kevin AFJ NOMINEE REPORT AFJ newsom U.S. Court of Appeals for the Eleventh Circuit WWW.AFJ.ORG CONTENTS Introduction, 1 context of newsom’s nomination, 1 biography, 2 legal career, 3 Death Penalty, 3 Civil Rights and Civil Liberties, 5 Private Practice, 7 Additional writings, 8 Conclusion, 11 WWW.AFJ.ORG PAGE 1 INTRODUCTION CONTEXT OF On May 8, 2017, President Trump nominated Kevin Newsom to the Court of Appeals for NEWSOM’S the Eleventh Circuit. Newsom’s nomination was only possible because Senators Jeff Sessions and Richard Shelby refused to return NOMINATION their blue slips for Abdul Kallon, currently a On October 26, 2013, Judge Joel Dubina federal district court judge in Alabama, whom took senior status and a vacancy arose President Obama nominated in February 2016. on the Court of Appeals for the Eleventh Judge Kallon would have been the first African Circuit. Each state in the circuit, which American to sit on the Court of Appeals from comprises Alabama, Georgia, and Florida, Alabama, yet did not even receive a hearing had at least one Republican Senator because the Judiciary Committee followed for the entirety of President Obama’s custom and did not act without the blue slips. presidency. In Florida and Georgia, senators were willing to work with the Newsom has served as Solicitor General President, and ultimately Beverly Martin of Alabama under now-federal judge (and (Georgia), Adalberto Jordan (Florida), extremely controversial nominee) William Pryor. Robin Rosenbaum (Florida), Julia Carnes As Solicitor General, Newsom had a record of (Georgia), and Jill Pryor (Georgia) were defending questionable death penalty practices confirmed to the court. in Alabama and advancing arguments which would curtail civil rights, including efforts to In contrast, Alabama’s senators, most limit critical protections under Title IX. As an notably now-Attorney General Jeff attorney, he has fought efforts by everyday Sessions, refused to work with President Americans trying to remedy wrongs committed Obama to fill seats.1 Early in 2016, Senator against them. He also has written critically Shelby dropped any pretext of cooperating of substantive due process, an essential with the President. He said of vacant constitutional doctrine for women’s rights and judgeships in Alabama, including on the LGBTQ rights, for example. Eleventh Circuit: “Let’s see if we can elect a conservative Republican and fill all those Given his record, Newsom, a member of the seats with Republicans.”2 Federalist Society, must demonstrate at his hearing that he can be a fair and apolitical Nonetheless, after years of Alabama judge rather than a far-right ideologue senators rebuffing the President’s efforts committed to an agenda of rolling back long- to negotiate on the Eleventh Circuit cherished constitutional rights. vacancy, in February 2016 President Obama nominated Abdul Kallon, a federal 1 Brandon Moseley, Shelby Speaks to MARC in Vestavia, Alabama Political Re- porter (Nov. 10, 2016), http://www.alreporter.com/shelby-speaks-to-marc-in-vestavia/. 2 Mary Troyan, New federal judges for Alabama unlikely, Montgomery Advertiser (June 30, 2016), http://www.montgomeryadvertiser.com/story/news/politics/2016/06/30/ new-federal-judges-alabama-unlikely/86565478/. WWW.AFJ.ORG PAGE 2 judge in the Northern District of Alabama, to fill the vacancy. Judge Kallon would have been the first African-American judge to sit on the biography Eleventh Circuit from Alabama, a potentially historic accomplishment in a state that has Kevin C. Newsom was born on September long been afflicted by slavery, segregation, 22, 1972 in Birmingham, Alabama. He and discrimination. Both Senators Sessions received his bachelor’s degree from and Shelby had previously supported Samford University and his J.D. from Kallon’s nomination to the Northern District of Harvard Law School, where he served Alabama. Senator Sessions praised him for on the Harvard Law Review.5 Following “his distinguished law career” as well as his law school he clerked for Judge Diarmuid “impressive legal credentials.” He spoke of his O’Scannlain of the U.S. Court of Appeals 3 integrity, judgment, and legal ability.” When for the Ninth Circuit and Justice David Judge Kallon was nominated to the Eleventh Souter of the U.S. Supreme Court.6 Circuit, the ABA rated him unanimously well- qualified. Neither senator questioned Judge Newsom began his career in private Kallon’s record as a district judge nor raised any practice as an associate in Covington & 4 issue with his legal work. Burling’s appellate group in Washington, D.C, spending two years at the firm after Yet both senators refused to return their his Ninth Circuit clerkship and another two blue slip on Judge Kallon’s nomination to the after clerking for Justice Souter.7 Newsom Eleventh Circuit. And, consistent with the served as Solicitor