Judge Amy St. Eve – Nominee for the U.S. Court of Appeals for the Seventh Circuit

In 2002, the 35-year-old Amy St. Eve became one of the youngest judges ever appointed to the U.S. District Court for the Northern District of Illinois.  Last month, St. Eve was nominated by President Trump to the prestigious U.S. Court of Appeals for the Seventh Circuit, an elevation that is supported by her home state senators.  It is a promotion she is likely to get.

Background

Amy Joan St. Eve was born in Belleville, Illinois on November 20, 1965.  St. Eve attended Cornell University, getting a B.A. in 1987.  She continued on to Cornell Law School, getting her J.D. in 1990.

After graduating law school, St. Eve joined the New York office of Davis, Polk & Wardwell as an Associate.[1]  In October 1994, St. Eve was hired by Whitewater Independent Counsel Kenneth Starr to be a prosecutor for his office.[2]  In 1996, St. Eve moved to be a federal prosecutor for the U.S. Attorney’s Office for the Northern District of Illinois.[3]  In May 2001, she joined Abbott Laboratories in Abbott Park, Illinois as Senior Counsel of Litigation.[4]

On March 21, 2002, St. Eve was nominated by President George W. Bush for a vacancy on the U.S. District Court for the Northern District of Illinois vacated by Judge George Lindberg.  Engelhardt’s nomination was championed by then-Sen. Peter Fitzgerald (R-Ill.).  St. Eve was confirmed unanimously by the Senate on August 1, 2002.  She serves as a federal district judge today.

History of the Seat

St. Eve has been nominated for a Illinois seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened with Judge Ann Claire Williams’ move to senior status on June 5, 2017.

On June 22, 2017, the White House Counsel’s Office reached out to St. Eve to gauge her interest in the Seventh Circuit appointment.[5]  St. Eve interviewed with the office on June 27.[6]  In December 2017, St. Eve was subsequently informed by Illinois Senators Richard Durbin and Tammy Duckworth that she would be nominated for the vacancy.  Her nomination was officially sent to the Senate on February 15, 2018.

Legal Career

St. Eve began her legal career as an associate at Davis Polk & Wardwell in New York City, where she represented businesses in defending civil and white collar criminal cases.[7]  In 1994, she joined the legal team assembled by Independent Counsel Ken Starr in investigating and prosecuting the Whitewater cases.  As an attorney there, St. Eve helped prosecute then-Arkansas-Governor Jim Guy Tucker for bank fraud and government fraud.[8]

In 1996, St. Eve became a federal prosecutor at the U.S. Attorney’s Office for the Northern District of Illinois.  During her tenure, St. Eve prosecuted white collar crime, narcotics, and fraud.  However, many of her most notable cases focused on government corruption.  For example, St. Eve participated in “Operation Safe Road,” a government investigation of corruption under the Illinois Secretary of State’s office during the tenure of Republican George Ryan (later the Governor).[9]  As a result of the investigation, St. Eve successfully prosecuted numerous employees who had fraudulently given out vehicle operator licenses in exchange for cash bribes.[10]  Ryan himself would eventually be indicted and convicted after St. Eve’s confirmation to the bench.

Jurisprudence & Reversals

St. Eve has served as a judge on the U.S. District Court for the Northern District of Illinois for the last sixteen years.  In this role, St. Eve has presided over 123 trials, 49 in criminal cases and the remaining 74 in civil cases.[11]  We have summarized two areas where St. Eve has made a mark:

Religious Discrimination

In two cases where she reached opposite results, St. Eve has elucidated her views on the level of protection offered to employees when they allege religious discrimination.[12]  In one case, St. Eve found that Wal Mart did not discriminate against a Christian employee when she was dismissed for telling other employees that “gay people are sinners and are going to hell.”[13]  Rather, St. Eve found that, to allege discrimination, the employee needed to show that non-Christian employees who held the same anti-gay views she did were treated differently by Wal Mart.[14]  As no such allegation was made, St. Eve ruled that dismissing the employee was not anti-Christian discrimination.[15]

In contrast, St. Eve declined to dismiss the discrimination case brought by an employee at Sidetrack, a Chicago gay bar, who alleged harassment and discrimination based on his Christian beliefs.[16]  In the suit, the plaintiff alleged “anti-Christian video clips Sidetrack played during comedy nights, offensive performances ridiculing Christians at special events, and degrading comments Sidetrack employees…made to Plaintiff because of his religion.”[17]  In denying summary judgment for Sidetrack, St. Eve found that a reasonable jury could find that the evidence constituted discrimination against the plaintiff based on his religious, rather than his political beliefs.[18]

Civil Rights Cases

During her fifteen years as a judge, St. Eve has presided over many civil rights cases.  In her rulings, St. Eve has been evenhanded, ruling for plaintiffs in some cases,[19] and for the defendants in others.[20]

In one notable case, St. Eve presided over a challenge by a special education teacher who was injured by an autistic student.[21]  The teacher alleged substantive due process violations and Monell liability due to failure to train after a struggle with an autistic student led to head injuries and a serious concussion.[22]  Specifically, the teacher criticized the school’s administration for failing to put the student in a therapeutic day school.[23]

St. Eve rejected the teacher’s claim, arguing that the administration’s decision to allow the student to continue attending school “was not an arbitrary decision, but instead was based on a deliberative process.”[24]  As such, St. Eve granted summary judgment for the defendants.[25]  The Seventh Circuit ultimately affirmed St. Eve’s decision.[26]

Reversals

In the sixteen years that St. Eve has served as a federal judge, she has been reversed by higher courts 43 times: 39 times by the Seventh Circuit; and four times by the Federal Circuit.[27]  In fourteen cases, the Seventh Circuit reversed St. Eve’s dismissal of a plaintiff’s civil complaint or a grant of summary judgment against the plaintiff.[28]  In contrast, St. Eve’s rulings in favor of plaintiffs have been reversed in three cases.[29]  In the criminal context, St. Eve’s sentences have been reversed by the Seventh Circuit in twelve cases.[30]

Overall Assessment

St. Eve comes to the confirmation process with a long judicial paper trail.  This record establishes her as a middle-of-the-road judge with no bias towards either conservative or liberal judicial philosophies.  Additionally, with her long tenure as a federal judge, St. Eve’s qualifications for the appellate bench are unquestionable.

Furthermore, St. Eve’s record as a federal prosecutor also speaks to her evenhandedness.  While she participated in the politically charged investigation over Whitewater, and successfully prosecuted Democratic Governor Jim Guy Tucker, she also worked to bring down a system of patronage and corruption established by a Republican secretary of state in Illinois.  Her success on both fronts makes it difficult to paint her as a partisan prosecutor.

As such, St. Eve is likely to be seen as a “consensus” nominee, one expected to get a swift and uncontroversial confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Amy St. Eve: Questionnaire for Judicial Nominees 1.

