Western District of Kentucky

Benjamin Beaton – Nominee to the U.S. District Court for the Western District of Kentucky

Ohio litigator Benjamin Beaton is a conservative who clerked for one of the Supreme Court’s more liberal jurists.  Now, Beaton has been nominated for a vacancy on the Western District of Kentucky.

Background

A native of Paducah in Western Kentucky, Benjamin Beaton was born in 1981.  He received his B.A. summa cum laude from Centre College in 2003 and his J.D. cum laude from Columbia University Law School in 2009, working for Rep. Edward Whitfield in between.[1]  After law school, Beaton clerked for Judge Arthur Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Ruth Bader Ginsburg on the U.S. Supreme Court.[2]  Beaton also spent several months in Uganda as a legal fellow with the International Justice Mission.

After his clerkship, Beaton joined Sidley Austin in Washington D.C.  He is currently a Partner in the Cincinnati office of Squire Patton Boggs.

History of the Seat

Walker has been nominated for a vacancy on the U.S. District Court for the Western District of Kentucky.  This seat will open in September when Judge Justin Walker, another McConnell protege, will move to the D.C. Circuit.

Legal Experience

Beaton has practiced civil and criminal litigation at the firms of Sidley Austin and Squire Patton Boggs.  While at Sidley Austin, Beaton was one of the lead attorneys in a suit challenging the Environmental Protection Agency’s Cross-State Air Pollution Rule.[3]  The rule regulates the emissions of certain gases between “upwind” and “downwind” states.  After a divided panel of the D.C. Circuit blocked the rule, the Supreme Court reversed and remanded.[4]  On remand, in an opinion by Justice Kavanaugh, the D.C. Circuit blocked the rule.[5]

Among other significant matters he has handled, Beaton represented a hospital in procedures before the Kentucky Supreme Court challenging a discovery order that required turning over patient safety work product from the hospital’s records.[6]  Beaton persuaded the Kentucky Supreme Court to overturn a prior plurality opinion and hold that the information at issue in the case was privileged and protected.[7]

Writings

Throughout his career, Beaton has frequently spoken and written on the law.  For example, in one speech at Western Kentucky University, Beaton described his experience with the “professionalism” of the Supreme Court, noting examples of collegiality and problems on the Supreme Court.[8]  Beaton also runs the Sixth Circuit Appellate Blog.  Among his dossier of writings, two papers are of particular significance.

Walking the Federalist Tightrope

While a law student at Columbia, Beaton authored an article discussing a potential framework for intrastate development and use of health information technology (“HIT”), and the development of a model of interstate cooperation to improve healthcare outcomes consistent with the federalist structure of government.[9]  In the paper, Beaton notes that the federal government has largely failed in developing regulation to provide a clear framework for development of HIT and that states have been forced to act to fill this vacuum.[10]  Beaton argues for a federally established and managed “forum for interstate collaboration,” which mandates information sharing and that states would be required to participate in.[11] 

Pragmatism of Interpretation

In 2018, Beaton reviewed Judge Richard Posner’s book Richard A. Posner, The Federal Judiciary, alongside Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit.[12]  The review challenges the central thesis of Posner’s book, that judges use overly formal legal principles in order to disguise result-oriented decisionmaking in the veil of objectivism, and that judges should avoid this by adopting “judicial pragmatism” making decisions with a practical eye towards “socially beneficial effects.”[13]  Beaton and Thapar argue that Posner’s solution would create more result-oriented decisionmaking, not less, and that the real solution to overly formal decisionmaking is to focus on text and precedent.[14] 

Overall Assessment

While still under the age of forty, Beaton has significant litigation experience, a prestigious Supreme Court clerkship, solidly conservative credentials (including membership in the Federalist Society), and a paper trail reflecting a penchant for textualist and originalist judging.  All of this adds up to a conservative but confirmable nominee.

