Northern District of Texas

Judge Ada Brown – Nominee to the U.S. District Court for the Northern District of Texas

Judge Ada Brown is only the second African American woman appointed by the Trump Administration to the federal bench, and would be the first African American woman on the Northern District of Texas.

Background

Ada Elene Brown was born in 1974 in Oklahoma City.  She received a Bachelor of Arts from Spellman College in 1996 and a J.D. from Emory University School of Law in 1999.[1] After graduating from law school, Brown joined the Dallas County District Attorney’s Office, working first as a Family Violence Advocate and then as an Assistant District Attorney.

In 2005, Brown was appointed to be a trial court judge in Dallas County.  She left this position in 2007 to be a Litigation Attorney at McKool Smith P.C. in Dallas.[2] 

In 2013, Gov. Rick Perry appointed Brown to the Fifth District Court of Appeals based in Dallas, where Brown currently serves.[3]

History of the Seat

Brown has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant.

The vacancy Brown has been nominated to fill opened on July 3, 2013, when Judge Terry Means moved to senior status, making it one of the oldest vacancies in the country.  On March 15, 2016, Obama nominated Judge Irma Ramirez, a federal magistrate judge, to fill the vacancy.[4]  While Judge Ramirez had the support of her home state senators and received a hearing in September 2016, her nomination never moved to the floor and thus was not confirmed.  She was not renominated to the Court by President Trump.

In April 2018, Brown interviewed with the Federal Judicial Evaluation Committee (FJEC) set up by Senators Cornyn and Cruz.  Upon Cornyn and Cruz’s recommendation, Brown was interviewed by the White House in July 2018, and officially nominated on March 26, 2019.

Legal Experience

Brown has worked both as a state prosecutor and in private practice at the firm of McKool Smith.  In the former position, Brown focused on criminal matters while handling an exclusively civil docket at the latter.[5]  Over the course of her career, Brown has tried over 200 cases, including approximately 100 jury trials.[6] 

In addition to her role as an attorney, Brown has served on the Texas Commission on Law Enforcement Standards and Education, which governs and supervises state law enforcement officials.  While a Commissioner, Brown voted to uphold the firing of Edwin Lang, a state trooper accused of falsifying DWI reports.[7]  She also voted to examine state trooper hiring policies after receiving evidence that officers who had failed polygraph tests were nonetheless hired.[8]

Jurisprudence

Brown served as a trial judge in Dallas from 2005 to 2007 and as an appellate judge since 2013.  In this role, Brown has written approximately 500 opinions as part of over 1500 cases.  Of Brown’s more prominent cases, she held that a defendant’s rights were violated when a trial judge denied a criminal defense attorney the opportunity to question prosecutors in an open hearing regarding potential Brady violations.[9] 

As a judge, Brown has shown a willingness to affirm summary dismissals of cases, even dissenting from opinions where colleagues found otherwise.  For example, in one case, the Court of Appeals affirmed the denial of dismissal for a libel case where the plaintiff had been accused of committing welfare fraud.[10]  However, Brown dissented, arguing that dismissal was appropriate as the article was satirical and thus not false, noting: “the substance of the article, especially viewed within its structure and tone, persuades me its primary purpose was to critique the food-stamps benefits system.”[11]  In another case, Brown wrote for the court in reversing a jury verdict for plaintiff after an electrical fire at their facility, holding that the evidence was insufficient to show that defendant’s negligence had caused the fire.[12]

Political Activity

Brown has been elected as a Republican to the state bench.  In addition, she has volunteered with the Dallas GOP and for local Republicans.[13]

Overall Assessment

The Northern District of Texas currently has only one African American judge serving actively on the court: Judge Sam Lindsay.  Brown is strongly favored to join Lindsay on the bench, given her youth, conservative credentials, and judicial experience.

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

[2] Id. at 2.

[3] States News Service, Gov. Perry Appoints Brown As Justice Of 5th Court of Appeals, States News Service, Sept. 3, 2013. 

[4] See supra n. 1.

[5] See Brown, supra n. 1 at 37-38.

[6] See id. at 38.

[7] Mike Ward, Firing of Star Trooper Upheld, Austin American-Statesman, July 16, 2010.

[8] Mike Ward, Some DPS Troopers Failed Polygraph Test, Austin American-Statesman, Feb. 20, 2009.

