Big Monday 2017: Here’s Gorsuch!

Traditionally, the last Monday in June is the last day of the Supreme Court’s Term for a given year. It’s also traditionally when the cases with the highest political profiles are decided. This year, Big Monday gives us a single big case, and most of the action happens on, or off, of another document called the “Order List.” This is usually something that gets shunted off to the side in media coverage. It consists of grants or denial of review for cases offered up for the next term, and summary disposition of other cases.

This year, we have one big case, and a bunch of things to note on the Order List. Because I’m pressed for time (I was in court all morning, and need to prepare for a client meeting in the afternoon) I’m going to be very, very brief in all of this so I beg your indulgences in advance if I gloss over or miss something important. Also forgive me if there are some errors and typos — I’m just putting this out there in a first draft to get discussion going.

The big case is Trinity Lutheran Church of Columbia, Inc. v. Comer. The basic facts are that a church run by a church in Columbia, Missouri sought to compete for a state subsidy to purchase a recycled-rubber surface for its playground. Article I, Section 7 of the Missouri Constitution provides:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher hereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Citing this section of the state Constitution, the grant application was excluded from competition; based on other criteria, it appears that this grant application would have qualified for one of the competitive awards other than this law. So the Church challenged the law, on Equal Protections and Free Exercise grounds. I predicted that the church would win, on Equal Protections grounds. I was wrong. The church won on Free Exercise grounds, and the Court never addressed the Equal Protections arguments at all, beyond blurring the intellectual ground between them by using Church of Lukimi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 533, which stated that the Free Exercise Clause “protect[s] religious observes against unequal treatment.”

The case has a few interesting notes to it. First, the vote split. Chief Justice Roberts wrote the majority decision, joined by Justices Kennedy, Thomas, Altio, Kagan, and Gorusch. You could fairly easily have predicted Justice Gorsuch joining this majority based on what we learned of his jurisprudence during his confirmation. But what’s Justice Kagan doing in there, siding completely and silently with her more conservative Brethren? Justice Breyer concurred in part of the reasoning and in the result. Only Justices Ginsberg and Sotomayor dissented; Sotomayor has the dissenting opinion. So what I read here is that the facts of this case cleaved the “liberal” bloc of Democratic-appointed Justices, probably due to the highly sympathetic plaintiff and the small stakes of the matter at hand. Justice Breyer’s concurrence notes that the subsidy program itself is totally secular and “…there is [no] administrative or other reason to treat church schools differently” than private secular or public schools, and he thought that brought Free Exercise into play. Sotomayor’s dissent would have held that any direct governmental assistance to a religious institution must come “with assurances that public funds would not [ever] ((I added in the “[ever]” in light of the dissent’s discussion of Tilton v. Richardson (1971) 403 U.S. 672 just preceding the quoted sentence.)) be used for religious activity, despite the religious nature of the institution.” (Slip op., dissent of Sotomayor, J. at 5).

Most interesting to me was Justice Clarence Thomas’ concurrence. Baked into Justice Thomas’ opinion is the simple assumption that the Free Exercise Clause applies to Missouri. Which would mean that it had been Incorporated by the Fourteenth Amendment. In the past, Justice Thomas has suggested that no such thing can happen, because in Elk Grove Unified School District v. Newdow (2004) 542 U.S. 1, Justice Thomas concurred at length arguing that the Establishment Clause of the First Amendment cannot logically be incorporated to the States because its raw text limits the power of Congress alone. I did not understand in 2004 when the opinion was announced, and I do not understand now, how the phrase “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” can possibly apply to only Congress when it comes to an Establishment but to all levels of government when it comes to Free Exercise. Part of that may be my own peculiar concept that both of these clauses aim at describing the same right (with the concept of a “right” defined as a limitation on the power of the government), a right of governmental non-involvement in religious matters, which is what leads me intellectually to embrace the concept of Endorsement as the means by which a governmental overstep in the realm of religion may be identified, see Lynch v. Donnelly (1984) 465 U.S. 668, 687-688, O’Connor, J., concurring (“The … more direct infringement [of the Establishment Clause] is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”). In 2017, I feel a bit be a lone wolf howling at the moon on that point; certainly today feels that way. Justice Thomas’ inconsistency on First Amendment issues has been the subject of some scholarly analysis already, but I’ll just note here that it superficially appears that Justice Thomas does not want to incorporate the First Amendment, except when he does. Ooh it makes me so mad.

