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.

 

John K. Bush – Nominee to the U.S. Court of Appeals for the Sixth Circuit

John K. Bush, a distinguished commercial litigator, is the second Kentucky nominee named by President Trump to the Sixth Circuit.  Like the first, Judge Amul Thapar, Bush has a close connection with the Federalist Society.  However, unlike Thapar, Bush has no judicial record, making his conservative legal background even starker.

Background

John Kenneth Bush was born on Aug. 24, 1964 in Hot Springs, Arkansas.  After getting a B.A. from Vanderbilt University and a J.D. from Harvard Law School, Bush clerked for Judge J. Smith Henley on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Bush joined the Washington D.C. office of Gibson, Dunn & Crutcher LLP, working primarily in federal appellate matters.

In 1996, Bush moved to the Louisville office of Bingham, Greenebaum & Doll LLP, becoming a member in 1998, and a partner in 2012.  At Bingham, Bush served as Co-Chair of the Litigation Department, as well as Team Leader of the Antitrust Team.

Starting in 1997, Bush has served as President of the Louisville Lawyers Chapter of the Federalist Society, an organization dedicated to shaping the American legal system in accordance with originalist and textualist principles.

In November 2016, Bush indicated his interest in serving as a federal judge to Senate Majority Leader Mitch McConnell (R-KY).  After meetings with McConnell, Senator Rand Paul (R-KY), and officials in the White House Counsel’s Office and the Department of Justice, Bush was formally nominated on May 8, 2017.[1]

History of the Seat

Bush has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened in February 2017 with Judge Danny Julian Boggs’ move to senior status.[2]  Boggs, an appointee of President Ronald Reagan, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2009, but did not announce the move until shortly before President Trump’s inauguration.

Legal Experience

In almost thirty years as an attorney, Bush has primarily worked on commercial litigation, both on the trial and the appellate level.  As the head of Bingham’s Antitrust team, many of Bush’s most prominent cases involve antitrust litigation.  Early in his year, Bush was chief trial counsel for Hillerich & Bradsby Co. (H&B.), a baseball bat manufacturer in Louisville, in multidistrict litigation involving NCAA rules governing aluminium baseball bats.[3]

In one of his most significant cases, Bush represented Vibo Corporation, a tobacco manufacturer, in challenging its payment obligations under the Master Settlement Agreement (MSA) negotiated between the tobacco industry and state attorney generals in the 90s.  In the suit, Bush challenged the MSA, arguing that the agreement violated federal antitrust law.  The primary suit, brought in the Western District of Kentucky, resulted in both trial and appellate rulings against Bush’s client.[4]

Despite his primary focus on commercial litigation, Bush has also worked on some more controversial cases.  Alongside Theodore Olson, Bush was part of President Ronald Reagan’s defense team during the Iran-Contra investigation.[5]  Bush also worked with law school classmate Mark Nielson to sue the State of Connecticut and force implementation of a voter-approved constitutional limit on state spending.[6]  Bush was also part of the legal team that successfully defended a low sentence for Stacey C. Koon, the Los Angeles police sergeant convicted of civil rights violations for his role in the beating of Rodney King.[7]

Furthermore, Bush’s participation as amicus counsel in two politically charged cases may also be brought up at his confirmation hearing.  In 2007, Bush filed an amicus brief on behalf of the Louisville Area Chamber of Commerce, Inc. urging the Supreme Court to uphold the Louisville school district’s desegregation plan.[8]  Despite drafting a brief aimed at drawing conservative votes, the Supreme Court voted 5-4 to strike down the desegregation plan for relying too closely on race.[9]  Furthermore, last year, Bush participated as amicus counsel in Susan B. Anthony List v. Driehaus, a landmark First Amendment case which struck down Ohio’s ban of false statements in political campaigning.[10] 

Political Activity

Bush, a registered Republican,[11] has a long history of involvement with the Republican party.  Bush has contributed to the campaigns of numerous Republicans including McConnell, Paul, Congressman Andy Barr, and former Congresswoman Anne Northup.[12]  Over the course of his career, Bush has contributed $4500 to McConnell and $1050 to Paul, as well as volunteering for both Senators’ re-election campaigns.[13]

Bush has also made two small contributions to the Louisville and Jefferson County Republican Committee, as well as serving as an Executive Committee Member for the Jefferson County Republican Party for the last year.  Bush also served on Republican Governor Matt Bevin’s Transition Team.

