Western District of Pennsylvania

Christy Wiegand – Nominee to the U.S. District Court for the Western District of Pennsylvania

Nineteen years ago, Christy Wiegand, then a young attorney at Arnold & Porter, was attacked while jogging in Rock Creek Park.  Wiegand fought back against her attacker, escaped, and later identified him to the police.  She went on to a distinguished career as a federal prosecutor, and now is primed for a seat on the federal bench.

Background

Christy Wiegand attended Princeton University, where she was a varsity rower, and went onto Cornell Law School, receiving her J.D. in 2000.[1]  After law school, Wiegand moved to Washington D.C. to join Arnold & Porter in their antitrust practice.  

However, in her first year in D.C., while jogging with her then-fiance in Rock Creek Park, Wiegand was attacked by a knife-wielding man.[2]  She managed to fight back and escaped to contact the police, who arrested her attacker, 19-year-old Ingmar Guandique.[3]  Guandique was later implicated in the murder of Chandra Levy, a Congressional intern whose disappearance had drawn suspicions on her boss, Congressman Gary Condit.[4]  Wiegand would also testify against Guandique who was ultimately convicted.[5]

In 2003, Wiegand left Arnold & Porter to clerk for Judge D. Brooks Smith on the U.S. Court of Appeals for the Third Circuit.  Since her clerkship, Wiegand has served as a federal prosecutor for the U.S. Attorney’s Office for the Western District of Pennsylvania.

History of the Seat

The seat Wiegand has been nominated for opened on July 22, 2019, when Judge Peter Phipps, himself a Trump appointee, was elevated to the U.S. Court of Appeals for the Third Circuit.  Wiegand was nominated on February 12, 2020.

Legal Experience

Wiegand has practiced law as an Associate at Arnold & Porter and as a federal prosecutor in the U.S. Attorney’s Office for the Western District of Pennsylvania.  In the former position, Wiegand focused on antitrust law.[6] In the latter position, Wiegand has handled both civil and criminal matters, including serving as the Deputy Civil Chief.[7] 

Among the most notable cases Wiegand handled, she was part of a legal team suing Education Management Corp. (EDMC), a for-profit education conglomerate that was charged with violating federal laws.[8]  Wiegand also led prosecutions against the Darccide/Smash 44 Gang for narcotics, firearms, and organized crime violations.[9]

Political Activity

Wiegand has only one political contribution of record, a 2016 contribution of $1000 to Sen. Patrick Toomey (R-PA).[10] 

Overall Assessment

Having powered through far more significant obstacles and barriers, Wiegand should be able to navigate the Senate confirmation process relatively comfortably.  Given her relatively uncontroversial record and her support from both Toomey and Sen. Bob Casey (D-PA), Wiegand can expect a bipartisan confirmation.

[1] See Sari Horwitz, Scott Higham, and Sylvia Moreno, Chapter Six: The Predator in the Park, Wash. Post, July 17, 2008.

[2] See id.

[3] Id.

[4] Matthew Barakat, Chandra Levy’s Father Testifies About Efforts to Find Daughter, Other Testimony, San Jose Mercury News, Oct. 26, 2010.

[5] See Matthew Barakat, Woman Testifies About Attack at Chandra Levy Trial, San Jose Mercury News, Oct. 26, 2010.  See also Michael Doyle, Jury Finds Guandique Guilty of Killing Chandra Levy, Canwest News Service, Nov. 22, 2010.

[6] See Press Release, Office of Sen. Patrick Toomey, Toomey, Casey Applaud Nomination of Christy Wiegand to U.S. District Court in Pennsylvania, Feb. 5, 2020 (available at https://www.toomey.senate.gov/?p=op_ed&id=2567).  

[7] See id.

[8] See Press Release, Office of the Attorney General, For-Profit College Company to Pay $95.5 Million to Settle Claims of Illegal Recruiting, Consumer Fraud, and Other Violations, Nov. 16, 2015.

[9] See Press Release, U.S. Attorney’s Office, Western District of Pennsylvania, First of 37 Defendants Charged in Darccide/Smash 44 Gang Investigation Pleads Guilty to Drug Charge, Dec. 6, 2019.

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W. Scott Hardy – Nominee to the U.S. District Court for the Western District of Pennsylvania

Over the past two decades, W. Scott Hardy has built up a practice representing Western Pennsylvania entities in labor and employment disputes.  Now, with the support of Pennsylvania’s bipartisan team of senators, Hardy has been nominated to the U.S. District Court for the Western District of Pennsylvania.

Background

William Scott Hardy was born in Pittsburgh PA in 1971.[1]  Hardy graduated magna cum laude from Alleghany College in 1993 and from Notre Dame University Law School in 1996.[2]  He spent a year at the Pittsburgh office of Meyer Unkovic & Scott LLP and then joined Cohen & Grigsby P.C., practicing Labor & Employment law.  In 2010, Hardy joined Ogletree, Deakins, Nash, Smoak & Stewart, P.C., where he currently serves on the Board of Directors.[3]

History of the Seat

The seat Hardy has been nominated for opened on June 13, 2019, with Judge Nora Barry Fischer’s move to senior status.  

Hardy applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in April 2019.[4]  Hardy interviewed with Toomey and Casey shortly after and was recommended to the White House in August 2019.  He was nominated in December 2019.

