Senate Confirms 15 Judges for the Federal Bench

WASHINGTON (CN) – The Senate on Thursday confirmed 15 of President Donald Trump’s judicial nominees, including three to federal appeals courts.

Many of the nominees senators sent to the federal bench on Thursday evening received at least some bipartisan support, though several were controversial.

The Senate confirmed Third Circuit nominee David Porter 50-45, even though Porter did not receiving the approval of Senator Bob Casey, D-Pa., who said the White House chose Porter for the vacancy despite Casey making his objections to his nomination clear.

Under the tradition known as the blue slip, home-state senators have in the past been asked to sign off on a nominee before he or she receives a hearing before the Senate Judiciary Committee. Senator Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, has said, however, that he will no longer allow a single senator to hold up the nomination of a circuit court judge, whose rulings will impact multiple states.

Casey announced his opposition to Porter on the day Trump announced he intended to nominate the Pittsburgh attorney to the vacancy, calling Porter “outside the mainstream” of legal thought.

Porter has worked at the Pittsburgh firm Buchanan Ingersoll & Rooney since 1994, starting as an associate and rising to the position of shareholder in 2002.

Porter faced questions during his nomination process about articles he wrote commenting on the Supreme Court case that challenged the federal health care law’s individual mandate.

Porter wrote the justices should strike down the provision of the Patient Protection and Affordable Care Act that required most people purchase health insurance and later wrote that the court’s 5-4 decision upholding individual mandate “sits uneasily with the law’s history, structure and text.”

Porter told senators during his nomination hearing he wrote the opinion pieces as a lawyer giving his personal view of a live legal dispute and that he would have no problem following the court’s precedent if confirmed to the Third Circuit.

“Lawyers who aren’t judicial nominees are free to make comment, lawyers who are nominees are not so much at liberty to make comment,” Porter said at his nomination hearing in June. “And there’s a difference between, you know, giving advice and taking orders and in that instance I gave my advice and if confirmed it would be my turn to take orders.”

Porter earned confirmation in a 50-45 vote that broke along party lines, with Senators Dianne Feinstein, D-Calif., Martin Heinrich, D-N.M., Heidi Heitkamp, D-N.D., Bill Nelson, D-Fla., and Marco Rubio, R-Fla., not voting on any of the nominees confirmed Thursday.

Senator Pat Toomey, R-Pa., praised Porter in a statement Thursday, citing his reputation in Pennsylvania.

“I am confident that with his extensive experience and commitment to treating everyone fairly under the law, Mr. Porter will make a terrific addition to the Third Circuit bench,” Toomey said.

“David Porter’s published works reveal an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans,” Casey said in a statement after Porter’s confirmation.” “His record indicates that workers, families and everyday Pennsylvanians will be worse off with him on the bench.”

Ninth Circuit nominee Ryan Nelson earned one more vote than Porter did on Thursday, receiving confirmation 51-44.

Nelson has worked as general counsel at wellness products company Melaleuca since 2009 and was nominated last year to serve as solicitor for the Department of the Interior.

While Trump withdrew Nelson’s nomination to that position in May in the face of Democratic opposition, his confirmation hearing for the job focused some of the opposition to his nomination, which centered on his record on environmental issues.

At his hearing for the Interior Department job, Nelson testified that “the climate is changing and many factors influence that change” and Democrats and liberal groups have said he also helped fight environmental court challenges while with the Justice Department’s Natural Resources Division during the George W. Bush administration.

Nelson assured Senator Sheldon Whitehouse, D-R.I., in response to written questions submitted after his nomination hearing that he would be able to separate his personal opinions from his obligations as a judge when hearing environmental issues.

“The art of good judging is tethering yourself so closely to the rule of law and the Constitution, including any legal evaluation of scientific evidence in a specific case or controversy, that personal beliefs do not dictate the outcome of any issue or case,” Nelson wrote.

Senator Mike Crapo, R-Idaho, praised Nelson’s confirmation in a statement Thursday.

“Ryan has been widely recognized by his colleagues for his judgment and legal expertise and will serve our nation well on the Ninth Circuit,” Crapo said. “In his new position, Ryan will respect and be a servant of the law. He understands that a judge is responsible for interpreting and applying the Constitution and laws of the land as they are written, and not to be a maker of laws from the bench. I congratulate Ryan on his confirmation.”

The final circuit court judge the Senate confirmed on Thursday won overwhelming support, as the Senate voted 79-16 to send Judge Richard Sullivan to the Second Circuit.

Sullivan has been a judge on the U.S. District Court for the Southern District of New York since 2007. He also served for more than a decade as a federal prosecutor in New York City and spent time as general counsel for both Marsh & McLennan Companies and Marsh Inc.

Sullivan leaned on his judicial experience during his confirmation process, assuring senators his time already behind the bench has given him valuable perspective, experience and respect for precedent.

