Catholic Law’s Judicial Clerkship Opinion Writing Conference
10 Federal Judges and 30 Rising Law Clerks Participate
MARCH 10, 2021 | REPUBLISHED BY LIT: MARCH 10, 2021
On Feb. 26-27, 2021, Catholic University’s Columbus School of Law hosted 30 rising law clerks from across the country who will be serving in the chambers of Federal Circuit Courts, Federal District Courts, and State Appellate Courts in the upcoming year. While many events have been affected by the pandemic, the conference provided a welcome opportunity for learning for those in attendance.
The two-day, virtual conference provided the conferees with an opportunity to learn the particulars of judicial opinion writing — a unique conference focus undertaken by the Law School to serve both bench and bar. The first day of the conference included instruction from Judge Kyle Duncan of the Fifth Circuit Court of Appeals, Judge Paul Matey of the Third Circuit Court of Appeals, Judge Chad Readler of the Sixth Circuit Court of Appeals, and Judge Lawrence VanDyke of the Ninth Circuit Court of Appeals, who reviewed opinions to illustrate what goes into the opinion-writing process and took questions from the clerks about their strategic choices.
On the second day, the clerks were divided into breakout sessions, in which Judge James Boasberg and Judge Dabney Friedrich of the U.S. District Court for the District of Columbia; Judge John Gallagher and Judge Joseph Leeson of the U.S. District Court for the E.D. Pennsylvania; Judge Steven C. Seeger of the U.S. District Court for the N.D. of Illinois; and Judge Edward Meyers of the U.S. Court of Federal Claims reviewed and critiqued draft opinions the clerks had written on a problem derived from Catholic Law’s past Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition problem. This activity allowed the clerks to apply the skills they were learning and receive feedback. Conferees are all eligible for the CSL Prize in Judicial Clerkship Opinion Writing.
The conference ended with a panel discussion of current and former judicial clerks — Professor Joel Alicea, Will Haun ’12, Anika Smith ’20, and Jack Vivian ’17 — who took questions from the conferees about clerkship tenures in general.
The conference ended with a panel discussion of current and former judicial clerks — Professor Joel Alicea, Will Haun ’12, Anika Smith ’20, and Jack Vivian ’17 — who took questions from the conferees about clerkship tenures in general.
This event is the inaugural venture of this type by Catholic Law and is planned to take place every spring semester. For more information, contact Catholic Law Faculty Director of Bench and Bar Programs, Professor A.G. Harmon: harmon@law.edu.
A Shriner, A Mason and Texas Appellate Justice, D. Michael Wallach Wails on Pro Se Litigant Nicholson
As Nobles, we are a Potentate Masons. We have all taken the same Masonic obligation and learned the first lesson of Masonry, i.e., charity.
Fifth Circuit Judge Kyle Duncan is Transparent as the Burkes’ Watch His Moves.
Judge Dennis dissents quoting that the case majority (Judges Duncan and Elrod) relies upon was decided under Mississippi state law, rather than, as here, the federal common law.
Mufarrige: One of the CFPB’s Political Hires Who Gutted Payday Lending Rules Include this former Texas Auto Loan Shark With a Cease and Desist Past
We knew predatory lenders bought considerable White House influence by shoveling millions of dollars into Donald Trump’s campaign chest and personal business, Martin said. We didn’t realize they also had a man on the inside sabotaging the conclusions of career bureau economists.
‘Not qualified’ rating and accusation from American Bar Association moves Trump nominee Lawrence VanDyke to tears
ORIGINALLY PUBLISHED: OCT 31, 2019 | REPUBLISHED BY LIT: MAR 10, 2021
A federal appeals court nominee broke down in tears during a Senate Judiciary Committee hearing Wednesday, reacting to a scathing letter against his confirmation by the American Bar Association after it conducted 60 interviews and concluded that he was “not qualified” for the judicial branch.
Lawrence J.C. VanDyke grew emotional, with his face turning red as he defended himself against the letter’s conclusions that he could not treat LGBTQ litigants fairly.
“I do not believe that,” VanDyke said. “It is a fundamental belief of mine that all people are created in the image of God,” adding, “they should all be treated with dignity and respect.”
The rare outburst comes as the ABA is under continued attack from conservatives who question its methodology and argue that the group that has rated potential nominees for decades is biased against conservatives. It also comes as the President and Senate Republicans have pushed through a record number of judicial nominees as Democrats have questioned their qualifications.
President Donald Trump nominated VanDyke, who currently serves as a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice, last month for the post on the 9th US Circuit Court of Appeals. The President has repeatedly attacked the liberal-leaning 9th Circuit for rulings that have blocked administration initiatives, especially on immigration.
The ABA on Tuesday night issued a blistering analysis of the nomination.