Legal Experience

Hardy has focused his career on labor and employment law, primarily representing businesses, non-profits, and governmental employers.  Overall, Hardy has litigated three jury trials to verdict.[5]  Notably, Hardy represented J.C. Penney in a civil jury trial in West Virginia.[6] 

Among Hardy’s most significant cases, he has represented a number of Western Pennsylvania corporations, universities, and hospitals in defending against labor, employment, and contract actions.  For example, he represented Waynesburg University in successfully defending against a racial discrimination claim filed by a former wrestling coach.[7]  He also represented Pennsylvania State University in defending against Title VII, ADA, and FMLA claims raised by administrators.[8]

Political Activity

Hardy is a Republican and has frequently donated to Pennsylvania Republicans, including Toomey and former Rep. Keith Rothfus.[9]

Overall Assessment

At a time of fierce partisanship over judicial nominations, Toomey and Casey have generally proven cooperative, plugging through the long list of Pennsylvania vacancies. Hardy is, thus, the product of a process that works.  As such, given his relatively noncontroversial career, Hardy will likely be confirmed in due course, without attracting much flash.

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

[2] Id.

[3] Id.

[4] Id. at 46.

[5] Id. at 30.

[6] Moyer v. J.C. Penney, Civil Action No. 09-C-368 (Circuit Ct. of Wood Cnty., WV) (Bean, J.).

[7] Heard v. Waynesburg University, No. 2:09-cv-01315-RCM (W.D. Pa.).

[8] Onesi et al. v. The Pennsylvania State University, No. 2:11-cv-00928-LPL (W.D. Pa.).

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William Shaw Stickman IV – Nominee to the U.S. District Court for the Western District of Pennsylvania

Sen. Pat Toomey is adept at recommending young male lawyers with bright futures to serve on the Western District of Pennsylvania.  After Judge Peter Phipps and Nicholas Ranjan, he has now recommended William Shaw Stickman IV.  In Stickman’s case, assertive letters to the editor he authored in his youth may cause him difficulty in the confirmation process.

Background

William Shaw Stickman IV was born in Pittsburgh PA in 1979.[1]  Stickman graduated summa cum laude from Duquesne University in 2002 and from Duquesne University Law School in 2005.[2]  He spent a year at the Pittsburgh office of Reed Smith LLP and then clerked for Chief Justice Ralph Cappy on the Pennsylvania Supreme Court.  He then joined the Pittsburgh Office of Del Sole Cavanaugh Stroyd LLC as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Stickman has been nominated for opened on December 6, 2018, with Judge Joy Flowers Conti’s move to senior status.  

Stickman applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Stickman interviewed with Toomey and Casey shortly after but did not start the process with the White House until February 2019.  He was formally nominated on May 13, 2019.

Legal Experience

Stickman has spent entire legal career post clerkship at the Pittsburgh office of Del Sole Cavanaugh Stroyd LLC, handling a litigation practice on both civil and personal injury cases.  Overall, Stickman has litigated six jury trials to verdict.[6]  Notably, Stickman (with Third Circuit Judge Stephanos Bibas as his co-counsel) represented the mother of Ryan Maseth, a Pittsburgh-native soldier who was electrocuted in an Iraqi military base.[7]  Stickman’s case against the military contractor responsible for the barracks was dismissed by Judge Nora Barry Fischer,[8] but was reinstated by the Third Circuit.[9]  The case was ultimately settled.

In another matter, Stickman served as Counsel for the Pennsylvania Reapportionment Commission in defending redistricting plans developed after the 2010 census.[10] 

Political Activity

Stickman is a Republican and has served on the Alleghany County Republican Committee from 2014 to 2019.[11]  He also ran for the Alleghany County Council as a college student in 2001, losing the election to Democratic incumbent Wayne Fontana.[12]  During the election, the Pittsburgh Post-Gazette endorsed Fontana, describing Stickman as “earnest and diligent” but noting his youth and that he “lacks an adequate grasp of specific issues facing the county.”[13]

Writings

In the early 2000s, Stickman authored a number of Letters to the Editor for the Pittsburgh Post Gazette.  Three of these letters are particularly notable for revealing Stickman’s views on key social issues.

Abortion

During the 2004 election, Stickman wrote a response to another letter comparing the number of abortions in the U.S. to the number of deaths in Iraq.  In the letter, Stickman describes the abortion industry as “grotesque,” stating that “since Roe vs. Wade more than 39 million babies have been killed by abortion.”[14]  Stickman also criticizes the comparison between abortion and the Iraq war, stating:

“To argue that there is moral equivalence between the accidental deaths of Iraqi civilians while liberating them from a murderous tyrant and the intentional deaths of many millions of babies is specious at best.”[15]

Gay Rights

In 2003, shortly after the Supreme Court struck down anti-sodomy laws in its Lawrence v. Texas decision, Stickman wrote a letter defending the disapproval and anti-LGBT views of Sen. Rick Santorum.[16]  In the letter, Stickman describes gay rights groups criticizing Santorum as “leftist sharks” and states:

“Even if the senator did equate homosexual intercourse with adultery, bigamy and incest, isn’t that his prerogative?  Are we and the leaders we elect no longer allowed to disagree with the activities of certain groups?”[17] 

Anti-Catholic Bias

In a 2002 letter, Stickman criticized the Post-Gazette’s coverage of sexual abuse cases involving Catholic priests.[18]  Stickman suggested that the coverage sensationalized the scandal and was motivated by anti-Catholic prejudice, comparing it to the Ku Klux Klan burning crosses to intimidate his Catholic grandmother.[19]  Stickman also alludes to the campaign against anti-Muslim bigotry after the September 11 attacks, asking: “is anti-Catholicism the last acceptable prejudice in our society?”[20]  Stickman notes that only 1.8 percent of Catholic priests have been implicated in scandal, noting:

“…the PG [Post-Gazette] should apologize to the 98.2 percent of priests who have suffered due to one-sided coverage.”[21]

Overall Assessment

The 40-year-old Stickman is young, conservative, and seems to have the support of his home state senators (even Democratic Sen. Bob Casey).  Furthermore, his career as a lawyer has not attracted much controversy, and he has accrued the requisite level of experience for a federal trial judge.  As such, his confirmation seems fairly assured.  