Speeches and Writings

Over his thirty year long legal career, Bush has both spoken and written extensively on legal issues.  While most of Bush’s speeches and writings focus on the practice of litigation[14] and antitrust law,[15] two in particular may draw controversy.

Right to Privacy and the Kentucky Supreme Court

In 2006, Bush co-authored a paper for The Federalist Society of Law and Public Policy Studies alongside Prof. Paul E. Salamanca of the University of Kentucky School of Law.  The paper, titled “Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?” criticized a series of rulings made by the Kentucky Supreme Court that the authors felt had expanded judicial authority at the expense of the legislature, and had disregarded precedent.  Among the areas of criticism, the authors noted the Kentucky Supreme Court’s tendency “to find rights in the state constitution above and beyond those in the U.S. Constitution.”[16]  Specifically, they highlighted that the Court “immunized consensual sodomy from criminal prosecution” despite the U.S. Supreme Court’s ruling to the contrary in Bowers v. Hardwick.[17]

Bush and Salamanca also criticized the Court’s abortion jurisprudence, noting that while the Court was initially willing to defer to state regulation of abortion, it’s “affirmance of the state’s efforts to protect unborn life was short-lived.”[18]  They also chided former Justice Charles Leibson, stating that “Justice Leibson’s interpretation of Roe gave little, if any, weight to the protection of unborn life.

Originalist Interpretation of Libel Law

On March 7, 2009, Bush spoke at the Symposium on Constitutional Law at the University of Louisville Brandeis School of Law.  His speech, titled “The Constitution and the Importance of Interpretation: Original Meaning” included an endorsement of originalism: a method of interpretation that gives primacy to the words of the constitution as they were understood by the authors.[19]  In his speech, Bush singled out the Supreme Court case of New York Times v. Sullivan as a case inconsistent with originalism.[20]  Sullivan, which insulated news articles that criticized public figures, has been cited as a case that protects freedom of the press.[21]  As such, Bush’s criticism of the case may raise questions about his willingness to interpret and apply it as a federal judge.  Bush’s remarks have already drawn concern from liberal groups, who argue that they could be used as a blueprint by the Trump Administration to target independent journalists.[22]

Overall Assessment

Unlike the previous nominees featured on the Vetting Room, Bush has no experience as a judge.  While there is nothing innately disqualifying about this, Bush’s lack of judicial experience makes it more difficult to gauge what kind of a judge he will be.  However, looking at his extensive history with the Federalist Society, his endorsement of originalism, and his long involvement with the Republican party, it is reasonable to conclude that Bush will be a deeply conservative addition to the Sixth Circuit.

While partisan activity should not be a bar to judicial service, Bush’s background makes it easy for progressive legal groups to build a case against his confirmation.  In particular, Bush’s criticism of both Sullivan and an expanded right to privacy, as well as his defense of Koon, a white police officer charged with violating the civil rights of a black man, could be used as grounds for concern.[23]

Overall, there is enough in Bush’s record to draw concern from the Judiciary Committee Democrats.  If and when Bush’s nomination comes up for Committee consideration, I expect a partisan battle over his confirmation.


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

[2] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[3] See, e.g., Baum Research & Dev. Co. v. Hillerich & Bradsby Co., No. 98-72946, 2003 WL 25775524, at *1 (E.D. Mich. Nov. 23, 2003).  

[4] See VIBO Corp. v. Conway, 594 F. Supp. 2d 758 (W.D. Ky. 2009), aff’d 669 F.3d 675, 680 (6th Cir. 2012).

[5] Jonathan Adler, Judge Danny Boggs to take Senior Status,Nat’l Rev., Jan 10, 2017, http://www.nationalreview.com/bench-memos/443711/judge-boggs-take-senior-status.

[6] Jack Ewing, Frustrated Lawmaker Asks Court for Assist, Hartford Courant, Sept. 11, 1993, http://articles.courant.com/1993-09-11/news/0000004890_1_spending-cap-legislator-courts.

