Ninth Circuit

Eric Miller – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Eric Miller is one of several clerks of Justice Clarence Thomas who are finding their way onto the bench (President Trump has already appointed ten to the federal bench).  Miller faces strong opposition from his home-state senators and from native american groups, which could complicate his path to the bench.

Background

Eric David Miller was born in Oak Park, Illinois, in 1975.  Miller received an A.B. from Harvard University in 1996 and a J.D. from the University of Chicago Law School in 1999.[1]  After graduating from law school, Miller clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.[2]

After his clerkships, Miller joined the Department of Justice, starting in the Appellate Staff of the Civil Division, and then shifting to the Office of Legal Counsel, before returning to the Civil Division in 2004.[3]  In 2006, Miller spent a year as Deputy General Counsel for the Federal Communications Commission and then joined the Office of the Solicitor General.[4]

In 2012, Miller left the Solicitor General’s office to join the Seattle office of Perkins Coie LLP as a Partner.  He continues to serve in that role.

History of the Seat

Miller has been nominated for a Washington seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on March 3, 2018 when Judge Richard Tallman moved to senior status.

In August 2017, Miller was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In September 2017, Miller interviewed with the White House Counsel’s Office and was formally nominated on July 19, 2018.[6]

Both of Miller’s home state senators, Sen. Patty Murray and Sen. Maria Cantwell, have expressed opposition to Miller’s nomination.[7]

Political Activity & Memberships

Miller has a fairly limited political history, having donated $1000 each to Sen. Marco Rubio and Rep. Cathy McMorris Rodgers in 2014-15.[8]

Furthermore, Miller has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) for various stretches, most recently in 2017.[9]

Legal Experience

Miller’s post-clerkship career can be organized into three chunks for analysis.  First, from 2001 to 2006, Miller worked in various capacities at the Department of Justice.  Then, from 2007 to 2012, Miller worked at the Solicitor General’s Office.  Finally, from 2012 to the present, Miller has been a Partner in the Seattle Office of Perkins Coie.

Department of Justice

From 2001 to 2006, Miller worked in the Department of Justice, serving in the appellate staff of the Civil Division from 2001 to 2003 and from 2004 to 2006.  From 2003 to 2004, Miller worked in the Office of Legal Counsel, his tenure coinciding with OLC head Jack Goldsmith, who clashed with the White House over the previous OLC memorandum that authorized enhanced interrogation techniques.

Solicitor General

From 2007 to 2012, Miller served as Assistant to the Solicitor General, working under six Solicitors General in the Bush and Obama Administration.  During this time, Miller argued 14 cases before the U.S. Supreme Court on behalf of the federal government and filed briefs in dozens of others.[10]  Of the cases Miller argued, the position he took prevailed in nine.[11]  Interestingly, Miller lost cases during this time to two future court of appeals judges: Judge Sri Srinivasan[12] and Judge Stephanos Bibas.[13]

Perkins Coie

Since 2012, Miller has been a Partner in the Seattle Office of Perkins Coie working in the appellate practice group.  During Miller’s tenure, he argued an additional two cases before the Supreme Court, both focusing on the issue of the sovereign immunity accorded to Indian tribes.  In the first, Miller prevailed before a unanimous Supreme Court in arguing that tribal sovereign immunity did not bar a suit against a member of the tribe in his individual capacity.[14]  In the second, Miller defended a Washington Supreme Court decision holding that sovereign immunity did not constitute a bar to a land suit and judgment where the court was seeking to exercise in rem jurisdiction.[15]  This time, Miller lost on a 7-2 vote with only Justices Thomas and Alito voting for his position.[16]

Writings

As a law student, Miller authored an article discussing the federal statute dictating Miranda warnings to criminal defendants.[17]  The statute in question, 18 U.S.C. § 3501, was enacted shortly after the landmark decision in Miranda v. Arizona, and sought to overrule the Supreme Court decision in federal criminal cases.[18]  However, in the next three decades, the Supreme Court did not consider the validity of the statute, which was never invoked by the Department of Justice.[19]

In his article, Miller argues that the Supreme Court should consider the constitutionality of the statute sua sponte, and that it was often appropriate for judges to raise issues not raised by the parties, including in cases involving the court’s jurisdiction, the application of judicial restraint, or a court frustration with the way parties have characterized the legal issues in the case.[20]  Miller argues that § 3501 clearly lays out rules for the admissibility of confessions, rules that the court should not ignore just because the parties agree that it should.[21]  Miller does not focus on the article on the constitutionality of § 3501, which was later struck down by the Supreme Court in Dickerson v. United States.[22]

Overall Assessment

Given his extensive appellate practice, it is easy to agree that Miller is qualified for a seat on the Ninth Circuit.  The American Bar Association agreed, giving him a unanimous Well Qualified rating.[23]  However, Miller’s path to confirmation may be complicated by the opposition of home state senators and that of Indian tribes.[24]  The latter argue that Miller has focused his private practice on seeking to cut down the sovereignty of Indian tribes.  Such arguments may be particularly persuasive to senators with large populations affected by such decisions.

As noted earlier, the Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  If Miller is confirmed, he will likely add a conservative voice to the court.  Furthermore, based on his law school writings, one could also argue that Miller would not be hesitant to exercise judicial power in raising issues not addressed by the parties where he believed the issues to be paramount to the case.  As such, one could expect Miller to be a more assertive voice on the court than the more circumspect judge he replaces.