However, senators are likely to raise concerns about Stickman’s letters to the editor, suggesting that such letters do not reflect an appropriate judicial temperament.  Furthermore, Stickman’s beliefs, as divined from those letters, can be read to suggest that abortion is equivalent to murder, that homosexuality is equivalent to incest, that criticism of the Catholic church for its role in covering up child abuse is motivated solely by anti-Catholic animus, and that criticism of homophobia is an attempt to suppress speech.  While a nominee’s personal views shouldn’t necessarily dictate their judicial decisions, the boundary is nonetheless appropriate for senators to explore.

Of course, as with any nominee whose previous writings come under scrutiny, the key question is whether the nominee maintains the same views today or if his views have evolved with time.  That will be the question that must be explored regarding Stickman.

[1] Sen. Comm. on the Judiciary, 115th Cong., William S. Stickman IV: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 15.

[7] See Joe Mandak, Judge: No Iraqi Law in Pa. Soldier’s Shower Death, Associated Press, Oct. 3, 2011.

[8] Joe Mandak, Judge Nixes Pa. Soldier’s Iraq Electrocution Suit, Associated Press, July 16, 2012.

[9] Joe Mandak, Suit Over Pa. Soldier’s Death  in Iraq is Revived, Associated Press, Aug. 1, 2013.

[10] See Angela Couloumbis, Pa. Justices Hear Arguments Over New Legislative Plans, Philadelphia Inquirer, Sept. 13, 2012.

[11] See Stickman, supra n. 1 at 13-14.

[12] Id. at 13.

[13] Editorial, Fontana for District 12; More a Worker than a Reformer on County Council, Pittsburgh Post-Gazette, Oct. 26, 2001.

[14] See William S. Stickman IV, Accidental Deaths Vs. Intentional Deaths: No Comparison, Pittsburgh Post-Gazette, Oct. 29, 2004.

[15] Id.

[16] William S. Stickman IV, Free to Disagree, Pittsburgh Post-Gazette, Apr. 30, 2003.

[17] See id. 

[18] William Stickman, An Acceptable Prejudice?, Pittsburgh Post-Gazette, Mar. 29, 2002.

[19] See id.

[20] Id.

[21] Id.

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Judge Robert Colville – Nominee to the U.S. District Court for the Western District of Pennsylvania

When the Obama Administration ended, four district court nominees in Pennsylvania were left unconfirmed before the Republican Senate.  With the nomination of Judge Robert Colville to the Western District, all four have now been renominated by President Trump.

Background

A Western Pennsylvania native, Colville was born in Pittsburgh in 1965, the son of Robert E Colville.[1]  The senior Colville was a longtime Alleghany County District Attorney and Pennsylvania Judge.  The younger Colville attended Pennsylvania State University, graduating with a B.A. in 1989.  Colville went on to get a Juris Doctor from Duquesne University School of Law.[2]

After graduating, Colville clerked for Pennsylvania Supreme Court Justice Ralph Cappy and then joined the Pittsburgh Office of Pietragallo Bosick & Gordon as an Associate.

In 2000, Colville became a judge on the Court of Common Pleas for Alleghany County.[3]   Colville continues to serve in that position today.

On July 30, 2015, President Obama nominated Colville to the U.S. District Court for the Western District of Pennsylvania to fill a vacancy opened by the death of Judge Gary Lancaster.  Colville received a hearing before the Senate Judiciary Committee but was never voted out by the Committee, where Republican Senators objected to Colville’s answers relating to Roe v. Wade and abortion rights.[4]

History of the Seat

As noted above, Colville’s nomination to the Lancaster seat on the Western District of Pennsylvania stalled in the Obama Administration.  President Trump chose not to renominate Colville to that seat, instead choosing another failed Obama nominee, Judge Marilyn Horan, who was confirmed.

Nevertheless, in August 2018, the White House reached out to Colville to vet him for a federal judgeship.[5]  Colville was nominated on March 5, 2019 for a seat that opened on January 1, 2018, with the move to senior status of Judge Arthur Schwab.

Legal Experience

From 1994 to 1999, Colville worked as an associate and a partner at Pietragallo Bosick & Gordon in Pittsburgh.  At the firm, Colville tried approximately four cases in Pennsylvania state court, focusing on general civil litigation.[6]  Among the most significant matters that Colville handled at the firm, he represented Universal Underwriters, an insurance company, in defending against a reimbursement action before the Pennsylvania Supreme Court.[7]

Jurisprudence

Colville has served as a state court judge in Alleghany County since 2000.  He spent his first two years in the Juvenile Division, the third year in the Family Division, and has been with the Civil Division since 2003.[8]  Colville has presided over around 400 civil trials.[9]

Among his more prominent cases, Colville presided over a medical malpractice case arising from the death of a patient from a perforated bowel.[10]  In another notable case, Colville presided over a $5.7 million verdict for the plaintiff in a medical malpractice case where a patient was not adequately screened for liver cancer and died as a result.[11]

Political Activity

Colville comes from a prominent Western Pennsylvania Democratic family and has only one donation of record, a $600 contribution to the Pennsylvania Democratic Party.[12]

Overall Assessment

As noted before, any nominee found worthy of nomination by two administrations of different political parties is likely to be fairly uncontroversial.  While Colville has bipartisan support, however, he is nonetheless likely to draw some opposition.  His initial nomination failed to make it out of Committee due to his (perceived) support for abortion rights, and his second nomination has already drawn Republican opposition.  None of this is to say that Colville will not be ultimately confirmed, but it does suggest that Colville will not attract the level of support that other Pennsylvania nominees have drawn.

[1] Sen. Comm. on the Judiciary, 116th Cong., Robert J. Colville: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominees Fail to Advance, The Daily Signal, Jan. 29, 2016, https://www.dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[5] See Colville, supra n. 1 at 60.

