Ten Upcoming Judicial Nomination Battles

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court.  His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low.  Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation.  Instead, it has returned to a familiar front: lower court nominations.  With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming.  Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight.  (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

10. Cam Barker – Eastern District of Texas

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas.  As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts.  In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans.  Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.”  Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

9. Stephen Clark – Eastern District of Missouri 

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri.  Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage.  For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill.  Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed.  His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

8. Justice Patrick Wyrick – Western District of Oklahoma

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist.  Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt.  His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General.  Specifically, two incidents have been raised.  First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction.  Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence.  Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt.  The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

7. Mark Norris – Western District of Tennessee

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate.  His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017.  Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate.  In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state.  For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

6. Wendy Vitter – Eastern District of Louisiana

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana.  Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified).  Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

5. Howard Nielson – District of Utah

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C.  Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee.  Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush.  Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture.  In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded.  Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry.  In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

4. Ryan Nelson – Ninth Circuit

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit.  Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot.  The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

3. Matthew Kacsmaryk – Northern District of Texas

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.”  In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools.  In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage.  He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement.  Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

2. David Porter – Third Circuit

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey.  As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor.  In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

1. Thomas Farr – Eastern District of North Carolina

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country.  Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate.  Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.”  At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities.  Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.”  Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted.  (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.)  With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.

 

Stephen Clark – Nominee for the U.S. District Court for the Eastern District of Missouri

The area in white is covered by the Eastern District

St. Louis attorney Stephen Clark is Trump’s first nominee to the Missouri federal bench. Clark, who has the strong support of Sen. Roy Blunt (R-Mo.), may draw questions from senators regarding his work in pro-life circles.

Background

Clark was born in 1966 in Evanston, Illinois.  He attended Notre Dame University and received a J.D. from Saint Louis University School of Law.[1]  Clark then joined the St. Louis office of Greensfelder, Hemker & Gale P.C. as an Associate.  In 1998, Clark was elevated to be an Officer at the firm.[2]

In 1999, Clark moved to Polsinelli P.C. as a Shareholder.[3]  He stayed there for seven years before moving to Husch Blackwell LLP as a Partner.[4]  Finally, in 2008, he moved to start his own law practice, which was eventually renamed to RUNNYMEDE law group.[5]  Clark is still in that position.

History of the Seat

Clark has been nominated for a vacancy on the U.S. District Court for the Eastern District of Missouri.  This seat was opened by Judge Carol Jackson’s move to senior status on August 31, 2017.  In early 2017, Clark reached out to Sen. Roy Blunt (R-Mo.) to express his interest in the vacancy.[6]  After interviewing with Blunt, Clark was recommended to the White House in July 2017.  Clark was officially nominated for the seat on April 12, 2018.

Legal Experience

Clark began his legal career at Greensfelder, Hemker & Gale P.C. while also working as a municipal prosecutor in Black Jack, Missouri.  As a municipal prosecutor, Clark helped to enforce nuisance ordinances against a 146-year-old pig farm that released pungent odors onto the neighboring properties.[7]

From 1999 to 2006, Clark worked at Polsinelli, P.C. as a Shareholder.  While there, Clark focused on civil litigation, including defending plastics manufacturers against allegations that they had exposed their employee to toxic chemicals, resulting in his death.[8]  In another case, Clark defended Maytag Corporation against allegations that a defective clothes dryer had caused a fire in the plaintiff’s home.[9]

From 2008, Clark has practiced on his own (the firm is currently named RUNNYMEDE law group).  In this role, Clark has taken on some politically charged cases.  For example, Clark represented the Missouri Roundtable for Life in challenging the Missouri Science Innovation and Reinvestment Act (MOSIRA).[10]  MOSIRA set up a fund to provide state money for science research, but was criticized by the Roundtable for allowing funding to go to abortion, embryionic stem cell research, or human cloning.  MOSIRA was ultimately struck down as violating the Single-Subject Rule of the Missouri Constitution.[11]

