Justice Patrick Wyrick – Nominee for the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Justice Patrick Wyrick of the Oklahoma Supreme Court has the distinction of being the youngest candidate on President Trump’s Supreme Court shortlist.  So far, President Trump has prodigiously nominated all the state judges on his shortlist to the federal appellate bench.  However, as there are no Oklahoma vacancies on the Tenth Circuit, Wyrick has been nominated to the trial court instead.

Background

Patrick Robert Wyrick was born in Denison, TX on March 11, 1981.  Wyrick attended the University of Oklahoma, where he played baseball as a student athlete.[1]  While at the University, he met his future-wife, fellow athlete Jamie Wyrick (nee Talbert).[2]  Wyrick received his B.A. in 2004 and then received a J.D. from the University of Oklahoma College of Law in 2007.[3]

After graduating, Wyrick served as a law clerk to Judge James Payne on the U.S. District Court for the Eastern, Northern, and Western Districts of Oklahoma.[4]  He then joined the Oklahoma City office of GableGotwals as an Associate.

Just three years later, Wyrick, not even thirty, was chosen by newly elected Oklahoma Attorney General Scott Pruitt (now the EPA Director) to serve as Oklahoma Solicitor General.[5]  As Solicitor General, Wyrick was the primary representative before the courts for the state of Oklahoma.

In 2016, Justice Steven Taylor of the Oklahoma Supreme Court announced his retirement, and Wyrick was one of four candidates who applied for the seat.[6]  On February 9, 2017, the 35-year-old Wyrick was appointed by Governor Mary Fallin to fill the vacancy.[7]  Wyrick’s appointment sparked an immediate lawsuit from the American Civil Liberties Union, who argued that Wyrick, who listed a residence in Atoka to qualify for the appointment to a seat based in District 2 of Oklahoma, actually resided in Moore and Oklahoma City, citing Wyrick’s home purchases, marriage license, as well as the fact that he was registered to vote in Central Oklahoma in 2016.[8]  The Oklahoma Supreme Court dismissed the lawsuit, finding that they were not the proper agency to determine the eligibility of a sitting justice.[9]

In November 2017, Trump added Wyrick to his list of potential nominees to the U.S. Supreme Court.[10]  Wyrick’s addition makes him the youngest potential nominee on the list.

History of the Seat

Wyrick has been nominated to fill the fifth-longest pending vacancy in the nation.  This seat on U.S. District Court the Western District of Oklahoma opened on July 7, 2013, with Judge David Russell’s move to senior status.  However, the Obama Administration did not put forward a nomination for the next two and a half years, as they negotiated with Oklahoma Republican senators James Inhofe and James Lankford.  Finally, on December 16, 2015, President Obama nominated Judge Suzanne Mitchell, a U.S. Magistrate Judge on the Western District, to fill the vacancy.[11]

Mitchell, a Democrat, was nominated as part of a package with Scott Palk, a Republican.  The two nominees received a hearing before the Senate Judiciary Committee on April 20, 2016, and were both reported to the floor unanimously on May 19, 2016.  However, on the floor, Mitchell and Palk languished due to a confirmation blockade imposed by Senate Majority Leader Mitch McConnell and were not confirmed.[12]  After the election of Donald Trump, he renominated Palk (who was confirmed in late 2017).  However, Mitchell was not renominated.

Wyrick has been in contact with the White House Counsel’s Office since early 2017 in discussions on an appointment to the Western District.[13]  While he interviewed with the White House in March 2017, there was no further action on his nomination until November when he interviewed with a selection committee established by Inhofe and Lankford.[14]  After Inhofe and Lankford agreed to “recommend” Wyrick to the White House, he was nominated on April 10, 2018.

Political Activity

Other than a short stint as a volunteer for Republican Sen. Tom Coburn in 2004, Wyrick has no history with partisan politics.

Legal Experience

Wyrick began his legal career as a law clerk for Judge James Payne.  After that, he joined GableGotwals working on civil and appellate litigation.  After just three years at the position, Wyrick became Oklahoma’s Solicitor General, the primary appellate attorney for the state.  As Solicitor General, Wyrick has handled many controversial matters on behalf of then-Attorney General Scott Pruitt.

Death Penalty

In 2015, Wyrick argued Glossip v. Gross, a challenge to the use of midazolam as a sedative in Oklahoma executions, before the U.S. Supreme Court.[15]  Petitioners argued that midazolam was ineffective in preventing pain during the procedure and, as a result, the executed could feel the pain of being “burned alive” from the inside.[16]  In his briefs, Wyrick defended the Oklahoma drug protocol, arguing that death penalty opponents had successfully pressured drug companies into cutting off supplies of more effective drugs.[17]  It was a thread conservatives picked up on at oral argument.[18]

However, Wyrick also drew criticism from justices for allegedly misrepresenting the scientific evidence cited in the state’s brief.  Justice Sotomayor called out Wyrick at oral argument, noting that his assertions were “directly contradicted by the literature cited in the state’s written arguments.”[19]  Wyrick later conceded error on a related point, acknowledging that his office had inadvertently misrepresented that a letter sent to the Texas Department of Corrections had actually been sent to the Oklahoma Department of Corrections.[20]

Ultimately, the Supreme Court backed Wyrick’s position in a 5-4 decision.[21]

Abortion Rights

As Solicitor General, Wyrick was charged with defending abortion restrictions passed by the Oklahoma legislature and challenged under the Fourteenth Amendment.[22]  Among the restrictions Wyrick defended were laws requiring women to undergo ultrasounds before undertaking an abortion and laws restricting the use of drugs commonly used for medication abortions.  Both restrictions were unanimously struck down by the Oklahoma Supreme Court, as unconstitutional under Supreme Court precedent.[23]  Wyrick also defended a prescription requirement for minors who wanted to purchase Plan B contraceptives,[24] a provision imposing liability on physicians who prescribe prescription drugs for abortions,[25] and a ban on off-label use of drugs for abortions.[26]  In successfully defending the latter, Wyrick noted his views on the “dangers” of off-label use, noting:

“We have people who walk in perfectly healthy and are dead three days later.”[27]