[7] Koon v. United States, 518 U.S. 81 (1996).

[8] See Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

[9] Andrew Wolfson, President Trump Taps Louisville Conservative John K. Bush for Court, Louisville Courier-Journal, May 8, 2017, http://www.courier-journal.com/story/news/politics/2017/05/08/donald-trump-taps-louisville-conservative-john-k-bush-court/101426196/. See also Robert Barnes, Three Years After Landmark Court Decision, Louisville Still Struggles With School Desegregation, Wash. Post, Sept. 20, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html?sid=ST2010091904357.

[10] Susan B. Anthony List v. Driehaus, 814 F.3d 466, 469 (6th Cir. 2016).

[12] While Bush takes the unusual step of reporting his campaign contributions on his Senate Judiciary Questionnaire, he omits some small donations, including a $500 contribution to McConnell made on Aug. 31, 2005, and a $200 contribution to Northup on July 26, 2004.  

[13] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=john+bush (last visited May 18, 2017).

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

[15] See, e.g., John K. Bush, So You Have a Big Antitrust Problem: Now What?, Antitrust Law Client Strategies, 2007.  

[16] John K. Bush, Paul E. Salamanca, Eight Ways to Sunday: Which Direction, Kentucky Supreme Court?, The Federalist Society of Law and Public Policy Studies, Sept. 2006, 5.  

[17] Id.

[18] Id. at 6.

[19] John K. Bush, Speech at the Brandeis School of Law’s Symposium on Constitutional Law (Mar. 7, 2009).

[20] Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[21] New York Times Editorial Bd., The Uninhibited Press, 50 Years Later, N.Y. Times, Mar. 8, 2014, https://www.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html (“[Sullivan] rejected virtually any attempt to squelch criticism of public officials – even if false – as antithetical to the ‘central meaning of the First Amendment.’”).

[22] See Justice Watch, Trump Judicial Nominee John K. Bush Has Advocated Stripping First Amendment Protections from the Press, Alliance for Justice, May 11, 2017, http://www.afj.org/blog/trump-judicial-nominee-john-k-bush-has-advocated-stripping-first-amendment-protections-from-the-press; Ian Millhiser, Trump Judicial Nominee Offered Blueprint to Allow Trump to Target the Press, ThinkProgress, May 11, 2017, https://thinkprogress.org/trump-judicial-nominee-offered-a-road-map-that-would-allow-trump-to-target-the-press-13d1b14c5cb2.

[23] Although Bush’s defenders may note his defense of aggressive desegregation plans as amici in Parents Involved.  

Senate Judiciary Committee Advances Thapar’s Nomination to the Floor

Today, the Senate Judiciary Committee advanced the nomination of Judge Amul Thapar to the U.S. Court of Appeals to the Sixth Circuit.  The vote to move his nomination was 11-8, with all Republicans voting in favor, and all Democrats voting against (Senator Mazie Hirono did not cast a vote).

In explaining her opposition, Senator Feinstein (D-CA), the ranking member of the committee, noted Thapar’s decision in Winter v. Wolnitzek.  This blog discussed Winter and other cases where Thapar had been reversed here.

Thapar now joins a small but growing list of nominees waiting for a floor vote.  Given his close ties to Senate Majority Leader Mitch McConnell, it would not be surprising to see Thapar called up for a confirmation vote before the Memorial Day recess.

Judge Amul R. Thapar – Nominee to the U.S. Court of Appeals for the Sixth Circuit

Judge Amul Roger Thapar has broken many barriers in his life.  He was the first Indian American to serve as U.S. Attorney for a federal district, the first Indian American to serve as an Article III federal judge, and finally, the first nominee to a lower court vacancy by the Trump Administration.  For each of these steps, Thapar has one man to thank, Senate Majority Leader Mitch McConnell (R-KY), who has carefully steered his protege’s career.  Nevertheless, setting aside McConnell’s influence, Thapar’s conservative record and relative youth make him an ideal candidate for a judgeship under a Republican Administration.

