Sean Jordan – Nominee to the U.S. District Court for the Eastern District of Texas

The Eastern District of Texas is currently short three judges of its eight.  President Trump’s attempts to fill its bench have been somewhat complicated by the controversy many of his nominees have run into.  After his previous nominee to this seat was forced to withdraw, Trump has put forward Sean Jordan, an Austin based attorney with a close association with Sen. Ted Cruz.


Sean Daniel Jordan was born in New York City in 1965.  Jordan attended the University of  Texas at Austin, graduating with a B.A. in 1991.  He proceeded to the University of Texas Law School, graduating with a J.D. in 1994.  After graduating, Jordan joined Bell & Murphy P.C. in Houston as an Associate.

In 1997, Jordan moved to become an Associate with Beirne, Maynard & Parsons LLP and in 1998, to Solar & Fernandes LLP.[1]  In 2000, Jordan joined Jackson Walker LLP in Austin.  He became a Partner there in 2002.[2]

In 2004, Jordan became Assistant Solicitor General of Texas under then Solicitor General Ted Cruz.[3]  Jordan became Deputy Solicitor General in 2006 and Principal Deputy in 2008.  In 2012, Jordan left the office to join Sutherland Ashbill & Brennan LLP as a Partner.

In 2015, Jordan rejoined Jackson Walker as a Partner and has been there ever since.

History of the Seat

The seat Jordan has been nominated for opened on March 10, 2015, with Judge Richard Schell’s move to senior status.  On March 15, 2016, President Obama nominated Karen Gren Scholer, a former Republican state court judge, to fill this vacancy.  However, Scholer was blocked from final confirmation by Sen. Majority Leader Mitch McConnell.[4]

On September 7, 2017, President Trump nominated Jeff Mateer, who served as the First Assistant Attorney General of Texas, to fill the vacancy.  However, shortly after his nomination, two of Mateer’s 2015 speeches were uncovered, in which Mateer suggested that transgender children were part of “Satan’s plan.”[5]  A few months later, the White House dropped Mateer’s nomination as it became clear that they lacked the votes to confirm him.[6]

In February 2018, Jordan applied for a judgeship with the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.[7]  He interviewed with the Committee in April and then with Cornyn and Cruz in May.  Jordan’s name was submitted to the White House in August 2018.[8]  After interviews with the White House Counsel’s Office and the Department of Justice, Jordan was nominated on January 16, 2019.

Legal Experience

Jordan has spent much of his legal career in private practice, focusing on trial court litigation for the first part of his career and on appellate litigation in the latter part.  Jordan has tried five cases to verdict, including one in which he served as Associate Counsel.[9]

In 2014, Jordan authored a brief on behalf of the Student Press Law Center, the Electronic Frontier Foundation, and the PEN American Center in Elonis v. United States, arguing that discussions of violence on social media should not be interpreted as “true threats” unless thus understood in their original context.[10]

Between 2004 and 2012, Jordan served in the Solicitor General’s Office in Texas.  In this capacity, Jordan represented the state in numerous proceedings, including at the Supreme Court.  Jordan argued one case before the Court, unsuccessfully arguing that the grant of an out-of-time direct appeal to a criminal defendant does not toll the statute of limitations to file a habeas action.[11]

Additionally, Jordan was on the legal team that challenged President Bush’s 2006 directive that instructed state courts to comply with rulings of the International Court of Justice (ICJ).[12]  The Supreme Court ultimately sided with Texas and found that ICJ rulings were not self-executing that state courts were not thus required to comply.[13]  Jordan also argued successfully before the Fifth Circuit that the Due Process Clause was not violated when inmates convicted of a sex crime had additional conditions imposed on their parole without additional process.[14]

Political Activity

Jordan is a Republican and a current member of the Federalist Society for Law and Policy.  He also served on the Campaign Finance Committee for Cruz’s Senate campaign in 2012.[15]

Overall Assessment

Given the close association with Cruz, his membership in the Federalist Society, and his record as an attorney, it is fair to describe Jordan as a conservative.  However, unlike the previous nominee to this seat, Jordan does not have a record of inflammatory rhetoric and, as such, is unlikely to attract the same level of controversy in confirmation.

[1] Sen. Comm. on the Judiciary, 115th Cong., Sean D. Jordan: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Scholer was later nominated by Trump to a vacancy on the U.S. District Court for the Northern District of Texas and was unanimously confirmed.

