Potential nominee profile: Amul Thapar
on Jul 3, 2018 at 9:59 am
When President Donald Trump selected his first Supreme Court nominee a year and a half ago, only one of the final four frontrunners had never served as a judge on a federal appeals court: Amul Thapar, then a district-court judge for the Eastern District of Kentucky and a favorite of Senate Majority Leader Mitch McConnell. Although he lacked federal appellate-court experience, usually a prerequisite for a Supreme Court justice, Thapar was one of four candidates, along with Thomas Hardiman, William Pryor and the eventual nominee, Neil Gorsuch, to be interviewed personally by the president. Thapar was not Trump’s pick for that job, but he quickly became the president’s first nominee to a federal court of appeals: the U.S. Court of Appeals for the 6th Circuit, which covers Ohio, Michigan, Kentucky and Tennessee. And now, with the retirement of Justice Anthony Kennedy, and after more than a year on the 6th Circuit, Thapar is once again reported to be on a presidential shortlist of Supreme Court nominees winnowed from the current group of 25 prospective candidates.
Amul Roger Thapar, who turned 49 in April, has lived most of his life in the Midwest. He was born in Troy, Michigan, to parents who immigrated from India, and he grew up in Toledo, Ohio. He attended Boston College and then the UC Berkeley School of Law, where he received his J.D. in 1994. He served as a law clerk to district court Judge C. Arthur Spiegel in Cincinnati, Ohio, from 1994-96 and then to Judge Nathaniel Jones on the 6th Circuit from 1996-97. After a brief stint in Washington, D.C., where he worked in private practice and as an assistant U.S. Attorney for the District of Columbia, Thapar moved back to Ohio in 2001. As an AUSA for the Southern District of Ohio in 2002, he prosecuted fraud cases in Cincinnati and led a successful case against a conspiracy ring that provided undocumented noncitizens with state-issued driver’s licenses.
In 2006, reportedly at McConnell’s suggestion, Thapar was appointed as the U.S. Attorney for the Eastern District of Kentucky. (Thapar lived in a Kentucky town that was just across the Ohio River from downtown Cincinnati.) A year later, President George W. Bush nominated him to be a district-court judge. After Thapar was unanimously confirmed by the Senate in 2007, he became the first federal court judge of South Asian descent. On March 21, 2017, Trump nominated Thapar to the 6th Circuit. Thapar sailed through a confirmation hearing that lasted less than 90 minutes, and he was confirmed by the Senate by a vote of 52-44 on May 25, 2017.
According to a 2016 report in the Louisville Courier-Journal, “Thapar’s father, Raj Thapar, who owns a heating and air-conditioning supply business in Toledo, Ohio, says his son is so conservative that he ‘nearly wouldn’t speak to me after I voted for Barack Obama.’” The Lexington Herald Leader reported when Thapar was nominated to the 6th Circuit that “lawyers across the political spectrum praised [him] as a highly intellectual, thoughtful and hard-working judge.” At Thapar’s district-court confirmation hearing, McConnell told the senators that Thapar had “founded a brand-new chapter of the well-respected Street Law program, which sends law school students into underprivileged high schools to teach the basic underpinnings of our legal system.” The Associated Press reports that McConnell “has encouraged Trump to consider Thapar” for Kennedy’s seat. Thapar, who, according to his father, was raised to be culturally Hindu but not devout, converted to Catholicism when he married Kim Schulte. Thapar and Schulte have three children and live in Covington, Kentucky.
Most of Thapar’s judicial record comes from the district court, where he was known for sprinkling his opinions with folksy language and accessible references. One opinion in an insurance case featured a meditation on the humble penny, which “tend[s] to sit at the bottom of change jars or vanish into the cracks between couch cushions.” In another case, Thapar explained that if the owner of a bar “promised to pour [a] man a glass of Pappy Van Winkle” – a rare high-end bourbon – “but gave him a slug of Old Crow [a much lower-priced bourbon] instead, well, that would be fraud.”
