Chad Readler – Nominee to the U.S. Court of Appeals for the Sixth Circuit

DOJ Attorney Chad Readler would have been controversial simply by the nature of his work for the Trump campaign, and in defending some of the White House’s most controversial initiatives.  However, the strong opposition by home-state Sen. Sherrod Brown doesn’t ease his path any further.

Background

Chad Andrew Readler was born in Pontiac Michigan in 1972.  Readler received his B.A. from the University of Michigan in 1994 and his J.D. cum laude from the University of Michigan Law School in 1997.[1]  He then clerked for Judge Alan Norris on the U.S. Court of Appeals for the Sixth Circuit.[2]

After his clerkship, Readler joined the Columbus office of Jones Day as an Associate.[3]  In 2007, he became a Partner at the firm.[4]

In 2017, after the election of Donald Trump, Readler joined the Department of Justice as Acting Assistant Attorney General for the Civil Division.[5]  He maintained that position until the confirmation of Jody Hunt in September 2018, and now serves as Principal Deputy.

History of the Seat

Readler has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Deborah Cook has indicated that she will vacate the seat upon the confirmation of a successor.

Readler was directly contacted by the White House to gauge his interest in an appointment to the Sixth Circuit.[6]  After interviews with the White House, Readler interviewed with Brown and Republican Senator Rob Portman in late 2017.[7]  He was officially nominated on June 18, 2018.  Brown has indicated his strong opposition to Readler’s nomination and has indicated that he will not return a blue slip.[8]

Political Activity

Readler had served as Outside Counsel for the Trump campaign in 2016.[9]

He was also the Ohio Co-Chair of Lawyers for Romney in 2012 and assisted with several Republican judicial election campaigns.[10]  Readler has also donated frequently to Republican candidates, giving over $12000 over the last twelve years.[11]

Private Practice

Until he joined the Department of Justice last year, Readler was a Partner in the Columbus office of Jones Day, frequently described as Trump’s favorite law firm, which has produced many Trump judicial nominees.  During his time at the firm, Readler represented a habeas petitioner seeking review of his “actual innocence” based habeas claim despite a time-bar, arguing on the petitioner’s behalf at the Supreme Court, and obtaining a limited 5-4 victory for his client.[12]

Charter School

One of Readler’s most significant cases at Jones Day involved the constitutionality of Ohio’s public funding for charter schools.[13]  The case involved a challenge to public funding of Ohio charter schools, which critics argued could not be considered “public” as they were administered by private entities and managed by for-profit corporations.[14]  Readler defended the designation of charter schools as public because the schools did not discriminate in admissions and were funded with public money.[15]  The Ohio Supreme Court ultimately narrowly sided with Readler, upholding the constitutionality of charter schools by a 4-3 vote.[16]

Later, Readler continued to defend charter schools against efforts by the Ohio government to shut down public schools that were underperforming.[17]  He also served as co-chair of the Ohio Constitutional Modernization Commission, which provided recommendations for constitutional changes, and recommended eliminating a requirement that the state fund a “thorough and efficient” system of schools.[18]

Trump Campaigns

During the 2016 campaign, Readler was one of the attorneys at Jones Day representing the Trump campaign.  Notably, Readler defended comments made by Trump during the campaign suggesting that the election was “rigged” as protected political speech in a suit over voter intimidation by the Trump campaign.[19]

Department of Justice

Since 2017, Readler has served as Acting Assistant Attorney General and Principal Deputy Assistant Attorney General under the Trump Administration.  In these roles, Readler has been to court to defend some of the Administration’s most controversial positions.

Travel Ban

Perhaps the most controversial case that Readler handled is the legal defense of the Trump travel bans, which were ultimately upheld narrowly by the Supreme Court in their third iteration.[20]  Early in the Administration, Readler argued (unsuccessfully) that the Ninth Circuit should reinstate the Trump Administration’s ban on travel with seven Muslim-majority countries (enjoined by Judge James Robart).[21]  He also successfully defended the ban before Judge Anthony Trenga in the U.S. District Court for the Eastern District of Virginia.[22]

CFPB

In 2018, after President Trump replaced outgoing Consumer Financial Protection Bureau head Richard Cordray with Mick Mulvaney, Readler helped defend the constitutionality of the appointment against a challenge from Cordray’s deputy Leandra English.[23]  Readler successfully argued that the President retained the authority to name Mulvaney and persuaded Judge Timothy Kelly to deny a preliminary injunction.[24]

Sanctuary Cities

Readler was also called to defend the legality of a Trump Administration initiative to deny federal funds to  “sanctuary cities” (cities that limit their cooperation with federal immigration enforcement).  In a hearing before Judge William Orrick, Readler argued that the denied grants were relatively minor and disputed arguments by the City of San Francisco that it could lose up to $1.7 Billion in federal funding.[25]  Orrick ultimately disagreed, enjoining the initiative.[26]

Writings

Throughout his legal career, Readler has opined on the law.  Two of his writings are highlighted below.