[5] Nicole Cobler, Cruz Stands By Trump Court Pick Who Sees ‘Satan’s Plan’ in Transgender Kids; Cornyn Undecided, Dallas Morning News, Sept. 28, 2017,

[6] Nicole Cobler and Todd J. Gilman, No Judgeship for ‘Satan’s Plan’ Texan, as White House Drops Jeff Mateer Nomination, Dallas Morning News, Dec. 12, 2017,

[7] Sen. Comm. on the Judiciary, 115th Cong., Sean D. Jordan: Questionnaire for Judicial Nominees 24-25.

[8] See id.

[9] See id. at 13.

[10] See Press Release, Don’t Criminalize Discussing Violence on Social Media, SPLC-Led Coalition Urges Supreme Court (Aug. 25, 2014).

[11] Jimenez v. Quarterman, 555 U.S. 113 (2009).

[12] Medellin v. Texas, 552 U.S. 491 (2008).

[13] See id.

[14] Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010).

[15] See Jordan supra n. 1 at 10.

UPDATED – Michael Truncale – Nominee for the U.S. District Court for the Eastern District of Texas

UPDATED 4/19 with comment from the Department of Justice

A longtime stalwart in the Texas Republican Party and a one-time Congressional candidate, Michael Truncale is a strongly conservative pick for the Eastern District of Texas.


A native of Beaumont, Michael Joseph Truncale was born in 1957.  Truncale received a B.B.A. from Lamar University in 1978 and an M.B.A. from the University of North Texas in 1980.[1]  After two years as a Financial Analyst, Truncale attended Southern Methodist University School of Law, serving as Student Bar Association President there, and getting his J.D. in 1985.[2]  He then joined the Beaumont firm Orgain, Bell & Tucker as an associate.[3]  In 1991, Truncale became a partner at Orgain and still works as a partner there.[4]

History of the Seat

Truncale has been nominated to the U.S. District Court for the Eastern District of Texas, to a seat vacated on February 28, 2018, with Judge Ron Clark’s move to senior status.

In April 2017, Truncale applied for a judgeship with the Evaluation Committee set up by Texas Senators John Cornyn and Ted Cruz, both Republicans.[5]  He interviewed with the Committee on April 20, 2017.[6]  Truncale then interviewed with Cornyn and Cruz in May 2017, after which his name was submitted to the White House.[7]  Truncale interviewed with the White House late in July 2017.  His nomination was submitted to the U.S. Senate on January 23, 2018.

Political Activity & Memberships

Truncale has a long history of involvement with the Texas Republican Party, starting with working as a volunteer during the 1984 Presidential election.  From 2006 to 2014, Truncale served on the Executive Committee of the Texas Republican Party.[8]  He also was a Republican Delegate for John McCain in 2008 and a volunteer for the Trump campaign.[9]

Additionally, Truncale has been a generous donor to Republicans. Cornyn has been a particular beneficiary, having received almost $7000 in contributions over the last twelve years.[10]  Truncale also donated $1000 to Cruz in 2015.[11]

In 2011, after congressional redistricting reshaped Texas’ 14th Congressional District and Rep. Ron Paul declined to run for re-election, Truncale was the first Republican candidate to announce his campaign.[12]  In his campaign, Truncale emphasized his support for a Balanced Budget Amendment, cutting back federal regulations, and his opposition to the Affordable Care Act.[13]  Ultimately, Truncale came in third in the Republican primary, securing 14.03% of the vote, and did not make the runoff, which was eventually won by then State Rep. Randy Weber.[14]

Legal Experience

Truncale has spent his entire career at the firm of Orgain, Bell & Tucker.  At the firm, Truncale worked in civil defense, practicing in Texas state and federal courts.  He also practiced white collar criminal defense in federal court.[15]  Over the course of his legal career, Truncale has tried over 100 matters in state and federal court.[16]

Additionally, in 1992, Truncale became certified as a mediator under Texas law, mediating cases including contract disputes, tort actions, sexual harassment cases, and libel suits.[17]  In 2017 and 2018, Truncale mediated nine different suits, including suits under tort law, landlord-tenant law, and contract law.[18]

Interviews and Expressed Views

As noted above, Truncale was a congressional candidate in the 2011-12 election cycle.  As a candidate, Truncale ran as a conservative, expressing his desire for limited government, low spending and taxation, and the rollback of government regulation.  While many of his interviews and speeches focus on general talking points and his support of conservative agenda items such as the repeal of the Affordable Care Act and the implementation of the Balanced Budget Amendments, a few also discuss his views on the judiciary and the Constitution, as well as more potentially controversial topics.