Thapar’s tenure as a prosecutor may have influenced his approach to criminal law cases, in which he has often, but not always, come out on the side of the government. His most well-known criminal case as a district-court judge was United States v. Walli, in which three members of the Plowshares movement of Christian pacifists, including an 84-year-old nun, were charged with breaking into a federal nuclear plant in Oak Ridge, Tenn., and hanging banners, splattering blood and writing antiwar messages on the wall of a uranium-processing building. After the defendants were convicted of sabotage and damaging federal property, Thapar denied their motion for a judgment of acquittal on the sabotage charge, reasoning that the Constitution leaves the judgment of whether “it make[s] sense to deal as harshly with non-violent protesters as with foreign saboteurs” “to the policymaking branches, so the Court must interpret this criminal statute by its terms.” He then sentenced two of the defendants to five years in prison and the nun, Sister Megan Rice, to a 35-month prison term, saying that he hoped that a significant prison sentence would deter others from following the same path and bring them ‘back to the political system I fear that they have given up on.’” The sabotage conviction was later overturned by the 6th Circuit, in an opinion by another of Trump’s shortlisters, Judge Raymond Kethledge, who wrote that “vague platitudes about a facility’s ‘crucial role in the national defense’ are not enough to convict a defendant of sabotage.”
Thapar sat by designation (that is, he was acting as an appellate judge while he was still on the district court) in the 6th Circuit case United States v. Williams, in which the panel ruled that a sentence had to be vacated because the defendant had not been physically present at the sentencing proceeding. Thapar wrote a separate concurrence to object to the 6th Circuit’s rule about how deferentially a court of appeals should review a lower-court ruling to which a defendant did not object. Thapar argued for a rule under which the lower court would be reversed only if it committed plain error, even when neither party asks for that highly deferential standard to apply. Sitting by designation again on the 6th Circuit in United States v. Carr, Thapar dissented from an opinion suppressing evidence found after police officers blocked a suspect’s exit from a car wash and then found drugs and a gun in the suspect’s vehicle. Assuming that the officers had conducted a stop in violation of the Fourth Amendment, Thapar argued that suppression of the evidence was not required because “no good deterrent effect would occur from suppressing the evidence” and “the officers did exactly what society would want them to do.”
Another suppression case in which Thapar sat by designation on the 6th Circuit, United States v. Frechette, ended with a Thapar decision holding that suppression of evidence obtained via a search warrant in a child-pornography case was not required. The district court had determined that the supporting affidavit did not provide probable cause to believe child pornography would be present in the defendant’s home or on his computer because it stated only that the defendant had made a one-time subscription to a pornographic website. Thapar wrote that “if someone spends $80 for something, it is highly likely that the person will use it—whether it is a tie, a video game, or a subscription to a pornographic web site.” In a strong dissent, Judge Karen Moore objected to “the radical view of probable cause expressed in the majority opinion—a view far more expansive than any circuit has taken to date.”
On other occasions, though, Thapar has ordered suppression of evidence that he determined was obtained illegally. In United States v. Lee, Thapar suppressed a confession and other evidence obtained after DEA agents installed a tracking device on a suspect’s car without a warrant and declined to extend the good-faith exception to justify admitting the illegally obtained evidence because doing so “would give police ‘little incentive to err on the side of constitutional behavior.’” In United States v. Rice, Thapar suppressed evidence found at the defendant’s home because “[i]f the suppression rule applies at all, it surely applies when one’s home is invaded without probable cause,” and the affidavit contained no evidence linking the suspected criminal activity to the defendant’s residence. Most recently, since his appointment to the 6th Circuit, Thapar wrote a decision in United States v. Perkins holding that suppression was required after the government conducted a search even though the triggering event for an anticipatory warrant had not occurred.