Not yet decided are two immigration cases: first, there’s Jennings v. Rodriguez, concerning bond hearings for aliens seeking to enter the United States who are detained upon attempted entry, when those detentions last longer than six months. Also, Sessions v. Dimaya involves a facial challenge to 18 U.S.C. § 16(b)‘s definition of a “crime of violence” as being void for vagueness. Both cases were orally argued months ago, before Neil Gorsuch was confirmed to the High Court; it could be that right now the vote count is 4-4, so Court may be looking to delay decisions until next Term to allow Justice Gorsuch and his team to review the merits, or maybe ask for a new oral argument and/or circulate a request for supplemental briefs on some point that Gorsuch finds important to decide the cases.

Now, on to the Order List. Which is uncharacteristically fascinating today.

I begin by noting in passing that the very first Order of the day is a 5-4 order in Johnson v. Alabama, vacating a criminal conviction for misapplication of Brady v. Maryland (a case dealing with prosecutorial suppression of evidence). The Chief Justice, and Justices Thomas, Alito, and Gorsuch, ((I think I may need to program a text shortcut in my computer for “The Chief Justice, and Justices Thomas, Alito, and Gorsuch” as I suspect I’ll be typing those exact words a lot in the future.)) all would have denied certiorari and let the conviction stand. Very odd to see this sort of split, with a written dissent, on an Order, although it’s easy to see why it moves this way — four Justices are enough to grant certiorari, which is what happened here.

Second in Pavan v. Smith (starting at page 13 of today’s Orders) the Court, per curiam, ordered the state of Arkansas to begin listing both members of a same-sex couple having a child as the parents of that child on birth certificates. Previously, the state had only listed a birth mother, citing Arkansas Code 20-18-401(e) (“For the purposes of birth registration the mother is deemed to be the woman who gives birth to the child.”) But if you go to page 18 of the Order List, you’ll see a dissent from this per curiam opinion by Justice Gorsuch, joined by Justices Thomas and Alito, arguing that since the State of Arkansas recognizes full parental rights for the same-sex non-birth parent, a biology-based vital statistics regime is not clearly unconstitutional and therefore should, at least, have been fully briefed and argued rather than decided on a summary basis.

Immediately following that, we see again that same four-Justice bloc, although fissured into two separate opinions, in Hicks v. United States, addressing the effects of Dorsey v. United States on a sentencing under an overturned statute. I’m pretty much with Justice Gorsuch on this opinion: there is no doubt that given that the mandatory minimum sentences were held unconstitutional five years ago, the defendant is quite obviously entitled to a new sentencing hearing. But I find myself charmed by Chief Justice Roberts’ use of the phrase “no-brainer” criticizing Justice Gorsuch’s opinion that the matter could be decided summarily.

A bit later down the order list, there’s a denial of certiorari in Peruta v. California, an unsuccessful facial challenge to California’s prohibition against the open carrying of most firearms. Only two Justices dissented from the denial of certiorari, and the opinion was written by Justice Thomas, but he was joined in that dissent by Justice Gorsuch.

Justice Gorsuch took the time to comment on the denial of certiorari in Bay Point Properties, Inc. v. Mississippi Transportation Commission, too, addressing an issue of limitations of remedy in Takings cases.

Then we have two more marquee-level events. The last thing I’ll note from the Order List is Trump v. International Refugee Assistance Project, which is the companion case to Trump v. Hawaii, and this is the expected petition for certiorari by the Government attempting to defend the second version of President Trump’s “Muslim Travel Ban” order, more properly called “Executive Order 13780.” But going further than that, the Court dealt with the Government’s request to stay the injunctions against implementing the Order. This is formally a bit different, but has the same effect, as “reinstating” the order. And all nine Justices agreed that the injunctions against the Order should be stayed, and the Government allowed to enforce the order, as to people with no personal or professional linkage to the United States. Six Justices voted to keep the injunction in place as to people who have family or business reasons to travel to the U.S., which is the Order of the Court.

Three Justices would have stayed the injunctions in full, effectively reinstating the travel ban in its entirety, until the Court’s final decision on the merits. Can you guess who those three Justices were? (Switch to Mister Rogers voice) I bet you can. (Now switch to beer-commercial-sports-announcer voice.) If you said “Thomas, Alito, and Gorsuch,” you made the right call!

And finally, last week there were rumors aswirl throughout Washington that Justice Anthony Kennedy would announce his retirement from the Court today. He didn’t, and really, no one ought to be surprised by this. And with that, I need to get ready for my client meeting, so enjoy your discussion of what we learned today, particularly about Justice Neil Gorsuch.