[9] Brantley v. State, No. 05-13-01060-CR, 2015 WL 846749 (Tex. App. Dallas Feb. 26, 2016 no pet.).

[10] D. Magazine Partners, L.P. v. Rosenthal, 475 S.W.3d 470 (Tex. App. Dallas 2015).

[11] See id. at 492 (Brown, J., dissenting).

[12] Oncor Elec. Delivery Co. LLC v. Southern Foods Group, LLC., 444 S.W.3d 699 (Tex. App. Dallas 2014).

[13] See Brown, supra n. 1 at 36.

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Brantley Starr – Nominee to the U.S. District Court for the Northern District of Texas

Two years ago, the First Assistant Attorney General for the Texas Attorney General’s Office, Jeff Mateer, saw his nomination implode as several controversial comments he had made in the past surfaced.  President Trump has now nominated Mateer’s deputy, Brantley Starr, to fill a lifetime appointment in Texas, where Mateer’s litigation history is likely to be a cause of controversy.

Background

A native Texan, Brantley David Starr was born in San Antonio in 1979.  He attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2004 (overlapping at both institutions with fellow Northern District nominee Matthew Kacsmaryk).[1]  After graduating from law school, Starr spent a year at the Office of the Texas Attorney General and then clerked on the Texas Supreme Court for Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit).  

After his clerkship, Starr rejoined the Texas Attorney General’s Office as a Fellow and Assistant Solicitor General.  In 2008, he joined King & Spalding LLC in Austin as an associate.  In 2011 he returned to the Texas Supreme Court as a Staff Attorney for Justice Eva Guzman.  In 2015, he rejoined the Texas Attorney General’s Office for a third time and currently serves as Deputy First Assistant Attorney General, working directly under former judicial nominee Jeff Mateer.

History of the Seat

Starr has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five of the twelve allotted judgeships for the District currently vacant.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Starr has been nominated to fill opened on September 22, 2018, when Judge Sidney Fitzwater[2] moved to senior status.  For his part, Starr interviewed for a judicial appointment in early 2017, but was not recommended at that time.[3]  Rather, Starr’s name wasn’t sent to the White House until July 2018, when he interviewed with the White House Counsel’s Office.  Starr was finally nominated on March 11, 2019.

Legal Experience

Starr has worked in three primary legal positions in his career: as a Staff Attorney to Texas Supreme Court Justice Eva Guzman; at the Austin office of King & Spalding; and at the Texas Attorney General’s Office.  While Starr largely avoided controversy in the former two positions, his stints at the Attorney General’s Office have involved him in some of the most potent legal issues currently being litigated.

Litigation

At the Attorney General’s Office, Starr has been active in much of Attorney General Ken Paxton’s strategy of activist litigation.  For example, Starr participated in a suit against the Obama Administration’s guidelines supporting the rights of transgender students.[4]  He also defended Texas’ strict voter ID law against a ruling that it was intended to discriminate against minority voters.[5] 

Testimony

In addition to his litigation work, Starr has frequently testified before the Texas legislature about proposed legislation, representing the views of the Texas Attorney General.  Starr’s testimony on these matters has generally been strongly conservative, regardless of the underlying subject matter of the legislation.  For example, Starr testified that legislation protecting the rights of adoption agencies to refuse to place children with same-sex couples was needed to protect “religious rights of conscience.”[6]  Starr also testified on legislation protecting religious objections to same-sex marriage, and persuaded legislators to drop language narrowing the protections only to actions clergy took “in their official capacity.”[7]  In other testimony, Starr suggested that state lawmakers had the flexibility to punish immigration offenses as state crimes,[8] and urged them to pass laws exempting religious groups from nondiscrimination ordinances on hiring and housing, allowing businesses not to sell to same-sex couples, and allowing government employees not to comply with Supreme Court precedent supporting same-sex marriage.[9]  Furthermore, in another instance, Starr testified that local district attorneys were neglecting enforcing the law on electoral and abortion related crimes.[10]  In response, many local prosecutors wrote that Starr’s testimony was misleading and was part of a “false narrative.”[11]

Writings

In addition to the public testimony Starr has offered in his official capacity, Starr has occasionally written on the law as well.  For example, Starr spoke favorably of Mateer’s ill-fated judicial nomination, stating:

“Jeff Mateer leaves a legacy of service to the State of Texas and will now extend that service to all Americans”[12]