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Miller, supra n. 1 at 42.

[6] Press Release, White House, President Donald J. Trump Announces Sixteenth Wave of Judicial nominees, Sixteenth Wave of United States Attorney Nominees, and Eleventh Wave of United States Marshall Nominees (July 13, 2018) (on file at www.whitehouse.gov/the-press-office).

[7] Agueda Pacheco-Flores, Cantwell and Murray Object to Process for Filling Federal Appeals Court Seat, Seattle Times, Oct. 23, 2018, https://www.seattletimes.com/seattle-news/cantwell-and-murray-object-to-process-for-filling-federal-appeals-court-seat/.  

[9] See Miller, supra n. 1 at 5.

[10] See id. at 18-23.

[11] See Astrue v. Capato, 566 U.S. 541 (2012); Talk Am. v. Michigan Bell Tell Co., 564 U.S. 50 (2011); Staub v. Proctor Hosp., 562 U.S. 411 (2011); United States v. Marcus, 560 U.S. 258 (2010); NRG Power Marketing, LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165 (2010); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); Shinseki v. Sanders, 556 U.S. 396 (2009); Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008); Knight v. Comm’r of Int’l Rev., 552 U.S. 181 (2008).

[12] Abuelhawa v. United States, 556 U.S. 816 (2009).

[13] See Vartelas v. Holder, 566 U.S. 257 (2012).

[14] Lewis v. Clarke, 137 S.Ct. 1285 (2017).

[15] Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018).

[16] See id.

[17] Eric D. Miller, Should Courts Consider 18 U.S.C. 3501 Sua Sponte?, 65 U. Chi. L. Rev. 1029 (Summer 1998).

[18] See id. at 1031-32.

[19] Id. at 1033-38.

[20] Id. at 1039.

[21] Id. at 1052.

[22] 530 U.S. 428 (2000).

[23] 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 Jan. 31, 2019).

[24] See, e.g., John Echohawk, Eric Miller on the Ninth Circuit? Time for a More Suitable Candidate, Indian Country Today, Sept. 10, 2018, https://newsmaven.io/indiancountrytoday/opinion/eric-miller-on-the-ninth-circuit-time-for-a-more-suitable-candidate-ra4MF3aidUKNy_9AXVc3cQ/.  

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Judge Bridget Bade – Nominee to the U.S. Court of Appeals for the Ninth Circuit

A federal magistrate judge for the District of Arizona, Bade was selected to serve on the Ninth Circuit after the White House rejected the top candidate suggested by Arizona senators and two candidates the White House considered never made it to nomination.  As a “compromise” candidate, Bade is likely to see a smooth confirmation.

Background

An Arizona native, Bade was born Bridget Ann Shelton in Phoenix in 1965.  Bade received a B.A. summa cum laude from Arizona State University in 1987 and a J.D. from the Sandra Day O’Connor College of Law at Arizona State University in 1990.[1]  After graduating from law school, Bade clerked for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit and then joined the Department of Justice in the Environmental Torts Litigation Section of the Civil Division.[2]

In 1995, Bade returned to Arizona to be a Shareholder at Beshears Wallwork Bellamy in Phoenix (the firm would later merge with Steptoe and Johnson).[3]  Eleven years later, she moved to become a federal prosecutor with the U.S. Attorney’s Office for the District of Arizona.[4]

In 2012, Chief Judge Roslyn Silver selected Bade to be a U.S. Magistrate Judge on the U.S. District Court for the District of Arizona.  Bade serves on that court currently.

History of the Seat

Bade has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on October 11, 2016 when Judge Barry Silverman moved to senior status.  With the vacancy opening three weeks before the 2016 Presidential election, President Obama made no nomination to fill the vacancy.

In April 2017, Arizona senators John McCain and Jeff Flake, both Republicans, recommended Assistant U.S. Attorney Dominic Lanza to fill the vacancy, alongside Bade and Arizona Supreme Court Justice Ann Scott Timmer as secondary choices.[5]  However, the White House wanted Lanza’s colleague, Kory Langhofer, for the seat, believing that Langhofer was more conservative.[6]

The Trump Administration allegedly axed Lanza for the Ninth Circuit seat based on former U.S. Attorney Paul Charlton’s support of his candidacy, as Administration officials were upset at Charlton for prosecuting Republican Rep. Rick Renzi during the Bush Administration.[7]  Instead, Lanza was nominated and confirmed to a district court seat.

As for the Ninth Circuit vacancy, the White House vetted but declined to nominate Langhofer, as well as their next choice, DOJ Attorney (and White House Counsel alum) James Burnham.[8]  Finally, in April 2018, over a year after her name was originally sent to the White House, Bade was interviewed to fill the vacancy.[9]  She was nominated on August 27, 2018.

Political Activity

Bade has a fairly limited political history, having hosted a political reception for Mike Bailey, a Republican candidate for Maricopa County Attorney in 2004.[10]  Additionally, Bade gave a $250 contribution to Sen. Jon Kyl, a Republican, in 2006.[11]

Unlike most of Trump’s appellate nominees, Bade does not appear to be a member of the Federalist Society for Law and Policy.[12]

Legal Experience

Before joining the bench, Bade worked both in private practice and as a government attorney.  In this role, Bade handled primarily civil and appellate law.  Over the course of her career, Bade has tried three bench trials in federal court and two state court jury trials.[13]  Early in her career, Bade was part of a legal team defending the United States against a class action alleging that leaks from a defense facility had contaminated their groundwater.[14]

Notably, Bade handled two catastrophic tort suits against the U.S. Border Patrol, involving injuries suffered from passengers in vehicles crossing the border as they attempted to evade Border Patrol agents.[15]  Bade was able to successfully settle both cases and received a commendation from the Border Patrol from her work on the matters.