[6] See Colville, supra  n. 1 at 53-54.

[7] See State Farm Mutual Auto Ins. Co. v. Universal Underwriters, 701 A.2d 1330 (Pa. 1997).

[8] See Colville, supra n. 1 at 1-2.

[9] Id. at 25.

[10] See Cunning v. Ellwood City Hospital, No. GD12-020914, Alleghany Cnty., May 14, 2015 (trial date).

[11] See Kander v. Agha, No. GD 13-007761, Alleghany Cnty., Apr. 9, 2015 (jury verdict).

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J. Nicholas Ranjan – Nominee for the U.S. District Court for the Western District of Pennsylvania

While President Trump has received much criticism about the relative paucity of nominees of color among his judicial appointments, he has outpaced previous Administrations with regard to Asian-American nominees.  One such nominee is J. Nicholas Ranjan, who is of Indian origin.

Background

Jagan Nicholas Ranjan was born in Lancaster Ohio in 1978.[1]  Ranjan graduated summa cum laude from Grove City College in 2000 and cum laude from the University of Michigan Law School in 2003.[2]  He spent a year at the Office of the Ohio Solicitor General and then clerked for Judge Deborah Cook on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Pittsburgh Office of K&L Gates as an Associate.[3]  He became a Partner in 2013 and continues to serve in that capacity.[4]

History of the Seat

The seat Ranjan has been nominated for opened on June 3, 2016, with Judge Kim Gibson’s move to senior status.  While the seat opened in the Obama Administration, no nomination was put forward to fill the vacancy.

Ranjan applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in March 2017.[5]  Ranjan interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on July 24, 2018.

Legal Experience

Ranjan began his career with a fellowship in the Ohio Solicitor General’s Office and a clerkship on the Sixth Circuit, but he’s spent his entire legal career since then at the Pittsburgh office of K&L Gates, handling commercial and appellate litigation.  Overall, Ranjan has worked as counsel of record in fourteen civil trials, including two jury trials.[6]  Both jury trials involved representations of prisoners suing guards for civil rights violations: one involving an excessive force claim;[7] the other involving inappropriate sexual contact.[8]

In another significant case, Ranjan represented Joseph Ruggieri, a Plum Borough teacher convicted for sex abuse of a student in a civil suit brought by the student.[9]  The suit was ultimately resolved through a confidential settlement.[10]

Writings and Statements

Over his legal career, Ranjan has written on and made public statements about legal and policy issues.  We have summarized his major positions below:

Medicaid and “Prior Authorization”

As a law student, Ranjan authored a note discussing the constitutionality of the Maine Rx program, which offered prior authorization of non-complying drugs to drug manufacturers as long as they offered rebates on those drugs to Maine residents.[11]  In the note, Ranjan argues that the program and similar programs are unconstitutional because they are pre-empted by federal Medicaid law, and because they violate the Dormant Commerce Clause, a controversial doctrine holding that states cannot discriminate against interstate commerce in their regulations.[12]

Legal Diversity

Ranjan serves as Chair of the Pittsburgh Office Diversity Committee at K&L Gates, and has used his role to improve legal diversity.  During his tenure, K&L Gates received a perfect score in a Human Rights Campaign survey tracking employer benefits and protections for LGBTQIA employees.[13]  Ranjan has also supported the Pittsburgh Legal Diversity & Inclusion Coalition, an initiative that seeks to improve diversity among the legal profession.[14]

Clarence Thomas

As a law student at the University of Michigan, Ranjan authored a book review of Andrew Peyton Thomas’ biography of Justice Clarence Thomas.[15]  In the book review, Ranjan posits an unusual theory: that the Justice’s life and jurisprudence, as well as the often-vitriolic response to him, is best understood by viewing the Justice as a “political figure rather than as merely a jurist.”[16]  Specifically, Ranjan argues that Justice Thomas’ jurisprudence on race is inconsistent with the originalist lens he takes with other issues, and that this disparity can be perceived as political, rather than judicial.[17]  Additionally, he notes that the Justice effectively politicized his race in his confirmation battle, stating that Thomas “changed the tone of the hearings from a sexual harassment investigation [to] a racist manhunt for Thomas by fiendish political lynchers.”[18]  At the same time, Ranjan criticizes much of the criticism of Thomas as “unreasoned, bitterly partisan, and grossly propagandized.”[19]  He suggests that viewing Thomas as a political, rather than a judicial, figure helps explain the level of opposition he faces.

Overall Assessment

In comparison to other, more controversial nominees sent forward by the Trump Administration recently, Ranjan should sail to confirmation.  His efforts on legal diversity are generally laudable and his legal career has been generally uncontroversial.  While Ranjan may face some questions regarding his description of Justice Thomas as a “political figure,” it is unlikely that this would derail his confirmation.  As such , it is even possible that Ranjan may see confirmation by the end of the year.

[1] Sen. Comm. on the Judiciary, 115th Cong., J. Nicholas Ranjan: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id.

[4] Id.

[5] Id. at 31-32.

[6] Id. at 19.

[7] Byrnes v. Moody, No. 2:15-cv-00570 (W.D. Pa. 2017).

[8] Caldwell v. Folino, No. 2:08-cv-00122 (W.D. Pa. 2012).

[9] See Natasha Lindstrom, Plum Reaches Tentative Settlement in Sex-Abuse Lawsuit, Pittsburgh Tribune Review, July 29, 2017.

[10] See id.

[11] Jagan Nicholas Ranjan, Medicaid and the Unconstitutional Dimensions of Prior Authorization, 101 Mich. L. Rev. 602 (Nov. 2002).

[12] See id. At 608.

