Judge Danielle Hunsaker – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Last July, Ryan Bounds became a first appellate nominee to be rejected due to lack of majority support since the enactment of the nuclear option in 2013.  Bounds faced particular opposition due to the lack of support from his home-state senators.  With the senators in support of the newest candidate to that seat, Judge Danielle Hunsaker will likely be confirmed comfortably.

Background

Hunsaker was born Danielle Jo Forrest in 1977 in Roseburg, OR.  Hunsaker received her B.A. from the University of Idaho in 2001 and a J.D. from the University of Idaho Law School summa cum laude in 2004.[1]  After graduating from law school, Hunsaker clerked for Judge Paul Kelly on the U.S. Court of Appeals for the Tenth Circuit, Judge Michael Mosman on the U.S. District Court for the District of Oregon, and for Judge Diarmund O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit.[2] 

After her clerkships, Hunsaker joined Stoel Rives LLP in Portand as a Litigation Associate, and moved after a year to Larkins Vacura Keyser LLP, where she became a Partner in 2014.[3]  In 2017, Hunsaker was nominated by Gov. Kate Brown to the Washington County Circuit Court, where she currently serves.

History of the Seat

Hunsaker 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.  In 2017, Oregon attorney Ryan Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.  Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez as a potential nominee 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.  McGahn disputed the lack of consultation and instead criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.  Nonetheless, the Senate Judiciary Committee processed Bounds’ nomination.  However, the nomination failed on the Senate floor when Sen. Tim Scott announced his opposition based on writings from Bounds’ past that contained racially fraught statements.[4]

For her part, Hunsaker had applied for the vacancy with Democratic Sen. Ron Wyden.[5]  She interviewed with the White House in January 2018 (while Bounds was already the nominee) and again in July 2018 (after the defeat of Bounds’ nomination).  In June 2019, Hunsaker reapplied with Wyden and was selected as one of four finalists by Oregon’s Democratic Senators.[6]  Hunsaker’s nomination was subsequently announced by the White House.

Legal Experience

Before joining the bench, Hunsaker worked primarily as a commercial civil litigator.  Hunsaker notably represented the rideshare company Lyft in a suit to keep information on riders and drivers collected by Seattle regulators secret from access to media companies.[7]  She also represented investors in derivative actions and similar suits.  Furthermore, Hunsaker represented a prisoner injured in an excessive force claim against the guards who injured him.[8]

Jurisprudence

Hunsaker has spent the last two years serving as a circuit judge in Oregon, where she presides over criminal and civil cases on the trial level.  In this role, Hunsaker has presided over approximately 23 jury trials.  Among her more prominent cases, Hunsaker acquitted parents of a baby testing positive for methamphetamine of child abuse, ruling that the state had failed to prove the “knowing” element of child abuse.[9]

Writings

As a law student, Hunsaker authored a note discussing the Supreme Court’s decision in Ring v. Arizona and the subsequent Idaho remedial death penalty statute passed.[10]  Ring ruled that, where the death penalty is imposed, any additional aggravating factores leading to exposure to the death penalty must be determined by the jury and not by a judge.[11]  Hunsaker notes that this decision invalidated the death penalty scheme in Idaho, leading to a revised scheme wherein the jury convenes for a sentencing hearing after a determination of guilt in capital cases.[12]  Overall, Hunsaker commends the legislature for adapting the death penalty scheme post-Ring but adds that further tweaks may be necessary to ensure a role for the jury in capital sentencing.[13]

Overall Assessment

Hunsaker was not the Administration’s first choice for the Ninth Circuit, but she is nonetheless likely to get a comfortable confirmation.  Hunsaker’s Federalist Society credentials are likely to endear her to Republicans while her appointment by a Democratic Governor will ensure support from Democrats.


[1] Sen. Comm. on the Judiciary, 116th Cong., Danielle Hunsaker: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Nina Totenberg and Jessica Taylor, Appeals Court Nomination Withdrawn Before An Expected Failure on Senate Floor, Nat’l Pub. Radio, Jul. 19, 2018, https://www.npr.org/2018/07/19/630552662/appeals-court-nomination-withdrawn-before-it-was-expected-to-fail-on-senate-floo.  

[5] See Hunsaker, supra n. 1 at 45.

[6] The other three finalists included two Oregon Court of Appeals judges, Judge James Egan, and Judge Erin Lagesen, and appellate attorney Bruce Campbell.