Jurisprudence

Bade has spent the last six years serving as U.S. Magistrate Judge in the District of Arizona.  In this role, Bade presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues.  In her six years, Bade has presided over three bench trials and one jury trial.[16]  The lone jury trial that Bade has presided over involved a personal injury suit arising from an automobile accident.[17]

Notably, Bade ruled that an Arizona Supreme Court rule that required attorneys seeking admission in Arizona to have reciprocal admission for Arizona attorneys was valid under the Dormant Commerce Clause and the First Amendment.[18]

In her time as a judge, Bade has had her reports and recommendations rejected by district judges in six cases.[19]  In an additional six cases, Bade’s reports and recommendations have been partially rejected by district judges.[20]  Furthermore, in four cases, Bade’s rulings were reversed on appeal.[21]

Overall Assessment

Bade may not have been the Administration’s first choice for the Ninth Circuit, but she may nonetheless prove to be the right one.  As a (relatively) older nominee with judicial experience, Bade is unlikely to attract the lightning rod of opposition that Langhofer or Burnham could have.  In fact, had it not been for her home-state senator’s blockade on judicial confirmations, it is likely that Bade would have been confirmed before the end of the year.

That being said, Bade may still ultimately draw negative votes in both committee and on the floor as her hearing was held over a recess, with no Democrats present.  Despite that factor, however, Bade is likely to be confirmed early next year (assuming that Senator-elect Kyrsten Sinema raises no objections).

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Jeremy Duda, The Flake and McCain Seal of Approval, Yellow Sheet Report, April 24, 2017.

[6] See Jeremy Duda, Don’t Count Langhofer Out Yet, Yellow Sheet Report, April 26, 2017.

[7] See id.

[8] Betsy Woodruff, Alleged Mueller Witness James Burnham Is On Trump’s Judicial Wish List, Daily Beast, Oct. 8, 2017, https://www.thedailybeast.com/alleged-mueller-witness-james-burnham-is-on-trumps-judicial-wish-list.  

[9] See Bade, supra n. 1 at 64.

[10] See id. at 44-45.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=bridget+bade&cycle=&state=&zip=&employ=&cand= (last visited Nov. 15, 2018).  

[12] See Bade, supra n. 1 at 4-6 (listing her professional affiliations).

[13] See id. at 47.

[14] See Bates v. Tenco Services, Inc., et al., CV 87-1313-SB (D.S.C.).

[15] Castillejos v. United States, CV 08-1645-DKD (D. Ariz.); Lopez-Sauceda v. United States, CV 07-2267-DGC (D. Ariz.).

[16] See Bade, supra n.1 at 23.

[17] Valejo v. Grietl, et al., Case No. CV-13-01687-PHX-BSB (D. Ariz.).

[18] Nat’l Assoc. for the Advancement of Multijurisdictional Practice v. Berch, 973 F. Supp. 2d 1082 (D. Ariz. 2013), aff’d, 773 F.3d 1037 (9th Cir. 2014), cert. denied, 135 S. Ct. 2374 (2015).

[19] Pouncey v. Maricopa Cnty. Sheriff’s Off., No. CV-17-723-PHX-JAT (BSB) (D. Ariz. Sept. 11, 2017); Dominguez-Rojas v. United States, No. CV-16-2179-PHX-SRB (BSB), (D. Ariz. Apr. 25, 2017); Brinkman v. Ryan, 2016 WL 7474014 (D. Ariz. Dec. 27, 2016); Grant v. United States, 2016 WL 6327762 (D. Ariz. Oct. 31, 2016); Muktadir v. Donahue, No. CV-15-2009-PHX-ROS (BSB), 2017 WL 4349390 (D. Ariz. Mar. 31, 2016); Gibson v. Sternes, No. CV-14-8156-PHX-DLR (BSB) (D. Ariz. May 1, 2015).  

[20] Amaral v. Ryan, No. CV-16-594-PHX-JAT (BSB), 2017 WL 6463052 (D. Ariz. Dec. 19, 2017); Flowers v. O’Neil, No. CV-15-2670-PHX-JAT (BSB), 2017 WL 6276367 (D. Ariz. Dec. 11, 2017); Hiland v. Ryan, No. CV-13-8110-PHX-PGR (BSB), 2017 WL 3953945 (D. Ariz. June 29, 2015); Bosquez v. Ryan, No. CV-13-1714-PHX-PGR (BSB), (D. Ariz. Mar. 10, 2015); Equal Employment Opportunity Comm’n v. Recession Proof, No. CV-11-1355-PHX-BSB, 2013 WL 6327994 (D. Ariz. Dec. 5, 2013); Olmos v. Ryan, No. CV-11-344-PHX-GMS (BSB)(D. Ariz. June 24, 2013).

