Trevor McFadden – Nominee for the U.S. District Court for the District of Columbia

A longtime member of the Federalist Society, Trevor McFadden, in many ways, represents their ideal for a judicial candidate.  He is strongly conservative, young, and has excellent academic credentials.  Each of these points, conversely, is likely to draw Democratic opposition.

Background

Trevor Neil McFadden was born in Alexandria, VA in 1978.  After getting his B.A. from Wheaton College in Illinois, McFadden spent two years as an officer with the Fairfax County Police Department.  In 2006, McFadden graduated from the University of Virginia School of Law with the Order of the Coif, indicating superior academic performance.  McFadden then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.[1] 

After his clerkship, McFadden joined the Department of Justice, serving as Counsel for the Deputy Attorney General.  After the inauguration of the Obama Administration, McFadden joined the U.S. Attorney’s Office for the District of Columbia, serving as a prosecutor for four years.  During this time, he also served as a Part-time Deputy Sheriff for the Madison County Sheriff’s Office.

In 2013, McFadden left the U.S. Attorney’s Office to join the D.C. Office of Baker & McKenzie, LLP.  After the election of President Trump, McFadden rejoined the Department of Justice, this time as second in command at the Criminal Division.

McFadden has been a member of the Federalist Society since 2003.

History of the Seat

The seat McFadden has been nominated for opened on December 31, 2016, with Judge Richard Leon’s move to senior status.  On On March 2, 2017, McFadden was informed of the White House’s interest in naming him to the vacancy.  McFadden was formally nominated by President Trump on June 7.

Legal Experience

McFadden may be a couple of years shy of forty, but he has managed to accumulate an impressive breadth of legal work in that time.  While McFadden has taken on prominent policy roles in the Department of Justice, and has advised numerous corporations on compliance with federal law at Baker McKenzie, the bulk of his courtroom experience is from his stint as a federal prosecutor.

As an AUSA, McFadden worked primarily on prosecuting violent crimes.  For example, McFadden successfully prosecuted a man who assaulted and robbed a 78 year old dialysis patient, .[2]  McFadden also successfully defended the conviction of a defendant convicted of conspiring to distribute over a kilogram of PCP.[3]

Nevertheless, McFadden’s stint at the Criminal Division of the Department of Justice may draw more scrutiny.  In this role, McFadden serves as second in command to Acting Assistant Attorney General Kenneth Blanco.  McFadden may draw questions related to the recent charging memo released by Attorney General Jeff Sessions, calling on federal prosecutors to charge defendants with the strongest possible charges regardless of other factors.[4]  McFadden may also face questions as to his involvement with the Department’s efforts to crack down on sanctuary cities.

Political Activity

McFadden has been fairly active in the Republican party, having canvassed for GOP candidates since his high school days.  In his SJQ, McFadden notes that he has canvassed for President George W. Bush’s 2000 and 2004 campaigns, Mitt Romney’s 2012 campaign, and Rep. Tom Davis’ 1996 election campaign among others.

McFadden is also a supporter of President Trump, having donated $1000 to his election efforts, and being a vetter for his transition team.

Overall Assessment

As noted above, the young, conservative, and ambitious McFadden is likely to be a template for Trump nominees to the federal bench.  As such, Democrats are likely to look for reasons not to support his nomination.

Most of the objections that can be drawn to McFadden are based on process.  Unlike previous administrations, the Trump Administration declined to consult with D.C. Delegate Eleanor Holmes Norton in making federal court nominations.  McFadden has already drawn criticism from Norton for not being a D.C. resident.[5]  Furthermore, McFadden’s hearing, scheduled for the 28th of June, is moving forward without an ABA rating on his nomination.  Furthermore, McFadden’s 14-year long history with the Federalist Society is unlikely to be missed as well.  As such, expect a more difficult confirmation process for McFadden than his fellow D.C. nominees Friedrich and Kelly.


[1] Colloton himself is a former prosecutor and a shortlist candidate for a Supreme Court vacancy.

[2] See United States v. Brown, 2011-CF3-0160000 (D.C. Super. Ct.) (Judge Pan).

[3] United States v. Bell, 708 F.3d 223 (D.C. Cir. 2013).  