Another Slate Of Nominations

To the Eighth Circuit: Ralph R. Erickson, currently U.S. District Judge for the District of North Dakota. Previous service in North Dakota state trial court. J.D. from University of North Dakota.

To the Tenth Circuit: Allison H. Eid, Justice of the Colorado Supreme Court. Former Solicitor General of Colorado. Holds tenure at University of Colorado School of Law. Arnold & Porter. J.D. from University of Chicago.

To the Court of Appeals for Veterans Claims: (1) Michael P. Allen, professor of law and director of Stetson University College of Law’s Veterans Law Institute. Ropes & Gray. J.D. from Columbia. (2) Amanda L. Meredith. Staff counsel for U.S. Senate Committee on Veteran’s Affairs; has worked in administrative capacity for this court. J.D. from SUNY-Buffalo. (3) Joseph L. Toth. Associate Federal public defender in Eastern District of Wisconsin. Navy JAG, formerly stationed with the 10th Mountain Division in Afghanistan. J.D. from Ave Maria School of Law.

To the U.S. District Court for District of Columbia: (1) Dabney L. Friedrich. Commissioner on U.S Sentencing Commission, counsel to President George W. Bush and Senator Orrin Hatch. Federal prosecutorial service for DoJ at large, E.D. Virginia, and S.D. California. J.D. from Yale. (2) Timothy Kelly. Counsel to Chuck Grassley on national security and crime. Federal prosecutor for D.C. District, Arnold & Porter. J.D. from Georgetown. (3) Trevor McFadden. Currently prosecutor in DoJ. Previous work in compliance department at Baker & McKenzie. Was a deputy sheriff. J.D. from Virginia.

To the United States Court of Federal Claims: Stephen S. Schwartz. Schaerr Duncan LLP, previously at a public interest firm and Kirkland & Ellis. J.D. from University of Chicago.

Self Defense Doctrine Gone Wrong

Courts care about fine distinctions in the rules in a way that the other branches of government generally do not. They let people get off on technicalities, and they have to defend their actions with sometimes very abstract reasoning. Sometimes, though, this can get them in trouble.

Self defense is an area where the core rule is very old, and in theory uncontroversial. At its most basic, self defense is a justification for homicide or assault, meaning that somebody who acted in self defense is not legally culpable at all. It traditionally has four elements: (1) the defendant must have believed she or another person was in immediate danger of death or serious bodily injury, (2) that belief must be reasonable, (3) the defendant must not have been the aggressor in the altercation that gave rise to this danger, and (4) the amount of force used by the defendant must have been reasonably necessary to avert the danger. So far, so good. We can fight over things like the duty to retreat, but the bare bones of the rule are fairly straightforward.

The trouble begins with Paul Eugene Lyons, (and also a series of similar defendants, but it sounds more dramatic this way). Lyons was in his home when several police officers arrived at the door and attempted to execute a search warrant. Lyons testified that he didn’t hear them identify themselves as police and thought that his home was being invaded, so he fired through the door at the people battering it down. One officer was struck and killed, and Lyons was charged with his murder. He tried to claim self-defense at trial, but the trial court refused to instruct the jury on self defense. He was convicted and appealed. When the case reached the NC Supreme Court, they were bound by a standard of review that was very forgiving to Mr. Lyons. Defendants are entitled to jury instructions on legal defenses if any reasonable jury could side with them, even if all seven justices on the court think that said defendant is full of it.

So rather than send the case back down for a new trial, they found that he couldn’t possibly have fired his gun in self defense. Because Lyons fired through a closed door, he couldn’t see his target, meaning he couldn’t be shooting with specific intent to kill one of the intruders. And because he hadn’t formed a specific intent to kill one of them, the court reasoned that he could not have determined that it was reasonably necessary to shoot to kill, because he didn’t, in fact, shoot to kill. Thus no element #4 of self defense, no jury instructions, and no successful appeal for Mr. Lyons. NC courts went on to apply this reasoning to all sorts of homicide cases: defendants who meant to fire warning shots but accidentally hit someone weren’t entitled to self defense instructions, nor were defendants who claimed they fired their guns accidentally.

This puts North Carolina in the awkward place of having a law of self defense that actively punishes people for attempting to defend themselves without killing their antagonists. Defendants that shoot to kill get self defense instructions, those that attempt to fire warning shots, shoot wildly towards their attackers, or merely brandish a weapon do not. While someone worried about the public policy implications of this law might not want to punish people for resorting to deadly force too quickly, it is nonsensical to penalize defendants for trying too hard to reach a bloodless outcome.

