David Morales – Nominee for the U.S. District Court for the Southern District of Texas

David Morales is Trump’s second hispanic judicial nominee to come before the Senate Judiciary Committee, after fellow S.D. Tex. nominee Fernando Rodriguez.  Unlike Rodriguez, however, who worked primarily in human rights law, Morales was a longtime litigator with the Texas Attorney General’s Office, working closely with Sens. John Cornyn, Ted Cruz and Gov. Greg Abbott, among others.  He also served as General Counsel to then-Gov. Rick Perry (now the Secretary of Energy).

Background

David Steven Morales was born in Edinburg, TX (in the Valley near the Mexican border) in 1968.  Morales attended Texas A&M University for a year, but received a B.B.A. from St. Edwards University in Austin.  After graduating, Morales spent a year at a Sales Associate at the Zale Corporation.[1]

In 1994, Morales received his J.D. from St. Mary’s University School of Law and then was hired by Texas Attorney General Dan Morales (a Democrat) as Assistant Attorney General in the General Litigation Division.[2]  Morales was appointed the Associate Deputy Attorney General for Litigation and Chief Ethics Officer by Texas Attorney General Greg Abbott (now the Republican Governor) in 2004.[3]  Abbott promoted Morales to Deputy Attorney General for Civil Litigation in 2007 and to Deputy First Assistant Attorney General in 2010.[4]

In 2011, Morales joined the Office of Gov. Rick Perry as General Counsel.  In 2014, Morales became Deputy General Counsel for the University of Texas System Board of Regents.  In 2016, Morales left that position to become a Partner in the Austin office of Kelly Hart & Hallman LLP.  He currently serves in that capacity.

History of the Seat

Morales has been nominated to fill the second longest pending judicial vacancy in the country.  This seat on the U.S. District Court for the Southern District of Texas opened on June 1, 2011, when Judge Janis Graham Jack moved to senior status.  The bipartisan Federal Judicial Evaluation Committee twice sent recommendations for nominees to Texas Senators John Cornyn and Ted Cruz, but the two were unable to agree on a nominee with the White House.[5]  As such, no nominee was ever put forward to fill the vacancy during the Obama Administration.

After the election of President Trump, Cruz and Cornyn reset up the Federal Judicial Evaluation Committee to take applications for the federal bench.  Morales interviewed with the Committee on March 17, 2017, and with Cornyn and Cruz on April 7.  Morales then interviewed with the White House Counsel’s Office and the Department of Justice on May 3, 2017, and was finally nominated on April 12, 2018.[6]

Important Cases

While Morales spent four years advising Perry as his General Counsel, and currently practices litigation in private practice, Morales’ most significant cases came during his 17-year long tenure at the Texas Attorney General’s Office, where he was responsible for both trial and appellate litigation involving the Texas government.

At the Texas Attorney General’s office, Morales litigated approximately 150 cases.[7]  Among his most notable cases, Morales successfully defended a challenge to Texas’ lethal injection method for capital punishment before the U.S. District Court, as well as assisting with the defense on appeal.[8]  Morales also negotiated an agreement with the U.S. Department of Justice in an investigation involving the treatment of persons with developmental disabilities in 12 Texas state schools.[9]

Morales also had an opportunity to work on briefing before the U.S. Supreme Court.  Notably, he helped assist Abbott and Cruz (then the Solicitor General) in defending a monument of the Ten Commandments that was displayed before the Texas Capitol.[10]  The Texas Supreme Court ultimately upheld the monument while striking down a similar display in Kentucky.[11]

Writings

In 2016, Morales published a letter to the editor for the Houston Chronicle in response to an editorial criticizing the decision to drop the lawsuit against Trump University.[12]  In the article, Morales described his role in leading the investigation against Trump University, stating that Abbott and political superiors had no role in directing or ending the inquiry.[13]  Rather, Morales stated that he decided to end the inquiry himself after Trump University agreed to permanently suspend Texas operations, noting:

“[The agreement] ensured that no further Texas citizens would be exposed to the company,”[14]

Morales also stated that his office had no written complaints from those who had used Trump University’s services, while also noting:

“I am proud that our Consumer Protection Division was able to get Trump University to immediately and permanently leave the State of Texas.”[15]

