Eighth Circuit

Jonathan Kobes – Nominee for the U.S. Court of Appeals for the Eighth Circuit

So far, President Trump’s nominees to the Eighth Circuit have included a state supreme court justice with an extensive judicial and academic record, a long-serving federal judge, and a private attorney with a lengthy paper trail.  By contrast, his latest nominee, Jonathan Kobes, a Senate staffer with a varied resume, has virtually no writings or opinions revealing his views on the law.

Background

Jonathan Allen Kobes was born in Sioux City, Iowa, on August 25, 1974.  Kobes attended Dordt College, a small Christian liberal arts school based in Sioux Center, Iowa.  After graduating in 1996, Kobes spent a year in Chicago working for Zurich Kemper Investments.[1]  He then attended Harvard Law School and clerked for Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.

After his clerkship, Kobes spent a year working as an Honors Attorney with the Central Intelligence Agency (CIA).  He then became a federal prosecutor with the U.S. Attorney’s Office for the District of South Dakota, working there until 2005.[2]  Kobes then joined the Sioux Falls firm Murphy, Goldammer & Prendergast LLP as an Associate.

In 2008, Kobes transitioned to be Counsel at POET LLC, a biofuel company based in Sioux Falls.[3]  In 2012, he shifted to DuPont Pioneer, a seed manufacturer, serving as Senior Regulatory Counsel.  Finally, in 2013, he shifted, again, to Raven Industries, a manufacturer of agricultural products, to be Director of Corporate Compliance.[4]  In that position, Kobes worked for former Democratic Representative Stephanie Herseth Sandlin.[5]

In 2014, after South Dakota Governor Mike Rounds was elected to the U.S. Senate, Rounds hired Kobes to be his Deputy Chief of Staff and his Counsel.[6]  He currently works for Rounds as his General Counsel.

History of the Seat

Kobes has been nominated to replace his former boss, Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.  According to Kobes, he was contacted directly by the White House to gauge his interest in an appointment to the Eighth Circuit (before Judge Wollman’s move to senior status was public).[7]

After confirming his interest, Kobes interviewed with the White House in November 2017.  Kobes was formally nominated on June 11, 2018.[8]

Political Activity

Working as a staffer for Rounds, Kobes is participating in a political position.  However, setting his relationship to Rounds aside, Kobes does not have an extensive political history.  Kobes, a Republican, volunteered for both Rounds’ senate campaign and the campaign of Republican Secretary of State Shantel Krebs.[9]  Kobes also served as a Republican Precinct Committeeman in Sioux Falls.

Kobes served as a member of the Federalist Society for Law & Public Policy from 1999 to 2004 and of the National Rifle Association from 2013 to 2014, but is not presently a member of either organization.[10]

Legal Experience

Kobes’ first legal position out of law school was clerking on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Kobes worked for the CIA in Washington D.C, working on maintaining the security of classified information in pending litigation.[11]

In 2003, Kobes joined the U.S. Attorney’s Office for the District of South Dakota as a criminal prosecutor.  During his tenure, Kobes primarily focused on prosecuting cases coming out of the Pine Ridge Indian Reservation.[12]  For example, Kobes prosecuted a Pine Ridge School student for making a bomb threat to blow up the school.[13]  The student argued on appeal that he could not be federally prosecuted for making an intrastate phone call, but the Eighth Circuit sided with Kobes, holding that even intrastate phone calls could be prosecuted as long as they were connected to interstate phone lines.[14]

In 2005, Kobes joined Murphy, Goldammer & Prendergast LLP as an associate, working in civil litigation.  While at the firm, Kobes represented a group of crisis pregnancy centers in seeking to intervene to uphold a South Dakota law requiring the physician to read every woman seeking an abortion a predetermined script and to give them the contact information for a pregnancy help center.[15]  Kobes successfully intervened in the suit but the law was enjoined by Judge Karen Schreier upon suit from Planned Parenthood.[16]  Kobes also participated in the defense of the Corporation of the President Church of Jesus Christ of Latter-Day Saints against a suit by a man who was sexually abused by a missionary of the church.[17]

From 2008 to 2014, Kobes has worked in-house, shifting between three different companies.  From 2008 to 2012, Kobes worked at POET, managing general litigation, as well as handling policy and regulatory issues.[18]  In 2012, Kobes worked on handling legal issues around the sale and export of genetically engineered farm products at DuPont Pioneer.[19]  From 2013 to 2014, Kobes worked at Raven Industries, handling compliance and regulatory work primarily.[20]

Since 2014, Kobes has worked for Rounds in the U.S. Senate.  As Rounds’ General Counsel, Kobes manages the legal, ethics, and compliance of the Office.[21]  He also manages a legislative portfolio dealing with judiciary issues, civil rights, and immigration.[22]

Overall Assessment

Of the three nominees that Trump has put on the Eighth Circuit so far, two have been fairly controversial, while one has sailed through with barely a ripple.  So far, it is unclear if Kobes will follow the Ericksen model or the Grasz one.

Unlike Stras and Grasz (the more controversial Eighth Circuit picks), Kobes does not have a long paper trail on controversial issues.  He has no academic writings, has not directly litigated any hot-button cases, and does not have any current ties to contentious legal groups.  Furthermore, as a legislative staffer, Kobes, presumably, has built up a residual level of trust among his colleagues: trust that can be leveraged in the confirmation process.

