Monthly Archives: October 2020

The Case of the Precedented Nomination

I decided to take a break from the case of the week this week because, you know, things are happening in the world. You may have heard that the Republican-controlled Senate just confirmed Amy Coney Barrett to the United States Supreme Court. You may have heard that her nomination so close to the election was “unprecedented.” That, strictly speaking, is true, but the sentiment is false. While I appreciate the rhetorical efforts, American history is far too interesting to gloss it over with rhetoric.

How close is too close?

Has anyone ever been nominated and confirmed in the month or two before an election? No. She is the first. Since the ratification of the Constitution in 1788, there have been 120 confirmed Supreme Court justices. Of those, only 31 were nominated less than a year before the next election. Those 31 include:

The careful reader will note that that is only 23. If 31 were nominated less than a year before the election, what about the other 8? That’s the juicy stuff.

Benign Post-Election Nominations

By my count, eight justices were nominated and confirmed after the election but before inauguration. Three — Salmon P. Chase in 1864, Ward Hunt in 1872, and William Brennan in 1957 — were nominated by presidents who had just won reelection (Lincoln, Grant, and Eisenhower, respectively). A fourth (William Burnham Woods in 1880) was nominated by a president (Hayes) whose party had just won the election, though he wasn’t on the ticket.

Yawn. Boring. I promised juicy stuff. Let’s talk about the four who were nominated by outgoing presidents on the eve of the transfer of power.

Howell Edmunds Jackson

Howell Edmunds Jackson was nominated by Benjamin Harrison on February 2, 1893, just thirty days before the inauguration. Harrison, an Indiana Republican, had lost the election of 1892 to New York Democrat Grover Cleveland, 277 to 145. At the same time, the Senate flipped from a 47-39 Republican majority to a 42-38 Democrat majority. On January 23, 1893, about halfway between the election and the inauguration, Justice Lucius Quintus Cincinnatus Lamar died. Lamar had been nominated by Cleveland during his first term, so putting a Republican in his seat would be something of a coup, especially since the American people had just rejected Harrison and his party and brought Cleveland back.

But Harrison nominated Jackson, a Tennessee Democrat, appointed by Cleveland to the Sixth Circuit during his first term seven years earlier. My guess is that Harrison tried to find a Democrat who would be palatable to the Republicans. The Senate confirmed Jackson by voice vote on February 18, just two weeks before Cleveland’s inauguration. Jackson served only two years on the Supreme Court before dying of tuberculosis. He made two notable contributions: voting with the Democrats in the Income Tax Case and inventing the Supreme Court clerk.

Peter Vivian Daniel

Peter Vivian Daniel was nominated by Democrat Martin Van Buren on February 26, 1841 — exactly one week before William Henry Harrison’s inauguration as the first Whig president.

Andrew Jackson was extremely popular. But his vice president Martin Van Buren . . . let’s just say that the Little Magician was great at winning other people’s elections. In 1836, he rode Jackson’s coattails to victory over a divided Whig Party, 170-73-26-14-11 (yes, the Whigs nominated four candidates). By 1840, the Whigs had culled out their best ticket: Tippecanoe and Tyler Too. Harrison beat Van Buren, 234 to 60, and the Whigs gained six seats and took over the Senate, shifting from a 21-29 minority to a 27-22 majority.

So when Jackson-appointee Philip Pendleton Barbour died of a heart attack just a week before Harrison’s inauguration, the Democrats had to act fast or lose the seat. Barbour died on a Thursday; on Saturday, Van Buren nominated Peter Vivian Daniel, a federal district judge in Virginia, to the seat. The Whigs mobilized, but mobilization was hard in 1840. Only one Whig made it to the vote. [n.1] Daniel was confirmed by a 22-5 vote on March 3, 1841 — the day before Harrison and the Whigs assumed power.

Daniel served 19 mostly forgettable years. Most notably, he concurred in the Dred Scott decision, basing his decision on openly racist thinking. The most interesting thing about the Daniel nomination is what happened four years later.