Non-Discrimination Ordinances

As a young lawyer, Readler wrote an article discussing the impact of local and municipal anti-discrimination protections, specifically arguing that such protections are ineffective.[27]  Specifically, Readler notes that local non-discrimination ordinances are not publicized as well to employers, rarely enforced, and, thus, are less effective.[28]  As an example, Readler suggests that stringent ordinances protecting same-sex couples in Columbus would force companies with offices in Columbus and other cities (such as Cincinnati) to adopt company wide anti-discrimination policies, and that such adoption would override “the will of the people of Cincinnati.”[29]

As such, Readler recommends federal control of anti-discrimination laws, and suggests that having private companies “free to choose their own employment policies” would be even better as that would avoid the resources needed to debate such issues on the governmental level.[30]

Charter Schools

In 2014, Readler co-authored a paper with fellow Jones Day attorney Ken Grose, in which he described and discussed recent legal victories on behalf of charter schools, suggesting that the rulings have reaffirmed the legitimacy of charter schools and comparing the wins to the victory of David over Goliath.[31]  In the paper, Readler also accuses charter school opponents of “ignoring the law” and of treating charter schools as “second class citizens.”[32]

Overall Assessment

Let’s get the obvious out of the way first: Readler is a controversial nominee.  His record is likely to be strongly objectionable to Democrats, given his close affiliation with Trump and the Administration’s initiatives.  Add to that the fact that Democratic Sen. Sherrod Brown is opposed, and it’s likely that every single Democratic vote at the end of the day will come down against Readler.  As such, his confirmation will depend on how many Republicans join them.

As of right now, there is little reason to think that any will.  Readler’s intellectual capacity and his intelligence are unquestionable, and Republicans have generally backed even controversial Trump nominations.  Furthermore, Readler’s backers can also argue that he should not be penalized for defending the positions taken by his client.

As such, Readler remains a favorite to be confirmed.  If and when he is, he will add a strongly conservative voice to the Sixth Circuit, continuing the Trump Administration’s efforts to reshape the federal bench.


[1] Sen. Comm. on the Judiciary, 115th Cong., Chad A. Readler: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] See Readler, supra n. 1 at 81.

[7] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[8] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[9] See Readler, supra n. 1 at 60-61.

[10] See id.

[12] See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).

[13] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[14] Ohio Supreme Court to Rule on Charter Law; Fate of Nearly 300 Charter Schools May Hinge on Decision, Education Week, Dec. 7, 2005.

[15] See id.

[16] State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E.2d 1148 (Ohio 2006).

[17] Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. Times, Nov. 8, 2007.

[18] Jeremy P. Kelley, School Funding Plan Brings Sharp Debate; Some Education Boards in Ohio Oppose Proposal; Vote Possible., Dayton Daily News, July 10, 2014.

[19] Mark Gillespie, Judge Orders Trump Backers to Stop Voter Harassment, Charleston Gazette-Mail, Nov. 5, 2016.

[20] District of Columbia v. Heller, 554 U.S. 570 (2008).

[21] David J. Lynch, Federal Appeals Court Refuses to Reinstate Seven-Nation Travel Ban; U.S. Executive Order, Financial Times, Feb. 6, 2017.

[22] Rachel Weiner, Va. Judge: Trump’s New Travel Ban Likely to Pass Muster, Wash. Post, Mar. 26, 2017.

[23] See English v. Trump, 279 F. Supp. 3d 307 (D.D.C. 2018).

[24] See id.

[25] See Maura Dolan, Trump Lawyer Says Sanctuary City Rule Won’t Pummel Cities, Augusta Chronicle, Apr. 15, 2017.

[26] See Bloomberg News, Crackdown Confronts Sanctuary Cities in Court, Telegram & Gazette, Apr. 15, 2017.

[27] Chad A. Readler, Local Government Anti-Discrimination Laws: Do They Make a Difference?, 31 U. Mich. J. L. Reform 777 (Spring 1998).

[28] Id. at 805-08.

[29] Id. at 808.

[30] Id. at 811-812.

[31] Chad A. Readler and Kenneth M. Grose, Adjudging Education Policy: How the Courts Shaped Ohio’s Charter School Movement, 45 U. Tol. L. Rev. 601, 603 (Spring 2014).

[32] See id. at 604, 617.

Eric Murphy – Nominee for the U.S. Court of Appeals for the Sixth Circuit

Eric Murphy was not even thirty-five when he was selected to be Ohio’s top appellate attorney.  Now, still shy of forty, Murphy has been nominated to a lifetime appointment to the Sixth Circuit.  However, Murphy’s nomination is strongly opposed by Sen. Sherrod Brown, his home-state senator.

Background

Eric Earl Murphy was born in Indianapolis in 1979.  Murphy received his B.A. from Miami University in 2001 and his J.D. from the University of Chicago Law School in 2005.[1]  He clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and then for Justice Anthony Kennedy on the U.S. Supreme Court.[2]

After his clerkships, Murphy joined the Columbus office of Jones Day as an Associate.[3]  In 2013, Ohio Attorney General Mike DeWine selected Murphy as the new Solicitor General for the state, replacing Alexandra Schimmer.[4]  He serves in that position today.

History of the Seat

Murphy has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit.  Judge Alice Batchelder has indicated that she will vacate the seat upon the confirmation of a successor.

In September 2017, Murphy reached out to the White House Counsel’s Office to express his interest in a judicial appointment.[5]  After interviews with the White House, Murphy interviewed with Brown and Republican Senator Rob Portman in late 2017.  He was officially nominated on June 18, 2018.[6]   Notably, Brown has indicated his strong opposition to Murphy’s nomination and has indicated that he will not return a blue slip.[7]

Political Activity

Murphy has a relatively limited political history, having served as part of the local Republican Party chapter as a college student and having volunteered for DeWine in the 2000 elections.[8]

Private Practice

After his clerkships, Murphy worked in the Columbus office (alongside fellow nominee Chad Readler) as an Associate in the Issues and Appeals section.  In this role, Murphy handled appeals in state and federal court, representing a variety of corporate clients, including R.J. Reynolds Tobacco Co., Goodyear Tires, and Procter & Gamble.[9]  Notably, Murphy represented the Washington Legal Foundation, a free-market conservative organization, in arguing that the First Amendment permits promoting a prescription drug for an off-label use, successfully getting a conviction overturned.[10]

Solicitor General

Since 2013, Murphy has served as the Solicitor General of Ohio, representing Ohio before state and appellate panels, defending state laws, and pushing for conservative legal outcomes in other cases.  In his five years as Solicitor General, Murphy has argued five cases before the U.S. Supreme Court.[11]  He has also filed four amicus briefs as counsel of record and has participated at the certiorari level in over eighty additional cases.[12]  We have highlighted some of the key positions he took as Solicitor General.