On the other hand, Kobes’ involvement in the South Dakota Planned Parenthood suit may raise questions about his commitment to pro-choice precedent, while his previous involvement with the National Rifle Association and the Federalist Society may suggest to critics that Kobes will bend to the organizations’ legal positions on the bench.

Additionally, Kobes may receive criticism for having more limited litigation experience as compared to other nominees.  By his own admission, Kobes rarely appeared in court during his time in-house.  As such, Kobes’ litigation experience is limited to the six years he spent working as a federal prosecutor and at Murphy, a time that covers only six trials and even fewer appeals.[23] While appellate litigation experience is not required for a judicial nominee, the lack of it is particularly notable here given that Kobes does not have compensating academic experience.  However, Kobes’ supporters may note that he will bring regulatory, compliance, and legislative experience to the bench, skills that other judges don’t have.

Looking at Kobes’ record as a whole, he remains a favorite for confirmation.  However, given his limited paper trail, senators will likely push Kobes to elucidate his legal views during the confirmation process.  Kobes’ answers to these questions will give an indication of the kind of judge he will be.

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

[2] Id.

[3] Id.

[4] Id. at 12.

[5] David Montgomery, Rounds Hires Campaign Manager as Chief of Staff, Argus Leader, Dec. 18, 2014, https://www.argusleader.com/story/davidmontgomery/2014/12/18/rounds-skjonsberg-staff/20585699/.  

[6] See id.

[7] See Kobes, supra n. 1 at 23-24.

[8] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Nominees, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 11, 2018) (on file at www.whitehouse.gov/the-press-office).

[9] See Kobes, supra n. 1 at 10.

[10] See id. at 6

[11] See id. at 13.

[12] Id. 

[13] United States v. R.J.S. Jr., 366 F.3d 960 (8th Cir. 2004)

[14] Id. 

[15] Planned Parenthood Minnesota et al. v. Rounds, 2006 U.S. Dist. LEXIS 72778 (D.S.D. Oct. 4, 2006).

[16] See id. at *2.

[17] Joseph v. Corp. of the Pres. Church of Jesus Christ of Latter-Day Saints, 2008 U.S. Dist. LEXIS 7767 (D.S.D. Jan. 31, 2008).

[18] See Kobes, supra n. 1 at 13.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See Kobes, supra n. 1 at 15.

0 CommentsLeave a comment

L. Steven Grasz – Nominee to the U.S. Court of Appeals for the Eighth Circuit

L. Steven “Steve” Grasz has a long history of partisan political advocacy, including his current stint working in both litigation and lobbying.  The well-connected attorney is also notably the first Trump nominee to get a unanimous “Not Qualified” rating from the American Bar Association (ABA).  Even setting the rating aside, Grasz’ strong conservative views, and his long record of expressing such views virtually guarantee him a tough confirmation.

Background

Leonard Steven Grasz was born in 1961 in Chappell, Nebraska.  After getting a B.A. from the University of Nebraska at Lincoln in 1984, Grasz moved to Washington D.C. to work as a Legislative Assistant for Republican Congresswoman Virginia Smith.  After a year in Washington, Grasz returned to Nebraska for law school, joining the University of Nebraska College of Law.  In 1986, Grasz took a leave of absence from law school to work as the State Campaign Coordinator for Don Stenberg, who was running for Attorney General of Nebraska.  After Stenberg lost the primary to incumbent Robert Spire, Grasz returned to law school.  Grasz graduated Order of the Coif in 1989.

After graduating, Grasz joined the Omaha office of Kutak Rock LLP. as an associate.  In 1991, after the election of Don Stenberg as Nebraska Attorney General, Grasz was hired to be Chief Deputy Attorney General.  Grasz held this position throughout Stenberg’s tenure, departing in 2002 as Stenberg’s final term wound down.

In 2002, Grasz joined the Omaha office of Husch Blackwell LLP. as Of Counsel.  In 2005, Grasz was made a Partner at the firm, and in 2013, he was named a Senior Partner.  Grasz currently serves as a Senior Partner in their office.

From August 2015, Grasz has served on the Board of the Nebraska Family Alliance, a non-profit organization that advocates for a traditional conception of family, marriage, and “foundational principles.”  The Nebraska Family Alliance takes on a number of issues, from combatting human trafficking, to fighting policies by the Nebraska State Activities Association to make sports more welcoming to transgender and gender-non-conforming students.  Grasz also served for two years as Assistant Secretary for Nebraskans for the Death Penalty, Inc., an organization seeking to overturn a legislatively imposed ban on the death penalty.

History of the Seat

Grasz has been nominated for a Nebraska seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat opened on June 30, 2017 with Judge William J. Riley’s move to senior status.  Riley, an appointee of President George W. Bush, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2014, but chose to remain active until June, announcing his retirement in December 2016.