Samuel Nelson

After Harrison beat Van Buren in 1840, Tippecanoe famously gave a long speech in the winter cold and died just a month into office. John Tyler assumed the presidency and was not well-liked. He has been accused of being a WINO (a “Whig in Name Only”), and the Whigs wouldn’t work with him on anything. Two justices died during his presidency: Smith Thompson (a Monroe appointee) in December 1843 and Henry Baldwin (a Jackson appointee) five months later. Both seats sat vacant for most of the rest of Tyler’s presidency, though not for lack of effort on his part.

Tyler nominated his Treasury Secretary, John Spencer, to succeed Thompson in January 1844. The Whigs in the Senate rejected Spencer three weeks later, 26 to 21. In March, Tyler nominated Reuben Walworth, the long-time Chancellor of New York (at the time, the highest judicial office in New York). When Baldwin died in April, Tyler nominated Edward King, a judge in Pennsylvania, for Baldwin’s seat. The Senate rejected both Walworth and King that summer.

Meanwhile, in the election of 1844, the Whigs replaced Tyler with Henry Clay on their ticket. Clay lost to Polk, 170 to 105, and the Democrats took back the Senate, shifting from 23-27 minority to a 27-24 majority. Facing the lack of both the power to nominate and the power to confirm, the Whigs finally worked with Tyler. In February 1845, less than a month before Polk’s inauguration, Tyler nominated New York trial judge Samuel Nelson to Thompson’s seat and Pennsylvania attorney general John Read to Baldwin’s. Nelson was confirmed by a voice vote; Read never got a vote.

The Whigs had an opportunity in 1844 to take two seats from the Democrats. Instead, they fought their own president and only got to take one seat, and that under icky circumstances. It shouldn’t be any surprise that the Whigs were out of business less than a decade later. Nelson, on the other hand, served on the Supreme Court for 27 years. He wrote a handful of notable opinions, including a concurrence in the Dred Scott decision (opining that federal courts had no jurisdiction over freedom suits) and a dissent in the Prize Cases (opining that Lincoln’s naval blockade of Southern ports was beyond the scope of the president’s war powers).

So just to be clear: Van Buren and the Democrats lost the election of 1840 but squeaked in their own nominee anyway in February of 1841. Four years later, Tyler and the Whigs lost the election but squeaked in their own nominee anyway in February of 1844. Turnabout, as they say, is fair play.

John Marshall

This discussion, of course, would be incomplete without the most consequential post-election nomination: John Marshall.

You know the story. John Adams and the Federalists got beat by Thomas Jefferson and the Democratic-Republicans in 1800, though the Federalists managed to hold on to the Senate. Sitting Chief Justice Oliver Ellsworth got sick and resigned shortly after the election. Adams’s first pick, John Jay, declined to resume the post he had midwifed from 1789 to 1795. Adams then nominated Marshall, his secretary of state, on January 20, 1801. The Federalist-controlled Senate confirmed by voice vote a week later. A few weeks after that, Adams engaged in the shenanigans that led to Marbury v. Madison, and the rest is history. Marshall sat on the court for the next 34 years, outliving the Virginia Dynasty and taking on the Jacksonian Revolution.


  1. According to one telling, the Whigs were purposely absent, in an attempt to deprive the Senate of a quorum. If so, somebody should have told Oliver Smith of Indiana.

Clear and Unequivocal as Mud

This week’s case is a funny little case from 2018: Wilmington Trust, N.A. v. Rob, 891 F.3d 174 (5th Cir. 2018). Kcevin and Angel Rob took out a home equity loan in July 2007. They stopped paying on the loan in March 2011. Over the next two years, Wilmington Trust [n.1] sent the Robs a series of notices of default, of intent to accelerate, and of acceleration. But, in November 2014, Wilmington Trust sent the Robs a notice of rescission of acceleration. The Robs continued not paying their mortgage, and Wilmington Trust sued for foreclosure in June 2015. The district court entered judgment in favor of Wilmington Trust, but the Fifth Circuit reversed.