Background

Amul Roger Thapar was born to a family of Indian immigrants in Detroit, Michigan on Apr. 29, 1969.  Thapar attended Boston College and UC Berkeley School of Law, receiving his J.D. in 1994.  After graduating, Thapar clerked for Judge J. Arthur Spiegel on the Southern District of Ohio and Sixth Circuit Judge Nathaniel Jones.  After a short stint as an associate at Williams and Connolly, Thapar joined the U.S. Attorney’s Office in Washington D.C.

In 2002, Thapar joined the U.S. Attorney’s Office in the Southern District of Ohio.  During this time, Thapar volunteered for the campaigns of several Kentucky Republicans, including Gov. Ernie Fletcher, Sen. Jim Bunning, Secretary of State Trey Grayson, and Congressman Geoff Davis, as well as the re-election campaign of President George W. Bush.

Despite having no previous work experience in Kentucky, Thapar was handpicked by McConnell to serve as the U.S. Attorney for the Eastern District of Kentucky in 2006, replacing Gregory Van Tatenhove, who had been confirmed to a federal judgeship.  As the chief federal prosecutor in Eastern Kentucky, Thapar supervised all civil and criminal litigation in the district.

In May 2007, only a year after becoming the U.S. Attorney, the then 38-year-old Thapar was nominated for a federal district court seat vacated by Judge Joseph Hood.  The Democratic controlled Senate Judiciary Committee gave Thapar a hearing on Oct. 24, 2007.[1]  The Committee unanimously approved Thapar’s nomination on Nov. 15, 2007.[2]  Thapar was then unanimously confirmed by the Senate on Dec. 13, 2007, making him the then youngest Article III judge in the country.[3]

History of the Seat

Thapar has been nominated for a Kentucky seat on the U.S. Court of Appeals for the Sixth Circuit.  This seat opened four years ago with the retirement of Judge Boyce Martin, a fierce liberal voice on the circuit.[4]  Martin’s retirement in 2013 gave then-President Barack Obama the first opportunity to fill the seat.  However, the Senate’s blue slip process allowed McConnell and Sen. Rand Paul (R-KY) veto power over Obama’s choices.  After negotiating with McConnell for two years, Obama nominated Kentucky Supreme Court Justice Lisabeth Tabor Hughes for the seat.[5]  Hughes, who would have been the first female judge from Kentucky on the Sixth Circuit, was blocked by McConnell, who argued that he was not consulted on the choice.[6]  Other observers believed, however, that McConnell was leaving the seat open for the candidate he wanted to fill the position: Thapar.[7]

Without McConnell’s support, Hughes’ nomination never received a hearing in the Republican-controlled Senate, and was returned at the end of the Obama Administration.  Less than two months later, Thapar was nominated for the seat.

Jurisprudence

In his nine years on the federal bench, Thapar has authored more than 600 orders and opinions.  These opinions are frequently peppered with colloquialisms, aphorisms, and other forms of folksy language.[8]  While Thapar’s record generally indicates a conservative judicial philosophy, there are some notable characteristics that suggest a more independent bent.

Willingness to Let Civil Cases Reach the Jury

A trial judge is supposed to grant summary judgment when there is no substantial dispute of facts between the parties for a jury to resolve.  In some cases, judges grant summary judgment to dismiss cases even where substantial factual disputes remain.[9]  While Thapar has granted summary judgement to defendants in many cases,[10]  his overall record indicates a willingness to allow juries to resolve factual disputes.[11]

For example, in one case, Thapar noted:

“In baseball, ties go to the runner. In summary judgment, ties go to the plaintiff. Why? Because civil litigants have a right to a jury trial. And when a case comes down to a close call, the jury must be the one to make it.”[12]

Similarly, Thapar noted in another case:

“Courts are ill-equipped to resolve disputes between experts about critical facts, and at the summary judgment stage, courts are not authorized to do so. So it should come as no surprise that the heavily factual dispute between the parties here must proceed to trial.”[13]

In yet another case, where the plaintiff sued Walmart for failure to adequately clear a spill, Thapar denied Walmart’s motion for summary judgement, arguing that a jury should decide if Walmart had sufficient time to notice and clean the spill.[14]

Mixed Record on Criminal Procedural Protections

As a former prosecutor, one would expect Thapar to take a narrow view of Fourth, Fifth, and Sixth Amendment protections.  While there are a handful of cases in which Thapar has granted suppression motions based on violations of procedural rights, his overall jurisprudence generally sides against defendants.