Hopefully this will get corrected soon. Another defendant, Omar Cook, was convicted for firing a gun through a closed door at police executing a search warrant in 2014. Unlike Lyons, his bullet didn’t hit anyone, so he was only convicted of assault on a law enforcement officer. His case is currently awaiting a decision by the state Court of Appeals. Should he lose, as seems likely, there will be a chance for the State Supreme Court to hear the case and clean up its mess.

Hero of the Day: Debra H. Lehrmann

Justice Debra H. Lehrmann, originally from private practice in Fort Worth and recently re-elected to the Supreme Court of Texas, is a hero for her opinion in Kinney v. Barnes (Tex. 2014) 57 Tex. Sup. J. 1428:

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

Which actually is a thoroughly unremarkable condensation of the law. But as Marco Randazza points out, footnote 7 of her opinion (appearing on page five of the slip opinion, linked above) is a marvel:

(7) The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).

Now, it stands to reason that this originally came from one of her law clerks, but Justice Lehrmann let it stay in her opinion, which is why she’s the hero. So now, you can legally cite to Walter Sobchak, thus: Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

Mirabile dictu!

Hero of the Day: Neal Katyal

As if a year of serving as Acting Solicitor General of the United States weren’t enough, Neal Katyal of Hogan Lovells has argued seven cases before the U.S. Supreme Court this year. That’s nearly one in ten cases on the High Court’s entire docket. I presume the Court’s docket will expand next year now that there are no more vacancies on its bench, but this is still very impressive. He has a total of 34 oral arguments before the Supreme Court under his belt, most remarkable among them prevailing in the landmark case of Hamdan v. Rumsfeld. If he gets one more in his career (he’s 47 years old) he will break Thurgood Marshall’s record.

On top of his practice, Katyal teaches at Georgetown Law School (Constitutional Law, Civil Procedure, and National Security Law), and has several scholarly publications to his credit. He authored what I thought was the most mature reaction of anyone on the left side of America’s political divide to the nomination of Neal Gorsuch to the Supreme Court.

The honor being the nation’s “top lawyer” rotates and is always up for debate. At the moment, Neal Katyal looks like a must-be-in-the-discussion candidate, at minimum.

“Judgment” is Not Just the Name of a Document

[The courts] may truly be said to have neither force nor will, but merely judgment….”
—Alexander Hamilton, Federalist no. 78

On behalf of our deserving and longsuffering client, my firm recently won reversal of a $5.1 million judgment that was given to a successor trustee on a missing promissory note. Missing, as in, the trustee had never seen it, and never even thought to look for it — though his predecessor did make off with at least $2 million in trust assets (not including later funneling cash to Liechtenstein and spending a night in jail for contempt). This resulted in much unplanned excitement at a trial that was supposed to be simply about whether and how much was owing on the note. The trial court largely ignored the fact the note was missing. The Court of Appeal seemed to have little trouble concluding that that wasn’t right, and sent it back for retrial.

We couldn’t be happier to see justice for our client — who had already paid the note before the former trustee sued him as part of her looting spree.

I won’t rehearse details here (though you can read a summary here), but it is taxing — to the client, certainly, but even to counsel — to await the correction of such a truly baseless decision. Everyone intuitively understands checks, governed by the same rule as notes, are rather useless in Xerox form, and it ought to be as obvious to a judge that ruling otherwise requires findings — and extraordinary findings at that. Supporting a judgment with findings is the essence of the judge’s power. The peculiar power of the Court – “hav[ing] neither FORCE nor WILL, but merely judgment” (Federalist #78) – must support itself, if at all, by prevailing upon reason.

For that matter, a case currently awaiting decision by the California Supreme Court goes to just this question: when a court omits findings, is the error reversible per se? Or must the appellant establish the error resulted in a “miscarriage of justice” as the state constitution generally requires? (Our appellate decision avoided this question by finding that the omissions were indeed prejudicial.) The answer seems a rather obvious “yes” from my vantage: in a bench trial, the judge steps into the empyrean role otherwise played by the jury, and thus a judge’s decision without findings is no less infirm than a sentence without a verdict. The very act of giving reasons helps ensure a decision is rooted in facts and law rather than subjective preferences. As Justice Cardozo wrote, a reviewing court “must know what [a] decision means before the duty becomes [the court’s] to say whether it is right or wrong.” (United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (1935) 294 U.S. 499, 511.)

