Carl Nichols – Nominee for the U.S. District Court for the District of Columbia

Last year, the White House’s nomination of Matthew Petersen self-destructed during his Judiciary Committee hearing after an embarrassing exchange with Sen. John Kennedy (R-La.) revealed the nominee’s lack of courtroom experience.  In attempting to mitigate that issue, the White House’s next nominee to the seat has extensive litigation experience: Carl Nichols.

Background

Carl John Nichols was born in Rhinebeck, NY on June 25, 1970.  Nichols graduated cum laude from Dartmouth University in 1992 and then spent a year as a paralegal at McKenna & Kuneo in Washington D.C.[1]  He then attended the University of Chicago Law School, serving as Editor of the University of Chicago Law Review and graduating with high honors.[2]

After graduating, Nichols clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.  In the latter position, Nichols clerked alongside Solicitor General Noel Francisco, and federal appellate judges Sri Srinivasan, Stephanos Bibas, Raymond Kethledge, and John Owens.

After finishing up his clerkships, Nichols joined the D.C. office of Boies Schiller Flexner LLP as an associate.[3]  Four years later, he became a partner at the firm.  In 2005, Nichols left the firm to join the Department of Justice as Deputy Assistant Attorney General for the Civil Division, where he worked with future D.C. Circuit Judge Greg Katsas.[4]  Nichols became Principal Deputy Associate Attorney General in 2008.

In 2010, Nichols joined Wilmer Cutler Pickering Hale & Dorr LLP as a Partner.  He continues to serve in that role today.

History of the Seat

The seat Nichols has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[5]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On September 11, 2017, President Trump nominated Matthew Petersen, a Commissioner with the Federal Election Commission, to fill the vacancy.  Petersen was prominent as a Republican election lawyer, was close to White House Counsel Don McGahn, and initially looked slated for a swift confirmation.  However, during his confirmation hearing, Petersen faced a sharp series of questions from Sen. John Kennedy, revealing that the nominee had never tried a case, taken fewer than five depositions over his career, and could not identify basic legal concepts including the definition of a motion in limine.[6]  With the video of Petersen’s inability to answer going viral, Petersen quietly withdrew his nomination on December 18, 2017.[7]

On December 21, 2017, three days after Petersen withdrew, Nichols was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[8]  Nichols was interviewed by the White House on January 5, 2018 and was preliminarily selected as a nominee on February 12, 2018.[9]  Nichols was officially nominated on June 18, 2018.

Legal Experience

Nichols’s legal career can be broken down into three distinct periods for analysis: the first is from 1998-2005, where he worked as an associate and partner at Boies Schiller;  the second is from 2005-2009, where Nichols worked as a DOJ attorney; the final is from 2010-present, where Nichols has worked at WilmerHale.

From 1998 to 2005, Nichols worked in the D.C. office of Boies Schiller focusing on civil litigation.  For example, Nichols represented Philip Morris in defending against a Sherman Act suit brought by rival tobacco companies seeking damages based on Philip Morris’ retail marketing programs.[10]  Nichols successfully defended summary judgment in favor of Philip Morris at the district court and court of appeals levels.[11]

From 2005 to 2008, Nichols served as Deputy Assistant Attorney General for the Civil Division, supervising the Federal Programs Branch, which handled civil cases across the nation.  During his tenure, Nichols was responsible for handling lawsuits related to the warrantless wiretapping of Americans.  For example, Nichols argued that a lawsuit brought by the Electronic Frontier Foundation against AT&T should be dismissed for infringing on national security.[12]  In another case, Nichols sued Maine officials and Verizon to prevent the release of information related to Verizon’s participation in warrantless wiretapping.[13]

From 2008 to 2009, Nichols served as the Principal Deputy Associate Attorney General for the Civil Division, working directly under Assistant Attorney General Kevin McDonald.  In this role, Nichols helped supervise and run the entire Civil Division.[14]  During his tenure, the Democratic-controlled House of Representatives sued the White House to seek access to subpoenaed information regarding the dismissal of U.S. Attorneys.  Nichols defended against the suit in D.C. federal courts.  Ultimately, Judge John Bates ruled in favor of the House of Representatives, but the decision was stayed by the D.C. Circuit until the end of the Bush Presidency.