[2] See id. at 53.

[3] See id.

[4] See id. at 2.

[5] See id. at 68.

[6] See id.

[7] See id. at 53.

[8] See United States v. McDougal, 95-cr-175 (E.D. Ark.)

[9] See Andrew Zajac and Flynn McRoberts, Operation Safe Road: License Scheme Led to Wider Investigation, Chicago Tribune, Dec. 18, 2003, http://articles.chicagotribune.com/2003-12-18/news/0312180299_1_driver-s-licenses-plates-applicants.

[10] See United States v. Mastrodomenico, 98-cr-623 (N.D. Ill.); United States v. Seibel, 99-cr-78 (N.D. Ill.); United States v. Golumb, 99-cr-871 (N.D. Ill.).

[11] See St. Eve, supra n. 1 at 21.

[12] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[13] Matthews v. Walmart, Inc., No. 08 C 5312, 2010 WL 11545667, at *2 (N.D. Ill. Apr. 26, 2010), aff’d sub nom. Matthews v. Wal-Mart Stores, Inc., 417 F. App’x 552 (7th Cir. 2011).

[14] See id. at *3-4.

[15] See id.

[16] Parker v. Side by Side, Inc., 50 F. Supp. 3d 988, 995 (N.D. Ill. 2014).

[17] Id. at 1002.

[18] Id. at 1013-14.

[19] See, e.g., Ayoubi v. Basilone, No. 14 C 0602, 2016 WL 6962189, at *5 (N.D. Ill. Nov. 28, 2016) (denying Defendants’ motion to dismiss); Sokol v. City of Chicago, Illinois, No. 13 CV 5653, 2014 WL 5473050, at *3 (N.D. Ill. Oct. 29, 2014) (denying proposed order to protect confidential information by Defendants); Pierce v. Cook Cty., No. 12 C 5725, 2014 WL 4376231, at *5 (N.D. Ill. Sept. 4, 2014) (denying Defendants’ motion to dismiss action as unexhausted).  

[20] See, e.g., Smith v. Ramirez, No. 12 C 509, 2014 WL 4070202, at *1 (N.D. Ill. Aug. 14, 2014) (denying Plaintiff’s motion for summary judgment); Hicks v. Young, No. 10 C 3874, 2011 WL 5507379, at *1 (N.D. Ill. Nov. 9, 2011) (granting Defendant’s motion to dismiss for failure to state a claim); Caudle El v. Lake Cty. Sheriffs, No. 08 C 6534, 2010 WL 11546028, at *4 (N.D. Ill. June 1, 2010) (granting summary judgment to Defendants on deliberate indifference claim); Jackson v. Indian Prairie Sch. Dist. 204, No. 08 C 4312, 2010 WL 11545957, at *5 (N.D. Ill. Apr. 30, 2010), aff’d, 653 F.3d 647 (7th Cir. 2011) (granting summary judgment for Defendants).

[21] See Jackson v. Indian Prairie Sch. Dist. 204, No. 08 C 4312, 2010 WL 11545957, at *5 (N.D. Ill. Apr. 30, 2010), aff’d, 653 F.3d 647 (7th Cir. 2011).

[22] Id. at *3.

[23] See id. at *4.

[24] Id.

[25] Id. at *5.

[26] 653 F.3d 647 (7th Cir. 2011).

[27] See St. Eve, supra n. 1 at 40-46.

[28] See Yanhke v. Kane Cnty., 823 F.3d 1066 (7th Cir. 2016); Reid v. Illinois, 808 F.3d 1103 (7th Cir. 2015); Smith v. Dart, 803 F.3d 304 (7th Cir. 2015); Petrovic v. Enter. Leasing Co. of Chicago, LLC, 513 F. App’x 609 (7th Cir. 2013); Todd v. Kohl’s Dep’t Store, 490 F. App’x 824 (7th Cir. 2013); Schwartz v. Prudential Ins. Co. of Am., 450 F.3d 697 (7th Cir. 2006); Shaffer v. Am. Med. Ass’n, 662 F.3d 439 (7th Cir. 2011); Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009); Makor Issues & Rights, Ltd. v. Tellabs, 437 F.3d 588 (7th Cir. 2006); Shapo v. Engle, 463 F.3d 641 (7th Cir. 2006); Davis v. Carter, 452 F.3d 686 (7th Cir. 2006); Bremgettcy v. Horton, 423 F.3d 674 (7th Cir. 2005); Blue Cross & Blue Shield of Ill. v. Cruz, 396 F.3d 793 (7th Cir. 2005); Xechem, Inc. v. Bristol Myers Squibb Co., 372 F.3d 899 (7th Cir. 2004).

[29] See Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005); Transpersonnel, Inc. v. Roadway Express, Inc., 422 F.3d 456 (7th Cir. 2005); Schimmer v. Jaguar Cars, Inc., 384 F.3d 402 (7th Cir. 2004).

[30] See United States v. Harrington, 834 F.3d 733 (7th Cir. 2016); United States v. Rogers, 528 F. App’x 641 (7th Cir. 2013); United States v. Vidal, 705 F.3d 742 (7th Cir. 2013); United States v. Knox, 496 F. App’x 649 (7th Cir. 2012); United States v. Hernandez, 479 F. App’x 735 (7th Cir. 2012); United States v. Knox, 412 F. App’x 867 (7th Cir. 2011); United States v. Black, 625 F.3d 386 (7th Cir. 2010); United States v. Knox, 573 F.3d 441 (7th Cir. 2009); United States v. Adefumi, 279 F. App’x 401 (7th Cir. 2008); United States v. Smith, 276 F. App’x 497 (7th Cir. 2008); United States v. McMahan, 495 F.3d 410 (7th Cir. 2007); United States v. Garcia, 439 F.3d 363 (7th Cir. 2006).

Michael Scudder – Nominee to the U.S. Court of Appeals for the Seventh Circuit

Richard Posner is a hard act to follow.  Like him or hate him, it’s hard to deny the mercurial judge’s legal genius.  After Posner’s abrupt resignation, Trump is looking to replace him with a biglaw litigator with a stellar academic resume.  A former Supreme Court clerk who worked for the Bush White House, Scudder has the credentials to succeed Posner.

Background

Michael Yale Scudder was born in 1971 in Fort Wayne, Indiana.  He attended Saint Joseph’s College in Indiana, graduating summa cum laude in 1993.[1]  He then worked for two years as a staff accountant in the Fort Wayne office of Ernst & Young.[2]

In 1995, Scudder joined the Northwestern University Pritzker School of Law.  He graduated magna cum laude in 1998.[3]  After graduating, Scudder clerked for Judge Paul Niemeyer on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[4][5]

After his clerkship, Scudder joined the Cleveland office of Jones Day, where he served as an associate for two years.  In 2002, Scudder was hired at the U.S. Attorney’s Office for the Southern District of New York to be a federal prosecutor.[6]  In 2006, Scudder moved to Main Justice as Counselor to Deputy Attorney General Paul McNulty.

