Ninth Circuit

Judge Gabriel Sanchez – Nominee to the U.S. Court of Appeals for the Ninth Circuit

California appellate judge Gabriel Sanchez makes a young, credentialed, and well-connected candidate for the Ninth Circuit to complete the three-judge package with Judges Koh and Thomas.

Background

A native of Los Angeles, Gabriel P. Sanchez received a B.A. from Yale College in 1998 and then worked as a Fulbright scholar in Argentina. Sanchez then received an M. Phil. from the University of Cambridge in 2000 and a J.D. from the Yale Law School in 2005. After graduating from law school, Sanchez clerked for Judge Richard Paez on the U.S. Court of Appeals for the Ninth Circuit and then joined Munger Tolles & Olson as an Associate.

Sanchez left Munger in 2011 and, after a brief stint with the California Attorney General’s Office, joined the staff of Governor Jerry Brown as Deputy Legal Affairs Secretary.

In 2018, Brown appointed Sanchez to the California Court of Appeal, First Appellate District, where he currently serves as a judge.

History of the Seat

Sanchez has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit to be vacated by Judge Marsha Berzon’s move to senior status.

Legal Experience

Sanchez started his career as a law clerk to Judge Richard Paez on the Ninth Circuit, and then spent six years at Munger, Tolles, and Olson, a firm that has produced multiple Ninth Circuit judges. He then spent eight years working for Governor Jerry Brown.

Munger Tolles and Olson

From 2006 to 2011, Sanchez worked at Munger Tolles and Olson, working alongside future Ninth Circuit Judges Paul Watford, John Owens, Michelle Freidland, and Daniel Collins. Among the cases he handled there, Sanchez represented one of the Defendants in a tort suit seeking damages for injuries allegedly suffered by a Navy serviceman due to asbestos exposure. See Taylor v. Elliott Turbomachinery Co. Inc., 170 Cal. App. 4th 564 (2009). He was also, alongside Collins, on the legal team for Occidental Petroleum in a challenge by environmental groups alleging destruction and illegal contamination. Carijano v. Occidental Petroleum Corp., 626 F.3d 1137 (9th Cir. 2010).

Additionally, Sanchez handled a number of civil rights cases as Munger, including representing the Lawyer’s Committee on Civil Rights in defending California’s policy of allowing undocumented state residents to pay in state tuition. Martinez v. Regents of the University of California, 241 P.3d 855 (Cal. 2010). He also challenged the State of California’s heat-illness-prevention regulation as constitutionally inadequate on behalf of the ACLU. See Bautista v. State of California, 201 Cal. App. 4th 716 (2011). His work in this case won him the ACLU of Southern California’s Social Justice Award in 2010.

Governor Brown’s Office

From 2011 to 2018, Sanchez served as Deputy Legal Affairs Secretary for Governor Jerry Brown, where he advised the Governor on criminal justice issues, as well as executive appointments, and clemency. Among the matters he handled there, Sanchez was the principal author of the Public Safety and Rehabilitation Act of 2016, which expanded rehabiilitative programs, limited prosecutors’ authority to try youth as adults without transfer hearings, and established a framework for prison safety regulations.

Jurisprudence

Since 2018, Sanchez has served as a Justice on the California Court of Appeal, First Appellate District, an intermediate appellate court that hears both criminal and civil cases. On the court, Sanchez joined a unanimous decision by the Court of Appeals reversing the denial of Batson challenges for dismissing a prospective juror who expressed support for Black Lives Matter. Sanchez also joined a unanimous decision reversing a conviction for gross vehicular manslaughter because the prosecutor misstated the law in his closing argument.

Among opinions he authored, Sanchez held that California law did not impose a deadline for the Governor to certify proposed construction projects for expedited administrative and judicial review under the California Environmental Quality Act.

Overall Assessment

As previously noted on this blog, Sanchez, with his youth, stellar credentials, and varied experience, makes for an attractive candidate for the court of appeals. While this is likely to draw opposition from conservatives, it is unlikely to derail his nomination altogether. If Democrats are disciplined, they can confirm Sanchez to the Ninth Circuit by the end of the year, adding a new liberal voice to the court.