False Speech in Advertising

Murphy’s first argued case before the Supreme Court was Susan B. Anthony List v. Dreihaus.  The case involved a challenge by the Susan B. Anthony List, an anti-abortion group, to an Ohio law criminalizing the use of “false statements” in political advertising.  After a lower court held that the SBA List could not challenge the law for lack of standing, the Supreme Court granted certiorari and Murphy defended the law.  The Supreme Court unanimously held against Murphy’s position and found that the SBA List could challenge the law under the First Amendment.[13]

Death Penalty Protocol

In 2016, prisoners challenged Ohio’s three-drug protocol for executions, and its use of the drug Midzolam.[14]  After the District Court granted an injunction against the protocol, and the Sixth Circuit affirmed, Murphy was able to convince an en banc seating of the Sixth Circuit to reverse.[15]

Same Sex Marriage

As Solicitor General, Murphy led the defense of Ohio’s ban on same sex marriage, consolidated with the bans in Tennessee, Kentucky, and Michigan.[16]  Murphy defended the bans before the Sixth Circuit, arguing that gay marriage was an issue for voters, not the courts.[17]  However, the Supreme Court ultimately rejected Murphy’s position, holding that same sex marriage bans violate the Constitution.[18]

Restrictions on Voting

As Solicitor General, Murphy led the defense of Ohio voting restrictions, including two prominent cases that involved the Supreme Court.  The first case involved a challenge to the reduction of Ohio’s early voting period from 35 days to 28.[19]  Murphy defended the restrictions, successfully reinstating them before the Sixth Circuit after the District Court struck them down.[20]  The Supreme Court denied a stay.

The second case was a challenge under the National Voter Registration Act to Ohio’s practice of purging voters from the rolls after a two-year inactive period of voting.[21]  After the District Court permitted the practice, a panel of the Sixth Circuit reversed and the Supreme Court granted certiorari.  Murphy argued the case before the Supreme Court, which reversed 5-4.[22]

Overall Assessment

Murphy has accomplished a lot given his relative youth.  Despite barely meeting the 12 years of practice criteria set by the American Bar Association, it is hard to argue that Murphy is not qualified for the appellate bench.

However, this does not mean that Murphy will be deemed a “consensus” nominee.  Murphy has been advanced without the support of his home-state senator, which automatically puts a nominee at risk of opposition.  Additionally, Murphy’s record as Solicitor General can be characterized as constituting conservative activism.  Murphy’s defense of Ohio voting restrictions and same-sex marriage ban will be particularly scrutinized.

At the same time, Solicitors General and Attorneys General have a responsibility to defend their state statutes and policies, provided that there is a reasonable defense.  Murphy’s supporters can point to his defense of the Ohio “false statements” law, challenged by conservative groups, to argue that Murphy’s top priority is the law, rather than ideology.

Overall, given Senate Republicans’ abandonment of the “blue slip” policy for appellate nominees, Murphy will likely be confirmed.  However, he is unlikely to get the support of many, if any Democrats, in that process.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric E. Murphy: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Murphy, supra n. 1 at 47.

[6] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 15, 2017) (on file at www.whitehouse.gov/the-press-office).

[7] Press Release, Office of Sen. Sherrod Brown, Brown Will Not Support Judge Nominees Who Worked to Strip Ohioans of Their Rights (June 8, 2018) (on file at https://www.brown.senate.gov/newsroom/press/release/brown-will-not-support-judge-nominees-who-worked-to-strip-ohioans-of-their-rights).

[8] See Murphy, supra n. 1 at 14-15.

[9] See Murphy, supra n. 1 at 16-17.

[10] See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).

[11] See Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018); Sheriff v. Gillie, 136 S. Ct. 1594 (2016); Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[12] See Murphy, supra n. 1 at 19-24.

[13] Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

[14] In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) (en banc).

[15] Id. 

[16] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

[17] Robert Barnes, Gay-Marriage Backers Meet a Skeptical Court, Wash. Post, Aug. 7, 2014.

[18] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[19] Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); Husted v. Ohio State Conference of the NAACP, 135 S. Ct. 42 (2014).

[20] Id. 

[21] Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).

[22] Id.

John Nalbandian – Nominee for the U.S. Court of Appeals for the Sixth Circuit

So far, the Trump Administration has moved relatively quickly to fill vacancies on the Court of Appeals.  However, the nomination of John Nalbandian to the Sixth Circuit was seemingly finalized in supernatural speed, coming just two days after Judge John Rogers announced his intent to move to senior status.  This speed is a sign that Nalbandian was being vetted before the vacancy was announced, potentially for the Ohio seat vacated by Judge Alice Batchelder.

Background

John Baylor Nalbandian was born in 1969 in Fort Ord, California.[1]  After getting a B.S. magna cum laude from the University of Pennsylvania and a J.D. from the University of Virginia Law School, Nalbandian clerked for Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.[2]  After his clerkship, Nalbandian joined the Washington D.C. office of Jones Day.

In 2000, Nalbandian moved from Jones Day to the Cincinnati office of Taft Stettinius & Hollister LLP.[3]  He became a partner there in 2004 and continues to serve in that capacity today.

In 2010, upon the recommendation of Senate Republican Leader Mitch McConnell (R-KY), Nalbandian was appointed by President Obama to serve on the board of directors of the State Justice Institute (SJI), a nonprofit organization focused on improving resources for judges and court staff.[4]  Nalbandian continues to serve as a director.

