Motion to Invoke Cloture on Elizabeth L. Branch, of Georgia, to be U.S. Circuit Judge for the Eleventh Circuit: Elizabeth L. Branch, of Georgia, to be United States Circuit Judge for the Eleventh Circuit
This was a vote on “cloture” in the Senate, which means to end debate so that an up-or-down vote can be taken. A vote in favor is a vote to end debate and move to a vote on the issue itself, while a vote against is a vote to prolong debate or to filibuster.
Sen. Sheldon Whitehouse is the junior senator from Rhode Island and is a Democrat. Surprisingly, despite his aggressive videos talking about dark money and slating republican nominees, he voted FOR the judicial appointment of “nonpartisan” Federalist Society member Lisa Branch along with Feinstein, another turncoat Democrat. Whitehouse has served since Jan 4, 2007. Whitehouse is next up for reelection in 2024 and serves until Jan 3, 2025.
Judge Elizabeth L. “Lisa” Branch, President Trump’s second nominee to the Eleventh Circuit, is a state appeals court judge in Georgia with experience in the George W. Bush administration and as a BigLaw commercial litigator.
While she has not had the opportunity to opine much on constitutional law, either as an attorney or judge, Branch is a member of the conservative Federalist Society (as is Judge Kevin Newsom, Trump’s first pick for the Eleventh Circuit).
As such, her confirmation will likely ensure a conservative en banc Eleventh Circuit for the foreseeable future.
Elizabeth Lee Branch was born in Atlanta, Georgia, in 1968. She graduated from Davidson College in North Carolina in 1990, and from the Emory University School of Law in 1994. At Emory, Branch served on the Emory Law Journal and was inducted into the Order of the Coif, indicating her position in the top ten percent of her class. After law school, she clerked for two years in Atlanta for Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia. Thereafter, from 1996 to 2004, she worked at the law firm of Smith, Gambrell & Russell, LLP. This was followed by four years in the Bush Administration, where she served in non-litigating positions, first as the associate general counsel for rules and legislation at the Department of Homeland Security, then as the special assistant and counselor to the administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.
In 2008, Branch returned to Smith, Gambrell & Russell as a partner in the commercial litigation group, also working some on government affairs. In 2012, Branch was appointed by Governor Nathan Deal to the Georgia Court of Appeals.
While at the Georgia Court of Appeals, Branch has served and continues to serve on various internal court committees, and from 2013 to 2017 she also served as a commissioner, appointed by Governor Deal, on the Georgia Child Support Commission.
Among many other affiliations, Branch has been a member of the Federalist Society since 2001. She served on the Executive Board of the Atlanta Lawyers Chapter from approximately 2009 to 2012, and she has served on that chapter’s Board of Advisors from 2012 to the present. From approximately 2001 to 2003, and from 2006 to 2009, she was a member of the Republican National Lawyers Association. She was on the Chairman’s Council of the Fulton County Republican Party from approximately 2011-2012, and she was a member of the National Rifle Association from 2009 to 2014.
Prior to becoming a judge, Branch engaged with several political campaigns as an unpaid volunteer, including participating in the Republican National Committee’s 2006 door-to-door efforts supporting Rick Santorum (unsuccessfully) for a third Senate term.
History of the Seat
Branch has been nominated for a Georgia seat on the U.S. Court of Appeals for the Eleventh Circuit. The vacancy will result from Judge Frank Hull’s impending move to senior status. As Hull, one of the court’s solidly conservative members, has indicated that she will not move to senior status until the confirmation of her successor, there is not an active vacancy currently on the Eleventh Circuit.
Branch has never practiced before the Supreme Court of the United States, but rather has focused her career on commercial litigation and subsequent service in the federal government in a non-litigating position. Having not served in an attorney general’s or solicitor general’s office, she does not have a record of making controversial arguments or supporting controversial laws.
