Potential nominee profile: Raymond Kethledge (Corrected)
on Jul 7, 2018 at 3:29 pm
Like Thomas Hardiman, another potential nominee on the president’s shortlist, Judge Raymond Kethledge would bring educational diversity to a bench on which all of the current justices attended Ivy League law schools: He received both his undergraduate and law degrees from the University of Michigan. He has returned to the law school as a lecturer to teach classes on legal writing and advocacy. (While he is there, he could bump into another potential nominee on Trump’s shortlist, Judge Joan Larsen of the U.S. Court of Appeals for the 6th Circuit, who has also taught there.) During a decade on the bench, Kethledge has compiled an extensive body of opinions but has not weighed in on several high-profile and potentially divisive issues, including abortion and affirmative action. Conservative commentator Hugh Hewitt has nonetheless dubbed Kethledge “Gorsuch 2.0,” “in the mold of Antonin Scalia.”
Kethledge was born in New Jersey in 1966 but grew up in Michigan, where his father was a senior executive in the car business. Kethledge was a history major before law school; he graduated from law school magna cum laude in 1993. After graduation, he served as a law clerk to Judge Ralph Guy on the U.S. Court of Appeals for the 6th Circuit and later at the Supreme Court, clerking for Justice Anthony Kennedy. In between his clerkships, Kethledge did a stint in private practice and spent two years working as a lawyer for Senator Spencer Abraham of Michigan on the Senate Judiciary Committee – the same committee that would hold hearings to consider Kethledge’s nomination if he were nominated.
After the Supreme Court, Kethledge returned to private practice in Michigan, working first for a large Detroit firm and then starting his own law firm after a short time as an in-house counsel for the Ford Motor Company. While Kethledge was in private practice, his caseload focused heavily on civil and commercial litigation, primarily under state law. At his confirmation hearing, Kethledge told senators that his pro bono work had included working with Detroit residents to clear existing tax liens resulting from foreclosures by prior homeowners, so that they could renovate.
Kethledge’s route to the 6th Circuit was somewhat unorthodox. In June 2006, President George W. Bush nominated the then-40-year-old Kethledge to fill a long-vacant seat on the court of appeals, but Kethledge’s nomination stalled and then lapsed when Congress adjourned in December of that year. Bush nominated Kethledge again a few months later, but his nomination once again remained on hold until the Bush administration struck a deal with Michigan’s two Democratic senators, Carl Levin and Debbie Stabenow: Both Kethledge and Helene White, a cousin of Levin’s by marriage who had been nominated by Bill Clinton but never confirmed to fill a vacancy on the 6th Circuit, would go on the 6th Circuit. Kethledge was confirmed in June 2008 by a voice vote and took office 10 years ago today.
In his 10 years on the bench, Kethledge has been regarded as a strong writer. He was twice recognized by the Green Bag – a legal journal that bills itself as devoted to “short, readable, useful, and sometimes entertaining legal scholarship” – for “exemplary legal writing.” Perhaps not coincidentally, Kethledge writes his own published opinions, rather than having his clerks do the first draft. In an interview, he told the website Above the Law that “the process of writing makes me think so much harder about the subject than just editing does.”
At Kethledge’s confirmation hearing, Senator Sam Brownback of Kansas asked him to describe his “view of the Constitution, whether you see it as … a living document or as a strict constructionist.” Kethledge demurred, telling Brownback that he does not “really have a label that I can put on myself.” Instead, he explained, “obviously, first and foremost I would follow Supreme Court precedent.” But then he added that he “would make sure that the values I would be enforcing if I were a judge are not just my values.” “I would,” Kethledge concluded, “start with the text.”
Kethledge has more recently offered a better window into his views on judging and the law. In March of this year, he joined an opinion by Judge John Bush that concurred in the full 6th Circuit’s ruling against an inmate who argued that his Sixth Amendment right to the assistance of counsel was violated during his plea negotiations, even if he had not yet been indicted. Bush, joined by Kethledge, acknowledged that the court’s decision was dictated by current Supreme Court precedent, but they posited that the “history of the original meaning of the Sixth Amendment” would lead to a broader interpretation of when the right to an attorney exists. Therefore, they suggested, “the Supreme Court might wish to reconsider its right-to-counsel jurisprudence.”
During the term that just ended, the justices reviewed (and, by a divided vote, reversed) the decision that Kethledge had written for the 6th Circuit in Carpenter v. United States, an important cellphone-privacy case. Law-enforcement officials in Michigan had obtained historical cell site records, which indicate which cell towers connect with a cellphone while it is in use, for Timothy Carpenter, who was accused of being the mastermind behind a series of armed robberies. Officials used the records to place Carpenter in the vicinity of the crimes, but Carpenter argued that the records should be suppressed because police had not obtained a warrant for them.
