Bush to Renominate 20 for Federal Judgeships

December 23, 2004. President Bush announced his intent to nominate twelve persons to be judges of the U.S. Court of Appeals. See, statement by President Bush. The twelve are as follows:

Judge Terrence Boyle (4th Circuit)
William Haynes (4th Circuit)
Justice Priscilla Owen (5th Circuit)
Judge David McKeague (6th Circuit)
Judge Susan Neilson (6th Circuit)
Judge Henry Saad (6th Circuit)
Judge Richard Griffin (6th Circuit)
William Myers (9th Circuit)
Judge William Pryor (11th Circuit)
Justice Janice Brown (DC Circuit)
Brett Kavanaugh (DC Circuit)
Thomas Griffith (DC Circuit)

President Bush also nominated all of these persons in the 108th Congress. He also nominated some as early as the beginning of his first administration. Senate Democrats have delayed, and in some cases, filibustered, these nominations.

Some names are not on this list. For example, Bush will not renominate Miguel Estrada for a seat on the DC Circuit. Bush nominated him in May of 2001. He withdrew from consideration in September of 2003. Although, President Bush may yet nominate him for the Supreme Court.

Estrada is a partner in the Washington DC office of the law firm of Gibson Dunn & Crutcher. He represented radio station owner Clear Channel in Prometheus Radio Project v. FCC (a petition for review of the Federal Communications Commission's media ownership rules).

Also, President Bush did not renominate Judge Charles Pickering for a seat on the Fifth Circuit. He briefly served on the Fifth Circuit with an recess appointment, and recently announced his retirement.

President Bush will not renominate Claude Allen for the 4th Circuit. And, he will not renominate Carolyn Kuhl for the 9th Circuit.

The 4th Circuit hears many technology related cases. Bush has just announced his intent to renominate Boyle and Haynes. Judge Terrence Boyle is Chief Judge of the U.S. District Court for the Eastern District of North Carolina.

William Haynes (at right) is General Counsel of the Department of Defense (DOD). He has previously worked as a partner at the law firm of Jenner & Block and as a VP and Associate General Counsel at General Dynamics Corporation. See, DOD biography.

Justice Priscilla Owen, renominated for the 5th Circuit, is an Associate Justice of the Supreme Court of Texas.

Judge David McTeague is a Judge of the U.S. District Court for the Western District of Michigan. Judge Susan Nielson is a state court judge in Michigan. Judge Henry Saad is a Judge of the Michigan Court of Appeals. Judge Richard Griffin is a Judge of the Michigan Court of Appeals. All four will be nominated for the 6th Circuit. Nominations to this circuit are currently controversial. Democrats seek to maintain control of this circuit. However, this circuit decides few major technology related cases.

William Myers has served as Solicitor of the Department of the Interior. Some liberal groups oppose his nomination on the basis of environmental issues. See for example, report [PDF] of People for the American Way. Myers previously worked for the National Lands Council and the National Cattlemen's Beef Association. He is also a veteran of prior judicial confirmation battles. He worked for former Sen. Alan Simpson (R-WO), who sat on the Senate Judiciary Committee, at the time of the Scalia and Rehnquist nominations in 1986, the Bork, Ginsburg and Kennedy nominations in 1987, and many contested Appeals Court nominations during the second Reagan administration. Then, he worked in the Department of Justice during the administration of the elder President Bush at the time of the Souter and Thomas nominations. He has written about judicial appointments.

Bush renominated Judge William Pryor for the 11th Circuit. President Bush nominated him in April of 2003. Bush gave him a recess appointment in February of 2004.

The DC Circuit is important for technology and communications law for several reasons. It hears most of the petitions for review of orders of the Federal Communications Commission (FCC), such as the FCC's recent triennial review order. It also hears petitions for review of orders of other agencies, such as the Federal Trade Commission (FTC). The DC Circuit also hears some appeals in major antitrust cases, such as the government antitrust action against Microsoft. And, it hears some major copyright cases, such as the Eldred case (regarding copyright terms) and RIAA v. Verizon (regarding DMCA subpoenas).

Senate Democrats have obstructed most of President Bush's nominations to this circuit. Bush has just announced his intent to renominate Brown, Kavanaugh, and Griffith.

While liberals may oppose the nomination of Justice Janice Brown because of their expectations regarding her future opinions on social issues, persons concerned about technology law may note that she wrote the August 25, 2003 opinion [54 pages in PDF] of the Supreme Court of the State of California in DVD Copy Control Association v. Bunner, a case regarding California trade secret law, free speech, and the publication of the DeCSS program in web sites. See also, Brown's California Supreme Court biography.

Brett Kavanaugh works for President Bush. He has, among other things, picked judges in the Office of White House Counsel. He has also worked for Ken Starr at the Office of Independent Counsel. He also worked for the law firm of Kirkland & Ellis, which is Starr's firm. Kavanaugh has represented Verizon and AOL. In one lawsuit in the Western District of Pennsylvania, GTE Internetworking Inc. and GTE Intelligent Network Services Inc. v. Tele-Communications Inc., Comcast, and At Home Corp, he represented GTE's internet subsidiaries in alleging that the bundling of high speed cable data transport with ISP service is a violation of the Sherman Antitrust Act. See, case summary. (GTE Internetworking had previously been known as BBN. GTE merged with Bell Atlantic, which entity then became Verizon.)

Thomas Griffith is General Counsel for Brigham Young University in Provo, Utah. He previously worked as legal counsel for the Senate, from 1995 through 1999, and for the Washington DC communications law firm of Wiley Rein & Fielding. See, story titled "Bush Nominates Griffith for DC Circuit" in TLJ Daily E-Mail Alert No. 895, May 11, 2004.

President Bush also announced his intent to nominate eight persons to be U.S. District Court Judges. These too are renominations. The eight are as follows:

Paul Crotty (Southern District of New York)
James Dever (Eastern District of North Carolina)
Robert Conrad (Western District of North Carolina)
Judge Thomas Ludington (Eastern District of Michigan)
Judge Daniel Ryan (Eastern District of Michigan)
Judge Sean Cox (Eastern District of Michigan)
Michael Seabright (District of Hawaii)
Peter Sheridan (District of New Jersey)

Paul Crotty is a senior executive at Verizon Communications. See, story titled "Bush Nominates Verizon's Crotty for Federal Judgeship" in TLJ Daily E-Mail Alert No. 972, September 8, 2004. While this is another renomination, Crotty may not face difficulty obtaining Senate confirmation. He was first nominated late in the 108th Congress. Also, he has the support of Sen. Charles Schumer (D-NY).

James Dever is a Magistrate Judge for the U.S. District Court for the Eastern District of North Carolina

Robert Conrad is the U.S. Attorney for the Western District of North Carolina.

Sean Cox, Daniel Ryan  and Thomas Ludington are a state court judges in Michigan.

Michael Seabright works in the U.S. Attorneys Office for the District of Hawaii.

Peter Sheridan is a attorney in the law firm of Graham Curtin & Sheridan.

Ralph Neas, President of People for the American Way, stated in a release that "If justices like these are appointed ... We can watch as our rights to privacy and civil liberties are eroded ..." See also, release of the Alliance for Justice criticizing President Bush's announcement.