In early 2017, Grasz expressed his interest in appointment to the Eighth Circuit to Nebraska Senators Deb Fischer and Ben Sasse.  On March 15, Grasz formally submitted an application to the Senators’ online judicial selection process.  Grasz was formally recommended for the vacancy on May 23, 2017, and was nominated on August 3rd, 2017.[1]

Political Activity

Grasz has a long history of involvement with the Republican party, from his service on the campaign of Republican Don Stenberg back in 1986 to his current membership as Legal Counsel and Treasurer for Republican Governor Pete Ricketts’ election committee.  Additionally, Grasz has contributed to the campaigns of numerous Republicans including Stenberg, former Congressman Lee Terry, the Nebraska Republican Party, and the Presidential Campaign of Mitt Romney.[2]

Additionally, Grasz served as General Counsel for the Nebraska Republican Party from 2007-2013, and served as Legal Counsel to the mayoral campaigns of Republican Jean Stothert.

Legal Experience

Grasz’ first legal position out of law school was conducting legal research on commercial civil litigation issues as an Associate at Kutak Rock LLP.  After moving to the Nebraska Attorney General’s office in 1991, Grasz had two primary roles: to provide legal guidance through writing Attorney General Opinions; and to represent the State of Nebraska in state and federal litigation.

One of the most significant cases that Grasz participated in as Chief Deputy Attorney General was Stenberg v. Carhart.  This suit involved a challenge to Nebraska’s ban on late-term abortions involving particular techniques.  Dr. LeRoy Carhart, an abortion provider specializing in late-term abortions, brought suit against the law, and Grasz was the chief counsel defending the law.  U.S. District Judge Richard Kopf,[3] the Eighth Circuit Court of Appeals,[4] and the U.S. Supreme Court in a 5-4 vote all struck down the statute,[5] ruling against Grasz’s position.  Grasz argued the case at the trial and appellate levels, and briefed at the Supreme Court, where Stenberg handled the oral argument.

Grasz also participated in other controversial cases.  In 2001, he successfully argued that allowing a woman to adopt her lesbian partner’s biological child would be an “end-run” around Nebraska’s ban on same-sex marriage.[6]  In another case, Grasz argued against employees seeking accommodation for their clinical depression under the Americans with Disabilities Act (ADA), noting “[i]t’s not a reasonable accommodation for the state to pay them for not getting any work done.”[7]  He also led the state’s first suit prosecuting farmers under I-300, an initiative prohibiting non-family farms from owning land or livestock for farming or ranching.[8]

Grasz also occasionally challenged the constitutionality of Nebraska statutes and ballot provisions, including a successful challenge against Nebraska’s ban on ‘soft money’ in political financing.[9]

As Chief Deputy Attorney General, Grasz was occasionally called upon to offer opinions on Nebraska law.  In one opinion, Grasz noted that the Defense of Marriage Act did not protect Nebraska from being forced to recognize same sex marriages, and suggested that a Nebraska ban on same sex marriage was necessary.[10]  In another opinion, Grasz reversed a 1973 Attorney General opinion that held that the State Constitution prohibited the leasing of air rights to a private entity.[11]  This reversal cleared the way for construction of a monumental arch over I-80.[12]  This opinion drew sharp criticism from State Senator Chris Beutler, who questioned its objectivity and noted “the handling of the entire question by the Attorney General’s office was unprofessional.”[13]  In another instance, Grasz refused to approve the Nebraska Board of Education’s standards, noting that presenting evolution as a fact, rather than a theory could violate student’s free exercise rights.[14]

In 2003, Grasz left the Attorney General’s office to re-enter private practice at Husch Blackwell LLP.  As a private practice attorney, Grasz has split his time between litigation and government relations (lobbying) on behalf of firm clients.  On the litigation side, Grasz notably led a challenge to the constitutionality of I-300, which he had defended as a government attorney.[15]  Grasz also represented pro-capital punishment advocates in defending the validity of a ballot initiative seeking to reinstate capital punishment in Nebraska.[16]

Speeches and Writings

Over the course of his legal career, Grasz has made public statements on the law both in his official capacity and as a private citizen.  Below, we have summarized some of the key areas where Grasz has built a record.

Reproductive Rights (& Carhart)

Grasz is a strong opponent of late-term abortions, and has been critical of the application of the Roe and Casey framework to their regulation.  In 1999, Bush authored a paper titled “If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being.”[17]  The paper, draws a distinction between termination of an “unborn” fetus, which is protected by Roe and “partial-birth abortion,” which is equated to infanticide.[18]  While acknowledging that this distinction is set apart from the “viability” standard established in Roe, Grasz urges courts to hold that the “partially-born” are protected as persons under the Fourteenth Amendment.[19]  Grasz’ paper drew sharp criticism from U.S. District Judge Richard Kopf, himself a Republican, who authored a response noting:

“I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry.”[20]

Judicial Selection in Nebraska

In 2012, Grasz authored a report for the Federalist Society on “Judicial Selection in Nebraska.”[21]  The report is sharply critical of the current merit-selection system that Nebraska has in place, arguing that the system magnifies the influence of groups such as the ACLU, Planned Parenthood and the Trial Lawyers’ Association (although it does not cite any sources for this claim).[22]  The report also criticizes the Nebraska model for limiting selection membership by party, and by treating independents on par with the major parties even though only 18% of Nebraskans are registered independents.[23]  Finally, the Report offers a series of reforms intended to improve the merit selection process, including broadening the base of candidates to the nominating commission, and reducing the influence of the ABA.[24]