[13] See Tracy Carbasho, Five Local Firms Score Well in LGBT Equality, 16 Lawyers J. 3 (Dec. 26, 2014).

[14] See Susan Yohe, Pittsburgh Legal Diversity & Inclusion Coalition to Launch Model Career Advocate Program: Charting a Path to a More Diverse Pittsburgh, 20 Lawyers J. 1 (Oct. 12, 2018).

[15] Jagan Nicholas Ranjan, The Politicization of Clarence Thomas Clarence Thomas: A Biography. By Andrew Peyton Thomas, 101 Mich. L. Rev. 2084 (May 2003).

[16] Id. at 2086.

[17] See id. at 2094-95.

[18] Id. at 2096.

[19] Id.

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Peter Phipps – Nominee for the U.S. District Court for the Western District of Pennsylvania

A DOJ litigator with extensive experience in the federal courts, the 45-year-old Peter Phipps looks likely to join the Western District of Pennsylvania before the end of the year.

Background

Peter Joseph Phipps was born on April 8, 1973 at Dyess Air Force Base in Abilene, TX.[1]  Phipps attended the University of Dayton, getting a B.A. in History and a B.S. in Physics.[2]  He continued on to the Stanford University Law School, graduating with a J.D. in 1998.  He then joined the Washington D.C. Office of Jones Day (a firm that has sent many alumni to the Trump Administration and the federal bench).[3]

In 2001, Phipps left Jones Day to clerk for Judge R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.[4]  He is still with the same office in Washington D.C., working as Senior Trial Counsel.  Phipps has also served as an Adjunct Professor at Duquesne University School of Law in Pittsburgh since 2014.[5]

History of the Seat

The seat Phipps has been nominated for opened on September 30, 2013, with Judge Terrence McVerry’s move to senior status.  On July 30, 2015, President Obama nominated Judge Marilyn Horan from the Butler County Court of Common Pleas to fill the vacancy.[6]  The nomination of Horan, a Republican, was made as a package along with those of three Democrats to other vacancies.

While all four nominees in the package received a hearing on December 9, 2015, two of them, Judge Robert Colville, and Judge John Milton Younge, were blocked from Judiciary Committee consideration by Chairman Chuck Grassley, who was unhappy with their support of abortion rights.[7]  At the same time, Horan and Judge Susan Baxter were blocked by Senate Majority Leader Mitch McConnell on the Senate floor and were never confirmed.  Both were ultimately renominated by Trump.[8]

Phipps applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in April 2017.[9]  Phipps interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on February 15, 2018.

Legal Experience

While Phipps’s primary legal occupation has been as a litigator at the Department of Justice, he began his career as an Associate in the Washington D.C. Office of Jones Day, representing corporations in civil litigation.[10]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[11]

As Senior Trial Counsel at the Federal Programs Branch of the Department of Justice, Phipps litigated many contentious cases.  In one case, Phipps defended the U.S. Department of Housing and Urban Development against a class action suit brought by African American plaintiffs alleging racial discrimination in public housing.[12]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[13]

In another notable case, Phipps defended the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy, which barred individuals engaging in homosexual conduct from serving openly in the armed forces.[14]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[15]

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[16]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[17]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[18]

Overall Assessment

While Phipps, at 45, is a relatively young judicial nominee, his qualifications for the federal bench are unquestionable.  As an attorney with the Federal Programs Branch of the Department of Justice, Phipps has had experience in some of the most consequential litigation the Department engages in, preparing him well for the  issues he would face as a trial judge.

Skeptics may draw opposition based on Phipps’ defense of DADT and grants to faith-based organizations.  However, as an attorney at Federal Programs, Phipps has an ethical responsibility to present defenses to federal laws and regulations and his views in litigation cannot necessary be imputed as his personal views.

Overall, given that Phipps has the support of his Democratic and Republican home-state senators, as well as a fairly noncontroversial record, he looks set for a relatively painless confirmation.

[1] Sen. Comm. on the Judiciary, 115th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Id.

[6] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[7] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominations Fail to Advance, The Daily Signal, Jan. 29, 2016, http://dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[8] Press Release, President Donald J. Trump Announces Ninth Wave of Judicial Nominees and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Sen. Comm. on the Judiciary, 115th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 24.

[10] Id. at 10.

[11] Id. at 11-12.

[12] Thompson v. HUD, No. 95-395 (D. Md.) (Garbis, J.) (Grimm, J.).

[13] See id.

[14] Witt v. United States Air Force, No. 06-5195 (W.D. Wash.) (Leighton, J.).

[15] American Civil Liberties Union of Northern California v. Hargan, No. 16-3539 (N.D. Cal.) (Beeler, M.J.).

[16] See NCAA v. Christie, Nos. 3:12-4947; 3:14-6450 (D.N.J.) (Shipp, J.); Nos. 13-1713,-1714,-1715 (3d Cir.); Nos. 14-4546,-4568,-4569 (3d Cir.) (subsequently en banc); Nos. 13-967; -979; -980, Nos. 16-476,-477 (U.S.).

[17] See id.

[18] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

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Judge Susan Paradise Baxter – Nominee for the U.S. District Court for the Western District of Pennsylvania

A well-respected magistrate judge with over twenty-two years on the bench, Judge Susan Paradise Baxter is a consensus nominee from the Trump Administration.  Her moderate background and support from senators of both parties, as well as her previous nomination from President Obama, should ensure a relatively smooth confirmation process.

Background

A Western Pennsylvania native, Baxter was born Susan Rose Paradise on September 20, 1956, in Latrobe, in the Pittsburgh suburbs.[1]  Baxter attended Pennsylvania State University, overlapping with fellow nominee Marilyn Horan, and graduating with a B.S. in 1978.  Baxter went on to get a Masters in Education and then a Juris Doctor from Temple University.[2]

After graduating, Baxter joined Cole Raywid & Braverman (now Davis Wright & Tremaine LLP) in Washington D.C. as an associate.  In 1989, Baxter became a partner at the firm.