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Judge Lucy Koh – Nominee to the U.S. Court of Appeals for the Ninth Circuit

This is Judge Lucy Koh’s second chance at a Ninth Circuit seat, having first been nominated by President Obama but never confirmed. With a Democratic Senate, Koh’s chances look significantly better this time around.

Background

Born August 7, 1968 in Washington D.C., Koh grew up in Maryland, Mississippi, and Oklahoma before attending Harvard University and Harvard Law School. After graduating from law school, Koh worked for the Senate Judiciary Committee in Washington D.C. and then for the U.S. Department of Justice.

In 1997, Koh became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California. She left this post in 2000 to become a Senior Associate with Wilson Sonsini Goodrich & Rosati in Palo Alto and in 2002, became a Partner with McDermott Will & Emery LLP.

In 2008, Gov. Arnold Schwarzenegger appointed Koh to the Santa Clara Superior Court. In 2010, President Obama appointed Koh to replace Judge Ronald Whyte on the U.S. District Court for the Northern District of California.

On February 25, 2016, Obama nominated Koh to the Ninth Circuit to replace Judge Harry Pregerson. Despite the Senate being controlled by Republicans, the Senate Judiciary Committee favorably reported Koh’s nomination to the Senate floor on September 20, 2021. However, Koh never received a final vote of confirmation and the seat was later filled by Trump appointee Daniel Collins. Koh remains a judge on the Northern District of California.

History of the Seat

Koh has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. This seat will open when Judge Richard Paez takes senior status upon the confirmation of his successor.

Writings and Statements

While a student at Harvard, Koh both wrote and advocated on more diversity in hiring and academia, organizing a 1989 rally to promote the hiring of female and minority faculty. See, e.g., Campus Life: Harvard: The Flames of Student Protest Still Flicker, N.Y. Times, Mar. 19, 1989; see also Lucy Koh, Combatting Inequity, Public Interest Job Search Guide (Harvard Law School 6th ed. 1995). Koh continued her advocacy on this issue through law school. See Elizabeth A. Brown, Harvard Law School Sued, Christian Science Monitor, Dec. 26, 1990.

Legal Experience

Before joining the bench, Koh worked in a variety of positions, including in government, as a prosecutor, and in private practice. Throughout this time, Koh tried seven cases as either sole or co-counsel, three before juries, and four before judges. Among these trials, Koh led the prosecution of four defendants for a telemarketing fraud that cost $5 million to consumers, leading to the conviction of all four. United States v. Stapleton, SA CR-99-47(A)-GLT (C.D. Cal.).

On the appellate side, while in private practice, Koh successfully convinced the en banc Federal Circuit Court of Appeals to overturn prior precedent and place the burden of proof for willful patent infringement on challengers rather than defendants. See In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc).

Jurisprudence

In 2008, Koh was appointed to the Santa Clara Superior Court, where she presided over 19 cases to verdict/judgment, including fourteen jury trials. Among her more notable cases, Koh presided over a jury trial on molesting a child and indecent exposure. People v. Valdovinos, No. CC805147 (Cal. Super. Ct. 2008).

Since 2010, Koh has served as a U.S. District Court Judge for the Northern District of California. In this role, Koh has handled a number of high profile cases. Most notably, Koh presided over a lawsuit filed by Apple alleging that Samsung infringed on its patents in making its galaxy phone. Apple, Inc. v. Samsung Electronics, Inc., 137 S. Ct. 429 (2016). A jury found that Samsung had willfully infringed on Apple’s patents and ordered over $1 billion in damages. However, Koh ordered a retrial, finding that the jury had miscalculated damages and denied Apple’s motion for an injunction stopping sales of Samsung phones, a decision reversed by the Federal Circuit. See Apple, Inc. v. Samsung Electronics, Inc., 678 F.3d 1314 (Fed. Cir. 2012). The case ended up with the Supreme Court, which unanimously reversed the jury ruling and remanded. A second jury later also found in Apple’s favor.

