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Bold Justice: November 13, 2017

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Bold Justice: Playing the ratings game

Last week, the American Bar Association (ABA) issued ratings of not qualified for two of President Donald Trump’s judicial nominees: Holly Lou Teeter, a nominee to the District of Kansas, and Brett Talley, a nominee to the Middle District of Alabama. Both were nominated to Article III, life-term appointments in the federal judiciary. Teeter was rated not qualified by a substantial majority of the ABA committee and Talley was unanimously rated not qualified by the committee. To date, four of the president’s nominees have been rated not qualified by the ABA. We did some digging this week to explain the process, the issue, the data, and what comes next. Thanks for reading this week’s edition of Bold Justice!

The process

The American Bar Association’s (ABA) standing committee on the federal judiciary issues ratings for every Article III judicial nominee commissioned to a life term on a federal court. The committee is made up of 15 members: two from the Ninth Circuit, one from each of the other federal circuits, and the chair of the committee. The members are appointed by the president of the ABA to staggered three-year terms. Members of the committee can serve no more than two terms, and they are selected to represent a wide variety of backgrounds. Members of the committee can rate a nominee one of three ways: Not Qualified, Qualified, or Well Qualified. The evaluation process is performed by a committee member from the same circuit from which the candidate is nominated. The evaluator then prepares a report from a personal data questionnaire, which is collected by the Justice Department, extensive readings of the candidate's legal writings, confidential interviews of those the candidate has worked with and a personal interview. The report is presented to the chair of the committee who verifies if it is complete. After each member goes over the materials, the committee members vote on the nominee. Each member votes, with the tiebreaker vote going to the chair of the committee. The three ratings can also be accompanied by a Majority (eight to nine votes), a Substantial Majority (ten to thirteen votes) or a Unanimous designation. The majority rating is presented as the committee's official rating.

The controversy

The American Bar Association has consulted with presidents going back to Dwight D. Eisenhower on nominations to Article III life-term judicial positions. While many presidents opt to consult with the ABA prior to submitting nominations to the U.S. Senate, U.S. News and World Report reported that the Trump administration has followed the precedent of George W. Bush (R), who did not submit his prospective nominees to the ABA prior to submitting those nominations to the Senate. In his first year in office, President Trump has nominated four individuals that the committee has rated not qualified for the nomination. Two of those nominees were unanimously rated not qualified: Talley and Steven Grasz, a nominee to the U.S. Court of Appeals for the Eighth Circuit. Going back to the 101st Congress, during the term of President George H.W. Bush (R), in only two other instances did the committee issue a unanimous not qualified rating. Both of those nominations, which were submitted by President George W. Bush (R), were withdrawn. President Trump, however, appears to have no indication that he will withdraw his nominees and, in fact, Grasz has had confirmation hearings held before the Senate Judiciary Committee. One of Grasz’s home state senators, Ben Sasse (R-Neb.), gave a floor speech in the Senate chamber in which he argued, “We should completely dispel with the fiction that the American Bar Association is a fair and impartial arbiter of facts. This is a sad reality, but it is the reality.”

The data

Ballotpedia conducted an analysis of all ABA ratings going back to the 101st Congress. We noted 16 instances in which a nominee received a rating of not qualified by a majority, a substantial majority, or a unanimous ABA committee vote. In half of those instances, the nominee was confirmed by the U.S. Senate.

What comes next

Teeter’s and Talley’s nominations were reported out of the Senate Judiciary Committee last week and both are awaiting a final confirmation vote in the U.S. Senate. Grasz’s nomination will be brought up for a committee vote in the coming weeks. Goodwin has yet to have committee hearings. On Wednesday, Pamela Bresnahan, the current chair of the ABA’s standing committee on the federal judiciary, will appear before the Senate Judiciary Committee to discuss the nominee review process and to take questions from the 20 senators on the committee, one of whom is Senator Sasse. We’ll keep you posted!

We #SCOTUS, so you don’t have to

Last week, the U.S. Supreme Court concluded its November sitting. To date, the court has heard arguments in 17 of the 46 cases that the court has agreed to adjudicate thus far. The court will issue orders granting certiorari, the most common avenue to Supreme Court review, and will continue to hear arguments in cases this term through April of 2018.