Texas courts require clear and unequivocal notice of (1) intent to accelerate and (2) acceleration itself. “Unless a lender provides both forms of notice, it may not foreclose.”  Rob, 891 F.3d at 177. Here, Wilmington Trust may have provided clear and unequivocal notice at some point, but the notice of rescission in November 2014 made all of that very much less clear and unequivocal. Wilmington Trust, therefore, failed to prove that it had provided clear and unequivocal notice and was, accordingly, not entitled to a judgment of foreclosure. Trial court judgment reversed and rendered; game over.

BUT — this case should not be read as saying that Wilmington Trust can never foreclose. Rather, it should be read as saying that Wilmington Trust cannot foreclose yet. If the home equity loan has not yet matured, Wilmington Trust could probably just re-issue the notices of intent to accelerate and of acceleration, then sue for foreclosure. Sometimes you can stick it to the man a couple times, but you can’t stick it to him  forever.

  1. Technically, the notices were sent by one of Wilmington Trust’s predecessors in interest,  but that detail is not particularly important.

Minors must be served; no ifs, ands, or buts about it

One of my biggest fears as a lawyer—the thing that makes me wake up in the middle of the night—is that there is some technical gotcha that I have missed, that nobody complained about, but that nobody had to complain about. A recent case out of the Austin Court of Appeals helps explain what I’m talking about. In N.J. v. DFPS, No. 03-20-00259-CV (Tex. App.—Austin Oct. 9, 2020, no pet. h.), the court of appeals reversed and remanded a trial court order terminating the parental rights of a minor because minors cannot waive the requirement of formal service of process, no matter how much they participate in the lawsuit and trial.

The facts are these: N.J. was born in 2003. She gave birth to L.B. (the “Child”) in May 2018, at the age of fifteen. Two months later, on July 23, 2018, CPS received a report of neglectful supervision after N.J. tested positive for “illegal-drug use.” Slip Op. at 1. Ten days after that, CPS filed a petition to terminate N.J.’s rights and obtained emergency orders removing the child from N.J.’s care. An attorney was appointed for N.J., and for the next 16 months, N.J. appeared at and participated in hearings. In January 2020, N.J. presented her case to a jury and asked them (a) not to terminate her rights and (b) to appoint her ex-boyfriend’s mother (the Child’s paternal grandmother) as the managing conservator. The jury said no, and the trial court entered a final judgment in line with the verdict.

N.J. appealed, arguing that the trial court’s judgment had to be vacated because the fact that she was never actually, formally served with process meant that the trial court never actually obtained personal jurisdiction over her. In America, a court cannot render a judgment without having personal jurisdiction over all the parties. This is obtained primarily in one of two ways: either through consent (e.g., filing or participating in the lawsuit) or through compulsion (e.g., being served with citation or process).

Ordinarily, when a defendant appears and participates in a lawsuit, that defendant is deemed to have consented to the trial court’s jurisdiction and cannot later complain about the lack of formal service. But minors are different. Minors are “non sui juris, meaning [they are] considered to be under a legal disability and therefore lack[] the capacity to sue or consent to suit.” Slip Op. at 5 (citing In re M.M.S., No. 14-16-00349-CV (Tex. App.—Houston [14th Dist.] Sept. 22, 2016, pet. denied)). Because a minor legally cannot consent to suit, the minor’s voluntary appearance or participation in a lawsuit cannot count as waiver of service. See In re W.L.C., 562 S.W.2d 454, 455 (Tex. 1978). This is old, old law in Texas. See Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (1881). The idea is that we would not want to live in a society where a 15-year-old had to defend herself against the rich and powerful, well-organized apparatus of the State without the assistance of some adult on her side (other than her attorney).

Because a minor cannot consent to being sued, a plaintiff must formally, personally serve either the minor or, in certain circumstances, her legal guardian or next friend. See Slip Op. at 6 (citing several cases and rules outlining this rule). In this case, N.J. was 15 years old when the petition was filed, but neither she nor her legal guardian nor her next friend were formally, personally served with citation. So even though she appeared, answered, and participated in the lawsuit for 16 months and tried her case to a jury, the trial court never obtained jurisdiction over her.