[4] See Matt Ford, Jeff Sessions Reinvogarates the Drug War, The Atlantic, May 12, 2017, https://www.theatlantic.com/politics/archive/2017/05/sessions-sentencing-memo/526029/.

[5] Press Release, Office of the MP Eleanor Holmes Norton, Norton Urges Senate Democrats to Question D.C. Federal Nominees on Residency, Familiarity with D.C., After White House Nominates Non-D.C. Residents for the U.S. District Court and U.S. Attorney for the District of Columbia (June 13, 2017).

Timothy Kelly – Nominee to the U.S. District Court for the District of Columbia

Typically, when choosing federal district court judges, presidents defer to home state senators.  While most senators make their selections from the pool of politically active litigators, federal prosecutors, state court judges, and federal magistrates, some turn to a different pool: their employees.  Over the past few decades, several staffers on the Senate Judiciary Committee have been nominated and confirmed for the federal bench.  Most notably, Justice Stephen Breyer was a staffer for then-Judiciary Chairman Edward Kennedy (D-MA) before he was tapped for the federal bench.  Similarly, Sen. Strom Thurmond (R-SC) tapped multiple veterans of his staff for judgeships including Judge Dennis Shedd of the U.S. Court of Appeals for the Fourth Circuit, and Judges Henry Herlong and Terry Wooten of the U.S. District Court for the District of South Carolina.  Timothy Kelly, a prominent staffer to current Judiciary Chairman Chuck Grassley (R-IA), follows that long tradition.    

Background

Timothy James Kelly was born in Glen Cove, NY in 1969.  After getting an A.B. from Duke University in 1991, Kelly joined the New York office of Cleary, Gottlieb, Steen & Hamilton as a legal assistant, working there for two years.  In 1993, Kelly left his position as Cleary to work as a staff assistant for the U.S. House Committee on House Administration.  During this position, Kelly also worked as a waiter and doorman at the popular Capitol Hill bar, Hawk ‘N’ Dove.  

In 1994, Kelly left both positions to join the George University Law Center, getting his J.D. in 1997.  Kelly then joined the D.C. office of Arnold & Porter, where he had previously worked as a law clerk.  He worked at Arnold & Porter until 2003, other than a one-year stint as a loaned associate to the Legal Aid Society for the District of Columbia and another year clerking for Judge Ronald Buckwalter on the U.S. District Court for the Eastern District of Pennsylvania.

In 2003, Kelly was hired by Roscoe C. Howard to join the U.S. Attorney’s Office for the District of Columbia, eventually moving up to the Major Crimes section of the Criminal Division.  In 2007, Kelly moved to the Department of Justice’s Criminal Division, fighting corruption in the Public Integrity section.

In 2013, Kelly was hired by Sen. Grassley to serve as Counsel and as the Republican Staff Director to the Senate Caucus on International Narcotics Control.  Kelly currently serves as Grassley’s Chief Counsel for National Security and Senior Crime Counsel.

History of the Seat

The seat Kelly has been nominated for opened on May 18, 2016, with Judge Rosemary Collyer’s move to senior status.  On September 6, 2016, President Obama nominated Abid Riaz Qureshi, a litigation partner at Latham & Watkins to fill the vacancy.[1]  Qureshi, who would have been the first Muslim to serve as a federal judge,[2] never received a hearing on his nomination.

Legal Experience

Kelly’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1997-2003, where he worked as an associate at Arnold & Porter.  The second is from 2003-2013, where Kelly worked as a federal prosecutor and DOJ attorney.  The final is from 2013-2017, where Kelly served in the legislative branch.  We will focus on the first two periods.

Kelly’s time at Arnold & Porter was focused on defending pharmaceutical companies against product liability lawsuits.  Kelly served on the legal team defending American Home Products Corp. (Wyeth) in tort lawsuits relating to their sale of diet drugs.  The team ultimately reached a national settlement over the claims during simultaneous state court trials in Mississippi and New Jersey.[3]

As an AUSA, Kelly worked on several trial and appellate level prosecutorial matters, including misdemeanors, violent crimes, and white collar offenses.  For example, Kelly successfully prosecuted a defendant for threatening his former girlfriend with a gun and assaulting her.[4]  Kelly also argued three criminal appeals at the D.C. Court of Appeals.