Judicial Philosophy

Truncale, who served on the Federal Judicial Evaluation Commission for Texas during the Obama Administration, has labeled himself a “strict constructionist.”[19]  He has also described himself as a “conservative by conviction, not by convenience.”  In an interview, Truncale described his judicial philosophy as follows:

“I do not believe that judges should legislate from the bench…and, really, overlook the plain meaning of the United States Constitution.  That’s how we’ve got into a lot of trouble now.  That’s why government has gotten too big.  That’s why we’ve forgotten about the Tenth Amendment, which means that power is to be retained by the people and by the states, and that the people and the states don’t exist for the furtherance of the federal government…”[20]

Obamacare – Expansion of the Federal Government

In many of his speeches, Truncale has attacked Obamacare as a symbol of an expanding federal government.  One talking point that Truncale would often repeat was that “If Obamacare is not allowed to stand, there is no limit to what the federal government can do to you.”[21]

In another forum, Truncale noted:

“It [Obamacare] is unconstitutional.  There is no right in the Constitution for the government to tell you what kind of insurance to buy…”[22]

These remarks were made before the Supreme Court upheld the Obamacare individual mandate in June 2012.


While Truncale, similar to other Republicans, advocated for stronger border enforcement during his campaign, one particular statement may draw controversy.  At a CD14 Job Interview in 2012, Truncale was asked a question about border security.  In responding, Truncale noted his desire in stronger border enforcement and “boots on the ground” near the Texas-Mexico border.[23]  He appears to say the following:

“And, of course, we must…with regard to immigration…we must not continue to have the maggots coming in.”[24]

While it is unclear what exactly Truncale means through the use of the term “maggots”, or if that is the term he used, the context of his statement and his preface “with regard to immigration” suggests that he is using the term to refer to immigrants (or potentially undocumented immigrants).  If this is what Truncale said and meant, his use of such inflammatory language may raise questions about his willingness and inability to treat litigants fairly, regardless of their background.

4/19 – UPDATE: According to Drew Hudson from the Department of Justice, Truncale  used the word “magnets”, not “maggots.”  Hudson notes that by magnets, Truncale was referring to incentives for illegal immigrants to enter the United States, such as entitlement programs.  As such, the correct transcription, Hudson suggests, is:

“And, of course, we must…with regard to immigration…we must not continue to have the magnets coming in.”


In a May 2012 forum, Truncale was asked about his views on government funding of Planned Parenthood.  Truncale responded:

“I don’t think we should be funding Planned Parenthood.  I’m pro-life.”[25]

In another interview, Truncale criticized the Obama Administration’s contraception mandate, describing it as an “assault on the Catholic Church.”[26]

Gun Rights

In an interview with the Police News, Truncale described himself as a supporter of Second Amendment rights, noting:

“Once you start chiseling away at the Second Amendment rights, once you start chiseling away the First Amendment rights, with regard to religion, then all of our liberties are at risk.”[27]

Overall Assessment

In evaluating Truncale’s overall record, it is important to separate his record as an attorney from his record as a congressional candidate.  Looking solely at Truncale’s legal record, there is little to disqualify him from the federal bench.  His experience in complex civil litigation prepares him well for many of the matters he would address as a federal court judge, while his experience with white collar defense would help him on the criminal side.  Additionally, having spent his entire life in Beaumont, Truncale is intimately familiar with the legal community he would be serving as a judge.

However, the legal and political views expressed by Truncale during his congressional campaign may raise concerns regarding his impartiality on the bench.  Truncale’s self-description as a “conservative by conviction” may be raised by critics to argue that, on the bench, he would be motivated by conservative ideology rather than fidelity to the law.  Additionally, Truncale may draw opposition for his use of the term “maggots” during a discussion of immigration.

UPDATE – 4/19: As noted above, the Department of Justice argues that Truncale actually used the term “magnets.”  Obviously, if he actually said magnets, this should not bear on his qualification for judicial office.