[7] See Lyft v. King Broadcasting Co., No. 16-2-26971-1 (Wash. Circ. Ct., King Cnty.).

[8] See Tilahun v. Oregon Dep’t of Corr., No. 2:13-cv-01074 (D. Or.).

[9] State v. Richelle Seamster, No. 18CR35682 (Or. Cir. Ct. Wash. Cnty.); State v. Andre Wamulumba, No. 18CR40953 (Or. Cir. Ct. Wash. Cnty.).

[10] Danielle J. Hunsaker, The Right to a Jury “Has Never Been Efficient; But It Has Always Been Free”: Idaho Capital Juries After Ring v. Arizona, 39 Idaho L. Rev. 649 (2003).

[11] Id. at 661-62.

[12] Id. at 669-70.

[13] Id. at 688.

Daniel Bress – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Like fellow nominee Dan Collins, Daniel Bress is also a former clerk for the late Justice Antonin Scalia and also faces the joint opposition of home state senators Dianne Feinstein and Kamala Harris.

Background

Daniel Aaron Bress was born in Hollister, CA in 1979.  Bress received an A.B. from Harvard in 2001 and a J.D. from the University of Virginia Law School in 2005.[1]  After graduating from law school, Bress clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Antonin Scalia on the U.S. Supreme Court, clerking alongside future Sen. Mike Lee, and future Sixth Circuit Judge Eric Murphy.[2] 

After his clerkships, Bress joined the San Francisco Office of Munger, Tolles & Olson LLP.  He left a year later to join Kirkland & Ellis in Washington D.C. where he has been a Partner since 2011.[3] 

Additionally, Bress has taught courses on textualism as a method of constitutional and statutory interpretation at the University of Virginia and Catholic University Law Schools.[4]

History of the Seat

Bress has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 18, 2017 when Judge Alex Kozinski resigned from the bench in the midst of heavy controversy.  On October 10, 2018, Trump nominated Patrick Bumatay, a federal prosecutor who would have been the first openly gay judge on the Ninth Circuit.  Based on a disagreement with California’s Senators, however, Bumatay was withdrawn and nominated to the U.S. District Court for the Southern District of California.

In May 2017, Bress was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In late 2017 and early 2018, Bress interviewed with Advisory Committees set up by California’s Democratic Senators.[6]  Bress’ nomination was sent to the Senate on February 6, 2019.

Both of Bress’s home state senators, Sen. Dianne Feinstein and Sen. Kamala Harris, have expressed opposition to Bress’s nomination, citing Bress’ residence and career in DC and lack of ties to the California legal community.[7]

Political Activity & Memberships

Bress is a Republican who has donated to the campaigns of Mitt Romney, John McCain, and Sen. Jeff Flake.[8]  He was also a member of the D.C. Chapter of Lawyers for Romney in the 2012 elections.[9]

Furthermore, Bress 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 2003.[10] 

Legal Experience

Bress has spent his legal career as a civil litigator, most of it at the D.C. Office of Kirkland & Ellis.  Over the course of his 12 year legal career, Bress has not tried any cases to verdict but has participated in appellate matters before the U.S. Supreme Court and the federal courts of appeals.

Among the most notable cases he handled, Bress sued under California’s Parent Empowerment Act to challenge the denial of a petition to convert Palm Lane Elementary School (a public school) into a charter school.[11]  Bress, who handled the case on a pro bono basis, argued successfully that the school’s decision to reject the petition was arbitrary.[12]

In other cases, Bress is defending Honeywell Int’l in a suit against a government alleging that anti-ballistic products they manufactured were defective.[13]  He also represented an Alabama death row inmate in challenging an Alabama procedural rule on successive habeas petitions.[14]

Writings

Of Bress’ writings on the law, two are particularly notable.  As an associate at Munger, Bress coauthored an article alongside other Supreme Court clerks at the firm (including future Ninth Circuit Judge Michelle Freidland) on the death penalty.[15]  The article focused on Justice Stevens’ dissent from a 7-2 decision upholding Kentucky’s death penalty protocol in Baze v. Rees, and the changed position from Justice Stevens’ affirmation of the death penalty in Gregg v. Georgia thirty years earlier.[16]  The article posits that “constant exposure to the horrors of capital crimes and the utter finality of executions” motivated Stevens’ change in position.[17]