In 1994, Baxter returned to Pennsylvania to serve as a court solicitor for the Court of Common Pleas for Erie County.[3]  A year later, Baxter was named to be a federal magistrate judge for the U.S. District Court for the Western District of Pennsylvania.[4]  Baxter continues to serve in that position today.

History of the Seat

The seat Baxter has been nominated for opened on August 16, 2013, with the resignation of Judge Sean McLaughlin.  In August 2013, Baxter applied for a federal judgeship with the application committee set up by Pennsylvania’s U.S. Senators Bob Casey (D-PA) and Pat Toomey (R-PA).[5]  Baxter interviewed with Casey and his staff in early 2015 and with Toomey in March of that year.[6]  In July 2015, Baxter was then nominated by President Obama for the vacancy on the U.S. District Court for the Western District of Pennsylvania.[7]

While Baxter had bipartisan support for the seat and was unanimously voted out of the Judiciary Committee in January 2016, she never received a floor vote and her nomination was returned at the end of the 114th Congress.

In January 2017, Toomey and Casey indicated their support for re-nominating Baxter for the Western District.  Baxter was officially re-nominated for the vacancy on December 20, 2017.[8]

Legal Experience

From 1983 to 1992, Baxter worked as an associate and a partner at Cole Raywid & Braverman in Washington D.C.  At the firm, Baxter handled approximately 100 cases, going to trial in ten cases.[9]  Among the most significant matters that Baxter handled at the firm, she represented a class of over one hundred former employees and stockholders of U.S. News & World Report in bringing an ERISA action.[10]  In 1994, Baxter’s family moved to Erie and Baxter worked as the Solicitor to the Erie County Court of Common Pleas, representing the judges on the court .[11]

Jurisprudence

Baxter has served as a federal magistrate judge for the last twenty two years.  During this time, Baxter handles pretrial matters in criminal and civil cases, as well as offering reports and recommendations to district court judges.[12]  Baxter also presides over civil cases with the consent of both parties, handling 20 cases to verdict and judgment over her tenure on the bench.[13]  Baxter has also written over 1300 opinions.[14]

Among her more prominent cases, Baxter presided over a class action suit under the Americans with Disabilities Act (ADA) challenging the lack of wheelchair ramps in many Erie intersections.[15]  Baxter certified the class of plaintiffs in the case, and presided over the entry of a consent decree to ensure compliance with the ADA.[16]  In another notable case, Baxter presided over unsuccessful settlement negotiations related to alleged Clean Air Act violations committed by the Erie Coke Corporation.[17]

Over the last twenty two years, Baxter has been reversed approximately nineteen times in over 1300 decisions she has made.[18]  In seventeen cases, Baxter’s report and recommendation was adopted by the district court, but the decision was ultimately reversed by the U.S. Court of Appeals for the Third Circuit.[19]  In two cases, Baxter’s report and recommendation was rejected by the district court, but was ultimately imposed by the Third Circuit.[20]

Political Activity

While Baxter is a Democrat, she has not been involved with any political party or campaign.[21]

Overall Assessment

Generally speaking, any nominee put forward by two administrations of different political parties is likely to be fairly uncontroversial.  Baxter is no different.  Her record on the bench reflects a close adherence to precedent and her low reversal rate suggests her relatively mainstream jurisprudence.  Furthermore, she has largely avoided controversial positions throughout her career and has the enthusiastic support of her home state senators (both of different political parties).  As such, Baxter will likely be confirmed swiftly with a strong bipartisan majority.

[1] Sen. Comm. on the Judiciary, 114th Cong., Susan Paradise Baxter: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] See id. at 2.

[4] See id. 

[5] See id. at 50-51.

[6] Id.

[7] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[8] Press Release, President Donald J. Trump Announces Ninth Wave of Judicial Nominees and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] See Baxter, supra  n. 1 at 43.

[10] See Foltz v. U.S. News & World Report, Inc., Case No. 84-447 (D.D.C.).

[11] See Baxter, supra n. 1 at 43.

[12] See Baxter, supra n. 1 at 17.

[13] See id.

[14] Id.

[15] See Barrier Busters v. City of Erie, Civil Action No. 02-203 Erie.

[16] See id.

[17] Lisa Thompson, Erie Coke, Regulators Reach No Settlement: Erie Coke Case Goes to Judge After Settlement Negotiations Stall, Erie Times-News, Apr. 1, 2010.

[18] See Baxter, supra n. 1 at 33-37.