In another article which he authored on behalf of the Texas Attorney General’s Office, Starr spoke on the travel ban cases, arguing that the Constitution “cannot extend to someone who is both an alien and who has not yet been admitted into the country.”[13]  In the article, Starr also suggested that a suit against Trump Administration executive orders against “sanctuary cities” may be meritorious.[14] 

Political Activity

Starr has supported Ted Cruz’s campaigns, donating to him to 2011 and 2016.[15]  In addition, Starr was a volunteer for Gov. Greg Abbott’s campaign in 2014.[16]

Overall Assessment

Starr’s nomination has already been approved by the Senate Judiciary Committee on a party-line vote.  This means that, unless four Republican senators oppose Starr, his nomination will eventually be approved on the Senate floor.  For the reasons noted below, such approval is likely but not certain.

First of all, Trump judicial nominees have generally drawn approval from most Republican senators unless there are any particularly controversial or injudicious actions in their past.  While Starr’s record is strongly conservative, he does not have such actions.  Secondly, while Starr is young, his legal ability is largely beyond debate.

However, Starr’s advocacy and testimony on behalf of the Texas Attorney General’s Office may still draw fire.  For many, “religious conscience” laws are increasingly seen as licenses to discriminate.  As such, Starr’s assertive advocacy on their behalf, and his endorsement of Mateer, may ultimately become an issue.

[1] Sen. Comm. on the Judiciary, 115th Cong., Brantley Starr: Questionnaire for Judicial Nominees 2.

[2] Fitzwater himself was nominated to the Northern District amidst controversy due to his youth and alleged participation in voter suppression efforts.  Fitzwater’s later nomination to the Fifth Circuit was never confirmed.

[3] Id. at 35.

[4] See Daily Signal, Texas Sues Obama Administration Over Transgender Bathroom Directive, Western Free Press, May 26, 2016.

[5] See Paul J. Weber, Judge Again Finds Discrimination in Texas’ Voter ID Law, Salt Lake Tribune, Apr. 10, 2017.

[6] Newstex, Committee Weighs ‘License to Discriminate’ Adoption Bill, Texas Observer, Apr. 16, 2015.

[7] Chuck Lindell, Religious Objections Bill Heads to Senate, Austin American Statesman, May 5, 2015.

[8] Laws Can Be Written to Secure Border: US Attorney, Legal Monitor Worldwide, Dec. 19, 2015.

[9] Chuck Lindell, Senate Panel Weighing ‘Religious Freedom’ Laws, Austin American-Statesman, Feb. 18, 2016.

[10] Emma Platoff, Texas Attorney General Ken Paxton is Seeking More Power This Session to Prosecute Voter Fraud and Abortion-Related Crimes, Texas Tribune, Feb. 4, 2019.

[11] See id.

[12] See Press Release, Office of the Texas Attorney General, Attorney General Paxton Releases Statement on First Assistant Attorney General Jeff Mateer’s Nomination By President Trump to Federal Bench (Sept. 7, 2017).

[13] See Brantley Starr, Executive Power Over Immigration, 22 Tex. Rev. Law & Pol. 283, 285-86 (Winter, 2017).

[14] See id. at 289-93.

[16] See Starr, supra n. 1 at 16.

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Judge Mark Pittman – Nominee to the U.S. District Court for the Northern District of Texas

A young state court judge with a conservative pedigree, Judge Mark Pittman is right out of central casting for the Trump Administration in its judicial nominees.

Background

A native Texan, Mark Timothy Pittman was born in Big Spring in 1975.  Pittman attended Texas A&M University, receiving his Bachelor of Arts magna cum laude in 1996 and a Juris Doctor from the University of Texas School of Law in 1999.  After graduating from law school, Pittman clerked for Judge Eldon Brooks Mahon on the U.S. District Court for the Northern District of Texas and then joined the Fort Worth office of Kelly, Hart and Hallman LLP as an associate.[1]

In 2004, Pittman joined the U.S. Department of Justice Civil Division in Washington D.C. as a Trial Attorney.  In 2007, he returned to Texas as a federal prosecutor.  In 2009, Pittman joined the Federal Deposit Insurance Corporation in Dallas as a Senior Attorney and in 2011, moved to the Securities and Exchange Commission as an Enforcement Attorney (from 2014 to 2015, he also served as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office).[2]

In 2015, outgoing Gov. Rick Perry appointed Pittman to serve as a District Judge on the 352d District in Texas.  Pittman won re-election in 2016 unopposed as a Republican.  In 2017, Gov. Greg Abbott appointed Pittman to the Texas Second District Court of Appeals, where he won re-election, unopposed, in 2018, and where he currently serves.