In the other notable article, authored as a law student, Bress argues that the inherent power of administrative agencies to reconsider their final decisions (barring any statutory authority) must be limited and proscribed.[18]

Overall Assessment

Bress may be the youngest of Trump’s three California nominees to the Ninth Circuit, but that’s not what makes him the most controversial.  Rather, the issue is geography.  Traditionally, circuit nominees have been tied to individual states within a circuit (and statutorily, each state is required to have at least one judge on a circuit).  Bress has been nominated to a California seat but has spent almost his entire legal career in Washington D.C.  In a Judiciary Committee meeting earlier this year, Chairman Lindsay Graham acknowledged the legitimacy of concerns regarding Bress’ ties to California.  Furthermore, Bress’ legal ties are primarily to the D.C. legal community and he resides in Alexandria, Virginia.  On the flip side, Bress has litigated in California courts, was born in California, and is a member of the state bar.  Nevertheless, the Alliance for Justice has already noted that Bress’ firm biography has been edited to emphasize California ties, suggesting that his supporters are concerned about the attack.[19]

Overall, Bress’ substitution for Bumatay suggests that the White House considered the former less controversial for an appellate seat.  In the unlikely event that Bress’ nomination is derailed by questions of geography, the White House could, in theory, substitute Bumatay back for the Ninth Circuit, giving the court its first openly gay judge.


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

[2] Id. at 2.

[3] Id. at 3.

[4] Id. at 30.

[5] See id. at 33.

[6] Id.

[7] See Press Release, Office of Sen. Dianne Feinstein, Feinstein: Don’t Confirm a D.C. Lawyer to California’s Seat on Ninth Circuit (May 16, 2019); Press Release, Office of Sen. Kamala Harris, Harris on Trump’s Ninth Circuit Nominee: Daniel Bress Is Not a California Lawyer (May 17, 2019).

[8] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=daniel+bress&order=desc&sort=D (last visited May 21, 2019).

[9] See Bress, supra n. 1 at 12.

[10] See id. at 5.

[11] See Ochoa v. Anaheim City Sch. Dist., 11 Cal. App. 5th 209 (2017).

[12] Joseph Pimental and Roxana Kopetman, Court to Rule on Parents’ Charter School Demand, Chico Enterprise-Record, Mar. 2, 2017.

[13] United States v. Honeywell Int’l Inc., Case No. 08-cv-961 (D.D.C.).

[14] Kuenzel v. Alabama, 137 S. Ct. 375 (No. 16-213).

[15] Jeffrey Bleich, Aimee Feinberg, Michelle Freidland, Daniel Bress, and David Han, Change of Heart – Justice Stevens Reassesses the Death Penalty, 34 San Francisco Att’y 32 (Fall 2008).

[16] Id. 

[17] Id. at 34.

[18] Daniel Bress, Administrative Reconsideration, 91 Va. L. Rev. 1737 (Nov. 2005).

[19] Press Release, Alliance for Justice, Bress is Wrong for the Ninth Circuit (May 17, 2019).

Kenneth Lee – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Jenner & Block Partner Kenneth Lee is President Trump’s first nonwhite nominee to the Ninth Circuit.  He has drawn strong opposition based largely on college writings that lay out controversial views.

Background

Kenneth Kiyul Lee was born in Seoul on August 30, 1975.  Lee received a B.A. from Cornell University in 1997 and a J.D. from the Havard Law School in 2000.[1]  After graduating from law school, Lee clerked for Judge Emilio Garza on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Lee joined Wachtell Lipton Rosen & Katz as an associate in their New York City Office.[3]  Five years later, he moved to the White House Counsel’s Office in the Bush Administration.[4]  In 2009, Lee moved to Jenner & Block’s Los Angeles Office as a Partner and has served there since.

History of the Seat

Lee has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat is scheduled to open on March 29, 2018 when Judge Stephen Reinhardt, a liberal lion, passed away.

However, Lee had been under consideration for a judicial appointment over a year earlier, when he interviewed with the White House Counsel’s Office and the Department of Justice.[5]  In November 2017, Lee interviewed with a Judicial Advisory Commission set up by Sen. Dianne Feinstein (D-CA) and in March 2018, with a Commission set up by Sen. Kamala Harris (D-CA).  Lee was formally nominated on November 13, 2018, without the support of either senator.