Kethledge wrote for a three-judge panel upholding the district court’s ruling against Carpenter. Kethledge stressed that federal courts “have long recognized” the distinction between the substance of a communication, which is entitled to privacy, and the “information necessary to get those communications from point A to point B,” which is not. Here, he concluded, the cell site records “fall on the unprotected side of” the line because they “say nothing about the content of any calls” and instead simply “include routing information, which the wireless providers gathered in the ordinary course of business.”
Kethledge’s ruling was consistent with rulings by other courts of appeals, but the Supreme Court – by a vote of 5-4 – reversed. Chief Justice John Roberts wrote for the majority, emphasizing the extent to which cellphones have become ubiquitous in modern society, “conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.” “Given the unique nature of cell phone location records,” the court concluded, “the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.”
In 2008, the Supreme Court reviewed, although on an emergency basis, another ruling in which Kethledge had participated. Kethledge had joined a majority of the full 6th Circuit in upholding a district court’s ruling in favor of the Ohio Republican Party in a case involving the Help America Vote Act that liberal groups warned could have resulted in “last-minute disenfranchisement” for “thousands of eligible new Ohio voters.” The party had argued that the act requires states to successfully match voters with computer records in the state’s driver’s license database or the Social Security database before they can register to vote or have their votes counted. The district court granted the party’s motion to require Ohio’s secretary of state to give county election boards either lists of mismatches or a way to identify the mismatches, and the full 6th Circuit upheld that ruling. The secretary of state asked the Supreme Court to step in; in an unsigned order, the justices vacated the district court’s temporary order. The justices did not weigh in on the merits of the dispute, but instead concluded that the party had not shown that it was “sufficiently likely to prevail” on the question whether the district court has the authority to enforce the law in a case filed by a private party.
During his time on the bench, Kethledge has been a solidly conservative vote. He has almost uniformly voted in favor of the state and against the inmate in death-penalty cases. In United States v. Gabrion, Kethledge wrote for the divided en banc court in affirming a federal death sentence. Perhaps in response to the gruesomeness of the murders at issue in the case, Kethledge’s opinion used strong terms. For example, several of the inmate’s arguments centered on the fact that he was tried in federal, rather than state, court because one of the murders took place in a national forest in Michigan – which does not have the death penalty. Kethledge rejected the inmate’s argument that the absence of the death penalty in Michigan should have been a mitigating factor considered by the jury in determining his sentence, because he would not have otherwise been subject to the death penalty. Kethledge pointed to the Supreme Court’s caselaw indicating that mitigating circumstances can play a role in a defendant’s personal culpability. “That Michigan lacks a death penalty is irrelevant to a reasoned moral response to Gabrion’s background, character, and crime.”
Kethledge was similarly dismissive of the inmate’s argument that he should have been allowed to argue at his sentencing that there was some “residual doubt” about whether the victim was actually killed in the national forest. Kethledge wrote that “the exclusion of Gabrion’s residual-doubt argument was so palpably harmless as to render an opinion on the merits of the exclusion nearly advisory.” Indeed, he continued, although “most residual-doubt cases” hinge on whether the inmate “actually committed the murder, here the supposed doubt concerns only a technical jurisdictional issue that, though significant legally, is much less so morally.”
Kethledge’s conclusion also referred to the jury’s ruling in moral, rather than legal, terms. He observed that, “[a]fter 11 days of testimony and two days of careful deliberation, the 12 jurors who sat on this case decided unanimously that Marvin Gabrion deserved a sentence of death for what he did to” the victim. “We have no basis,” Kethledge stressed, “to set aside that moral judgment.”
Kethledge’s lone vote in favor of a death-row inmate came on a request for rehearing in Mitts v. Bagley, a capital case in which the three-judge panel had granted the inmate relief. Kethledge joined an opinion by Judge Jeffrey Sutton which opined that “this case was not decided correctly” but nonetheless concurred in the denial of rehearing on the ground that the traditional criteria for review by the full 6th Circuit had not been met.
And although Kethledge joined another opinion (once again by Sutton) that rejected a death-row inmate’s petition for habeas corpus, the opinion at least suggested that other relief from the inmate’s death sentence might be appropriate. In his conclusion, Sutton indicated that the ruling “is not necessarily the end of the road” for the inmate. “Among other things,” he explained, the inmate “has the right to file a clemency application with the governor to reduce his sentence from death to life in prison. In light of the many uninvited difficulties in his childhood, this application may be worth a serious look.”
