Trump SCOTUS Shortlister Kevin Newsom: Four Things to Know

By Patrick L. Gregory

Judge Kevin C. Newsom was one of five additions to President Donald Trump’s list of potential U.S. Supreme Court nominees in November, a few months after he was seated on the U.S. Court of Appeals for the Eleventh Circuit.

He’s known for a down-to-earth writing style and has a personal story involving challenges faced by close family members that Sen. Dianne Feinstein (D-Calif.) said touched her “very emotionally” at Newsom’s June confirmation hearing.

As an attorney, Newsom criticized substantive due process—the doctrine applied by the U.S. Supreme Court in cases involving reproductive rights and same-sex intimacy.

If he’s one day nominated to the high court, Democrats’ concerns about Newsom’s view of the doctrine will likely resurface.

Newsom has also drawn criticism for defending the execution of minors while he was Alabama’s solicitor general.

Since 1999, the judge has been a member of the Federalist Society, a conservative legal organization that has helped Trump choose judicial nominees.

Newsom declined a request for an interview.

1) Substantive Due Process

Newsom wrote an article “extremely critical” of substantive due process while he was in private practice, Feinstein said in July, referring to Setting Incorporationism Straight: A Reinterpretation of the Slaughter House Cases, 109 Yale L.J. 643 (2000).

The doctrine says that governments can’t infringe on implicit, fundamental constitutional rights.

Newsom’s criticism of it was a cause for concern because the Supreme Court invoked the doctrine in protecting reproductive rights “and the right to same-sex marriage,” Feinstein said in July.

The article described substantive due process as a “historically confused and semantically untenable doctrine.”

The doctrine “traces its roots” to the court’s “fateful” 1857 Dred Scott decision, which held that a black man couldn’t be a U.S. citizen, Newsom said.

Chief Justice John G. Roberts Jr. similarly traced the doctrine’s roots to Dred Scott, dissenting in 2015’s Obergefell v. Hodges , which recognized the right of same-sex couples to marry.

One could interpret Newsom’s article as “a call for lower court judges to chart their own way on issues like abortion and marriage equality,” People for the American Way, a progressive advocacy organization, wrote in a letter to the Senate Judiciary Committee.

Newsom said at his hearing that he was only trying to say that “the notion of locating protection for substantive constitutional rights” in the Constitution’s due process clause, “a provision that speaks by its terms only to process and procedure,” was “perhaps not ideal.”

Newsom’s article argued for an expanded application of the Constitution’s privileges or immunities clause, but didn’t specify whether that clause could be applied to abortion rights and same-sex intimacy.

Justice Clarence Thomas said he was open to considering whether the clause should have an expanded role in constitutional jurisprudence, dissenting in Saenz v. Roe , Newsom said.

Further, his personal views of the doctrine weren’t relevant because he would simply follow Supreme Court precedent as a judge, Newsom said—a limitation that wouldn’t bind him if confirmed to the high court.

Newsom was confirmed by a 66-31 vote, with the help of Feinstein and 15 other Democrats.

2) Writing Style

As an attorney, Newsom wrote “legal briefs with a novelist’s sense of language,” as described by the Daily Report.

The National Association of Attorneys General awarded Newsom “on several occasions the Best Brief Award for his briefing before the Supreme Court” while he was Alabama’s solicitor general, Sen. Chuck Grassley (R-Iowa) said in July.

As a judge, Newsom has shown an interest in making opinions readable by using less formal than language than other judges, as demonstrated in his decision for the 11th Circuit in a tax dispute, Morrissey v. United States .

“Fear not, keep reading,” Newsom encouraged readers who might otherwise be bored by a tax case.

It involved “interesting questions” including whether a gay man could receive a tax deduction for money he paid to an egg donor and surrogate mother to father a child through in vitro fertilization, he said.

The IVF procedure costs weren’t deductible because they weren’t paid “for the purpose of affecting the taxpayer’s own reproductive function,” the court ruled.

“With short sentences, sentence fragments, and contractions,” the opinion was “informal and conversational,” resembling the writing styles of former Seventh Circuit Judge Richard Posner and Supreme Court Justice Elena Kagan, appellate litigator Thomas M. Byrne of Eversheds Sutherland, Atlanta, wrote for his law firm’s blog.

Newsom also used informal language in his court’s decision finding that a car ceased to be part of a debtor’s bankruptcy estate under Georgia law, in Title Max v. Northington .

“So how do these provisions interact?” Newsom asked regarding the Bankruptcy Code and the state statute.

“Very briefly, here’s the deal,” Newsom said before explaining the interaction.

Responding to a dissenting judge, Newsom said, “Here as always, we’re just doing our best to call ‘em like we see ‘em.”

3) Personal Story

Newsom clerked for both Ninth Circuit Judge Diarmuid F. O’Scannlain and U.S. Supreme Court Justice David H. Souter.

He later argued four cases at the U.S. Supreme Court as Alabama’s solicitor general.

Newsom faced difficult circumstances on his way to success, which he described at his confirmation hearing.

He was raised by a single mother, who also had to take care of a daughter “with a very rare genetic disorder,” Smith-Lemli-Opitz syndrome.

That left Newsom’s sister “profoundly disabled, both physically and mentally.”

But “boy she could really light up a room with her smile,” Newsom said.

He got emotional as he said he believed his sister, who died unexpectedly in 2001, was watching and “smiling.”

Newsom’s father was a recovering alcoholic and was “largely absent for a number of my formative years,” he said.

But Newsom was proud of his father for being sober for “17 straight” years and becoming “an outstanding grandfather” to the nominee’s two sons.

4) Death Penalty

Progressive organizations including the Alliance for Justice and the NAACP Legal Defense Fund have criticized Newsom for his positions in death penalty litigation.

He wrote an unsuccessful amicus brief on behalf of Alabama defending the use of the death penalty for minors, which the Supreme Court rejected in 2005’s Roper v. Simmons .

Newsom defended Alabama’s lethal injection procedure at the Supreme Court in 2004, in Nelson v. Campbell .

David Nelson, a death row prisoner, argued that the “use of a ‘cut-down’ procedure to access his veins” would constitute cruel and unusual punishment, the court said.

Newsom argued that a federal civil rights statute, 42 U.S.C. §1983, wasn’t the proper vehicle for Nelson’s lawsuit.

Instead, such claims must be brought as habeas corpus petitions, but Nelson was precluded from bringing such a petition because he had already done so unsuccessfully, Newsom said.

The court unanimously ruled against the state, finding that Section 1983 was an appropriate vehicle for seeking an injunction against the procedure.

Speaking to ABC News in 2007, Newsom defended Alabama from criticism that it was one of two states that didn’t provide poor death row inmates with attorneys to assist with post-conviction review of their cases.

“The idea that inmates are en masse unrepresented, and wandering through the system alone, is just not true,” Newsom said.

Most death row inmates were receiving representation that was “second to none,” he said.

“In a lot of cases, the state is outmanned, outresourced and outgunned by behemoth law firms,” he said.

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

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

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