At the Public Integrity Section, Kelly focused on the investigation and prosecution of political corruption.  Kelly prosecuted Eugenio Pedraza, Special Agent-in-Charge for the Department of Homeland Security, who conspired with fellow agents to falsify investigative reports.[5]  Kelly also successfully prosecuted Donna Scott for steering Department of Energy contracts to her husband.[6]  Notably, Kelly successfully prosecuted the Lt. Governor of the American Samoa, and a senator in the American Samoa legislature for public corruption.[7]

In 2010, Kelly was part of the legal team prosecuting former CIA agent Jeffrey Sterling for his unauthorized disclosure of classified information to journalist James Risen.  Before Sterling’s trial, the prosecution missed a discovery deadline imposed by Judge Leonie Brinkema, submitting key impeachment evidence one day late.  Judge Brinkema sanctioned Kelly and the other government attorneys for the missed deadline by striking two government witnesses.  The Fourth Circuit, in a 2-1 decision, overturned this sanction as an abuse of discretion, noting that the government conduct was not made in bad faith.[8]  Nevertheless, the majority opinion noted that it cannot “condone the Government’s oversight.”[9] 

Political Activity

Kelly, a Republican, has a relatively short record of political activity.  In 2008, Kelly made multiple contributions totalling $1200 to Sen. John McCain (R-AZ) (who was then running for president).[10]  In 2012, Kelly contributed $1250 to Mitt Romney’s presidential candidacy.  Further, in 2014, Kelly traveled to Iowa to canvass and make phone calls for the successful candidacy of Sen. Joni Ernst (R-IA).

Overall Assessment

Kelly has an unusually well-rounded resume for a federal district court position.  Having worked in private practice, as a federal prosecutor, and in the legislative process, Kelly will approach the bench with a broad array of legal experience.  Furthermore, Kelly also has experience working with indigent clients, as he spent a year representing low income residents of Washington D.C. in cases involving public benefits, landlord-tenant, and family law.  

It must also be noted that Kelly’s pre-law school experience is relatively rare for a federal judicial nominee.  Of the nominees we have reviewed, Kelly is the first to have worked two jobs simultaneously, the first to have worked in the service industry, and the first to report having received federal financial aid.[11]  Given the privileged pedigrees of many nominees, Kelly’s background is refreshingly different.

Given these factors, and the lack of any controversial stances in his background (although like most other Trump nominees, Kelly is a longtime member of the Federalist Society), Kelly should face a relatively smooth path to confirmation.  If nothing else, Kelly’s time as a committee staffer should help grease the path.  After all, who knows Kelly better than those who work with him every day.


[1] Press Release, White House, President Obama Nominates Abid Riaz Quereshi to Serve on the United States District Court for the District of Columbia (Sept. 06, 2016) (on file at https://obamawhitehouse.archives.gov).  

[2] Jennifer Bendery, Barack Obama Just Nominated a Muslim to be a Federal Judge.  That’s A First, HuffPost, Sept. 6, 2016, http://www.huffingtonpost.com/entry/obama-muslim-federal-judge_us_57cf2cfbe4b03d2d45970d3a.

[3] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[4] See United States v. Williams, 2006 CF3 025277 (D.C. Super. Ct.) (Judge Dixon).

[5] United States v. Pedraza, No. 1:13-cr-00305 (S.D. Tex.) (Judge Hanen), aff’d, 636 Fed. Appx. 229 (5th Cir. 2016).

[6] United States v. Donna Scott, No. 1:10-cr-00025 (D. Md.) (Judge Messitte).

[7] United States v. Sunia and Lam Yuen, 643 F. Supp. 2d 51 (D.D.C. 2009).

[8] United States v. Sterling, 724 F.3d 482, 512-13 (4th Cir. 2013).

[9] Id. at 512.

[10] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=timothy+kelly (last visited June 27, 2017).  

[11] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.

Dabney Friedrich – Nominee to the U.S. District Court for the District of Columbia

Dabney Friedrich’s nomination to the U.S. District Court for the District of Columbia was announced by President Trump on May 8, 2017, but was not formally nominated to the Senate until June 7.  While the cause of the delay is unknown, it is unlikely to hinder the well-qualified Friedrich’s path to the bench.