Overall, Truncale’s nomination speaks to the danger of picking judges with electoral pasts.  Statements made as candidates invariably have a way of coming back to haunt nominees.

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

[2] See id.

[3] See id. at 2.

[4] Id.

[5] See id. at 46.

[6] See id.

[7] See id.

[8] Id. at 5.

[9] See id. at 34.

[11] See id.

[12] Sherry Koonce, Beaumont Attorney Seeks District 14 Seat, The Port Arthur News, Aug. 3, 2011.

[13] David Yates, Tort Reform Among Issues for Beaumont Attorneys Running for Congress, Southeast Texas Record, May 22, 2012.

[14] Sherry Koonce, Brazoria County Candidates Lead Republicans in District 14 Race, Port Arthur News, May 29, 2012.

[15] See Truncale, supra n. 1 at 38.

[16] Id.

[17] See id. at 36.

[18] Id. at 35-36.

[19] Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at

[20] Michael Truncale, Interview with the Police News (Feb. 18, 2012) (available at

[21] Michael Truncale, Candidate for U.S. House, Address to the Southeast Texas Tea Party (Apr. 3, 2012) (available at See also Michael Truncale, North Galveston County Chamber of Commerce Forum (Feb. 21, 2012) (available at; Michael Truncale, Beaumont Chamber of Commerce Republican Candidate Forum (January 13, 2012) (available at; Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at

[22] Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at   

[23] Michael Truncale, CD14 Job Interview (uploaded on May 23, 2012) (available at

[24] See id. at 1:31-1:36.

[25] Michael Truncale, Lake Jackson Tea Party Forum (May 1, 2012) (available at  

[26] Michael Truncale, Interview with the Police News (Feb. 18, 2012) (available at

[27] See id.

Jeremy Kernodle – Nominee for the U.S. District Court for the Eastern District of Texas

A young yet experienced litigator, Jeremy Kernodle has been nominated for a judgeship in the U.S. District Court for the Eastern District of Texas, rather than in the Northern District, where he is based.


Jeremy Daniel Kernodle was born in Memphis in 1976.  Kernodle attended Harding University in Arkansas, graduating summa cum laude in 1998.[1]  He then attended Vanderbilt University School of Law, graduating with Highest Honors in 2001.[2]  He then clerked for Judge Gerald Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit.  Following his clerkship, Kernodle joined the Washington D.C. Office of Covington & Burling LLP as an associate.[3]

In 2005, Kernodle joined the Office of Legal Counsel in the Department of Justice as an attorney-advisor.[4]  In 2006, he moved to Dallas to become an associate at Haynes & Boone LLP.[5]  In 2012, Kernodle became a partner at the firm and continues to serve in that capacity today.

History of the Seat

Kernodle has been nominated to the U.S. District Court for the Eastern District of Texas, to a seat vacated on January 7, 2016, by Judge Michael Schneider’s move to senior status.  While Schneider moved to senior status with over a year left in the Obama Administration, no nominee was put forward for the vacancy.

In February 2017, Kernodle applied for a judgeship with the Evaluation Committee set up by Texas Senators John Cornyn and Ted Cruz, both Republicans.[6]  He interviewed with the Committee on March 16, 2017.[7]  Kernodle then interviewed with Cornyn and Cruz in May 2017, after which his name was submitted to the White House.[8]  Kernodle interviewed with the White House late in July 2017.  His nomination was submitted to the U.S. Senate on January 23, 2018.

Political Activity & Memberships

Kernodle has been fairly active in the Dallas Republican Party, having served as a Precinct Chair and on the Host Committee.[9]  He also donated $2500 to the Dallas Republican Party in 2017, as well as giving to Cornyn and Cruz.[10]

Kernodle has also been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal society that has produced many Trump judicial nominees) since 2006 and has served as President of the Dallas Lawyers Chapter since 2014.[11]

Legal Experience

Other than a brief stint at the Department of Justice, Kernodle has spent his entire legal career in private practice.  He started his career as an associate in the Washington D.C. office of Covington & Burling, specifically, in the Litigation and Supreme Court Practice Group.  While there, he appealed the dismissal of a malicious prosecution charge and argued the case before the Third Circuit.[12]

In 2005, Kernodle joined the Office of Legal Counsel (OLC) at the U.S. Department of Justice, which is tasked with providing advice on the legality of the Justice Department’s initiatives.[13]  While he did not participate in litigation at OLC, such a background has drawn significant criticism towards other Trump nominees.