In 2007, Scudder was hired by the White House as Associate Counsel to the President.[7]  He was promoted to be General Counsel of the National Security Council and Senior Associate Counsel to the President, where he focused on national security issues.[8]  In 2009, Scudder left to join the Chicago Office of Skadden, Arps, Slate, Meagher & Flom LLP as a Partner.  He continues to work in that capacity today.

History of the Seat

Scudder has been nominated for an Illinois seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on September 2, 2017 with the sudden resignation of Judge Richard Posner.[9]  However, Scudder had been under consideration for a judicial appointment much earlier.  On June 6, 2017, Scudder received a call from the White House Counsel’s office gauging his interest in a 7th Circuit seat.[10]  He interviewed with the White House shortly thereafter.[11]

In October 2017, Scudder interviewed with a screening committee set up by Illinois Senators Richard Durbin and Tammy Duckworth.[12]  He interviewed with Durbin and Duckworth later that month, and was designated the presumptive nominee on December 4, 2017.[13]  Scudder was nominated on February 12, 2018.

Political Activity

Scudder has generally steered clear of electoral politics.  He has not volunteered on any campaigns, and his only political contribution of record is a $250 contribution to Republican Congressional candidate Jay Jorgensen in Utah, who clerked on the Supreme Court with Scudder.[14]

Legal Practice

Scudder’s first legal position after his clerkships was at Jones Day, a firm that has yielded many Trump executive attorneys and judicial nominees.  In 2002, Scudder moved on to join the U.S. Attorney’s Office for the Southern District of New York, one of the most prestigious prosecutorial offices in the country, to work under future FBI Director James Comey.[16]  During his four years as a federal prosecutor, Scudder worked with the narcotics, general crimes, and violent crimes units, trying six cases and handling six appeals.[15]  Among his more notable cases, Scudder helped prosecute a pediatrician for traveling abroad to have sex with minors at resorts in Mexico and Honduras.[17]

In 2006, Scudder joined the National Security team at the Deputy Attorney General’s office at the Department of Justice.[18]  In 2007, Scudder moved to the White House Counsel’s Office working on monitoring legislation and litigation related to national security.[19]  A few months after his move, Scudder was promoted to be Senior Associate Counsel to the President and General Counsel of the National Security Council, where he spent his time working with the Council on legal issues associated with national security and counterterrorism.[20]

In 2009, shortly after the inauguration of the Obama Administration, Scudder joined the Chicago Office of Skadden Arps as a partner.[21]  At Skadden, Scudder focused on business litigation, and white collar matters.[22]  He particularly specialized in cases involving accounting and the law.[23]  During his time at Skadden, Scudder handled two jury trials.[24]

Among the most notable cases he handled at Skadden, Scudder has represented the University of North Carolina at Chapel Hill in defending the constitutionality of its admissions process.[25]  Throughout the suit, Scudder has defended the University’s admissions policies, which incorporate race and ethnicity, as constitutional.[26]  Scudder also filed amicus briefs on behalf of the University in supporting the University of Texas’ affirmative action programs in Fisher v. University of Texas at Austin.[27]

Aside from his paid work, Scudder has been active in representing criminal defendants pro bono.  For example, Scudder successfully persuaded the Seventh Circuit to reverse an indigent defendant;s conviction due to the trial judge’s failure to give proper jury instructions regarding the defendant’s prior crimes.[28]  Additionally Scudder has filed amicus briefs in a number of criminal cases at the Supreme Court, generally supporting greater rights for criminal defendants.[29]

Writings

As a law student, Scudder authored an article analyzing the recently passed Private Securities Litigation Reform Act of 1995.[30]  In the article, Scudder discusses the damages cap imposed by the legislation, arguing that Congress’ “theory of damages may have initial appeal, but it lacks empirical support.”[31]  He also argues that a better damages limitation provision would have limited investor recovery to the actual losses they had suffered.[32]

Overall Assessment

While it is always tricky to predict that a nominee will be smoothly confirmed, the odds look fairly good for Michael Scudder.  First of all, Scudder has the strong support of his home state senators, both of whom are Democrats.  Second, Scudder lacks a controversial paper trail and has not participated in many controversial cases.  Rather, in his more hot-button cases, such as the UNC affirmative action suit, Scudder has taken the “liberal” position in litigation.  Third, unlike many Trump appellate nominees, Scudder does not have a history with the Federalist Society.

None of this is to suggest that there are no objections that can be raised against Scudder.  Questions may be raised about Scudder’s work on national security issues at the Bush Administration. Specifically, senators may seek to probe whether Scudder shares the broad views of executive power claimed by the Administration in conducting counterterrorism and national security operations.

Nonetheless, Scudder is well-placed for a comfortable confirmation.  Additionally, given his academic credentials, clerkships, and uncontroversial background, Scudder should be considered a strong likelihood for a future Supreme Court nominee, especially under a Republican presidency.


[1] Sen. Comm. on the Judiciary, 115th Cong., Michael Y. Scudder: Questionnaire for Judicial Nominees 1.

[2] Id. at 3.

[3] Id. at 1.

[4] Id. at 2.

[5] Scudder was joined at the court by other luminaries such as Judge Ketanji Brown Jackson, Supreme Court advocate Kannon Shanmugam and law professors Benjamin Liebman, Rebecca Tushnet, Kermit Roosevelt III, Tim Wu, and Richard Primus.

[6] Id. 

[7] Peter Baker and R. Jeffrey Smith, Miers Steps Down as White House Gears For Battle, Wash. Post, Jan. 5, 2007.

[8] See Scudder, supra n. 1 at 2.

[9] Jason Meisner and Patrick O’Connell, Richard Posner Announces Sudden Retirement From Federal Appeals Court in Chicago, Chicago Tribune, Sept. 1, 2017, http://www.chicagotribune.com/news/local/breaking/ct-judge-richard-posner-retires-met-20170901-story.html.

[10] See Scudder, supra n. 1 at 33.

[11] See id.

[12] Id.

[13] Id. 

[15] See Scudder, supra n. 1 at 18.

[16] See United States v. Gabb, 80 Fed. Appx. 142 (2d Cir. 2003).

[17] See Susan Saulny, Ex-Doctor Receives Sentence of 21 Years in Child Sex Case, N.Y. Times, Feb. 14, 2004.

[18] See Scudder, supra n. 1 at 18.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] See, e.g., In re Robert D. Hesselgesser, CPA, United States Securities and Exchange Commission No. 3-17214 (April 19, 2016).

[24] See id.

[25] Students for Fair Admissions, Inc. v. Univ. of North Carolina, No. 1:14-cv-00954-LCB-JLW (M.D.N.C. filed Nov. 17, 2014).