More recently, Koh presided over litigation regarding the Trump Administration’s September 30 deadline for conducting the U.S. Census, issuing a preliminary injunction requiring an extension to the census deadline. The Ninth Circuit later, in a 2-1 vote, declined to disturb the injunction.

Overall Assessment

The first time Koh came before the U.S. Senate for confirmation, she was confirmed unanimously. When nominated for the Ninth Circuit in 2016, Koh was approved by the Senate Judiciary Committee by a bipartisan majority. As such, Koh can be optimistic the third time around. Of the three California nominees put forward for the Ninth Circuit, Koh remains the most likely to get bipartisan support although it would still be unlikely for Koh to get more than 5-6 Republican votes. Nonetheless, one can expect Koh to be confirmed by the end of the year.

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Judge Holly Thomas – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Los Angeles County Superior Court Judge Holly Thomas is, at 41, the youngest of the four nominees to the Ninth Circuit put forward by the Biden Administration. If confirmed, Thomas would likely be a strong future contender for elevation to the Supreme Court.

Background

Thomas received her B.A. with Honors and Distinction from Stanford University in 2000 and a J.D. from Yale Law School in 2004. After graduating from law school, Thomas clerked for Judge Kim McLane Wardlaw on the U.S. Court of Appeals for the Ninth Circuit.

After her clerkship, Thomas joined the NAACP Legal Defense and Educational Fund as assistant counsel. In 2010, Thomas moved to the U.S. Department of Justice Civil Rights Division as an appellate attorney. She left the Department in 2015 to join the New York Solicitor General’s Office.

In 2016, Thomas returned to California to work for the California Department of Fair Employment and Housing. In 2018, Thomas was nominated by Gov. Jerry Brown to the Los Angeles County Superior Court, where she currently serves.

History of the Seat

Thomas has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. While the White House has not announced which seat Thomas is expected to fill on the Court, she may be nominated to replace Judge Richard Paez, who is the only Los Angeles-based judge on the Ninth Circuit taking senior status.

Legal Experience

Before joining the bench, Thomas worked primarily as a civil rights litigator. She started her career at the NAACP Legal Defense and Education Fund. At the fund, Thomas was part of the legal team that defended the University of Texas’ admissions policies, which used race as part of a variety of factors in college admissions. See Fisher v. Texas, 556 F. Supp. 2d 603 (W.D. Tex. 2008). The suit eventually ended in the Supreme Court, which upheld the policy. See id., 136 S. Ct. 2198 (2016).

From 2010 to 2015, Thomas worked for the Civil Rights Division in the U.S. Department of Justice. In this role, Thomas represented the United States in suing the Tucson School District over court supervision of a desegregation decree. Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131 (9th Cir. 2011). She also represented the government as amicus in support of female volleyball players suing Quinnipiac University for violations of Title IX. See Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012).

In 2015, Thomas left the Department of Justice to join the New York Solicitor General’s Office. During her time with that office, Thomas helped defend New York’s ban on assisted suicide. See Myers v. Schneiderman, 140 A.D.3d 51 (N.Y. App. Div. 2016). She also argued before the Second Circuit arguing that the Eighth Amendment complaint of a state prisoner should be dismissed for failure to exhaust administrative remedies (the Circuit, in an opinion by Judge Robert Katzmann, disagreed). Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016).

Jurisprudence

Since 2018, Thomas has served as a judge on the Los Angeles Superior Court. In this role, Thomas presides over trial court matters in criminal, civil, family, and other state law matters. Among the notable matters she has handled on the court, Thomas dismissed with prejudice a restraining order request by musician Elizabeth le Fey against her ex-boyfriend Sam France, finding that she had failed to disclose a prior restraining order against her by him on her application. Thomas’ ruling attracted criticism from some Los Angeles family lawyers, who noted that le Fey was proceeding without an attorney and that she had disclosed the restraining order in a different place on her application.

Overall Assessment

While Thomas doesn’t have a history of controversial statements, she is nonetheless likely to attract strong opposition for three reasons: first, her comparative youth; second, her history of work as a civil rights attorney; and third, her promise as a future SCOTUS candidate. Nonetheless, Thomas looks favored to win confirmation by the end of the year and to add a liberal voice to the Ninth Circuit.