Regulating Visual Depictions of Child Nudity

In 1998, Grasz co-authored a law review article titled “Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children.”[25]  While acknowledging that lower courts have mostly held the opposite, the article argues that the First Amendment does not protect the nude depictions of children outside the context of pornography to the same extent that adults are protected.[26]  The article also offers model language for lawmakers to follow to craft a constitutional statute that would regulate nude depictions of minors.[27]

Letters to the Editor

Throughout his life, Grasz has authored numerous letters to the editor detailing his political views.  In one, Grasz criticizes EPA regulations as “outrageous and unnecessary” and notes that “we are going to file as many suits in as many courts as necessary” to invalidate the criticized regulations.[28]  In another, Grasz criticizes Chief Justice Roberts for voting to preserve the Individual Mandate in the Affordable Care Act, noting that the decision “ushered in the ultimate transfer of limitless power to the federal government.”[29]

ABA Rating

On October 30, 2017, the American Bar Association Standing Committee on the Federal Judiciary rated Grasz “Not Qualified” for a seat on the Eighth Circuit by a unanimous vote.  The accompanying report by Pamela Bresnahan details the process of the evaluation and outlines three main reasons for the rating:

First, Bresnahan notes that concerns were raised based on Grasz’ views of stare decisis.  Specifically, Grasz’ article on Partial-Birth Abortion was considered a call to judicial activism by the Committee.

Second, Bresnahan adds that several concerns were raised about Grasz’ willingness to separate his personal views from his role as a judge.  Bresnahan noted that several of the attorneys who had worked with Grasz indicated that Grasz was not “open-minded” and that bias would infect his rulings.

Finally, Bresnahan notes that many of the individuals interviewed described Grasz as “gratuitously rude” in their personal interactions.

Bresnahan also makes two additional points worth noting.  First, she notes that several attorneys seemed to be omitted in his Judiciary Questionnaire.  Second, she notes that many of the interviewees were reluctant to participate, given Grasz’ close-connections within the Nebraska Republican Party.

Overall Assessment

Until this week, the Grasz nomination had proceeded fairly quietly, for several reasons.  First, unlike other nominees, including Barrett, Larsen, Eid, and Bibas, Grasz came from a state with two Republican senators, vitiating the need for blue slip lobbying.  Second, unlike the previous set of nominees, Grasz was not an academic, and thus, did not have the same level of paper trail of controversial ideas.  In fact, before last week, the main criticism of Grasz was based on his service on the Board of the Nebraska Family Association.[30]

However, that has all changed with the ABA rating release yesterday.  Now, liberals are pushing back aggressively against Grasz, arguing that he is unqualified for the bench, while conservatives, such as Sen. Ben Sasse,[31] are attacking the ABA as a liberal interest group.  Regardless of your views of the ABA’s reasoning (and its bias), there is plenty in Grasz’ record to raise concerns among senators.

First, it can be argued that Grasz’ writings show an inclination towards bending the law to serve policy functions.  Grasz’ piece on Partial Birth Abortion has already been criticized by the well-respected Kopf for endorsing judicial activism.  Furthermore, Grasz’ argument that visual representations of child nudity are not protected by the First Amendment, when most courts have held the opposite, suggests a bent towards legal reasoning focused on policy results rather than prior precedent.  While such thinking is acceptable as an advocate, it is concerning on the bench.

Second, Grasz’ tenure at the Nebraska Attorney General’s office suggests a tendency to interpret the law in accordance with political preferences.  Notably, Grasz’ conclusion that teaching evolution as fact violates the free exercise rights of students is at odds with the Supreme Court’s ruling to the contrary in Edwards v. Aguillard.  Furthermore, Grasz’ willingness to overturn a prior Attorney General opinion to enable the construction of an arch on a Nebraska highway has already drawn criticism from state officials.[32]

Overall, taking Grasz’ career, his writings, and his advocacy together lends a picture of a brilliant but deeply conservative advocate.  However, it also raises legitimate questions about Grasz’ willingness to base his rulings solely on the law as written, rather than the law as conservatives may wish it to be.  Grasz’ confirmation hearing tomorrow will better determine if such concerns are well-founded or not.

[1] Press Release, White House, President Donald J. Trump Announces Sixth Wave of Judicial Candidates and Fifth Wave of U.S. Attorney Candidates (Aug. 3, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=grasz&order=desc&sort=D (last visited Oct. 30, 2017).  

[3] Carhart v. Stenberg, 11 F. Supp. 2d 1134 (D. Neb. 1998).

[4] Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999).

[5] Stenberg v. Carhart, 530 U.S. 914 (2000).

[6] Margaret Reist, Gay Couple Battles Adoption Law, Lincoln Journal Star, Aug. 5, 2001.

[7] Stephanie Armour, Disabilities Act Abused? Law’s Use Sparks Debate, USA Today, Sept. 25, 1998.

[8] Art Hovey, State to Sue to Enforce Farming Law: Says Company Too Far-Flung to Be Family, Lincoln Journal Star, July 15, 1999.

[9] Butch Mabin, ‘Soft Money’ Law Defended Case Goes to Supreme Court, Lincoln Journal Star, Sept. 29, 1999.