Affordable Care Act

As Solicitor General, Wyrick sued to challenge a number of regulations imposed under the Affordable Care Act, including the IRS “large employer mandate” which Wyrick argued violated the intent of Congress in the ACA.[28]  Wyrick also raised the initial challenge to the IRS Rule permitting ACA subsidies to be offered to individuals on the federal exchange (this challenge was later rejected by the U.S. Supreme Court in King v. Burwell).[29]

Sharia Law

As Solicitor General, Wyrick also led the defense of the “Save Our State” Constitutional Amendment, which prohibited Oklahoma courts from considering international law or sharia law (Islamic jurisprudence) in its proceedings.  The Amendment was challenged by Muneer Awad, the executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR), who alleged that it violated his rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.[30]

At oral argument, Wyrick denied that the authors of the Amendment sought to single out sharia law, instead arguing that the ban included all international law.[31]  Nevertheless, the Tenth Circuit upheld a preliminary injunction against the Amendment.[32]  In 2013, Judge Vicki Miles-LeGrange made the injunction permanent.[33]  (Disclosure: As a legal fellow at the American Civil Liberties Union, who represented the plaintiff, I assisted with legal research and writing in support of the plaintiff’s case on remand.)

Jurisprudence

Wyrick has served as a Justice on the Supreme Court of Oklahoma since 2017.  In his year and a half on the bench, Wyrick has heard approximately 100 cases, and has authored five majority opinions,[34] eight concurrences,[35] and six dissents.[36]  Despite his relatively new position on the court, Wyrick has not hesitated to stake out strong positions, concurring and dissenting frequently.

Taxes and Fees

In 2017, Wyrick wrote for the Oklahoma Supreme Court in two high-profile challenges to state taxes.  In one case, Wyrick struck down the newly passed tax on cigarettes, finding that the “tobacco cessation fee” was not passed in conjunction with the constitutionally mandated supermajority for revenue raising bills.[37]  In the other case, Wyrick upheld the elimination of the state’s sales tax exemption, writing for a 5-4 majority that bills removing exemptions from existing taxes do not count as “revenue” bills while bills imposing new taxes do.[38]  In dissent, Justice Doug Combs pointed to the legislative history and the purpose of the auto tax to show that it was intended to raise revenue.[39]

Dissents

In a variety of civil cases, Wyrick has authored dissents advocating denial of claims.  For example, in one case where the Oklahoma Supreme Court found that a worker had properly been adjudicated disabled and was entitled to benefits, Wyrick dissented with Justice James Winchester, calling the majority opinion a “legal fiction.”[40]  In another case, Wyrick authored a dissent (joined only by Justice Winchester) arguing that a sex offender should be permitted to deregister.[41]  In yet another case, the Oklahoma Supreme Court held that plaintiffs injured by a drunk driver could bring suit against a convenience store that negligently and recklessly sold alcohol to the visibly intoxicated driver.[42]  Wyrick dissented, arguing that the decision would lead to “arbitrary impositions of liability” and that it dismissed the proximate cause requirement of tort claims.[43]

Writings

In 2014, Wyrick authored a blog post at SCOTUSBlog arguing for the plaintiffs in King v. Burwell.[44]  In the post, Wyrick argues that the Supreme Court should strike down the IRS Rule permitting Obamacare subsidies to be granted to those who participated in state and federal exchanges.[45]  He calls the case “a straightforward question of statutory interpretation,” arguing that permitting the rule would “undermine Congress’ very specific intent.”[46]  The Supreme Court ultimately rejected the argument in the post, with Chief Justice Roberts upholded the IRS Rule in an opinion for six justices.[47]

Overall Assessment

Wyrick’s youth and his conservative background is likely to draw opposition during the confirmation process.  Overall, I expect four primary arguments to be raised against Wyrick.

First, opponents may argue that Wyrick, only thirty-seven years old, lacks the requisite level of experience to be a federal judge.  They may note that the American Bar Association (ABA) recommends a minimum of twelve years of practice for judicial nominees and that Wyrick has only practiced for nine years.  In response, Wyrick and his supporters will argue that Wyrick’s experience as Oklahoma Solicitor General is particularly high-level, and as such, Wyrick is well-qualified for the bench.  They will also note that Wyrick has argued (and won) before the highest courts on both the state and federal level.

Second, critics may point to Wyrick’s tenure as Solicitor General and criticize his defense of controversial laws, including abortion restrictions, the “Save our States” amendment, and the use of midazolam in imposing the death penalty.  They may also bring up Wyrick’s correction of the record in Glossip.  In response, Wyrick will argue that, as Solicitor General, it was his responsibility to defend Oklahoma laws, and that his defense does not indicate a policy agreement with the underlying laws.

Third, senators may look to Wyrick’s jurisprudence on the Oklahoma Supreme Court.  They may argue that his dissents in Garrett, Boyle, and Frye suggest an unwillingness to support plaintiffs in civil cases.  In response, Wyrick will argue that (even though a majority of his colleagues disagreed), the law compelled the reasoning of his dissents.

Fourth, senators may raise Wyrick’s connection to Pruitt, Trump’s controversial EPA Director.  Given Wyrick’s initial selection as Solicitor General by Pruitt, critics may try to tie Wyrick to his old-boss’ more controversial actions.  If this question is raised, it will be interesting to see if Wyrick offers to recuse himself in cases involving Pruitt, and if such recusal is demanded by critics.

Overall, there is no denying Wyrick’s intelligence and accomplishments.  Nevertheless, the ease of Wyrick’s confirmation will ultimately turn on his answers to the concerns raised above.


[1] See Jenni Carlson, Cancer Doesn’t Curb Wyrick’s Enthusiasm for her Marathon Run, The Oklahoman, Apr. 30, 2006.  

[2] See id.

[3] Sen. Comm. on the Judiciary, 115th Cong., Patrick Wyrick: Questionnaire for Judicial Nominees 1.

[4] Judge Payne is the only judge in the country to hear cases across three districts.

[5] See id. at 2.

[6] Dale Denwalt, Four Candidates Vie For State Supreme Court, The Journal Record, Dec. 12, 2016.