Last week, the court heard arguments in two cases:

  • On Monday, the court heard arguments in Merit Management Group v. FTI Consulting, an appeal of a judgment of the U.S. Court of Appeals for the Seventh Circuit. In bankruptcy cases, a bankruptcy trustee is appointed to distribute any residual assets from a bankrupt entity to any of the bankrupt entity's creditors having a legitimate claim. Bankruptcy trustees can undo previously completed transactions in order to facilitate payments to creditors, but the federal bankruptcy code prevents a trustee from doing so in certain circumstances. This protection is known as the safe harbor provision in the bankruptcy code. The safe harbor provision generally protects legitimate transactions made by, made to, or for the benefit of financial institutions. This case raises a question as to whether the safe harbor provision also protects transactions where the financial institution merely served as a conduit, but was not a beneficiary. In this case, the Seventh Circuit held that the safe harbor provision did not extend to transactions in which a financial institution merely served as a conduit, agreeing with a prior holding of the Eleventh Circuit. Five other federal circuit courts, however, have read the safe harbor provision to include transactions in which financial institutions serve as conduits only.
  • On Tuesday, the court heard arguments in Patchak v. Zinke, an appeal of a judgment of the U.S. Court of Appeals for the District of Columbia Circuit. James Marino, who writes for the legal blog Law360, called this case “probably one of the more important cases ... since Marbury v. Madison defined the parameters of the three branches of our government over 210 years ago.” It is a fascinating case to be sure. In 2001, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians petitioned the Bureau of Indian Affairs for a tract of land known as the Bradley Property to be placed in trust. The land is located near Wayland Township, Michigan. The Tribe sought to use the land to build and to operate a gaming and entertainment facility. David Patchak, the petitioner, filed a lawsuit alleging the U.S. Department of the Interior lacked the authority to place the land in trust. The U.S. Supreme Court later held that Patchak had standing to bring the lawsuit in court. Subsequent to that decision, Congress passed, and President Barack Obama (D) signed, the Gun Lake Trust Land Reaffirmation Act, which required that any legal action related to the Bradley Property be promptly dismissed in federal court. What’s interesting about the law is that Patchak's lawsuit was the only legal action affected by the legislation and the law was introduced by Michigan senator Debbie Stabenow (D). Patchak appealed, arguing that Congress violated constitutional provisions for separation of powers in altering federal courts' jurisdiction by not providing a new legal standard for courts to apply, in violation of Article III. A federal district court and a three-judge panel of the D.C. Circuit rejected Patchak's claims. Put another way: a senator introduced a piece of legislation, which Congress approved and the president signed, that had the sole effect of dismissing one of her constituent’s lawsuits. No word yet on whether Patchak intends to vote for Stabenow in 2018.

The court issued its first opinion in an argued case on Wednesday in Hamer v. Neighborhood Housing Services of Chicago, an appeal of a judgment of the Seventh Circuit Court of Appeals. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous court. Charmaine Hamer filed a notice of appeal with the Seventh Circuit Court of Appeals after a 60-day extension to file her appeal was granted by a federal district court. The Seventh Circuit held that a federal rule of appellate procedure prevented any extension to file her appeal beyond 30 days and that Hamer's appeal was untimely and was, therefore, dismissed. In legal terms, the Seventh Circuit held that the 30-day extension was jurisdictional, i.e. mandated by congressional statute, and required dismissal of Hamer’s appeal. In her opinion for the U.S. Supreme Court, Justice Ginsburg held that the Seventh Circuit was wrong to dismiss the appeal. In the court’s view, the time limit was not mandated by statute and was instead instituted by the judge. This extension thus constituted a mandatory claim-processing rule, which the Seventh Circuit was able to adjudicate given when Hamer filed her appeal. The Supreme Court vacated the Seventh Circuit’s judgment and sent the case back to the lower court for additional proceedings.

The court also issued two summary judgments on Monday. Both cases were adjudicated without oral argument.

  • Kernan v. Cuero presented a case from California. In an agreement between state prosecutors and his counsel, Cuero agreed to plead guilty to various state crimes in which the maximum penalty was 14 years and four months. Prosecutors later discovered an error and permitted Cuero to withdraw his guilty plea. The state then presented Cuero an option: plead guilty to the amended charge, which carried a minimum sentence of 25 years, or go to trial. Cuero pleaded guilty. The Ninth Circuit Court of Appeals held that the California court was wrong to allow Cuero’s sentence to exceed the original 14 year, four month sentence, but the Supreme Court reversed, holding that its precedents did not require the state court to impose the lower sentence.
  • Dunn v. Madison presented a case from Alabama. Vernon Madison was convicted of capital murder of more than 30 years ago. In 2016, as his execution date approached, Madison petitioned the trial court for a suspension of his death sentence. He argued that several recent strokes had rendered him incompetent and thus unable to be legally executed. Both the trial court and a federal district court, on a habeas appeal, denied Madison’s claim. The Eleventh Circuit reversed the district court, holding that because Madison had no memory of his crime, it followed that he could not rationally understand the nexus between his crime and his sentence. The U.S. Supreme Court reversed that decision, holding that no precedent of the court “‘clearly established’” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime” and that the state court was not unreasonable in its determination that Madison was competent to be executed.

SCOTUS trivia

Presidential nominees confirmed to the U.S. Supreme Court are often an important legacy of the administration. 41 of our nation’s 45 presidents have had at least one nominee to the U.S. Supreme Court that was confirmed by the U.S. Senate.