History of the Seat

Nalbandian has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in January 2018 with Judge John Rogers’ announcement that he would move to senior status upon confirmation of his successor.  However, Nalbandian had been under consideration for a federal judgeship as far back as November 2016, when he first began talking to McConnell about a judicial appointment.[5]  While he interviewed with McConnell in January 2017, he wasn’t contacted by the White House until September (approximately when Judge Alice Batchelder announced her move to senior status in an Ohio seat).  Nalbandian interviewed with the White House and the Department of Justice in October 2017, and was nominated on January 24, 2018.

Political Activity

Nalbandian is a Republican and has a long history with the Kentucky Republican party, including serving as the Party’s General Counsel between 2010 and 2016, and serving as a Delegate to the 2016 Republican National Convention.[6]  Nalbandian also advised and volunteered on the campaigns of several Kentucky Republicans including those of McConnell, Sen. Rand Paul, Rep. Andy Barr, Rep. James Comer, and former State Senate President David Williams.[7]

Nalbandian has also been an active donor to Republicans, having given almost $15000 over the last thirteen years.[8]  Barr has been a particular beneficiary of the donations, having received $3250 of the donations.[9]  Nalbandian has also donated to other Republicans including Senators Todd Young and Tom Cotton.[10]

Nalbandian has been active in the Federalist Society for the past twenty seven years, including serving as President of the Cincinnati Lawyers Chapter from 2000 to 2008, and serving as an Advisory Board Member from 2010 to the present.[11]

Legal Experience

Nalbandian has practiced law for around twenty five years, cutting his teeth by representing a habeas petitioner as a law student at the University of Virginia.[12]  In his time at Jones Day and at Taft Stettinius, Nalbandian has specialized in appellate practice, representing businesses on commercial, environmental, labor, and other matters.[13]  For example, Nalbandian helped defend the brand name manufacturers of Percocet in a series of class-action lawsuits borne out of injuries caused by the drug.[14]  Throughout his career, Nalbandian has handled a vast array of cases.  We summarize some of them below:

Criminal Defense

Nalbandian has developed a thriving criminal defense practice, working on many white collar criminal defense matters.[19]  Notably, he has also represented capital and habeas defendants pro bono.  For example, Nalbandian represented an Ohio death penalty petitioner in seeking a new sentencing hearing.[20]  In challenging the death penalty sentence, Nalbandian successfully argued that the petitioner did not receive the effective assistance of his counsel at the penalty phase of his trial, leading to the Sixth Circuit reversing the death penalty on a 2-1 vote.[21]

Environmental Pollution & Toxic Torts

Nalbandian has represented many businesses in suits over environmental pollution or toxic torts, typically seeking to shield the business from penalties or civil damages.  In one suit, Nalbandian represented a steel company seeking to reverse damages assigned to plaintiffs based on “fugitive dust” that had migrated to the plaintiffs’ properties.[15]  However, Nalbandian has also represented plaintiffs in contamination and toxic tort actions, in one case, suing on behalf of plaintiffs who had consumed contaminated water in West Virginia.[16]

Local Government

Throughout his career, Nalbandian has also occasionally represented municipalities in zoning and other such suits.[17]  In one of his more prominent cases, Nalbandian represented Northern Ohio municipalities in an unsuccessful challenge to the regional stormwater management program implemented by the Sewer District.[18]

Election Law

As part of his election law practice, Nalbandian represented Hamilton County Judge John Williams in a contentious election challenge.[22]  In the 2010 elections, Williams was challenged by Democrat Tracie Hunter, and was certified as the winner with a narrow lead in the final vote count.  However, Hunter challenged the results, arguing that 849 provisional ballots were erroneously thrown out due to poll worker error.[23]  When outgoing Ohio Secretary of State Jennifer Brunner, a Democrat, stepped in to offer guidance in reviewing the 849 disputed ballots, Nalbandian sued on Williams’ behalf, successfully getting the Republican-dominated Ohio Supreme Court to step in and block Brunner’s guidance.[24]

In response to the Ohio Supreme Court’s intervention, Hunter filed a federal suit, and U.S. District Judge Susan Dlott granted a preliminary injunction in Hunter’s favor to count the disputed ballots.[25]  When Nalbandian appealed, a divided panel of the Sixth Circuit affirmed the injunction,[26] and with the recounting of 149 additional ballots, Hunter was declared the winner of the election.

Academic Judgment

In one of his more unusual cases, Nalbandian represented the Case Western Reserve University in seeking to revoke a medical school diploma given to one of its students.[27]  The plaintiff in the case, Amir Al-Dabagh, had fulfilled all the academic requirements for a medical degree.[28]  However, the Medical School declined to give him a degree, citing numerous “professionalism” violations, including incurring a DUI in North Carolina.[29]  Al-Dabagh filed suit, arguing that the failure to give him a medical degree violated its state law duties of fair dealing and good faith, and U.S. District Judge James Gwin ruled in his favor.[30]  However, Nalbandian filed an appeal and was able to convince the Sixth Circuit to reverse the ruling.  Writing for the court, Judge Jeffrey Sutton found that the Medical School’s decision not to award the degree based on “professionalism” was an “academic judgment” that could not be second-guessed by the court.[31]

Overall Assessment

Kentucky nominees to the Sixth Circuit have not had the smoothest confirmations under Trump, with both Judges Thapar and Bush being confirmed by narrow partisan margins.  While Nalbandian has already been unanimously confirmed by the senate once, this does not necessarily portend an easy confirmation for him this time around.  The State Justice Institute, while important, focuses on education rather than shaping law or policy.  As such, it is unlikely that Democrats, who were willing to confirm Nalbandian to the SJI, will be equally accommodating when the prize is a lifetime appointment one step below the supreme court.

