Wendy Vitter – Nominee to the U.S. District Court for the Eastern District of Louisiana

Before her nomination to a federal judgeship, Wendy Vitter was perhaps best known in connection to her husband, former Senator and Congressman David Vitter.  In particular, Wendy was remembered for her participation in a press conference during the D.C. Madam scandal in 2007.[1]  Now a nominee to a federal judgeship, Vitter faces new scrutiny on her professional record and public views.

Background

Vitter was born Wendy Lee Freret Baldwin in 1961 in New Orleans.  Vitter attended Sam Houston State University, graduating in 1982.[2]  She then worked as a substitute teacher and Exercise Instructor for a few months before joining Tulane University Law School, graduating with a J.D. in 1986.[3]

After graduation, Vitter joined the Orleans Parish District Attorney’s Office as an Assistant District Attorney.[4]  In 1989, she was elevated to become Deputy Chief of Trials and in 1990, she became the Chief of Trials.[5]  In 1992, Vitter joined Abbott & Meeks as an associate.

Vitter left Abbott & Meeks in 1993 and stayed out of the workforce for the next 19 years, supporting her husband as he ran for the state legislature, the U.S. House, and the Senate.  In 2007, both Vitters burst onto the political news scene under less than ideal circumstances, when the Senator’s phone number was uncovered in a sting of the D.C. Madam (a woman charged with running a high-end brothel).[6]  In a high profile news conference, Vitter stood by her husband and assured reporters that she was “proud to be Wendy Vitter.”[7]  Ultimately, the allegations did not affect David Vitter’s 2010 re-election campaign, although some alleged that they helped to sink his gubernatorial campaign in 2015.[8]

In 2012, Vitter rejoined legal practice as a Project Director at The Roman Catholic Archdiocese of New Orleans.[9]  In 2013, she became General Counsel to the Archdiocese.[10]  She continues to work there to this day.

History of the Seat

Vitter has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Helen Ginger Berrigan’s move to senior status on August 23, 2016.  While Berrigan, a left-leaning judge, retired under a Democratic president, the Obama Administration did not put forward a nominee for the vacancy.

Shortly after the election of President Donald Trump, Vitter reached out to Louisiana Senators Bill Cassidy and John Kennedy to express her interest in a federal judgeship.[11]  On April 7, 2017, Vitter interviewed with the White House Counsel’s Office.[12]  In June 2017, Vitter interviewed with a judicial selection committee created by Cassidy, and was selected as a nominee in September 2017.[13]  Vitter was officially nominated on January 23, 2018.[14]

Legal Experience

Vitter began her legal career as a prosecutor in New Orleans under District Attorney Harry Connick Sr.  While she started in juvenile courts, Vitter worked her way up to becoming Chief of Trials, trying over one hundred cases in her five years as a prosecutor.[15]  Among the cases she worked on, Vitter prosecuted Marcus Hamilton for the brutal murder of Father Patrick McCarthy.[16]  During the trial, Hamilton argued that he had killed McCarthy in response to repeated sexual advances made by McCarthy against him.[17]  Despite the argument, Vitter was able to secure the death penalty against Hamilton, which was upheld by the Louisiana Supreme Court.[18]  Vitter also prosecuted the first capital case in Louisiana where DNA evidence was introduced at trial.[19]

In 1992, Vitter moved to the firm Abbott & Meeks, handling maritime litigation, product liability, and class actions in federal court.[20]  However, she left this position approximately a year later.[21]

In 2013, Vitter rejoined the workforce as General Counsel to the Archdiocese of New Orleans.[22]

In this position, Vitter advises the Archdiocese on legal matters, including compliance with employment laws, the Americans with Disabilities Act, wage and hour regulations, and other laws.[23]  She also represents the Archdiocese in state court and before federal agencies.[24]

Political Activity & Speeches

Perhaps unsurprisingly, given Vitter’s marriage to a politician, she has an extensive history of political activity, including over 120 public appearances campaigning for her husband.[25]  Vitter has also served as an unofficial advisor in all of her husband’s campaigns.[26]  She has also donated to the Presidential campaign of former Senator Phil Gramm.[27]

Vitter has been active in the pro-life movement, serving as Honorary Chair for the Notre Dame Seminary Priests for Life luncheon in 2013 and getting the Proudly Pro-Life Award from the New Orleans Right to Life Educational Foundation for her efforts.[28]  In early March, the Alliance for Justice reported that Vitter’s judiciary questionnaire had omitted some of her pro-life activism, specifically two speeches, and participation in a panel.[29]  In the panel in question, Vitter advocated the work of fellow panelist Angela Lanfranchi, and encouraged attendees to pick up and use Lanfranchi’s brochure, The Pill Kills.[30]  The brochure in question suggests that

“women on the contraceptive pill are more likely to die a violent death, because they are more likely to cheat on their male partners, to face fertility problems, to have unhealthy children, and to have poor relationships to their partners” and that this would “influence rates of intimate partner violence.”[31]

Overall Assessment

In opposing judicial nominees, senators generally raise one or more of the following allegations: lack of experience; lack of integrity; and lack of impartiality.  In Vitter’s case, critics may potentially raise all three points against her.  We will evaluate each argument in turn to judge its plausibility and persuasiveness.

