Senate Confirms Trump-Tapped Judge to Left Leaning First Circuit

Maine litigator Joshua Dunlap was confirmed to a federal appeals court seat in the state, where he’ll be the only active Republican-appointed judge.

The GOP-led Senate confirmed Dunlap, 52-46, along party lines on Tuesday to the US Court of Appeals for the First Circuit, a court that’s been a magnet for progressive litigants looking to challenge Trump administration policies.

Dunlap replaces Judge William Kayatta Jr., a Barack Obama appointee who once mentored Dunlap when the two worked at the Maine-based law firm Pierce Atwood.

Dunlap has spent most of his career as a civil litigator at the firm, where he’s co-chair of their Appellate and Amici team. His practice focuses on commercial litigation matters at the trial and appellate levels.

Opposition to Dunlap, however, focused on his policy advocacy regarding abortion access for minors to argue that his confirmation would threaten reproductive rights.

Colleagues of Dunlap say he will bring a calm and dispassionate approach and an “exceptional” legal mind to complex constitutional and administrative matters that would come before the circuit bench.

“He is very confident in his abilities but carries himself with great humility, and all of that just causes me to believe that he will be an outstanding judge and conduct himself in a terrific way,” said Pierce Atwood managing partner Dave Barry.

Appeals Litigator

Dunlap spent the entirety of his post-clerkship career at Pierce Atwood, where he worked under some of the most prominent New England lawyers in Supreme Court litigation.

He’s three-times served with Special Masters appointed by the high court to oversee original jurisdiction disputes.

He assisted Kayatta when the Supreme Court appointed him Special Master in Kansas v. Nebraska and Colorado, an interstate water dispute over whether Kansas violated a water resource pact with Nebraska and Colorado.

He also worked with Ralph Lancaster, who was four-times appointed Special Master over water conflicts and environmental disputes along the East Coast. One of those cases includes Florida v. Georgia, regarding water rights in the Apalachicola-Chattahoochee-Flint River Basin.

Among Dunlap’s own cases, he’s been a lead attorney in the push to construct a multi-continent energy project that’s attracted pushback from environmental groups. Dunlap’s legal work has involved blocking a ballot measure against the project and shielding progress on its construction from environmental degradation claims.

He was part of a team of Pierce Atwood lawyers who successfully blocked the project from appearing on a statewide ballot in 2021, after persuading the Maine Supreme Court that the referendum would violate the state constitution.

He also persuaded the First Circuit in Sierra Club v. United States Department of Army Corps of Engineers to affirm a preliminary injunction barring partial construction. The court held that the plaintiffs failed to show a likelihood of success on the merits. Environmental groups alleged that the Army Corps violated the National Environmental Policy Act by inadequately assessing the project’s environmental impact.

After a second ballot measure against the project succeeded, Dunlap was the architect of the firm’s legal strategy that convinced a unanimous jury to allow construction to continue. The Pierce Atwood team argued that sufficient progress had already been made on the project to establish so-called “vested rights” to finish it.

“It was wickedly complicated and involved all kinds of issues of first impression in Maine,” said Gavin McCarthy, chair of Pierce Atwood’s litigation practice group.

In Pensobscot Native v. Frey, he represented Maine municipalities and corporate entities who intervened in a dispute before the First Circuit regarding the boundaries of the Penobscot Nation reservation and its claims of jurisdiction over a portion of the 109-mile long Penobscot River.

Dunlap successfully convinced the en banc panel to affirm the court’s previous opinion that the reservation’s boundaries didn’t encompass the river or the submerged lands, but the “uplands of the islands within the river.”

Abortion Stances

Concerns over Dunlap’s nomination centered on his policy and political stances.

The Senate Judiciary Committee’s top Democrat, Dick Durbin of Illinois, pressed Dunlap at his July 30 confirmation hearing about written testimony Dunlap submitted to the Maine state legislature on a bill that would require minors to obtain consent from a parent or guardian to access abortion.

“Should a minor who is sexually assaulted or a victim of incest be forced to give birth if her parents cannot consent to her abortion?” Durbin asked at the hearing.

Dunlap said the unsuccessful bill would’ve aligned Maine’s law with those of other New England states, and that it was consistent with what the Supreme Court upheld in Planned Parenthood v. Casey.

“My own views are not relevant to the job that I would have should I be confirmed,” Dunlap said. “I would faithfully apply binding precedent, as well as any laws I would be required to interpret.”

Dunlap was also questioned on a letter he signed in support of a Maine bill that would allow for a wrongful death cause of action for the death of an “unborn viable fetus.” Reproductive rights activists argue that such statues have been used to criminalize miscarriages and abortions.

“Could that statute be applied to a woman seeking an abortion or to a doctor providing an abortion?” Sen. Sheldon Whitehouse (D-R.I.) asked Dunlap.

Dunlap said it wouldn’t apply in the context of abortion, that the statute exists in other New England states, and that “it hasn’t affected abortion rights in those states.” “It would have given grieving parents the opportunity to recover for a tortious death as that was defined in the statute,” he said.

Great Outdoors

Born and raised in Maine, Dunlap attended Pensacola Christian College in Florida for undergrad. He later earned his law degree from Notre Dame and clerked for Judge Paul J. Kelly Jr. on the Tenth Circuit.

The Waterville, Maine-native relishes the great outdoors in the Pine Tree State. “He likes to get away with his family, get to his camp, and relax a bit away from it all,” said Jared S. des Rosiers, a Pierce Atwood partner.