Morales’ letter sparked a letter in opposition from Houstonian John Fisch who noted that Trump University was given no sanctions for their deceptive conduct, stating:

“[Dropping the investigation] is akin to allowing a burglar to leave with the money and goods it took from a home, as long as he agrees not to break into the same house again.”[16]

Political Activity

Morales has a limited history of political activity.  He volunteered on President George W. Bush’s re-election campaign in 2004 and worked in then-Gov. Rick Perry’s Presidential Campaign in 2012, volunteering to assist with the Iowa caucuses.[17]

Overall Assessment

With over twenty years of litigation experience, Morales is clearly qualified for a seat on the federal bench.  While he has spent much of his career defending conservative statutes, the positions Morales took on behalf of the Attorney General’s Office cannot necessarily be considered predictive of his own approach on the bench.

Morales may draw questions, however, regarding his dropping of the investigation against Trump University.  Given his acknowledgment that he himself made the decision, Morales will likely be questioned on his motivation and reasoning.  Given the Republican majority and his otherwise noncontroversial record, however, Morales is still a favorite to be confirmed.


[1] Sen. Comm. on the Judiciary 115th Cong., David S. Morales, Questionnaire for Judicial Nominees 3.

[2] See id. at 2.

[3] See id.

[4] See id.

[5] Krista M. Torralva, 26 Apply for Federal Judge Post in Corpus Christi, Corpus Christi Caller-Times, March 1, 2017,  https://www.caller.com/story/news/local/2017/03/01/26-apply-federal-judge-post-corpus-christi/98580400/.  

[6] See Morales, supra n. 1 at 26.

[7] See id. at 14.

[8] See Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010).

[9] See United States of America v. State of Texas, No. 009-CV-00790 (W.D. Tex.).

[10] Van Orden v. Perry, 545 U.S. 677 (2005).

[11] McCreary Cnty. v. ACLU, 545 U.S. 844 (2005).

[12] David Morales, Saturday Letters; Trump U. and Texas, Houston Chronicle, June 3, 2016, https://www.houstonchronicle.com/opinion/letters/article/Saturday-letters-Trump-U-and-Texas-7961669.php.  

[13] See id.

[14] Id.

[15] Id.

[16] John Fisch, Curious Actions, Houston Chronicle, June 20, 2016, https://www.houstonchronicle.com/opinion/letters/article/Trump-U-and-Texas-8000753.php.  

[17] See Morales, supra n. 1 at 11.

Fernando Rodriguez Jr. – Nominee to the U.S. District Court for the Southern District of Texas

Compared to the backgrounds of most Trump nominees, Fernando Rodriguez is particularly unique.[1]  First, Rodriguez is the first and, thus far, only hispanic nominee to the federal bench from the Trump Administration.  Second, Rodriguez has an unusual background for a judicial nominee, having spent much of his career in trainings and advocacy fighting human trafficking.

Background

Fernando Rodriguez Jr. was born in Harlingen, TX, a small town near the Mexican border, in 1969.  Rodriguez received a Bachelor of Arts degree from the Yale University in 1991.  After graduating, Rodriguez joined Teach for America, teaching at an inner city Houston elementary school, Scarborough Elementary, for three years.

In 1994, Rodriguez joined the University of Texas at Austin Law School, earning his J.D. with honors in 1997.  After graduating, Rodriguez was hired by Texas Supreme Court Justice Nathan Hecht, a Republican, to be his briefing attorney.  After a year there, Rodriguez joined the Dallas Office of Baker Botts LLP. as an associate.  He became a partner there in 2006.

In 2010, Rodriguez joined the International Justice Mission, a Christian non-profit focused on law enforcement issues (primarily human trafficking).  Specifically, Rodriguez was hired to be the Field Office Director in Bolivia.  In 2013, Rodriguez became the Field Office Director in the Dominican Republic.  He currently serves in that capacity.

