Faces on the 8th Circuit:
Six new judges are getting settled in at the 8th Circuit Court of Appeals. Their judicial personalities have yet to emerge. Their backgrounds and early decisions are nonetheless instructive and, thus, of interest to 8th Circuit practitioners.
by Matthew E. Johnson
After one term in office, President George W. Bush already has made a significant impact on the United States Court of Appeals for the 8th Circuit. Between 2001 and 2004, President Bush filled six vacancies on the court — a majority of judges on the 11-judge court. By comparison, President Bill Clinton appointed two judges to the 8th Circuit during his two terms in office.
This article is an introduction to the six newest judges on the 8th Circuit. It is intended to help you predict how the new judges will decide cases in the years to come, based on the information available to us today. Of course, an evaluation of a judge cannot fairly be made except by looking at what the judge has done during the course of his or her service on the court. Someday, someone will look backwards at the public record and draw fully informed conclusions about each of these newly appointed judges. But, as Kierkegaard said, life must be lived by looking forwards.
Judge William J. Riley
Riley was appointed to the court on
his clerkship, Riley joined the
accounts, Riley appears to have been one of the premier lawyers in
Judge Riley has a reputation for being active and engaging at oral argument and well-prepared. I have observed Judge Riley ask questions by quoting from transcripts in the appendices, which indicates a tendency to delve deep into the factual record and to be precise with the facts.
Having been on the 8th Circuit for more than three years, Judge Riley has written approximately 150 majority opinions, nine concurring opinions, and six dissenting opinions. His writings reveal a generally conservative judicial philosophy. Among the most interesting of his concurring and dissenting opinions is his concurrence in the dismissal of a lawsuit challenging a high school graduation prayer. Judge Riley wrote separately to emphasize that the school board member who delivered the prayer did so without the knowledge or approval of the school district.1 In a Title VII retaliation case, he dissented from the reversal of JNOV for the employer, thoroughly explaining why the plaintiff had failed to present sufficient evidence to prove his claim.2 And he wrote a long dissent from the court’s decision to deny en banc review of a panel opinion that upheld a $151 million judgment against the state of Nebraska, contending that the judgment violated the state’s sovereign immunity.3
Judge Michael J. Melloy
Melloy was appointed to the court on
Melloy was born and raised in
J. Collins, a
Since joining the court in 2002, Judge Melloy has written approximately 115 majority opinions, two concurring opinions, and eight dissenting opinions. His written opinions on the 8th Circuit appear to place him to the left of center on the ideological spectrum of the court. His dissents typically have been responses to decisions by a majority of more-conservative judges. For example, in a death penalty case decided by the court en banc, he dissented from the denial of habeas relief on the ground that the application of an aggravating factor deprived the petitioner of his due process rights.4 In a criminal appeal, he dissented from a panel opinion (authored by Judge Riley) holding that attempted auto theft was a “crime of violence” under the U.S. Sentencing Guidelines, thus warranting an enhanced sentence.5 In a class action brought by juvenile inmates, he dissented from a panel opinion denying an award of attorneys’ fees.6 And most recently, in a Title VII race discrimination case, he dissented from part of a panel opinion that affirmed a summary judgment, writing that the case should go to the jury because the plaintiffs had expert testimony of statistically significant differences in pay.7
Judge Lavenski R. Smith
Smith was appointed to the court on
spent the first four years of his legal career with Ozark Legal Services. He then opened his own law firm in
Smith joined the staff of Governor Mike Huckabee,
who also is a native of
Rock, Arkansas, lawyer who knows the judge well, Robert S. Shafer,
describes Judge Smith as “deliberative and calm,” a “very steady personality,”
and a “straight-shooter.” He
believes that the judge will be very open-minded, even on issues where
he has settled convictions.