Firstly, critics may argue that Vitter lacks the requisite experience to be a federal judge.  The ABA requires a minimum of twelve years of legal practice to be qualified for a federal judicial appointment.  Vitter practiced as a state prosecutor for five years, in private practice for one year, and then as General Counsel for five years, leaving her narrowly short of the ABA’s requirements.  More concerning than the inability to meet the ABA standard, however, is the fact that Vitter’s federal court experience is extremely limited, with Vitter having practiced in federal court only for a year.  Furthermore, none of the matters she worked on during this year, by her own views, were significant enough to warrant inclusion in her Senate Judiciary Questionnaire.

In response, Vitter’s supporters can argue that she has handled over one hundred criminal trials in state court, and numerous civil proceedings as General Counsel.  Furthermore, they can argue that Vitter’s extensive experience in capital cases is particularly apposite to federal court work, as capital cases are notoriously complex and involve intimate knowledge of both facts and law.  As such, they would argue that she is qualified for the federal trial bench.

Secondly, Vitter’s critics may echo the arguments made by the Alliance for Justice, arguing that her failure to properly disclose all of her speeches and panels suggests a willful attempt to deceive the Judiciary Committee.  However, it is important to note that Vitter disclosed over one hundred speeches over a eighteen year period, making it fairly unlikely that the disclosure of 2-3 additional speeches would have been deemed dispositive.  It is far more likely that the speeches were overlooked rather than deliberately omitted.

Thirdly, Vitter’s critics may argue that her long history of partisan advocacy and of pro-life activism suggests an inability to enforce precedents favorable to abortion rights.  They may also argue that Vitter’s endorsement of Lanfranchi’s claims about contraception reflects her embrace of ideology over facts.  Assuming that Vitter, as numerous nominees before her have, will assure the Committee of her commitment to precedent and her understanding that Roe v. Wade is the law of the land, Vitter’s backers will likely point to such a commitment as evidence of her ultimate fidelity to the law rather than to her ideology.  They may also attempt to argue, as they have done with others, that attacking Vitter for her pro-life ideology amounts to an attack on her faith.

In looking over the arguments above, it is unlikely that Vitter will be deemed a “consensus” nominee.  However, she is still favored for confirmation for two reasons.  First, the Republican Judiciary Committee senator most likely to turn against a Trump nominee, Sen. John Kennedy, is solidly behind Vitter.  Second, given that many of the senators on both sides of the aisle served with Vitter’s husband, it would be particularly awkward for them to block Vitter’s path to the federal bench.  Relationships are still important in Washington, and as such, Vitter may fare better than a different nominee sharing her background and views.


[1] Griffin Connolly, Vitter’s Wife Nominated by Trump for Federal Judgeship in Louisiana, Roll Call, Jan. 24, 2018, https://www.rollcall.com/news/politics/vitters-wife-nominated-trump-federal-judgeship-louisiana

[2] Sen. Comm. on the Judiciary, 115th Cong., Wendy Vitter.: Questionnaire for Judicial Nominees 1.

[3] Id.

[4] See id. at 2.

[5] Id.

[6] Dana Milbank, Sex and the Conservative, Wash. Post, July 17, 2007.

[7] Id.

[8] Chris Cillizza, Why Did David Vitter’s Prostitute Problem Kill Him in 2015 and Not in 2010?, Wash. Post, Nov. 23, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/11/23/why-did-david-vitters-prostitution-problem-kill-him-in-2015-and-not-in-2010/?utm_term=.5a8c2d0dddc4.  

[9] Id.

[10] Id.

[11] Id. at 41.

[12] Id.

[13] Id.

[14] Press Release, White House, President Donald J. Trump Announces Tenth Wave of Judicial Candidates (January 23, 2018) (on file at www.whitehouse.gov/the-press-office).  

[15] See Vitter, supra n. 2 at 30-31.

[16] See State v. Marcus Hamilton, 681 So.2d 1217 (La. 1996).

[17] See id. at 1221.

[18] Id. at 1229.

[19] See State v. Steven Quatrevingt, 670 So.2d 197 (La. 1996).

[20] See Vitter, supra n. 2 at 31.

[21] Id. 

[22] Id. 

[23] See id.

[24] See id.

[25] See Vitter, supra n. 2 at 8-25.

[26] Id. at 29.

[28] See Vitter, supra n. 2 at 4.

[29] See Drew Broach, Wendy Vitter’s Nomination Falls Under New Scrutiny For Questionnaire Omissions, New Orleans Times Picayune, Mar. 2, 2018, http://www.nola.com/national_politics/2018/03/wendy_vitter_omissions_judicia.html.

[30] Carter Sherman and Taylor Dolven, A Trump Judge Pick Left Anti-Abortion Speeches Off Her Senate Disclosure Form, Vice News, Mar. 1, 2018, https://news.vice.com/en_us/article/vbpndy/a-trump-judge-pick-left-anti-abortion-speeches-off-her-senate-disclosure-form.  