History of the Seat

Rodriguez has been nominated to a seat on the U.S. District Court for the Southern District of Texas.  This seat opened on May 20, 2014, when Judge Gregg Costa was elevated to the U.S. Court of Appeals for the Fifth Circuit.[2]  While Obama and Texas Senators John Cornyn and Ted Cruz reached a deal to confirm three nominees to the Southern District, Costa’s seat was not among them and was never filled.[3]

After the election of President Trump, Cruz and Cornyn set up a Federal Judicial Evaluation Committee to take applications for the federal bench.  Rodriguez interviewed with the Committee on April 20, 2017, and with Cornyn and Cruz on May 4.  Rodriguez then interviewed with the White House Counsel’s Office and the Department of Justice on May 30, 2017, and was finally nominated on September 7, 2017.

Legal Experience

Rodriguez began his legal career as a briefing attorney for Texas Supreme Court Justice Nathan Hecht.  Despite the title, the role involved Rodriguez serving as Hecht’s law clerk.  After that position, Rodriguez has only worked for two employers: Baker Botts; and the International Justice Mission.

While an associate and a partner at Baker Botts, Rodriguez practiced commercial civil litigation, primarily representing corporate clients.  Notably, Rodriguez represented Ternium, a steel supplier, in a federal breach of contract action for failure to pay for a steel shipment.[4]  Rodriguez also successfully defended a Costa Rican partnership against breach of contract and business tort claims arising from funding of a hospital.[5]  Rodriguez also practiced in state court, winning a breach of contract claim involving the payment of taxes in a property sale.[6]

At the International Justice Mission, Rodriguez primarily worked to combat child sex trafficking.  While stationed in Bolivia, Rodriguez worked with law enforcement officials to secure convictions for 26 offenders.[7]  Rodriguez similarly worked to convict 23 offenders in the Dominican Republic.[8]  In these roles, Rodriguez also worked to train law enforcement and the judiciary on trafficking issues.

Political Activity

Rodriguez has a limited history of political activity.  He has only one donation of record: a $500 donation to John McCain’s Presidential Campaign in 2008.[9]  He also served as a volunteer for Judge Catharina Haynes’ re-election campaign in 2006.  Judge Haynes, a Republican, was later appointed to the Fifth Circuit by President George W. Bush.

Overall Assessment

In confirmation politics, as in electoral politics, a sympathetic narrative is the key to success.  In Rodriguez’s case, he has it in spades.  Not only is he the first hispanic judge nominated by President Trump, but he has devoted his career to a worthy cause: helping child escape human trafficking and sexual slavery.  His work on human trafficking issues along with his experience teaching elementary school in inner-city Houston is fairly unusual in a federal judicial nominee.  Furthermore, Rodriguez does not have a history of overly partisan advocacy, or of controversial writings.  Nor does he have a dearth of experience, having been an attorney for twenty years.  As such, all signs point to a comfortable nomination for Rodriguez.


[1] Rorie Spill Solberg and Eric N. Walterburg, Trump’s Judicial Nominations Would Put a Lot of White Men on Federal Courts, Wash. Post, Nov. 28, 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/11/28/this-is-how-trump-is-changing-the-federal-courts/?utm_term=.0f24cb9a88ce.

[2] John Council, It’s Unanimous: Gregg Costa to Join Fifth Circuit, Texas Lawyer, May 26, 2014, https://www.law.com/texaslawyer/almID/1202656477944/.  

[3] Kevin Diaz, Texas Candidates for Federal Bench Caught Up in Political Gamesmanship, San Antonio Express-News, January 15, 2015, http://www.expressnews.com/news/local/article/Texas-candidates-for-federal-bench-caught-up-in-6039505.php.  

[4] See Ternium Int’l USA Corp. v. Consol. Sys. Inc., No. 3:08-cv-00816-G, 2009 WL 464953 (N.D. Tex. Feb. 24, 2009).

[5] See Int’l. Hosp. Corp. et al. v. Grupo Promoter Hosp. San Jose, S.A., et al., No. 3:06-cv-00266-N (N.D. Tex. 2006).

[6] See Hollywood Theatres, Inc. v. J.C. Mitchell, No. 98-11171-A (County Court of Law No. 1, Dallas County, Tex. 1999) (Judge David Gibson).

[7] Fernando Rodriguez Jr., Senate Judiciary Questionnaire 26 (available at https://www.judiciary.senate.gov/imo/media/doc/Rodriguez%20Jr%20SJQ.pdf).

[8] Id.

[9] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=fernando+rodriguez&order=desc&page=2&sort=D (last visited Nov. 28, 2017).