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” William C. Hubbard, chair of the ABA’s standing committee on the federal judiciary, wrote. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”
So far, at least six of the President’s nominees have received a “not qualified” rating as the Trump administration and the Republican-led Senate has transformed the face of the judiciary by placing nearly 160 nominees on the federal bench including two Supreme Court nominees. But the letter triggered an angry backlash from supporters of the Harvard-educated lawyer who called it a hit job from a liberal-leaning group.
“The ABA is a liberal dark-money group, fronting for trial lawyers who donate millions of dollars to Democratic politicians,” said Mike Davis, who served as chief counsel for then-Judiciary Chairman Chuck Grassley and now runs the Article III project, a group that supports Trump’s nominees. Davis calls the ABA process “fatally flawed, as it is intentionally structured to couple liberal activists with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees.”
And Carrie Severino of the Judicial Crisis Network, which advocates for conservative nominees, charged that the lead evaluator of VanDyke, Montana attorney Marcia Davenport, previously contributed to Van Dyke’s opponent in a 2014 election for a seat on the Montana Supreme Court.
That criticism from this Congress has been muted of late, however, because Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, has praised the group’s role.
VanDyke is former solicitor general of both Montana and Nevada, but the ABA letter about his fitness for the federal bench was particularly harsh on his temperament. It notes that some interviewees raised concerns about whether VanDyke would be “fair to persons who are gay, lesbian or otherwise part of the LGBTQ community. “Mr VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” the letter said.
At the hearing, VanDyke said he was “disappointed, shocked and hurt” when he received the letter Tuesday night. He testified that he was “still processing” it and said he’d since learned that one of the ABA raters involved had donated to his opponent when he ran for a state judiciary race and ultimately lost. He said that during a three-hour meeting with the ABA as the group studied his record in connection with the nomination to federal court, he tried to respond to some of the negative comments lodged against him but the rater told him that she was in a “hurry” and that she wouldn’t let him fully respond.
Graham turned to another nominee, Patrick J. Bumatay, who was sitting next to VanDyke, and is also up for a seat on the 9th Circuit. During his opening statement, Bumatay had introduced his husband and their two children. Graham asked Bumatay if he thought VanDyke could be fair to him. Bumatay said he could.
Democrats on the committee, meanwhile, reacted with concern about the allegations in the letter.
Sen. Patrick Leahy called it “one of the most alarming he’d seen” after some 45 years in Congress. Sen. Chris Coons noted that the letter was “fairly damning” because it was based on interviews with people who had worked with the nominee over the years. Sen. Sheldon Whitehouse suggested that the ABA should be brought in to testify about the matter.
But Republican Sen. Mike Lee reacted furiously, claiming that the letter was “unfounded.” “If this man is not qualified, I don’t know who is,” Lee said. He added that the ABA no longer deserves a “seat at the table” because it has little transparency and cannot be seen as a neutral player when it comes to confirmation hearings.
“The time has come,” Lee said, for the White House and the committee to suspend the ABA’s involvement until there could be a thorough investigation. Texas GOP Sen. Ted Cruz said the group had found VanDyke to be guilty of “practicing law while conservative.”
Asked for comment, the ABA declined to comment on the record, but acknowledged that Davenport had made a $150 contribution to VanDyke’s opponent.
One ABA official said that the group was not going to comment on a $150 contribution made five years ago and pointed to the group’s rules that specify a member of the standing committee agreed not to participate in, or contribute to, any federal election campaign or engage in any partisan political activity on a federal level. The race in question was for the Montana state Supreme Court.
Importance of ABA ratings
The ABA ratings have been used to criticize Trump nominees who liberal critics fear, and conservatives hope that will provide major rulings on issues such as abortion, the Second Amendment and affirmative action. And if some of those cases make their way to the Supreme Court, conservatives will be content to know that the strong conservative majority with Neil Gorsuch and Brett Kavanaugh will be there to rule in their favor.
As of last week, the Senate has now confirmed five judges the ABA deemed unqualified: Leonard Steven Grasz, Charles Barnes Goodwin, Holly Lou Teeter, Jonathan Kobes, and Justin Walker. Goodwin and Teeter received support from Democrats, while the other three were approved only with Republican votes.
Overall, the setbacks have been few as Senate Majority Leader Mitch McConnell has pushed through a record number of appellate judges and often praises a legacy that will last decades.
Two Trump judicial nominees who have been called unqualified by the ABA – John O’Connor and Brett Talley – have withdrawn from consideration. But the setbacks for McConnell and Trump have been far outweighed by their successes in confirming scores and scores of judges. Their effort to reshape the judicial branch with young conservatives is perhaps their longest-lasting legacy.
Last week, Graham shepherded the confirmation of Justin R. Walker, 37, an assistant professor of law at the Brandeis School of Law at the University of Louisville, who received a “not qualified” rating from the ABA, to be a judge on a US district court.