Furthermore, Nalbandian is active in the Federalist Society, and the conservative legal organization has become a a bete noire for Senate Democrats.  As such, it is likely that Nalbandian will see significantly more opposition to this nomination than he did eight years ago.

That being said, unlike the previous two nominees to the Sixth Circuit from Kentucky, Nalbandian lacks both a judicial paper trail and a bevy of controversial statements that can be mined for opposition research.  Furthermore, unlike most Trump nominees, Nalbandian has worked with diversity-based legal organizations, including as an active member of the Greater Cincinnati Minority Counsel Program  and the National Asian Pacific American Bar Association.  His active role in the Asian American legal community and his pro bono work should also deflect criticism.

Overall, while Nalbandian may not see the unanimous support he received eight years ago, he will likely be confirmed with a bipartisan majority.  His expected confirmation will make him the second Asian Pacific American on the Sixth Circuit, and will help secure the court’s conservative majority.


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

[2] Id. at 2.

[3] See id.

[4] See The Salt Lake Tribune, Utah Court Official Appointed by Obama to National Board, The Salt Lake Tribune, July 1, 2010.

[5] See Nalbandian, supra n. 1 at 25.

[6] See id. at 11.

[7] See id. at 11-12.

[9] See id.

[10] See id.

[11] See Nalbandian, supra n. 1 at 4.

[12] In re: Burnley, 998 F.2d 1 (4th Cir. 1992).

[13] See Nalbandian, supra n. 1 at 13.

[14] See Germain et al. v. Teva Pharmaceuticals USA Inc., 756 F.3d 917 (6th Cir. 2014).

[15] Ellis et al. v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004).

[16] See Rhodes et al. v. E.I. Du Pont De Nemours & Co., 636 F.3d 88 (4th Cir. 2011).

[17] See, e.g., John K. Bush, A Better Approach to Civil Litigation Reform,

[18] See Northeast Ohio Regional Sewer Dist. v. Bath Twnship, 44 N.E.3d 246 (Ohio 2015).

[19] See, e.g., United States v. Romanini, 502 Fed. Appx. 503 (6th Cir. 2012).

[20] See Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003).

[21] See Frazier v. Huffman, 343 F.3d 780, 801 (6th Cir. 2003).

[22] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[23] See id. at 226.

[24] The State ex rel. Painter et al. v. Brunner, 941 N.E.2d 782 (Ohio 2011).

[25] See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-00820-Dlott, 2010 U.S. Dist. LEXIS 128434 (S.D. Ohio, Nov. 22, 2010).

[26] See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).

[27] See Al-Dabagh v. Case Western Reserve University, 777 F.3d 355 (6th Cir. 2015).

[28] See id. at 358.

[29] See id.

[30] See id. at 358-59.

[31] See id. at 360.

Justice Joan L. Larsen – Nominee to the U.S. Court of Appeals for the Sixth Circuit

Justice Joan Larsen of the Michigan Supreme Court, has been on President Trump’s radar for a long time.  Over a year ago, Trump included Larsen among a list of 11 jurists he would consider for the vacancy on the U.S. Supreme Court.[1]  While Trump chose Neil Gorsuch for that vacancy, Larsen was tapped shortly after for a vacancy on the U.S. Court of Appeals for the Sixth Circuit.  While the White House may hope for a swift confirmation for Larsen, her conservative record, along with the lack of consultation with Michigan’s senators, may raise concerns.

Background

Joan Louise Larsen was born in Waterloo-Cedar Falls, Iowa in December 1968.  After getting a B.A. with Highest Honors at the University of Northern Iowa,[2] Larsen attended Northwestern University School of Law, graduating first in her class in 1993.  After graduating, Larsen clerked for Judge David Sentelle at the U.S. Court of Appeals for the D.C. Circuit, and then for Justice Antonin Scalia on the United States Supreme Court.  After her clerkship, Larsen returned to the Washington D.C. Office of Sidley Austin LLP (where she had summered as a law student).  

In 1998, Larsen left Sidley to join the faculty of the University of Michigan Law School.[3]  Other than a short sixteen month stint at the Office of Legal Counsel (OLC) at the U.S. Department of Justice, Larsen taught constitutional law and criminal procedure there until 2015.

In 2015, Larsen was selected by Michigan Governor Rick Snyder for an opening on the Michigan Supreme Court.[4]  Larsen’s appoint drew bipartisan support, but was opposed by the Michigan ACLU, who objected to Larsen’s role at OLC in the Bush Administration.[5]

In 2016, Larsen’s name was included on a list of 11 jurists that would be considered for the Supreme Court under the Trump Administration.[6]  While Larsen reportedly did not solicit the mention, she nonetheless recused herself from a challenge to Trump’s electoral win by Green Party candidate Dr. Jill Stein.[7]

On March 9, 2017, Larsen was contacted by the White House Counsel’s Office about a judicial appointment.  While she interviewed with White House Counsel Don McGahn, Larsen’s name did not come from Michigan’s senators, and was not pre-cleared with them.  Larsen was officially nominated on May 8.[8]

History of the Seat

Larsen has been nominated for a Michigan seat on the U.S. Court of Appeals for the Sixth Circuit vacated by Judge David McKeague.  McKeague, a Republican who was tapped for the U.S. District Court for the Western District of Michigan by President George H.W. Bush, and elevated to the Sixth Circuit by President George W. Bush in 2005, has indicated that he will move to senior status upon confirmation of a successor.  As such, the seat will not open on the court until Larsen’s confirmation.