History of the Seat

Pittman has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five nominees currently pending before the Senate.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Pittman has been nominated to fill opened on October 9, 2018, when Judge John McBryde moved to senior status.  McBryde himself replaced Judge Mahon, and, as such, if confirmed, Pittman would fill the seat of his once-boss.

Legal Experience

Pittman has had a varied legal career, having worked in six different positions in the approximately 15 years of pre-bench legal work.  Overall, Pittman primarily focused on prosecuting securities and economic crimes, including at the SEC, the FDIC, and at the U.S. Attorney’s Office.  Pittman has tried 11 cases including a three-week long bench trial on a discrimination claim against the Federal Aviation Commission.[3]

In other notable cases, Pittman led investigations that led to prosecutions of an individual defrauding seniors in real estate investments,[4] and a defendant who created straw men to run an oil-and-gas Ponzi scheme.[5]

Jurisprudence

Pittman served as a state district judge from 2015 to 2017 and as an appellate judge since 2017.  In the former position, Pittman presided over approximately 75 trials among approximately 1000 cases.  Among the cases he handled, Pittman faced a motion to dismiss a tort claim brought against the University of North Texas Health Science Center.[6]  The issue was whether the hospital had adequately received notice under Texas law within six months of the underlying incident.  Pittman ruled that notes made in the hospital records reflected the hospital’s notice of potential tort claims.  However, this ruling was overturned by the Court of Appeals, who instructed Pittman to dismiss the action for lack of subject matter jurisdiction.[7]

As an appellate judge, Pittman has generally maintained a conservative record.  For example, in one case, Pittman found that a $10,000 fine assessed by a jury could still be assessed against a defendant where the judge left the fine out of his oral pronouncement.[8]  In dissent, Judge Elizabeth Kerr, a fellow Republican, noted that there was no “ambiguity” where a judge did not pronounce a fine at sentencing.[9]

However, in another case, Pittman affirmed the trial court grant of a motion to suppress a traffic stop based solely on information from the state vehicle insurance database, finding that the trial court had correctly credited testimony regarding the high incidence of error in the database.[10]

Political Activity

Pittman is a Republican who has run for judicial elections as such.  Before he joined the bench, Pittman volunteered with many Texas Republican campaigns, including those of then Governor George Bush, then Senator Phil Gramm, and then Attorney General Greg Abbott.[11]  Pittman is also a Founding Member of the Tarrant County chapter of the Federalist Society.[12]

Overall Assessment

Given the strong concern raised by many Democrats towards participation in the Federalist Society, it is unlikely that Pittman’s involvement with the group will be seen as a positive.  However, setting that aside, Pittman’s record as a judge is that of a mainstream conservative.  As such, while Pittman may not see a bipartisan confirmation, he is unlikely to be a nominee who is fought particularly aggressively.

[1] Sen. Comm. on the Judiciary, 115th Cong., Mark Pittman: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] See Bland v. LaHood, 2010 WL 1328148 (N.D. Tex. Jan. 8, 2010).

[4] United States v. Battie, 3:16-cr-00051-D-1 (N.D. Tex.).

[5] Securities and Exchange Commission v. Halek, et al., 3:14-cv-01106-D (N.D. Tex.).

[6] University of North Tex. Health Science Cntr. v. Jimenez, 2017 WL 3298396 (Tex. App-Fort Worth, pet. Filed Sept. 15, 2017).

[7] See id.

[8] Ette v. State, 551 S.W.3d 783, 789-91 (Tex. App. 2017).

[9] Id. at 797-98 (J. Kerr, dissenting).

[10] See State v. Binkley, 541 S.W.3d 923 (Tex. App. 2018).

[11] See Pittman, supra n. 1 at 28-29.

[12] See Press Release, Office of Governor Greg Abbott, Governor Abbott Appoints Pittman to Second Court of Appeals (Jan. 6, 2017) (available at https://gov.texas.gov/news/post/governor_abbott_appoints_pittman_to_second_court_of_appeals).  