“I would say, senator, that I am not a blank slate on this,” Sullivan said at his nomination hearing in August. “I’ve got a body of work over 11 years and I think I’ve certainly demonstrated my willingness to follow precedent. Not just a willingness, it’s a recognition that our system only works when lower courts follow the precedents of higher courts.”

Senator Kirsten Gillibrand, D-N.Y., voted against Sullivan’s nomination on Thursday, though her fellow New York Senator Chuck Schumer voted to confirm him.

After approving Porter, Nelson and Sullivan to their respective circuit courts, the Senate then cleared a backlog of federal district court nominees.

Some of the nominees approved on Thursday have been awaiting confirmation for nearly a year, including Mark Norris, whom the Senate Judiciary Committee first approved in December 2017.

Norris has a history in politics, currently serving as the majority leader of the Tennessee State Senate. A member of the body since 2000, Norris’ time as a Republican state lawmaker gave Democrats several points at which to oppose his nomination.

Chief among these was Norris’ work on several anti-abortion laws, including an amendment to the Tennessee Constitution that would have given state lawmakers broad authority to write laws restricting access to abortion.

Like most judicial nominees, Norris did not answer many questions about his views on abortion, citing judicial ethical guidelines that caution judges against commenting on cases that might come before them. Instead, Norris assured senators he would respect precedent if confirmed.

“In my role as a legislator representing constituents, I cosponsored this bill, which was intended to ensure proper health standards at any facility at which [a] surgical procedure to terminate a pregnancy is performed,” Norris wrote to Senator Dianne Feinstein, D-Calif., in response to questions submitted in writing after his nomination hearing. “If I am fortunate enough to be confirmed, I would set aside both my own preferences and those of my former constituents.”

Norris cleared the Senate 51-44 on Thursday evening and will now serve on the U.S. District Court for the Middle District of Tennessee.

Nearly as controversial was Eli Richardson, who has worked at the Nashville, Tenn., firm Bass, Berry & Sims since 2010. Richardson took a break from practicing law from 1998 to 2002, when he became a special agent with the FBI. After leaving the agency, he spent two years as a federal prosecutor in New Jersey, taking the same job in Nashville in 2004.

Richardson faced questions during his nomination process about a sanction a Maryland federal court imposed on him after he filed a declaratory judgment action on behalf of a CEO whose company faced a sexual harassment lawsuit from a former employee.

The federal court dismissed the complaint, saying the suit would have allowed Richardson’s client to “harass and punish” the employee.

Richardson explained to senators that because the company had a default judgment entered against it in the original sexual harassment suit, the CEO he represented did not have an opportunity to refute the allegations. He told senators he never intended harm the employee who brought the lawsuit, but was simply representing his client through the only means available.

“After considerable investigation, I determined that my client’s denial of the allegations was factually and evidentially supported,” Richardson explained.   “Therefore, I researched the viable legal options available to the CEO to clear the evidentially unproven allegations. I identified a single possible avenue: an action for a declaratory judgment to the effect that the CEO had not engaged in the alleged conduct. I believed a claim for declaratory judgment to be colorable.”

The Senate confirmed Richardson, who was nominated to the U.S. District Court for the Middle District of Tennessee, 52-43.

Alabama Court of Criminal Appeals Judge Liles Burke earned confirmation to the U.S. District Court for the Northern District of Alabama 55-40 on Thursday, despite concerns from some Democrats over his rulings on the death penalty.

As a judge, Burke upheld a capital sentence for a convicted murderer who said prosecutors intentionally struck African American jurors from the jury pool and kept in place another sentence against a defendant with an IQ of 70 that came back on remand from the U.S. Supreme Court.

When he explained the decisions to senators, Burke said he was applying binding precedent from both the Alabama Supreme Court and the United States Supreme Court when deciding the cases.

Also earning confirmation were Georgia Court of Appeals Judge William Ray, nominated to serve on the U.S. District Court for the Northern District of Georgia, Michael Juneau, who will take a seat on the U.S. District Court for the Western District of Louisiana, and Thomas Kleeh, whom Trump tapped for a position on the U.S. District Court for the Northern District of West Virginia.

The remaining judges confirmed Thursday were confirmed unanimously, with Pennsylvania welcoming two new federal district court judges.

Judge Chad Kenney will serve on the U.S. District Court for the Eastern District of Pennsylvania, having  served on the Delaware County Court of Common Please since 2003.

Taking a seat on the U.S. District Court for the Western District of Pennsylvania will be Peter Phipps, who currently serves as senior trial counsel in the Justice Department’s Civil Division Federal Programs Branch.

Maricopa County Superior Court Judge Susan Brnovich will now take a seat on the U.S. District Court for the District of Arizona, while Cumberland County Superior Court Judge Lance Walker will now sit on the U.S. District Court for the District of Maine.

James Hanlon, nominated to a seat on the U.S. District Court for the Southern District of Indiana, and Jeremy Kernodle, who was tapped for a position on the U.S. District Court for the Eastern District of Texas, also earned approval Thursday night

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