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Jennifer Sung – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Labor-side attorneys aren’t commonly selected for the federal bench, even by past Democratic Administrations. As such, the nomination of Jennifer Sung, who has spent her entire career representing unions and workers’ rights organizations, to the Ninth Circuit is particularly notable.

Background

Jennifer Sung received her B.A. from Oberlin College in 1994 and then spent three years working as a labor organizer for the Service Employees International Union Local 74. She then spent three years as an organizer with the Service Employees International Union Local 1199 before joining Yale Law School. After graduating, Sung clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then served as a Skadden Fellow at the Brennan Center for Justice at New York University Law School.

In 2007, Sung joined the San Francisco office of Altshuler Berzon LLP, a union-side labor law firm established by now-Ninth Circuit Judge Marsha Berzon. In 2013, Sung became a Partner with McKanna Bishop Joffe LLP in Portland. Since 2017, Sung has been a member of the Oregon Employment Relations Board, where she helps to resolve labor disputes and conflicts.

History of the Seat

Sung has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit. This seat is currently held by Judge Susan Graber, who has announced her intention to move to senior status upon confirmation of her successor.

Legal Experience

Consistent with her work as a labor organizer prior to law school, Sung has spent her career as a labor lawyer, frequently representing unions and worker’s groups. Some of her prominent cases are summarized below.

Challenge to Arizona SB 1365

In 2011, Sung represented the Local 5 Service Employees International Union in challenging Arizona SB 1365, which limited public employees’ ability to send payroll deductions to certain unions that engaged in political activity. See United Food & Commer. Workers Local 99 v. Brewer, 817 F. Supp. 2d 1118 (D. Ariz. 2011). The law was enjoined by U.S. District Judge Murray Snow, who found that it violated the First Amendment. See id.

Challenge to ACA Individual Mandate

In 2011, Virginia challenged the individual mandate of the Affordable Care Act as unconstitutional and won before the U.S. District Court. Sung represented the Service Employees International Union as amicus before the Fourth Circuit urging the court to uphold the mandate. See Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). The Court upheld the constitutionality of the individual mandate (and the U.S. Supreme Court eventually agreed). See id.

New York Transit Strike of 2005

In 2005, during negotiations over a new collective bargaining agreement between transportation unions and the the New York City Transit Authority, the Authority obtained an injunction pursuant to New York’s Taylor Law to prevent the unions from striking. See New York City Tr. Auth. v. Transport Workers Union of A., 35 A.3d 73, 75 (N.Y. App. Div. 2006). When the Local 100 of Transport Workers Union of America initiated a strike anyway, it was found in contempt and fined $1 million per day. See id. Sung represented amicus in supporting the Union’s challenge to the contempt citation on appeal. See id. However, the Appellate Division of the New York Supreme Court upheld the citation against the Union’s Sixth and Fourteenth Amendment challenges. See id.

Los Angeles Worker Retention Ordinance

In 2011, Sung represented amicus in defending the City of Los Angeles worker retention ordinance, which limited employers’ ability to replace their workforces. See California Grocers Ass’n v. City of Los Angeles, 52 Cal. 4th 177 (2011). While the California Court of Appeals struck down the ordinance as being pre-empted by state law, the California Supreme Court upheld the ordinance. See id. at 210.

Legislative and Policy Work

While at the Brennan Center, Sung also worked on labor policy outside of the litigation context. For example, Sung advised the New York Working Families Policy in developing a proposal to tax companies, such as Wal Mart, who failed to provide health benefits for their workers. See Danny Hakim, Wal-Mart Looms Over 2 Bills to Improve Worker Health Care, N.Y. Times, Mar. 8, 2006. Sung also helped draft a Chicago ordinance requiring big box retailers, such as Wal-Mart, to provide a living wage to employees. See Gretchen Ruethling, In Chicago, New Pay Law Is Considered for Big Stores, N.Y. Times, May 28, 2006.

