Regina Rodriguez – Nominee to the U.S. District Court for the District of Colorado

In 2016, Regina Rodriguez was nominated for the federal bench by President Obama with the bipartisan support of Colorado’s U.S. Senators.  However, Rodriguez never received a hearing before the Republican-controlled Senate Judiciary Committee.  When recommended for another federal judgeship in 2021, Rodriguez was attacked, this time from the left, for a perceived lack of experience in civil rights.  These attacks belie Rodriguez’s relatively mainstream credentials.  Her nomination by the Biden Administration is likely a prelude to a comfortable confirmation.

Background

A native Coloradoan, Regina Marie Rodriguez was born in 1963 in Gunnison.  Rodriguez attended the University of Iowa, graduating with honors in 1984.[1]  Rodriguez then received a J.D. from the University of Colorado School of Law in 1988.

After graduating, Rodriguez joined the Denver office of Cooper & Kelly P.C. as an associate.[2]  After six years, Rodriguez left to become a federal prosecutor with the U.S. Attorney’s Office for the District of Colorado, rising to become Chief of the Civil Division in 1999.[3]  

In 2002, Rodriguez joined the Denver Office of Faegre Baker Daniels LLP, where she worked until 2016, when she moved to Hogan Lovells LLP.[4]  In 2019, Rodriguez shifted to the Denver office of WilmerHale, where she currently serves.

In 2016, Rodriguez was nominated by President Obama to the U.S. District Court for the District of Colorado, to replace Judge Robert Blackburn.[5]  Rodriguez had the support of Democratic Senator Michael Bennet and Republican Senator Cory Gardner.[6]  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.  Rodriguez was not renominated by the Trump Administration, who instead chose Colorado Solicitor General Daniel Domenico, who was confirmed in 2016.

History of the Seat

Rodriguez has been nominated for a vacancy on the U.S. District Court for the District of Colorado.  This seat was opened by Judge Marcia Kreiger’s move to senior status on March 3, 2019.  Although this vacancy opened with nearly two years left in President Trump’s term, he did not put forward a nominee to fill the seat, possibly because he was unable to reach an agreement with Sen. Michael Bennet.  

Legal Experience

Rodriguez began her legal career at the firm of Cooper & Kelly P.C.  At the firm, Rodriguez handled primarily professional liability defense and general insurance defense work.[7]  The rest of her career can be divided into the seven years she spent as a federal prosecutor, and the two decades she spent in private practice.   

Federal Prosecutor

From 1995 to 2002, Rodriguez served in the Civil Division of the U.S. Attorney’s Office for Colorado.  In this role, Rodriguez defended the federal government against lawsuits.  For example, Rodriguez defended the federal government against a lawsuit brought by the parents of a boy injured on a sledding trip with his Boy Scout troop.[8]

Private Practice

Since 2002, Rodriguez has worked in private practice, working primarily in complex civil litigation.  Notably, Rodriguez was part of the legal team representing Toyota in defending against a lawsuit alleging defects in their vehicles that caused economic loss to the plaintiffs.[9]

Notably, Rodriguez joined with the Mexican American Legal Defense Fund (MALDEF) in suing to improve Latino representation in the 2011 Congressional maps.[10]  She argued in the suit that the status quo failed to ensure proper representation for the community.[11]  The suit ended with the court adopting the redistricting proposal sought by Rodriguez’s clients.

Writings 

Throughout her career, Rodriguez has written and spoken on the issue of diversity in the legal field.  For example, in 2015, Rodriguez co-authored an article discussing legal diversity for Colorado Law Week.[12]  She has also discussed the tendency of law firm partners to hire others who come from similar backgrounds, a phenomenon that can lead to barriers to legal diversity.[13]

Political Activity

While Rodriguez has not played an official role with a political party,[14] she has made a number of political donations throughout her career, all to Democrats.[15]  Recipients of her donations include Sen. John Hickenlooper and President Joe Biden.[16]

Overall Assessment

Unlike most of Biden’s judicial nominees, Regina Rodriguez’s nomination has drawn primary opposition among some liberal groups.[17]  The criticism generally arises from a perception that Rodriguez is “corporate” and a “former prosecutor.”  

