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).

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