[7] Dale Denwalt, Oklahoma Governor Appoints Wyrick to State Supreme Court, The Daily Oklahoman, Feb. 9, 2017.

[8] Catherine Sweeney, Observers: Wyrick Flap a Rare Occurrence, The Journal Record, Feb. 22, 2017.

[9] See Spencer v. Wyrick, 392 P.3d 290 (Okla. 2017).

[10] Justin Wingerter, Oklahoma Supreme Court Judge Joins Trump’s List of Possible SCOTUS Picks, The Daily Oklahoman, Nov. 17, 2017.

[11] Press Release, President Obama Nominates Four to Serve on the United States District Courts (Dec. 16, 2015) (on file at https://obamawhitehouse.archives.gov/the-press-office/).

[12] The Oklahoman Editorial Board, U.S. Senate Should End Wait for Two Oklahoma Judicial Nominees, The Oklahoman, Nov. 18, 2016, https://newsok.com/article/5527448/us-senate-should-end-wait-for-two-oklahoma-judicial-nominees.

[13] Sen. Comm. on the Judiciary, 115th Cong., Patrick Wyrick: Questionnaire for Judicial Nominees 56-57.

[14] Id. at 57.

[15] Robert Barnes & Mark Berman, Sharp Questions About Using Sedative to Execute Inmates, Wash. Post, Apr. 30, 2015.

[16] See id.

[17] Maureen Johnson, You Had Me At Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested Supreme Court Decisions, 49 Ind. L. Rev. 397, 456 (2016).

[18] See Barnes, supra n. 15.

[19] Chris Casteel, U.S. Supreme Court Sharply Divided in Oklahoma Lethal Injection Case, Daily Oklahoman, Apr. 29, 2015.

[20] Emily Summars, Oklahoma Attorney General Admits Court Filing Error, Journal Record Legislative Report, May 15, 2015.

[21] Glossip v. Gross, 135 S.Ct. 2726 (2015).

[22] See Patrick Gregory, Trump Nominee Wyrick Defended Executions, Abortion Regs, Bloomberg Law, May 18, 2018, https://biglawbusiness.com/trump-nominee-wyrick-defended-executions-abortion-regs/.

[23] See Nova Health Sys. v. Pruitt, 292 P.3d 28 (Okla. 2012) and Okla. Coal. for Reproductive Justice v. Cline, 2012 OK 12 (Okla. 2012).

[24] Marie Price, New Law Restricting Access of Minors’ Access to Plan B One-Step Emergency Contraceptive Temporarily Enjoined From Taking Effect in Okla, Journal Record Legislative Report, Aug. 19, 2013.

[25] Marie Price, Judge Strikes Physician Liability From Abortion Drug Law, Journal Record, Oct. 22, 2014.

[26] Oklahoma Judge to Let Most of New Abortion Law Take Effect; Plaintiffs Consider Appeal, Legal Monitor Worldwide, Oct. 25, 2014.

[27] Id.

[28] Marie Price, State of Oklahoma: Feds’ Delay Demonstrates Admission That ACA Requirements Are Hurting Large Employers, Journal Record Legislative Report, July 11, 2013.

[29] See Patrick Wyrick, Symposium: King v. Burwell – a simple case, SCOTUSBlog, Nov. 10, 2014, http://www.scotusblog.com/2014/11/symposium-king-v-burwell-a-simple-case/.

[30] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).

[31] See Robert Boczkiewicz, 10th US Circuit Court of Appeals Takes Up Oklahoma’s Islamic Law Case, The Oklahoman, Sept. 13, 2011.

[32] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).

[33] See Awad v. Ziriax, 996 F. Supp. 2d 1198 (W.D. Okla. 2013).

[34] Am. Honda Motor Co. v. Thygesen, 2018 OK 14 (Okla. 2018); Cates v. Integris Health, 412 P.3d 98 (Okla. 2018); State Farm Mut. Auto. Ins. Co. v. Payne, 408 P.3d 204 (Okla. 2017); Okla. Auto. Dealers Assoc. v. State ex rel. Oklahoma Tax Comm’n, 401 P.3d 1152 (Okla. 2017); Naifeah v. State ex rel. Oklahoma Tax Comm’n, 400 P.3d 759 (Okla. 2017).  

[35] Okla. Oil & Gas Ass’n v. Thompson, 414 P.3d 345 (Okla. 2018) (Wyrick, J., concurring specially); McDonald v. Thompson, 414 P.3d 367 (Okla. 2018) (Wyrick, J., concurring specially); Okla. Indep. Petroleum Ass’n v. Potts, 2018 OK 24 (Okla. 2018) (Wyrick, J., concurring specially); JP Energy Mktg. LLC v. Commerce & Indus. Ins. Co., 2018 OK 11 (Okla. 2018) (Wyrick, J., concurring in part and dissenting in part); Hunsucker v. Fallin, 408 P.3d 599 (Okla. 2017) (Wyrick, J., concurring in part and dissenting in part); Richard v. State ex rel. Oklahoma Tax. Comm’n, 406 P.3d 571, 573 (Okla. 2017) (Wyrick, J., concurring in judgment); Multiple Injury Trust Fund v. Wiggins, 404 P.3d 35, 37 (Okla. 2017) (Wyrick, J., concurring in judgment); Andrew v. Demani-Sparkes, 396 P.3d 210, 225 (Okla. 2017) (Wyrick, J., concurring in judgment).

[36] Keener v. Miller, No. 116,779 (Okla. Apr. 10, 2018) (Wyrick, J., dissenting); Boyle ex rel. Estate of Cain v. ASAP Energy Inc., 408 P.3d 183, 199 (Okla. 2017) (Wyrick, J., dissenting); Frye v. State ex rel. Dep’t of Corr., 404 P.3d 38, 41 (Okla. 2017) (Wyrick, J., dissenting); Multiple Injury Trust Fund v. Mackey, 406 P.3d 564, 567 (Okla. 2017) (Wyrick, J., dissenting); Multiple Injury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting); State ex rel. Oklahoma Bar Ass’n v. Helton, 394 P.3d 227, 242 (Okla. 2017) (Wyrick, J., dissenting).