[10] Same-Sex Marriage – Impact of Baehr v. Lewin and the Defense of Marriage Act on Nebraska Law, Neb. Op. Att’y Gen. No. 96090 (December 30, 1996).  See also Butch Mabin, State May Need Own Ban on Same-Sex Marriages, Lincoln Journal Star, Dec. 31, 1996.

[11] Legality of Leasing State Right of Way Space Above Interstate 80 for Development of an Archway, Neb. Op. Att’y Gen. No. 97048 (September 16, 1997).

[12] Fred Knapp, I-80 Archway Clears Hoop with Decision State Allowed to Lease Air Rights, Lincoln Journal Star, Sept. 17, 1997.

[13] Association Press and Journal Star Writers, Opinion on Archway Questioned, Lincoln Journal Star, Sept. 18, 1997.

[14] Kara G. Morrison, Evolution v. Creation: Nebraska, Others [sic] States Still Struggle With Issues, Lincoln Journal Star, Sept. 23, 1999.

[15] Art Hovey, Officials Answer I-300 Suit, Lincoln Journal Star, Jan. 29, 2005.

[16] Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).

[17] L. Steven Grasz, If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being, 33 Creighton L. Rev. 23 (Dec. 1999).  

[18] Id. at 26-27.

[19] Id. at 33.

[20] Hon. Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial Birth Abortion and Word Games – A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11, 12 (Dec. 2001).

[21] L. Steven Grasz, Judicial Selection in Nebraska,  The Federalist Society, April 2012, https://docuri.com/download/grasznebraska2012wp_59bb8560f581719a3172a06f_pdf.  

[22] Id. at 6.

[23] Id.

[24] Id. at 7, 10-11.

[25] L. Steven Grasz, Patrick J. Pfatlzgraff, Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children, 71 Temple L. Rev. 609 (Fall 1998).

[26] Id. at 610-11.

[27] Id. at 629-32.

[28] Steve Grasz, A Cheap Shot, Lincoln Journal Star, July 23, 1999.

[29] Steve Grasz, Local View: Roberts Jeopardized Legitimacy of High Court, Lincoln Journal Star, Jul. 9, 2012, http://journalstar.com/news/opinion/editorial/columnists/local-view-roberts-jeopardized-legitimacy-of-high-court/article_e6de9051-3758-5c30-af0b-3659f94fbecd.html.  

[30] Zoe Tilman, One of Trump’s Judicial Nominees Sits on the Board of a Group that Defends “Conversion” Therapy, Buzzfeed, Sept. 25, 2017, https://www.buzzfeed.com/zoetillman/one-of-trumps-judicial-nominees-sits-on-the-board-of-a?utm_term=.hvAGblQoOB#.yx37MgA89b.  

[31] Seung Min Kim, ABA Deems Another Trump Judicial Nominee ‘Not Qualified’, Politico, Oct. 30, 2017, https://www.politico.com/story/2017/10/30/aba-trump-judicial-nominee-not-qualified-244327.  

[32] See supra n. 13.

2 CommentsLeave a comment

Judge Ralph Erickson – Nominee to the U.S. Court of Appeals for the Eighth Circuit

Judge Ralph Erickson has served on the bench in some capacity for 24 years, and has served as a federal trial judge for 14 of those years.  As such, he is a fairly experienced and safe choice by the Trump Administration for the Eighth Circuit.

Background

Ralph Robert Erickson was born in in the small town of Thief River Falls, Minnesota in 1959.  After getting a B.A. at Jamestown College (now the University of Jamestown), Erickson attended the University of North Dakota School of Law, graduating with distinction in 1984.  After graduating, Erickson was hired as an associate at Ohnstad Twichell P.C., working on family law and municipal court matters.  Alongside that position, Erickson also served as a prosecutor for the cities of West Fargo and Riverside, North Dakota.

In 1992, Erickson left these positions to run for a seat in the North Dakota state legislature while setting up a private practice.  Erickson lost the race for a seat in the North Dakota House of Representatives, but was appointed as a County Magistrate a year later.  In 1994, Erickson was appointed as a County Judge for a four county district, and in 1995, he became a District Judge for the East Central Judicial District, based in Fargo.

In September 2002, Erickson, then 43, was nominated by President George W. Bush for a lifetime appointment on the U.S. District Court for the District of North Dakota.  Erickson was unanimously confirmed by the U.S. Senate on March 12, 2003.[1]  Erickson currently serves in that capacity.

Erickson has often spoken out about his personal struggles with alcohol.  In a 2007 interview with the University of North Dakota Law School, Erickson described overcoming alcoholism as “one of his greatest strengths.”[2]  He specifically noted:

“I have an insight into personal failures that I would not have if I had not had this particular problem, and as a judge it allows me to refrain from judging other people.”[3]

Erickson is also a frequent speaker at Alcoholics Anonymous, assisting others with finding sobriety.

History of the Seat

Erickson was tapped for a North Dakota seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat was vacated by Judge Kermit Edward Bye, an appointee of President Bill Clinton.  Bye moved to senior status on April 22, 2015, and President Obama nominated Jennifer Klemetsrud Puhl, a federal prosecutor, to fill the vacancy.[4]  Puhl, who had the support of Sen. Heidi Heitkamp (D-ND) and Sen. John Hoeven (R-ND), received a hearing on June 21, 2016,[5] and was unanimously moved to the floor on July 14, 2016.  However, Puhl’s nomination ran into a blockade on confirmations imposed by Senate Majority Leader Mitch McConnell (R-KY), and was never confirmed.