[26] See id.

[27] See Brief of Amicus Curiae The University of North Carolina at Chapel Hill in Support of Respondents, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

[28] United States v. Robinson, 724 F.3d 878 (7th Cir. 2013).

[29] See Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioners, Camreta v. Greene, 563 U.S. 692 (2011) (Nos. 09-1454 & 09-1478); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioner, Bailey v. United States, 568 U.S. 186 (2013) (No. 11-770); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Respondents, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

[30] Michael Y. Scudder, The Implications of Market-Based Damages Caps in Securities Class Actions, 92 Nw. U.L. Rev. 435 (Fall 1997).

[31] Id. at 474.

[32] See id.i

Michael B. Brennan – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The last time the U.S. Court of Appeals for the Seventh Circuit had a full complement of judges was on January 16, 2010.  The next day, Judge Terence Evans moved to senior status.  Evans’ seat, informally assigned to Wisconsin, remains vacant to this day.  Due to infighting between his home-state senators, Michael Brennan, Trump’s nominee to fill the seat, is unlikely to see a smooth confirmation to the seat.

Background

Michael B. Brennan was born in 1963 in Milwaukee, Wisconsin.  Brennan received his B.A. cum laude from the University of Notre Dame in 1986.  He then proceeded to Northwestern University Law School, where he served as coordinating note and comment editor at the Northwestern University Law Review.  After graduating from law school, Brennan completed a two-year clerkship with Judge Robert Warren[1] on the U.S. District Court for the Eastern District of Wisconsin.[2]

After his clerkship, Brennan joined the Milwaukee office of Foley & Lardner, where he served as an associate for four years.  In 1995, Brennan left Foley to clerk for Judge Daniel Mannion on the U.S. Court of Appeals for the Seventh Circuit.

In 1997, Brennan joined the Milwaukee County District Attorney’s Office as an Assistant District Attorney.  The next year, while maintaining his position, Brennan also joined the Wisconsin Criminal Penalties Committee, a Committee intended to study and recommend changes in sentencing, as a staff attorney.  In 2000, Brennan was appointed by Gov. Tommy Thompson to be a judge on the Milwaukee County Circuit Court.

In 2003, Brennan applied to the Wisconsin Federal Judicial Commission for a vacancy opening up on the Seventh Circuit.[3]  However, Wisconsin Supreme Court Justice Diane Sykes got the nomination (and was ultimately confirmed).  In 2007, Brennan applied simultaneously for vacancies on the U.S. District Courts for the Eastern and Western Districts of Wisconsin.[4]  He was not selected for either vacancy, however, with the nominations going to fellow state judges Timothy Dugan and J. Mac Davis respectively.  However, neither candidate was ultimately confirmed.

In November 2008, Brennan unexpectedly announced his resignation from the bench to join Gass Weber Mullins LLC., a Milwaukee based complex litigation firm.[5]  He continues to practice there as a Partner.

History of the Seat

The seat Brennan has been nominated for is the longest pending appellate vacancy.  This seat opened on January 17, 2010 with the retirement of Judge Terence Evans.[6]  On January 22, 2010, Wisconsin Senators Herb Kohl and Russ Feingold, both Democrats, recommended four candidates for the vacancy to President Obama: U.S. District Judge Lynn Adelman; Prof. Victoria Nourse of the University of Wisconsin Law School; Judge Richard Sankovitz of the Milwaukee County Circuit Court; and defense attorney Dean Strang.[7]  On July 14, Obama nominated Nourse for the seat.[8]  No action was taken on Nourse’s nomination before the end of the 111th Congress.

In the 2010 elections, Feingold was defeated by Republican Ron Johnson.  Upon joining the Senate in 2011, Johnson indicated his opposition to Nourse’s nomination, claiming both procedural and substantive reasons for his opposition.[9]  Due to Johnson’s withholding of a blue slip, Nourse never got a hearing and her nomination was withdrawn at the end of 2011.

After Kohl was replaced by fellow Democrat Tammy Baldwin in 2012, Baldwin and Johnson struck a deal on a process to fill three federal judicial vacancies for Wisconsin, including the Seventh Circuit seat.[10]  The deal had both Johnson and Baldwin appoint three members to a Commission, which would then solicit applications and recommend no less than four candidates for each vacancy (for a candidate to be recommended, they needed support from five out of six commissioners).[11]

The deal allowed for the successful confirmations of Judges James Petersen and Pamela Pepper in 2014.  However, the Commission was unable to agree on four candidates to fill the Seventh Circuit vacancy, with only two out of eight finalists: Sankovitz and Madison attorney Donald Schott, receiving the requisite five votes.[12]  While Johnson offered to send only the names of Sankovitz and Schott to the White House, Baldwin instead sent all eight candidates, an action that Johnson characterized as breaking the original agreement.[13]

In January 2016, the White House nominated Schott to the vacancy.[14]  While Johnson initially demurred to support Schott,[15] he ultimately returned a blue slip to allow Schott’s nomination to proceed.  The Republican-controlled Senate Judiciary Committee held a hearing on Schott and advanced the nomination on a 13-7 vote on June 16, 2016.[16]  However, Senate Majority Leader Mitch McConnell blocked all further action on the nomination, and it expired at the end of the 114th Congress.

After the election of Trump and the re-election of Johnson in 2016, Johnson and Baldwin renewed their 2013 deal for the recommendations for federal judicial vacancies.[17]  In March 2017, Brennan was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[18]  After interviewing with the White House Counsel’s Office and the Department of Justice in March 2017, Brennan applied to the Commission set up by Johnson and Baldwin.[19]  However, the Commission did not recommend Brennan (or any other applicant) due to the inability to secure five votes.[20]  Despite the lack of recommendation for Brennan (who secured votes from all three Republican Commissioners and one Democratic Commissioner), the White House submitted his nomination to the Senate on August 3, 2017.[21]

As Brennan had not been recommended by the Wisconsin Federal Judicial Commission, Baldwin has indicated that she is “troubled” by his nomination, and has not yet returned a blue slip enabling the Judiciary Committee to hold a hearing.[22]  Nevertheless, the Senate Judiciary Committee is moving to a hearing on January 24, 2018.