[19] See Haskell v. Superintendent Greene, SCI, Civil Action 10-249 Erie, 2015 WL 5227855 (W.D. Pa. Sept. 8, 2015), rev’d, 866 F.3d 139 (3d Cir. 2017) (reversing district court denial of writ of habeas corpus based on the state’s use of perjured testimony); Byrd v. Aaron’s, Inc., Civil Action 11-101 Erie, 2014 WL 1316055 (W.D. Pa. Mar. 31, 2014), rev’d and remanded, 784 F.3d 1154 (3d Cir. 2015) (reversing denial of class certification); Henry v. City of Erie, Civil Action 10-260 Erie, 2011 U.S. Dist. LEXIS 110562 (W.D. Pa. Sept. 28, 2011), rev’d and remanded, 728 F.3d 275 (3d Cir. 2013) (reversing denial of motion to dismiss based on qualified immunity); Tindell v. Penn., Civil Action 11-173 Erie (decision to revoke prisoner’s in forma pauperis due to three-strikes rule reversed by 3d Circuit); Torrence v. Sobina, Civil Action 10-217 Erie, 2011 WL 4473122 (W.D. Pa. Sept. 11, 2011), vacated and remanded, 455 Fed. Appx. 140 (3d Cir. Dec. 27, 2011) (reversed denial of plaintiff’s claims based on Eleventh Amendment immunity and remanded to dismiss for failure to exhaust); Mutschler v. SCI Albion CHCA, Civil Action 09-265 Erie, 2010 WL 3809849 (W.D. Pa. Sept. 23, 2010), aff’d in part and rev’d in part, 445 Fed. Appx. 617 (3d Cir. Sept. 27, 2011) (reversing dismissal of Eighth Amendment claim of deliberate indifference); DiLauri v. Mullen, Civil Action 09-198 Erie, 2011 WL 1428092 (W.D. Pa. Apr. 13, 2011), adopted by 2011 WL 2415243 (W.D. Pa. June 13, 2011), aff’d in part and vacated in part, 477 Fed. Appx. 944 (3d Cir. 2012) (reversing dismissal of plaintiff’s claims based on failure to plead involvement of defendants); Cauvel v. Schwan Home Servs. Inc., Civil Action 08-134 Erie, 2010 WL 5476698 (W.D. Pa. Dec. 31, 2010), rev’d and remanded, 458 Fed. Appx. 131 (3d Cir. Jan. 20, 2012) (reversing grant of summary judgment where genuine issue of material fact existed); Royster v. United States, Civil Action 07-228 Erie, 2010 WL 936764 (W.D. Pa. Mar. 11, 2010), rev’d and remanded, 475 Fed. Appx. 417 (3d Cir. Mar. 30, 2012) (reversing dismissal of FTCA claim for failure to exhaust); Nicholas v. Corbett, Civil Action 06-129 Erie, 2007 WL 1163694 (W.D. Pa. Apr. 18, 2007); Alston v. Forsyth, Civil Action 05-168 Erie, 2010 WL 95089 (W.D. Pa. Jan. 6, 2010), rev’d and remanded, 379 Fed. Appx. 126 (3d Cir. 2010) (reversing grant of summary judgment to defendant); Grier v. Klem, Civil Action 05-05 Erie, rev’d and remanded, 591 F.3d 672 (3d Cir. Jan. 12, 2010) (reversing dismissal of 1983 action based on intervening Supreme Court jurisprudence); Davila-Bajana v. Holohan, Civil Action 04-253 Erie, rev’d and remanded, 309 Fed. Appx. 606 (3d Cir. Feb. 5, 2009) (reversing dismissal of Eighth Amendment claim due to failure to exhaust); Armann v. Warden-McKean, Civil Action 04-118 Erie, 2006 WL 2882954 (W.D. Pa. Oct. 6, 2006), adopted by 2007 WL 1576407 (W.D. Pa. May 31, 2007), rev’d, 549 F.3d 279 (3d Cir. 2008) (reversing recommendation for evidentiary hearing in military tribunal challenge); Cooleen v. LaManna, Civil Action 04-63 Erie, rev’d and remanded, 248 Fed. Appx. 357 (3d Cir. 2007) (reversing dismissal of Eighth Amendment claim); Camp v. Brennan, Civil Action 98-180 Erie, aff’d in part and rev’d in part, 219 F.3d 279 (3d Cir. 2000) (reversing dismissal for failure to exhaust); Nelson v. Jashurek, Civil Action 95-97 Erie, rev’d and remanded, 109 F.3d 142 (3d Cir. 1997) (reversing dismissal of excessive force claim).

[20] See UPS Freight v. Nat’l Union Fire Ins. Co., Civil Action 06-137 Erie, 2007 WL 1880962 (W.D. Pa. June 26, 2007), vacated by 428 Fed. Appx. 168 (3d Cir. 2011); Jewell v. Reno, 297 F.3d 305 (3d Cir. 2002) (rejecting district court dismissal, contrary to magistrate recommendation, of plaintiff’s as-applied challenge).

[21] See Baxter, supra n. 1 at 40-41.

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Judge Marilyn Horan – Nominee for the U.S. District Court for the Western District of Pennsylvania

A longtime state judge in Western Pennsylvania, this is Judge Marilyn Horan’s second chance at a federal judgeship, her first having ended in failure due to a blockade on judicial confirmations at the end of the Obama Administration.  Given the bipartisan support behind her nomination, her distinguished background, and moderate judicial record, Horan is likely to be confirmed smoothly this time around.

Background

A Western Pennsylvania native, Marilyn Jean Horan was born on September 13, 1954 in Butler, in the outskirts of Pittsburgh.[1]  When Horan was 10, her father, a foreman at Armco Steel, was killed in a lightning strike alongside three others.[2]  Horan attended Pennsylvania State University, graduating magna cum laude in 1976.  Horan continued on to the University of Pittsburgh Law School graduating with a J.D. in 1979.  As a law student, Horan interned at the Neighborhood Legal Services Association in Butler.[3]

After graduating, Horan joined the Butler law firm Murrin, Murrin & Taylor.  Three years later, Horan became a partner and the firm was renamed Murrin, Taylor, Flach & Horan.

In 1996, Horan was appointed by Republican Governor Tom Ridge to be the first female judge on the Butler County Court of Common Pleas.[4]  Horan continues to serve as a judge there today.  In addition, Horan became a Common Pleas Court Administrative Judge in October 2017.[5]

During Horan’s tenure on the Court of Common Pleas, she has received several awards and commendations from the community including the Susan B. Anthony Award from the Women’s Bar Association of Western Pennsylvania,[6] the President’s Award from the Pennsylvania Conference of State Trial Judges,[7] the Outstanding Leadership Award from the Juvenile Justice Commission,[8] and the Anne X. Alpern Award from the Pennsylvania Bar Association Commission on Women in the Profession.[9]

In 2013, Horan applied for a federal judgeship with the application committee set up by Pennsylvania’s U.S. Senators Bob Casey (D-PA) and Pat Toomey (R-PA).[10]  Horan interviewed with Toomey and his staff in early 2014 and with Casey in early 2015.[11]  In July 2015, Horan was then nominated by President Obama for a vacancy on the U.S. District Court for the Western District of Pennsylvania created by Judge Terrence McVerry’s move to senior status.[12]  While Horan had bipartisan support for the seat and was unanimously voted out of the Judiciary Committee in January 2016, she never received a floor vote and her nomination was returned at the end of the 114th Congress.