Since 2010, Nichols has been a partner at WilmerHale, working in the Government and Regulatory Litigation Group.  Notably, Nichols represented Florida Attorney General Bill McCollum in defending against a suit filed by Governor Rick Scott to invalidate Florida’s campaign finance laws.[15]  Nichols also represented the Association of California Egg Farmers in defending a California law banning the sale of eggs that do not conform to certain safety regulations.[16]

Political Activity

Nichols has an extensive record of political contributions to Republicans.  Since joining WilmerHale in 2010, Nichols has given almost $9000.[17]  Among the recipients included Sens. Rob Portman, Mike Lee, former Sen. Scott Brown, and Congressmen Darrell Issa and Liz Cheney.[18]  Additionally, Nichols served as a transition team advisor for the Romney-Ryan campaign in 2012.[19]

Overall Assessment

After Petersen, the White House is looking to ensure that no questions can be raised as to the next nominee’s qualifications.  By that standard, they have succeeded with Nichols.  Nichols has extensive litigation experience and has been described by former Clinton White House Official Jamie Gorelick as a “spectacular” nominee.[20]

This is not to say that Nichols will not face any controversy in his confirmation.  Nichols may face questions regarding his work at the Department of Justice, particularly focused on his involvement in defending warrantless wiretapping and in fighting the House suit against the White House.  While Nichols will argue that any controversial positions he took were solely those of the Department, senators will nonetheless probe his views of warrantless surveillance and the role of Congress in enforcing subpoenas.

As a bottom line, given Nichols’ extensive experience, he is likely to fare better than Petersen and will likely add a conservative voice to the D.C. bench.


[1] Sen. Comm. on the Judiciary, 115th Cong. Carl J. Nichols: Questionnaire for Judicial Nominees 1.

[2] See id. at 3.

[3] Id. at 2.

[4] Id.

[5] Ann E. Marimow, Chief Judge of the District’s Federal Court Retires as Lawsuit Accuses Him of Sexual Assault, Wash. Post, Mar. 16, 2016, https://www.washingtonpost.com/local/public-safety/chief-judge-of-the-districts-federal-court-retires/2016/03/16/2ff09bf0-ebc1-11e5-b0fd-073d5930a7b7_story.html?utm_term=.38886e556276.  

[6] See Brian Naylor, Video Shows Trump Judicial Nominee Unable to Answer Basic Questions of Law, Nat’l Pub. Radio, Dec. 15, 2017, https://www.npr.org/2017/12/15/571060681/video-shows-trump-judicial-nominee-unable-to-answer-basic-questions-of-law.  

[7] Lydia Wheeler, Trump Judicial Nominee Withdraws After Humiliating Hearing, The Hill, Dec. 18, 2018, http://thehill.com/homenews/administration/365455-trump-judicial-nominee-withdraws-after-humiliating-hearing.

[8] See Nichols, supra n. 1 at 32.

[9] See id.

[10] See RJ Reynolds Tobacco Co. v. Philip Morris USA, Inc., 67 Fed. Appx. 810 (4th Cir. 2003).

[11] 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).

[12] See Judge Rules EFF Can Keep Sealed Documents in Domestic Spying Lawsuit, San Jose Mercury News, May 17, 2006.

[13] Elbert Aul, U.S. Sues State, Verizon to Block NSA Revelations; Maine is the Third State Sued for Probing the Firm’s Alleged Role in Surveillance, Portland Press Herald, Aug. 22, 2006.

[14] See Nichols, supra n. 1 at 15.

[15] Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010).

[16] State of Missouri et al. v. Harris et al., 58 F. Supp. 3d 1059 (E.D. Cal. 2014).

[18] See id.

[19] See Nichols, supra n. 1 at 14.

[20] Zoe Tillman, Trump is Expected to Nominate a Seasoned Former Justice Official for a Judgeship After His First Pick Bombed, Buzzfeed News, Mar. 12, 2018, https://www.buzzfeednews.com/article/zoetillman/trump-is-expected-to-nominate-a-former-justice-department (quoting Jamie Gorelick).

Matthew Petersen – Nominee to the U.S. District Court for the District of Columbia

A Commissioner at the Federal Election Commission (FEC), Matthew Petersen is the last of four Trump nominees to the U.S. District Court for the District of Columbia to come before the Senate Judiciary Committee.  While Petersen boasts extensive experience in election law, he may face pushback based on his tenure at the FEC.

Background

Matthew Spencer Petersen was born in Torrance, CA in 1970.  He matriculated at Utah State University in 1988 and then at Utah Valley University (then Utah Valley State College) in 1991, graduating with an A.S. with High Honors in 1996.  Petersen also matriculated at the University of Utah in 1993, transferring to Brigham Young University in 1994, and getting a B.A. magna cum laude in 1996.

Petersen then joined the University of Virginia School of Law, graduating in 1999.  After graduating, Petersen joined the Washington D.C. Office of Wiley Rein.