Senators may raise concerns that Beaton lacks the twelve years of practice experience the ABA seeks as a base level of qualifications, but proponents will note his Supreme Court clerkship.  Other Senators may oppose Beaton based on his litigation against EPA anti-pollution rules.  However, these concerns should not affect his confirmation.  Given that he hails from the state of Kentucky, expect the Majority Leader to pull out the stops to get Beaton on the bench before the end of the year.

[1] See Leanne Fuller, Trump Nominates Paducah Native for Federal Judgeship, WPSD Local 6, Aug. 12, 2020, https://www.wpsdlocal6.com/news/trump-nominates-paducah-native-for-federal-judgeship/article_71a5cb46-dcf4-11ea-9bb0-2f9a3c5e1b68.html.

[2] Id.

[3] See EME Homer City Generation LP v. EPA, 795 F.3d 118 (D.C. Cir. 2015).

[4] See EME Homer, 134 S.Ct. 1584 (2014).

[5] See EME Homer, supra n. 3 at 124.

[6] Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759 (Ky. 2016).

[7] See id. at 766.

[8] Jack Dobbs, Beaton Discusses Civility, Professionalism in the Supreme Court, College Heights Herald: Western Kentucky University, Nov. 15, 2018.

[9] Benjamin J. Beaton, Walking the Federalist Tightrope: A National Policy of State Experimentation For Health Information Technology, 108 Colum. L. Rev. 1670 (Nov. 2008).

[10] See id. at 1687-88.

[11] See id. at 1699.

[12] See Amul R. Thapar and Benjamin J. Beaton, The Pragmatism of Interpretation: A Review of Richard A. Posner, The Federal Judiciary, 116 Mich. L. Rev. 819 (April 2018).

[13] See id. at 823.

[14] See id. at 827-28.

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Justin Walker – Nominee to the U.S. District Court for the Western District of Kentucky

The 2018 confirmation of Justice Brett Kavanaugh left its scars upon the nation, as acknowledged by the Justice’s supporters and detractors.  During the battle, one of Kavanaugh’s top surrogates in the media was a former clerk and law professor named Justin Walker.  Now, Walker has been tapped for the federal bench in Kentucky.  

Background

A native of the Bluegrass state, Justin Reed Walker was born in 1982 in Louisville.  He attended Duke University and Harvard Law School, getting his J.D. in 2009.[1]  After, Walker worked as a summer associate at Gibson Dunn & Crutcher LLP in Washington D.C.  He was hired by the firm as an Associate upon graduation.[2]  Walker left the firm on hiatus to clerk for Justice Brett Kavanaugh (when he was on the D.C. Circuit) and then for Justice Anthony Kennedy.[3]

In 2013, Walker returned to Louisville to practice law on his own.  He left in 2019 to join Dinsmore & Scholl LLP as a Partner of Counsel.  Additionally, since 2015, Walker has been a Professor with the University of Louisville Brandeis School of Law.

History of the Seat

Walker has been nominated for a vacancy on the U.S. District Court for the Western District of Kentucky.  This seat opened on June 9, 2019, when Judge Joseph McKinley moves to senior status.  In June 2018, Walker expressed his interest in a judgeship with Sen. McConnell.[4]  In March 2019, Walker began the vetting process with the White House and was nominated in June 2019.

Legal Experience

Unusually for a federal nominee, Walker’s limited litigation experience almost entirely consists of practicing on his own.  His stints at firms are limited to a short time as an Associate at Gibson Dunn (where he represented Philip Morris in a RICO action with the federal government)[5] and his current position at Dinsmore & Scholl LLP.

Most of his time as a solo practitioner, Walker was a full time law professor.  As such, by his own account, Walker has not tried a single case as primary counsel.[6]  Additionally, he has served as associate counsel in only a single criminal case.[7] 

Writings

As a law professor, Walker has been fairly vocal on legal and policy issues.  In fact, Walker was an active writer even as a college student, where he commented on national politics.

