Wendy Vitter

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.

 

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On the “Correctness” of Brown v. Board of Education

This morning, five judicial nominees testified before the Senate Judiciary Committee, the most controversial of whom was Wendy Vitter, tapped for the U.S. District Court for the Eastern District of Louisiana.  Among many sharp exchanges that Vitter had with Committee Democrats during the hearing, one was particularly notable:

Sen. Richard Blumenthal (D-Conn.) asked Vitter if she believed that Brown v. Board of Education, the seminal Supreme Court decision desegregating public schools, was correctly decided.  Vitter answered as follows:

“Senator, I don’t mean to be coy, but I think I get into a difficult…diff…difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.  Again, my personal, political, or religious views, I would set aside.  That is Supreme Court precedent.  It is binding.  If I were honored to be confirmed, I would be bound by it and of course I would uphold it.”

Blumenthal pressed his question and Vitter repeated her refusal, stating:

“And again, I would respectfully not comment on what could be my boss’ ruling, the Supreme Court.  I would be bound by it.  And if I start commenting on ‘I agree with this case or don’t agree with that case,’ I think we get into a slippery slope.”

Vitter’s answer has already been criticized by the Leadership Conference on Civil Rights, and judicial nominations guru Christopher Kang, among others.  It will no doubt be raised repeatedly by opponents to argue that Vitter is an opponent of the Brown decision and thus, unfit for the bench.  Setting aside any normative evaluation of Vitter, it is worth asking: how can a judicial nominee ethically answer Blumenthal’s question?

The “Correct” Answer

From a moral sense, there is little doubt Brown was correctly decided.  This is the consensus position of the legal community and of most (but not all) Americans.  As such, isn’t that the “correct” answer to the question?

Last month, Sixth Circuit nominee John Nalbandian seemed to agree, answering Blumenthal’s question as follows:

“Brown, Senator, is a seminal decision in the Supreme Court’s history and corrected an egregious error in Plessy v. Ferguson and I believe…I believe it was [correctly decided].”

However, about a minute later, Nalbandian was asked if  Roe v. Wade, which established the right to terminate a pregnancy, was correctly decided.  He said the following:

“I’m reluctant, and I think it would be inappropriate for me to go down a list of Supreme Court cases and say I think this case was rightly decided and that case was not, because I think it would call into question my partiality going forward.”

The problem here is that the two answers are essentially irreconcilable.  Regardless of one’s feelings about the cases, both Brown and Roe are binding precedents of the U.S. Supreme Court.  As such, it is truly odd that a nominee can comment on the “correctness” of one without compromising his impartiality, but not the other.

Nalbandian did attempt a distinction between Roe and Brown, arguing that Brown is widely accepted while Roe raises issues that may come before him as a judge.  However, it’s hard to accept this answer for two reasons:

First, Nalbandian is up for a lower court judgeship.  As such, he will have no opportunity to opine on the “correctness” of Roe.  Rather, it is his responsibility to apply Roe, its progeny, and all other Supreme Court precedents.  Thus, as a lower court judge, all Supreme Court precedents bind him equally.

Second, there is no such thing as a case that will NEVER come before the judge.  Long settled precedents are constantly re-examined in the legal system.  Austin, Bowers, Miller, Bakke have all been challenged and re-evaluated before the Supreme Court in the last two decades.  As such, the distinction between a “settled” case like Brown and an “unsettled” case like Roe appears even more spurious.

The “Principled” Answer

So setting aside the Brown–Roe decision Nalbandian made, we come back to the Vitter answer, which is to decline to opine on all Supreme Court precedents.  After all, it is a lower court judge’s responsibility to apply ALL Supreme Court precedents, even those that they believe to be wrongly decided.  As such, the only “principled” answer is to decline to state the “correctness” of any Supreme Court decision.

Unfortunately, this answer looks awful from a political sense.  It leads to a nominee being battered for not “supporting” popular precedents such as Brown, or worse, having their partiality questioned through their refusal to answer.