[21] Velasco v. United States, No. CV-15-1389-PHX-NVW (BSB), 2018 WL 947667 (9th Cir. Feb. 5, 2018; Colter v. Berryhill, 685 F. App’x 616 (9th Cir. 2017); Miller v. Parties, No. CV-16-1427-PHX-DGC (BSB), 2017 WL 6210796 (9th Cir. July 27, 2017); Baxla v. Colvin, 671 F. App’x 477 (9th Cir. 2016)

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Ryan Nelson – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Idaho attorney Ryan Nelson was nominated by President Trump last year to be Solicitor (chief appellate attorney) for the Department of the Interior.  However, Nelson’s nomination was never confirmed by the Senate.  Now, Nelson is getting a shot at a different job: a lifetime appointment to the U.S. Court of Appeals for the Ninth Circuit.

Background

An Idaho native, Ryan Douglas Nelson was born in Idaho Falls in 1973.  Nelson received a B.A. from Brigham Young University in 1996 and a J.D. from the J. Reuben Clark Law School at Brigham Young University.[1]  After graduating from law school, Nelson clerked for Judge Karen Henderson on the U.S. Court of Appeals for the D.C. Circuit and for Judges Charles Brower and Richard Mosk on the Iran-United States Claims Tribunal.[2]

After his clerkships, Nelson joined Sidley Austin as an associate in their Washington D.C. Office.[3]  Five years later, he moved to the Department of Justice to be Deputy Assistant Attorney General for the Environment and Natural Resources Division.[4]  In 2008, Nelson moved to the Executive Office of the President as Deputy General Counsel and briefly worked as Special Counsel for the Senate Committee on the Judiciary, focusing on the nomination of Justice Sotomayor.

In 2009, Nelson returned to Idaho Falls to be General Counsel for Melaleuca, Inc, an online Wellness Product company.[5]  He is still with the company.[6]

On July 31, 2017, Nelson was nominated by Trump to be Solicitor to the Department of the Interior.[7]  On September 19, the nomination was unanimously voted out by the Senate Energy and Natural Resources Committee.  However, soon after, his nomination, alongside three others, was blocked by Sen. Richard Durbin (D-Ill.) as part of his objection to the Administration’s national monuments policy.[8]  At the end of 2017, senators were unable to reach an agreement to hold over Nelson’s nomination and it was returned to the President.

In 2018, Trump renominated Nelson to be Solicitor to the Department of the Interior.  However, his nomination was then blocked by Sen. Bill Nelson (D-Fla.) as part of negotiations with Zinke over drilling off the coast of Florida.[9]  As such, Nelson’s nomination was still pending when his name was announced for the Ninth Circuit, and was withdrawn as his new nomination reached the Senate.

History of the Seat

Nelson has been nominated for an Idaho seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on August 11, 2018 when Judge Norman Randy Smith moves to senior status.

In November 2017, while his nomination to be Solicitor for the Department of the Interior was pending, Nelson expressed his interest in the Ninth Circuit to Idaho senators.[10]  In February 2018, Nelson interviewed with the White House Counsel’s Office and was formally nominated on May 15, 2018.[11]

Political Activity & Memberships

Nelson has been a member of the Idaho Republican Party since 2010, including serving as the Chairman for the 2012 caucus in Idaho Falls.[12]  Nelson also volunteered on the Romney Presidential Campaign in 2012 and worked as a legal advisor for President Bush’s re-election campaign in 2004.[13]

Additionally, Nelson has occasionally donated to Republican candidates, including a $2000 donation to Romney in 2011.[14]  Nelson has also donated to U.S. Senators Mike Lee, James Risch, and Marco Rubio.[15]

Furthermore, Nelson has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[16]

Legal Experience

After his clerkship, Nelson spent five years working as an Associate at Sidley Austin.  In this role, Nelson handled primarily civil and appellate law.  Among the matters he handled at Sidley, Nelson defended a corrections contractor against a civil suit alleging the abuse of undocumented immigrants at the contractor’s facilities.[17]  Nelson was also part of the legal team supporting a suit brought by the State of Utah against efforts by the Census Bureau to fill in gaps in its work.[18]

From 2006 to 2008, Nelson served as Deputy Assistant Attorney General for the Department of Justice, defending agency decisions on land use, environmental, and energy issues.  In this role, Nelson personally argued 13 appeals, including the defense of using purse-seine nets in tuna farming despite the impact on dolphin populations.[19]

Notably, Nelson argued that the presence of a Latin cross in a San Diego war memorial did not violate the Establishment Clause of the U.S. Constitution.[20]  While U.S. District Judge Larry Burns upheld the cross’ constitutionality, the Ninth Circuit eventually reversed.[21]

Since 2009, Nelson has been Counsel to Melaleuca, Inc., an Idaho Falls based wellness company.  During Nelson’s tenure as Counsel, Melaleuca and its founder Frank VanderSloot filed a defamation suit against Mother Jones magazine for its coverage of VanderSloot’s political advocacy, including his alleged “outing” of Idaho investigative reporter Peter Zuckerman as gay.[22]  A second defamation suit was filed against Zuckerman after he complained about the outing on the Rachel Maddow Show.[23]  Ultimately, the suit against Mother Jones was dismissed on First Amendment grounds,[24][25] while the suit against Zuckerman was eventually settled.[26]

Overall Assessment

The Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  As such, the nomination of the conservative Nelson could be touted (in some circles) as an effort to shift the court to the right.  But setting the ideology of the pick aside, Nelson’s background in environmental law is particularly suited to the Circuit covering some of the country’s most scenic public lands.