Clark also notably represented Jalesia McQueen in a case involving disposition of two frozen pre-embryos created between her and her ex-husband.[12]  McQueen argued that the pre-embryos should be treated as “children” and, as such, custody of the embryos should be given to her.  After a trial court ruled that the embryos were marital property, and not children, Clark represented McQueen on appeal, arguing that, under Missouri law, life begins at conception and that unborn children should be treated as “persons.”[13]  The Court of Appeals disagreed, noting that any declarations in Missouri law must be “qualified by and subject to, the decisions of the U.S. Supreme Court, including but not limited to holdings that a woman’s right to an abortion remains a constitutionally protected right.”[14]  The Court of Appeals ultimately held that the pre-embryos could not be treated as children.[15]

Political Activity and Memberships

Clark has a fairly active political history, including memberships in the Republican National Lawyers Association and the Republican National Committee.[16]  Clark has also frequently volunteered for and fundraised for Missouri Republicans including Blunt.[17]  He has also donated multiple times to Blunt’s campaigns.[18]

Clark has been active in the pro-life movement, serving as the Director to Lawyers for Life since 2009.[19]  Clark has also been a member of the Federalist Society for Law and Public Policy Studies since 2009 and of the National Rifle Association since 2016.[20]

Writings

In 2013, Clark authored an article criticizing the Missouri and Kansas Supreme Courts for failing to adopt transparent procedures for the appointment of “special” judges to hear cases where justices had recused themselves.[21]  In the article, Clark uses the examples of dueling decisions from the Supreme Courts both striking down and upholding caps on noneconomic damages to illustrate the influence of “special” judges.[22]  Given their power, Clark argues that courts should “adopt a transparent and non-discretionary procedure for appointing special judges.”[23]

Clark has also written and spoken against abortion in his role in Lawyers for Life.[24]  For example, in a speech at Duke University titled “Pious & Professional: Living the Faith at Work,” Clark urged medical schools to stop partnering with Planned Parenthood, suggesting that such partnerships encouraged abortions.[25]

Overall Assessment

As Clark’s nomination winds its way through the confirmation process, expect focus to be on his political beliefs rather than his professional capability.  Specifically, senators may argue that Clark’s history of pro-life activism raises questions as to his commitment to pro-choice precedent.  For his part, Clark has already reaffirmed his commitment to enforcing Roe v. Wade.[26]  As long as 50 senators are willing to give Clark the benefit of the doubt, he is likely to join the federal bench.


[1] Sen. Comm. on the Judiciary, Questionnaire for Judicial Nominees: Stephen Clark 1.

[2] See id. at 2.

[3] See id. 

[4] Id.

[5] Id.

[6] See Clark, supra n. 1 at 42.

[7] See William C. Lhotka, Pig Farm Must Go, Court Decides: Black Jack Wins Effort to Oust Smelly Business, St. Louis Post-Dispatch, Dec. 11, 1996.

[8] See Bogner v. AIRCO, Inc. et al., Case No. 02-1157, 2003 U.S. Dist. LEXIS 26890 (C.D. Ill. Apr. 1, 2003).

[9] See Declue v. Maytag Corp., Case No. 4:03CV1371 HEA, 2005 U.S. Dist. LEXIS 34639 (E.D. Mo. Aug. 29, 2005).

[10] Missouri Roundtable for Life, Inc., et al. v. State, no. 11AC-CC00770 (Circuit Court of Cole Cnty. 2011), 396 S.W.3d 348 (Mo. 2013).

[11] See 396 S.W.3d 348 (Mo. 2013).

[12] See McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. 2016).

[13] Id. at 139.

[14] Id. at 142-43.

[15] Id. at 158.

[16] See id. at 26.

[17] Id. 

[19] See Clark, supra n. 1 at 6.

[20] See id. at 5-6.

[21] See Stephen R. Clark, Avoiding the Appearance of Impropreity: Missouri and Kansas Supreme Court Decisions on the Constitutionality of Caps on Noneconomic Damages Demonstrate the Need for Objective Procedures in the Selection of Special Judges, 77 Alb. L. Rev. 1441 (2013/2014).

[22] Id. 

[23] Id. at 1453.

[24] See Clark, supra n. 1 at 7-24.

[25] See Brandi Buchman, Judicial Nominees Taken to Task for Views on Abortion, Climate, Courthouse News, July 11, 2018, https://www.courthousenews.com/judicial-nominees-taken-to-task-for-views-on-abortion-climate/.

[26] See id.