On June 7, 2018, President Trump announced his intent to nominate Eric E. Murphy to the Sixth Circuit Court of Appeals seat previously held by Judge Alice Batchelder.
Currently, Murphy is the State Solicitor of Ohio in the Office of the Attorney General. In the course of his career, Murphy has fought to make it easier for Ohio to disenfranchise voters, has argued against marriage equality in the landmark Obergefell v. Hodges, 135 S. Ct. 2584 (2015), case, has attacked reproductive rights, and has repeatedly sided with special interests over all Americans. Murphy’s record demonstrates a narrow-minded elitism that raises serious concerns that he will undermine critical rights and legal protections.
As the Senate Judiciary Committee reviews the troubling positions Murphy took as an appointee in the attorney general’s office, it’s important to note that Senate Republicans have previously articulated their belief that legal work done in an official government capacity is entirely subject to scrutiny as part of the judicial nomination process. As now-Judiciary Committee Chairman Chuck Grassley said in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit, “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Likewise, as Senator Ted Cruz stated in May 2018, opposing Mark Bennett’s nomination to the Ninth Circuit based on Bennett’s work as Hawaii Attorney General, “[Bennett’s] record as Attorney General of Hawaii, I believe, represents an advocacy position that is extreme and inconsistent with fidelity to law, in particular, he was an aggressive advocate as attorney general for gay marriage, he was an aggressive advocate demonstrating hostility to the First Amendment and political speech, and most significantly, he was, he has been, an aggressive advocate for undermining the Second Amendment.”
Similarly, the record Murphy established in the attorney general’s office, in our view, “represents an advocacy position that is extreme,” in that he has sought to weaken the rights of women, persons of color, and LGBTQ Americans, as well as environmental protections.
Senator Sherrod Brown opposes Murphy‘s confirmation, explaining, “I cannot support nominees who have actively worked to strip Ohioans of their rights. Special interests already have armies of lobbyists and lawyers on their side, they don’t need judges in their pockets.”
Alliance for Justice also opposes Eric Murphy’s confirmation.
Murphy, who is 39 years old, has served as the State Solicitor of Ohio in the Office of the Attorney General since 2013. Prior to that position, Murphy was an associate at Jones Day. He previously clerked for Judge J. Harvie Wilkinson, III, of the U.S. Court of Appeals for the Fourth Circuit and for Justice Anthony Kennedy of the U.S. Supreme Court. Murphy received his B.A. from Miami University of Ohio and his J.D. from the University of Chicago.
Like the majority of Trump’s judicial nominees, Murphy is a member of the Federalist Society.
Murphy repeatedly led efforts to make it harder to vote in Ohio. He defended Ohio’s voter purge in the Supreme Court case Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018). In that case, Murphy fought to allow the state to target infrequent voters for removal from the voter rolls and to deprive them of the fundamental right to vote. The Supreme Court upheld Ohio’s actions in a 5-4 decision.
As Justice Sonia Sotomayor’s dissent noted, the law Murphy defended will disproportionately disenfranchise people of color, veterans, and low-income and disabled people who face barriers that may prevent them from voting. For example, it was used to remove 10% of voters in African-American areas of Cincinnati. In dissent, Justice Sotomayor lamented that the decision “entirely ignores the history of voter suppression against which the NVRA [National Voter Registration Act] was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” In the same case, Murphy was also instrumental in pressing the U.S. Department of Justice, which had previously made clear that Ohio’s practice violated federal law, to take the “really rare” step of switching positions.
Murphy helped to end early voting in the state during “Golden Week.” After the 2004 elections in Ohio forced voters to wait in lines that lasted into the early morning of the following day, the Sixth Circuit found many Ohio voters to be “effectively disenfranchised.”
Accordingly, Ohio adopted a policy to allow a five-day “Golden Week” for voters to register and vote at the same time before registration closed. After Ohio attempted to eliminate Golden Week in 2014, a district court issued an injunction reinstating it, finding that removing it would disproportionately impact minority voters. The Sixth Circuit, in a divided opinion, reversed.
Murphy also argued in favor of upholding the so-called perfection requirement, allowing Ohio to discard ballots because of minor clerical errors. Judge Damon Keith of the Sixth Circuit wrote, concurring in part and dissenting in part, “The birth of this Nation was founded upon the radical principle that we, as a people, would govern ourselves. And voting is the ultimate expression of self-government. Instead of making it easier for all persons, unrestrained and unfettered, to exercise this fundamental right to vote, legislators are making it harder. States are audaciously nullifying a right for which our ancestors relentlessly fought and — in some instances — even tragically died.”
In DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) Murphy defended Ohio’s discriminatory constitutional prohibition on same-sex marriage in the Sixth Circuit. The Sixth Circuit held that a ban on same-sex marriage did not violate the Equal Protection Clause of the Fourteenth Amendment.
