Trump’s SCOTUS Shortlister Kethledge Doesn’t Mince Words

Photo by Alex Wong/Getty Images
By Patrick Gregory, Bloomberg BNA

President-elect Donald Trump and Sixth Circuit Judge Raymond M. Kethledge have something in common — blunt opinions.

At his 2008 confirmation hearing, senators questioned Kethledge’s lack of judicial experience, but now he’s on Trump’s list of potential U.S. Supreme Court nominees. The president-elect has said he will choose someone from his list of potential nominees to replace Justice Antonin Scalia, who died unexpectedly Feb. 13.

Kethledge’s notable opinions at the U.S. Court of Appeals for the Sixth Circuit include a ruling in favor of a Tea Party group and against the Internal Revenue Service. The judge has written that he likes to see candidness and civility in appellate briefs.

He drew attention for his blunt opinion in EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749 (6th Cir. 2014). The Wall Street Journal deemed the decision the “Opinion of the Year” for its “hilariously caustic rebuke” of the Equal Employment Opportunity Commission.

The Sixth Circuit rejected the EEOC’s claims that a company violated the 1964 Civil Rights Act by considering the credit histories of job applicants in its hiring process. “Judge Kethledge eviscerated the EEOC like a first-day law student,” the Journal said.

Here, “the EEOC sued the defendants for using the same type of background check that the EEOC itself uses,” Kethledge wrote for the court. Further, in trying to show that the background check disproportionately eliminated black applicants, the EEOC used a “homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”

Some of his other decisions include:

• United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016) — finding that mobile phone users didn’t have a reasonable expectation of privacy in cell tower location records.

• United States v. Gabrion, 719 F.3d 511 (6th Cir. 2013) — holding that jurors balancing mitigating against aggravating circumstances in a death-penalty case don’t have to use a reasonable doubt standard.

• Sherfel v. Newson, 768 F.3d 561 (6th Cir. 2014) — ruling that a Wisconsin law requiring employers to extend paid disability leave benefits to new mothers was preempted by federal law.

Kethledge’s recent opinion in favor of a Tea Party group could make him a favorite among conservatives. The Sixth Circuit found that the IRS couldn’t refuse to identify conservative organizations applying for tax-exempt status, in United States v. NorCal Tea Party Patriots, 817 F.3d
953 (6th Cir. 2016).

A Tea Party group alleged that the IRS mistreated some applicants “based on their political views,” Kethledge wrote for the court. The Treasury Department’s inspector general for tax administration found that the IRS “often took four times as long to process tea-party applications” and “served tea-party applicants with crushing demands” for unnecessary information.

Further, “in this lawsuit the IRS has only compounded the conduct that gave rise to it,” Kethledge’s opinion said. At “every turn the IRS has resisted the plaintiffs’ requests for information,” the Sixth Circuit said, ordering the agency to comply with the district court’s discovery orders.

Kethledge knows what he likes when it comes to appellate briefs.

“A lawyer who makes an impression as credible, competent, and civil is one whose thoughts I’ll take seriously,” Kethledge
wrote for GPSolo magazine.

Kethledge repeated a lesson he learned during his clerkship for Supreme Court Justice Anthony M. Kennedy: Being credible means acknowledging weaknesses in your position. Attorneys should also “avoid extreme modifiers” like “certainly” and “obviously,” along with “the most overused extreme modifier of all: ‘clearly,’ ” Kethledge said.

Civility toward opposing counsel is important because “reading a brief filled with ad hominem attacks is like listening to my kids fight, except that I have to wait until we’re in the courtroom to tell the attacking lawyer what I think about it,” Kethledge said.

Kethledge bluntly criticized an insurance company defendant for lacking civility in Bennett v. State Farm Mut. Auto Ins. Co.,
731 F.3d 854 (6th Cir. 2013). Here, State Farm called “ridiculous” a plaintiff’s argument that she “occupied” a vehicle, as defined in an insurance contract, while she was on its hood.

“There are good reasons not to call an opponent’s argument ‘ridiculous,’” Kethledge wrote for the court. Those reasons “include civility” and “the near-certainty that overstatement will only push the reader away.” That’s especially true “when, as here, the hyperbole begins on page one of the brief.” Even “where the record supports an extreme modifier” like “ridiculous,” it’s usually better to just present the facts, Kethledge’s opinion said. “But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct” under the contract.