General of Alabama for practice during the entire Obama presidency, four years from 2003 to 2007.8 Afterwards, in which there were no exceptions, no hearing Newsom returned to private practice as a was held on Judge Kallon’s nomination due to partner at Bradley Arant Boult Cummings the lack of blue slips. Because the Senate did LLP in Birmingham, where he has built a not act, Judge Kallon’s nomination was returned successful appellate practice. He was to the President when the Senate adjourned in appointed in 2011 and 2014 by Chief January 2017. Justice John Roberts to serve on the Advisory Committee on the Federal Rules As Senator Shelby admitted, the reason of Appellate Procedure.9 that he and Sessions did not act on Judge Kallon’s nomination was purely partisan, so a Newsom has been a member of the “conservative Republican” could fill the seat. Federalist Society for almost two decades. And, indeed, on May 8, 2017, President Trump He has served as the President of the nominated Kevin Newsom to the vacancy. Birmingham Lawyers Chapter and been a member of the Executive Committee for Federalism and Separation of Powers. In addition to the Federalist Society, Newsom 3 Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 5 See Kevin C. Newsom, Bradley, https://www.bradley.com/people/n/newsom-kev- 11th Cong. (2009) (statement of Jeff Sessions, Sen. Ala. on Nominee Abdul Kallon), available at in-c. https://www.congress.gov/111/chrg/shrg63004/CHRG-111shrg63004.htm. 6 Id. 4 See American Bar Association, Rating of Article III and Article IV Vacancies (Jan. 3, 2017), 7 Id. available at https://www.americanbar.org/content/dam/aba/uncategorized/GAO/WebRatingC- 8 Id. hart114.authcheckdam.pdf. 9 Id. WWW.AFJ.ORG PAGE 3 is a member of the U.S. Chamber Litigation As Solicitor General, Newsom was Center and the American Law Institute.10 He responsible for all appeals in which has also served as an adjunct professor Alabama was a party before the U.S. at Georgetown University Law Center, the Supreme Court, the Alabama Supreme Cumberland School of Law, and Vanderbilt Law Court, and the U.S. Court of Appeals for School.11 the Eleventh Circuit. He was responsible for drafting and supervising all briefs and The process for how Newsom was selected amicus briefs and for presenting oral also bears noting. Chairman Grassley, in laying argument in those courts.14 In Alabama, the groundwork for potentially overturning the the Solicitor General serves at the pleasure blue slip tradition that kept Judge Kallon from of the Attorney General. Indeed, Newsom even receiving a hearing, has said that “[i]t’s was personally hired by William Pryor, much more a White House decision on circuit currently the only active Alabama judge judges.”12 Newsom’s nomination belies that on the Eleventh Circuit Court of Appeals.15 statement. In fact, Senator Shelby’s staff first Shortly after hand-picking Newsom to approached Newsom, and he first interviewed serve as his Solicitor General, Pryor was with Senators Sessions and Shelby, who one of President Bush’s most controversial recommended him to the White House. The nominees. He was declared “unfit to judge” White House did not interview him until several by both the Washington Post and the months later.13 Atlanta Journal Constitution (newspapers do not normally take a position on judicial nominations, but Pryor’s extreme record was impossible to ignore).16 Among his long LEGAL CAREER list of outrageous statements, Pryor called Roe v. Wade the “worst abomination in the Newsom has had three different positions history of constitutional law”17 and wrote in as a practicing attorney: as an associate at an amicus brief that “states should remain Covington & Burling for four years, as the free to protect the moral standards of Solicitor General of Alabama for four years, and their communities through legislation that as a partner at Bradley Arant for a decade. His prohibits homosexual sodomy.”18 most important legal work, almost exclusively focusing on appellate litigation, can likewise be I. DEATH PENALTY split up into three major buckets: death penalty cases, civil rights litigation, and pro-corporate From 1977 to 2013, Alabama sentenced defense work. He has a mixed track record more people to death per capita than any before the Supreme Court, having lost three of other state in the nation.19 As Solicitor the four cases he has argued. 14 See Solicitor General Division, State of Ala.: Office of the Att’y. General, http://www.ago.state.al.us/Page-Solicitor-General-Section. 15 Kevin Newsom, The State Solicitor General Boom, 32 App. Prac. Jnl. Upd. 6. 16 People for the American Way, In Opposition to the Confirmation of William 10 Sen. Comm. on the Judiciary, 115th Cong., Kevin Christopher Newsom: Questionnaire for H. Pryor, Jr., 1 (2003), http://www.pfaw.org/report/william-pryor-unfit-to-judge/.