When this decision was appealed, Murphy also argued to uphold Ohio’s same-sex marriage ban in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In his brief to the Supreme Court, Murphy called a ruling for marriage equality “disruptive” to our constitutional democracy. The Supreme Court ultimately disagreed with Murphy. As Justice Kennedy wrote in his majority opinion, “the right to marry is a fundamental right inherent in the liberty of the person, and . . . couples of the same-sex may not be deprived of that right and that liberty.”
Murphy has since mischaracterized the ruling. In his notes for a speech in 2015, Murphy wrote that “the Court held that traditional marriage violated the fundamental right to marry under substantive due process.” In reality, the Court actually held that same-sex couples could not be deprived of the right to marry, which has long been considered a fundamental right under the due process and equal protection clauses of the Fourteenth Amendment.
During Murphy’s tenure as state solicitor, the state of Ohio joined an amicus brief in Gloucester County School Board v. G.G., 822 F.3d 709 (4th Cir. 2016), defending a school board’s refusal to allow a transgender student to use the bathroom that matched his gender identity. The school board had prohibited the student from using the men’s restroom, forcing him to use the bathroom of his “biological gender.” In the most recent opinion in this case, the district court held that the school board’s policy was discriminatory: “The Board’s argument that the policy did not discriminate against any one class of students is resoundingly unpersuasive.”
In Isaacson v. Horne , 716 F. 3d 1213 (9th Cir. 2013), Murphy submitted a brief to the Supreme Court, arguing in support of an Arizona law that prohibited certain abortions pre-viability, contrary to the Supreme Court’s decision in Planned Parenthood v. Casey (which noted that a “woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade”). According to Murphy’s brief, the Arizona law “seeks to channel elective abortions to before twenty weeks’ gestation—just weeks before an unborn child can survive outside the womb—to prohibit the severe fetal pain that could arise from later-term abortions.”
The law in question had an extremely narrow medical emergency exception which the Ninth Circuit determined “does not transform the law from a prohibition on abortion into a regulation of abortion procedure.” Rather, “[a]llowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term.” The Supreme Court denied the petition for certiorari review.
Murphy also defended a law targeting Planned Parenthood that would have cut off critical health funds, including funding for breast and cervical cancer prevention and sexual violence prevention, to any entity that provides abortion services. Murphy argued that “the record contains no evidence that the Funding Law would reduce abortion access in Ohio, or pressure women to sacrifice any abortion right or obtain other services.” The law was struck down by a three-judge panel of the Sixth Circuit. In June 2018, the Sixth Circuit granted a petition to rehear the case.
In addition, Murphy filed a brief supporting Texas restrictions on abortion care that the Supreme Court found were an undue burden on the rights of women in the case Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). Murphy also defended Targeted Regulation of Abortion Providers (TRAP) laws in Ohio, in the case Preterm-Cleveland, Inc. v. Kasich, 2018 Ohio 441 (Ohio 2018).
Murphy fought to make it harder for women to obtain contraceptives, filing an amicus brief in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751 (2014), arguing that certain corporations may deny contraceptive coverage as part of employer-sponsored health insurance plans.
While at Jones Day, Murphy defended employers who refused to provide their employees with insurance coverage for contraception, thereby violating the Affordable Care Act’s contraceptive coverage requirement. Murphy represented Catholic Charities of Tennessee in Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934 (M.D. Tenn. Nov. 21, 2012). The case was dismissed for lack of standing and failure to state a claim that was ripe for judicial review. Murphy also represented Notre Dame University in a similar challenge, which was also dismissed. Univ. of Notre Dame v. Sebelius, 2012 U.S. Dist. LEXIS 183267 (N.D. Ind. Dec. 31, 2012).
During Murphy’s tenure as state solicitor, the state of Ohio joined amicus briefs in the cases NIFLA v. Becerra, 138 S. Ct. 2361 (2018), Azar v. Garza, No. 17-654 (2018), Zubik v. Burwell, 136 S. Ct. 1557 (2016), Planned Parenthood of Kan. and Mid-Mo. v. Andersen, 882 F. 3d 1205 (10th Cir. 2018), and Gee v. Planned Parenthood of Gulf Coast, Inc., 862 F. 3d 445 (5th Cir. 2017).
In In Re: Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) (en banc), three Ohio death-row inmates challenged Ohio’s execution protocol (a sequence of three drugs) as cruel and unusual punishment under the Eighth Amendment, and the district court held in their favor. The Sixth Circuit initially affirmed, but this judgment was vacated for a rehearing en banc.
During reargument, Murphy defended Ohio’s controversial drug protocol, arguing that having inmates who “coughed, heaved, flailed their arms, and/or clinched their fists at some point during the execution . . . does not prove a sure-or-very-likely risk of severe pain.” A sharply divided en banc Sixth Circuit reversed. In dissent, Judge Karen Nelson Moore argued that as the district court had only granted a preliminary injunction, the plaintiffs should at least be permitted to have a trial on their claims as to whether the execution method was constitutional.