However, it’s unlikely that such criticism will carry the day in the Senate.  It is hard to question Rodriguez’s qualifications for a federal judgeship, with extensive litigation experience and respect from both sides of the aisle.  To the extent that criticism of Rodriguez reflects criticism of a paucity of judges from public interest backgrounds, senators will likely conclude that such interests can be addressed without jettisoning the nomination of a qualified candidate.


[1]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[2]Jackson’s clerk class included 7th Circuit Judge Michael Scudder, Texas Supreme Court Justice Brett Busby, and appellate superstar Kannon Shanmugam. 

[3] See Jackson, supra n. 1 at 2.

[4] Id.

[5] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Court (April 28, 2016) (on file at https://obamawhitehouse.archives.gov). 

[6] Press Release, Office of Senator Michael Bennet, Bennet, Gardner Urge Judiciary Committee to Consider Regina Rodriguez Nomination (July 12, 2016) (on file at https://www.bennet.senate.gov/?p=release&id=3735). 

[7] See Rodriguez, supra n. 1 at 21.

[8] Hancey v. United States, 967 F. Supp. 443 (D. Colo. 1997).

[9]See In re Toyota Motor Corp., 790 F. Supp. 2d 1152 (C.D. Cal. 2011).

[10] See Ivan Moreno,Colo. Court Battle Over Congressional Maps Begins, A.P., Oct. 9, 2011.

[11] See Ivan Moreno, Colorado Congressional Redistricting Suit Wraps Up, A.P., Oct. 31, 2011.

[12] Regina Rodriguez, Scott Martinez, and Shelby Myers, Denver: An Opportunity for True Inclusiveness in the Legal Profession, Law Week Colorado, Mar. 23, 2015.

[13] See Renwei Chung, 6 Reasons for Gender Differences At the Top of the Legal Profession, Above the Law, Sept. 25, 2015.

[14] See Rodriguez, supra n. 1 at 19.

[16] Id.

[17] See, e.g., Alexander Sammon, Why Is Michael Bennet Defying Joe Biden’s Call For Non-Corporate Judges, American Prospect, Feb. 15, 2021.

Dan Domenico – Nominee for the U.S. District Court for the District of Colorado

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.


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

[2] See id. at 2.

[3] See id. 

[4] White House Counsel Don McGahn, who handles the selection of judicial nominees, is also a Jones Day alumnus.

[5] See id. at 2.

[6] Id.

[7] Id.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Court (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Press Release, Office of Senator Michael Bennet, Bennet, Gardner Urge Judiciary Committee to Consider Regina Rodriguez Nomination (July 12, 2016) (on file at https://www.bennet.senate.gov/?p=release&id=3735).  

[10] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 31.

[11] Id.

[12] Id. at 16-17.

[13] See id. at 17.

[14] Id. at 15-16.

[15] Joe Baird, Utah Case Now Model for New BLM Road Policy, The Salt Lake Tribune, Mar. 22, 2006.

[16] Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo. 2012), vacated 744 F.3d 1156 (10th Cir. 2014), petition vacated 135 S. Ct. 2927 (2015).

[17] Colorado Outfitters Ass’n v. Hickenlooper, No. 13-cv-1300 (D. Colo. 2015).

[18] Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

[19] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 18.

[20] See Wood v. Milyard, 132 S. Ct. 1826 (2012).

[21] See id.

[22] See Direct Marketing Assoc. v. Brohl, 134 S. Ct. 2901 (2015).

[23] See Hill v. Williams, 2016 WL 8667798 (D. Colo. Nov. 4, 2016).

[24] Ambac Assurance Corp. v. Countrywide Home Loans Inc., 898 N.W.2d 70 (Wisc. 2017).

[25] Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).

[26] Dan Domenico, Iran Deal’s Defenders Reveal Weak View of U.S. Leadership, Colo. Statesman, Sept. 25, 2015.

[27] See id.

[28] Dan Domenico, Senate Has the Right to Delay Supreme Court Nomination Process, Denv. Post, Feb, 19, 2016.

[29] See id.

[30] Martin Berliner, Debating GOP’s Plan to Block Any Nominee from Obama, Denv. Post, Feb. 28, 2016.

[31] Sen. Comm. on the Judiciary, 115th Cong., Daniel Domenico: Questionnaire for Judicial Nominees 13.

[32] See id.

[33] Id. at 23-24.