On May 15, 2018, President Trump nominated Ryan Nelson to the Ninth Circuit Court of Appeals. If confirmed, Nelson will replace Judge N. Randy Smith, who is scheduled to assume senior status on August 11, 2018. 

Based on our review of Nelson’s record, Alliance for Justice opposes his nomination to the Ninth Circuit Court of Appeals.

BIOGRAPHY

Ryan Nelson attended law school at the J. Reuben Clark Law School of Brigham Young University. While in attendance, Nelson worked as a research assistant for then-professor Thomas Lee, who currently serves on the Utah Supreme Court and is on President Trump’s Supreme Court short list. He also joined the ultraconservative Federalist Society – an outside group to which Trump has delegated important aspects of the judicial nomination process – and has been a member since that time.

Upon graduation, Nelson clerked for Judge Karen LeCraft Henderson on the United States Court of Appeals for the District of Columbia Circuit, and Judges Charles Brower and Richard Mosk for the Iran-United States Claims Tribunal. After his clerkships, Nelson spent five years at Sidley Austin. Among his other cases, he was counsel for a group of states in Tennessee v. Lane, 541 U.S. 509 (2004) that supported Tennessee in claiming that persons with disabilities could not sue for money damages under Title II of the Americans with Disabilities Act. 2003 U.S. S. Ct. Briefs LEXIS 794. Nelson’s brief stated “there is no general constitutional right to public buildings that are physically ‘accessible’ to the disabled[.]”

Subsequently, Nelson was appointed by the George W. Bush Administration to serve as Deputy Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice. In 2008, he was appointed under the same administration to serve as Deputy General Counsel for the Office of Management and Budget, and in 2009 transitioned to serve as special counsel to Jeff Sessions during the nomination of Supreme Court Justice Sonia Sotomayor.

In 2009, Nelson began serving as general counsel to Melaleuca, Inc., a health products company. In 2017 he took the title of general counsel emeritus, and continues to hold the position today. On August 2, 2017, President Trump nominated Nelson to serve as Solicitor of the Department of the Interior. Pursuant to Senate rules, Nelson’s nomination was returned to the President when the first session of the 115th Congress ended on January 3, 2018.

According to his questionnaire provided to the Senate Judiciary Committee, as Melaleuca’s general counsel, Nelson’s responsibilities included “managing global regulatory compliance, corporate compliance, contract review, human resources, litigation, and corporate strategy planning.” In September 2016, East Idaho News.com reported that Donald Trump Jr. held “a closed-door meeting at Melaleuca Global Headquarters… with CEO Frank VanderSloot, his wife, Belinda, and the company’s management team for nearly an hour.”  It was not reported that Nelson, the company’s general counsel, attended that meeting.

In addition to representing Melaleuca in corporate litigation matters, Nelson has represented Melaleuca’s CEO Frank  VanderSloot in a defamation suit against Mother Jones magazine. As Forbes Magazine reported in 2017, VanderSloot is “Idaho’s wealthiest person, with an estimated net worth of $1.9 billion[;]” “Mother Jones published an article claiming that VanderSloot, in his letters to the local paper, publicly outed a reporter as gay. VanderSloot sued for defamation in Idaho court. The judge, while criticizing Mother Jones’s reporting, dismissed the claims as protected speech and threw out the case in October 2015.” (hyperlinks added). Also illustrative of the type of cases Nelson has been involved with on behalf of Melaleuca is Melaleuca, Inc. v. Foeller, 155 Idaho 920 (2014).

EXECUTIVE POWER

Nelson’s name appears on a “list of selected members” on an amicus brief filed by the Citizens for the Common Defense in 2004 in the case Al Odah v. United States. Citizens for the Common Defense filed a brief in support of the government. In its brief, the organization describes itself as “an association that advocates a conception of robust Executive Branch authority to meet the national security threats that confront the nation in its war against international terrorists[,]” and emphasizes that “vigorous executive power necessary to defend our nation against foreign enemies was seen by the Framers as a vital precondition to securing those blessings and an integral part of the same libertarian enterprise.”