In 2002, Petersen was hired by the Republican majority on the Committee on House Administration as Majority Counsel.  He served in that capacity for three years, notwithstanding a short stint as Counsel to the Republican National Committee in late 2004.  In 2005, Petersen moved to the Senate to work as Chief Counsel for the Republicans on the Committee on Rules and Administration.

In 2008, Petersen was one of five new appointments to the FEC, a regulatory agency seeking to enforce campaign finance law.[1]  Specifically, Petersen was nominated to replace Hans Von Spakowsky, the controversial nominee previously recess-appointed to the Commission by President George W. Bush.[2]  While his term expired in 2011, Petersen continues to serve as a Republican representative on the Commission.

History of the Seat

The seat Petersen has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[3]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On May 20, 2017, Petersen was contacted by the White House Counsel’s Office to gauge his interest in an appointment to the U.S. District Court for the District of Columbia.  (Notably, the current White House Counsel Don McGahn served as a Republican member of the FEC alongside Petersen for five years.)  Petersen was formally nominated on September 11, 2017.

Legal Experience

Petersen has a relatively unusual background for a federal judicial nominee, having only spent three years working in litigation, and having spent significantly longer periods of time in legislative work and at the Federal Election Commission enforcing campaign finance laws.

Wiley Rein

Petersen’s litigation experience is limited to his time as an associate at Wiley Rein LLP where he served as an associate in the Election Law & Government Ethics practice group.[4]  In this capacity, Petersen represented corporations seeking to comply with campaign finance regulations, as well as candidates seeking to defend charges brought by the FEC.[5]

Capitol Hill

After leaving Wiley Rein, Petersen served as Majority Counsel on the House Committee on Administration.  In this role, Petersen served as a legal advisor to Chairman Robert Ney (R-OH), advising him on “legal and legislative matters relating to federal election and campaign finance laws.”[6]  He also worked on complaints submitted to the House Franking Commission, which regulates the use of official congressional mailings.  Notably, Petersen also helped draft the Help America Vote Act of 2002 (HAVA).

After a short stint at the RNC working to implement the HAVA during 2004 Presidential election, Petersen was hired by Sen. Trent Lott (R-MS) to serve as Chief Counsel for the Senate Committee on Administration.  In this capacity, Petersen notably worked on legislation merging the U.S. Capitol Police and the Library of Congress Police.[7]

Federal Election Commission

Petersen was confirmed to the FEC on June 24, 2008, as package deal of nominees that dramatically changed the Commission’s make-up.  Among his first acts on the FEC, Petersen joined with every other Commissioner in rejecting an effort by the Club for Growth (a conservative political group) to shorten disclosures on political advertisements.[8]

Early in Petersen’s tenure, the FEC drew criticism for a high number of 3-3 deadlocks, preventing enforcement action.[9]  Specifically, the Republican Commissioners, Petersen, Don McGahn[10], and Caroline Hunter, were criticized for voting as a bloc and “undercutting federal election law and its enforcement.”[11]  In one instance, Petersen, McGahn, and Hunter refused to support a proposed regulation governing corporate travel for lawmakers, forcing the adoption of a weaker rule that relaxed travel requirements for Senators.[12]  Petersen defended his actions in an op-ed, arguing that “an agency cannot include in regulation what was not enacted through legislation.”[13]  Petersen also wrote letters to the editor arguing that the proposed rule closely mirrored congressional intent,[14] and that the problem of FEC deadlocks is being exaggerated.[15]  Instead, Petersen argued, the focus of the Republican commissioners is on reducing “[r]ote enforcement of hyper-technical rules” as this “has an unfair impact on the inexperienced [candidate].”[16]

However, throughout Petersen’s tenure, the FEC continued to draw criticism for being ineffective and being unable to enforce the law, specifically due to the Republican Commissioner’s refusals to take enforcement actions.[17]  One article noted that since the appointments of Petersen, McGahn, and Hunter, the FEC’s rate of deadlocks had increased eightfold from 2% to 16%.[18]  Another article noted: “If you’ve been thinking of breaking federal election law, this would be an excellent time to do it, because the chance of being caught is close to nil.  There is no cop on the beat.”[19]  In response, Petersen, Hunter, and McGahn wrote:

“Aggressive enforcement in cases where the law is vague or complicated undermines the rule of law.  Few areas of the law demand more sensitivity to aggressive enforcement than those governing First Amendment-protected political speech.”