Your question: which four presidents did not have any Supreme Court confirmations during their administrations? The answer is below.

Judicial motions

Confirmations

After confirming five Article III judges two weeks ago, the U.S. Senate did not vote to confirm any nominees last week. There are 19 Article III nominees awaiting a final confirmation in the U.S. Senate.

Nominations

President Trump was in Asia last week and did not submit any judicial nominations to the Senate.

Vacancies

There were no new vacancies last week.

Committee action

The Senate Judiciary Committee reported five judicial nominations last week. These nominees will be placed on the Senate’s executive calendar for a potential final vote on confirmation. The reported nominees were:

  • Greg Katsas, nominee to the U.S. Court of Appeals for the District of Columbia Circuit
  • Jeffrey Uhlman Beaverstock, nominee to the U.S. District Court for the Southern District of Alabama
  • Emily Coody Marks, nominee to the U.S. District Court for the Middle District of Alabama
  • Brett Talley, nominee to the U.S. District Court for the Middle District of Alabama
  • Holly Lou Teeter, nominee to the U.S. District Court for the District of Kansas

Current judicial vacancies

  • 140 judicial vacancies in life-term, Article III judicial positions
  • 46 pending nominations to life-term, Article III judicial positions
  • 16 future vacancies to life-term, Article III judicial positions

Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.

Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we maintain a list of individuals nominated by President Trump.

Riding circuit

Federal circuit courts are where over 99% of federal cases end. Here’s a sampling of what caught our eye in the circuit courts last week.

  • National Football League Management Council v. National Football League Players’ Association (Second Circuit): A three-judge panel of the Second Circuit heard arguments Thursday on a motion for an emergency injunction filed by Dallas Cowboys’ RB Ezekiel Elliott. The injunction was filed to place a hold on Judge Katherine Polk Failla’s October 30th order reinstating Elliott’s six-game penalty for violating the NFL’s personal conduct policy. A three-judge panel of the court comprised of Judges Christopher Droney, Dennis Jacobs, and Debra Livingston denied Elliott’s motion. The National Football League Players’ Association (NFLPA), the union which is representing Elliott in this case, filed an appeal of the panel’s ruling. While that appeal is pending, Elliott began serving his suspension yesterday.
  • Sonoku Tagami v. City of Chicago et al. (Seventh Circuit): A divided three-judge panel of the Seventh Circuit upheld a federal district court’s dismissal of Tagami’s claims. Tagami was cited in 2014 for violating a city ordinance that prohibited public nudity as she was taking part in “Go Topless Day 2014” in the city. Tagami filed a lawsuit in federal court claiming the ordinance both violated the First Amendment’s guarantees of free expression and constituted a gender-based discrimination in violation of the Fourteenth Amendment’s Equal Protection Clause. The circuit panel upheld the dismissal, holding that the ordinance restricted conduct, not speech. Judge Ilana Rovner disagreed, writing, “Public nudity may not always be “inherently expressive,” … but to declare, as a matter of law, that it can never be expressive is the quintessence of throwing out the free-expression baby with the non-expressive-conduct bath water.”
  • Gillman Roddy Long v. United States (Eighth Circuit): A three-judge panel of the Eighth Circuit upheld a lower court’s judgment in this case. During an interview with a FBI special agent regarding allegations of improper sexual contact with a minor,, Long was informed that “he was not under arrest ... and that he would be leaving at the end of the conversation.” At no point was Long under arrest or read his Miranda right. Long cut off questioning by stating: “I do not want to incriminate myself. I would like to stop talking.” At trial, the agent later testified about Long's statement on direct examination and was asked about it on cross examination and re-direct. The Government also used the statement during its closing arguments. Long's trial counsel did not object on any of these occasions. On appeal, Long alleged that he was denied his Sixth Amendment right to the effective assistance of counsel because of his trial attorney’s failure to object to the agent’s testimony. A federal district court denied his claim. In affirming that decision, the circuit panel held that because of “the complete lack of Eighth Circuit or Supreme Court authority on the subject it must be said counsel's performance fell within the wide range of professionally competent assistance.”