In December 2016, Erickson contacted Hoeven and Heitkamp expressing his interest in the vacancy.  After interviewing with the White House Counsel’s Office and the Department of Justice, Erickson was formally nominated on June 7, 2017.[6]  Like Puhl, Erickson has the support of both Hoeven and Heitkamp.[7]

Political Activity

Before becoming a judge, Erickson was fairly active in the North Dakota Republican Party.  In addition to donating to the party,[8] Erickson served as an Executive Committee member, a Precinct Chair, and a member of the State Republican Committee at various times.  He ceased participation in such roles upon his selection as a judge.

Legal Career

Before becoming a judge, Erickson worked as a part-time prosecutor, prosecuting small traffic and misdemeanor cases between 1984 and 1991.  Erickson also practiced family law and landlord tenant matters, trying approximately thirty five cases.  During this time, Erickson handled the unsuccessful appeal of a construction worker who suffered a heart attack due to workplace stress.[9]  The North Dakota Supreme Court ruled against Erickson’s client 3-2.  Erickson also represented personal injury plaintiffs, including a senior citizen who was struck by a fully loaded luggage cart while on a bus tour of New England,[10] and a single father who was struck by a pickup truck while riding his motorcycle.[11]

Jurisprudence

Erickson has served as a federal trial judge for approximately fourteen years.  During this time, he has established a reputation as a fair, middle of the road judge.[12]  A look at the 500+ orders and decisions Erickson has handed down suggests certain patterns:

Deference to Jury Determinations of Facts

While many federal judges continue to use summary judgment to maintain control of their dockets, Erickson has shown an unwillingness to decide factual disputes reserved for the jury.  As such, he has frequently denied summary judgment on motions of both plaintiffs[13] and defendants.[14]  In one case, Erickson notes

“The parties have not had an opportunity to conduct discovery with regard to any of the claims; therefore, summary judgment is premature as to all claims.”[15]

Similarly, Erickson is generally deferential to jury verdicts, regardless of whether they support the plaintiff or the defendant.  In one case, Erickson rejected a defendant’s motion to overturn a jury verdict for the plaintiff, noting that the verdict was “reasonable based on the substantial evidence provided at trial.”[16]

Narrow Enforcement of Criminal Procedural Protections

While Erickson has generally ruled against criminal defendants raising Fourth, Fifth, and Sixth Amendment claims, he has, under narrow circumstances, shown a willingness to support their claims.  

While sitting by designation on the Eighth Circuit, Erickson held that a defendant’s rights were not violated where he was committed for a mental competency evaluation without being present at the hearing.[17]  Specifically, Erickson noted that while the decision could constitute a trial error, such error was harmless.[18]

However, in another case, Erickson ruled in favor of a defendant seeking to avoid having his request for a lawyer used as an inference of guilt.[19] 

Similarly, while Erickson has generally rejected motions to suppress based on Fourth Amendment violations,[20] he suppressed evidence in a case where the defendant’s consent to search her hotel room was coerced.[21]

Willingness to Reverse Criminal Convictions

While Erickson has affirmed most challenges to criminal convictions before him,[23] he has also shown a willingness to overturn convictions obtained through violations of defendants’ rights.

For example, in one case, Erickson found that a defendant had been convicted despite the failure of the government to provide appropriate Brady evidence.[24] 

Perhaps no case better demonstrates Erickson’s willingness to overturn convictions than U.S. v. Williams.  Alphonso Williams was convicted of participating in a drug trafficking conspiracy despite the fact that “Williams was never seen selling drugs… buying drugs…using drugs…[or] discussing drugs.”[25]  In granting Williams’ motion for acquittal, Erickson describes a jury process that was tainted by race, noting that this was “a trial so tainted and a result so perverse that to allow the verdict to stand would render all of us insecure as citizens.”[26]  Erickson also lambasts his own role as trial judge, stating:

“Rulings that I made and oversight I failed to provide created an atmosphere in which a jury was simply unable to avoid an elephant in the courtroom—an elephant that should never have been allowed in the first place. Had the court made the correct rulings and had the court provided appropriate instructions and guidance, I have no doubt the verdict would have been different.”[27]

Ultimately, Erickson’s decision was partially reversed by the Eighth Circuit.[28]

Reversals

In the fourteen years he has been a federal judge, Erickson has been reversed approximately thirty times, a reasonable rate of reversal.  Many of these have reversed Erickson’s rulings in favor of criminal defendants,[29] although a handful of reversals are based on errors that prejudiced defendants.[30]  Notably, the Eighth Circuit reversed Erickson’s granting of a judgment of acquittal in Williams, although it affirmed his decision to grant Williams a new trial.[31]   

In one key case, Erickson found that police officers who shot a suicidal man were not entitled to qualified immunity, as there was a genuine dispute of material fact involving their actions.[32]  However, the Eighth Circuit reversed, holding that, based on the facts of the case, the officers’ actions were objectively reasonable.[33]

Judicial Controversies

Of the 500+ plus cases that Erickson has presided over, three in particular are likely to draw attention:

United States v. Rodriguez

Rodriguez was the first death penalty trial in North Dakota since 1913.  The defendant was charged with kidnapping, sexually assaulting, and murdering Dru Sjodin.  Erickson managed both the trial and penalty proceedings, ultimately sentencing Rodriguez to the death penalty.[34]

Erickson’s decision was appealed to the Eighth Circuit, who affirmed the death sentence.[35]  However, Judge Melloy dissented, arguing that improper arguments by the prosecutors during the penalty trials required reversal of the death sentence.[36] 

North Dakota v. EPA

This case involved a challenge to an Environmental Protection Agency (EPA) Rule that broadened the definition of “Waters of the United States” under the Clean Water Act to ensure that small streams and wetlands were also protected.[37]  Erickson found that the EPA’s rule was “arbitrary and capricious” and violated the Administrative Procedure Act (APA).[38]

Erickson’s ruling drew sharp criticism at the time,[39] and may be revived to suggest a prejudice against environmental groups.

United States v. Martinez

In this case, Erickson’s conduct was called into question by a defendant he sentenced.  Erickson sentenced Martinez to life in prison after his guilty plea on a trial involving a cartel killing.  However, Martinez challenged the sentence, arguing that his attorney, Thomas Dickson, and Erickson had an improper social relationship, and that Dickson had assured him that Erickson would give him a lower sentence.

After an evidentiary hearing, Judge Jeffrey Viken rejected Martinez’s claims and found that “no improper out-of-court or social relationship existed between Judge Erickson and Mr. Dickson and that they never discussed Mr. Martinez’s plea options outside of the record.”[40]

Overall Assessment

Erickson represents the kind of nominee Trump should nominate more often: experienced, well-respected, and judicially moderate.  With the exception of the rulings highlighted above, it is unlikely that any of Erickson’s judicial conduct will draw scrutiny.  Additionally, given Sen. Heitkamp’s strong support, it is likely that Erickson will be swiftly confirmed.

[1] Jeff Zent, Senate Confirms Confirms as Judge, Inforum, Mar. 14, 2003, http://www.inforum.com/content/senate-confirms-confirms-judge.

[2] The University of North Dakota School of Law, The Case of a Lifetime, UND Law, Summer 2007, 4, 7, https://law.und.edu/_files/docs/alumni/pdf/nd-law/07nd-law02.pdf.

[3] 

[4] Press Release, The White House Archives, President Obama Nominates Jennifer Klemetsrud Puhl to Serve on the United States Court of Appeals (Jan. 28, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office/2016/01/29/president-obama-nominates-jennifer-klemetsrud-puhl-serve-united-states).

[5] Patrick Springer, Senate Hearing Friendly for Appointment to Replace Fargo-Based Appeals Judge, The Bismarck Tribune, June 21, 2016, http://bismarcktribune.com/news/state-and-regional/senate-hearing-friendly-for-appointment-to-replace-fargo-based-appeals/article_5155ec6c-fe6e-5445-910a-6816105c8f51.html.

[6] AP, North Dakota Federal Judge Nominated for Appeals Court, US News, June 7, 2017, https://www.usnews.com/news/best-states/north-dakota/articles/2017-06-07/north-dakota-federal-judge-nominated-for-appeals-court.  

[7] See id.  See also Press Release, Office of Sen. Heidi Heitkamp, Heitkamp Statement on Nomination of Ralph Erickson to Serve as Judge on 8th Circuit Court of Appeals (June 7, 2017) (on file at https://www.heitkamp.senate.gov/public/index.cfm/2017/6/heitkamp-statement-on-nomination-of-ralph-erickson-to-serve-as-judge-on-8th-circuit-court-of-appeals).

[9] See Grace v. North Dakota Workers Comp. Bureau, 395 N.W.2d 576 (N.D. 1986).

[10] Sellie v. North Dakota Ins. Guaranty Assoc., 494 N.W.2d 151 (N.D. 1992).

[11] In re the Matter of Kyle Smith, 119 B.R. 714 (Bankr. D.N.D. 1990).

[12] See Patrick Springer, Trump Nominates U.S. District Judge in Fargo to Federal Appeals Court, The Bismarck Tribune, June 9, 2017, http://bismarcktribune.com/news/state-and-regional/trump-nominates-u-s-district-court-judge-in-fargo-to/article_401fa1b0-5d60-5ad5-a2c2-0b39d7675640.html (quoting Prof. Carl Tobias) (“[Erickson] enjoys a reputation for being a fair, mainstream jurist who possesses great judicial temperament.”).

[13] See, e.g., Associated Potato Growers, Inc. v. BNSF Ry. Co., corporation, No. 2:15-CV-11, 2016 WL 7495845, at *1 (D.N.D. May 12, 2016); Tioga Townhomes, LLC v. Auto-Owners Ins. Co., No. 4:14-CV-99, 2016 WL 7507792, at *1 (D.N.D. Jan. 4, 2016).

[14] See, e.g., Ewina v. Basic Energy Servs., Inc., No. 4:14-CV-157, 2016 WL 4717985, at *1 (D.N.D. Sept. 9, 2016); BNSF Ry. Co. v. Progress Rail Servs. Corp., No. 3:13-CV-80, 2016 WL 7496873, at *1 (D.N.D. Aug. 16, 2016); Max Bancorp, LLC v. Nat’l Bank of Harvey, No. 4:14-CV-152, 2016 WL 7496899, at *1 (D.N.D. May 25, 2016); Korinek v. FlexTM, Inc., No. 3:14-CV-74, 2015 WL 12591730, at *1 (D.N.D. Mar. 2, 2015).