Overall Assessment

With extensive experience in labor law, Jennifer Sung has an unusual background for an appellate nominee. Not since Marsha Berzon was appointed to the Ninth Circuit in 2000 has such a nominee been picked for the Ninth Circuit. Based on her representations and her work in drafting ordinances and legislation, Sung is likely to attract opposition from most Senate Republicans. However, assuming that Democrats stick together, they should be able to confirm Sung by the Fall. Once confirmed, it is likely that Sung would establish a jurisprudential profile similar to that of Berzon’s.

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Lawrence VanDyke – Nominee to the U.S. Court of Appeals for the Ninth Circuit

The Senate votes today on one of the most controversial Trump nominees of this year: Lawrence VanDyke.

Background

Lawrence James Christopher VanDyke was born in 1972 in Midland TX.  After getting a B.S. from Montana State University in 1997, VanDyke attended Harvard Law School, where he graduated magna cum laude in 2005.  After graduating from law school, VanDyke clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit and then became an associate at Gibson Dunn in Dallas.[1] 

In 2012, VanDyke served as Assistant Solicitor General in Texas for a year before being selected by newly elected Attorney General Tim Fox as Attorney General in Montana.[2]  In 2014, VanDyke ran for a seat on the Montana Supreme Court but was not elected.  He then moved to Nevada to become Nevada’s Solicitor General under Attorney General Paul Laxalt.[3] 

In 2019, after Laxalt left and the Nevada Attorney General’s Office fell to Democrats, VanDyke joined the Department of Justice as Deputy Assistant Attorney General in the Environmental Division.

History of the Seat

VanDyke has been nominated for a future vacancy that will open upon the retirement of Judge Jay Bybee on December 31, 2019.  VanDyke was contacted by the White House to gauge his interest in a Ninth Circuit appointment in July 2019 and was nominated on September 19, 2019.

Legal Career

While VanDyke started his legal career as an associate at Gibson Dunn, the bulk of his career has been spent at the Solicitor General’s Offices in Texas, Montana, and Nevada.  Over his career, VanDyke has litigated extensively in state and federal courts.

In addition, VanDyke has also represented a number of conservative organizations and entities, including Alliance Defending Freedom, First Liberty, and Gays & Lesbians for Individual Liberty.

In particular, VanDyke has litigated against federal regulations, successfully enjoining a Department of Labor rule that reduced the number of employees who were exempt from overtime pay under the Fair Labor Standards Act.[4]

Writings

Consistent with the rest of his legal career, VanDyke’s writings generally reflect a conservative legal and political philosophy.  For example, as a law student, VanDyke authored a book review of Francis Beckwith’s Law, Darwinism, & Public Education: The Establishment Clause and the Challenge of Intelligent Design.[5]  In the article, VanDyke discusses Beckwith’s view on intelligent design, and suggests that it can be taught in the classroom without violating the Establishment Clause, arguing that intelligent design should be treated as akin to empirical fact rather than treating it as a religion.  VanDyke’s view drew sharp criticism from commentators who noted that intelligent design relies on Biblical principles rather than empirically determined facts.[6]

Additionally, while at Harvard, VanDyke authored a defense of Prof. Mary Ann Glendon, who had authored an editorial against gay marriage.[7]  The post, written in 2004, argues that social science research from Scandinavia suggests that same-sex marriage hurts “families, and consequently children and society.”[8]  He also notes that an expansion of rights for same-sex couples, including marriage, would infringe upon the rights of those with religious objections to such unions.[9]

Political Activity

In 2014, VanDyke challenged incumbent Montana Supreme Court Justice Mike Wheat.  VanDyke resigned as Solicitor General shortly before his challenge to Wheat, noting that he had “disagreements with co-workers over his approach to the job.”[10]  The campaign was heated, and VanDyke received a fair amount of criticism for his prior writings and speeches, particularly his views on intelligent design and on LGBT rights.[11]  During the election, VanDyke sought the endorsement of the National Rifle Association, endorsing a broad view of gun rights and noting that he had avoided becoming a member of the NRA in order to avoid recusal issues in his office.[12]  Wheat ultimately won the election by a comfortable margin.[13]