[37] See Naifeah v. State ex rel. Oklahoma Tax Comm’n, 400 P.3d 759 (Okla. 2017).

[38] See Okla. Auto. Dealers Assoc. v. State ex rel. Oklahoma Tax Comm’n, 401 P.3d 1152, 1154 (Okla. 2017).

[39] See id. at 1165 (Combs, J., dissenting).

[40] See Multiple Injury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting).

[41] Frye v. State ex rel. Dep’t of Corr., 404 P.3d 38, 41 (Okla. 2017) (Wyrick, J., dissenting)

[42] See Boyle ex rel. Estate of Cain v. ASAP Energy Inc., 408 P.3d 183, 199 (Okla. 2017) (Wyrick, J., dissenting).

[43] Id. at 202.

[44] Patrick Wyrick, Symposium: King v. Burwell – a simple case, SCOTUSBlog, Nov. 10, 2014, http://www.scotusblog.com/2014/11/symposium-king-v-burwell-a-simple-case/.

[45] See id.

[46] Id.

[47] See King v. Burwell, 576 U.S. __ (2015).

Judge Charles Barnes Goodwin – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Judge Charles Goodwin was the first Trump nominee to receive a rating of unqualified from the American Bar Association.  Goodwin’s rating is particularly unusual, because, unlike the other two district court nominees who received the rating, Goodwin has been in practice for twenty years, and has served as a federal magistrate judge for the last four years.

Background

Goodwin has deep Oklahoma ties.  Charles Barnes Goodwin was born in Clinton, OK in 1970 to Charles L. and Nancy Goodwin.  His father, Charles L. “Buzz” Goodwin had served as a city councilman, city attorney, and mayor of Clinton before becoming elected as a state judge.[1]  Goodwin attended the University of Oklahoma, graduating with a B.A. in Letters and Economics in 1994.  He then attended the University of Oklahoma Law School, graduating in 1997.

After graduating, Goodwin served as a law clerk to then U.S. Magistrate Judge Claire Egan on the U.S. District Court for the Northern District of Oklahoma.[2]  He then served as a law clerk to Judge Lee West on the U.S. District Court for the Western District of Oklahoma.  In 2000, Goodwin joined the Oklahoma City office of Crowe & Dunleavy as an Associate.  In 2006, he became a Shareholder-Director.

In 2013, Goodwin became a federal magistrate judge on the U.S. District Court for the Western District of Oklahoma.  He currently serves in that capacity.

History of the Seat

The seat Goodwin has been nominated for opened on July 14, 2015, with Judge Robin Cauthron’s move to senior status.  While Cauthron moved to senior status with a year and a half left in the Obama Administration, no nominee was ever submitted for the vacancy.

Goodwin applied to fill the vacancy on November 30, 2016, shortly after the election of Donald Trump.[3]  After interviews with Oklahoma Senators James Inhofe and James Lankford, as well as with the White House and the Department of Justice, Goodwin was selected as a nominee in April 2017.  Goodwin was officially nominated on July 13, 2017, almost exactly two years to the day the vacancy opened.

Political Activity

Goodwin has a relatively short record of political activity.  He donated $500 to John McCain’s presidential campaign in 2008 and $1500 to Mitt Romney’s campaign in 2012.[4]  Additionally, he provided informal legal advice to the campaign of Ryan Leonard, a Republican running unsuccessfully for Oklahoma Attorney General in 2010.

In 2010, Goodwin applied to Democratic Governor Brad Henry for an appointment to the Oklahoma Supreme Court.[5]  However, Goodwin was not selected as one of the finalists for the seat and Henry appointed Oklahoma County District Judge Noma Gurich instead.[6]

Legal Experience

After stints as a law clerk for Judges Eagan and West, Goodwin joined Crowe & Dunleavy to work in commercial litigation.  In this capacity, Goodwin appeared in both state and federal court in securities, antitrust, fraud, contract, and class action cases.  Among the more significant matters he handled, Goodwin represented Duoyuan Global Water, Inc. in defending against a securities class action.[7]

In another matter, Goodwin represented 400 Oklahoma poultry farmers in a class action alleging violations of the Packers and Stockyards Act.[8]  After the district court granted summary judgment against Goodwin’s clients, he successfully argued for the ruling’s reversal from the Tenth Circuit.[9]  Goodwin then successfully defended the jury verdict for his clients before the Tenth Circuit,[10] and the Supreme Court.[11]

Jurisprudence

Goodwin has served as a U.S. Magistrate Judge on the U.S. District Court for the Western District of Oklahoma since 2013.  In this role, Goodwin presides over pretrial, trial, grand jury and discovery matters.

Benefits Cases

Goodwin has frequently heard appeals from denials of social security benefits by administrative law judges (ALJ).  In many of these cases, Goodwin has affirmed the denial of benefits.[12]  However, Goodwin has just as frequently reversed in favor of claimants.[13]  In one notable case, Goodwin found that the ALJ failed to consider the role of the plaintiff’s mental health defects on his disability.[14]  In another case, Goodwin found that the ALJ had failed to consider the role of the plaintiff’s obesity on his disability.[15]  However, the district court declined to follow Goodwin’s recommendation, finding that the ALJ had correctly decided the case.[16]

Civil Rights Suits

As a U.S. Magistrate Judge, Goodwin frequently offers the preliminary recommendations on civil rights suits filed by prisoners and others under §1983.  In almost every single suit he has reviewed, Goodwin has recommended rejection of the plaintiff’s claims.[17]  While Goodwin’s recommendations have generally been accepted by the district courts, they have been rejected in some cases.[18]  In one case, Goodwin recommended the dismissal of a civil rights claim based on denial of medical care to an inmate.[19]  Specifically, he ruled that there was no allegation of knowledge by the defendant medical administrator of the lack of care.[20]  In rejecting the recommendation, the district judge found that the administrator’s knowledge could be assumed.[21]  In another case, the district judge declined to adopt Goodwin’s conclusion that the plaintiff had failed to properly exhaust administrative remedies prior to filing the suit.[22]

Overall Assessment

On paper, Charles Goodwin is a well-qualified candidate for the federal bench.  However, it’s impossible to discuss Goodwin’s qualifications without addressing the elephant in the room: his Unqualified rating from the ABA.