Background

Dabney Langhorne Friedrich was born June 19, 1967.  After receiving her Bachelor of Arts from Trinity University and diploma in legal studies from Oxford University she received her law degree from Yale Law School where she served as the senior editor on the Yale Journal on Regulation.  

Friedrich clerked for Judge Thomas F. Hogan of the United States District Court for the District of Columbia.  She prosecuted criminal cases as an Assistant United States Attorney for the Southern District of California and Eastern District of Virginia, and then served as Chief Crime Counsel to chairman Orrin Hatch of the Senate Judiciary Committee, and Associate White House Counsel to the President during the George W. Bush Administration, where she assisted with the nomination and confirmation of federal judges.

In 2006, George W. Bush appointed Friedrich a Commissioner on the United States Sentencing Commission, the independent agency that issues sentencing guidelines and recommendations for federal judges and congressional review. She was re-nominated to the same position by Barack Obama, and has served on the Sentencing Commission through the recent expiration of her term at the end of 2016.  

History of the Seat

Friedrich was nominated to the vacancy left by Reggie Walton, who assumed senior status on December 31, 2015.  Judge Walton, a George W. Bush appointee was similarly a former prosecutor and was appointed to the National Prison Rape Elimination Commission, where he made recommendations to the President, Congress, and Attorney General regarding methods to curb incidents of rape among the incarcerated.  Judge Walton also served a seven-year term on the Foreign Intelligence Surveillance Court, being elevated to its presiding judge in 2013.  

On April 28, 2016, a few months after the seat opened up, President Obama nominated Judge Florence Pan, a judge on the Superior Court of the District of Columbia to fill the vacancy.  Judge Pan received a hearing before the Republican-controlled Senate Judiciary Committee on July 13, and was unanimously approved on September 15.  However, at that point, Pan ran into Senate Majority Leader Mitch McConnell’s blockade on judicial confirmations, and was ultimately returned unconfirmed.

Legal Background  

While Friedrich has extensive experience with criminal law both as a federal prosecutor, and as chief counsel to Sen. Hatch, it is her work on criminal sentencing that is likely to draw the most interest.  

During her time on the Sentencing Commission, Friedrich has worked to eliminate race-based disparities and establish sentencing uniformity.  In 2011, Friedrich joined the Sentencing Commission’s unanimous decision recommending that prisoners incarcerated for offenses involving crack cocaine be eligible for early release.  Friedrich also voted in favor of giving retroactive effect to the Fair Sentencing Act of 2010, which drastically reduced recommended sentences for crack cocaine crimes, to fix the longstanding disparity in sentencing crack vs. powder cocaine crimes.  This allowed offenders who were imprisoned for crack offenses before the new law took effect to benefit as well.  In media comments about the changes, Friedrich noted that political support for sentencing reform will be accomplished by pressure in Congress to control the costs of the U.S. prison system.[1]  Friedrich has also stressed the importance for national uniformity of sentencing, and the efforts of the Department of Justice to provide consistent supervisory guidance to prosecutors across the country.[2]

Over the past six years, under Friedrich’s tenure, the Commission has taken a number of actions to address sentencing disparities and reduce the federal prison population.  In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge.[3] Some of the most recent work of the Commission has included a unanimous vote to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score, following a May 2016 report by the Commission’s Tribal Issues Advisory Group.[4]  Friedrich’s work on these matters suggests a pragmatic approach to criminal sentencing, which tempers retributive justice with other sentencing goals.

Overall Assessment

With a long and distinguished career in public service, Friedrich has had the opportunity to work on numerous issues that directly affect District Court judges, and her background on the sentencing commission shows that she supports reasonable reforms to sentencing laws aimed at reducing the overpopulation of prisons for drug-related offenses.  

Friedrich’s re-nomination to the Commission by the Obama administration also shows her bi-partisan appeal.  If confirmed – and little suggests that she would be a controversial appointment – she will likely use the same consistent, evidence-based approach to the law that has characterized her work at the Sentencing Commission.  


[2] http://www.reuters.com/article/us-usa-courts-sentences-idUSBREA2C08J20140313

[4] Id.