In 2006, Kernodle joined Haynes & Boone in Dallas as an associate.  He was then made a partner in 2012.  At the firm, Kernodle has developed an expertise in False Claims Act cases, specifically in defending government contractors charged under the FCA.  For example, Kernodle successfully defending a healthcare company in a qui tam suit alleging fraud.[14]  In another suit, Kernodle successfully challenged a National Labor Relations Board order against the Dresser-Rand Co.[15]

Writings, Interviews, and Expressed Views

Over his career, Kernodle has developed an expertise in the False Claims Act (FCA), a law imposing liability on those who defraud the government.  He has authored numerous articles discussing developments in False Claims Act jurisprudence and caselaw.  In one such article, Kernodle suggests that the FCA will continue to expand in scope, leading to many lawsuits being brought under it.[16]

While Kernodle has generally focused his writing on the False Claims Act, as a law student, he wrote on the emerging “state-created danger” theory of liability for states and municipalities.[17]  The theory, which arose largely from the Supreme Court’s decision in DeShaney v. Winnebago County Department of Social Services, holds that the government can be held liable for a deprivation of constitutional rights where the government is responsible for creating the danger to the individual.[18]  Noting the variety of circuit court interpretations of the theory, Kernodle proposed a five part test for when the government could be held liable under the “state-created danger” theory: (1) the government acted affirmatively; (2) toward a specific plaintiff; (3) with deliberate indifference; (4) causing the harm; (5) in a way that shocks the conscience of the court.[19]  Such a restrictive test, Kernodle argues, is necessary for “confining recovery and protecting legislative decisions.”[20]

Overall Assessment

Kernodle fits neatly into the Trump Administration’s judicial focus on young conservatives with impeccable academic credentials.  Kernodle’s supporters will tout his litigation experience and expertise in the False Claims Act as evidence of his intellect.  Furthermore, conservatives will cheer Kernodle’s long history with the Federalist Society.

While Kernodle does not share the paper trail of controversial statements made by other Texas nominees, his nomination may nonetheless draw some opposition.  Firstly, critics may question Kernodle’s role at OLC, probing his views on topics such as the legality of interrogation techniques.  Secondly, they may criticize Kernodle’s lack of connections to the Eastern District of Texas, where he has been nominated.  (Interestingly, there are three nominee-less vacancies on the Dallas-center Northern District of Texas)

Overall, it is unlikely that his brief tenure at OLC or his affiliation with the Federalist Society will be disqualifying for the majority of the U.S. Senate.  As such, Kernodle will likely be confirmed in due course.

[1] Sen. Comm. on the Judiciary, 115th Cong., Jeremy D. Kernodle: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] See id. at 2.

[5] See id.

[6] See id. at 30.

[7] See id.

[8] See id.

[9] See id. at 15.

[11] See id.

[12] See Green v. Robinson, 112 Fed. Appx. 165, 2004 U.S. App. LEXIS 21304 (3d Cir. Oct. 13, 2004) (affirming dismissal of malicious prosecution claim).

[13] See Kernodle, supra n. 1 at 17.

[14] See United States ex rel. Colquitt v. Abbott Laboratories, 858 F.3d 365 (5th Cir. 2017).

[15] See Dresser-Rand, Co. v. NLRB, 838 F.3d 512 (5th Cir. 2016); Dresser-Rand, Co. v. NLRB, 576 F. App’x. 332 (5th Cir. 2014).

[16] Jeremy Kernodle, Christopher Rogers, and Nicole Somerville, Fraud Alert: What Every Texas Lawyer Should Know About the False Claims Act, 78 Texas B.J. 704, 705 (Oct. 2015).

[17] Jeremy Daniel Kernodle, Protecting the Police: Clarifying the Test for Holding the Government Liable Under 42 § 1983 and the State-Created Danger Theory, 54 Vand. L. Rev. 165 ( Jan. 2001).

[18] 489 U.S. 189, 200 (1989).

[19] See Kerndole, supra n. 29 at 187.

[20] Id. at 199.