Generally, the ABA identifies three criteria that are key in its evaluation: integrity, professional competence and judicial temperament.[23]  While the ABA has been criticized for using an additional ideological test to downgrade conservative candidates, there are plenty of examples of the ABA highly rating conservative candidates, including the highest Well Qualified ratings for Fifth Circuit nominees Don Willett, James Ho, and Kyle Duncan.  At any rate, while Goodwin’s judicial record is conservative, it is not unusually so.

Instead, the ABA, in a Dec. 12th letter, explained that its criteria was Goodwin’s “work ethic.”  Specifically, ABA Standing Committee past Chair Nancy Deegan noted that “Magistrate Judge Goodwin’s work habits, including his frequent absence from the courthouse until mid-afternoon” raised concerns.  Deegan went on to note that “no issues were noted regarding Magistrate Judge Goodwin’s judicial temperament, intellectual capacity, writing and analytical abilities, knowledge of the law, or breadth of professional experience.”

Setting aside the ABA rating, there is little in Goodwin’s record that would disqualify him from the federal bench.  As such, Goodwin’s confirmation turns on how concerning senators find his work ethic.


[1] Obituary, Charles L. “Buzz” Goodwin, The Oklahoman, Nov. 13, 2017, http://legacy.newsok.com/obituaries/oklahoman/obituary.aspx?pid=187223226.  

[2] Eagan was nominated to a lifetime appointment by President George W. Bush and confirmed in 2001.

[3] Senate Judiciary Questionnaire, Charles Goodwin 50, https://www.judiciary.senate.gov/imo/media/doc/Goodwin%20SJQ.pdf.

[5] See Michael McNutt, Askins Seeks Seat on State’s High Court, The Oklahoman, Nov. 23, 2010.

[6] Tim Talley, Henry Names Noma Gurich to Okla. Supreme Court, Deseret News, Jan. 7, 2011, https://www.deseretnews.com/article/700098729/Henry-names-Noma-Gurich-to-Okla-Supreme-Court.html.

[7] See Ho v. Duoyuan Global Water, Inc., 887 F. Supp. 2d 547 (S.D.N.Y. 2012).

[8] See Jim Stafford, Appeals Court Reinstates Farmers’ Lawsuit, The Oklahoman, Aug. 1, 2007.

[9] See Been et al. v. OK Indus., Inc., 495 F.3d 1217 (10th Cir. 2007).

[10] Been v. OK Indus., Inc., 398 F. App’x 382 (10th Cir. 2010).

[11] OK Indus., Inc. v. Been, 563 U.S. 975 (2011) (denying certiorari).

[12] See, e.g., Packer v. Colvin, No. CIV-15-655-CG, 2016 WL 6770271 (W.D. Okla. Nov. 15, 2016); Hall v. Colvin, No. CIV-15-105-CG, 2016 WL 5239832 (W.D. Okla. Sep. 22, 2016).  See also Austin v. Colvin, No. CIV-13-1089-L, 2015 WL 631065 (W.D. Okla. Feb. 12, 2015); Stringer v. Colvin, No. CIV-13-1053-HE, 2014 WL 6879083 (W.D. Okla. Dec. 4, 2014); Payne v. Colvin, No. CIV-13-650-R, 2014 WL 4929434 (W.D. Okla. Sept. 29, 2014); Salazar v. Colvin, No. CIV-13-878-F, 2014 WL 4668794 (W.D. Okla. Sept. 18, 2014); Thompson v. Colvin, No. CIV-13-744-R, 2014 WL 4660805 (W.D. Okla. Sept. 17, 2014); Keeling v. Colvin, No. CIV-13-498-M, 2014 WL 4388411 (W.D. Okla. Sept. 5, 2014); Devers v. Colvin, No. CIV-12-1285-D, 2014 WL 1272108 (W.D. Okla. Mar. 27, 2014); Humphreys v. Colvin, No. CIV-13-0098-HE, 2014 WL 1270748 (W.D. Okla. Mar. 25, 2014).

[13] See, e.g., Thompson v. Colvin, No. CIV-13-922-F, 2015 WL 586298 (W.D. Okla. Feb. 11, 2015); Johnson v. Colvin, No. CIV-13-871-R, 2014 WL 7187050 (W.D. Okla. Dec. 16, 2014); Hendrix v. Colvin, No. CIV-13-522-M, 2014 WL 4929427 (W.D. Okla. Sept. 30, 2014); Omes v. Colvin, No. CIV-13-375-HE, 2014 WL 4674364 (W.D. Okla. Aug. 29, 2014), report and recommendation adopted, No. CIV-13-0375-HE, 2014 WL 4674342 (W.D. Okla. Sept. 17, 2014); Shortnacy v. Colvin, No. CIV-13-297-HE, 2014 WL 4716075 (W.D. Okla. Aug. 26, 2014), report and recommendation adopted, No. CIV-13-0297-HE, 2014 WL 4716055 (W.D. Okla. Sept. 22, 2014); Cook v. Colvin, No. CIV-13-211-HE, 2014 WL 4209574 (W.D. Okla. July 30, 2014), report and recommendation adopted, No. CIV-13-0211-HE, 2014 WL 4209576 (W.D. Okla. Aug. 25, 2014); Williams v. Colvin, No. CIV-13-448-R, 2014 WL 2949470 (W.D. Okla. June 27, 2014); Robles v. Colvin, No. CIV-13-378-CG, 2014 WL 2219230 (W.D. Okla. May 29, 2014); Iles v. Colvin, No. CIV-13-0221-F, 2014 WL 1330010 (W.D. Okla. Mar. 31, 2014); Moore v. Colvin, No. CIV-13-60-M, 2014 WL 1344582 (W.D. Okla. Mar. 31, 2014); Hull v. Colvin, No. CIV-13-67-D, 2014 WL 1343502 (W.D. Okla. Mar. 31, 2014); Henderson v. Colvin, No. CIV-13-168-M, 2014 WL 1270978 (W.D. Okla. Mar. 26, 2014); Elix ex rel. JE v. Colvin, No. CIV-13-0139-HE, 2014 WL 903176 (W.D. Okla. Mar. 7, 2014); Pennington v. Colvin, No. CIV-12-1026-F, 2014 WL 869292 (W.D. Okla. Mar. 5, 2014); Redman v. Colvin, No. CIV-12-1039-R, 2014 WL 652314 (W.D. Okla. Feb. 19, 2014); Crowell v. Colvin, No. CIV-12-1126-L, 2013 WL 6800821 (W.D. Okla. Dec. 20, 2013).