This is not to say that Nelson will have an easy confirmation.  Specifically, senators may question Nelson’s role in the defamation actions against Mother Jones and reporter Peter Zuckerman.  Given the ultimate dismissal of the suit, senators may probe Nelson’s views of defamation litigation, as well as his perspective of New York Times v. Sullivan and the freedom the press is given in reporting on matters of public concern.  Ultimately, Nelson’s confirmation will likely turn on such questions.

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Press Release, White House, President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts (July 31, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Timothy Cama, Durbin Blocks Interior Nominees From Confirmation, The Hill, Nov. 8, 2017, http://thehill.com/policy/energy-environment/359455-durbin-blocks-interior-nominees-from-confirmation.  

[9] Timothy Cama, Dem Senator Puts Hold on Trump Nominees Over Offshore Drilling Plan, The Hill, Jan. 18, 2018, http://thehill.com/policy/energy-environment/369509-dem-senator-puts-hold-on-trump-nominees-over-offshore-drilling-plan.  

[10] See Nelson, supra n. 1 at 40.

[11] Press Release, White House, President Donald J. Trump Announces Fourteenth Wave of Judicial nominees, Thirteenth Wave of United States Attorney Nominees, and Eighth Wave of United States Marshall Nominees (May 15, 2018) (on file at www.whitehouse.gov/the-press-office).

[12] See Nelson, supra n. 1 at 8, 16.

[13] See id. at 16.

[15] Id.

[16] See Nelson, supra n. 1 at 8.

[17] Jama v. United States Immigration and Naturalization Servs., 334 F. Supp. 2d (D.N.J. 2004).

[18] See Utah v. Evans, 536 U.S. 452 (2002).

[19] Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).

[20] Trunk v. City of San Diego, 568 F. Supp. 2d 1199 (S.D. Cal. 2008).

[21] See 629 F.3d 1099 (9th Cir. 2011).

[22] Clara Jeffery and Monica Bauerlein, We Were Sued By a Billionaire Political Donor. We Won. Here’s What Happened, Mother Jones, Oct. 8, 2015, https://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit/.  

[23] Linda Greenhouse, Justices Appear Reluctant to Increase Land-Use Oversight, N.Y. Times, Feb. 23, 2005.

[24] See Melaleuca, Inc. v. Foundation for Nat’l Progress, No. CV-2013-532-OC (7th Jud. Dist. Idaho Oct. 6, 2015); Melaleuca, Inc. v. Zuckerman, No. CV-2014-2510 (7th Jud. Dist. Idaho Oct. 15, 2015).

[25] See DB, Judge Tosses Wealthy Idaho Conservative’s Defamation Lawsuit Against Mother Jones, TPM, Oct. 8, 2015, https://talkingpointsmemo.com/news/judge-tosses-frank-vandersloot-lawsuit-mother-jones.  

[26] Associated Press, Idaho Billionaire Settles Defamation Suit With Ex-Reporter, Pacific Northwest News, Oct. 21, 2015, https://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/10/idaho_billionaire_settles_defa.html.  

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Mark Bennett – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Experienced Hawaii litigator Mark Bennett is an unusual nominee from the Trump Administration in one key aspect: his age.  While the Trump Administration has generally chosen judges in their 40s and 50s for the appellate bench, Bennett is 65 years old.  Not only is he the oldest of all of Trump’s appellate nominees by far, he is also older than 80% of Obama’s appellate picks.  In fact, in the last thirty years, just two appellate judges have been chosen at an older age than Bennett.  Nevertheless, Bennett’s age, experience and general moderation make him an acceptable nominee for Hawaii’s Democratic home-state Senators, leading to an easier confirmation.

Background

Mark Jeremy Bennett was born on February 24, 1953 in Brooklyn, NY.  After getting a B.A. summa cum laude from Union College in Schenectady, NY in 1976, Bennett received a J.D. magna cum laude from Cornell Law School in 1979.[1]  He then clerked for Judge Samuel King on the U.S. District Court for the District of Hawaii.[2]

After his clerkship and a brief period of self-employment, Bennett joined the U.S. Attorney’s Office for the District of Columbia as an Assistant U.S. Attorney.[3]  Two years later, he moved to Hawaii to be a federal prosecutor at the U.S. Attorney’s Office for the District of Hawaii, staying there for seven years.[4]

In 1990, Bennett joined McCorriston Miller Mukai MacKinnon LLP. as Of Counsel, becoming a Partner in 1991.[5]  While serving as a Partner, Bennett served as a Special Prosecuting Attorney for the City of Honolulu and as Special Deputy Attorney General in the Hawaii Attorney General’s office.[6]

In 2003, the newly elected Republican Governor Linda Lingle chose Bennett to be Hawaii’s new Attorney General.[7]  Bennett was confirmed by the Democratic State Senate and served as Hawaii’s chief legal and law enforcement officer throughout the eight years Lingle was in office.

In 2011, after the election of Democrat Neil Abercrombie to the Governorship, Bennett joined the Hawaii law firm Starn, O’Toole, Marcus & Fisher as a Director.[8]  He serves in that capacity to this day.

History of the Seat

Bennett has been nominated for a Hawaii seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with Judge Richard Clifton’s move to senior status.