There are abiding reasons for requiring judges to explain themselves. It is captured, for one, in the very idea of a common law — a law that develops by way of a conversation taking place through judge’s considered opinions over time. And it is captured also in the very idea of the rule of law, particularly in the manner in which a judge’s decision — ostensibly affecting only the parties before it — also becomes, by ways mysterious, a generally accepted “law.” Just how is it that the resolution of a discrete dispute between two peculiar parties become “law”? And in the case of the U.S. Supreme Court, “law of the land”?

Abraham Lincoln’s first inaugural address touched on this. He defended his rejection of the ignominious decision in Dred Scott not merely because that decision was particularly evil, but because court decisions bind principally the parties before them — if they should travel further, they must pay their own freight, in the currency of decency and soundness of judgment, to the judicious mind of the public. To require any less, Lincoln held, would convert the courts’ peculiar power from merely judgment to FORCE, and WILL:

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

There are no factual comparisons to Dred Scott here, of course, but the same principle applies to both momentous civil-rights cases as to common commercial cases: A court cannot issue a judgment without reasons that have some purchase on the public mind. A historic struggle ensued to undo the damage of the Dred Scott decision’s impressive compilation of densely packed but ultimately sophistic reasoning. Would that it have simply ruled: “Because we said so,” undoing its work would have proved less burdensome.

But whether our courts offer up elaborate casuistry or terse ipse dixit to support their decisions, it is no less important to inveigh against it. Word play and edicts as substitutes for the exercise of giving reasons is not only an affront to due process, but an indulgence in an Orwellian destabilization of language. It is toward “the view,” in the words of Joseph Epstein, “of intellectual order as a form of oppression,” terminating, ultimately, in nihilism and despotism.

In awaiting the reversal, I experienced a glimpse of understanding — imagining: were the appellate court to hold that the rules may be suspended at whim, and without reason — this must be how minds, subjected in such ways to long periods of epistemic authoritarianism and obfuscation and doublethink, become lost.

Try this trick and spin it
Your head will collapse
But there’s nothing in it
And you’ll ask yourself

Where is my mind?

Fortunately, courts generally do supply reasons, given enough persistence. “Because I said so” should never be enough — even when reduced to a judgment. It is encouraging to remember that is still the case.

[show_avatar email=299 align=left]–Tim Kowal practices law in Orange County, California.

Hero of the Day: Zainab Ahmad

Meet counterterrorism prosecutor Zainab Ahmad of the Eastern District of New York:

Ahmad’s summation was three and a half hours long. She remembers looking at her notes only once. James McGovern, who was the chief of the Eastern District’s Criminal Division until last year, told me, “It was the summation of a lifetime.” Ahmad had called former Al Qaeda operatives; British secret agents; experts in explosives, computer forensics, Arabic, Pashto, and Al Qaeda’s structure; the F.B.I. agent who secured the bin Laden documents; even a Norwegian detective who could link, through shared e-mail accounts, the Manchester plot with a plot to bomb a Copenhagen newspaper office. Ahmad’s ability to connect with the jury was critical. “You want to project: I am the most reasonable person in the room,” McGovern said. “Zainab excels at that. Jurors believe that they would see eye to eye with her about things. People want to say, ‘That really impressive person, I want to be in agreement with that person.’ ” Ahmad’s proposition about Naseer was simple, in the end: “This man wanted to drive a car bomb into a crowded shopping center and watch people die.” After one day of deliberation, the jury agreed. Naseer was convicted on all counts and, in November, 2015, he was sentenced to forty years.

Zainab Ahmad, Assistant U.S. Attorney, E.D.N.Y.

I submit Ms. Ahmad as a hero for several reasons. Obviously, for prosecuting terrorists, the criminals we fear the most. This is tough work, requiring a lot of travel, a lot of cross-cultural knowledge. But also for doing it in regular courts, proving that the regular U.S. court system is capable of rendering substantial justice even in cases where sensitive issues of national security come up. And, for doing it all at a very high level of skill (she hasn’t lost a jury trial yet) and a relatively young age (the article indicates she’s 37 years old) And maybe most of all, for being able to leave it at the office when the day is done:

Ahmad seems barely to share her intensity (or much else) about her work with her nonwork friends. “She’s so offhand about it,” the freelance writer said. “She doesn’t let her work hang over her like a pall. Last year, she had just finished some very tricky case. Then we went out and sang karaoke.”