Political Activity

Brennan has a long history of contributions and volunteering for the Wisconsin Republican party.  Brennan has volunteered and held positions in the campaigns of several Republicans including Johnson, Gov. Scott Walker, Congressman James Sensenbrenner, and former Governor and Senate candidate Tommy Thompson.[23]  Brennan also served on the Finance Committee of the Wisconsin Republican Party for four years.[24]  Brennan has also contributed financially to Republican candidates, including $1500 to Johnson and $4000 to Thompson.[25]

Additionally, Brennan is connected closely with Walker, serving as the Chair of Walker’s Judicial Selection Advisory Committee.[26]  While he chaired the Committee, it drew criticism for relying heavily on partisan identification and contributions when selecting judges for the state court.[27]  Brennan is also the founding member of the Milwaukee chapter of the Federalist Society, a conservative legal organization advocating for an originalist and textualist interpretation of the Constitution.[28]

Legal Practice

Brennan’s first legal position after his clerkship was at Foley & Lardner as a litigation associate.  In this capacity, Brennan largely represented corporations in federal and state court.[29]  For example, Brennan represented Great-West Life Assurance Company in defending an action for ERISA benefits filed by a widowed plaintiff.[30]  However, Brennan also participated in some more political actions.  In a notable case, Brennan successfully challenged a Fond Du Lac ordinance regulating the sale of tobacco products, arguing that the ordinance was pre-empted by state regulations on tobacco distribution.[31]  In another case, Brennan represented the Wisconsin Republican party who sought to prevent the placement of white supremacist David Duke on the Republican primary ballot in Wisconsin.[32]

From 1997 to 1999, Brennan served as Assistant District Attorney at the Milwaukee County District Attorney’s Office.[33]  In that capacity, Brennan represented Milwaukee County District Attorney E. Michael McCann in defending a Wisconsin statute requiring doctors to tell victims of rape and incest that services are available that allow women to listen to the heartbeat or view images of their unborn child.[34]  The Seventh Circuit upheld the statute in a 2-1 vote.[35]

After stepping off the bench in 2008, Brennan has served as a partner at Gass Weber Mullins LLC.  In this capacity, Brennan handles a combination of commercial litigation, catastrophic injury cases, and mediation.[36]  Among the more significant matters he has handled, Brennan has represented numerous correctional institutions in defending against §1983 suits.[37]

Jurisprudence & Reversals

Brennan served as a judge on the Milwaukee County Circuit Court from 2000 to 2008.  During that time, Brennan handled civil, criminal, landlord-tenant, traffic, juvenile, and probate matters.[38]  Brennan ran for re-election in 2001 and 2007, being unopposed both times.

During his tenure on the state bench, Brennan established a fairly conservative record, including as a strict sentencing judge.  In one notable case, Brennan sentenced a defendant to 66 years in jail after he drove drunk and caused an accident killing four people and injuring two others.[39]  In another case, Brennan sentenced a defendant charged with reckless homicide to 35 years in prison and an additional 20 years of extended supervision.[40]  In another notable case, Brennan presided over the sentencing of four Democrats, including the son of Congresswoman Gwen Moore (D-WI), who had pleaded no contest to slashing the tires of Republican election vans.[41]  Despite prosecutors recommending no jail time, Brennan threw out the plea agreements and imposed sentences of four to six months.[42]

In one of his most widely reported cases, Brennan presided over the criminal trial of a school-bus driver, who was charged with physical and verbal abuse towards a student with disabilities.[43]  Part of the evidence against the driver was from a recorder placed by the student’s parents in his backpack.  Brennan declined to exclude the recorded evidence, holding that the statements were not barred by Wisconsin’s Electronic Surveillance Control Law.[44]  Brennan’s ruling was overturned by the Wisconsin Court of Appeals but ultimately affirmed by the Wisconsin Supreme Court.[45]

Reversals

Over his eight years on the state bench, Brennan has been reversed in approximately fifteen cases.  The majority of these cases involved criminal convictions or rulings against defendants being reversed.[46]  For example, State v. Haas involved a defendant convicted solely on the basis of eyewitness testimony implicating him in a burglary.[47]  The defense sought to bring in the clothing the defendant was arrested in to impeach the eyewitness’ testimony.[48]  However, the clothing had been destroyed by the police and the defendant was convicted.[49]  Brennan denied a motion for a new trial.  However, the Wisconsin Court of Appeals reversed, holding that the destroyed exculpatory evidence clearly required reversal.[50]   Similarly, in State v. Alicea, a police officer failed to comply with a pretrial ruling barring all references to a robbery accusation against the defendant.[51]  Brennan, who presided over the trial, declined to declare a mistrial or allow the defense to explain that the robbery accusation was untrue, instead instructing the jury to disregard the reference.[52]  The Court of Appeals reversed for a new trial, finding that the police officer’s improper reference to the robbery accusation had violated the defendant’s rights.[53]

Surprisingly, some cases in which Brennan’s rulings were reversed by appellate courts appear to have been omitted from his Senate Judiciary Questionnaire.[54]  Among these cases is one where Brennan ruled that a tenant whose hair dryer caused a fire which damaged her rental unit was liable for the damage even without any showing of negligence.[55]  In reversing, the Wisconsin Court of Appeals found that the lease provision dictating liability was invalid under Wisconsin law.[56]  In another case, a landlord sought to evict a deaf tenant for breaching his lease by assaulting another resident.[57]  Brennan rejected the tenant’s argument that he had not been given an opportunity to remedy the breach, holding that quasi-criminal breaches were non-remediable as a matter of law.[58]  The Wisconsin Court of Appeals reversed, noting that Brennan’s ruling “cited no case law to support these conclusions…ignored the procedure set out in the statute and ignored the fact that Greenfield stated in its five’day notice that Tannehill could remedy the breach by having no future contact with Pell.”[59]

Speeches and Writings

Brennan has frequently written on legal issues, including Wisconsin court rulings, judicial politics, and trial tactics.  Brennan’s writings suggest strong conservative underpinnings in his judicial philosophy and will likely draw support from Republican senators and concern from Democrats.

Judicial Activism

Brennan has frequently written on the subject of judicial activism.  In 2005, as a sitting state judge, he authored an article criticizing the Wisconsin Supreme Court for “activist” decisions.[60]  Brennan’s article sparked a response from federal judge Lynn Adelman, who called the charge of activism “a rhetorically charged shorthand for decisions the speaker disagrees with.”[61]

In an earlier article, Brennan took the opposing perspective, disagreeing with calls for judicial restraint on the part of conservative judges, noting that “justices and judges faced with activist legislatures are not required to roll over in the name of judicial restraint.  That would leave in place a one-way ratchet of constantly expanding government.”[62]

Judicial Nominations

In 2011, as Johnson was blocking the Nourse nomination, Brennan, then the Chair of Walker’s Judicial Selection Advisory Committee, wrote in support of Johnson’s actions.[63]  In the op-ed, joined by other attorneys including two current Wisconsin Supreme Court Justices (selected by Brennan’s committee), Brennan notes that Johnson, as an elected Wisconsin senator deserves to “participate in the selection of a judge for a Wisconsin seat” and that the Nourse nomination was moved “in disregard of a senator’s duty of ‘advice and consent’ under Article II Section II.”[64]

Expert Testimony

In early 2012, Brennan and his partner J. Ric Gass gave a presentation on the Daubert standard for expert witnesses and the selection of experts in the context of scientific testimony.[65]  In his notes for the presentation, Brennan focuses on the inherent unpredictability of scientific testimony, noting that “[s]cience is inherently changeable” and “[p]roblems with scientific accuracy have always been with us.”  As such, Brennan encourages attorneys to prepare their scientific expert witnesses well and to recognize possible weaknesses in their scientific opinions.