Ultimately, the FEC’s lack of enforcement drew a suit from the Campaign Legal Center, specifically challenging the lack of action against individuals alleged to be “straw donors” under the Federal Election Campaign Act.[20]  The situation drew a rare public rebuke from Democratic Commissioner Ann Ravel, who resigned from the FEC in March 2017, arguing that “[t]he ability of the commission to perform its role has deteriorated significantly.”[21]  In response, Republican Chairman Lee Goodman (who replaced McGahn in 2013) countered:

“the situation has indeed changed, but for the better.”[22]

Despite the controversy over the Republican bloc votes, Petersen has drawn positive reviews from Commissioners, with both Goodman and Commissioner Steven Walther, who vote in opposite blocs, praising him.[23]

Overall Assessment

So far, Trump’s appointments to the D.C. federal bench have not attracted much opposition.  Trump has already successfully appointed three judges with widespread bipartisan support.  Whether Petersen follows this trend or not depends on how senators evaluate his actions on the FEC.  Petersen’s critics will argue, as many watchdog groups have, that Petersen joined with other FEC Republicans to stymie agency enforcement and cripple campaign finance laws.  However, Petersen and his supporters will likely downplay FEC deadlocks as rare occurrences, and note that his votes were based on First Amendment concerns.  They will also likely note that many of Petersen’s votes against enforcement were in favor of Democratic candidates, and that, as such, he cannot be considered overly partisan.

Overall, given the Republican senate majority, it is unlikely that Petersen will face much trouble getting confirmed.  Ironically, his confirmation will further jeopardize the FEC’s effectiveness, leaving it with two out of six seats vacant.


[1] The Politico, Senate Confirms New FEC Commissioners, Ending Long Partisan Standoff, CBS News, June 24, 2008, https://www.cbsnews.com/news/senate-confirms-new-fec-commissioners-ending-long-partisan-standoff/.  

[2] Matthew Mosk, Candidates’ Fundraising Disputes May Be Heard, Wash. Post, May 23, 2008.

[3] Ann E. Marimow, Chief Judge of the District’s Federal Court Retires as Lawsuit Accuses Him of Sexual Assault, Wash. Post, Mar. 16, 2016, https://www.washingtonpost.com/local/public-safety/chief-judge-of-the-districts-federal-court-retires/2016/03/16/2ff09bf0-ebc1-11e5-b0fd-073d5930a7b7_story.html?utm_term=.38886e556276.  

[4] Petersen, Senate Judiciary Questionnaire 29, https://www.judiciary.senate.gov/imo/media/doc/Petersen%20SJQ.pdf.

[5] Id.

[6] Id. at 28.

[7] Id.

[8] Matthew Murray, FEC Rejects Club’s Bid to Tweak Disclosure Rules, RollCall, July 29, 2008.

[9] Matthew Murray, FEC Deadlocks on the Rise, RollCall, Apr. 6, 2009.

[10] McGahn currently serves as Trump’s White House Counsel, and has a significant role in selecting judicial nominees.

[11] Editorial, Obama’s FEC, RollCall, Dec. 2, 2009.

[12] See id.

[13] Matthew Petersen, FEC Implemented Congress’ Vision on Travel Rules, RollCall, Dec. 1, 2009.

[14] Matthew S. Petersen, Caroline S. Hunter, Donald F. McGahn, Travel Rules Follow the Law, Wash. Post, Dec. 7, 2009.

[15] Matthew S. Petersen, Caroline S. Hunter, Donald F. McGahn, Promoting Change, Not Paralysis, at the FEC, Wash. Post, June 19, 2009.

[16] See id.

[17] Craig Holman, Guest Observer, RollCall, March 14, 2011.

[18] Id.

[19] Dana Milbank, A Good Faith Effort to Break D.C. Gridlock, Wash. Post, Oct. 12, 2014.

[20] Press Release, The Campaign Legal Center, CLC, D21 Lawsuit Calling for FEC Enforcement Moves Forward (Mar. 29, 2017) (available at http://www.campaignlegalcenter.org/news/press-releases/clc-d21-lawsuit-calling-fec-enforcement-moves-forward).

[21] Eric Lichtblau, Democratic Member to Quit Election Commission, Setting Up Political Fight, N.Y. Times, Feb. 19, 2017, https://www.nytimes.com/2017/02/19/us/politics/fec-elections-ann-ravel-campaign-finance.html.

[22] Id.

[23] Dave Levinthal, Will Donald Trump Let the Federal Election Commission Rot, The Center for Public Intregrity, Sept. 14, 2017, https://www.publicintegrity.org/2017/09/08/21164/will-donald-trump-let-federal-election-commission-rot.

Trevor McFadden – Nominee to 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 Georgetown 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.