A spokesperson for the ABA said that its rating process is done by a standing committee of the federal judiciary which is independent of the ABA leadership and does extensive peer reviews of the nominees writings and interviews with people who have worked with them. They have three criteria: integrity, temperament and experience and say that ideology does not factor in the evaluation at all.
The ABA rated Walker not qualified, it said in a letter, because he “does not presently have the requisite trial or litigation experience or its equivalent.” The letter stressed that the committee had no questions on his temperament or integrity and that in the future it felt like he had “great potential to serve as a federal judge.”
McConnell, for his part, called Walker “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.”
Another nominee the ABA has deemed unqualified is US district judge nominee Sarah E. Pitlyk, who serves as a special counsel at the Thomas More Society, a national public interest law firm that has litigated against Planned Parenthood and was nominated for the Eastern District of Missouri.
The Senate Judiciary Committee is scheduled to vote on her nomination Thursday.
The ABA also criticized her lack of trial and litigation experience.
“A nominee to the federal bench ordinarily should have a minimum of 12 years’ experience in the practice of law,” the committee wrote, although they said the guideline is “neither a hard-and-fast rule or an automatic disqualifier.” “However, Ms. Pitlyk’s experience to date has a very substantial gap, namely the absence of any trial or even real litigation experience.”
“Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal,” wrote William Hubbard, chair of the ABA’s standing committee on the federal judiciary. ‘She has never examined a witness. “Though Ms. Pitlyk has argued one case in a court of appeals, she has not taken a deposition. She has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter.”
That letter sparked a fight during Pitlyk’s nomination hearing before the Judiciary Committee. Sen. Ted Cruz, R-Texas, said the ABA has a “ridiculous record of behaving as a partisan mouthpiece when it comes to judicial nominations,” and that some members have donated to Democratic lawmakers.
Illinois Democratic Sen. Dick Durbin then remarked that Hubbard had donated to Graham in the past.
“A good man,” joked Graham. He later defended the ABA’s recommendations as “helpful,” calling it a “fine group” that was politically left in his view, but employed people whose judgment he trusts. Graham added that it failed to appreciate Pitlyk’s “non-traditional practice.”
Judicial Nominee Paul Matey Exemplifies the Breakdown of Bipartisan Norms in the Senate
Originally Published: January 28, 2019 | Republished by LIT: March 10, 2021
Dear Chairman Graham, Ranking Member Feinstein, and Committee Members:
On behalf of our hundreds of thousands of members and activists across the United States, People For the American Way opposes the confirmation of Paul Matey of New Jersey to be a federal judge on the Third Circuit Court of Appeals.
Matey served as a senior aide to Gov. Chris Christie from 2010-2015, offered Christie legal advice during a scandal-filled period that included Bridgegate, the use of Hurricane Sandy disaster relief funds for what was essentially a reelection commercial, and rewarding a major political donor with a $150 million no-bid contract.
With both home state senators Bob Menendez and Cory Booker opposed, Matey’s nomination exemplifies the breakdown in norms that once allowed the parties to work together while identifying highly qualified consensus nominees for the federal bench.
During the first two years of the Trump presidency, the Judiciary Committee held hearings for an unprecedented number of circuit court nominees opposed by one or both home state senators. When President Trump nominated Paul Matey, he did so without meaningfully consulting with Menendez and Booker. In addition, Chairman Grassley held a hearing over their objections, even though Booker was a colleague on the committee.
Home state senators often have knowledge of a nominee that might not be known to the White House, and that is certainly the case here. Matey worked as senior vice president and general counsel at University Hospital in Newark. During his tenure, the hospital had several major problems and scandals, including a safety grade that plummeted down to an F. As mayor of Newark at the time, Booker was deeply familiar with the situation, yet he was not meaningfully consulted by the White House. Grassley scheduled Matey’s hearing without first asking Booker to explain his opposition or giving his colleague a chance to meet with the nominee.
As the New Jersey senators wrote to Grassley on November 9, 2018,i after the hearing was scheduled:
[T]he Trump Administration never offered us a meeting with Mr. Matey. The Administration did not make an offer for such a meeting before his nomination in April 2018. The Administration did not do so during the period after his nomination. The Administration did not do so before a Judiciary Committee hearing on his nomination was scheduled. And it has not done so to date.
At Matey’s confirmation hearing,ii Booker urged Grassley to let him meet with the nominee to discuss his concerns in private before the public questioning:
I’m a member of your committee, sir. I know that you would want any judge from your great state that you would want at least the courtesy of having a meeting. Sir, I offer you right now, I will go with this nominee, sit with him in my office, to have that courtesy conversation.
Menendez, I don’t want to speak for my colleague, but I imagine that he would want that courtesy that any senator that is a member of your committee would want. We’ve never denied a meeting with this person.