Since joining the court, Judge Smith has authored approximately 100 majority opinions, two concurring opinions, and seven dissenting opinions. His opinions appear to place him slightly to the left of center on the court ideologically, but with some unpredictability. He has dissented three times in search-and-seizure cases, each time taking the position that investigating officers did not comply with the 4th Amendment.8 He also joined an en banc dissent favoring the suppression of a criminal defendant’s confession on the ground it was involuntary.9 In employment discrimination cases, he has written a dissenting opinion to oppose a remittitur from $200,000 to $10,000,10 and he has joined in an en banc dissent that took the position that an employee could prove a claim of race discrimination in a promotion even though he never formally applied for the position.11 His dissenting opinions, however, reveal a tendency to approve of government agency actions. In one case, he dissented from the reversal of the Bureau of Immigration Appeals’ denial of an asylum application.12 And in another, he dissented from an opinion holding that an SEC enforcement action was not “substantially justified” and, in so doing, caused two other judges to vote for rehearing en banc.13
Judge Steven M. Colloton
Colloton was appointed to the court on
Colloton is a native of
acquainted with Colloton in the early 1990s
during my one-year clerkship in
In his first year on the bench, Judge Colloton has authored approximately 30 majority opinions, four concurring opinions, and five dissenting opinions. His opinions thus far do not so much reflect a conservative judicial philosophy, as might be expected given his background, but rather a strong interest in neutral, jurisprudential issues. In one commercial case, he dissented on the ground that the plaintiff had not sufficiently pleaded its principal place of business so as to create diversity jurisdiction.14 In a Section 1983 case, he authored a concurring opinion discussing whether the court had jurisdiction over an appeal from the denial of qualified immunity.15 And in a recent civil forfeiture case, he disagreed with the majority’s decision to remand the case for further fact-finding and also questioned the court’s use of a multifactor balancing test for interpreting the Excessive Fines Clause, saying that such tests “increase the discretion of judges, … heighten the risk of arbitrary decisionmaking, and reduce predictability.”16
Judge Raymond W. Gruender
Gruender was appointed to the court on
Gruender was born and raised in
graduating from law school in 1987, Gruender
Gruender then joined the
attorney who knows Gruender well described
him as “really bright” but not interested in showing off and perhaps
not as analytical as other, similarly bright judges.
This lawyer described the judge as “a very unassuming person,
not self-important at all.” Gruender’s
a matter of public record that Gruender
has achieved much despite a very modest upbringing.
At his investiture on October 14, 2004, the judge commented
that his father, who dropped out of high school at age 16 to work
as a house painter, took a job as a janitor at Gruender’s
Catholic high school so that the family could better afford tuition.
Gruender himself began working for money at age ten by scraping
paint for his father for 25 cents per hour. Gruender also held
part-time jobs throughout high school, college, and graduate school.
noteworthy, and perhaps relevant to his work as a judge, that Gruender’s personal life has been significantly touched by
violent crime. On
Judge Gruender joined the court so recently that, as this article goes to press, he has not yet authored an opinion. He has, however, voted for rehearing en banc on three occasions. One case was a business dispute in which the court approved a punitive damages award that was approximately 4.5 times compensatory damages.18 Another was the securities case mentioned above, in which Judge Smith wrote the dissenting opinion.19 And another was a free-speech case in which anti-abortion protestors were arrested for violating a loitering ordinance after passers-by complained. The panel held that the arresting police officers had qualified immunity for the arrests, which generated a dissenting opinion and four votes to rehear the case en banc.20
Judge W. Duane Benton
Benton was appointed to the court on
M. Tettlebaum, who was
Since joining the 8th Circuit only a few months ago, Judge Benton has authored only one opinion, which affirmed a judgment for a person who was detained in a county jail for 38 days prior to his initial appearance, which was found to be a violation of his substantive due process rights.21 He also voted for rehearing en banc in the free-speech case mentioned above.22
Change or Continuity?