Judgment reversed and remanded for retrial and one more reason for me to wake up in the middle of the night. [n.1]


  1. The reader may be interested to know that the procedural vehicle for challenging defective service is a motion to quash, not a special appearance. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); City of Houston v. Bryant, 516 S.W.3d 47, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Although a claim of a defect in the service of process challenges whether the trial court’s personal jurisdiction over the defendant has been properly invoked, such claims must be raised in a motion to quash, not in a jurisdictional challenge like a special appearance”). If a motion to quash premised on a curable defect in service is or should have been sustained, the remedy is “more time to answer,” not a take-nothing judgment for lack of personal jurisdiction. Fuentes v. Zaragoza, 555 S.W.3d 141, 159–60 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also Tough Corp. v. Xplore Tech. Corp. of America, No. 03-08-00368-CV (Tex. App.—Austin May 21, 2009, no pet.) (reversing for insufficient service and “remand[ing] the case back to the district court for further proceedings”). In other words, reversal on appeal for insufficient or defective service really means remand for a new trial.

Obstruction is not a crime of moral turpitude (at least in Minnesota)

The Eighth Circuit held in Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), that obstruction of legal process under Minnesota law is not a crime of moral turpitude sufficient to render an alien removable.

Jose Ortiz became a lawful permanent resident of the United States in 2002. Four years later, in 2006, he pleaded guilty to obstruction of legal process in violation of Minn. Stat. § 609.50, subdiv. 2(2) and was sentenced to one year in prison, with a two-year stay on 320 days of the sentence. Seven years after that, in 2013, DHS initiated removal proceedings against him, alleging that he was removable for (a) having been convicted of an aggravated felony and (b) having been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i), (iii).

The first round of appeals involved whether obstruction of legal process is an “aggravated felony.” The IJ said yes, and the BIA affirmed. The Eighth Circuit disagreed, holding that “the minimum amount of force required to sustain a conviction [for obstruction of legal process] is less than the level of force required to constitute a crime of violence.” See Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). The Eighth Circuit remanded for determination of whether obstruction of legal process is a crime involving moral turpitude, which resulted in this opinion.

To determine whether a particular crime is a “crime of moral turpitude” under the INA, courts apply the categorical approach. Importantly, the categorical approach is not a historical question; it does not ask any questions about the facts or allegations underlying the actual conviction. Instead, the categorical approach asks whether the elements of the offense “necessarily fit within” the BIA’s generic definition of a crime of moral turpitude. “If there is ‘a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of a crime’ involving moral turpitude, then the conviction does not categorically constitute a crime involving moral turpitude.” 962 F.3d at 1049 (quoting Moncrieffe, 569 U.S. at 191, and others). So you take the generic elements of the crime (not what may or may not have happened or been proved) and compare them to the definition of a crime of moral turpitude. If all the elements fit within the box of the definition, you have a crime of moral turpitude.

The Eighth Circuit discusses the offense of obstruction of legal process first, but I’m going to start with the definition of a crime of moral turpitude. Because the INA itself does not define “crime of moral turpitude,” courts give substantial deference to the BIA’s interpretation. The BIA has developed a two-prong definition. First, the prohibited conduct must be “per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” 962 F.3d at 1048. Second, “the offense must require ‘a culpable mental state’.” 962 F.3d at 1048 (quoting Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016) and others). In the context of Minnesota criminal law, “culpable mental state” means specific intent (i.e., something like evil intent, depraved or vicious motive, or corrupt mind), not just general intent. A general intent offense “is not considered to be a crime involving moral turpitude.” 962 F.3d at 1050 (citing Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007)).

Turning now to the offense of which Mr. Ortiz was convicted: obstruction of legal process is a general intent offense in Minnesota. 962 F.3d at 1050 (citing State v. Serrano, No. A14-0887, 2015 WL 2456982, at *2 (Minn. Ct. App. May 26, 2015)).

Comparing the elements, then: crimes of moral turpitude require specific intent; obstruction of legal process does not. Therefore, obstruction of legal process is not a crime of moral turpitude and conviction for it will not render an alien removable. Because the BIA reached the opposite conclusion, the Eighth Circuit granted Ortiz’s petition for review and vacated the removal order.