Trailblazer Thapar Might Be in Trump’s SCOTUS Bullpen

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Patrick L. Gregory

District Judge Amul R. Thapar was the nation’s first South Asian-American Article III judge and a surprise finalist for the U.S. Supreme Court.

He might one day blaze a trail as the first high court justice of South Asian descent, which could give conservatives a solid majority on the court for a generation or longer. Three of the court’s justices are older than age 78, raising the prospect of another vacancy during Donald Trump’s presidency.

It’s “quite possible” that Trump will nominate Thapar to the U.S. Court of Appeals for the Sixth Circuit en route to the Supreme Court, Brian T. Fitzpatrick, a professor at Vanderbilt Law School, Nashville, told Bloomberg BNA by telephone Feb. 7.

The judge focuses on the “big picture” in legal controversies, much like the late Justice Antonin Scalia and Justice Clarence Thomas, Fitzpatrick—who teaches about federal courts—said.

Thapar, of the U.S. District Court for the Eastern District of Kentucky, was one of four potential nominees that Trump personally interviewed before nominating Tenth Circuit Judge Neil M. Gorsuch. Thapar was on Trump’s list of 21 judges he pledged to choose from, but Thapar wasn’t mentioned on leaked lists of finalists.

The judge “is a friend of” the conservative “ Federalist Society and they of course had a lot of influence over Trump’s list” of potential nominees, Fitzpatrick said.

“He was very much a contender, which is impressive given that he’s a district court judge,” he said.

Meta Mindset

Thapar takes an academic approach to judging that focuses on “meta questions,” Fitzpatrick said. He’s “very well regarded as a big thinker.”

That helps explain Thapar’s inclusion on Trump’s list of potential nominees, he said.

If “you’re one of these few judges that loves thinking about and talking about these meta questions, I think you get noticed by the powers that be very quickly.”

The judge has “ taught here at Vanderbilt on several occasions” and “hired a number of our former students as his law clerks,” Fitzpatrick said. “I consider him a friend of mine as well as a friend of Vanderbilt,” he said.

As an “academic judge,” Thapar is “thinking about the big picture, the thorny questions of judicial philosophy” when analyzing a case.

The judge “loves to be engaged” in questions such as whether to apply legislative history to a dispute, the professor said.

Thapar still applies case precedent as “lower court judges have to” do, “but he’s also trying to think about what is the right philosophical meta answer for how we should be doing law in this country.”

Scalia, Thomas-like

Thapar’s broad approach is “very Scalia-like and Thomas-like,” Fitzpatrick said.

“Thomas is also thinking about meta questions” as part of his judicial philosophy and “Scalia of course was well-known for being a professor and thinking of” such questions.

The judge’s philosophy isn’t identical to either justice, “but he’s somewhere in their zone of philosophy.”

Philosophy and Scalia were the subject of a short course Thapar taught just last month, “Philosophy in Theory and Practice: Justice Scalia and His Critics,” at the University of Virginia law school in Charlottesville, Va.

SCOTUS Potential

Trump will likely face pressure to nominate a diverse candidate if there’s another Supreme Court vacancy during his term.

Thapar would be the first South Asian-American on the court.

Further, if Trump can fill a Sixth Circuit vacancy with Thapar, the judge will “be in an even better position next time there’s an opening on the Supreme Court,” he said. Thapar has sat by designation on the Sixth Circuit many times.

It doesn’t hurt that Thapar already has a glowing reference from fellow Kentuckian and Senate Majority Leader Mitch McConnell (R-Ky.).

McConnell praised Thapar as “one of the most respected U.S. Attorneys in the country” at his 2007 confirmation hearing, and highlighted his prosecution of prescription narcotics abuse.

Thapar also served his community by founding a chapter “of the well-respected Street Law program, which sends law school students into underprivileged high schools to teach the basic underpinnings of our legal system,” McConnell said.

Way With Words

Thapar’s opinions often include powerful openings, colorful language and historical references.

“Like a recurring bad dream, Kentucky’s judicial canons keep getting struck down,” Thapar wrote in Winter v. Wolnitzek, 56 F. Supp. 3d 884 (E.D. Ky. 2014).

That decision granted a preliminary injunction against a rule prohibiting judicial candidates from campaigning as members of political parties.

Thapar said the state forgot Thomas Jefferson’s warning that “a democracy cannot be both ignorant and free.”

The judge gave another history lesson in a decision finding that a bankruptcy court shouldn’t have abstained from hearing a breach of fiduciary duty claim, in Sergent v. McKinstry, 472 B.R. 387 (E.D. Ky. 2012).

“Location matters,” Thapar wrote. “When King Leonidas and the Greeks chose to make their stand at Thermopylae, the narrow mountain pass” neutralized “the Persians’ strong cavalry and enabled the Greek force to inflict massive casualties on a Persian army more than twenty times its size.”

Wal-Mart, Wild West

The judge’s big picture philosophy and colorful writing style were on full display in May v. Wal-Mart Stores, Inc., 751 F. Supp. 2d 946 (E.D. Ky. 2010) (79 U.S.L.W. 1672, 11/30/10).

Here, Wal-Mart removed a slip-and-fall lawsuit from a state court to federal district court, and wanted discovery to determine whether it satisfied the amount in controversy requirement for removal.

“In the Wild West, the rule was ‘shoot first, ask questions later,’” Thapar’s opinion began. “In modern civil litigation, the rule seems to be ‘remove first, ask questions later.’”

Thapar denied the retail giant’s request. “Let’s return to first principles,” he said.

Allowing discovery to establish the amount in controversy in the removal context would be “inconsistent with the limited nature of federal jurisdiction and the need to respect the authority of state courts.”

Removal halts state court “litigation in its tracks,” and allowing discovery here could unnecessarily pause such litigation for months or longer, Thapar said.

“Shooting first and asking questions later may have been acceptable at the O.K. Corral, but preserving the line between state and federal jurisdiction demands a good deal more.”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law