Allison Rushing – Nominee to the U.S. Court of Appeals for the Fourth Circuit

At just 36 years old, Allison Jones Rushing is the youngest nominee Trump has put forward so far to an appellate seat.  While Rushing has a stellar resume, her youth will likely raise concerns in the confirmation process.

Background

Rushing was born Allison Blair Jones in Hendersonville, North Carolina in 1982.  She received a B.A. summa cum laude from Wake Forest University in 2002 and a J.D. magna cum laude from the Duke University School of Law in 2007.  As a law student, Rushing worked as a summer intern at the Alliance Defense Fund (ADF) (now Alliance Defending Freedom).[1]  ADF has drawn controversy for its advocacy involving “religious freedom” and has been labeled a hate group by the Southern Poverty Law Center.[2]

After graduating, Rushing clerked for then-Judge Neil Gorsuch on the Tenth Circuit, Judge David Sentelle on the D.C. Circuit, and for Justice Clarence Thomas on the U.S. Supreme Court, with a short stint as an Associate at Williams & Connolly in between.[3]

After her clerkships, Rushing rejoined the D.C. office of Williams & Connolly as an Associate.  In 2016, Rushing became a Partner at the firm, where she continues to serve.

History of the Seat

Rushing has been nominated to replace U.S. Circuit Judge Allyson Kay Duncan, who has indicated her intention to move to senior status upon the confirmation of her successor.  In June 2018, shortly after Duncan announced her departure, Rushing was contacted by the White House to gauge her interest in an appointment to the Fourth Circuit.[4]  After an interview, Rushing was informed by the White House that she would be nominated.[5]  Rushing was officially nominated on August 27, 2018.

Legal Experience

Other than her clerkships, Rushing has spent her legal career at the firm of Williams & Connolly, specifically focusing on appellate and commercial litigation.  Over the course of her career, Rushing has handled four trials in federal district court as well as over 47 briefs at the U.S. Supreme Court.[6]  In her litigation work, she has frequently collaborated with Williams & Connolly partner Kannon Shanmugam, himself a famous conservative attorney.

Among her more prominent clients, Rushing has represented the Bank of America corporation,[7] KPMG,[8] Ernst & Young,[9] and Eli Lilly.[10]  Rushing also represented Jesse Litvak, a bond trader convicted of securities fraud based on statements he had made during negotiations, on appeal, successfully reversing the convictions on the basis that Litvak’s misstatements were immaterial.[11]  Rushing also represented the New York City Council Black, Latino and Asian Caucus as amicus in a case involving New York City’s policy of preventing worship services in schools.[12]

Writings

As a law student, Rushing authored an article discussing the Rooker-Feldman doctrine, which bars lower federal courts from reviewing state court judgments.[13]  In the paper, Rushing outlines the doctrine, as well as changes to its contours in later decisions such as Exxon Mobil Corp. v. Saudi Basic Industries Corp., which clarified that the Rooker-Feldman doctrine does not bar “parallel suits.”[14]

Political Activity & Membersips

Rushing has been a member of the Federalist Society for Law and Public Policy Studies since 2012.[15]  Rushing also served as a legal advisor in the Mitt Romney Presidential Campaign, to which she also donated $500.[16]

On the flip side, Rushing campaigned for Democratic Maryland Delegate Sam Arora, a former aide to Senator Hillary Clinton.[17]

Overall Assessment

With her hearing today, Rushing is on track to be the  youngest appellate judge confirmed since Alex Kozinski was appointed in 1985.  As such, it is likely that much of the debate around Rushing will revolve around her qualifications and experience.

While Rushing falls narrowly short of the American Bar Association’s twelve years of practice requirement, she was nonetheless rated “Qualified” by the group.[18]  This is likely a testament to Rushing’s substantial litigation experience, including extensive practice in the courts of appeals.