Overall Assessment

There are two arguments that can made against Brennan’s nomination: one based on process, and one based on substance.  The procedural argument against Brennan’s argument is essentially parallel to the argument he and Johnson laid out against Nourse’s elevation.  Essentially, Brennan’s nomination is moving without the consent of the duly elected senator from his home state.  Democrats can reasonably argue that, given their past willingness to defer to Johnson’s objections to Obama’s nominees, Baldwin deserves the same deference with regard to Brennan.

The substantive argument against Brennan has little to do with his legal ability.  Given his experience as both a trial judge and a complex litigator, Brennan is well-prepared to handle the intellectual rigors of the Seventh Circuit.  As such, the argument against Brennan will likely focus on his conservative ideology.

Specifically, critics may look to Brennan’s strongly conservative rulings as a judge, alongside his ideologically charged writings, and his role in reshaping Wisconsin’s state judiciary in a conservative direction, and argue that Brennan lacks the requisite impartiality to be a federal judge.  In response, supporters will likely argue that the vast majority of Brennan’s rulings have been affirmed by higher courts, and that conservatives should not be denied seats on the federal bench purely based on their ideology.

With a narrow Republican majority in the senate, Brennan remains more likely than not to be confirmed.  However, given the opposition of his home state senator and the Republicans’ narrow margin of error, the outcome is not set in stone.


[1] An appointee of President Nixon, Warren was the Republican Attorney General of Wisconsin before his confirmation to the bench.  Wolfgang Saxon, Robert W. Warren, 72, Wisconsin Federal Judge, N.Y. Times, Aug. 22, 1998, http://www.nytimes.com/1998/08/22/us/robert-w-warren-72-wisconsin-federal-judge.html.

[2] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 2-3.

[3] Tony Anderson, Twelve Apply for 7th Circuit Seat, Wisconsin Law Journal, July 23, 2003.

[4] See David Ziemer, 17 Apply for Vacancy on United States District Court for the Eastern District of Wisconsin, Wisconsin Law Journal, July 30, 2007.  See also Jack Zemlicka, U.S. District Court Judge Shabaz’s Seat Draws 16 Candidates, Wisconsin Law Journal, Dec. 10, 2007.

[5] Marie Rohde, Two Milwaukee Judges Resigning for Private Practice, Milwaukee Journal Sentinel, Nov. 14, 2008, http://archive.jsonline.com/news/milwaukee/34502294.html/.  

[6] See Martha Neil, Longtime 7th Circuit Judge Terence Evans is Dead After Sudden Illness, ABA Journal, Aug. 11, 2011, http://www.abajournal.com/news/article/7th_circuit_judge_terence_evans_is_dead/ (noting Evans’ move to senior status).

[7] Adam Korbitz, Kohl, Feingold Forward Four Names to President Obama for Seventh Circuit, State Bar of Wisconsin, Jan. 25, 2010, https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=26&ArticleID=5864.

[8] Adam Korbitz, President Nominates Victoria Nourse to Seventh Circuit U.S. Court of Appeals, State Bar of wisconsin, July 15, 2010, https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=14&ArticleID=8620.  

[9] Craig Gilbert, Ron Johnson ‘Filibuster’ of Nourse Nomination to Federal Bench Draws Fire, Milwaukee Journal Sentinel, July 18, 2011, http://archive.jsonline.com/newswatch/125741928.html.

[10] Susan McDonald, Johnson, Baldwin Agree to Judicial Screening Panel, WISN, April 17, 2013, http://www.wisn.com/article/johnson-baldwin-agree-to-judicial-screening-panel/6314857.  

[11] Craig Gilbert, Baldwin, Johnson Bitterly Joust Over Appeals Court Vacancy, Milwaukee Journal Sentinel, Apr. 28, 2016, http://archive.jsonline.com/news/statepolitics/baldwin-johnson-bitterly-joust-over-appeals-court-vacancy-b99715579z1-377503181.html/.  

[12] See id.

[13] See id.

[14] Id.

[15] Press Release, Office of Sen. Ron Johnson, Johnson Responds to Judicial Nomination of Donald K. Schott (Jan. 12, 2016) (on file at https://www.ronjohnson.senate.gov/public/index.cfm/2016/1/johnson-responds-to-judicial-nomination-of-donald-k-schott).

[16] Shawn Johnson, U.S. Senate Panel Advances Wisconsin Judicial Nominee, Wisconsin Pub. Radio, June 16, 2016, https://www.wpr.org/u-s-senate-panel-advances-wisconsin-judicial-nominee.  

[17] Craig Gilbert, Ron Johnson and Tammy Baldwin Renew Deal on Picking Judges, Milwaukee Journal Sentinel, https://www.jsonline.com/story/news/politics/2017/02/13/ron-johnson-and-tammy-baldwin-renew-deal-picking-judges/97871500/.  

[18] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 51.

[19] See id.

[20] Margo Kirchner, Ron Johnson’s Hypocrisy on Federal Judgeship, Wisconsin Justice Initiative, Aug. 22, 2017, https://urbanmilwaukee.com/2017/08/22/op-ed-ron-johnsons-hypocrisy-on-federal-judgeship/.  

[21] Press Release, White House, President Donald J. Trump Announces Sixth Wave of Judicial Candidates and Fifth Wave of U.S. Attorney Candidates (August 3, 2017) (on file at www.whitehouse.gov/the-press-office).

[22] Todd Richmond, Trump Court Appointee Never Cleared Commission, Sen. Tammy Baldwin Says, Wisconsin State Journal, Aug. 5, 2017, http://host.madison.com/wsj/news/local/govt-and-politics/trump-court-appointee-never-cleared-wisconsin-commission-sen-tammy-baldwin/article_82e4070d-4ec3-599d-a437-a9296980894b.html.

[23] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 34-35.

[24] See id.

[26] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 34.

[27] See Eric Litke, Party Politics Color Governors’ Judicial Picks, Green Bay Press-Gazette, Jan. 29, 2016, http://www.greenbaypressgazette.com/story/news/2016/01/29/wisconsin-judicial-appointments–partisanship-walker-doyle/79509122/.  

[28] Carrie Severino, Who is Mike Brennan, Nat’l Rev., Aug. 4, 2017, http://www.nationalreview.com/bench-memos/450159/who-mike-brennan.  

[29] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38.

[30] Edwards v. Great-West Life Assur. Co., 20 F.3d 748 (7th Cir.), cert. denied 512 U.S. 962 (1994).

[31] U.S. Oil Inc. et al. v. City of Fond du Lac, 544 N.W.2d 589 (Wisc. App. 1996).