Kavanaugh Confirmation

During the campaign to confirm Brett Kavanaugh in 2018, Walker was one of his former boss’ most prominent surrogates on tv and in the media.  In some of his appearances, Walker argued that Kavanaugh would comply with judicial precedents such as Roe v. Wade.[8]  In others, Walker argued that Kavanaugh was a solid conservative whose vote on important issues was beyond question.[9]  Furthermore, after the allegations by Dr. Blasey Ford were released, Walker questioned the process around the disclosure of the allegations and the credibility of the allegations themselves.[10]

FBI Independence

In July 2018, Walker authored an article criticizing calls for independence in the Federal Bureau of Investigation (FBI), arguing that similar to the military, civilian control of the FBI was necessary to prevent civil liberties violations.[11]  In the article, Walker chronicles the history of civilian control of the military as well as abuses committed by the FBI, noting that the agency engaged in “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African Americans.”[12]  In conclusion Walker argues: “…the FBI Director should not think of himself as the Nation’s Protector; instead, he must think of himself as an agent of the President.”[13] 

Political Reporting

Notably, as a college student, Walker spent two months crossing the country trailing Democratic presidential candidates during the 2004 election and writing missives from his experiences.[14]  In his posts, Walker discusses the state of the race, the relative merits of the candidates he covers, and his views on their ultimate match-up against President Bush.  For example, in one post, Walker describes an incident in which Rep. Dennis Kucinich visited a homeless man sleeping in a garage.[15]  In another, he suggests that Howard Dean “sabotaged his own campaign with a loose temper and a glib mouth.”[16] 

Interestingly, some of his posts display a broader critique of the Democratic Party.  For example, in one post describing the liberal town of Yellow Springs, Ohio, Walker calls it “a haven for hippies who never grew upm”[17]  noting that “every person is unusual” in the town.[18]  At the same time, Walker criticizes the town for lacking “what liberals celebrate: tolerance, diversity, and change.”[19]

Similarly, in a 2002 article provocatively titled “Worthless Democrats”, Walker excoriates the party for not taking a position on the upcoming Iraq War, stating:

“[Democrats] are weak leaders who speak softly and carry a rubber stamp.  They neither agree with the president, nor oppose him.”[20]

Overall Assessment

Walker has accomplished much in his thirty-seven years.  Given his obvious intellect, youth, and conservative bona fides, there’s little doubt why Republicans are working to advance him onto the bench.  However, Walker faces a couple of obstacles to confirmation.

First, Walker has been nominated for a trial court position.  A federal trial court judge is primarily focused on case management, sentencing, and motions practice, all areas where Walker, by his own acknowledgement, has little experience.  Not only does Walker fall short of the American Bar Association’s recommendation of 12 years of practice, he has only tried a single case (and that too as associate counsel).  Furthermore, he has handled only one expert deposition and has primarily served as a full time professor.  As such, Walker’s legal ability, while impressive, seems ill equipped for a trial level position.

Second, Walker’s candidacy may relitigate some of the most contentious portions of the Kavanaugh confirmation.  With Kavanaugh insulated by lifetime tenure, his opponents may choose to question Walker on the bases of his defense of the nominee and his dismissal of Dr. Ford’s narrative.  

Ultimately, Walker is still favored for confirmation (he has, after all, Mitch McConnell in his corner).  But, one should not discount the chance that some Republicans may find voting for him a bridge too far.

[1] Sen. Comm. on the Judiciary, 116th Cong., Justin Walker: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] Id. at 49-50.

[5] See United States v. Philip Morris USA Inc., 561 U.S. 1025 (2010).

[6] See Walker, supra n. 1 at 32-33.

[7] Id. See also United States v. Todd, 3:17-cr-77 (W.D. Ky.).

[8] See, e.g., Fox News @ Night, July 17, 2018, Fox News Network.

[9] See Ryan Lovelace, Ex-Clerk to Kavanaugh: Potential Pick “Would Not Go Wobbly” on Conservatives, Nat’l Law Journal, June 29, 2018, https://www.law.com/nationallawjournal/2018/06/29/ex-clerk-to-kavanaugh-potential-pick-would-not-go-wobbly-on-conservatives/.  