However, this does not mean that no questions can be raised about Rushing’s background.  Specifically, North Carolina lawyers might question Rushing’s connection with the court and the state that she will be serving.  While Rushing is a native North Carolinian, she has not practiced law in the state since law school, is not a member of the North Carolina bar, and, according to her firm biography, is not admitted to practice in the Fourth Circuit, the court to which she has been appointed.[19]

Given these factors and her relative youth, many will argue that there are many more qualified and experienced candidates for this vacancy.  However, the ultimate question around Rushing, as around any other nominee, is not whether she is the “most qualified” candidate, but rather, whether she meets the requisite levels of qualifications to be an appellate judge.  As Rushing’s intellect and legal ability are unquestioned, how senators vote will ultimately depend on which factors they consider in answering that question.


[1] Sen. Comm. on the Judiciary, 115th Congress, Allison Jones Rushing: Questionnaire for Judicial Nominees 2.

[2] See Southern Poverty Law Center, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom (last visited Oct. 17, 2018).

[3] See Rushing, supra n. 1 at 2.

[4] Id. at 28.

[5] Id.

[6] Id. at 13-14.

[7] See United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 83 F. Supp. 3d 528 (S.D.N.Y. 2015).

[8] See Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, LLP, 798 F.3d 113 (2d Cir. 2015).

[9] Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[10] See Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357 (Fed. Cir. 2017).

[11] See United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) and 808 F.3d 160 (2d Cir. 2015).

[12] The Bronx Household of Faith et al. v. Bd. of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014).

[13] Allison B. Jones, The Rooker-Feldman Doctrine: What Does It Mean to be Inextricably Intertwined, 56 Duke L.J. 643 (Nov. 2006).

[14] Id. at 658-59.

[15] See Rushing, supra n. 1 at 5.

[17] See Rushing, supra n. 1 at 10.

[18] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Oct. 17, 2018).

[19] See Williams & Connolly, Allison Rushing, https://www.wc.com/Attorneys/Allison-Jones-Rushing (last visited Oct. 17, 2018).

Jay Richardson – Nominee for the U.S. Court of Appeals for the Fourth Circuit

On June 17, 2015, Dylann Roof, a 21-year-old white supremacist murdered nine African Americans during a prayer service at Emanuel African Methodist Episcopal Church in Charleston.  During Roof’s subsequent capital trial, the lead federal prosecutor was a well-connected South Carolinian named Jay Richardson.  On April 26, 2018, approximately sixteen months after Roof received the death penalty, Richardson was tapped by President Donald Trump for a seat on the U.S. Court of Appeals for the Fourth Circuit.

Background

A native South Carolinian from a well-connected family with a history in the Palmetto State, Julius Ness Richardson was born on October 26, 1976 in Columbia.  He received a B.S. from Vanderbilt University in 1999 and a J.D. from the University of Chicago Law School in 2003.  After graduating, Richardson worked for the prolific Judge Richard Posner on the U.S. Court of Appeals for the Seventh Circuit and then for Chief Justice William Rehnquist on the U.S. Supreme Court (clerking alongside fellow judicial nominee Martha Pacold and Deputy Solicitor General Jeff Wall).[1]

After his clerkship, Richardson joined the D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel as an Associate.  In 2009, Richardson moved to the U.S. Attorney’s Office for the District of South Carolina, where he continues to serve as an Assistant United States Attorney.[2]

History of the Seat

Richardson has been nominated to replace U.S. Circuit Judge Dennis Shedd, who moved to senior status on January 30, 2018.  In June 2017, a few months before Shedd would announce his departure, Richardson was contacted by the White House to gauge his interest in an appointment to the Fourth Circuit.[3]  Richardson was nominated on May 7, 2018, after interviews with the White House and South Carolina Senators Tim Scott and Lindsey Graham.[4]