ABA Controversy

As it has done for every judicial nominee since the Eisenhower Administration, the American Bar Association Standing Committee on the Federal Judiciary conducted a review of VanDyke’s record.  After reviewing his record and conducting around 60 interviews with colleagues, judges, and attorneys, the ABA rated VanDyke as “Not Qualified.”[14]  In the letter, the ABA noted that some of the interviewees described VanDyke as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.”[15]  The ABA’s rating and letter has drawn criticism from Republicans who argue that the organization is biased against Trump nominees.[16]  For his part, the criticism raised complaints from VanDyke himself who argued that he was not given adequate time to explain the criticisms during his interview.

Overall Assessment

Today, the Senate will vote on and likely confirm Lawrence VanDyke to the Ninth Circuit.  Ironically, in framing its criticism of VanDyke in unusually candid terms, the ABA has likely ensured that VanDyke will ultimately be confirmed by making themselves a bugbear.

Let us set out the obvious: VanDyke has the academic qualifications for an appellate seat.  Even the ABA does not dispute this point.  As such, the real question is whether VanDyke’s history suggests that he would be a fair and impartial judge on the Ninth Circuit.  Opponents will find plenty in VanDyke’s record to argue that he will not, including his history of advocacy for conservative causes, his writings, and his NRA questionnaire.  

As such, this confirmation, like so many before in this Administration, will come down to a vote of Republicans v. Democrats.  In this Senate, that means that Republicans win.

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

[2] Id. at 2.

[3] Id.

[4] Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795 (E.D. Tex. 2017).

[5] Lawrence VanDyke, Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom, 117 Harv. L. Rev. 964 (2004).

[6] See Don Pogreba, A Creationist for the Montana Supreme Court? A Review of Lawrence VanDyke, The Montana Post, March 17, 2014, https://themontanapost.com/blog/2014/03/17/a-creationist-for-the-montana-supreme-court-a-review-of-lawrence-vandyke/.  

[7] Lawrence VanDyke, One Student’s Response to “A Response to Glendon”, Harvard Law Record, Mar. 11, 2004, http://hlrecord.org/one-students-response-to-a-response-to-glendon/.  

[8] See id.

[9] Id.

[10] Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47, 96 (Spring 2015).

[11] See John D. Echeverria, State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington, and Wisconsin, 16 Vt. J. Envr. L. 363, 365-66 (Spring 2015).

[12] See Lawrence Van Dyke, Questionnaire for the National Rifle Association, https://www.judiciary.senate.gov/imo/media/doc/VanDyke%20-%20NRA%20Questionnaire.pdf.  

[13] See id.

[14] See Letter from William C. Hubbard, https://src.bna.com/Msq.  

[15] Id.

[16] See Madison Adler and Melissa Heelan Stanzione, Judicial Ratings Draw Ire of Left, Right After Tearful Hearing, Bloomberg Law, Nov. 6, 2019, https://news.bloomberglaw.com/us-law-week/judicial-ratings-draw-ire-of-left-right-after-tearful-hearing.  

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Patrick Bumatay – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Patrick Bumatay was originally nominated last year, amidst much self-congratulatory fanfare, for the Ninth Circuit, with many noting that Bumatay, if confirmed, would be the first openly LGBT circuit judge on the territorial courts of appeals.  However, the opposition of California’s Democratic Senators downgraded Bumatay’s nomination to the district court level.  However, with his nomination still stalled, the White House has tapped Bumatay again for the Ninth Circuit.

Background

Patrick Joseph Bumatay was born on February 14, 1978.  As a college student, Bumatay interned for the consulting company run by Kellyanne Fitzpatrick (now Kellyanne Conway, counselor to the President).  Bumatay attended Yale University and then Harvard Law School.  He then clerked for Judge Sandra Townes on the U.S. District Court for the Eastern District of New York and for Judge Timothy Tymkovich on the U.S. Court of Appeals for the Tenth Circuit.