Thapar discussed sentencing reform in a November 2015 speech at Columbia Law School, reportedly saying that “he supports ‘judicial craftsmanship’ in devising reduced sentences for first-time and low-level offenders, perhaps enrollment in drug treatment and job training programs instead of incarceration,” but that “he thinks current sentencing structure does not do enough to punish … repeat offenders.” In United States v. Bunkley, also a recent 6th Circuit opinion, Thapar wrote for a panel that affirmed an upward variance from the sentencing guidelines for a “large-scale, life-long drug dealer who fed addiction in his community,” but held that the district court had failed to explain its reasons for imposing lifetime supervised release.
Thapar’s death-penalty cases as a district-court judge were generally subject to the Antiterrorism and Effective Death Penalty Act, a federal law that sets a high bar for inmates attempting to obtain habeas corpus relief from their convictions. In most of those cases, Thapar ruled that the defendants had not cleared that bar. After joining the 6th Circuit, Thapar also signed onto an en banc majority opinion written by Kethledge that upheld Ohio’s lethal-injection protocol.
Thapar has tended to rule against inmates in noncapital habeas cases, which are also subject to AEDPA’s restrictions, and on at least one occasion he has expressed interest in reducing the availability of habeas relief. In a concurrence in Lawrence v. 48th District Court, Thapar, again sitting by designation on the 6th Circuit, lamented that circuit precedent required the court to consider the defendant, who had been convicted of resisting a police officer, as “in custody” and therefore able to seek habeas relief, even though he had been released on bond. Thapar wrote, “While there is nothing that this panel can do to bring the meaning of the term ‘in custody’ back to its plain meaning, perhaps Congress or the Supreme Court should restore the proper definition by clarifying what exactly is meant by ‘in custody.’” In Stiltner v. Brown, which was subsequently reversed by the 6th Circuit, Thapar rejected the claim of an inmate serving a life sentence that his mental incompetence entitled him to equitable relief from AEDPA’s one-year window for filing a habeas petition. Thapar wrote that, although the inmate was mentally incompetent, he “did not diligently pursue his rights.” But Thapar has granted post-conviction relief outside the AEDPA context. In United States v. Arny, later affirmed by the 6th Circuit, Thapar concluded that “Dr. Stephen Arny’s trial counsel’s inaction helped his adversary — i.e., the government — convict him of conspiracy to distribute controlled substances,” so Arny had received constitutionally ineffective assistance of counsel and was entitled to a new trial under Federal Rule of Criminal Procedure 33.
In civil cases, Thapar has written rulings that affect plaintiffs’ ability to litigate their claims. In Turner v. Astrue, a Social Security-benefits case, Thapar wrote an opinion denying attorney’s fees under the Equal Access to Justice Act, holding that the plaintiff had not “’incurred’ attorney’s fees … [when] he [was] not yet contractually obligated to pay his attorney.” Thapar acknowledged that “[i]f the EAJA fees dry up, as a matter of basic economics, there will be fewer attorneys willing to represent Social Security claimants in federal court,” but reasoned that “this practical effect cannot change the Court’s obligation to interpret and apply the text of the EAJA faithfully.” The 6th Circuit later reversed, holding that “[c]ontrary to the conclusion of the Turner court, our interpretation of ‘incurred’ does not create a windfall for litigants.” In Hill v. Lappin, Thapar dismissed as frivolous claims against federal prison officials for violations of an inmate’s constitutional rights, concluding that the inmate did not have a constitutional right to avoid prison transfers or segregated housing and that his fear of future harm by prison staff was speculative. In reversing, the 6th Circuit held that the “allegations in Hill’s complaint sufficiently state a First Amendment retaliation claim, especially in light of the ‘indulgent treatment’ that ‘[c]ourts are instructed to give … to the “inartfully pleaded” allegations of pro se prison litigants.’”
Once a civil case has survived the pleadings, Thapar has shown willingness as a district-court judge to allow a jury to consider the facts rather than granting summary judgment against the plaintiffs. For example, in Conn v. Deskins, Thapar denied summary judgment on some of the plaintiff’s due process and First Amendment claims in a retaliatory-discharge case. And in Bentley v Highlands Hospital Corp., a medical-negligence case, Thapar wrote, “In baseball, ties go to the runner. In summary judgment, ties go to the plaintiff. Why? Because civil litigants have a right to a jury trial. … And when a case comes down to a close call, the jury must be the one to make it.”