For example, Thapar has repeatedly upheld searches and seizures from Fourth Amendment challenges.[15]  In U.S. v. Frechette, while sitting by designation on the Sixth Circuit, Thapar held that the purchase of a one-month subscription to a child pornography site provided “probable cause” for a search warrant.[16]  Thapar’s opinion sparked a fierce dissent by Judge Karen Nelson Moore, who noted that Thapar’s “radical view of probable cause” was “far more expansive than any circuit had taken to date.”[17]

In another case, Thapar held that officers did not violate the Fourth Amendment where they took the suspect to a hospital to undergo a digital rectal exam.[18]  Specifically, Thapar relied on the fact that officers reasonably believed that the medical exam was necessary to the suspect, and that they did not ask for the rectal exam.[19]

However, in a few cases, Thapar has sided with defendants against law enforcement or prosecutorial overreach.[20]  In one case, Thapar found that DEA agents violated the Fourth Amendment by placing a GPS tracker on a defendant’s car without a warrant.[21]  In another, case, Thapar held that law enforcements erroneously relied on a warrant that was not supported by probable cause in searching a defendant’s home, and as such, all items found in the search must be suppressed.[22]

Willingness to Overrule Administrative Rulings on Disability Claims

The Eastern District of Kentucky covers many counties where residents rely on coal mining as the chief source of employment.  As a result, the judges of the Eastern District hear many appeals from denials of benefits from the Social Security Administration.  In these cases, judges are generally asked to defer to the findings of the Administrative Law Judges (ALJs) below.  As such, reversals are rare. 

Thapar’s cases generally follow this pattern.  In most of the social security appeals he has heard, Thapar has affirmed the decision of the ALJ below.[23]  However, in a number of cases, Thapar has reversed the ALJ, ruling that they have failed to support their ruling denying benefits.[24]  For example, in one case, Thapar held that the ALJ had failed to adequately support his ruling that the plaintiff was not disabled.[25]

Prominent Reversals

Over his eight year tenure on the Eastern District of Kentucky, approximately fifteen of Thapar’s opinions have been reversed by the Sixth Circuit, or the Supreme Court.  Here is a summary of the more prominent reversals.

Reversals by the Sixth Circuit

Hill v. Lappin – This case involved a prisoner, Hill, who brought a Bivens action arguing that he was placed in segregated housing in retaliation for grievances he had filed against prison staff.  Thapar dismissed the case, stating that prisoners did not have a constitutional right to avoid prison transfers or segregation.[26]  The Sixth Circuit reversed in an opinion by Judge Ronald Gilman.[27]  Judge Gilman argued that Hill had successfully pled a First Amendment retaliation claim.[28]

Turner v. Astrue – This case involved an appeal from denial of benefits by an ALJ.  While Thapar reversed the denial of benefits, he ruled that the plaintiff was not entitled to attorney’s fees.[29]  The Sixth Circuit reversed, holding that the plaintiff had earned attorney’s fees under the Equal Access to Justice Act.[30]

Sours v. Big Sandy Reg’l Jail Auth. – This case involved a suit against a state prison after an inmate died of complications from diabetes.  Thapar held that the prison nurse and other officials were entitled to summary judgment.[31]  The Sixth Circuit affirmed the grant of summary judgment against most prison officials, but reversed the grant with respect to the nurse.[32]

United States v. Badger – This case involved a $5000 fine imposed on a prisoner by Thapar.  To ensure collection of the fine, Thapar ordered the garnishment of funds from the prisoner’s prison account.[33]  The Sixth Circuit reversed the garnishment, holding that the law only permitted garnishment when the prisoner was already in default on the fine.[34]

United States v. Walli – This case involved three defendants who were opposed to the proliferation of nuclear weapons.  The defendants broke into a nuclear facility, and vandalized it with banners and human blood.  Thapar affirmed the defendants’ convictions for willful injury of national defense premises with intent to harm the national defense.[35]  The Sixth Circuit reversed in an opinion by Judge Raymond Kethledge, holding that the defendants did not “intend” to harm the national defense.[36]