[14] McClaflin v. Colvin, No. CIV-14-1128-CG, 2016 WL 5390908 (W.D. Okla. Sep. 27, 2016).

[15] Sanders v. Colvin, No. CIV-14-799-R, 2015 WL 5559868 (W.D. Okla. Aug. 18, 2015), report and recommendation rejected, No. CIV-14-799-R, 2015 WL 5559872 (W.D. Okla. Sept. 21, 2015).

[16] Sanders v. Colvin, No. CIV-14-799-R, 2015 WL 5559872 (W.D. Okla. Sept. 21, 2015).

[17] See, e.g., Alfred v. Alfred, No. CIV-17-273-C, 2017 WL 4563889, at *1 (W.D. Okla. Sept. 5, 2017), report and recommendation adopted, No. CIV-17-273-C, 2017 WL 4563062 (W.D. Okla. Oct. 12, 2017); Daly v. Gossen, No. CIV-15-13-C, 2017 WL 1051176, at *9 (W.D. Okla. Feb. 16, 2017), report and recommendation adopted, No. CIV-15-13-C, 2017 WL 1051140 (W.D. Okla. Mar. 20, 2017); Collins v. Payne Cty., No. CIV-15-1294-R, 2016 WL 7634475, at *1 (W.D. Okla. Nov. 30, 2016), report and recommendation adopted, No. CIV-15-1294-R, 2017 WL 31427 (W.D. Okla. Jan. 3, 2017); Tuell v. Kingfisher Cty., No. CIV-16-86-D, 2016 WL 7414597, at *1 (W.D. Okla. Nov. 30, 2016), report and recommendation adopted, No. CIV-16-86-D, 2016 WL 7410738 (W.D. Okla. Dec. 22, 2016); Blackburn v. Reeve, No. CIV-15-359-F, 2016 WL 3944940, at *1 (W.D. Okla. June 23, 2016), report and recommendation adopted, No. CIV-15-0359-F, 2016 WL 3945831 (W.D. Okla. July 19, 2016); Beals v. Elk City Police Dep’t, No. CIV-15-195-C, 2016 WL 3573241, at *1 (W.D. Okla. May 31, 2016), report and recommendation adopted, No. CIV-15-195-C, 2016 WL 3582152 (W.D. Okla. June 28, 2016); Barnett v. Sielert, No. CIV-14-1284-HE, 2016 WL 3802678, at *6 (W.D. Okla. May 31, 2016), report and recommendation adopted, No. CIV-14-1284-HE, 2016 WL 3829027 (W.D. Okla. July 12, 2016); Wilson v. Henry, No. CIV-15-1026-R, 2016 WL 3512035, at *4 (W.D. Okla. May 26, 2016), report and recommendation adopted, No. CIV-15-1026-R, 2016 WL 3523756 (W.D. Okla. June 22, 2016); Jordanoff v. Red Rock Adult Behavioral Health Ctr., No. CIV-15-846-R, 2016 WL 3561807, at *1 (W.D. Okla. May 11, 2016), report and recommendation adopted, No. CIV-15-846-R, 2016 WL 3566264 (W.D. Okla. June 27, 2016); Bishop v. Jester, No. CIV-14-678-C, 2016 WL 3526206, at *1 (W.D. Okla. May 11, 2016), report and recommendation adopted, No. CIV-14-678-C, 2016 WL 3546419 (W.D. Okla. June 23, 2016); Ray v. Dep’t of Corr., No. CIV-14-735-C, 2016 WL 1212773, at *6 (W.D. Okla. Mar. 2, 2016), report and recommendation adopted sub nom. JAMES PRESTON RAY, Plaintiff, vs. DEPARTMENT OF CORRECTIONS, et al., Defendants., No. CIV-14-735-C, 2016 WL 1228664 (W.D. Okla. Mar. 28, 2016); Coughlin v. Bear, No. CIV-15-536-R, 2016 WL 447345, at *6 (W.D. Okla. 2016), report and recommendation adopted, No. CIV-15-536-R, 2016 WL 447744 (W.D. Okla. Feb. 4, 2016); Beals v. Webb, No. CV 15-194-C, 2015 WL 8654450, at *1 (W.D. Okla. Nov. 24, 2015), report and recommendation adopted, No. CIV-15-194-C, 2015 WL 8678409 (W.D. Okla. Dec. 11, 2015); Burghart v. O’Keefe, No. CIV-15-445-C, 2015 WL 9208842, at *4 (W.D. Okla. Oct. 30, 2015), report and recommendation adopted, No. CIV-15-445-C, 2015 WL 9095029 (W.D. Okla. Dec. 16, 2015); Kirbo v. Patton, No. CIV-15-583-W, 2015 WL 7294389, at *1 (W.D. Okla. Oct. 28, 2015), report and recommendation adopted, No. CIV-15-583-W, 2015 WL 7303553 (W.D. Okla. Nov. 18, 2015); Bishop v. Stewart, No. CIV-14-775-C, 2015 WL 7767264, at *3 (W.D. Okla. Oct. 16, 2015), report and recommendation adopted, No. CIV-14-775-C, 2015 WL 7779696 (W.D. Okla. Dec. 2, 2015); Barber v. Sutmiller, No. CIV-15-78-C, 2015 WL 5472508, at *3 (W.D. Okla. July 31, 2015), report and recommendation adopted, No. CIV-15-78-C, 2015 WL 5472940 (W.D. Okla. Sept. 17, 2015); Williams v. Cox, No. CIV-13-0971-F, 2015 WL 159053, at *1 (W.D. Okla. Jan. 8, 2015); Smith v. Jones, No. CIV-12-1365-HE, 2014 WL 5448890, at *3 (W.D. Okla. Oct. 23, 2014), aff’d, 606 F. App’x 899 (10th Cir. 2015); Darnell v. Jones, No. CIV-12-1065-M, 2014 WL 4792144, at *2 (W.D. Okla. Sept. 24, 2014), aff’d, 610 F. App’x 720 (10th Cir. 2015); Craft v. Glob. Expertise in Outsourcing, No. CIV-12-1133-R, 2014 WL 4699614, at *4 (W.D. Okla. Sept. 19, 2014), aff’d sub nom. Craft, Jr. v. Glob. Expertise in Outsourcing, 601 F. App’x 748 (10th Cir. 2015); Davis v. Corr. Corp. of Am., No. CIV-13-1174-HE, 2014 WL 4716332, at *1 (W.D. Okla. July 30, 2014), report and recommendation adopted, No. CIV-13-1174-HE, 2014 WL 4716209 (W.D. Okla. Sept. 22, 2014); Farris v. Frazier, No. CIV-12-1099-W, 2014 WL 3749142, at *2 (W.D. Okla. July 29, 2014), aff’d, 599 F. App’x 851 (10th Cir. 2015); Hill v. Cates, No. CIV-13-1126-D, 2014 WL 2865920, at *1 (W.D. Okla. June 24, 2014); Failes v. Garfield Cty. Bd. of Cty. Comm’rs, No. CIV-13-0638-HE, 2014 WL 2712276, at *1 (W.D. Okla. June 16, 2014); Parkins v. Logan Cty., No. CIV-14-72-M, 2014 WL 2504517, at *1 (W.D. Okla. June 3, 2014); Free v. Stebens, No. CIV-13-14-F, 2014 WL 800915, at *6 (W.D. Okla. Feb. 28, 2014); Adams v. Sutmiller, No. CIV-10-920-F, 2014 WL 584749, at *2 (W.D. Okla. Feb. 12, 2014), aff’d sub nom. Adams v. Jones, 577 F. App’x 778 (10th Cir. 2014); Large v. Beckham Cty. Dist. Court, No. CIV-13-1276-F, 2014 WL 235477, at *1 (W.D. Okla. Jan. 22, 2014); Gray v. Ritter, No. CIV-11-1446-F, 2014 WL 37745, at *4 (W.D. Okla. Jan. 6, 2014); Gist v. Anderson, No. CIV-12-1208-HE, 2013 WL 6909470, at *2 (W.D. Okla. Dec. 30, 2013); Klein v. Gwinn, No. CIV-13-1207-HE, 2013 WL 6844276, at *2 (W.D. Okla. Dec. 27, 2013).  But see Savage v. Troutt, No. CIV-15-670-HE, 2016 WL 8711398, at *1 (W.D. Okla. Aug. 12, 2016), report and recommendation adopted as modified, No. CIV-15-0670-HE, 2016 WL 5107068 (W.D. Okla. Sept. 20, 2016) (recommending partial denial of defendant’s motion for summary judgment); Moore v. Pantoja, No. CIV-15-688-HE, 2016 WL 4493849, at *1 (W.D. Okla. July 26, 2016) (recommending denial of defendant’s motion for summary judgment); Young v. Rios, No. CIV-15-641-R, 2016 WL 1626609, at *5 (W.D. Okla. Mar. 10, 2016), report and recommendation adopted, No. CIV-15-641-R, 2016 WL 1611496 (W.D. Okla. Apr. 21, 2016).