Thapar has also exhibited independent judgment in ruling for less powerful litigants in disputes with larger institutions. In M. Johnson Family Properties v. Jewell, he employed textual analysis of a federal statute in ruling that a mining company had not complied with minimum permitting requirements and ordering the company to stop surface coal mining on the plaintiff’s land. Hicks v. Colvin was a lawsuit brought by a Social Security claimant whose disability claim was denied because an unscrupulous lawyer had submitted false medical records as part of a wide-scale benefits-fraud scheme. Ruling that Amy Jo Hicks was entitled under the due process clause to present evidence of her disability in a redetermination proceeding, Thapar pointed out that “[i]f the government [had thrown her] in jail because she was a member of Al Qaeda, she would get a chance to challenge that factual assertion before a neutral arbiter.”
Thapar’s most notable First Amendment decision came in a campaign-finance case, Winter v. Wolnitzek, in which he enjoined enforcement of several Kentucky canons of judicial conduct governing contributions and statements by candidates for state judicial office. In striking down a canon prohibiting a judicial candidate from contributing to a political organization or candidate, Thapar stated that “under the Supreme Court’s precedents, direct speech and monetary speech are functional equivalents. … Thus, there is simply no difference between ‘saying’ that one supports an organization by using words and ‘saying’ that one supports an organization by donating money.” Therefore, he continued, the provision had to be strictly scrutinized and could only survive if it was narrowly tailored to serve a compelling government interest, which, in his view, it was not. In an opinion by Judge Jeffrey Sutton, the 6th Circuit reversed as to two of the canons, including the canon prohibiting contributions, and sent one other back for reconsideration. Sutton reasoned that although “[f]inancial contributions, we realize, amount to speech,” “[a] contribution of time, money, or reputation to a political organization or a candidate in a separate election, whether judicial or not, differs in kind and degree from a judicial candidate contributing the same to his own campaign,” and “[t]he contributions clause narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”
After joining the 6th Circuit, Thapar voted with an en banc majority to hold that a Michigan county board’s practice of opening legislative meetings with prayer by legislators does not violate the Constitution’s establishment clause. That case, Bormuth v. County of Jackson, conflicts with a recent ruling by the U.S. Court of Appeals for the 4th Circuit; the Supreme Court declined on June 28 to review the two cases. Thapar’s other religion clause cases generally involve challenges by prisoners to conditions of confinement that they claim deny them the opportunity to exercise their religion freely, and Thapar has ruled for the government most of the time.
Thapar has decided a number of civil-rights cases, with mixed results. Sitting by designation on the 6th Circuit, Thapar wrote an opinion dismissing a same-sex sexual harassment and retaliation claim, in Wasek v. Arrow Energy Services. After remarking on the ‘”key evidentiary differences between mixed-gender and same-gender sexual harassment,” Thapar stated that to prove discrimination, the plaintiff was required to demonstrate that his harasser was homosexual. In this case, however, the plaintiff had offered “no evidence of Ottobre’s sexuality other than the pure conjecture that Ottobre was ‘possibly bisexual,’ and he had therefore failed to establish a hostile work environment claim.” In Sours v. Big Sandy Jail, Thapar wrote an opinion holding that a nurse was entitled to summary judgment and partial immunity from suit in a federal- and state-law civil-rights case stemming from allegedly inadequate medical treatment at a detention facility. The 6th Circuit reversed on both points, stating as to the federal claim that “our holding that medical care that ‘is so cursory as to amount to no treatment at all’ constitutes deliberate indifference does not support the district court’s conclusion that there is no deliberate indifference unless the treatment amounted to no treatment at all.” In another civil-rights case, Thomas v. City of Eastpointe, this one decided after Thapar was appointed to the 6th Circuit, Thapar wrote an opinion awarding qualified immunity to a police officer in a suit for damages resulting from the officer’s use of his taser. But in Kiessel v Oversdorf, sitting by designation on the 6th Circuit, Thapar wrote an opinion upholding a lower court’s denial of qualified immunity to a sheriff and undersheriff in a case filed by sheriff’s office employees who claimed retaliation after the employees criticized the sheriff in a newspaper.