Winter v. Wolnitzek – This case involved challenges to a number of canons in the Kentucky Code of Judicial Conduct.  Thapar struck down the canons, ruling that they violated the First Amendment.[37]  On appeal, the Sixth Circuit, in an opinion by Judge Jeffrey Sutton, affirmed most of the rulings, but held that one canon, which prohibited judges from holding political fundraisers, was not unconstitutional.[38]

Summary Reversals by the Supreme Court

Lovell v. Duffey – In this case, Thapar, sitting by designation on the Sixth Circuit, joined a decision by Judge Ronald Gilman rejecting a claim for ineffective assistance of counsel made by a state court prisoner.[39]  The Supreme Court summarily reversed the ruling, remanding it for consideration in light of its ruling in Cullen v. Pinholster.[40]

Overall Assessment

Being the first is not always ideal.  The first judicial nominee sent by a polarizing President often brings unwarranted scrutiny.  Judge David Hamilton, President Obama’s first nominee to the federal bench, was, by all accounts, a moderate, credentialed, and well-liked candidate.  He nevertheless faced a well-organized smear campaign smearing him as a radical extremist.

It remains to be seen if Thapar will face a similar campaign.  But, looking at his record, there is nothing to suggest that he will be an extremist on the bench.  Thapar has made decisions that have been reversed by higher courts, as has virtually every district judge in the country.  Nevertheless, there is no pattern in these reversals that suggest that Thapar is ruling based on his personal views.  Rather, his record suggests that, while Thapar is conservative, he is nonetheless a judge who takes the law seriously.

Setting aside his demographic fame as the first Indian American to take a Sixth Circuit seat, Thapar is unquestionably qualified for this appointment, and likely would be a credit to the court.


[1] Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 110th Cong. Serial No. J-110-15 (2007) (Statement of Sen. Patrick Leahy).

[2] Executive Business Meeting Before the S. Comm. on the Judiciary, 110th Cong. Serial No. J-110-15 (2007) (Statement of Sen. Patrick Leahy).

[3] This record would be broken by the confirmation of Judge Edmond Chang three years later.

[4] Sam Roberts, Boyce F. Martin, Jr., Liberal U.S. Judge in Seminal Cases, Dies at 80, N.Y. Times, Jun 7, 2016, https://www.nytimes.com/2016/06/08/us/boyce-f-martin-jr-liberal-federal-appellate-judge-dies-at-80.html?_r=0.

[5] Press Release, The White House, President Obama Nominates Justice Lisabeth Tabor Hughes to Serve on the United States Court of Appeals (Mar. 17, 2016) (on file with the White House).

[6] Joseph Gerth, McConnell Rejects Obama Choice of Ky. Judge, Louisville Courier Journal, Mar. 18, 2016, http://www.courier-journal.com/story/news/politics/2016/03/18/mcconnell-says-he-kill-6th-circuit-nomination/81971446/ (quoting Robert Steurer, spokesperson for McConnell) (“Rather than work with [McConnell] to fill this vacancy, [the Obama White House] submitted Justice Hughes without even notifying Leader McConnell.  He will not support action on this nomination.”).

[7] Id. (“Louisville lawyer Sheryl Snyder said that he believes that McConnell is backing U.S. District Judge Amul Thapar…”).

[8] See, e.g., Nationwide Mut. Fire Ins. Co. v. Nelson, 912 F. Supp. 2d 452, 453 (E.D. Ky. 2012) (“After Nelson’s lie, he quickly learned that Nationwide was no longer on his side.”).

[9] See, e.g., Burgess v. Bowen, 466 F. App’x 272, 284 (4th Cir. 2012) (reversing grant of summary judgment in a case with “an abundance of genuine factual disputes on material issues”).

[10] See, e.g., Collins v. Penske Truck Leasing Corp., No. CV 13-181-ART, 2015 WL 5698536, at *1 (E.D. Ky. Sept. 28, 2015); Mountain Motorsports Paving & Const. LLC v. Yamaha Motor Corp., U.S.A., No. CIV. 14-76-ART, 2014 WL 5341865, at *1 (E.D. Ky. Oct. 20, 2014); Perry v. Corr. Corp. of Am., No. CIV. 11-150-ART, 2012 WL 5289413, at *1 (E.D. Ky. Oct. 23, 2012); Boggs v. 3M Co., No. CIV. 11-57-ART, 2012 WL 3644967, at *1 (E.D. Ky. Aug. 24, 2012), aff’d, 527 F. App’x 415 (6th Cir. 2013).