Legal Experience

Richardson has held two main legal positions after finishing his clerkships: working as an associate at Kellogg Huber; and working as a federal prosecutor.  In the former position, Richardson focused primary on commercial litigation.  Among the matters he handled at Kellogg Huber, Richardson represented Standard Iron Works, a steel purchaser, in a Sherman Act antitrust action against a series of defendant iron producers, alleging coordinated supply cuts.[5]

As a federal prosecutor, Richardson’s most famous case was the prosecution of Dylann Roof, the aforementioned white supremacist who had murdered nine churchgoers in Charleston.[6]  In the case, Richardson handled all pre-trial matters, as well as the trial and the sentencing phase, successfully leading to the imposition of the death penalty against Roof.[7]  Richardson also successfully defended a challenge based on the constitutionality of the death penalty brought by Roof’s attorneys.[8]

In other cases he handled as a federal prosecutor, Richardson prosecuted MS-13 gang members in a murder-for-hire case,[9] and the longest-serving sheriff in South Carolina for bribery.[10]

Writings

In 2002, as a student at the University of Chicago Law School, Richardson authored an article discussing Federal Rule of Civil Procedure 4(k)(2).[11]  Rule 4(k)(2) allows federal courts to exercise jurisdiction over defendants who would otherwise not fall under the jurisdiction of any state jurisdiction.  Richardson notes that courts vary in interpreting which party has the burden of production to determine that a defendant falls under the purview of 4(k)(2), with at least one court (the Seventh Circuit) placing the burden on the Defendant.[12]

In his paper, Richardson advocates a burden-shifting mechanism, in which plaintiffs bear an initial burden to present a prima facie case that a defendant falls under the purview of 4(k)(2), at which point the burden shifts to the defendant to demonstrate that a state jurisdiction can exercise jurisdiction over themselves.[13]  Richardson notes that this burden-shifting “minimizes the costs of dispute resolution.”[14]

Memberships

Richardson has been a member of the Federalist Society for Law and Public Policy Studies since 2017 (approximately the time that he has been under consideration for a federal judgeship).[15]  Richardson has also been a member of the Palmetto Club and the Forest Lake Club, two private clubs that previously restricted African Americans from membership (the Forest Lake Club admitted its first African American member in 2017).[16]

Overall Assessment

Given his fame as the prosecutor who successfully convicted Dylann Roof, Richardson is not an easy nominee for senators to oppose (the attack ads write themselves).  Nevertheless, even setting the Roof case aside, it is hard to deny that Richardson is qualified for a seat on the federal bench.

First, Richardson has impeccable academic credentials, including having clerked for two of the most influential judges in the country.  Second, Richardson boasts complex litigation experience on both the civil and criminal side.  Additionally, Richardson’s relative reticence on public policy issues and his relative lack of controversy also favor his confirmation.  Furthermore, while Richardson is a member of the Federalist Society, his membership is relatively recent and has not been accompanied by any extensive speaking or political activity.

Overall, barring any unexpected developments, Richardson will likely be confirmed in due course.  On the bench, Richardson looks likely to chart a conservative course, but may, like Posner before him, surprise.


[1] Sen. Comm. on the Judiciary, 115th Congress, Julius Ness Richardson: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] Id. at 30.

[4] Id.

[5] Standard Iron Works v. Arcelormittal et al., 639 F. Supp. 2d 877 (N.D. Ill. 2009) (denying Defendant steel producers’ motion to dismiss).

[6] See Matt Zapotosky, Roof’s Journal of Racist Rants Revealed on Emotional Day, Wash. Post, Jan. 6, 2017.

[7] Alan Blinder and Kevin Sack, Dylann Roof is Sentenced to Death in Charleston Church Massacre, N.Y. Times, Jan. 10, 2017.

[8] United States v. Roof, 225 F. Supp. 3d 413 (D.S.C. 2016).

[9] United States v. Teran, 496 Fed. App’x. 287 (4th Cir. 2012).

[10] Chris Dixon, Judge Rejects Plea Deal for South Carolina Sheriff, N.Y. Times, Dec. 18, 2014.