Murphy also advocated for the imposition of the death penalty on a criminal defendant despite the man’s claims that he had an intellectual disability. Murphy argued that the defendant’s death sentence should be carried out, despite several sub-70 IQ test scores and evidence of significant academic and social limitations. The Sixth Circuit sided with the state.
Murphy has ridiculed Justice Sotomayor’s dissent in Utah v. Strieff, 136 S. Ct. 2056 (2016), a Fourth Amendment Supreme Court case that allows evidence gleaned from unlawful searches to be introduced in court if the officer finds an outstanding arrest warrant. Justice Sotomayor’s dissent discussed the decision’s likely effect on racial profiling and cited studies on racial equality. Murphy criticized the dissent’s focus on racial justice, pointing out the defendant was white. He also compared it to Justice Elena Kagan’s dissent, which he called “more legalistic.”
During Murphy’s tenure as state solicitor, the state of Ohio also joined an amicus brief in the case.
While he was working at Jones Day, Murphy fought to allow pharmaceutical companies to sell drugs for uses that are not Food and Drug Administration (FDA) approved in the case United States v. Caronia, 703 F.3d 149 (2d Cir. 2012). Murphy filed an amicus brief on behalf of the Washington Legal Foundation. Murphy argued that the First Amendment protects the rights of individuals to speak truthfully about off-label uses of FDA-approved products, even in a commercial context.
As a former attorney for the tobacco industry, Murphy fought victims seeking compensation from cigarette companies. In R.J. Reynolds Tobacco Company v. Campbell, 60 S. 3d 1078 (Fla. Dist. Ct. App. 2011) (cert denied), Murphy challenged a jury verdict that awarded a victim’s family $7.8 million after finding that smoking cigarettes had caused the victim’s death.
In National Association of Manufacturers v. Dept. of Defense, 138 S. Ct. 617 (2018), the Supreme Court held that district courts have jurisdiction over challenges to the Clean Water Rule. Murphy argued on behalf of states challenging the rule.
Murphy also joined the Petition for Stay of Final Agency Action over the implementation of the Environmental Protection Agency’s Clean Power Plan. Ohio signed on to this petition to challenge the rule’s validity on several different grounds, including the argument that it infringes on states’ rights. The Clean Power Plan is an Obama-era regulation aimed at combating climate change by reducing carbon dioxide emissions, which the Trump administration has attempted to repeal. It appears that Murphy did not include his involvement in this case when he submitted a long list of cases he had worked on in response to the Senate Questionnaire for Judicial Nominees.
During Murphy’s tenure as state solicitor, Ohio joined a multi-state brief that sought to weaken the Endangered Species Act in the case Bldg. Indus. Ass’n. of the Bay Area v. U.S. Dept. of Commerce, 792 F.3d 1027 (9th Cir. 2015). The state also joined a brief in People for the Ethical Treatment of Prop. Owners v. U.S. Fish and Wildlife Serv., 852 F.3d 990 (10th Cir. 2017), challenging the constitutionality of a regulation issued under the Endangered Species Act.
Murphy signed an amicus brief in the case County of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017).
Additionally, Murphy was co-counsel on a brief for the state respondents in United States v. Texas, 136 S. Ct. 2271 (2016), opposing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
During Murphy’s tenure as state
solicitor, Ohio joined multi-state briefs in Trump v. Hawaii,
138 S. Ct. 2392 (2018), and Trump v. Int’l. Refugee Assistance
Project, 138 S. Ct. 353 (2017). In both of these cases, Ohio defended the
legality of two versions of Trump’s Muslim ban. In Trump v. Hawaii, the Supreme Court upheld the most recent version
of the travel ban.
During Murphy’s tenure as state solicitor, Ohio joined a multi-state brief supporting voucher laws in Colo. State Bd. Of Educ. v. Taxpayers for Pub. Educ., 137 S. Ct. 2325 (2017).
Affordable Care Act
Murphy defended the state of Ohio’s challenges to one of the Affordable Care Act’s tax provisions. In Ohio v. United States, 849 F.3d 313 (6th Cir. 2017), Ohio argued that the ACA’s Transitional Reinsurance Program should only apply to private employers, and that it violated the Tenth Amendment. The Sixth Circuit rejected Murphy’s “novel” challenge to the ACA.
Eric Murphy’s record illuminates the troubling stances he has maintained throughout his career. He has defended Ohio’s numerous attempts to restrict access to the ballot, disproportionately disenfranchising people of color and low-income Ohioans. He has advocated for bans on same-sex marriage. He has also attempted to dismantle women’s access to reproductive health care, defended the death penalty by means of controversial execution procedures, and condoned attempts to whittle away environmental protections and immigrants’ rights. For these reasons, Alliance for Justice opposes his confirmation to the Sixth Circuit Court of Appeals.