[11] See, e.g., Worldwide Equip. Enterprises, Inc. v. Broan-Nuton LLC, 191 F. Supp. 3d 684, 691 (E.D. Ky. 2016); City of Pikeville, Kentucky v. Broan-Nutone, LLC, No. CV 15-71-ART, 2016 WL 2843916, at *1 (E.D. Ky. May 10, 2016) (holding that the plaintiff did not need expert evidence to prove damages); Griffith v. Conn, No. CV 11-157-ART-EBA, 2016 WL 1029331, at *1 (E.D. Ky. Mar. 14, 2016); Holder v. Saunders, No. CV 13-38-ART, 2015 WL 6756374, at *1 (E.D. Ky. Nov. 4, 2015); Adler v. Elk Glenn, LLC, No. CIV. 12-85-ART, 2013 WL 6632057, at *1 (E.D. Ky. Dec. 17, 2013); EQT Gathering, LLC v. A Tract of Prop. Situated in Knott Cty., Ky., 970 F. Supp. 2d 655, 657 (E.D. Ky. 2013); Nevels v. Deerbook Ins. Co., No. CIV. 10-83-ART, 2011 WL 3903209, at *1 (E.D. Ky. Sept. 6, 2011); Recycling Sols. Tech., LLC v. Rosenberg, No. CIV.A. 10-55-ART, 2011 WL 1696826, at *1 (E.D. Ky. May 4, 2011); Ziarko v. Crawford Law Offices, PLLC, No. CIV 10-153-ART, 2010 WL 5059569, at *1 (E.D. Ky. Dec. 6, 2010).  See also Brown v. Travelers Cas. Ins. Co. of Am., No. 15-50-ART, 2016 WL 1644342, at *4 (E.D. Ky. Apr. 25, 2016) (denying a motion for judgment on the pleadings).

[12] Bentley v. Highlands Hosp. Corp., No. CV 15-97-ART, 2016 WL 7234757, at *1 (E.D. Ky. Dec. 13, 2016) (internal citations omitted).

[13] Am. Towers LLC v. BPI, Inc., No. CIV. 12-139-ART, 2014 WL 3818193, at *1 (E.D. Ky. Aug. 4, 2014).

[14] Stanley v. Walmart Stores E., LP, No. 15-86-ART, 2016 WL 3079837, at *3 (E.D. Ky. May 31, 2016).

[15] See United States v. Herrera, 636 F. App’x 250, 254 (6th Cir. 2016); United States v. Lovell, No. CRIM. 14-25-ART-10, 2014 WL 7069317, at *1 (E.D. Ky. Dec. 12, 2014); United States v. Roos, No. CRIM. 12-09-2-ART, 2013 WL 1136629, at *1 (E.D. Ky. Mar. 18, 2013); United States v. Cunnagin, No. CRIM. 10-31-ART, 2011 WL 4072817, at *1 (E.D. Ky. Sept. 13, 2011); United States v. Marcum, No. CRIM. 10-53-ART, 2011 WL 1115000, at *1 (E.D. Ky. Mar. 25, 2011); United States v. Polly, No. CRIM. 10-25-ART, 2010 WL 3984936, at *1 (E.D. Ky. Oct. 8, 2010); United States v. Pennington, No. CRIM.10-11-ART, 2010 WL 3724841, at *1 (E.D. Ky. Sept. 17, 2010); United States v. Dadanovic, No. CRIM. 09-63-ART, 2010 WL 3620251, at *1 (E.D. Ky. Sept. 10, 2010); U.S. Taylor, No. CRIM. 09-43-ART, 2010 WL 3190740, at *1 (E.D. Ky. Aug. 11, 2010); United States v. Goetting, No. CRIM.09-60(1)&(2)ART, 2010 WL 989035, at *1 (E.D. Ky. Mar. 15, 2010).