[11] Julius Ness Richardson, Shifting the Burden of Production Under Rule 4(k)(2): A Cost-Minimizing Approach, 69 U. Chi. L. Rev. 1427 (Summer 2002).

[12] Id. at 1431

[13] See id. at 1437-39.

[14] Id. at 1441.

[15] See Richardson, supra n. 1 at 5.

[16] Id. at 5-6.

Judge A. Marvin Quattlebaum – Nominee for the U.S. Court of Appeals for the Fourth Circuit

If the name A. Marvin Quattlebaum sounds familiar, it should: we wrote on his nomination to the district court just last year.  At the time we said the following:

“Nominees expected to sail through the process become bogged down, while nominees expected to draw controversy surprise everyone by getting confirmed easily.  Nevertheless, A. Marvin Quattlebaum, nominated for a vacancy on the U.S. District Court for the District of South Carolina, should feel good about his chances.”

The qualifying sentence proved surprisingly prescient when Quattlebaum’s confirmation drew 28 no votes (to be fair, the no votes were not about Quattlebaum but rather about the two African American Obama nominees to the same seat who never received the courtesy of a Senate vote).  Just one month after his confirmation to the U.S. District Court, Quattlebaum became a nominee again, this time for the U.S. Court of Appeals for the Fourth Circuit.  As such, here is an updated take on his nomination.

Background

Arthur Marvin Quattlebaum Jr. was born on August 2, 1964 in Durham, NC.  He received a B.A. with Honors from Rhodes College in 1986 and a J.D. from the University of South Carolina Law School in 1989.  While a law student, Quattlebaum worked as a summer associate at the Columbia law firm Nelson, Mullins, Riley & Scarborough, LLP.  Upon graduation, Quattlebaum was hired there as an Associate.

In 1996, Quattlebaum left Nelson Mullins to be a partner at the law firm Robinson & Quattlebaum.  A year later, Quattlebaum returned to Nelson Mullins as a Partner.

On August 3, 2017, Quattlebaum was nominated by President Trump to be a U.S. District Court Judge for the District of South Carolina to fill the seat vacated by Judge Cameron Currie on October 3, 2013.  Two African American Obama nominees, Judge Allison Lee and Justice Donald Beatty, were blocked from a final vote for this seat by the opposition of South Carolina’s Republican Senators.  For his part, Quattlebaum attracted little controversy but was confirmed on March 1, 2018 by a relatively narrow 69-28 vote with Democrats citing the treatment of Lee and Beatty as the reason for their opposition.  Quattlebaum serves as a U.S. District Court Judge today.

History of the Seat

Quattlebaum has been nominated to replace U.S. Circuit Judge William Traxler, who is scheduled to move to senior status on August 31, 2018.  Traxler, who was appointed to the U.S. District Court by President George H.W. Bush and to the Fourth Circuit by President Bill Clinton, has been a fairly conservative judge.

Legal Experience

Other than one year working on plaintiff’s side law at Robertson & Quattlebaum, Quattlebaum spent his entire pre-bench legal career practicing business litigation at Nelson Mullins.  As a partner in the Greenville office, Quattlebaum primarily focused on the defense of product liability actions.

Among Quattlebaum’s more prominent cases, he was the primary lawyer defending Michelin North America Inc. against a suit alleging injuries from the sale of a defective tire.[1]  He also represented Michelin in antitrust and breach of contract actions.[2]  In another key case, Quattlebaum successfully defended an industrial manufacturer from a wrongful death claim based on an earth compactor that rolled over.[3]

Jurisprudence

Quattlebaum has been a federal judge since March 6, 2018.  In those two months, he has only had a chance to hear and decide a handful of cases, none of which have reached a resolution on appeal.  Most of these cases involve 1983 civil rights suits brought by state prisoners, which Quattlebaum has generally accepted recommendations to dismiss.[4]