Avoiding the Trap

The dual pressures noted above are not a bug but rather a feature of Blumenthal’s question.  Asking whether Brown was correctly decided, while innocuous on the surface, is a cleverly worded Catch-22.  Answer in the affirmative and you’re forced into unprincipled verbal gymnastics when the follow-up question about Roe hits.  Decline to answer out of principle and you’re branded uncooperative or prejudiced.

As such, I’d propose the following answer to Blumenthal’s question:

“Senator, Brown is a very important precedent of the U.S. Supreme Court.  If you’d asked me about the case when I was a private citizen, I would have happily discussed my respect for the decision and its progeny.  However, I’m here as a judicial nominee, and as such, I have a responsibility to conduct myself as I would on the bench.  Just as it would be inappropriate for a lower court judge to discuss the “correctness” of Supreme Court decisions, it would be equally inappropriate for me.  I can, however, assure you that I will faithfully apply Brown and its progeny, as well as all other Supreme Court cases.”

Such an answer adopts the best parts of both Nalbandian’s and Vitter’s answers.  It sidesteps the Brown question but makes clear the reasons for the sidestep while re-iterating respect for Brown.  While no answer is immune to being twisted, it is unlikely that the answer above would be taken to suggest that the nominee opposed Brown itself.

It will be interesting to see if Blumenthal repeats the Brown question at the hearing in two weeks, and, if he does so, how judicial nominees choose to answer.  Should they choose to do so, nominees adopting the proposed answer above will be seen as exercising the sincerest form of flattery.

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Wendy Vitter – Nominee to the U.S. District Court for the Eastern District of Louisiana

Before her nomination to a federal judgeship, Wendy Vitter was perhaps best known in connection to her husband, former Senator and Congressman David Vitter.  In particular, Wendy was remembered for her participation in a press conference during the D.C. Madam scandal in 2007.[1]  Now a nominee to a federal judgeship, Vitter faces new scrutiny on her professional record and public views.

Background

Vitter was born Wendy Lee Freret Baldwin in 1961 in New Orleans.  Vitter attended Sam Houston State University, graduating in 1982.[2]  She then worked as a substitute teacher and Exercise Instructor for a few months before joining Tulane University Law School, graduating with a J.D. in 1986.[3]

After graduation, Vitter joined the Orleans Parish District Attorney’s Office as an Assistant District Attorney.[4]  In 1989, she was elevated to become Deputy Chief of Trials and in 1990, she became the Chief of Trials.[5]  In 1992, Vitter joined Abbott & Meeks as an associate.

Vitter left Abbott & Meeks in 1993 and stayed out of the workforce for the next 19 years, supporting her husband as he ran for the state legislature, the U.S. House, and the Senate.  In 2007, both Vitters burst onto the political news scene under less than ideal circumstances, when the Senator’s phone number was uncovered in a sting of the D.C. Madam (a woman charged with running a high-end brothel).[6]  In a high profile news conference, Vitter stood by her husband and assured reporters that she was “proud to be Wendy Vitter.”[7]  Ultimately, the allegations did not affect David Vitter’s 2010 re-election campaign, although some alleged that they helped to sink his gubernatorial campaign in 2015.[8]

In 2012, Vitter rejoined legal practice as a Project Director at The Roman Catholic Archdiocese of New Orleans.[9]  In 2013, she became General Counsel to the Archdiocese.[10]  She continues to work there to this day.

History of the Seat

Vitter has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Helen Ginger Berrigan’s move to senior status on August 23, 2016.  While Berrigan, a left-leaning judge, retired under a Democratic president, the Obama Administration did not put forward a nominee for the vacancy.