J. Campbell Barker – Nominee to the U.S. District Court for the Eastern District of Texas

Last year, Brett Talley’s nomination to the federal bench died as doubts were raised about his temperament, youth, and inexperience.  Born in 1981, Talley was only 36 at the time of his nomination.  While the Trump Administration has yet to send a nominee as young as Talley, Cam Barker, newly tapped for the Texas federal bench, comes pretty close, at only 37 years old.  While Barker boasts an impressive resume, including stellar academic credentials, his position as Texas Deputy Solicitor General has given him a footprint in many deeply controversial cases.


John Campbell “Cam” Barker was born in New Orleans, LA in 1980.  Barker attended Texas A&M University, graduating with a B.S. summa cum laude in 2002.  He proceeded to the University of Texas Law School, graduating with a J.D. with highest honors in 2005.  After graduating, Barker clerked for Judge John Walker on the U.S. Court of Appeals for the Second Circuit and then for Judge William Bryson on the U.S. Court of Appeals for the Federal Circuit.

After his clerkships, Barker joined the U.S. Department of Justice Criminal Division as a Trial Attorney.  He worked there until 2011.  During that time, he had a short stint as a Special Assistant United States Attorney on detail with the U.S. Attorney’s Office for the Eastern District of Virginia.

In 2011, Barker left the government to join the Houston office of Yetter Coleman LLP as an associate.  In 2014, Barker was named a partner at the firm.

In 2015, Barker was hired by Texas Attorney General Ken Paxton to be Deputy Solicitor General for the State of Texas, working under Solicitor General Scott Keller.  Barker continues to serve in that position today.

History of the Seat

The seat Barker has been nominated for opened on May 15, 2015, with Judge Leonard Davis’ move to senior status.  Although the seat opened with 19 months left in the Obama Administration, no nominee was ever put forward to fill the vacancy, possibly due to an inability to reach an agreement with Texas’ Republican Senators, John Cornyn and Ted Cruz.

In February 2017, Barker applied for a judgeship with the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.[1]  He interviewed with the Committee in March and then with Cornyn and Cruz in May.  Barker’s name was submitted to the White House in July 2017.[2]  After interviews with the White House Counsel’s Office and the Department of Justice, Barker was nominated on January 23, 2018.

Legal Experience

Other than his clerkships, Barker has held three primary legal positions: as a trial attorney with the Department of Justice; in private practice with Yetter Coleman; and as Deputy Solicitor General for Texas.  In these positions, Barker has practiced extensively in state and federal courts.

Department of Justice

From 2007 to 2011, Barker worked in the appellate section of the Criminal Division of the Department of Justice.[3]  In this capacity, Barker argued 12 criminal appeals in the federal appellate courts, generally defending convictions in federal criminal actions,[4] although, in some cases, Barker also appealed from adverse lower court rulings.[5]

In 2009, Barker detailed at the U.S. Attorney’s Office for the Eastern District of Virginia, where he was the lead prosecutor against three MS-13 gang members who were subsequently convicted of conspiracy and racketeering.[6]

Yetter Coleman

From 2011 to 2015, Barker worked as an associate and a partner at Yetter Coleman LLP.  In this role, Barker primarily carried a civil litigation caseload, including representing Bear Ranch, a beef producer, in a contract dispute,[7] and defending Oklahoma Gas & Electric Co. in a multidistrict patent infringement suit.[8]

Other than his civil docket, Barker also represented a Nepali immigrant seeking political asylum in the United States after facing torture from Maoists in Nepal.[9]  Barker was able to reverse the Board of Immigration Appeals decision denying his client asylum.[10]

Deputy Solicitor General

Since 2015, Barker has served as Deputy Solicitor General in Texas.  In this capacity, Barker has participated in a number of controversial cases.