Political Activity

Michigan Supreme Court justices are elected in statewide elections to 8-year terms.  Even though these elections are ostensibly nonpartisan, the candidates are still nominated by political parties.  After Larsen’s appointment to the Michigan Supreme Court, she was nominated by the Michigan Republican Party to run for a full term on the court.[9]

During her campaign, Larsen described herself as a “Constitutional, rule of law judge.”  In campaign ads, Larsen emphasized her commitment to “equal justice for all.”  At the same time, Larsen’s supporters including the Chamber of Commerce described her and fellow Justice David Viviano as “not the kind of judges who will let people off on a technicality, implying that Larsen would be unwilling to overturn convictions even if they were obtained through police and prosecutorial misconduct.  In the 2016 general election, Larsen defeated Deborah Thomas, a judge in Michigan’s Third Circuit Court (and the Democratic nominee), winning 58% of the vote, performing significantly worse than fellow Justice David Viviano.[10]

Other than her own campaign for the Michigan Supreme Court, Larsen has scant experience with electoral politics.  In 1996, Larsen drafted and edited policy papers for the presidential campaign of then-Sen. Bob Dole.  In 2012, Larsen made a $500 contribution to Republican presidential candidate Mitt Romney, her only political contribution of record.

Legal Experience

Larsen has spent the vast majority of her legal career either in academia or on the bench.  Nevertheless, her short tenure in the practice of law (including two years at Sidley Austin and one year at OLC) suggests a conservative legal philosophy.

As an associate at Sidley Austin, Larsen was part of the trial team representing Glendale Federal Bank in a breach of contract case against the federal government.  Larsen helped formulate the theory of damages that secured a $381 million judgment for her client.[11]  Larsen also defended the manager of a meat-packing plant who was accused of discharging pollutants into federal waterways.[12]

From 2002 to 2003, Larsen worked as a Deputy Assistant Attorney General at OLC, essentially advising the Bush White House on the legality of its actions.  During Larsen’s tenure, OLC, under the leadership of then-head John Yoo, released a series of controversial memoranda arguing that the use of waterboarding on terror suspects did not violate the law.[13]  While Larsen has insisted that she was not involved in the drafting of those documents, the ACLU claims that she is the author of a classified memo on habeas corpus rights, and may be involved in more high profile discussions.[14]  As of May 2016, the memo authored by Larsen remains classified and has not been released.[15]

Jurisprudence

Larsen has served on the Michigan Supreme Court for approximately two years, hearing appeals from the Michigan lower courts, and serving as the final voice on Michigan state law. During her tenure, Larsen has written only six opinions.  They are outlined below:

In re Application of Consumers Energy Co. – Michigan state law permits businesses to recover the costs of purchasing pollutant allowances if the purchases were prompted by state law changes prior to October 6, 2008.  In this case, the plaintiffs sought to recover the costs of purchasing nitrous oxide allowances from the Michigan Public Service Commission.[16]  While a majority of the Michigan Supreme Court found that state law barred recovery, Larsen, joined by Justice David Viviano, dissented.  Larsen argued that, while the regulations in question were passed before the October 6 deadline, the extended timeline of implementing such regulations meant that the regulations would not come into effect until after that date.  As such, Larsen stated that the plaintiffs should be allowed to recover the costs of the allowances.[17]

People v. Seewald – This case involved a challenge to the conspiracy conviction of two campaign workers for former Rep. Thaddeus McCotter (R-MI).  The question was whether the defendants, who had agreed to falsely sign nominating petitions as “circulators” had committed “conspiracy” under the Michigan statute.  While the Court of Appeals found for the defendants, Larsen, writing for the unanimous Supreme Court, reversed, finding that the Michigan conspiracy statute covered the defendants’ conduct.[18]

Hodge v. State Farm Mut. Auto. Ins. Co. – This case asked whether Michigan district courts, which have subject matter jurisdictions over all civil cases involving less than $25000 in damages, have jurisdiction over a suit where the initial complaint alleges $25000 in damages, but the evidence in trial establishes greater damages.  Writing for a unanimous court, Larsen held that trial evidence of damages that exceed the jurisdictional limit does not divest a district court of jurisdiction over a civil case.[19]  Rather, Larsen found that jurisdiction is determined by the initial good-faith allegation of damages in the complaint.[20]

Arbuckle v. General Motors, LLC. – This case involved the coordination of workers’ compensation benefits and disability payments by General Motors in a way that allowed offsetting the benefits.  Larsen wrote for a unanimous court in finding that such coordination was permitted under Michigan law.[21]

Yono v. Dep’t of Transportation – The key question in this case was whether the government could be held liable for an injury that occurred on a parallel parking lane on a highway.  Larsen, writing for a 4-3 majority on the court, found that a parallel parking lane could not be considered “designed for vehicular travel” under the highway exception to the Governmental Tort Liability Act.[22]  As such, Larsen held that the government was immune against the plaintiff’s suit.[23]  In dissent, Justice Bridget McCormack argued that parking is necessarily part of “vehicular travel” and that, as such, the highway exception to governmental immunity did apply.[24]

In re Hicks – This case involved a challenge to the termination of the intellectually disabled plaintiff’s parental rights.  Writing for a unanimous court, Larsen found that the trial court had failed to consider the plaintiff’s intellectual disability in determining whether the termination was appropriate.[25]

In addition to the opinions she authored, the opinions Larsen has joined suggest a willingness to rule against plaintiffs[26] and criminal defendants.[27]  For example, in Hecht v. Nat’l Heritage Acads., Larsen joined an opinion by Chief Justice Robert Young vacating a grant of damages to a white teacher who was terminated based on racial bias.[28]  In Covenant Medical Center v. State Farm, Larsen joined Justice Brian Zahra in holding that healthcare providers couldn’t sue no-fault insurers for PIP benefits.[29]  In dissent, Justice Richard Bernstein argued that the majority’s reading contradicted the “plain language of the statute.”[30]