Shortly after the election of President Donald Trump, Vitter reached out to Louisiana Senators Bill Cassidy and John Kennedy to express her interest in a federal judgeship.[11]  On April 7, 2017, Vitter interviewed with the White House Counsel’s Office.[12]  In June 2017, Vitter interviewed with a judicial selection committee created by Cassidy, and was selected as a nominee in September 2017.[13]  Vitter was officially nominated on January 23, 2018.[14]

Legal Experience

Vitter began her legal career as a prosecutor in New Orleans under District Attorney Harry Connick Sr.  While she started in juvenile courts, Vitter worked her way up to becoming Chief of Trials, trying over one hundred cases in her five years as a prosecutor.[15]  Among the cases she worked on, Vitter prosecuted Marcus Hamilton for the brutal murder of Father Patrick McCarthy.[16]  During the trial, Hamilton argued that he had killed McCarthy in response to repeated sexual advances made by McCarthy against him.[17]  Despite the argument, Vitter was able to secure the death penalty against Hamilton, which was upheld by the Louisiana Supreme Court.[18]  Vitter also prosecuted the first capital case in Louisiana where DNA evidence was introduced at trial.[19]

In 1992, Vitter moved to the firm Abbott & Meeks, handling maritime litigation, product liability, and class actions in federal court.[20]  However, she left this position approximately a year later.[21]

In 2013, Vitter rejoined the workforce as General Counsel to the Archdiocese of New Orleans.[22]

In this position, Vitter advises the Archdiocese on legal matters, including compliance with employment laws, the Americans with Disabilities Act, wage and hour regulations, and other laws.[23]  She also represents the Archdiocese in state court and before federal agencies.[24]

Political Activity & Speeches

Perhaps unsurprisingly, given Vitter’s marriage to a politician, she has an extensive history of political activity, including over 120 public appearances campaigning for her husband.[25]  Vitter has also served as an unofficial advisor in all of her husband’s campaigns.[26]  She has also donated to the Presidential campaign of former Senator Phil Gramm.[27]

Vitter has been active in the pro-life movement, serving as Honorary Chair for the Notre Dame Seminary Priests for Life luncheon in 2013 and getting the Proudly Pro-Life Award from the New Orleans Right to Life Educational Foundation for her efforts.[28]  In early March, the Alliance for Justice reported that Vitter’s judiciary questionnaire had omitted some of her pro-life activism, specifically two speeches, and participation in a panel.[29]  In the panel in question, Vitter advocated the work of fellow panelist Angela Lanfranchi, and encouraged attendees to pick up and use Lanfranchi’s brochure, The Pill Kills.[30]  The brochure in question suggests that

“women on the contraceptive pill are more likely to die a violent death, because they are more likely to cheat on their male partners, to face fertility problems, to have unhealthy children, and to have poor relationships to their partners” and that this would “influence rates of intimate partner violence.”[31]

Overall Assessment

In opposing judicial nominees, senators generally raise one or more of the following allegations: lack of experience; lack of integrity; and lack of impartiality.  In Vitter’s case, critics may potentially raise all three points against her.  We will evaluate each argument in turn to judge its plausibility and persuasiveness.

Firstly, critics may argue that Vitter lacks the requisite experience to be a federal judge.  The ABA requires a minimum of twelve years of legal practice to be qualified for a federal judicial appointment.  Vitter practiced as a state prosecutor for five years, in private practice for one year, and then as General Counsel for five years, leaving her narrowly short of the ABA’s requirements.  More concerning than the inability to meet the ABA standard, however, is the fact that Vitter’s federal court experience is extremely limited, with Vitter having practiced in federal court only for a year.  Furthermore, none of the matters she worked on during this year, by her own views, were significant enough to warrant inclusion in her Senate Judiciary Questionnaire.

In response, Vitter’s supporters can argue that she has handled over one hundred criminal trials in state court, and numerous civil proceedings as General Counsel.  Furthermore, they can argue that Vitter’s extensive experience in capital cases is particularly apposite to federal court work, as capital cases are notoriously complex and involve intimate knowledge of both facts and law.  As such, they would argue that she is qualified for the federal trial bench.