[15] A & R Fugleberg Farms, Inc. v. Triangle Ag, LLC, No. 3:09-CV-07, 2010 WL 1418870, at *1 (D.N.D. Apr. 7, 2010).  

[16] Energy Heating, LLC v. Heat On-The-Fly, LLC, No. 4:13-CV-10, 2016 WL 3762697, at *1 (D.N.D. Mar. 4, 2016).

[17] United States v. Zavesky, 839 F.3d 688, 691 (8th Cir. 2016), cert. denied, 137 S. Ct. 1388, 197 L. Ed. 2d 565 (2017).

[18] See id. at 694-95.

[19] United States v. Garcia, No. 4:13-CR-207, 2015 WL 13229566, at *1 (D.N.D. Apr. 14, 2015).

[20] See United States v. Trotter, No. 2:14-CR-96, 2015 WL 13101987, at *1 (D.N.D. Mar. 4, 2015); United States v. Brown, No. 2:11-CR-84, 2011 WL 13130436, at *2 (D.N.D. Oct. 25, 2011); United States v. Hager, No. 3:11-CR-11, 2011 WL 3862072, at *1 (D.N.D. Aug. 31, 2011), aff’d, 710 F.3d 830 (8th Cir. 2013).

[21] United States v. Quintero, No. 3:10-CR-51, 2010 WL 3522251, at *1 (D.N.D. Sept. 8, 2010), aff’d, 648 F.3d 660 (8th Cir. 2011).

[22] State of Minn. v. Obeta, 796 N.W.2d 282 (Minn. 2011) (Stras, J., dissenting).

[23] See, e.g., United States v. Banks, No. 2:11-CR-4, 2015 WL 12723043, at *1 (D.N.D. July 30, 2015); United States v. Trotter, No. 2:14-CR-96-02, 2015 WL 13101986, at *1 (D.N.D. Apr. 21, 2015); United States v. Bagola, No. 2:12-CR-63, 2013 WL 11322598, at *6 (D.N.D. Dec. 5, 2013), aff’d, 796 F.3d 903 (8th Cir. 2015); United States of Am. Plaintiff, v. Jonathan Jason McClarin, a/k/a Jay Defendant., No. 3:09-CR-155-3, 2012 WL 12966187, at *1 (D.N.D. June 28, 2012); United States v. Garrett, 648 F.3d 618, 621 (8th Cir. 2011).

[24] Cvijanovich v. United States, No. 3:07-CR-55, 2011 WL 2680485, at *11 (D.N.D. July 8, 2011).

[25] United States v. Williams, No. 3:09-CR-55-02, 2010 WL 9137843, at *2 (D.N.D. Jan. 22, 2010).

[26] Id. at *1.

[27] Id. at *1.

[28] United States v. Williams, 647 F.3d 855 (8th Cir. 2011).

[29] See Davis v. United States, No. 12-cr-109, Doc. No. 243 (D.N.D. Mar. 30, 2016), rev’d, __ F.3d __, 2017 WL 2295789 (8th Cir. 2017); Taylor v. United States, No. 3:09-cr-69, Doc. No. 723 (D.N.D. Jan. 30, 2014), rev’d, 792 F.3d 865 (8th Cir. 2015); United States v. Cavanaugh, 680 F. Supp. 2d 1062, 1077 (D.N.D. 2009), rev’d, 643 F.3d 592 (8th Cir. 2011)

[30] See, e.g., United States v. Robertson, No. 08-cr-62, Doc. No. 65 (D.N.D. Feb. 18, 2009), rev’d, 606 F.3d 943 (8th Cir. 2010); United States v. Chalupnick, No. 06-cr-94, Doc. No. 23 (D.N.D. Feb. 5, 2007), rev’d, 514 F.3d 748 (8th Cir. 2008).

[31] See United States v. Williams, 647 F.3d 855 (8th Cir. 2011).

[32] Partlow v. Stadler, No. 3:12-CV-80, 2014 WL 12059001, at *5 (D.N.D. Jan. 22, 2014), rev’d, 774 F.3d 497 (8th Cir. 2014).  

[33] See 774 F.3d 497 (8th Cir. 2014).

[34] United States v. Rodriguez, 581 F.3d 775, 784 (8th Cir. 2009).

[35] See id. at 783.

[36] Id. at 816 (Melloy, J., concurring in part and dissenting in part).

[37] North Dakota v. U.S. E.P.A., 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015).

[38] See id. 

[39] Samantha Page, Judge Steps in at the Last Minute to Block EPA, Heroically Saves America from Clean Water, ThinkProgress, Aug. 28, 2015, https://thinkprogress.org/judge-steps-in-at-last-minute-to-block-epa-heroically-saves-america-from-clean-water-3de1d55fd473.

[40] United States v. Martinez, No. 3:06-CR-14-17, 2017 WL 944188, at *7 (D.N.D. Mar. 8, 2017).

2 CommentsLeave a comment