Bennett’s name was proposed for the Ninth Circuit by Hawaii Senators Mazie Hirono and Brian Schatz, both Democrats, who reached out to Bennett in mid-2017.[9]  In November 2017, Bennett interviewed with the White House Counsel’s Office and was formally nominated on February 15, 2018.[10]

Political Activity

Bennett has a long history of involvement with the Republican Party of Hawaii, including serving as the Party’s counsel in 2001-02.[11]  Bennett also volunteered on Lingle’s gubernatorial campaigns in 2002 and 2006, as well as supporting Republican James Aiona’s gubernatorial campaign in 2010.[12]  Bennett also supported Lingle in her 2012 Senate bid against Hirono.[13]

Additionally, Bennett has also been a generous donor to the Republican Party of Hawaii, donating almost $5000 over the years, including $400 in October 2017, after his name had been proposed for a federal judgeship but before the formal vetting process had begun.[14]  Bennett has also donated to support Lingle, former U.S. Senator Kelly Ayotte and Hawaii State Legislator Cynthia Thielen, all Republicans.[15]  On the flip side, Bennett financially supported Rep. Colleen Hanabusa (a Democrat) in her primary challenge to Schatz in 2014.[16]

Legal Career

After his clerkship, Bennett spent ten years working as a federal prosecutor in D.C. and Hawaii.  In these roles, Bennett handled both criminal and civil cases, handling prosecutions at the trial level, and defending convictions on appeal.  In 1990, he joined the Honolulu office of McCorriston Miller Mukai MacKinnon LLP, working in complex civil litigation.  While at the firm, Bennett represented Texaco in defending against a $2 billion antitrust case brought by Democratic Governor Benjamin Cayetano.[17]

From 2002 to 2010, Bennett served as the Attorney General of Hawaii (his work as Attorney General is summarized in the next section).  He left the office in early 2011 to join Starn, O’Toole, Marcus & Fisher, working in complex civil litigation.  Among his most important work at the firm, Bennett defended the University of Hawaii against suits by students alleging data breaches, successfully settling the case.[18]  He also represented the Hawaii legislature as amicus before the Hawaii Supreme Court.[19]

While at Starn O’Toole, Bennett also worked as an arbitrator and mediator, requiring him to judge and resolve complex disputes.  Over the last seven years, Bennett has served as an arbitrator in four cases and as a mediator in six.[20]

Attorney General of Hawaii

From 2002 to 2010, Bennett served as Attorney General for the State of Hawaii, an appointed position.  In this role, Bennett defended state laws and policies against litigation, as well as taking on affirmative criminal and civil actions against individuals and corporations.  We summarize some of the legal positions Bennett took as Attorney General.

Gun Control

In 2008, the U.S. Supreme Court struck down the District of Columbia’s ban on ownership of handguns, finding an individual right to bear arms in the Second Amendment of the U.S. Constitution.[21]  When the case was being argued, state attorneys general of both parties weighed in both in favor of and against the D.C. ban.[22]  While 31 attorneys general weighed in against the ban, five, including Bennett, signed onto a brief supporting it.[23]  Speaking about the case, Bennett noted:

“We think that a decision that the Second Amendment prohibits strict gun-control laws is just wrong.”[24]

Notably, at the time of the suit, Hawaii had some of the strictest gun control laws in the country.[25]

Takings

In 2005, Bennett argued Lingle v. Chevron before the Supreme Court.  The case involved a challenge by Chevron to a Hawaii law that limited the rent that Chevron could charge to independent gasoline dealers leasing their stations.  After the Ninth Circuit struck down the law as an unconstitutional “taking” of Chevron’s property, Bennett defended the law in oral arguments before the Supreme Court.[26]  The Supreme Court unanimously held for Hawaii and Bennett’s position, arguing that state economic regulation did not necessarily constitute a “taking” even where it did not advance a legitimate state interest.[27]

LGBT Rights in Hawaii Prisons

In the mid-2000s, the Department of Justice filed a civil rights suit against the State of Hawaii on behalf of three LGBT inmates who faced harassment and abuse from prison staff.[28]  Hawaii also faced a related suit brought by the ACLU.[29]  As Attorney General, Bennett helped settle the suit against the federal government, with Hawaii agreeing to increased conditions and monitoring of its youth prisons, more resources for suicide prevention and the prevention of sexual abuse, and criminal background checks against prison officials.[30]

Discrimination and the Statute of Limitations

Jones v. R.R. Donnelly & Sons Co. involved an action for racial discrimination brought by African American plaintiffs against a printing company.[31]  The key question before the Supreme Court was whether a four-year federal statute of limitation established for all acts passed after 1990 covered the suit in question.  Bennett joined five other state attorneys general, led by future Eleventh Circuit Judge Bill Pryor (and argued by another future Eleventh Circuit Judge, Kevin Newsom), in filing an amicus brief urging the application of a two year statute of limitations under state law.[32]  However, the Supreme Court unanimously rejected Bennett’s position, holding that the four year federal statute of limitations applied to the action in this case.[33]

Incidental Use of Religion in Public Life

Bennett has weighed in as amicus in two court of appeals cases involving the incidental use of religion in public life.  The first case involved a challenge to the voluntary recitation of the pledge of allegiance, which the plaintiff argued was a violation of the Establishment Clause.[34]  Bennett joined an amicus brief on behalf of 30 state attorneys general supporting Loudoun County.[35]  The Fourth Circuit held that the voluntary recitation of the pledge did not violate the Establishment Clause.[36]

The second case was a challenge from notable atheist Michael Newdow to the use of prayer and the phrase “so help me God” in the inauguration ceremony of President Barack Obama.[37]  Bennett joined all 50 state attorneys general in an amicus brief opposing the plaintiffs in the case.[38]  The D.C. Circuit found that the plaintiffs lacked standing.[39]