Secondly, Vitter’s critics may echo the arguments made by the Alliance for Justice, arguing that her failure to properly disclose all of her speeches and panels suggests a willful attempt to deceive the Judiciary Committee.  However, it is important to note that Vitter disclosed over one hundred speeches over a eighteen year period, making it fairly unlikely that the disclosure of 2-3 additional speeches would have been deemed dispositive.  It is far more likely that the speeches were overlooked rather than deliberately omitted.

Thirdly, Vitter’s critics may argue that her long history of partisan advocacy and of pro-life activism suggests an inability to enforce precedents favorable to abortion rights.  They may also argue that Vitter’s endorsement of Lanfranchi’s claims about contraception reflects her embrace of ideology over facts.  Assuming that Vitter, as numerous nominees before her have, will assure the Committee of her commitment to precedent and her understanding that Roe v. Wade is the law of the land, Vitter’s backers will likely point to such a commitment as evidence of her ultimate fidelity to the law rather than to her ideology.  They may also attempt to argue, as they have done with others, that attacking Vitter for her pro-life ideology amounts to an attack on her faith.

In looking over the arguments above, it is unlikely that Vitter will be deemed a “consensus” nominee.  However, she is still favored for confirmation for two reasons.  First, the Republican Judiciary Committee senator most likely to turn against a Trump nominee, Sen. John Kennedy, is solidly behind Vitter.  Second, given that many of the senators on both sides of the aisle served with Vitter’s husband, it would be particularly awkward for them to block Vitter’s path to the federal bench.  Relationships are still important in Washington, and as such, Vitter may fare better than a different nominee sharing her background and views.

[1] Griffin Connolly, Vitter’s Wife Nominated by Trump for Federal Judgeship in Louisiana, Roll Call, Jan. 24, 2018, https://www.rollcall.com/news/politics/vitters-wife-nominated-trump-federal-judgeship-louisiana. 

[2] Sen. Comm. on the Judiciary, 115th Cong., Wendy Vitter.: Questionnaire for Judicial Nominees 1.

[3] Id.

[4] See id. at 2.

[5] Id.

[6] Dana Milbank, Sex and the Conservative, Wash. Post, July 17, 2007.

[7] Id.

[8] Chris Cillizza, Why Did David Vitter’s Prostitute Problem Kill Him in 2015 and Not in 2010?, Wash. Post, Nov. 23, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/11/23/why-did-david-vitters-prostitution-problem-kill-him-in-2015-and-not-in-2010/?utm_term=.5a8c2d0dddc4.  

[9] Id.

[10] Id.

[11] Id. at 41.

[12] Id.

[13] Id.

[14] Press Release, White House, President Donald J. Trump Announces Tenth Wave of Judicial Candidates (January 23, 2018) (on file at www.whitehouse.gov/the-press-office).  

[15] See Vitter, supra n. 2 at 30-31.

[16] See State v. Marcus Hamilton, 681 So.2d 1217 (La. 1996).

[17] See id. at 1221.

[18] Id. at 1229.

[19] See State v. Steven Quatrevingt, 670 So.2d 197 (La. 1996).

[20] See Vitter, supra n. 2 at 31.

[21] Id. 

[22] Id. 

[23] See id.

[24] See id.

[25] See Vitter, supra n. 2 at 8-25.

[26] Id. at 29.

[28] See Vitter, supra n. 2 at 4.

[29] See Drew Broach, Wendy Vitter’s Nomination Falls Under New Scrutiny For Questionnaire Omissions, New Orleans Times Picayune, Mar. 2, 2018, http://www.nola.com/national_politics/2018/03/wendy_vitter_omissions_judicia.html.

[30] Carter Sherman and Taylor Dolven, A Trump Judge Pick Left Anti-Abortion Speeches Off Her Senate Disclosure Form, Vice News, Mar. 1, 2018, https://news.vice.com/en_us/article/vbpndy/a-trump-judge-pick-left-anti-abortion-speeches-off-her-senate-disclosure-form.  

[31] Id. (quoting The Pill Kills).

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