[16] United States v. Frechette, 583 F.3d 374, 376 (6th Cir. 2009).

[17] Id. at 381 (Moore, J., dissenting).

[18] United States v. Shepherd, No. CRIM. 13-25-ART-EBA-, 2014 WL 4594565, at *1 (E.D. Ky. Sept. 15, 2014), aff’d, 646 F. App’x 385 (6th Cir. 2016).

[19] Id.

[20] See, e.g., United States v. Sydnor, No. CR 16-21-ART-HAI-(2), 2017 WL 772341, at *6 (E.D. Ky. Feb. 28, 2017) (suppressing non-Mirandized statement as elicited in violation of the Fifth Amendment).

[21] United States v. Lee, 862 F. Supp. 2d 560, 562 (E.D. Ky. 2012).

[22] See United States v. Rice, 704 F. Supp. 2d 667, 668 (E.D. Ky. 2010).

[23] See, e.g., Oaks v. Colvin, No. CV 15-249-ART, 2016 WL 6133859, at *1 (E.D. Ky. Mar. 30, 2016); Eaton v. Colvin, No. CV 15-111-ART, 2015 WL 12683970, at *1 (E.D. Ky. Dec. 23, 2015); Roberts v. Colvin, No. CV 15-164-ART, 2015 WL 12661963, at *1 (E.D. Ky. Dec. 22, 2015); Morgan v. Colvin, No. CV 15-45-ART, 2015 WL 12672119, at *1 (E.D. Ky. Dec. 7, 2015); Rolf v. Colvin, No. CV 14-56-ART, 2014 WL 12567181, at *1 (E.D. Ky. Oct. 24, 2014); Morgan v. Astrue, No. CIV. 12-36-ART, 2012 WL 6623266, at *1 (E.D. Ky. Dec. 19, 2012). 

[24] Buchanan v. Colvin, No. CV 13-133-ART, 2014 WL 12649006, at *1 (E.D. Ky. May 12, 2014) (reversing the ALJ for failing to follow the “treating physician” rule); Thomas v. Colvin, No. CIV. 12-157-ART, 2013 WL 2103143, at *1 (E.D. Ky. May 13, 2013); Coleman v. Astrue, No. CIV. 12-172-ART, 2013 WL 173196, at *1 (E.D. Ky. Jan. 16, 2013);

[25] Pike v. Colvin, No. CV 13-154-ART, 2014 WL 12573849, at *1 (E.D. Ky. Feb. 11, 2014).

[26] Hill v. Lappin, No. CIV.A. 09-07-ART, 2009 WL 1036127, at *1 (E.D. Ky. Apr. 17, 2009), rev’d, 630 F.3d 468 (6th Cir. 2010).

[27] Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010).

[28] Id. at 471-72.

[29] Turner v. Astrue, 764 F. Supp. 2d 864, 866 (E.D. Ky. 2010).

[30] Turner v. Comm’r of Soc. Sec., 680 F.3d 721 (6th Cir. 2012).

[31] Sours v. Big Sandy Reg’l Jail Auth., 946 F. Supp. 2d 678, 681 (E.D. Ky. 2013).

[32] Sours v. Big Sandy Reg’l Jail Auth., 593 F. App’x 478 (6th Cir. 2014).

[33] United States v. Badger, No. CRIM. 13-3-ART, 2013 WL 5529329, at *2 (E.D. Ky. Oct. 1, 2013).

[34] United States v. Badger, 581 F. App’x 541 (6th Cir. 2014).

[35] United States v. Walli, 976 F. Supp. 2d 998, 1006–07 (E.D. Tenn. 2013).

[36] United States v. Walli, 785 F.3d 1080 (6th Cir. 2015).

[37] Winter v. Wolnitzek, 56 F. Supp. 3d 884, 889 (E.D. Ky. 2014).

[38] Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016).

[39] Lovell v. Duffey, 629 F.3d 587, 588 (6th Cir. 2011), cert. granted, judgment vacated, 566 U.S. 902, 132 S. Ct. 1790, 182 L. Ed. 2d 613 (2012).

[40] Lovell v. Duffey, 566 U.S. 902, 132 S. Ct. 1790, 182 L. Ed. 2d 613 (2012).