For example, Barker was on the legal team, alongside Keller and Fifth Circuit nominee Andy Oldham, that sought to enjoin the Obama Administration’s DAPA initiative.  Barker succeeded in getting a nationwide injunction against the initiative from U.S. District Judge Andrew Hanen and in defending that injunction before the Fifth Circuit and the U.S. Supreme Court.[11]  The Texas legal team was able to convince Judge Hanen that Texas suffered an injury from the Obama Administration’s prioritization of certain deportations and that the DAPA initiative violated the separation of powers.[12]

In another controversial case, Barker defended Texas’ Voter ID law, which was challenged as an unconstitutional poll tax, being passed with a discriminatory purpose and effect, and creating a substantial burden to the right to vote.[13]  The law has been struck down by Judge Nelva Gonzalez Ramos, whose injunction has been stayed pending appeal.[14]

Barker has also represented the State of Texas as intervenors in the suits over President Trump’s executive orders restricting entry into the United States for travelers from seven predominantly Muslim countries, seeking to defend the constitutionality of the orders.[15]


As a law student, Barker authored an article discussing the statutory damages award for copyright infringement.[16]  In the article, Barker argues that the aggregation of statutory damages across many instances of misconduct creates a penalty “so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence.”[17]  He notes that this aggregation becomes particularly severe when imposed against those engaged in unauthorized file sharing, such as through sites such as Napster.[18]

Barker argues in the note that, because the statutory damages scheme under the Copyright Act is “punitive” in nature, that it is limited by the Substantive Due Process Clause, as interpreted under BMW of North America, Inc. v. Gore.[19]  He also notes that a defendant who illegally shares multiple files is not proportionally more culpable than a defendant who illegally shares one.[20]  As such, Barker endorses a rethinking of the statutory damages scheme and suggests the imposition of “much smaller penalties across a larger spectrum of the file-sharing public.”[21]

Overall Assessment

Given both his youth and his involvement in the controversial DAPA, voter id, and travel ban cases, it is unlikely that Barker will be considered a consensus nominee.  Barker’s critics will argue that, given Barker’s prominent role in “political” litigation at the Texas Solicitor General’s Office and his support for the travel ban, that this is an instance of the Trump Administration rewarding an unqualified supporter with a federal judgeship.

However, Barker boasts an impressive resume and can point to several factors in his favor.  Firstly, having graduated law school in 2005, Barker meets the ABA’s criteria of twelve years of practice.  Secondly, Barker has clerked for judges appointed by Republican and Democratic presidents.  Thirdly, Barker worked at the Department of Justice under both the Bush and the Obama Administration, defending their legal positions in court.  Finally, Barker can point to his defense in the Sharma case to counter suggestions that he is anti-immigrant.

Barker’s law review note raises an additional point.  While it may not be representative of his current views, the article demonstrates a strong concern with the proportionality of punishment and endorses the active use of the Substantive Due Process Clause to limit civil (and criminal) penalties that are excessive.  If Barker maintains these views, it is possible that he may yet end up endearing himself to liberals and disappointing many conservatives on the bench.

[1] Sen. Comm. on the Judiciary, 115th Cong., J. Campbell Barker: Questionnaire for Judicial Nominees 35.

[2] See id.

[3] See id. at 14.

[4] See, e.g., United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011) (reversing denial of motion to suppress).

[5] See, e.g., United States v. Crespo-Rios, 645 F.3d 37 (1st Cir. 2011) (reversing grant of motion to suppress).

[6] United States v. Gil Bernandez, No. 1:09-cr-216 (E.D. Va.), aff’d, 439 Fed. App’x. 209 (4th Cir. 2011), cert. denied, 565 U.S. 1160 (2012).

[7] See Bear Ranch, LLC v. Heartbrand Beef, Inc., No. 6:12-cv-14 (S.D. Tex.).

[8] See Transdata, Inc. v. Oklahoma Gas & Electric Co., No. 5:11-cv-1032 (W.D. Okla.).

[9] See Sharma v. Holder, 729 F.3d 407 (5th Cir. 2013).

[10] See id. at 413.

[11] See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an evenly divided court, 136 S. Ct. 2271 (2016), reh’g denied, 136 S. Ct. 2271 (2016).

[12] See id.

[13] See Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015).

[14] See Veasey v. Abbott, 265 F. Supp. 3d 684 (S.D. Tex. 2017), order stayed pending appeal by 870 F.3d 387 (5th Cir. 2017).

[15] See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017).  See also Int’l Refugee Assistance Project v. Trump, 2018 U.S. App. LEXIS 3513 (4th Cir. 2018) (en banc); State of Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).

[16] J. Cam Barker, Grossly Excessive Penalties in the Battle Against Illegal File Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525 (Dec. 2004).

[17] Id. at 527.

[18] See id.

[19] Id. at 538 (citing 517 U.S. 559 (1996)).

[20] Id. at 553.

[21] See id. at 559.