The last time a single president appointed a majority of the judges on the 8th Circuit was when President Ronald Reagan appointed six judges to the court between 1982 and 1987 (Judges John R. Gibson, George G. Fagg, Pasco M. Bowman, Roger L. Wollman, Frank J. Magill, and C. Arlen Beam). President George H.W. Bush then appointed three judges to the court between 1990 and 1992 (Judges James B. Loken, David R. Hansen, and Morris S. Arnold). Only three of the nine judges appointed during that ten-year period remain active judges today,23 though it should be noted that senior judges on the 8th Circuit may be assigned to sit on panels and most of them do so frequently.
In light of these recent appointments, the 8th Circuit today has a higher proportion of Republican-appointed judges than any other circuit court: nine of eleven, or 82 percent, of the court’s active judges were appointed by Republican presidents. The 5th and 7th circuits also have large Republican-appointed majorities, with approximately 75 percent each. In several other circuits Republican appointees have a slight edge in numbers; the 6th is evenly divided in that respect; and the 2nd, 9th, and 10th have a majority of Democrat-appointed judges.24
should be noted, however, that the six new judges may not be more
conservative than the six judges they replaced in active service (Judges
C. Arlen Beam, George G. Fagg, Richard S.
Arnold,25 David R. Hansen, Theodore McMillian, and Pasco M. Bowman). The judges who were replaced include some known
as conservatives but also two appointees of President
By providing these data and comments, I do not mean to give credence to the common perception that judges are political actors whose behavior is expected to conform to the views of the presidents who appointed them. To be sure, our federal judiciary is as independent as can be imagined, and that is a good thing. Each judge has the security of knowing that he or she “shall hold their Offices during good Behavior,”26 which has been broadly construed, and “shall … receive … a Compensation, which shall not be diminished during their Continuance in Office.”27 In addition, it is not entirely accurate or fair to draw conclusions from only a handful of cases, each of which has its own particular facts and nuances that are not easily captured in a short article.
Nonetheless, a good practitioner will consider all relevant information when presenting arguments to a court. Understanding the six newest judges on the 8th Circuit — as well as all judges on the court — is an essential part of that task.
2 EEOC v. Kohler Co., 335 F.3d 766, 777-82 (8th Cir. 2003) (Riley, J., dissenting).
6 Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 995-1000 (8th Cir. 2003) (Melloy, J., dissenting).
7 Morgan v. United Parcel Serv., Inc., 380 F.3d 459, 472-73 (8th Cir. 2004) (Melloy, J., dissenting).
10 Eich v. Board of Regents for Central Missouri State Univ., 350 F.3d 752, 766-67 (8th Cir. 2003) (Smith, J., concurring in part & dissenting in part).
11 Lockridge v. Board of Trustees of Univ. of Arkansas, 315 F.3d 1005, 1013-16 (8th Cir. 2003) (en banc) (Heaney, J., dissenting).
12 Bellido v. Ashcroft, 367 F.3d 840, 846 (8th Cir. 2004) (Smith, J., dissenting).
13 sec v. Zahareas, 374 F.3d 624, 631-33 (8th Cir. 2004) (Smith, J., dissenting).
14 Capitol Indemnity Corp. v. Russellville Steel Co., 367 F.3d 831, 837-40 (8th Cir. 2004) (Colloton, J., dissenting).
v. Pomeroy, No. 03-2043, 2004 WL 2480268, at **7-8 (8th Cir.
Bryant, “Tough Childhood Couldn’t Keep Official from Excelling in
19 See supra note 13.
22 See supra note 20.
former Chief Judge Richard S. Arnold of Little Rock, Arkansas, died
of complications from lymphoma on September 23, 2004, at the Mayo
Clinic in Rochester, Minnesota. See
Neil A. Lewis, Obituary, “Richard S. Arnold, 68, Judge Once Eyed for
Supreme Court,” N.Y. Times,
MATTHEW E. JOHNSON is a shareholder at Halleland
Lewis Nilan & Johnson, P.A., in