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Matthew Kacsmaryk – Nominee to the U.S. District Court for the Northern District of Texas

Yesterday, as the Senate recessed, it returned approximately 100 nominees to the White House unconfirmed.[1]  Among the nominees returned was Matthew Kacsmaryk, a Texas lawyer who has made a name for himself as an advocate for religious liberty.  While Kacsmaryk may lack the explosive paper trail that sank fellow Texas nominee Jeff Mateer, he is still likely to face strong opposition for his work on LGBT and reproductive rights issues.

Background

Matthew Joseph Kacsmaryk attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2003.  After graduating from law school, Kacsmaryk joined the Dallas office of Baker Botts as an associate.

In 2008, Kacsmaryk left Baker Botts and joined the U.S. Attorney’s Office for the Northern District of Texas as an Assistant U.S. Attorney (AUSA).  In this role, Kacsmaryk prosecuted criminal and national security cases, working on both trials and appeals.  In 2013, Kacsmaryk joined the First Liberty Institute, a non-profit law firm frequently representing individuals in claims of religious liberty.  He serves as Deputy General Counsel at the organization.

History of the Seat

Kacsmaryk has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant, and a fifth scheduled to open later next year.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Kacsmaryk has been nominated to fill opened on February 3, 2016, when Judge Mary Lou Robinson moved to senior status.  While Obama sent nominees to three other vacancies on the Northern District, he did not nominate anyone to fill the Robinson seat.  As such, the seat remained vacant, and Kacsmaryk was nominated, with the recommendations of Texas Senators John Cornyn and Ted Cruz, on September 7, 2017.

Legal Experience

Kacsmaryk has worked in three primary legal positions in his career: as an associate at Baker Botts; as a federal prosecutor; and as Deputy General Counsel at the First Liberty Institute.  In his initial position at Baker Botts, Kacsmaryk focused on commercial, constitutional, and intellectual property litigation.[2]  He also received the Opus Justitiae Award for Outstanding Commitment to Pro Bono Work.[3]

From 2008 to 2013, Kacsmaryk worked as a federal prosecutor in the U.S. Attorney’s Office for the Northern District of Texas.  In this capacity, Kacsmaryk worked primarily with the appellate division, arguing criminal appeals before the U.S. Court of Appeals for the Fifth Circuit.[4]  He also handled several criminal trials, including the prosecution of college student Khalid Ali Aldawsari for his purchase of nitric acid and other products to construct explosives for a terror plot.[5]

As Deputy General Counsel at the First Liberty Institute, Kacsmaryk oversees the education and policy advisory teams.[6]  In this capacity, he has frequently commented on issues of religion and the law.  For example, in 2014, Kacsmaryk described the Obama Administration’s executive order requiring all federal contractors to avoid anti-LGBT discrimination as favoring “sexual revolution fundamentalism over the sincerely-held religious beliefs of Americans.”[7]  Kacsmaryk was also involved in fights against the Obama Administration’s directive to school districts encouraging the accommodation of “gender identity” in gender-specific public facilities.[8]  Kacsmaryk also criticized a similar directive in the Fort Worth Independent School District, arguing that the directive made “no reasonable accommodation for dissenting Muslims, Jews, Mormons, Catholics, and Protestants who adhere to the Book of Genesis and continue to believe that God ‘created them male and female.’”[9]

Among other cases, Kacsmaryk has been involved in the suit to defend a Mississippi law allowing businesses and government workers to avoid service to LGBT individuals and same-sex couples based on their religious beliefs,[10] as well as a challenge to the Obama Administration’s contraception mandate.[11]

Writings

In his capacity at First Liberty Institute, Kacsmaryk has authored several articles on issues of religious freedom and conscience.  These articles lay out a broad view of “religious freedom” encompassing the rights of religious individuals not to comply with laws that violate their moral beliefs.  In a 2016 article, Kacsmaryk wrote:

“…exceptions for conscientious objectors are the rule in the American legal tradition.”[12]

Kacsmaryk has also repeatedly criticized anti-discrimination provisions for LGBT individuals, as well as same sex marriage.  In an article published shortly before the Supreme Court’s decision in Obergefell, Kacsmaryk characterized same-sex marriage as an extension of the weakening on marriage’s four pillars, coming on top of no-fault divorce, the decriminalization of consensual extra-marital sexual conduct, and the decriminalization of contraception & abortion.[13]  He went on to note that, with the legalization of same-sex marriage, “faith-based organizations cannot safely assume that their external contracts, grants or cooperative agreements honor their sincerely held religious beliefs.”[14]