After his clerkships, Bumatay joined Morvillo Abramowitz Grand Iason Anello & Bohrer P.C. in New York.  In 2012, Bumatay moved to San Diego to join the U.S. Attorney’s Office for the Southern District of California, where he still works.  However, since 2017, Bumatay has been on detail with the Department of Justice, working in the Attorney General’s office.

History of the Seat

Bumatay has been nominated to the U.S. Court of Appeals for the Ninth Circuit to fill a seat being vacated by Judge Carlos Bea.  Bumatay was previously nominated for a seat on the U.S. Court of Appeals for the Ninth Circuit vacated by Judge Alex Kozinski on October 10, 2018.  However, due to the opposition of California Senators Dianne Feinstein and Kamala Harris, Bumatay was renominated to the U.S. District Court for the Southern District of California, to a seat vacated on September 30, 2016, by Judge Marilyn Huff’s move to senior status.  Instead, President Trump nominated Dan Bress, a D.C. based attorney, to the Kozinski seat (Bress was subsequently confirmed).  However, Bumatay’s nomination to the District Court didn’t move either, potentially because of blue slip issues.  Instead, he was once again tapped for the Ninth Circuit.

Legal Experience

Bumatay has spent his career in two primary positions, at the firm of Morvillo Abramowitz Grand Iason Anello & Bohrer P.C. and at the U.S. Attorney’s Office in the Southern District of California.  In the former position, Bumatay worked on both regulatory and litigation matters, including representing the asset management firm GAMCO in defending against a suit filed by account holders who lost money through GAMCO’s investment in Bernie Madoff’s Ponzi scheme.[1] 

As a federal prosecutor, Bumatay tried eight criminal cases to verdict, focusing largely on drug and immigration cases.  For example, Bumatay tried a number of defendants for the maritime drug trafficking of cocaine.[2]  Bumatay also prosecuted Nicholas Zakov for smuggling Mexican citizens into the United States in his trunk (both citizens unfortunately passed away during the journey).[3]

Since 2017, Bumatay has been on detail at the Department of Justice, where he has overseen criminal and civil policy in the Attorney General’s and Deputy Attorney General’s Offices.

Political Activity

While in college, Bumatay was a member of Yale’s Conservative Party.[4]  Notably, Bumatay, as a college student, was sharply critical of affirmative action, mocking proponents by stating:

“…all men are created equal — unless they are Asian or white.”[5]

Later, Bumatay became co-president of the Yale College Republicans, and supported Republican candidates in New Hampshire.[6]  He also defended President Bush’s grades in college, stating:

“Grades that he got from 25 years ago will not reflect how well he can lead the country.”[7]

Bumatay has also donated to the campaigns of Bush in 2003 and Romney in 2011 and 2012.[8]

Overall Assessment

The White House and California’s Democratic Senators have already had some public clashes over the three California Ninth Circuit nominees confirmed so far.  They are similarly clashing over Bumatay.  Nevertheless, at a time when partisanship on judicial nominees has reached an all-time high, it may be sufficient for Republican senators that Bumatay is a Republican nominated by Trump, which should lead to his confirmation.

[1] See Rioseco v. Gamco Asset Mgmt., Inc., No. 15862/10 (N.Y. Super. Ct., Westchester Cty., Comm. Div. Sept. 23, 2011).

[2] See United States v. Valdez-Medina, 15CR0336-JAH (S.D. Cal. Nov. 22, 2016); United States v. Cedeno-Cedeno, 14CR3305-L (S.D. Cal. Aug. 23-30, 2016).

[3] United States v. Zakov, 14CR2363-AJB (S.D. Cal. Sept. 29, 2015).

[4] Hyorim Suh, Yale Profs Debate Affirmative Action With Harvard Teachers, Yale Daily News, Oct. 12, 1999.

[5] See id.

[6] Perry Bacon, Yale Students Hit the Campaign Trail in New Hampshire, Yale Daily News, Oct. 25, 1999.

[7] Brigitte Greenberg, Magazine Publishes Bush’s Alleged Grades, Associated Press, Nov. 10, 1999.

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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.

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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).

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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.

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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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