[10] Evening Edit, Sept. 28, 2018.

[11] See Justin Walker, FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military, 86 Geo. Wash. L. Rev. 1012 (July 2018).

[12] See id. at 1041.

[13] Id. at 1070.

[15] Justin Walker, Compassion for a Homeless Man, Justin Walker’s Campaign Diary, Jan. 10, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_compassion.html.  

[16] Justin Walker, Who Sabotaged Howard Dean’s Campaign, Feb. 4, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_deancamp.html.  

[17] Justin Walker, Closed-Minded Liberals, Feb. 18, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_yellowsprings.html.  

[18] Id.

[19] Id.

[20] Justin Walker, Worthless Democrats, The Duke Chronicle, Sept. 26, 2002, https://issuu.com/dukechronicleprintarchives/docs/the_chronicle_2002-09-26_sm.  

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Rebecca Grady Jennings – Nominee to the U.S. District Court for the Western District of Kentucky

A Louisville based civil litigator, Rebecca Grady Jennings is on track to become the first woman exclusively appointed to the U.S. District Court for the Western District of Kentucky. (Judge Jennifer Coffman was appointed to a joint seat serving both the Western and the Eastern Districts of Kentucky.  However, Coffman was a Lexington attorney in the Eastern District prior to her appointment).  While Jennings is very young (not even 40), she is unlikely to draw significant opposition due to her mainstream background.

Background

Jennings was born Rebecca Christine Grady in Wilmington, DE in 1978.  Jennings attended Emory University, along with a stint studying abroad at Oxford, graduating in 1999.  Upon graduation, Jennings attended American University Washington College of Law, graduating in 2002.

Jennings then clerked for Judge William Haynes on the U.S. District Court for the Middle District of Tennessee. After her clerkship, Jennings joined the Louisville Kentucky office of Middleton Reutlinger PSC as an Associate.  Jennings was elevated to be a Director in 2009, and has served as Chair of the Litigation Department since 2014.

History of the Seat

Jennings has been nominated for a seat on the U.S. District Court for the Western District of Kentucky.  This seat opened on April 1, 2014, when Judge John G. Heyburn moved to senior status.  While the seat opened in President Obama’s second term, the Obama Administration and Kentucky Senators Mitch McConnell and Rand Paul were unable to reach an agreement on a nominee to fill the vacancy.  As such, no nomination was put forward by the Obama Administration.

Jennings received a call from Paul’s office indicating her consideration for a federal judgeship in April 2017.  After interviews with Paul and McConnell, Jennings’ name was recommended to the White House.  Jennings interviewed with the White House and the Department of Justice in May, and her nomination was officially put forward on September 7, 2017.

Political Activity

While Jennings has never held public office, she has donated occasionally to Republicans.[1]  Among her donations, Jennings gave $1000 to the senatorial campaign of Trey Grayson, $1000 to McConnell, and $1000 to the Republican Party of Kentucky.

Legal Experience

After her clerkship on the U.S. District Court for the Middle District of Tennessee, Jennings has spent the rest of her legal career at the same firm: the Louisville law firm Middleton Reutlinger, serving first as a litigation associate, then as a partner, and finally as head of the litigation division.  In this role, Jennings mainly focuses on complex commercial litigation, including contract claims, professional malpractice, and intellectual property.  Jennings also maintains an employment law portfolio, primarily defending employers against discrimination claims, but also working on compliance matters.