History of the Seat

The seat Horan has been nominated for opened on April 24, 2013, with the unexpected death of Judge Gary Lancaster.[13]  On July 30, 2015, President Obama nominated Judge Robert J. Colville from the Alleghany County Court of Common Pleas to fill the vacancy created by Lancaster’s death.[14]  The nomination of Colville, a Democrat, was made as a package along with Horan’s nomination to a different seat as well as the nominations of two other Democrats.

While all four nominees in the package received a hearing on December 9, 2015, Colville and fellow Democrat John Milton Younge were blocked from Judiciary Committee consideration by Chairman Chuck Grassley, who was unhappy with their support of abortion rights.[15]  As such, Colville was not voted out of Committee and was returned unconfirmed at the end of the 114th Congress.  At the same time, Horan’s nomination for the McVerry seat was also returned unconfirmed to the President.

In January 2017, Toomey and Casey indicated their support for re-nominating Horan for the Western District.[16]  Horan was interviewed by the White House Counsel’s Office on May 15, 2017 and then maintained contact with their office while the nomination remained pending for seven months.[17]  Finally, Horan was nominated for the vacancy on December 20, 2017.[18]

Legal Experience

Horan’s sole legal occupation between law school and taking the bench was serving as an attorney at the firm of Murrin, Taylor, Flach & Horan in Butler, Pennsylvania.  At the firm, Horan handled family law, civil, and small business cases, practicing almost entirely in state court.[19]

Among other matters, Horan litigated many contentious family law cases.  In one case, Horan represented a father seeking visitation rights for his unborn child over the objection of the mother.[20]  In another case, Horan represented a mother in tracking down a child from a common law marriage who was kidnapped and taken to England by the child’s father.[21]  In another notable case, Horan successfully represented a mother in regaining custody of children that she had voluntarily relinquished to her parents.[22]

Jurisprudence

Horan has served on the Butler County Court of Common Pleas for the last twenty two years.  During this time, Horan has overseen over one thousand cases to verdict and judgment.[23]  Of these cases, the vast majority (approximately 75%) are civil cases, including municipal and administrative matters and family law.[24]

On the bench, Horan’s record has been relatively mainstream with a relatively low reversal rate.  Among over one thousand cases handled by Horan over the last twenty-two years, only approximately 26 have been reversed by a higher court.[25]  In one of her more notable reversals, Horan ruled that a defendant who had committed homicide by vehicle while under the influence had to pay restitution to the insurance company that paid out a life insurance policy to the decedent.[26]  In reversing, the Pennsylvania Superior Court found that an insurer did not constitute a victim that could claim restitution under Pennsylvania law.[27]

Political Activity

Horan is a Republican, and unsuccessfully pursued a Republican Party endorsement for a Superior Court seat in 2002.[28]  However, she has not been involved with any political party or campaign other than her own judicial campaigns.[29]

Overall Assessment

As of today, Horan’s chances of a smooth confirmation look pretty high.  She has a mainstream moderate record, is well-liked by fellow attorneys and has won several awards from legal associations.  Furthermore, she has the support of her Democratic and Republican home-state senators, as well as the backing of two different Administrations.  Finally, despite over two decades on the state bench, Horan has managed to avoid any hot-button decisions or cases.  As such, Horan looks set for a relatively painless confirmation.

[1] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 1.

[2] Karen Kane, Horan Honored as State’s Outstanding Jurist, Pittsburgh Post-Gazette, Aug. 22, 2004.

[3] See Horan, supra n. 1 at 2.

[4] See Kane, supra n. 2.

[5] See Horan, supra n. 1.

[6] Erin Giebler, Judge Horan Receives WBA Award, Alleghany County Bar Association Lawyers Journal, Mar. 3, 2006.

[7] Kane, supra n. 2.

[8] Metro, Butler County, Pittsburgh Post-Gazette, Dec. 8, 2005.

[9] Bill Vidonic, Marilyn J. Horan, Pittsburgh Tribune Review, Apr. 9, 2014.

[10] See Horan, supra n. 1 at 55.

[11] Id.

[12] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[13] Michael Hasch and Bobby Kerlik, Gary Lancaster, Chief U.S. Judge for Western Pa, Dead at 63, Pittsburgh Tribune Live, April 24, 2013, http://triblive.com/news/adminpage/3906347-74/district-chief-died.

[14] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[15] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominations Fail to Advance, The Daily Signal, Jan. 29, 2016, http://dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[16] See Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 55.

[17] See id.

[18] Press Release, President Donald J. Trump Announces Ninth Wave of Judicial Nominees and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at www.whitehouse.gov/thepressoffice).

[19] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 47.

[20] Stroup v. Stroup (Butler County late 1980s).

[21] Jenkins v. Jenkins (Butler County approximately 1984).

[22] Cady v. Weber, 464 A.2d 423 (Pa. Super. 1983).

[23] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 17.

[24] See id.

[25] See id. at 35-40.

[26] Commonwealth v. Opperman, CA 124 of 1999.

[27] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).

[28] Sen. Comm. on the Judiciary, 115th Cong., Marilyn Jean Horan: Questionnaire for Judicial Nominees 45-46.

[29] See id. at 46.

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