[32] McCarthy et al. v. Elections Bd. et al., 480 N.W.2d 241 (Wisc. 1992).

[33] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38.

[34] Karlin v. Foust, 188 F.3d 446, 490–91 (7th Cir. 1999)

[35] See id.

[36] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 38-39.

[37] See, e.g., Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372 (7th Cir. 2012) (en banc), cert. denied sub nom. Correctional Med. Svcs., Inc. v. Glisson, – U.S. – (2017); James v. Eli, 846 F.3d 951 (7th Cir. 2017), reh’g granted, No. 15-3034, 2017 WL 1228561 (7th Cir. Mar. 31, 2017); Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), reh’g en banc denied, No. 14-3316, 2015 WL 10767326 (7th Cir. Dec. 7, 2015); Estate of Rice v. Correctional Med. Svcs, Inc., 675 F.3d 650 (7th Cir. 2012).

[38] Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 20-21.

[39] State v. Promotor, Case No. 2003-CF-2230 (Wis. Cir. Ct. Aug. 3, 2004).

[40] State v. Whitmore, No. 2003-CF-005697 (Wis. Cir. Ct. Oct. 13, 2004).

[41] Week in Review, St. Paul Pioneer Press, Apr. 30, 2006.

[42] See id.

[43] State v. Duchow, No. 2003-CF-002648 (Wis. Cir. Ct. Dec. 29, 2003).

[44] See id.

[45] See State v. Duchow, 749 N.W.2d 913 (Wis. 2008), rev’ing 303 Wis. 2d 744 (Wis. Ct. App. 2007).

[46] See, e.g. State v. Lord, 723 N.W.2d 425 (Wis. 2006); State v. Haas, 750 N.W.2d 518 (Wis. Ct. App. 2008); State v. Jackson, 735 N.W.2d 178 (Wis. Ct. App. 2007); State v. Basley, 726 N.W.2d 671 (Wis. Ct. App. 2006); State v. McGowan, 715 N.W.2d 631 (Wis. Ct. App. 2006); State v. Alicea, 650 N.W.2d 560 (Wis. Ct. App. 2002).

[47] State v. Haas, 750 N.W.2d 518 (Wis. Ct. App. 2008).

[48] See id.

[49] Id.

[50] See id.i

[51] State v. Alicea, 650 N.W.2d 560 (Wis. Ct. App. 2002).

[52] See id.

[53] Id.

[54] See Shadley v. Lloyds of London, 776 N.W.2d 838 (Wis. Ct. App. 2009) (reversing Brennan’s award of attorney’s fees); Maryland Arms Ltd. Partnership v. Connell, 769 N.W.2d 145 (Wis. Ct. App. 2009) (reversing liability determination on fire in tenant unit); Greenfield Senior Housing V, LLC v. Tannehill, 736 N.W.2d 543 (Wis. Ct. App. 2007) (reversing finding that tenant’s breach of the lease was non-remediable); State v. McAdoo, 715 N.W.2d 240 (Wis. Ct. App. 2006) (reversing sentence because 27 months of extended supervision exceeded statutory max of nine months); State v. Simmons, 659 N.W.2d 507 (Wis. Ct. App. 2003) (reversing defendant’s convictions where defendant did not knowingly violate injunction).

[55] See Maryland Arms Ltd. Partnership v. Connell, 769 N.W.2d 145 (Wis. Ct. App. 2009).

[56] See id.

[57] See Greenfield Senior Housing V, LLC v. Tannehill, 736 N.W.2d 543 (Wis. Ct. App. 2007).

[58] See id.

[59] See id. at 552.

[60] Michael B. Brennan, Are Courts Becoming Too Activist, Milwaukee Journal Sentinel, Oct. 2, 2005.

[61] The Honorable Lynn Adelman and Shelley Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425, 427 (Winter 2007) (quoting Kermit Roosevelt III, The Myth of Judicial Activism, Making Sense of Supreme Court Decisions 3 (2006).

[62] Michael B. Brennan, Conservative Judicial Activism: More than Whose Ox Is Being Gored, The Federalist Society, August 2001, https://fedsoc.org/commentary/publications/hot-topics-judicial-activism.  

[63] See Michael B. Brennan, James T. Barry, Steven M. Biskupic, Rebecca G. Bradley, Donald A. Daugherty Jr., Daniel Kelly, David W. Simon, Sen. Johnson Only Wants to Have His Say on Nourse Nomination, Milwaukee Journal-Sentinel, July 23, 2011, http://archive.jsonline.com/news/opinion/126042043.html/.  

[64] See id.

[65] See Sen. Comm. on the Judiciary, 115th Cong., Michael B. Brennan: Questionnaire for Judicial Nominees 14.

Professor Amy Coney Barrett – Nominee to the U.S. Court of Appeals for the Seventh Circuit

The Seventh Circuit is known for attracting academics.  Three of its most prominent judges, Richard Posner, Frank Easterbrook, and Diane Wood, served as law professors before being elevated to the bench.  If confirmed, Prof. Amy Coney Barrett will continue that trend.

History of the Seat

Barrett has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened in February 2015 with the retirement of Judge John Daniel Tinder.[1]  Even though Tinder’s plans were leaked almost a year before his actual retirement,[2] the Obama Administration did not submit a nominee to the Senate until January 2016, when Myra Selby, a former justice on the Indiana Supreme Court, was nominated.[3] 

While Selby’s nomination was strongly supported by Sen. Joe Donnelly (D-IN), Sen. Dan Coats (R-IN) opposed the nomination, arguing that the nominee should be selected by a bipartisan commission for the state.[4]  With Coats declining to return a blue slip, the Senate Judiciary Committee did not take any action on Selby’s nomination, and it was returned unconfirmed at the end of the 114th Congress.  As such, the vacancy was left open for Trump to fill.

Background

Barrett was born as Amy Vivian Coney on Jan. 28, 1972 in New Orleans, Louisiana.  After getting a B.A. from Rhodes College, Barrett attended Notre Dame Law School, where she was executive editor of the Notre Dame Law Review.  After graudating from law school, Barrett clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and obtained a prestigious Supreme Court clerkship with Justice Antonin Scalia.  

After her clerkship, Barrett joined the D.C. office of Miller, Cassidy, Larocca & Lewin LLP, which merged into Baker Botts LLP.  While at Baker, Barrett was a part of the legal team representing then-Governor George W. Bush in Bush v. Gore.  

As an attorney at Baker, Barrett started working as an adjunct faculty member at the George Washington University Law School, co-teaching a class with fellow Baker attorney John Elwood (himself a distinguished Supreme Court practitioner).  Shortly after, Barrett joined the Law School as a John H. Olin Fellow in Law.  In 2002, Barrett moved to become a Professor of Law at Notre Dame Law School, her alma mater.  Other than a short stint as a Visiting Associate Professor of Law at the University of Virginia, Barrett has served at Notre Dame ever since.  

