Bloomberg Law
July 27, 2022, 5:32 PMUpdated: July 27, 2022, 7:52 PM

D.C. Circuit Nominee’s O’Melveny Work Draws Republican Focus (1)

Madison Alder
Madison Alder

A Biden nominee for the federal appeals court in Washington faced questions from Republicans over his past work on US Supreme Court cases involving religion, guns, and reproductive rights while a lawyer at O’Melveny & Myers.

Senate Judiciary Committee members—including Sen. John Kennedy (R-La.), Marsha Blackburn (R-Tenn.) and Ted Cruz (R-Texas)—grilled Justice Department lawyer Brad Garcia on that advocacy at a Wednesday hearing. Cruz alleged past work on cases revealed political leanings.

“Looking over your clients, it’s actually impressive just how much of a left wing advocate you’ve been,” Cruz said. He added Garcia’s record would position him well for political office and asked him if he would be an advocate on the US Court of Appeals for the District of Columbia Circuit.

Garcia, who at 36 would be among the youngest federal judges and the D.C. Circuit’s first Latino if confirmed, pointed to his career in private practice where he said the “bulk” of his work was representing Fortune 500 companies. He also said he had a track record of “working productively with clients and attorneys regardless of partisan affiliation.”

Garcia is a Harvard Law graduate and a former clerk for Justice Elena Kagan. He also clerked for former D.C. Circuit Judge Thomas Griffith, a George W. Bush appointee. In a letter of recommendation to the committee, Griffith praised Garcia’s “genial manner and temperament that will suit him well on a court that cannot play its critical role without collegiality.”

Garcia said in response to a question from Judiciary Chair Dick Durbin (D-Ill.) that his role as an advocate would differ from his role as judge if confirmed.

The exchanges are the latest example of lawmakers focusing on nominees past advocacy roles at their confirmation hearings. Nominees, no matter the party of the appointing president, frequently say their advocacy is separate from judging and positions they took on behalf of their clients wouldn’t impact how they apply the law.

A number of cases lawmakers focused on were part of Garcia’s pro bono work on Supreme Court cases.

That included his work on briefs arguing against a Louisiana law that required doctors to have admitting privileges at nearby hospitals in June Medical Services v. Russo; in support of arguments that there was no longer a live issue in the challenge to a strict concealed carry law in New York State Rifle & Pistol Association Inc. v. City of New York; and in support of a teacher who argued that she wasn’t a “minister” for the purposes of a doctrine that exempts religious organizations from employment discrimination laws in Our Lady of Guadalupe School v. Morrissey-Berru.

If confirmed, Garcia would join a court sometimes considered the “second highest” federal appeals branch and a springboard for future Supreme Court justices.

Young Nominee

Garcia’s age also raised questions of GOP committee members, who pointed to Democrats’ comments about the age of some of Donald Trump’s judicial nominees.

“This committee has some history with this question, and one person, that if he were applying the same standards, would come out squarely against your being qualified would be the chairman of this committee, Chair Durbin,” Cruz said to Garcia.

Cruz said Durbin opposed Trump’s D.C. Circuit nominee Justin Walker, who was two years older than Garcia at the time he was nominated to the circuit, based on his age an lack of experience.

Durbin, responding to Cruz, said that Garcia had an “extensive record.” Garcia’s advocacy includes arguing 13 cases before federal and state appellate courts, including a case before the Supreme Court, he said. Walker hadn’t “served as sole or chief counsel on any case tried to verdict or judgment,” Durbin said.

Walker was rated “Not Qualified” by the American Bar Association for his initial district court nomination but was later rated “Well Qualified” for the circuit court. Garcia also received a “Well Qualified” for the D.C. Circuit.

Kennedy also pressed Garcia on his age.

“Given your age and your experience, are there any partners at O’Melveny & Myers that have more experience that you think would make a better addition to our courts of appeal? Are you the very best that O’Melveny has to offer?” Kennedy asked.

Garcia said his former firm, where he made partner before assuming his senior role in the Justice Department’s Office of Legal Counsel in 2022, has “many incredible, incredible attorneys,” but that he “would hope to just be judged” on his record.

Fifth Circuit, District Picks

Fifth Circuit nominee Dana Douglas was also on the schedule at Wednesday’s hearing. Douglas, a US magistrate judge, is nominated to a Louisiana seat on the circuit and was introduced by Kennedy, who represents the state in the Senate.

Kennedy praised the reputation of the law firm where she has been a partner, Liskow & Lewis, but he didn’t indicate whether he would support her.

“Judge Douglas and I don’t know each other well. I haven’t had the pleasure. We had a good visit in my office, and I’m looking forward to her testimony today,” Kennedy said.

While home-state senator support isn’t needed for circuit nominees to advance, it can help a nomination move more smoothly through the process.

In a second panel, the committee also asked questions of a panel of three Biden district nominees. They were District of Michigan nominee Frances Behm, District of Minnesota nominee Jerry Blackwell, and Northern District of New York nominee Anne Nardacci.

(Adds additional detail about cases and questions about Garcia's age.)

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at