In a recent 6th Circuit case, Stein v. Atlas Industries, Thapar wrote an opinion reversing a grant of summary judgment for an employer in a case alleging unlawful termination under the Employee Retirement Income Security Act. Thapar stated that the employer had made a preliminary showing that he was dismissed to avoid the prospect of future medical costs that might be incurred by his son. But in Wagner v. The Sherwin-Williams Company, in an opinion selected by The Green Bag as an exemplar of good legal writing in 2015, Thapar held that under the Americans with Disabilities Act and Kentucky law, the paint company was justified in firing an employee whose stroke deprived him of peripheral vision and left him unable to drive.
In Viuda de Mejia v. Sessions, in 2017, Thapar wrote for a 6th Circuit panel that upheld a Board of Immigration Appeals decision denying a Salvadoran woman’s asylum claim. Noting that the woman was required to establish that she was or would be persecuted for being a member of a particular social group, Thapar remarked that “[h]er proposed social groups have … expanded and contracted with each appeal as she searched for the right fit,” but that “novelty is not often rewarded on appeal.” And in United States v. Agyemano, in 2015, Thapar rejected a motion to dismiss a charge of resisting deportation in the case of a noncitizen who came to the United States from Ghana on a student visa in 2003 but never enrolled in classes. Edward Darko Agyemano had been convicted already on a similar charge, and the court delayed his sentencing until Agyemano’s administrative challenge to the removal order, based on the immigration authorities’ failure to notify him of his right to appeal it, could be resolved. During that delay, federal agents again tried to deport Agyemano, and he was again charged with resisting deportation. Agyemano argued that it violated due process to charge him for violating the removal order because the order had been suspended while his challenge was pending. Thapar parsed the language of the relevant immigration regulations and came to a contrary conclusion. Thapar acknowledged that “[i]t may seem harsh to force Agyemano to obey a removal order while his appeal is still pending. But—save for extreme cases implicating constitutional protections—it is not for the courts to moderate the choices that Congress has made.” Another 2015 immigration ruling, in Lopez Hernandez v. Prindle, involved an issue that the Supreme Court will resolve next term: whether a noncitizen convicted of a crime becomes exempt from mandatory deportation if immigration authorities do not take him into custody immediately after his release from prison. Finding the immigration statute ambiguous, Thapar deferred to the interpretation of the BIA, which ruled that no exemption from deportation applied, but he noted that other courts have arrived at a different conclusion.
Insight into Thapar’s approach to judging comes from a review in the Michigan Law Review, written with Benjamin Beaton, of Judge Richard Posner’s book, “The Federal Judiciary: Strengths and Weaknesses.” Thapar and Beaton note that Posner argues for “an aggressive substantive pragmatism that eschews traditional limits of judicial restraint and democratic accountability.” But they ask: “Without an advance commitment to basic interpretive principles (those formal legal texts, precedents, and rules of interpretation this book disparages), who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law?” And they conclude that “the truly pragmatic judge is one whose rulings flow naturally from the governing legal text, the precedents reasonably interpreting that text, and the record of the case in a way that is predictable beforehand and ascertainable thereafter.” The Virginia Law Weekly reports that during a visit to the University of Virginia Law School to discuss Posner’s book, Thapar said he fears that Posner’s approach “may lead judges to decide cases based on what he termed the imaginary ‘Emotions Clause’ of the Constitution rather than the text itself. … He acknowledged that ‘textualism is hard,’ but argued that it is not the responsibility of the judiciary to amend poor legislative drafting, even if judges would personally prefer a different outcome than what is required by a statute’s text.”
Thanks are due to Aurora Temple Barnes for her significant contributions to the legal research for this post.