[18] See, e.g., Williams v. Ormand, No. CIV-15-1288-HE, 2016 WL 6157651, at *1 (W.D. Okla. July 8, 2016), report and recommendation rejected, No. CIV-15-1288-HE, 2016 WL 6157429 (W.D. Okla. Oct. 21, 2016); Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674, at *15 (W.D. Okla. Mar. 31, 2015), report and recommendation adopted in part, rejected in part, No. CIV-13-926-R, 2015 WL 3989137 (W.D. Okla. June 30, 2015); Jennings v. Dowling, No. CIV-14-335-C, 2015 WL 12915602, at *1 (W.D. Okla. Mar. 3, 2015), report and recommendation rejected, No. CIV-14-335-C, 2015 WL 12915603 (W.D. Okla. Mar. 31, 2015); Ford v. GEO Grp. Inc., No. CIV-13-1013-R, 2014 WL 4929443, at *1 (W.D. Okla. Aug. 8, 2014), report and recommendation rejected, No. CIV-13-1013-R, 2014 WL 4929334 (W.D. Okla. Sept. 30, 2014).

[19] Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674 (W.D. Okla. Mar. 31, 2015).

[20] See id.

[21] Campbell v. Jones, No. CIV-13-926-R, 2015 WL 3971674, at *15 (W.D. Okla. Mar. 31, 2015), report and recommendation adopted in part, rejected in part, No. CIV-13-926-R, 2015 WL 3989137 (W.D. Okla. June 30, 2015).

[22] See Ford v. GEO Grp. Inc., No. CIV-13-1013-R, 2014 WL 4929443, at *1 (W.D. Okla. Aug. 8, 2014), report and recommendation rejected, No. CIV-13-1013-R, 2014 WL 4929334 (W.D. Okla. Sept. 30, 2014).

[23] American Bar Association Standing Committee on the Federal Judiciary, What It Is and How It Works, at 3, https://www.americanbar.org/content/dam/aba/migrated/scfedjud/federal_judiciary09.authcheckdam.pdf.

[24] Charlie Savage, Ratings Shrink President’s List for Judgeships, N.Y. Times, Nov. 22, 2011, http://www.nytimes.com/2011/11/23/us/politics/screening-panel-rejects-many-obama-picks-for-federal-judgeships.html.  