In one of her more prominent cases, Jennings represented Republican Dana Seum Stephenson, who had been elected to the Kentucky State Senate in 2004.[2]  Stephenson’s opponent Virginia Woodward challenged Stephenson’s seating, arguing that Stephenson did not meet the Kentucky Constitution’s residency requirements.  Jennings was part of the legal team representing Stephenson throughout the proceedings, and at the Kentucky Supreme Court, which affirmed a lower court ruling holding that Stephenson was ineligible to serve.[3]

Jennings has also frequently defended school districts against First Amendment and sex discrimination challenges.  She notably defended school programs offering single-sex classes,[4] school dress codes,[5] and school locker room assignment plans.[6]

Overall Assessment

In a hearing expected to be dominated by the testimony of the American Bar Association (ABA), it is unlikely that Jennings will draw much controversy.  Despite her age, Jennings was rated Qualified by the ABA, and has fifteen years of substantive legal experience, significantly more than many of the other young nominees.  Furthermore, Jennings has Paul and McConnell, both influential senators, as her champions.  As such, it is likely that Jennings will be confirmed by the Senate before the end of the year.

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

[2] Stephenson v. Woodward, 182 S.W.3d 162 (Ky. 2005).

[3] See id. 

[4] A.N.A. ex rel. S.F.A. v. Breckenridge Cty. Bd. of Educ., 833 F. Supp. 2d 673, 675 (W.D. Ky 2011).

[5] Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005).

[6] Richards et al v. Oldham Cnty. Bd. of Educ. et al., Civil Action No. 3:10-CV-00769 (W.D. Ky) (United States District Judge John G. Heyburn II).

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Claria Horn Boom – Nominee to the U.S. District Court for the Eastern District of Kentucky & the U.S. District Court for the Western District of Kentucky

Claria Horn Boom has a relatively low profile for a federal judicial candidate.  Unlike other nominees put forward by the Trump Administration, Horn Boom hasn’t written extensively on her judicial philosophy, participated in the conservative legal movement, or built a strong litigation record.  In a confirmation process often marred by controversy, Horn Boom’s lack of a paper trail may serve her well.  However, it makes it difficult for litigants to anticipate the type of judge she will be.

Background

A native Kentuckyian, Horn Boom grew up in a Republican family in a small town in East Kentucky, where her mother served as county clerk for Martin County.[1]  Horn Boom attended Transylvania University in Lexington, graduating summa cum laude in 1991.  Horn Boom then attended Vanderbilt University Law School, graduating in 1994 with the Order of the Coif.  Horn Boom went on to clerk for Judge Pierce Lively on the U.S. Court of Appeals for the Sixth Circuit.

In 1995, Horn Boom joined the Atlanta office of King & Spalding, focusing on product liability and tort cases.  In 1998, Horn Boom returned to Kentucky as a federal prosecutor, focusing on the prosecution of financial crimes.  In 2005, Horn Boom became the first executive director of the Kentucky Equine Education Project, which advocates for the horse industry.[2]

In 2006, Horn Boom joined the Lexington office of Frost, Brown, Todd LLC., one of the largest midwestern law firms.  As a partner, Horn Boom focuses on advising businesses and financial institutions on matters, including real estate, regulations and litigation.

History of the Seat

Horn Boom has been nominated to a shared seat for the U.S. District Courts for the Eastern District of Kentucky and the Western District of Kentucky.  This seat opened on January 8, 2013, with the retirement of Clinton appointee Judge Jennifer Coffman.  While Coffman’s retirement was announced in 2012,[3] President Obama never sent a nominee to the Senate for the vacancy.  While the exact reason for the nominee is unclear, it is likely that Obama was unable to agree on a nominee with Kentucky Senators Mitch McConnell and Rand Paul.  The Obama Administration did vet Courtney Baxter, a commonwealth’s attorney in Eastern Kentucky, and a Republican, for the vacancy, but ultimately decided against nominating her.[4]

Horn Boom’s name was first floated for the vacancy early in the Trump Presidency.[5]  She was ultimately nominated for the seat on June 7, 2017.