Rights of Native Hawaiians

As Attorney General, Bennett was a strong advocate for Native Hawaiians’ rights.  For example, Bennett testified in the Senate in support of the Akaka bill, sponsored by former Sen. Daniel Akaka (D-Hawaii), which conferred the same status to native Hawaiians as enjoyed by all other recognized native tribes.[40]

Additionally, Bennett strongly defended the Kamehameha Schools (a group of Hawaii private schools) policy favoring admission for native Hawaiians.  After a Ninth Circuit panel struck down the policy as unconstitutional discrimination, Bennett successfully persuaded an en banc panel to uphold the policy on a 8-7 vote.[41]  Bennett argued that the policy was permissible even though it was intended to create opportunities for native Hawaiians and not for diversity purposes.[42]

Nevertheless, Bennett has taken adverse positions to those of Native Hawaiians.  Notably, he successfully persuaded a unanimous Supreme Court that the “apology resolution” passed by Congress signaling the rights of native Hawaiians to their “ancestral territory” did not create substantive rights that restricted the State of Hawaii.[43]

Overall Assessment

As noted above, Bennett’s age makes him a fairly unusual pick from the Trump Administration.  That being said, his age and level of experience brings several advantages in the confirmation process.  Firstly, it is more difficult to attack Bennett as unqualified or inexperienced.  Rather, objective observers can agree that Bennett possesses the requisite legal qualifications for an appellate appointment.  Secondly, it defuses attacks from Democrats, who might be concerned that defeating Bennett would lead to a younger appointment from Trump.

The disadvantage of Bennett’s long legal history is that it can be mined for partisan opposition.  However, Bennett’s record provides no obvious fault lines for Democrats to oppose his nomination.  Bennett has not taken any positions on many legal hot button issues, including reproductive rights, and the positions he has taken (e.g. gun control) are hardly conservative.

Rather, had Bennett been nominated by a Democratic president, it is likely that Bennett would have drawn strong opposition from conservatives, given his defense of Hawaii’s strong gun laws, and affirmative action based admissions policies.  As the nomination comes from Trump, most conservative opposition is likely to be muted.

Additionally, it is important to note that Bennett’s defense of both gun control and race-based admissions policies were made in his capacity as Hawaii Attorney General.  Given that the Attorney General is charged with defending Hawaii’s laws, Bennett had an ethical responsibility to mount a strong defense.  As such, one cannot necessarily attribute the positions that Bennett took as Attorney General as his own legal views.

Overall, Bennett represents the kind of appellate nominee who should be more common: a credential, experienced advocate with expertise in a wide range of legal issues.  Barring any flare-ups over the positions he advocated as Attorney General, he should be confirmed smoothly.

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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] See Tim Ruel, Lingle Recruits Texaco Defense Lawyer, Honolulu Star-Tribune, Dec. 10, 2002, http://archives.starbulletin.com/2002/12/10/news/story5.html.  

[8] State Attorney General Mark Bennett to Join Law Firm, Hawaii News Now, 2010, http://www.hawaiinewsnow.com/story/13584825/state-attorney-general-mark-bennett-to-join-law-firm.

[9] See Bennett, supra n. 1 at 123.

[10] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[11] See Bennett, supra n. 1 at 97.

[12] See id.

[13] Id.

[15] Id.

[16] Id.

[17] See Ruel, supra n. 7.

[18] Gross v. University of Hawai’i, No. 11-1-1217-06 (Haw. 1st Cir. Ct.).

[19] Nelson v. Hawaiian Homes Comm’n, 2018 WL 798192 (Haw. Feb. 8, 2018).

[20] See Bennett, supra n. 1 at 99-100.

[21] District of Columbia v. Heller, 554 U.S. 570 (2008).

[22] John Gramlich, D.C. Gun-Control Case Divides State Attorneys General, Charleston Gazette, Mar. 9, 2008.

[23] Id.

[24] Id. (quoting Mark Bennett).

[25] See id.

[26] Linda Greenhouse, Justices Appear Reluctant to Increase Land-Use Oversight, N.Y. Times, Feb. 23, 2005.

[27] Lingle v. Chevron, 544 U.S. 528 (2005).

[28] Janis L. Magin, Hawaii Agrees to Broad Changes in Procedures for Incarcerated Gay Youths, N.Y. Times, Feb. 13, 2006.

[29] See id.

[30] Id. 

[31] 541 U.S. 369 (2004).

[32] See id.

[33] Id.

[34] Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395 (4th Cir. 2005).

[35] Id. 

[36] Id. 

[37] Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010).

[38] Id.

[39] Id.

[40] See Testimony of Hawaii Attorney General Mark J. Bennett in Support of Passage of the Akaka Bill, Hawaii Bar Journal (July 2006).

[41] Z-Nation, Schools’ Hawaiians-First Rule Ok’ed, Monterey County Herald, Dec. 6, 2006.

[42] Id.

[43] See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009).

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Ryan Bounds – Nominee for the U.S. Court of Appeals for the Ninth Circuit

Ryan Bounds, a federal prosecutor, is President Trump’s first nominee for the Ninth Circuit Court of Appeals.  An Oregon native and an accomplished lawyer, with experience in private practice and the public sector, Bounds has not received the support of the state’s senators, who contend that his nomination was made in contravention of the state’s bipartisan selection process.