One notable case handled by Quattlebaum in his short tenure was a constitutional challenge to a unique traffic control plan imposed by Myrtle Beach on participants in Bikefest.[5]  The NAACP brought the suit, alleging that the restrictions on Bikefest, whose participants are predominantly African American, violated the First Amendment and the Equal Protection Clause, noting that similar restrictions were not levied against the majority-white participants in Harley Week.[6]  Quattlebaum declined to grant a preliminary injunction against the traffic control plan, noting that plaintiffs had failed to make the requisite factual findings.[7]

Political Activity

Quattlebaum has a long history of contributions to Congressional Republicans.  This includes approximately $8000 to Graham, $7600 to Scott, and $6400 to Gowdy.[8]  Additionally, Quattlebaum has also donated to former Sen. Jim DeMint, and former Rep. Bob Inglis, both South Carolina Republicans.[9]  In contrast, Quattlebaum has only one contribution to a Democrat, donating $1000 to Alex Sanders’ Senate bid against Graham in 2001.[10]

In addition, Quattlebaum has served in a volunteer capacity in the campaigns of Graham, Scott, and Gowdy.  Quattlebaum also served on the South Carolina Lottery Commission from 2003-2010, appointed to that role by Republican Governor (and now Congressman) Mark Sanford.

Overall Assessment

Quattlebaum’s nomination to the District Court drew opposition primarily based on the history of the specific seat he was nominated for rather than his own personal characteristics.  Furthermore, he has not been on the District Court long enough to draw a controversial record.  As such, one can reasonably conclude that his nomination is unlikely to attract a significant degree of controversy.

However, nominations to the Court of Appeals tend to attract significantly more controversy than those to the District Court, and factors that were forgiven in confirming Quattlebaum earlier, such as his political donation history, may draw more weight for an appellate nominee.  Additionally, critics may argue that Quattlebaum, having only been a judge for two months, lacks the requisite judicial experience to be an appellate judge (although many appellate nominees lack any judicial experience whatsoever).

Overall, Quattlebaum still remains favored for a comfortable confirmation.  However, as his initial confirmation rodeo proved, nothing can be taken for granted.


[1] See Demas v. Michelin N. Am., Inc., No. 09 L 013814, Illinois Circuit Court (Judge Daniel Lynch).

[2] Michelin N. Am., Inc. v. Inter-city Tire, No. 6:13-cv-01067 HMH, 2015 WL 12843914 (D.S.C. Jan 20, 2015) (Judge Henry Herlong).  

[3] Edwards v. Ingersoll Rand Co., No. 6:01-cv-02205-HFF (D.S.C.).

[4] See, e.g., Rose v. Nettles, No. CV01702000AMQPJG, 2018 WL 2268021, at *1 (D.S.C. May 16, 2018); Townsend v. S. Health Partners, No. 0:18-CV-00414-AMQ, 2018 WL 2220282, at *1 (D.S.C. May 15, 2018); Tyler v. Chavis, No. CV 9:17-3270-AMQ-BM, 2018 WL 2011526, at *1 (D.S.C. Apr. 30, 2018); Hurley v. Lovett, No. CV 8:17-1993-AMQ-KFM, 2018 WL 1811371, at *1 (D.S.C. Apr. 17, 2018).

[5] NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., et al., Plaintiffs, v. CITY OF MYRTLE BEACH, et al., Defendants. Additional Party Names: Cedric Stevenson, City of Myrtle Beach Police Dep’t, Leslie Stevenson, Simuel Jones, No. 4:18-CV-00554, 2018 WL 2332018 (D.S.C. May 23, 2018).

[6] Id. at *1.

[7] Id. at *4-*5.

[8] Center for Responsive Government, https://www.opensecrets.org/donor-lookup/results?name=Marvin+Quattlebaum&order=desc&page=1&sort=D (last visited Oct. 3, 2017).  

[9] See id.

[10] Id.