In its amicus brief in Al Odah v. U.S., Citizens for the Common Defense argued:

  • “It would place this nation’s core interests at grave risk to allow peacetime assumptions about the role and nature of judicial review to spill over into the wholly different context of war.”
  • “That the absence of judicial review may increase the risk of error in military detentions is no argument for such review:  war inevitably entails numerous risks to the lives and liberties of innocents, friend and foe alike, that would never be tolerated in other circumstances. Moreover, the risks of judicial intervention in this context must also be taken into account, and they are intolerably high. The remedies for erroneous deprivations of liberty during wartime arise from sovereign-to-sovereign negotiations[.]”
  • “Wars have never been fought successfully, by this or any other nation, with courts passing judgment on the use of force against those the Executive identifies as the enemy. When the nation is under mortal threat, the President as Commander-in-Chief must be free to protect the nation and use all force he deems appropriate to defeat the enemy[.]”
  • “The government interest in detaining those it believes to be enemies and neutralizing and interrogating them is so compelling that no marginal reduction in the risk that some innocents might be temporarily detained in error could overcome it.”

Other members of Citizens for the Common Defense on the brief’s appendix’s “list of selected members” include Robert Bork, John Yoo and Steven Bradbury, Bradford Berenson, and Kris Kobach. 

ENVIRONMENTAL PROTECTION

Nelson served as Deputy Assistant Attorney General for the Environment and Natural Resources Division of the Justice Department under George W. Bush. He “managed the Appellate Section of the Environment and Natural Resources Division[,]” and “oversaw the Division’s appeals and was advisory and reviewing counsel” on a brief for the government in Massachusetts v. EPA, 549 U.S. 497 (2007). In Massachusetts v. EPA, several states and cities sued the George W. Bush administration to force the government to issue greenhouse gas standards for tailpipe emissions. The Supreme Court rejected the government’s argument that the Clean Air Act was not meant to cover carbon dioxide emissions and other greenhouse gases.

In Bering Strait Citizens for Responsible Res. Dev. v. United States Army Corp of Eng’rs, 524 F.3d 938 (Ninth Cir. 2008), as reported by the Idaho Falls Post Register, “the Army Corps of Engineers permitted the Rock Creek Mining Project near Nome, Alaska, and allowed the mine to fill in wetlands with mine tailings. A citizens’ group sued, arguing that less destructive alternatives hadn’t been explored. The Corps ultimately won the suit.”

In Earth Island Inst. v. Hogarth, 494 F.3d 757 (Ninth Cir. 2007), an environmental group argued that tuna sellers who catch yellowfin tuna with purse-seine nets should not be allowed to label the tuna as “dolphin-safe.” The Secretary of Commerce had made a finding that the use of purse-seine nets was not having an adverse effect on the dolphin population, despite inconclusive evidence, and allowed the tuna to be labeled dolphin-safe. Environmental groups brought suit, and the district court found that the agency’s finding was arbitrary and capricious. The Ninth Circuit ultimately blocked the Department of Commerce’s determinations, holding that such labeling was appropriate. It found that the data the government relied upon was inconclusive, and the agency’s decision was influenced by political, rather than scientific, concerns.

In Center for Biological Diversity v. United States Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009), the Center for Biological Diversity challenged the Department of the Interior’s expansion of offshore drilling and gas development leasing in Alaska. The challenges argued that the government “failed to consider both the economic and environmental costs of the greenhouse gas emissions . . . and the effects of climate change[.]” The D.C. Circuit held that the challengers lacked standing to pursue substantive climate change theory, but could proceed under a procedural theory of standing.

As Deputy Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division, Nelson announced the Justice Department’s settlement with Jupiter Aluminum Corporation, where Jupiter paid a civil penalty of $2 million: “Jupiter Aluminum has agreed to implement procedures which will reduce harmful emissions into the air. Today’s settlement is an example of the good that can come from the cooperation of federal, state and local government.” Indiana Economic Digest reported: “A settlement reached this week between environmental regulators and Jupiter Aluminum Corp. over air pollution violations could spare the processing plant nearly $50 million in fines.”