In the News
Daniel Bress
United States Court of Appeals for the Ninth Circuit
On February 6, 2019, President Trump nominated Daniel A. Bress to the Ninth Circuit
Court of Appeals seat previously held by Judge Alex Kozinski in California.
Bress’s nomination to the Ninth Circuit comes in the wake of President Trump’s repeated attacks on the independence of the circuit and his stated desire to obtain different rulings (see our report on fellow Ninth Circuit Trump nominee Kenneth Lee for more information). Bress is being nominated to advance the President’s far-right agenda and act as a reliable ideologue on the bench.
The White House did not meaningfully consult with Bress’s home-state senators, Dianne Feinstein and Kamala Harris – and neither senator has returned her blue slip on his nomination. Importantly, Bress is nominated to fill a California seat on the circuit, and both senators have highlighted his lack of connection to the state. As Senator Feinstein wrote, “[W]e raised concerns about Daniel Bress since he lives in Washington, D.C., not California, is quite young and has no judicial experience.”
On February 6, 2019, President Trump nominated Daniel A. Bress to the Ninth Circuit
Court of Appeals seat previously held by Judge Alex Kozinski in California.
Bress’s nomination to the Ninth Circuit
comes in the wake of President Trump’s repeated attacks on the independence of the circuit and
his stated desire to obtain different rulings (see our report on fellow Ninth
Circuit Trump nominee Kenneth Lee for more information). Bress is being nominated to advance
the President’s far-right agenda and act as a reliable ideologue on the bench.
The White House did not meaningfully
consult with Bress’s home-state senators, Dianne Feinstein and Kamala Harris –
and neither senator has returned her blue slip on his nomination. Importantly,
Bress is nominated to fill a California seat on the circuit, and both senators
have highlighted his lack of connection to the state. As Senator Feinstein wrote, “[W]e raised concerns about Daniel Bress since he lives
in Washington, D.C., not California, is quite young and has no judicial experience.”
Bress is a resident of Alexandria,
Virginia, a suburb of Washington, D.C. He has practiced law at the law firm of
Kirkland & Ellis LLP in Washington
for 11 years. In fact, the firm highlighted Bress as one of “D.C.’s rising stars” (not “California’s rising stars”)
in 2017. Bress’s professional connection to California is minimal, as he worked
as an attorney in San Francisco for only one year, from 2007-2008.
At a Judiciary Committee hearing on March 7, 2019, Senator Feinstein
said, “I don’t understand why the White House would choose someone with such a
limited connection to the state.”
Chairman Lindsey Graham appeared to agree: “[h]aving a nominee to the
circuit court with very little connection to California bothers me.”
Perhaps recognizing a potential hiccup
with his nomination, Bress has sought to embellish his California ties. In his
Senate Judiciary Committee questionnaire, Bress listed his current office
address as Kirkland & Ellis LLP in Washington. And, at least as of November
2018 – one month after it was publicly reported he was being considered for the Ninth
Circuit – his law firm’s profile provided only a Washington phone number.
Yet if one goes to his law firm’s website today, while his nomination is being considered by the Senate, it appears that Bress has obtained a San Francisco phone number. Given that he did not have a California number at least as of November 2018, this raises the question of whether he added a San Francisco phone number in an effort to fool the committee.
In 2011, Senator Ron Johnson of
Wisconsin blocked the nomination of Victoria Nourse, President Obama’s nominee
to the Seventh Circuit, because she “really has very little connection
to the state of Wisconsin, and nobody in the legal community in Wisconsin knows
anything about her.” In fact, Nourse, whom the Wisconsin Federal Nominating
Commission had recommended (unlike Bress, who was not recommended by his home-state
commissions), had been a professor of law at the University of
Wisconsin-Madison since 1994 – 16 years at the time of her nomination. By
comparison, Bress has spent one year, over a decade ago, practicing law in
California.
There are tens of thousands of lawyers
who live in California. The fact that President Trump bypassed these lawyers
and instead chose a Washington D.C. attorney with minimal professional ties to
the state suggests that Bress was not selected because of his legal ability or his
ability to neutrally apply facts to law. It suggests he was nominated because
President Trump knows Bress will be a reliable ideologue on a court Trump has
been fixated on, has vilified, and has sought to reshape. Alliance for Justice
opposes Bress’s nomination.
Biography
Bress, who is 39 years old, is a partner at Kirkland & Ellis
LLP in Washington, D.C. He briefly worked at Munger, Tolles & Olson LLP in
San Francisco, California, from 2007-2008. He has taught classes as an adjunct
professor at the Columbus School of Law and the University of Virginia School
of Law.