In 2017, Kethledge wrote an opinion for the full 6th Circuit rejecting a challenge by three death-row inmates to Ohio’s lethal-injection protocol. The opinion began with a paragraph recounting the details of each man’s crimes, including how “Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs collapsed”; Gary Otte “went out partying” after each murder that he committed; and “Raymond Tibbetts killed an elderly man and his caretaker,” whom police found “slumped in his chair with butcher knives protruding from his chest and back” and “on the floor in a pool of blood with her skull cracked open and its contents scattered nearby.” Kethledge explained that the court “respectfully” disagreed with the trial-court’s decision blocking Ohio from using the protocol because the lower court had used the wrong legal standard. Kethledge also rebuffed the inmates’ other arguments that the protocol creates an unconstitutional risk of pain. He conceded that the inmates had shown “some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people.” And he added that “[d]ifferent people may have different moral intuitions as to whether—taking into account all the relevant circumstances—the potential risk of pain here is acceptable. But the relevant legal standard, as it comes to us, requires the plaintiffs to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain” – a showing that the inmates had not made.
Kethledge has not personally written any opinions involving gun rights, but his vote in one of them suggests that he would support a broader interpretation of the Second Amendment. In Tyler v. Hillsdale County Sheriff’s Department, the en banc 6th Circuit struck down a ban on gun possession by anyone who had spent time in a psychiatric facility. Kethledge joined a separate opinion by Sutton that agreed that the ban should be invalidated but argued that the lead opinion had not gone far enough because it left “the decision whether to give” the would-be gun owner “more process to the district court.” Sutton’s opinion also emphasized that the “Second Amendment establishes a fundamental right for American citizens to possess a gun.”
Kethledge is hard to pigeonhole on the First Amendment. In a 2012 case (Dixon v. University of Toledo), he joined a ruling in favor of the university in a case brought by a high-level African-American official who was fired after she wrote an op-ed critical of efforts to compare the civil rights and gay rights movements. The official had argued that she was merely expressing “her personal opinion and viewpoint on the issue of homosexuality and civil rights from the perspective of a Christian, African-American woman.”
The same year, Kethledge ruled in favor of a public transit agency and against a nonprofit that wanted to buy advertising space on a bus for an ad that included (among other things) the URL “RefugefromIslam.com.” The nonprofit, the American Freedom Defense Initiative, seeks to counter what it characterizes as capitulation to “the global jihad and Islamic supremacism,” but the transit agency rejected their request to buy the ad on the ground that it had a policy that barred content “that is political or that subjects any group to scorn.”
More recently, Kethledge joined the full 6th Circuit in an opinion in favor of a group of Christian evangelists, known as “Bible Believers,” in their federal civil rights case. The group argued that police officers violated their First Amendment rights by forcing group members to leave an annual Arab Festival, where the members wore T-shirts and carried banners with messages like “Islam is a religion of blood and murder” and carried a “severed pig’s head on a spike.” The 6th Circuit made clear that it did “not presume to dictate to law enforcement precisely how it should maintain the public order,” but added that “in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker.” “We simply cannot,” the court concluded, “accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.”
In 2012, Kethledge wrote an opinion for a three-judge panel that struck down Ohio’s ban on campaign contributions by Medicaid providers to candidates running for attorney general or county prosecutor. In a unanimous opinion joined by Judges Martha Daughtrey (a Clinton appointee) and Bernice Donald (an Obama appointee), Kethledge questioned the state’s argument that the ban was intended to prevent corruption, describing it as “dubious at best.” But in any event, Kethledge continued, the ban was too broad because it “prevents all 93,000 of Ohio’s Medicaid providers from contributing to candidates for Attorney General or county prosecutor” even if “only .003%” “were implicated in Medicaid fraud.” Kethledge conceded that the state’s legislature should have “some latitude in determining how to craft limits on campaign contributions, given that, as an empirical matter, courts are without a ‘scalpel to probe’ where the contours of a minimally restrictive limit might lie.” But, Kethledge continued, “neither can we stand by while the patient is euthanized. The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do.”
Kethledge has not weighed in on another controversial issue: affirmative action. In 2012, Kethledge recused himself (presumably because of his ties to the University of Michigan) when the full 6th Circuit reviewed a challenge to the constitutionality of an amendment to the Michigan constitution that would prohibit the state’s public universities from considering race in their admissions process. The court of appeals ruled that the amendment was unconstitutional, but in 2014 the Supreme Court – by a vote of 6-2 – reversed.
In 2013, Kethledge wrote for the majority in rejecting an argument by unions and union members that a state law barring schools from collecting union dues through payroll deductions, and thereby requiring the unions to collect their own dues directly from employees, violates the First Amendment. Kethledge saw the issue as a straightforward one, dictated by Supreme Court precedent; to the extent that the unions were effectively arguing that the law’s “real purpose is to suppress speech by teachers’ unions,” Kethledge stressed, “the law forecloses this kind of adventure.” Kethledge reasoned that the law “does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.”