Legal briefs

  • Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia issued a gag order that prohibited "all interested participants in the matter, including the parties, any potential witnesses, and counsel for the parties ... from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case" in the federal trial of Paul Manafort, the one-time campaign manager for President Donald Trump (R) and Manafort's associate, Rick Gates. Manafort and Gates entered pleas of not guilty in response to an indictment on 12 charges related to special counsel Robert Mueller's investigations into Russian interference in the 2016 presidential election. The trial is tentatively scheduled to begin on May 7, 2018.
  • Judge Ricardo Martinez of the U.S. District Court for the Western District of Washington held that Daniel Ramirez Medina’s lawsuit against the government could proceed. Medina was arrested in February and was detained for six weeks. He had no prior criminal record and was participating in the Deferred Action for Childhood Arrivals (DACA) program. Ramirez filed a lawsuit alleging the government was wrong to strip him of protections under the program, but the Justice Department moved to dismiss the suit, arguing that immigration decisions concerning illegal immigrants cannot be challenged in regular courts and that the government has broad authority to decide whom to exclude from programs like DACA. Judge Martinez ruled against the government, holding that illegal immigrants have due process rights and that an alien’s DACA status could not be canceled without justification.
  • Sticking with DACA-related litigation, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York issued a ruling on Thursday that indicated federal courts had the authority to review ongoing lawsuits over the planned termination of DACA, rejecting the Justice Department’s request that they be dismissed. The Department claimed that these cases were non-justiciable because the decision to end the DACA program was committed to the Department of Homeland Security’s exclusive discretion by law. Judge Garaufis disagreed, holding that the Department’s position was unpersuasive. Litigation will proceed over the administration’s decision to end the program.
  • Judge Sarah Barker of the U.S. District Court for the Southern District of Indiana issued an injunction that prevents the Marion County sheriff’s office from detaining any person based solely on detention requests from U.S. Immigration and Customs Enforcement (ICE) absent a showing of probable cause or a warrant. The injunction was issued pursuant to a settlement between the sheriff’s office and the American Civil Liberties Union and was issued over the objections of the Justice Department. ICE detainers are requests to local law enforcement asking local authorities to detain individuals beyond the period in which they would otherwise be released (usually 48 hours) so that ICE has more time to conduct additional investigations into the citizenship status of the detained individual(s). The requests require no judicial authorization nor do the requests require a showing of probable cause.
  • Judge James Boasberg of the U.S. District Court for the District of Columbia dismissed, for the second time, a lawsuit filed by Judicial Watch and Cause for Action against the U.S. State Department. Both groups initially filed a lawsuit in 2015 claiming that former U.S. Secretary of State Hillary Clinton unlawfully removed federal records from the State Department and that the Department had failed to retain agency records, in violation of the Federal Records Act (FRA). Judge Boasberg dismissed that suit as moot, holding that the two groups were required to “allege an ongoing injury under the FRA, which they could do only if the Secretary and Archivist had been ‘unable or unwilling’ to recover emails that might be federal records.” The D.C. Circuit reversed, but on remand Judge Boasberg again ruled that the case was moot. He wrote, “Defendants and the FBI have recited chapter and verse of their efforts to recover Secretary Clinton’s emails. Those efforts went well beyond the mine-run search for missing federal records … and were largely successful, save for some emails sent during a two-month stretch. Even then, the FBI pursued every imaginable avenue to recover the missing emails. Plaintiffs, significantly, cast no real doubt on that conclusion. So now, when the Government avers that there are no enforcement steps left for the Attorney General, the Court takes such conclusion seriously. It thus finds that Defendants have ‘secur[ed] custody of all emails that the Attorney General could have recovered in an enforcement action,’ … such that the suit is moot.”

A judge you oughta know

  • Every week, we at Ballotpedia want to highlight a federal judge. In last week’s Bold Justice, we referenced President Donald Trump’s list of 21 individuals from which he would choose nominees to fill Supreme Court vacancies. To bring our readers up to speed with these names, we’re going to highlight each of these judges, starting with the most recent judge to join the federal bench. Meet Judge Allison Eid of the U.S. Court of Appeals for the Tenth Circuit, a judge you oughta know.

SCOTUS trivia answer

The answers to our SCOTUS trivia question this week are:

  • President William Henry Harrison
  • President Zachary Taylor
  • President Andrew Johnson
  • President Jimmy Carter

None of these four presidents had any confirmed nominees to the U.S. Supreme Court.

Looking ahead

Here’s what we’re looking ahead to this week:

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Why Bold Justice?

Well, there’s a story behind it, and we’re happy to credit Justice Samuel Alito for the inspiration. Back in October of 2014, Justice Alito joined his fellow Supreme Court Yale Law alumni, Justices Clarence Thomas and Sonia Sotomayor, for a panel as part of the law school’s alumni weekend (video below). During the discussion, the moderator asked the audience if they could guess which of the three justices on the panel served as the inspiration for a coffee house to name one of their blends of coffee, Bold Justice. Justice Alito responded, “Obviously, it’s me.”

He went on to tell the story of how, during his days as a Third Circuit judge, his law clerks participated in a Newark, New Jersey, coffee shop’s year-long promotion wherein if customers sampled every blend for one year, the customers could then create and name a blend of coffee. Justice Alito described Bold Justice as a blend that was “designed for about three o’clock in the afternoon if you’re working and you’re starting to fall asleep, if you have this, it will jolt you awake.” A blend of courts and coffee: sounds perfect to us!

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