In February 2017, Barrett was contacted by the Office of Sen. Todd Young (R-IN), and asked about her interest in a Seventh Circuit opening.  After confirming her interest, Barrett completed an application, met with the Senator, the White House and the Department of Justice.[5]  On May 8, President Trump formally nominated Barrett to the Seventh Circuit.[6]

Legal Practice

Because Barrett has spent the vast majority of her professional life as a law professor, she has relatively little experience in litigation.  During her two years at Baker Botts, Barrett worked on cases in the trial and appellate courts, including the second-chairing of an accounting malpractice case in Virginia state court.[7]  As noted earlier, Barrett was also part of the legal team in Bush v. Gore.  

In 1999, Barrett assisted the appellate counsel for two individuals convicted of conspiracy to defraud several government agencies.[8]  Barrett, working with other attorneys, raised several challenges to the convictions and sentence, including challenges to the sufficiency of the evidence, and the jury instructions.  Ultimately, the Second Circuit affirmed the convictions and the sentences.[9]

In 2000, Barrett was part of the legal team representing the National Council of Resistance of Iran in challenging their designation as a “foreign terrorist organization” by the State Department.[10]  The D.C. Circuit sided with Barrett, holding that the designation violated the Council’s due process rights, reversing and remanding.[11]  The designation was eventually lifted by Secretary of State Hillary Clinton in 2012.[12]

Writings

As a law professor, Barrett has written exhaustively on a range of legal issues, often taking legal positions that call into question established legal doctrines.  For example, in one article, Barrett argues that the traditionally held view of the Supreme Court’s supervisory power over lower courts is flawed.[13]  In her confirmation, Barrett is particularly likely to face questions about her writings challenging the principle of stare decisis.

The legal doctrine of stare decisis is the foundation of a common law system.  The doctrine asks courts to generally follow the precedent made by previous courts, even where a judge may disagree with the previous outcome.  As Justice Louis Brandeis once noted, “it is more important that the applicable rule of law be settled than that it be settled right.”[14]  While stare decisis is not inflexible (Brandeis goes on to note that courts have an obligation to reverse incorrect constitutional rulings),[15] judges generally will follow rulings from previous panels, even where they might have ruled differently.[16]

For her part, Barrett has repeatedly questioned stare decisis, and whether the doctrine should be applied as broadly as it is.  In a 2013 article, Barrett argued that a weakened form of stare decisis in constitutional cases helps promote pluralism on the Supreme Court and mitigates disagreements.[17]

Most notably, in 2003, Barrett published an article in the University of Colorado Law Review calling into question the application of stare decisis in certain cases.  The article, titled Stare Decisis and Due Process, posits that, in many instances, the application of stare decisis violates the due process rights of litigants, as it denies them the opportunity to litigate the merits of their own claim.[18]  Specifically, Barrett argues that, just as the due process clause limits the application of issue preclusion (or collateral estoppel), it should similarly limit the application of stare decisis.[19]  Barrett notes that a more flexible application of stare decisis is not only consistent with history, but would not impair the appropriate value of precedent.[20]  In other words, as Barrett notes, she suggests using precedent in a way analogous to the way it is used in civil law systems, as a “shortcut” in figuring out how to reach a decision.[21]

Barrett also questions stare decisis in the statutory context in a separate article, where she urges that the doctrine is “an ill fit in the inferior courts.”[22]

Overall Assessment

As an academic, Barrett is paid to push the envelope on legal thought and theory.  While this makes her a prolific and talented writer, it leaves little sign of how she would rule on the bench.  Barrett’s experience in litigation is fairly limited.  By her own admission, Barrett has never tried a case as first chair, never argued an appeal, and never been counsel of record in an appellate case.  This may cause critics to suggest that she is unqualified for the federal bench.

On the other hand, Barrett’s academic credentials are beyond question.  Her clerkships to two legal luminaries, Judge Silberman and Justice Scalia, are enough to put to rest any questions about her legal ability.  While she may lack litigation experience, the Seventh Circuit is full of former academics who have distinguished themselves on the bench.

A bigger question is Barrett’s commitment to following precedent that she disagrees with.  Given her repeated questioning of stare decisis, it is reasonable to expect Senators to explore her willingness to abide by it.  

Another point which may hurt Barrett is her likely status as a future Supreme Court nominee.  Barrett is young (only 45), a woman, and has impeccable academic credentials.  It remains to be seen if Democrats will attempt to handicap her ascent by attacking her appellate confirmation.  

Provided Barrett manages to allay concerns about her experience and her views on precedent, there is little reason to oppose her nomination.  In all likelihood, Barrett will avoid the fate of Myra Selby and be confirmed in due course to the Seventh Circuit.


[1] Dave Stafford, Tinder Departs 7th Circuit, The Indiana Lawyer, July 29, 2015, http://www.theindianalawyer.com/tinder-departs-7th-circuit/PARAMS/article/37799.

[2] Dave Stafford, Judge Tinder’s Retirement Plans Leaked, The Indiana Lawyer, Mar. 12, 2014, http://www.theindianalawyer.com/judge-tinders-retirement-plans-leaked/PARAMS/article/33639.  

[3] Press Release, White House Archives, President Obama Nominates Two to Serve on the United States Court of Appeals (January 12, 2016) (on file at https://obamawhitehouse.archives.gov/the-press-office).  

[4] Press Release, Office of Sen. Dan Coats, Coats Responds to President’s Nominations for Indiana Judicial Vacancies (Jan. 12, 2016) (on file at www.legistorm.com).  

[5] There are no indications of any meetings or consultations with Sen. Joe Donnelly (D-IN).

[6] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Tassi Drywall Construction Co., Inc. v. Turner Jones & Assoc., P.C. et al., No. L190384 (Va. Cir. Ct.).

[8] United States v. Berger, 224 F.3d 107 (2d Cir. 2000).

[9] Id. at 111.

[10] Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001).

[11] Id.

[12] Shane Scott, Iranian Dissidents Convince U.S. to Drop Terrorist Label, N.Y. Times, Sept. 21, 2012, http://www.nytimes.com/2012/09/22/world/middleeast/iranian-opposition-group-mek-wins-removal-from-us-terrorist-list.html.

[13] Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006).

[14] Burnet v. Coronodo Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).

[15] Id. at 407.

[16] See, e.g., United States Inter. Revenue Serv. v. Osborne, 76 F.3d 306 (9th Cir. 1996).  

[17] Amy Coney Barrett, Symposium: Constitutional Foundation: Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1737 (2013).

[18] Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).

[19] See id. at 1035.

[20] Id. at 1074 (“To the extent, however, that precedent is well-established in a court of appeals, it is unlikely that many litigants would press for overruling it, even with a flexible system of stare decisis in place.”).

[21] Id. at 1069.

[22] Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 351 (2005).