In another article, Kacsmaryk described the Equality Act, which would make sexual orientation and gender identity a “protected class” under Title VII as “seek[ing] to weaponize Obergefell.”[15]  Instead, Kacsmaryk endorsed the First Amendment Defense Act, which prevents government enforcement of civil rights laws against those who act with a religious belief or moral conviction opposing same-sex marriage or sexual relations.[16]

Political Activity

Kacsmaryk has frequently supported Republican candidates as a donor, including donations to both Cornyn and Cruz.[17]  Among his more prominent donations, Kacsmaryk donated $1000 to both Fred Thompson and John McCain during the 2008 Presidential campaign, and gave $1000 to Cruz’s campaign in 2016.[18]

Overall Assessment

Based on the aggressive questions from Democrats at his confirmation hearing, and by the strong opposition to his nomination by LGBT groups, it is unlikely that Kacsmaryk will get any Democratic support.  In a post-nuclear option world, the key question is whether Kacsmaryk will maintain enough Republican votes to be confirmed.  After the seating of Alabama senator Doug Jones, opponents will need to peel off two Republican senators to defeat Kacsmaryk.

In making their case, Kacsmaryk’s critics will likely point to his long paper trail of criticism of the LGBT and reproductive rights movement.  Specifically, they may point to his writings that criticize (by comparison) well-established principles such as no-fault divorce and the decriminalization of contraception.  They may also argue that Kacsmaryk’s writings demonstrate a bias against LGBT individuals (indeed, the Alliance for Justice has already made that argument).

In response, Kacsmaryk’s supporters will seek to contextualize his statements as reflecting a commitment to “religious liberty” rather than expressing hostility to LGBT rights.  Furthermore, they will likely point to Kacsmaryk’s less controversial tenures at Baker Botts and the U.S. Attorney’s Office to demonstrate his commitment to the law.

Given the salience of religious, reproductive, and LGBT rights in the political climate, Kacsmaryk’s nomination will likely rise and fall based on the pressure placed on Republican moderates such as Sens. John Kennedy, Susan Collins, and Lisa Murkowski.  As of today, he remains more likely than not to become a federal judge in 2018.

[1] Andrew Restuccia and Seung Min Kim, Democrats Block Dozens of Trump Nominees, Politico, Dec. 22, 2017, https://www.politico.com/story/2017/12/22/trump-nominees-democrats-block-314775?lo=ap_e2.  

[2] First Liberty Institute, Matthew Kacsmaryk, https://firstliberty.org/team/matthew-kacsmaryk/.  

[3] See id.

[4] See id.

[5] See United States v. Aldawsari, No. 5.11-Cr-015-C, 2011 U.S. Dist. LEXIS 159597 (N.D. Tex. April 6, 2011).  See also Associated Press, Saudi Man Aldawsari Sentenced to Life in Prison for Failed U.S. Bomb Plot, Fox News, Nov. 13, 2012, http://www.foxnews.com/us/2012/11/13/saudi-man-convicted-in-failed-us-bomb-plot-to-be-sentenced-faces-life-in-prison.html.  

[6] See supra n. 1.

[7] Press Release, New York County Lawyer’s Association, Liberty Institute Attorneys Respond to President Obama’s Disregard for Faith-Based Contractors in Signing Executive Order that Ignores American Ideal of Diversity (July 22, 2014).

[8] Press Release, First Liberty Institute, Threat to Religious Schools Partially Lifted by Trump Executive Order and Supreme Court Action (Mar. 10, 2017) (available at https://firstliberty.org/category-newsroom/commentary/).

[9] Leah Jessen, Parents Beat Back Obama’s Transgender Bathroom Mandate in Texas Schools, The Daily Signal, July 24, 2016, http://dailysignal.com/2016/07/24/parents-beat-back-obamas-transgender-bathroom-mandate-in-texas-schools/.  

[10] Chuck Lindell, Miss. Ruling Unlikely to Deter Texas GOP, Austin American Statesman, July 2, 2016.

[11] Christian & Missionary Alliance v. Burwell, 2015 WL 437631 (M.D. Fla. Feb. 3, 2015).

[12] Matthew Kacsmaryk, Moral Complicity at Court: Who Decides, The Witherspoon Institute, Apr. 6, 2016, http://www.thepublicdiscourse.com/2016/04/16709/.  