However, Larsen has also joined opinions that achieve more liberal outcomes.  For example, in Associated Builders & Contractors v. City of Lansing, Larsen joined Young’s opinion rejecting a challenge to Lansing’s minimum wage ordinance.[31]  In another case, Larsen joined a 5-2 majority on the court in holding that prosecutors were statutorily barred from using false statements made by police officers in an internal investigation to later prosecute those officers.[32]  In dissent, Justice Steven Markman argued that the majority’s reading of Michigan law goes against the “obvious purpose of the statute.”[33]

Speeches and Writings

As a prominent academic, Larsen has written extensively on constitutional structure, civil rights, and other areas of law.  One of her earliest articles, her law review note at Northwestern, explores the bar on using specific acts to show propensity in criminal cases.[34]  Specifically, Larsen argues that the bar should only be applied against evidence presented by the prosecution, and that barring the use of specific act evidence by a defendant prejudices a their ability to present a complete defense.[35]

In her writings, Larsen has generally been an advocate of expansive presidential powers. Notably, Larsen co-authored a paper on the Incompatibility Clause of the U.S. Constitution.[36]  Larsen and co-author Prof. Steven Calabresi argued that this clause was an essential guard of presidential power and prerogatives.[37]  Eliminating the clause would, Larsen wrote, “result in a fusion of the executive and legislative powers, with the Congress-filled Cabinet controlling the President’s exercise of his constitutionally granted powers.”[38]

Similarly, in an op-ed with the Detroit News, Larsen defended the use of presidential signing statements.[39]  Specifically, Larsen noted that signing statements (statements issued by the executive that “clarify” the scope of the law being signed) represent “the president’s independent vision of what the Constitution requires.”[40]  Larsen specifically brings up President Bush’s signing statement attached to a 2006 anti-torture bill.  She notes that the statement essentially says: “if the circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute.”[41]  Larsen’s endorsement of the use of signing statements in such a context reinforces her broad view of presidential powers and prerogatives.

Additionally, many of Larsen’s writings show an endorsement of originalism as the primary source of constitutional interpretation.  Originalism, or the theory that the constitution should be interpreted in accordance with the original meaning of the text, has drawn much criticism by liberal legal scholars.[42]  Nevertheless, Larsen frequently employs originalism as a tool for constitutional interpretation.[43]

Overall Assessment

Like most other appellate nominations made by the Trump Administration, Larsen is both young and judicially conservative.  Unfortunately for Larsen, these same factors make it likely that Democrats will look at her nomination with skepticism.

For critics of Larsen’s nomination, the best argument is procedural.  In nominating Larsen, the Trump Administration ignored decades of precedent and failed to consult with Michigan senators.  As such, Sen. Debbie Stabenow and Sen. Gary Peters are well within their rights to refuse to return blue slips and demand that the Administration engage in good faith consultations.  However, if blue slips are returned, Larsen’s thin paper trail will make it difficult to create a compelling case against her confirmation.

Larsen’s expansive views on presidential power are also likely to raise concerns among senators.  Her 2006 op-ed, and her statement that the president could claim to protect the nation by violating the law would raise concerns among those who favor a limited executive.

Additionally, with the emoluments clause suits proceeding against President Trump, senators may also raise Larsen’s writings on the related incompatibility clause.  Furthermore, some senators may raise Larsen’s votes in Yono and Hecht to suggest that she is biased against civil plaintiffs, although others will likely use her vote for the city in Associated Builders to point out her neutrality.

Overall, it is fairly clear that Larsen has both the intellectual heft and the requisite qualifications to serve on the judiciary.  The key question is whether her ideology would make her a result-oriented jurist.  If senators can answer that question in the negative, there is no reason to oppose her nomination. 


[1] Dara Lind and Dylan Matthews, Your Guide to President Donald Trump’s Supreme Court Shortlist, Vox, May 19, 2016, https://www.vox.com/2016/5/18/11703416/trump-supreme-court-shortlist.

[2] As a college student, Larsen stuffed envelopes and made phone calls for the presidential campaign of then-Senator Joe Biden.

[3] She also spent a semester as a visiting professor at Northwestern University Law School.

[4] Paul Egan, Snyder Appoints Joan Larsen to Supreme Court, Detroit Free Press, Sept. 30, 2015, http://www.freep.com/story/news/local/michigan/2015/09/30/snyder-appoints-joan-larsen-supreme-court/73079114/.

[5] See id.

[6] Lind, supra n.1.

[7] Kathleen Gray, Michigan Supreme Court Justices Recuse Themselves from Recount Case, Detroit Free Press, Dec. 9, 2016, http://www.freep.com/story/news/politics/2016/12/09/michigan-supreme-court-recount/95194974/.

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

[9] Emily Lawlor, See Democratic and Republican Candidates for Supreme Court, University Boards, MLive.com, Aug. 28, 2016, http://www.mlive.com/news/index.ssf/2016/08/see_democratic_and_republican.html.

[10] Michael Gerstein, Viviano, Larsen Win Re-Election to Mich. Supreme Court, The Detroit News, Nov. 8, 2016, http://www.detroitnews.com/story/news/politics/elections/2016/11/08/michigan-supreme-court-results/93501312/.

[11] Glendale Federal Bank v. United States, 43 Fed. Cl. 390 (1999).

[12] See United States v. Sinskey, 4:96-cr-40010-LLP-1 (D.S.D. 1996), aff’d 119 F.3d 712 (8th Cir. 1997).

[13] See Lind, supra n. 1.

[14] Rick Pluta, UM Law Professor Joan Larsen Named to Michgan [sic] Supreme Court”, WDET, Oct. 1, 2015, http://wdet.org/posts/2015/10/01/81659-um-law-professor-joan-larsen-named-to-michgan-supreme-court/.

