Trump’s SCOTUS Shortlister Kethledge Doesn’t Mince Words

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By Patrick Gregory

Nov. 22 — President-elect Donald Trump and Sixth Circuit Judge Raymond M. Kethledge have something in common—blunt opinions.

Senators questioned Kethledge’s lack of judicial experience at his 2008 confirmation hearing, but now he’s on Trump’s list of potential U.S. Supreme Court nominees.

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 likes to see candidness and civility in appellate briefs.

Trump has said he will choose someone from his list of potential nominees to replace Justice Antonin Scalia, who died unexpectedly Feb. 13.

The U.S. Senate has refused to take action on President Barack Obama’s nominee, D.C. Circuit Chief Judge Merrick B. Garland.

‘Hilariously Caustic Rebuke.’

Kethledge 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.”

Tea Party Win

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.

Candid Briefing Advice

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

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.

A post on legal blog Above the Law joked about Kethledge’s frank opinion, saying, “Trolls. So. Hard.”

Qualifications Questioned

Multiple senators focused on Kethledge’s lack of judicial experience at his 2008 confirmation hearing.

Kethledge responded that he had “tried to pack an awful lot of relevant experience into my 15 years” as an attorney.

That included clerking for now-Senior Judge Ralph B. Guy Jr. at the Sixth Circuit and for Kennedy at the high court, Kethledge said.

Further, Kethledge worked in the Senate as judicial counsel for then-Sen. Spencer Abraham (R-Mich.).

“I think that experience gives me the perspective of the legislative branch,” which would be particularly valuable when considering “separation of powers issues,” Kethledge said.

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

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