[13] Matthew Kacsmaryk, The Abolition of Man…and Woman, National Catholic Register, June 24, 2015, http://www.ncregister.com/daily-news/the-abolition-of-man-…-and-woman.  

[14] Id. (emphasis in original).

[15] Matthew Kacsmaryk, The Inequality Act: Weaponizing Same-Sex Marriage, The Witherspoon Institute, Sept. 4, 2015, http://www.thepublicdiscourse.com/2015/09/15612/.  

[16] See id.

[17] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=matthew+kacsmaryk&order=desc&sort=D (last visited Dec. 11, 2017).

[18] See id.

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Karen Gren Scholer – Nominee for the U.S. District Court for the Northern District of Texas

Compared to previous presidents, President Trump has nominated fewer women and racial minorities to the bench.  As such, the nomination of Karen Gren Scholer is notable: as Scholer is not a former nominee of President Obama, but is an Asian American woman.

Background

Scholer, nee Karen Anne Gren, was born in 1957 in Tokyo, Japan.  Scholer received a Bachelor of Arts at Rice University in 1979 and a Juris Doctor from Cornell University Law School in 1982.  After graduating from law school, Scholer joined the Dallas law firm Strasburger & Price, LLP. as an Associate.  In 1989, Scholer was named a Partner at the firm.

In 1996, Scholer left Strasburger & Price to join Andrews & Kurth LLP. as a partner.  She served as Partner for four years, and as Of Counsel for a few months.  In 2000, Scholer was elected as a Republican to the 95th Judicial District Court in Dallas.  Scholer was re-elected unopposed in 2004.

In 2009, Scholer left the bench to join the Dallas office of Jones Day as a Partner.  In 2014, she left Jones Day to become a Principal at the firm Carter Scholer PLLC.  She currently serves in that capacity.

In 2014, Scholer also began work as an arbitrator and mediator for the American Arbitration Association.  She also serves in that capacity presently.

On July 30, 2014, Scholer applied to Senators John Cornyn and Ted Cruz for a vacancy on the U.S. District Court for the Northern District of Texas.  In April 2015, Scholer also applied for a vacancy on the U.S. District Court for the Eastern District of Texas.  After interviews with the Obama Administration and Democratic Representatives Marc Veasey and Eddie Bernice Johnson, Scholer was nominated to a vacancy on the U.S. District Court for the Eastern District of Texas on March 15, 2016.[1]  Scholer’s nomination had the support of Cornyn and Cruz[2] but attracted opposition from East Texas Republican Rep. Louie Gohmert due to Scholer’s base in Dallas.[3]  While Scholer received a hearing before the Senate Judiciary Committee, her nomination was never approved and died at the end of the Obama presidency.

History of the Seat

Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant, and a fifth scheduled to open later next year.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Scholer has been nominated to fill opened on May 1, 2016, when Judge Jorge Antonio Solis moved to senior status.  On March 15, 2016, Obama nominated James Wesley Hendrix, the 39-year-old appellate chief of the U.S. Attorney’s Office for the Northern District of Texas to fill the vacancy.[4]  While Hendrix had the support of his home state senators and received a hearing in September 2016, his nomination never moved to the floor and thus was not confirmed.  Hendrix was not renominated to the Court by President Trump.

After the election of President Trump, Scholer applied again for the vacancies on the Eastern and Northern Districts of Texas.  Upon Cornyn and Cruz’s recommendation, Scholer was interviewed by the White House in May 2017, and officially nominated on September 7, 2017.

Legal Experience

Scholer has spent virtually her entire legal career as a civil litigator.  In her initial position at Strasburger & Price LLP., Scholer focused on personal injury cases, specializing in the defense of product liability cases.  For example, Scholer was part of the defense team in a product liability action against General Motors based on allegedly defective three-point seatbelts in the backseats.[5]  Scholer also defended Budget Rent a Car in a personal injury action over an injury caused by a falling suitcase on a shuttle bus.[6]  Scholer continued this product liability work as a partner at Andrews & Kurth LLP.

After her eight years on the bench, Scholer joined the Dallas office of Jones Day as a partner in the complex tort and product liability section.  In this role, Scholer primarily handled the defense of Yamaha in a multi-district product liability action based on the defective design of the Yamaha Rhino off road vehicle.[7]

As a named partner at Carter Scholer PLLC., Scholer handles business tort and personal injury litigation.  Scholer also occasionally represents plaintiffs, notably representing the victim of a slip-and-fall to a successful settlement.[8]

Jurisprudence and Reversals

Scholer served two four year terms as a judge on the 95th Judicial District Court in Dallas.  In this role, Scholer presiding over civil cases in Dallas, including contract and tort cases.  Scholer was also briefly appointed by Governor Rick Perry to serve on the Tenth Circuit Court of Appeals of Texas for a single case.