The last few paragraphs of the profile, her thoughts about what happens if a jury were to return a not guilty verdict in one of her cases, are particularly worthy of consideration.

Maybe a hero is someone whose conduct and actions are an example the rest of us should aspire to follow. Or, maybe a hero is someone whose deeds make a difference, who changes things for the better. By either definition, Zainab Ahmad is a hero.

Slate of Ten Judicial Nominees

Ten federal court nominations were made today by President Trump. I see three things they all have in common: good-to-great academic credentials, age in their forties, and some palpable connection to the Federalist Society or other right-of-center legal groups. They are:

  • Michigan Supreme Court Joan Larsen, 48 years old, nominated to the Sixth Circuit. First in her class from Northwestern Law, also teaches at Michigan Law.
  • Minnesota Supreme Court Justice David Stras, 42 years old, nominated to the Eighth Circuit. Kansas Law, also holds an MBA from Kansas, taught at the University of Minnesota Law School.
  • Notre Dame Law School professor Amy Coney Barrett, 44 years old, nominated to the Seventh Circuit. Former executive editor of Notre Dame Law Review, clerked for Antonin Scalia.
  • John Bush, from private practice in Kentucky (Bingham Greenebaum Doll in Louisville) to Sixth Circuit. I can’t determine his age right away, but he’s got a very good resume, including taking his J.D. from Harvard cum laude in 1989 (suggesting that he’s in his late forties).
  • Keven Newsom, from private practice (Bradley Arant Boult) to the Eleventh Circuit. Approximately 44 hours old. Formerly served as Solicitor General of Alabama and clerked for David Souter and before that, Diarmuid O’Scannlian, then one of the most “conservative” members of the Ninth Circuit. Harvard Law, magna cum laude, and “one of the country’s best appellate advocates.”
  • Damien Schiff, from public interest practice (Pacific Legal Foundation) to the U.S. Court of Federal Claims. USD Law, magna cum laude, clerking experience at the Court of Federal Claims. Age not readily determinable but again appears to be in his 40’s.
  • Dabney Freidrich. Formerly served on the U.S. Sentencing Commission, as Associate White House Counsel in the George W. Bush Administration and counsel to Orrin Hatch. Also served as a federal prosecutor for seven years. Took a law degree from Oxford before getting his J.D. at Yale. As for his age, I can tell that he took his undergraduate degree in 1988.
  • U.S Magistrate Judge Terry Morrer, nominated to District Judge in the Middle District of Alabama, where he currently serves as Magistrate Judge. J.D. from University of Alabama Law School, made Colonel in the Alabama National Guard, which saw him deploy to Iraq and Kuwait as part of Operation Iraqi Freedom (where he severed as a Judge Advocate and earned a Bronze Star). He may be the oldest nominee today; he took an associate’s degree from an Alabama military institute in 1981.
  • Judge David Nye, Judge of the Sixth Judicial District of Idaho, nominated to the District of Idaho. Judge Nye was nominated to this Court by President Obama, but didn’t receive a vote. J.D. from the J. Reuben Clark Law School, associated with BYU, in 1986. He had 20 years in private practice doing mostly insurance defense and medical malpractice.
  • University of Oklahoma Law School, Assistant Dean of Students Scott Palk, nominated to the Western District of Oklahoma. Nineteen year career as a prosecutor at both the state and federal level; as an AUSA helped handle and draft policy for a variety of national security issues. Took his J.D. from University of Oklahoma in 1992.

It seemed to me during the campaign that if elected, Donald Trump would have basically outsourced judicial nominations to the Federalist Society and the Heritage Foundation, but the quibble there would be with lawyers who align left of center not liking the likely ideological bent of those nominees. There’s little reason to quibble any of these nominees’ academic or professional credentials, however: these are all reasonably credible backgrounds from which judges might be selected.

There are still over 100 empty seats throughout the Federal judiciary. This, however, is a decent step towards filling them.

Hero of the Day: Jill Zwagerman

On behalf of discrimination and wrongful termination client Jane Meyer, formerly the assistant athletic director at the University of Iowa, Des Moines lawyer Jill Zwagerman persuaded a jury drawn from a traditionally conservative jurisdiction to award $1.43 million in compensatory damages and to make findings that will support a $2 million post-trial additur. Verdicts like this don’t come along so often and this comes with a high-profile client. Ms. Zwagerman has every reason to be exceptionally proud today, notwithstanding the functional certainty of appeal. She’s an inspiration to employment lawyers nationwide.