Political Activity & Memberships

Lee is a Republican who has occasionally donated to Republican candidates, including a $2000 donation to Sen. Tom Cotton in 2014.[6]  Lee has also donated to U.S. Sen. Ted Cruz and Rep. Elise Stefanik.[7]

Furthermore, Lee 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.[8]

Legal Experience

After his clerkship, Lee has spent his career focusing on both trial and appellate level litigation.  He has served as Chief Trial Counsel in four cases, as well as serving as Second Chair in one additional case.

Wachtell

From 2001 to 2006, Lee served as as Associate at Wachtell Lipton Rosen & Katz where he primarily handled commercial litigation.  Lee notably second-chaired a trial securing $4.6 billion in insurance damages for his client, the leaseholder of the World Trade Center, after the September 11 attacks.[9]

White House Counsel

From 2006 to 2009, Lee served as Associate Counsel to President Bush.  In that role, Lee defended the White House against investigations for the incoming Democratic Congress while working on litigation strategy in cases implicating the White House.

Jenner & Block

Since 2009, Lee has been a Partner with Jenner & Block handling matters of complex civil litigation.  During this time, Lee notably represented Kraft Foods in defending against a putative class action suit alleging false advertising relating to the fruit content in Newtons.[10]  Lee also defended Clorox in false advertising suits relating to Fresh Step cat litter ads.[11]

Writings

Like previous appellate nominees Ryan Bounds and Neomi Rao, Lee has his share of controversial writings, primarily based in his college years.  For example, in a 1993 article titled “Is America Evil,” Lee argued against criticism of racism, sexism, and homophobia in the United States.[12]  In the article, Lee suggests that criticism of structural racism arises from “statistical chicanery” and that charges of sexism are “irrelevant pouting.”[13]  Lee also writes against criticisms of sexism, noting:

“Unfortunately, no matter how many times they cry that both genders are equal, the reality is that men and women are biologically different…Anyone who disputes that fact disputes nature.  Some tasks are better suited for men, and others for women.  This is not sexism; it is reality.”[14]

Lee goes on to suggest that sexism is worse in other cultures than in America, noting that the Koran “states that ‘men have authority over women because Allah has made the one superior to the other.’”[15]

In another article, Lee wrote that “nine out of 10 people with AIDS are gay or drug users.”[16]

To be fair, Lee has walked back from many of his college writings, stating before the Judiciary Committee that he was “embarrassed” of them.[17]  His disavowal was sufficient to secure the support of Sen. Tim Scott, whose opposition killed other Trump nominees.[18]

Overall Assessment

As the Senate prepares for a final vote on Lee’s nomination, his confirmation looks likely. (While, in theory, the opposition of four GOP senators is enough to kill a nomination, the actual hurdle is higher, since many Democratic senators have been missing votes while campaigning for the Presidential nomination.)

Looking at Lee’s record overall, it reads (setting aside the college writings) as that as a mainstream (albeit conservative) nominee.  That being said, the college writings can reasonably be described as sexist, homophobic, and Islamophobic, and may be enough, in and of themselves, to persuade senators not to support Lee.  As such, senators must determine how heavily they must weigh such writings in their review of his overall record.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Lee, supra n. 1 at 27.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kenneth+lee&cycle=&state=CA&zip=&employ=&cand= (last visited May 11, 2019).  

[7] Id.

[8] See Lee, supra n. 1 at 5.

[9] SR Int’l Bus. Ins. Co., et al. v. World Trade Cntr. Props. LLC, et al., No. 01-CV-9291 (S.D.N.Y.), 345 F.3d 154 (2d Cir. 2003).

[10] Evangeline Red v. Kraft Foods, 754 F. Supp. 2d 1137 (2010); Manchouk v. Mondelez, 603 Fed. App’x 632 (9th Cir. May 18, 2015).

[11] In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (2012).

[12] Kenneth Lee, Is America Evil, The Cornell Review, Nov. 11, 1993, https://afj.org/wp-content/uploads/2019/02/Is-America-Evil.pdf.  

[13] See id.

[14] Id.

[15] Id. 

[16] Emma Dumain and Emily Cadei, Trump Pick on Track to Join Californias 9th Circuit Despite Feinstein, Harris Opposition, Sacramento Bee, Mar. 13, 2019, https://www.sacbee.com/latest-news/article227517189.html..  

[17] Id.

[18] Id.

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/.  

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)

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.  

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).