Judge Jane Stranch dissented from the ruling. She argued that Kethledge’s majority opinion “mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from” the law’s “blatant viewpoint discrimination.” In particular, Stranch was troubled by “the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a ‘check on union power.’ The foundational requirement of viewpoint neutrality means little,” Stranch wrote, “if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state.”
If nominated and confirmed to the Supreme Court, Kethledge could be another vote to curtail the extent to which courts defer to administrative agencies. In a speech at the University of Michigan Law School last year, Kethledge reportedly criticized the idea that courts should defer to federal agencies under a legal doctrine known as the “Chevron doctrine,” which instructs courts to defer to an agency’s interpretation of a statute that it administers if the statute is ambiguous and the interpretation is reasonable. Alison Frankel of Reuters reported that Kethledge suggested that the Chevron doctrine “makes judges lazy” and “agencies sloppy”: “Deference brings latitude,” Kethledge said, “which can bring a sense that one is less accountable, which can bring a temptation to cut corners.” Citing several examples of cases that he had heard, Kethledge posited that “the agency is not trying to answer the same question that we are. The court tries to find the best objective interpretation of the statute, based on the statutory text. The agency instead asks if there is a colorable interpretation that will support the policy result that the agency wants to reach. When judges engage in that kind of analysis, we call it judicial activism. And most observers condemn judicial activism as an arrogation of legislative power to the judiciary. It is not clear to me why the result is any better when the arrogation is done by the executive.”
In April of this year, Kethledge expressed more skepticism about agency overreach when he (along with Judge Amul Thapar, reportedly another shortlister) joined a decision by a three-judge panel in favor of an Ohio church that operated a restaurant which was staffed in part by parishioners, who were not paid. A federal district court ruled that the church’s failure to pay the parishioners for their work violated the Fair Labor Standard Act’s minimum-wage law, and it awarded the federal Department of Labor $388,000 in damages, but the court of appeals reversed. Judge Eugene Siler wrote for the court, emphasizing that the Department of Labor’s argument was that the parishioners were spiritually – rather than economically, as the FLSA requires – coerced.
In a separate opinion, Kethledge was sharply critical of the Department of Labor’s argument, writing that its “premise—namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation—assumes a power whose use would violate the Free Exercise Clause of the First Amendment.” “What is perhaps most troubling about the Department’s position in this case,” Kethledge continued, “is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.”
Kethledge had equally strong words for the Internal Revenue Service in a 2016 case filed by Tea Party groups, who alleged that they were singled out for significant delays and additional requests for information when they applied for tax-exempt status. The IRS resisted the groups’ efforts to obtain documents containing the names of other targeted groups, arguing that it was obligated to keep the information confidential.
In an opinion for a three-judge panel that drew praise from The Wall Street Journal’s editorial board, Kethledge firmly rejected that contention. He began by observing that one of “the most serious allegations a federal court can address” is “that an Executive agency has targeted citizens for mistreatment based on their political views.” After reviewing the taxpayer privacy laws at issue and determining that the IRS was not entitled to withhold the information that the groups sought, he concluded that the laws were “enacted to protect taxpayers from the IRS, not the IRS from taxpayers.” He acknowledged that the “lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws—all of them, not just selective ones—in a manner worthy of the Department’s name. The conduct of the IRS’s attorneys falls outside that tradition.”
Not all of Kethledge’s writing is legal writing. Last year he published a book on leadership, called “Lead Yourself First,” with Michael Erwin, an former Army officer who (among other things) now heads a nonprofit to support veterans. The book, Kethledge and Erwin explain, is “based on the experiences of leaders—some contemporary, some historical—who have used solitude to function more effectively as leaders.” They chronicle everything from Dwight D. Eisenhower deciding when to give the order for D-Day to Jane Goodall’s campaign to change how we view chimpanzees to Pope John Paul II’s efforts to resist communism. The book also contains what could be interpreted as some very subtle tweaks of President Donald Trump: It laments that our “culture has become more strident than sublime, with a coarseness that has worn away the delicate alloy of beauty and decency that used to be called grace,” and it argues that the “examples of history—Lincoln, Churchill, Martin Luther King—show that a sublime leader is a more effective one, with an ability to inspire his followers rather than incite them.”
In his book, Kethledge also describes himself as a “strong introvert” who took “solo camping trips in the forests of northern Michigan” as a law student and now “heads up to his barn office looking out on northern Lake Huron, without any Internet connection, when writing opinions in difficult cases.” When he is not in his barn office, he lives near Ann Arbor with his wife, Jessica, and their two children – one son and one daughter.
An earlier version of this post identified Joan Larsen as sitting on the Michigan Supreme Court, where she served before joining the 6th Circuit last fall.