Recent Cases, Title VI – Third Circuit Upholds Viability of Standardized Test Scores as a Component of Freshman Athletic Eligibility Requirements, 114 Harv. L. Rev. 947 (2001).

[41] See Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999), rev’ing 37 F. Supp. 2d 687 (E.D. Pa. 1999).

[42] See Lanza, supra n. 32 at 951.

[43] See id. at 953.