[31] Id. (quoting The Pill Kills).

Barry Ashe – Nominee for the U.S. District Court for the Eastern District of Louisiana

A member of the conservative Federalist Society, Barry Ashe is President Trump’s first nominee to the New Orleans based Eastern District of Louisiana.

Background

Barry Weldon Ashe was born in 1956 in New Orleans, LA.  Ashe attended Tulane University, graduating summa cum laude in 1978.[1]  Ashe then joined the U.S. Navy, serving for three years.  In 1981, Ashe left the Navy to join Tulane University Law School, graduating in 1984 magna cum laude.

After graduation, Ashe clerked for Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit.[2]  After completing his clerkship with King, Ashe joined the New Orleans office of Stone Pigman Walther Wittmann LLC as an Associate.  Ashe became a Member at the firm in 1991 and serves in that capacity today.

Ashe has served on the Executive Committee of the New Orleans Chapter of the Federalist Society since 2006.

History of the Seat

Ashe has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Ivan Lemelle’s move to senior status on June 29, 2015.  On February 4, 2016, Obama nominated federal public defender Claude Kelly to fill the vacancy.[3]  Kelly, a Republican, had the support of Louisiana Senators David Vitter and Bill Cassidy.[4]

Kelly received a hearing before the Senate Judiciary Committee on May 18, 2016, and was approved without objection on June 16.  However, Kelly’s nomination never received a floor vote due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.

Shortly after the election of President Donald Trump, Ashe reached out to Cassidy and Louisiana Senator John Kennedy (who replaced Vitter) to express his interest in a federal judgeship.[5]  In 2017, Kennedy recommended Ashe to the White House for the vacancy.[6]

After interviews with the White House Counsel’s Office and the Department of Justice, Ashe was officially nominated on September 28, 2017.[7]

Legal Experience

Ashe has spent his entire legal career at the firm of Stone Pigman Walther Wittmann LLC.  At the firm, Ashe primarily works in commercial and appellate litigation representing financial institutions, pharmaceutical companies, and oil, gas, & chemical industries.[8]

In one of his most notable cases, Ashe represented the Tangipahoa Parish Board of Education in a suit defending an evolution disclaimer adopted by the Board.[9]  The disclaimer, required to be read to students before presenting evolution, declared that the teaching of the scientific theory of evolution in class was not meant as an endorsement and should not be taken to dissuade or influence the Biblical view of creation.[10]  The disclaimer was struck down by both Judge Marcel Livaudais on the Eastern District of Louisiana and the Fifth Circuit as violating the Establishment Clause of the First Amendment.[11]

In another notable case, Ashe argued on behalf of the Louisiana Attorney Discipline Board in favor of the constitutionality of restrictions on attorney advertising.[12]  While the Fifth Circuit upheld many of the challenged rules, it struck down restrictions on portraying judges or juries in advertisements and restrictions on the font size and speed of disclaimers.[13]

Writings

In 2000, Ashe authored an article titled “Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere.”[14]  In the article, Ashe argues that “the Fifth Circuit is waging a war against religion in the public sphere.”[15]  Looking at the Fifth Circuit’s decisions in five areas: public funding of parochial education; prayer at high school football games; disclaimers involving evolution; “clergy in schools” counseling program; use of school buildings for religious activities, Ashe concludes that the Fifth Circuit’s ruling in favor of a separation of church and state “evinces the court’s hostility towards religion.”[16]

Political Activity

Ashe has been a frequent donor to Louisiana Republicans, including Vitter, Cassidy, Kennedy, Rep. Steve Scalise, and former Governor Bobby Jindal.[17]  In contrast, Ashe has only donated to one Democrat: Public Service Commissioner Foster Campbell.[18]

Overall Assessment

Members of both parties will likely agree that Ashe, who has over thirty years of legal experience, is professionally qualified to serve as a trial judge.  They may differ however based on his ideology and willingness to follow precedent.

Specifically, Ashe will likely be questioned as to whether he continues to maintain that the Fifth Circuit is waging a “war on religion.”  Furthermore, he is likely to be asked if he can continue to follow Fifth Circuit precedent that he disagrees with (as he will be bound to do as a district court judge).  If Ashe is able to sufficiently answer those concerns, he will likely be confirmed easily.


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

[2] See id. at 2.

[3] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (February 4, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615.

[5] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 30.

[6] Tyler Bridges, 42-Parish Area of Western Louisiana Suffers From Vacant Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.  

[7] Press Release, White House, President Donald J. Trump Announces Eighth Wave of Judicial Candidates (September 28, 2017) (on file at www.whitehouse.gov/the-press-office).  

[8] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 15.

[9] See Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999).

[10] Id. at 341.

[11] Id. at 348.

[12] See Public Citizen, Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011).

[13] See id.

[14] Barry W. Ashe, Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere, 46 Loy. L. Rev. 973 (Winter 2000).

[15] Id. at 976.

[16] Id. at 1027.

[18] Id.