As a duly elected senator from New Jersey, for a nominee that has served in my city that I was a mayor of is a matter of grace. I’m asking you to extend to me the opportunity before we have this hearing to have a more substantive conversation with this nominee. Would you please grant my — I will meet with him now in my office.
Grassley said no.
But the 116th Congress brings new leadership to the Judiciary Committee, and a chance to restore the norms shattered during these past two years. Chairman Lindsey Graham should not allow the committee to process Matey’s renomination without the consent of both home state senators.
Sincerely,
Marge Baker
Executive Vice President for Policy and Program
Democrats vow Judge Chad Readler will be 2020 issue
Murray and Schumer among Democrats blasting his role in targeting health care law
Originally Published: March 6, 2019 | Republished by LIT: March 10, 2021
Democrats say they will remember the Wednesday afternoon vote to confirm Chad A. Readler, one of President Donald Trump’s most contentious judicial nominees.
The 52-47 vote to install Readler on the 6th U.S. Circuit Court of Appeals in Ohio could easily be lumped in with many other Trump choices pushed through the Senate by Majority Leader Mitch McConnell of Kentucky.
But Readler’s connection to the Justice Department’s decision not to defend the 2010 health care law and its pre-existing condition protections in litigation led by the state of Texas struck a particular chord, as Senate Health, Education, Labor and Pensions ranking member Patty Murray said ahead of the confirmation vote.
“People across the country haven’t forgotten how they had to speak up and stop Republicans from jamming through their awful Trumpcare bill, which would have spiked premiums, gutted Medicaid, and put families back at the mercy of big insurance companies, who could jack up prices for people with pre-existing conditions,” the Washington Democrat said. “Because let’s be clear. Chad Readler’s nomination is the latest test of whether Republicans are serious about fighting for people’s health care — and every Republican who supports him is failing yet again.”
Minority Leader Charles E. Schumer seconded the message that Democrats would not let this one go.
“Can you imagine voting for a man that is so cold hearted that he doesn’t protect a mother who has a daughter or son with cancer, and the insurance companies cuts them off, and they have to watch their child suffer? Will our Republican colleagues actually vote for a nominee who feels that way — not just in his word, but in his action? It’s going to be remembered — this vote — for a long time,” Schumer said on the Senate floor. “A long, long time.”
And this time, one Republican senator echoed the argument made by Murray, Schumer and other Democrats.
Maine Sen. Susan Collins announced Tuesday that she would oppose Readler’s confirmation, citing his “role in the government’s failure to defend provisions under current law that protect individuals with pre-existing conditions.”
“I strongly objected to DOJ’s position to not defend the law, and it is telling that this position also concerned some other career attorneys in the Department. In fact, three career attorneys withdrew from the case rather than support this position, and one of those attorneys eventually resigned,” Collins said in a statement, adding that the Justice Department’s position in the case was simply “wrong and implausible.”
A number of outside groups that support the health care law that came into effect under President Barack Obama have seized on the nominee as the latest example of the GOP’s hostility to health care access, as has the political operation of Senate Democrats.
“The Republicans who support his nomination learned nothing from the shellacking their party suffered during the midterms, and they continue to set the stage for their own defeat in 2020,” said David Bergstein, a spokesman for the Democratic Senatorial Campaign Committee.
Readler is the second of three Trump appellate nominees on track for confirmation this week, following confirmation of Allison Jones Rushing by a 53-44 vote to a seat on the 4th Circuit. She faced questions about her relative inexperience.
Senators also voted 53-46 to limit debate on the nomination of Eric Murphy to another 6th Circuit seat shortly after confirming Readler on Wednesday.
And the confirmations are coming ahead of what seems like an inevitable move by McConnell and Senate Republicans to use the “nuclear option” to enact new Senate precedents that could sharply curtail the debate time — to up to two hours — for lower-level federal district judges, as well as a host of executive branch nominees.
Former Judiciary Chairman Patrick J. Leahy of Vermont again criticized Republicans on Wednesday for not honoring the “blue slips” from Democratic senators when it comes to appeals court nominees, which had been used for decades to indicate consent of home state senators for the confirmation process to move forward.
Ohio Democratic Sen. Sherrod Brown has blasted the Readler nomination. Republicans have argued that such blue slips were not often enforced when it comes to appeals court seats.
Senate Rules and Administration Chairman Roy Blunt highlighted the debate on Tuesday, pointing out that former Rep. John Fleming of Louisiana has been reported out of committee on voice vote twice, but had not yet overcome Democratic objections to be confirmed to a sub-Cabinet position in the Trump administration.
“This week, our leader is required to allocate 30 hours of debate time to confirm the deputy assistant secretary of Commerce for economic development,” the Missouri Republican said. “Most Americans would have a hard time remembering that full title, including me.”