Bress clerked for Justice Antonin Scalia
on the U.S. Supreme Court and for Judge J. Harvie Wilkinson III on the Fourth
Circuit. He received his J.D. from the University of Virginia School of Law in
2005 and his A.B. from Harvard University in 2001.
Bress is on the advisory council of
Tzedek D.C., a nonprofit organization. He has also represented death row
inmates and criminal defendants on a pro bono basis.
Bress has been a member of the
conservative Federalist Society since 2003. In keeping with President’s Trump
pattern of selecting judicial nominees based on their membership in the
Federalist Society, Bress’s nomination comes as no surprise. Bress’s views are
also reflected in his decision to co-sign letters of support for other recent
Trump nominees to the federal judiciary, including Britt C. Grant for the Eleventh Circuit.
Education
Bress litigated pro bonoto convert a public elementary school
to a charter school in Anaheim County, California. In Ochoa
v. Anaheim City School Dist.,
11 Cal. App. 5th 209 (2017), Bress advocated under a controversial California parent-trigger law for the
enforcement of a petition for conversion to a charter school.
The law, California’s Parent Empowerment
Act of 2010, purports to empower parents in low-performing school districts to
force educational reform, yet the powerful and wealthy forces behind the law
seek increasing privatization of public education. In behind-the-scenes action
that is a far cry from grassroots advocacy, the American Legislative Exchange
Council (ALEC) utilized this law as a template for later state parent-trigger bills. ALEC has also drafted multiple controversial bills, including Florida’s Stand Your Ground law.
The specific parent-signed petition that
Bress defended was also backed by powerful corporate interests. The petition’s
campaign leader, Alfonso Flores, was paid $60,000 by a New York-based
organization called Ed Reform Now. Ed Reform Now’s PAC has spent millions of dollars advocating on behalf of
school privatization, working alongside the Koch brothers, corporate hedge
funds, and ALEC to attack teachers’ unions along the way. Among Ed Reform Now’s
many wealthy donors is Rupert Murdoch.
In Ochoa,
the court held that the plaintiffs met all the requirements of California’s parent-trigger law.
Despite holding for the petitioners, the Court of Appeals of California noted,
“we are not opining on whether public schools or charter schools are better for
the education of our children.”
Access To
Justice
Bress has repeatedly opposed the right of people to band
together in class action lawsuits and hold corporations accountable.
In a Law360 article, Bress offered advice for other
attorneys to “beat back the case on the merits, and secondly to block class
certification.” In defending class action suits, he said, “the key is to be
presenting your case to the court from day one with the goal not just to
respond to the allegations but also to show the court from the beginning that
the case is unwieldy and can’t properly be certified.”
In Williams
v. BASF Catalysts LLC,
765 F.3d 306 (3d Cir. 2014), Bress defended BASF Catalysts when thousands of
asbestos-injury victims sued because, among other claims, the corporation
allegedly deceived and misled plaintiffs into settlements by lying about the
facts. The plaintiffs alleged that BASF “used the absence of inculpating
evidence and the existence of false exonerating evidence to frustrate asbestos
injury suits.” Further, the court found that BASF concealed incriminating
documents in a secret storage facility.
In his brief, Bress argued that “[t]he plaintiffs’ failure to plead necessary facts
relating to their decedents’ underlying litigations is only confirmed by the
attenuated nature of any claim they could attempt to present.” The Third
Circuit did not agree. In reversing the district court’s dismissal of the claim of fraudulent concealment,
Judge Julio Fuentes rebutted, “[c]ommonsense and judicial experience
underscore the plausibility of [the plaintiffs’] claims.”
Bress has defended many other corporations
(see Corber
v. Xanodyne Pharmaceuticals, Inc.,
771 F. 3d 1218 (2014), Sumer
v. Carrier Corp., 2015
U.S. Dist. LEXIS 20731, Amar
Shakti Enters., LLC v. Wyndham Worldwide, Inc., 2011 U.S. Dist. LEXIS 93676) to
prevent consumers from joining together to hold them accountable.
Conclusion
Daniel
Bress was nominated without meaningful consultation with his two home-state
senators, who have expressed concerns about his youth and lack of connection
to the state of California. Further, President Trump has a clear goal to
reshape the Ninth Circuit with conservative ideologues. Based on these factors,
we believe Bress’s nomination represents yet another agenda-driven bypass of
the normal nomination process.
For these reasons, Alliance for Justice opposes his nomination.