Legal Experience

Horn Boom has spent the majority of her legal career focused on advising and defending corporations and financial institutions.  As an associate at King & Spalding, however, Horn Boom represented General Motors in successfully defending a consent agreement granting the corporation credits against future taxes.[6]  Similarly, as a partner in Lexington, Horn Boom successfully defended Central Bank against a suit alleging violations of the Right to Financial Privacy Act.[7]  Horn Boom also helped implement a “$90 million acquisition of coal terminals and coal mines in Kentucky, Virginia, and West Virginia.”[8]

During her time as an AUSA, Horn Boom worked on financial crimes, including the prosecution of Gary Douglas Burks for a kickback scheme involving defense contracts.[9]  Horn Boom also successfully argued that the U.S. Attorney’s Office was not required to recuse itself in a case where the defendant had been represented by the newly appointed U.S. Attorney in his previous capacity.[10]

Political Activity

Horn Boom, who comes from a Republican family,[11] has a record of support for Republican candidates.[12]  Between 2001 and 2016, Horn Boom has donated approximately $4900 to Kentucky Republicans, including $1450 to McConnell and $1000 to Paul.[13]  Horn Boom also retweeted a message in support of Rep. Ryan Zinke’s candidacy for Secretary of the Interior.[14]

Overall Assessment

Unlike almost every other Trump judicial nomination, Horn Boom had a minority of ABA Standing Committee rate her “Not Qualified” for a federal judgeship.[15]  Typically, such ratings reflect either the relative youth of the candidate, lack of relevant experience, or ethical and temperament issues.  As Horn Boom is in her late 40s, and doesn’t seem to have any major ethical issues, it is possible that the low rating is based on Horn Boom’s focus on transactional law rather than litigation in the federal courts.

While Horn Boom has practiced as a federal prosecutor for several years, a search of both Westlaw and LexisNexis yields only a handful of cases where she is the counsel of record.  Furthermore, even her official profile at Frost Brown & Todd suggests that her primary expertise is in transactional law, not litigation.[16]

None of this suggests that Horn Boom is unqualified for the bench, or that she should not be confirmed.  Horn Boom is, by all accounts, an intelligent and non-ideological candidate.  Nevertheless, it is the responsibility of the Senate Judiciary Committee to probe Horn Boom’s background and judicial philosophy before voting to confirm.

[1] Andrew Wolfson, Two Women in Line for Federal Bench in Kentucky, Which Now Only Has One Female Judge out of 13, The Courier-Journal, May 9, 2017, http://www.courier-journal.com/story/news/2017/05/09/two-women-line-federal-bench-kentucky-which-now-only-has-one-female-judge-out-13/314847001/.

[2] See id.

[3] Jennifer Hewlett, U.S. District Judge Jennifer Coffman to Retire from the Bench, Lexington Herald Leader, March 7, 2012, http://www.kentucky.com/news/local/crime/article44159211.html.  

[4] See Andrew Wolfson, Baxter Being Vetted for Federal Bench, Clerk Says, The Courier-Journal, April 15, 2014, http://www.courier-journal.com/story/news/politics/2014/04/15/baxter-vetted-federal-bench-clerk-says/7755619/.

[5] See Wolfson, supra n. 1.

[6] See Fulton Cnty. Tax. Comm’r. v. General Motors Corp., 507 S.E.2d 772 (Ga. App. 1998).

[7] See Coffman v. Centr. Bank & Trust Co., 2012 U.S. Dist. LEXIS 136757 (E.D. Ky., Sept. 25, 2012).

[9] See United States v. Burks, 2001 U.S. Dist. LEXIS 24481 at *18 n.10 (W.D. Ky. Aug. 10, 2001). See also Former Executive Admits Role in Kickback Scheme, The Courier-Journal, July 1, 2000, https://www.newspapers.com/newspage/110487250/.  

[10] See United States v. Huff, 2002 U.S. Dist. LEXIS 15480 (W.D. Ky. Aug. 13, 2002).

[11] See Wolfson, supra n. 1.

[13] See id.

[15] See ABA Standing Committee on the Federal Judiciary, Ratings of Article III and Article IV Judicial Nominees, 115th Cong., https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.authcheckdam.pdf.

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