Background

Ryan Wesley Bounds was born on June 28, 1973 and is a Hermiston, Oregon native.[1]  He graduated from Stanford University in 1995 with a B.A. in psychology and political science.  At Stanford, he was an editor of the conservative student-run newspaper, The Stanford Review,[2] and of The Thinker, a Stanford newspaper that Bounds and a liberal student founded with the stated goal of providing a neutral forum to express opposing opinions about the topics du jour, an ethos captured in its masthead: “For every issue, there is another side; think about it.”[3]  In 1999,

Bounds graduated from Yale Law School, where he was editor-in-chief of the Yale Law and Policy Review, an editor of the Yale Law Journal, and vice-president of the Yale Federalist Society.[4]  He was also editor-in-chief of a 1998 Federalist Society symposium issue of the Harvard Journal of Law and Public Policy.[5]

From 1999-2000, Bounds clerked for Judge Diarmuid  F. O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit,[6] whose vacancy he would fill if confirmed.[7]  From 2000-04, he practiced commercial law at Stoel Rives LLP in Portland, Oregon.[8]  From 2004-07, he served as Deputy Assistant Attorney General and Chief of Staff in the Office of Legal Policy at the DOJ.  From 2007-08 and for part of 2009 he was the Special Assistant United States Attorney for the District of Columbia.  From 2008-09 he was the Special Assistant to the President for Justice and Immigration Policy for the Domestic Policy Council.[9]  From 2010 until the present, he has prosecuted federal crimes as an Assistant U.S. Attorney for the District of Oregon.10

History of the Seat

Bounds has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with O’Scannlain’s move to senior status.  Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.11  Oregon’s two democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez to the White House.  However, the White House nominated Bounds on September 7, 2017.

In response, both Wyden and Merkley declined to return blue slips on Bounds, noting, in a letter to White House Counsel Don McGahn that Bounds had not been approved by the state’s bipartisan judicial selection committee as of his nomination date, and that they had not been adequately consulted.12  McGahn disputed the lack of consultation and instread criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.13  Bounds’ American Bar Association rating is ‘Unanimously Qualified.’14

Legal Career

Bounds has a well-rounded legal career: trial and appellate work, civil and criminal work, and government and private practice at a top firm in Portland.15  Bounds’ career as an Assistant U.S. Attorney has centered on prosecuting immigration crimes (2010-2011) and fraud and environmental crimes (2011-present).16

Most of the major actions Bounds has worked on are in immigration and criminal law. The following cases are examples of his work: U.S. v. Vasquez, 843 F. Supp. 2d 1147 (D. Or. 2012) (dismissing assault with a dangerous weapon indictment because prison floor that defendant inmate slammed his victim into was not a dangerous weapon); U.S. v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1170 (D. Or. 2012)(holding illegal entry defendant in custodypending prosecution violated his statutory right to pretrial release); U.S. v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) (illegal entry defendant had been adequately informed that he was ineligible for voluntary departure due to previous rape conviction, and could not successfully collaterally attack his earlier removal order on grounds that he had not been so advised);Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (Board of Immigration Appeals abused its discretion by denying defendant’s motion to reopen his case as untimely because equitable tolling applied); Price v. U.S., 985 A.2d 434, 435 (D.C. Cir. 2009) (affirming theft conviction).

Speeches/Writings

As Deputy Assistant Attorney General, Bounds advocated for the maintenance of the Prison Litigation Reform Act (PLRA) when the issue was before the House of Representatives in 2007.  The question at bar was whether the PLRA’s terms, including the requirement that prisoners exhaust administrative remedies, that attorney’s fees are capped at 150% of any monetary recovery (i.e., if the recovery is $1, the PLRA caps attorney’s fees at $1.50), and that serial filers will be liable for court costs, have led to meritorious claims of prison abuses going unremedied.17  Bounds argued that the PLRA’s stated objective of decreasing frivolous prisoner lawsuits”has preserved the ability of legitimately harmed inmates to gain access to the courts and prevented the negative effects of frivolous cases in ever greater numbers.”18

While an undergrad at Stanford, Bounds co-founded The Thinker, a student publication aimed at providing a neutral forum where people of different political views can express their opinions freely and thoughtfully.20  Explaining what led him to co-found the paper, he expressed irritation “that there were some issues that I couldn’t talk about honestly on this campus.”  Bounds called Stanford’s conservative publication, The Review, “a service” in providing a forum where “people don’t toe the liberal line,” as in the liberal publication Stanford Daily, but saw the need for a single platform where “people with opposing viewpoints can meet on common ground.”21

Overall Assessment

Bounds’ relatively long, diverse career in litigation makes him an experienced candidate for the bench. While Bounds’ political orientation is decidedly conservative, his public positions have not been dogmatic or particularly ideological.  If Bounds is able to overcome the blue slip hurdle and gain the support of his home state senators, he will likely be confirmed.

[1]1http://pioneercourthouse.org/board-members-bios.html; http://www.oregonlive.com/portland/index.ssf/2017/09/trump_nominates_oregon_federal.html

[3]3https://web.stanford.edu/dept/news/pr/95/950605Arc5195.html

[4]4https://ballotpedia.org/Ryan_Bounds

[5]5https://ballotpedia.org/Ryan_Bounds; http://heinonline.org/HOL/LandingPage?handle=hein.journals/hjlpp21&div=8&id=&page=

[6]6https://ballotpedia.org/Ryan_Bounds

[7]7https://www.congress.gov/nomination/115th-congress/987

[8]8https://ballotpedia.org/Ryan_Bounds

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