Of Scholer’s more prominent cases, she presided over a medical malpractice trial where the plaintiff alleged that the defendant had negligently removed fat and skin creating infection in her sutures.[9]  Scholer presided over a jury verdict for the plaintiff in $291,000 in damages.  Scholer also presided over a jury verdict to the plaintiff in an unsafe workplace case brought by the employee of a public utility company.[10]  Scholer denied a defense motion for a new trial and entered judgment for the plaintiff.[11]

In her eight years on the bench, Scholer’s opinions have been reversed or criticized by a higher court in 19 cases.  On these, two are particularly notable:

City of Dallas v. VRC, LLC. – In this case, a towing company filed suit against a Dallas ordinance setting rates for non-consensual towing of vehicles, alleging that the rates were too low, and constituted a “regulatory taking.”[12]  The City argued lack of jurisdiction due to governmental immunity, and lack of ripeness.[13]  Scholer ruled against the City on both claims, allowing the case to move ahead.[14]  The Fifth Circuit Court of Appeals of Texas reversed, finding that there was no viable regulatory takings claim under either state or federal law.[15]

Ferguson v. Building Materials Corp. of America – This case involved a personal injury suit brought after an eighteen wheeler crashed into a building which collapsed on the plaintiff.[16]  Scholer granted summary judgment to the defendants in the case, finding that the plaintiff’s claims were judicially estopped.[17]  While the Fifth Circuit affirmed Scholer, the Texas Supreme Court reversed in a per curiam decision.[18]

Political Activity

Scholer has a long history with the Republican party, having been elected twice as a Republican to the state bench.  Scholer has also volunteered with the Travis County Republican Party between 1999-2010, and has been a member of the Texas Federation of Republican Women since 1999.

Overall Assessment

As noted with Judge David Counts, nominees put forward by presidents of both parties generally fare an easier time through the confirmation process.  For her part, Scholer does not have a paper trail of controversial statements, or any particularly unorthodox legal or judicial views.  While she does have a long history as a Republican, a partisan history, in and of itself, should not be disqualifying for the bench.  As such, a prompt confirmation should be expected for Scholer, who will be the first Asian American judge on the Northern District of Texas, when confirmed.

[1] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).

[2] John Council, Cornyn Pledges to Help Obama Seat Texas Judges, Texas Lawyer, March 28, 2016, http://www.law.com/texaslawyer/almID/1202752774603/.

[3] Press Release, Office of Rep. Louie Gohmert, Gohmert Objects to President Obama’s Eastern District of Texas Judge Nominee (April 7, 2016) (on file at https://gohmert.house.gov/news/documentsingle.aspx?DocumentID=398311).  

[4] See supra n. 1.

[5] Tarrantino et al. v. General Motors Corp. et al., Cause No. 86-12794, 14th Judicial District Court of Dallas County, Texas; Judge John Marshall; 1986-89.

[6] Simmons v. Budget Rent a Car, Civil Action No. 3:81-cv-01431-F, United States District Court for the Northern District of Texas, Judge Robert Porter, 1982-84.

[7] In re: Yamaha Motor Corp., Rhino ATV Products Liability Litigation, Master File No. 3:09-MD-2016-BC, Multi District Litigation in the United States District Court, Western District of Kentucky; Judge Jennifer Coffman, 2009-2013.

[8] Bearden v. Half Price Books, Cause No. 14-1168, 134th Judicial District Court of Dallas County, Texas; Judge Dale Tiller; 2014-15.

[9] Trebold v. Fowler, M.D., Cause No. 00-06073.

[10] Dennis v. Texas Utility Co, Inc. dba TU Electric Co., Cause No. 96-09957.

[11] See id.

[12] City of Dallas v. VRC, LLC., 260 S.W.3d 60 (Tex. App.-Dallas 2008 no pet.).

[13] See id.

[14] Id.

[15] See id.

[16] Ferguson v. Building Materials Corp. of America., 295 S.W.3d 642 (Tex. 2009).

[17] Id.

[18] Id.

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