[15] See Lind, supra n. 1.

[16] See In re Application of Consumers Energy Co., 876 N.W.2d 566 (Mich. 2016).

[17] See id. (Larsen, J., dissenting).

[18] People v. Seewald, 879 N.W.2d 237, 242 (Mich. 2016).

[19] Hodge v. State Farm Mut. Auto. Ins. Co., 884 N.W.2d 238 (Mich 2016).

[20] See id. at 239.

[21] Arbuckle v. General Motors, LLC., 885 N.W.2d 232 (Mich. 2016).

[22] Yono v. Dept’ of Transp., 885 N.W.2d 445 (Mich 2016).

[23] See id. at 456.

[24] See id. at 458-59 (McCormack, J., dissenting).

[25] In re Hicks, 893 N.W.2d 637 (Mich. 2017).

[26] See Deacon v. Pandora, 885 N.W.2d 628 (Mich. 2016) (holding that plaintiff did not constitute a “customer” of Pandora’s for the purpose of seeking damages for publicly disclosing his personal information).

[27] See People v. Hall, 884 N.W.2d 561 (Mich 2016) (holding that a defendant who forged signatures on a nominating petition, could be charged with felony forgery).

[28] Hecht v. Nat’l Heritage Acads, 886 N.W.2d 135 (Mich. 2016).

[29] Covenant Med Cntr. v. State Farm Mut. Auto. Ins. Co., __ N.W.2d __ (Mich. 2017) (No. 152758).

[30] Id. at *28 (Bernstein, J., dissenting).

[31] Assoc. Builders & Contractors v. City of Lansing, 880 N.W.2d 765 (Mich. 2016).

[32] People v. Harris, 885 N.W.2d 832 (Mich 2016).  

[33] See id. at 860 (Markman, J., concurring in part and dissenting in part).

[34] Joan Larsen, Of Propensity, Prejudice, and Plain Meaning: The Accused’s Use of Exculpatory Specific Acts Evidence and the Need to Amend Rule 404(b), 87 NW. U. L. Rev. 651 (1993).  

[35] See id. at 690.

[36] Article I, Section 6, Clause 2 prohibits individuals from serving simultaneously in the executive and the legislative branches.

[37] Steven G. Calabresi and Joan Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 Cornell L. Rev. 1045 (1994).

[38] Id. at 1118.

[39] Joan Larsen, Bar Group is Wrong, Presidents can Interpret Laws They Sign, Detroit News, Sept. 13, 2006, https://www.law.umich.edu/newsandinfo/pdf/Documents/06_09_september_bargroup.pdf.

[40] Id.

[41] Id.

[42] See, e.g., Nina Totenberg, Justice Breyer: The Case Against ‘Originalists’, Nat’l Pub. Radio, Sept. 30, 2005, http://www.npr.org/templates/story/story.php?storyId=4930456.

[43] See, e.g., Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010), Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1309-16 (2004).  

Senate Invokes Cloture on Thapar’s Nomination

Today, the U.S. Senate invoked cloture on Judge Amul Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit.  The 52-48 vote was surprisingly close, with every Democrat voting against cloture.

Democrats’ unified opposition to Thapar is notable, as his record is not particularly extreme, and several mainstream legal groups, including the National Asian Pacific American Bar Association support his nomination.  If anything, Thapar’s record is more moderate than that of Justice Neil Gorsuch.  Yet, the four Democrats who supported cloture for Gorsuch all voted against Thapar.  Three factors may explain the unanimity:

  1. Thapar is Trump’s first lower court nomination.  By establishing firm opposition to him, Democrats are setting a baseline for their standards, refusing to vote for any nominee to Thapar’s right.
  2. Thapar is a prospective Supreme Court nominee if Justice Kennedy retires.  Voting against him unanimously gives Democratic Senators cover to reject Thapar if he is ever elevated.
  3. Thapar’s nomination has moved incredibly quickly.  He spent a mere five days on the Senate Executive Calendar before cloture was filed.  In contrast, during the Obama Administration, Republicans made even non-controversial Obama appointees wait months before a confirmation vote.  By voting no, Democrats are registering their opposition to the speed of Thapar’s confirmation.

At any rate, Thapar’s nomination can be compared to that of Judge David Hamilton, the first circuit court nominee President Obama sent to the Senate.  Hamilton, who had a relatively moderate profile, and strong support from Indiana Republicans, faced intense Republican opposition and accusations of being a judicial activist.  After languishing on the floor for over five months, Hamilton was confirmed with the support of just one Republican Senator (his home state Senator Richard Lugar).

Tomorrow, we will see if Thapar can manage even the one cross-party vote that Hamilton got.  Based on the vote today, I wouldn’t count on it.

UPDATE – John K. Bush Criticized Cruz, Abortion, and the Affordable Care Act As a Blogger.

Approximately one hour ago, Zoe Tillman of BuzzFeed News reported that John K. Bush, nominated for the Sixth Circuit, has an extensive history of politically-charged blog posts at Elephants in the Bluegrass under the pseudonym, G. Morris.  Among the more impolitic of these are posts calling Sen. Ted Cruz (R-TX) a “sore loser”, calling for the repeal of the Affordable Care Act,  criticizing Roe v. Wade, and comparing Barack Obama to Monica Lewinsky.

In our analysis of Bush’s record yesterday, we noted the concerns that had already been raised over his statements about New York Times v. Sullivan, and his generally conservative record. The new posts on Elephants in the Bluegrass raise legitimate questions about Bush’s willingness to set aside ideology and give all litigants a fair hearing.  Needless to say, with Cruz as one of his questioners, Bush’s confirmation hearings are shaping up to be very interesting.