Scott L. Palk – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Like Judge David Nye, Scott L. Palk has been waiting a long time for a federal judicial appointment: over two years to be exact.  Luckily, it looks like 2017 may be the year that Palk finally gets to don the black robes.

Background

An Oklahoma native, Scott Lawrence Palk was born in Tulsa in 1967.  After getting a B.S. from Oklahoma State University and a J.D. from the University of Oklahoma School of Law, Palk joined the District Attorney’s office in Cleveland County.  In 2002, Palk moved to the U.S. Attorney’s Office for the Western District of Oklahoma, serving as an Assistant U.S. Attorney in the Criminal Division.  In 2004, Palk rose to be Deputy Chief of the Criminal Division.

In 2011, Palk left the U.S. Attorney’s Office to rejoin his alma mater, the University of Oklahoma School of Law, as an Assistant Dean of Students and Assistant General Counsel.

On May 18, 2015, Palk was contacted by the office of Sen. James Lankford (R-OK), asking about his interest in an appointment to the Western District of Oklahoma.  After meetings with the Oklahoma Senators, and the Obama Administration, Palk was formally nominated on December 16, 2015.[1]  Palk, and fellow nominee Judge Suzanne Mitchell, received Committee hearings on April 21, 2016,[2] and were approved out of committee unanimously.[3]  However, they ran into a roadblock on judicial confirmations set up by Senate Majority Leader Mitch McConnell (R-KY).  As such, Palk’s nomination was never confirmed and returned to the White House at the end of the 114th Congress.

However, both Lankford and Sen. James Inhofe (R-OK) indicated their continued support for Palk’s nomination.  By their recommendation, Palk was renominated by the Trump Administration on May 8, 2017.[4]

History of the Seat

The seat Palk has been nominated for opened on December 1, 2014, with Judge Stephen P. Friot’s move to senior status.  Despite three of the seven judgeships on the Western District of Oklahoma being vacant, no judges were confirmed to this court during the Obama Administration.  Instead, the Administration’s nominees, Palk and Mitchell, were left unconfirmed despite unanimous committee approval and the support of Oklahoma’s Republican Senators.

Legal Experience

Palk has spent most of his career as a state and federal prosecutor (ten years as the former, nine as the latter).  As an assistant D.A. in Norman, Palk prosecuted violent crimes, drug crimes, sex crimes, and crimes against children.  Among his more notable cases, Palk successfully prosecuted Larry Gene Goble of Noble for the shooting deaths of two people.[5]

In one of his most significant cases, Palk prosecuted Frank Duane Welch for the 1987 murder of Jo Talley Cooper.[6]  In his defense, Welch argued that Cooper died while the two were engaged in auto-erotic asphyxiation.[7]  To combat Welch’s defense, Palk and the prosecution team admitted evidence of another murder Welch had committed, that of Debra Stevens.[8]  After Welch was convicted and sentenced to death, he challenged his trial on several bases, including the admission of the Stevens murder.[9]  The Oklahoma Court of Criminal Appeals affirmed the sentence and the conviction, but criticized Palk and the other prosecutors for failing to delineate the Burks exception that would admit the Stevens conviction when filing their notice with the court.[10]  After the Supreme Court denied review of his case,[11] Welch was executed in 2007.[12]

As an AUSA, Palk successfully prosecuted Sean Michael Gillespie, a white supremacist who was convicted of throwing a Molotov cocktail into a Jewish temple.[13]  Palk was also part of the appellate team that successfully defended Gillespie’s conviction.

As a Dean at the University of Oklahoma Law School, Palk handles civil and administrative matters for the school, including the recruitment of students, supervision of staff, and the mediation of employment issues.

Political Activity

Palk is a registered Republican, but his only political contribution of record is a $250 contribution to Tully McCoy, a Democratic Congressional candidate in 1994.[14]  However, at the time of his candidacy, McCoy was the District Attorney for Cleveland County (and Palk’s boss).  As such, Palk’s contribution can merely be viewed as support for his boss, rather than an endorsement of the Democratic party.

Overall Assessment

As his nominations by President Obama and President Trump would suggest, Palk is not a controversial candidate.  There is little in his record that will incite opposition on either the left or the right.  While Palk’s criminal experience is one-sided (he has spent most of his legal career as a prosecutor), this is hardly disqualifying.  Approximately one year ago, the Judiciary Committee approved Palk’s nomination unanimously.  It will likely do so again.  However, this time, Palk will likely get a floor vote as well.


[1] Press Release, White House, President Obama Nominates Four to Serve on the United States District Courts (Dec. 16, 2015) (on file at https://obamawhitehouse.archives.gov).  

[2] Chris Casteel, Federal Judicial Nominees Sail Through Committee Hearing, The Oklahoman, Apr. 21, 2016, http://newsok.com/article/5493224.

[3] Chris Casteel, Committee Clears Two for Oklahoma City Court, The Oklahoman, May 19, 2016,http://newsok.com/article/5499079.  

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

[5] Oklahoma v. Goble, No. CF-1995-1495-L (Okla. Cleveland Cnty. Ct. Sept. 18, 1996).  See also Oklahoman, Jury Gives Life Sentence in Double-Murder Case, The Oklahoman, Sept. 18, 1996, http://newsok.com/article/2551273.

[6] Oklahoma v. Welch, No. CF-1997-247-H (Okla. Cleveland Cnty. Ct. March 30, 1998).

[7] Welch v. State, 2 P.3d 356 (Okla. Crim. App. April 10, 2000) at ❡5.

[8] Id. at ❡7.

[9] Id.

[10] Id. at ❡9 (“However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered.”).

[11] Welch v. State, 531 U.S. 1056 (2000).

[12] Ben Fenwick, State Executes Man for 1987 Murder, Oklahoma Gazette, Aug. 22, 2007, http://okgazette.com/2007/08/22/state-executes-man-for-1987-murder/.

[13] United States v. Gillespie, No. CR-04-94-C (W.D. Okla. Sept. 9, 2005), aff’d, 452 F.3d 1183 (10th Cir. 2006), cert. denied, 549 U.S. 1063 (2006). 

[14] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=scott+palk (last visited May 25, 2017).