As part of the U.S. Senate’s Questionnaire for Judicial Nominees, Judge Branch was required to list the ten most significant litigated matters that she personally handled. All ten were civil, four settled, and none concerned constitutional law or civil-rights laws. Only one of the ten listed resulted in a reported decision. As such, it is difficult to determine her legal views on almost any subject from her work as an attorney. Branch’s pre-judicial career as an attorney does not appear, by itself, to shed any light on her views of separation of powers, federalism, privacy, equal protection, due process, religious freedom, or speech, for example. As will be noted, this is true of her judicial career as well.
Although Branch has been a state appellate judge for more than five years and has participated in more than 1,500 cases, her decisions say little about her views on constitutional law. This is because the Georgia Court of Appeals “has statewide appellate jurisdiction of all cases except those involving constitutional questions, murder, and habeas corpus cases where original appellate jurisdiction lies with the Supreme Court [of Georgia].” Her court nevertheless has jurisdiction “to address constitutional issues when they are well-settled as a matter of law,” and Judge Branch participated in a number of criminal appeals raising constitutional issues. As a whole, those criminal-law opinions do not reflect an anti-defendant bias. In a number of cases, Branch has granted new trials as a result of ineffective assistance of counsel and reversed denials of motions of suppress (or affirmed the grant of a motion to suppress), which resulted in some convictions being reversed.
But, by and large, her views on major issues of constitutional law are not available to us from her judicial record. That is not to say, of course, that nothing can be gleaned from her prior cases.
In a case seemingly designed to end up in blog posts such as this, Judge Branch held in Gary v. State that a man could not be convicted of criminal invasion of privacy under O.C.G.A. § 16-11-62(2) for recording video up a woman’s skirt with his cell phone while at the grocery store. Perhaps aware that the eyebrow-raising nature of the holding might draw attention–either upon entry of the decision or in future confirmation hearings such as the one at which she will soon appear–Judge Branch took pains to explain what she was and was not saying:
“Each of Gary’s first four enumerations of error turns on whether OCGA § 16–11–62 (2) criminalizes the conduct at issue. With respect to this question, both the State’s argument and the trial court’s holding focused on two propositions: (i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated. Rather, the only issue presented by this appeal is whether the defendant’s conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16–11–62 (2).
The answer to this question necessarily must begin with the language of OCGA § 16–11–62 (2) itself.”
Turning to that language–which makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view”–along with language from surrounding subsections and an earlier definitions section, Branch concluded that the term “private place” did not include a particular region of a person’s body. Five of her colleagues joined her opinion, and together they noted “that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. . . . The remedy for this problem, however, lies with the General Assembly, not with this Court. Both our constitutional system of government and the law of this State prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions thereof.” Three judges dissented, finding that the very same “plain and unambiguous language” of the statute yielded the opposite result.
Branch also resorted to plain statutory language in holding that two transgender men had a right to change their names, in In re Feldhaus. (Disclosure: the ACLU, for whom I work, filed an amicus brief in the case.) Although she pointedly did not use personal pronouns to describe the men–instead employing an awkward “the person formerly known as x” formulation–the judge formerly and currently known as Lisa Branch appropriately recognized that all the Georgia name-change statute requires is that a person not change their name in an attempt to defraud others, and that the transgender petitioners’ attempts to change their names to ones consistent with their gender identity in the cases before her were not an attempt to defraud others. In so holding, the judge formerly and currently known as Lisa Branch offered a clear rejection of the approach taken by the many state trial judges–not just in Georgia but across the country–who unlawfully burden transgender petitioners for name changes with additional requirements or criteria that are nowhere enumerated or implied and are not applied to any other class of petitioner.
Branch’s interpretation of purportedly plain language was not always uncontroversial. Beyond the skirt-photographing case described above, in the Cook case Judge Branch–joined by two colleagues–interpreted the federal Medicaid statute to be unambiguous in indicating that the Medicaid applicant’s purchase of an annuity was not subject to an asset-transfer penalty, and thus refused to defer to the relevant federal agency’s contrary interpretation. The Supreme Court of Georgia–while splitting on the degree of agency deference required–unanimously disagreed that the language unambiguously required Branch’s interpretation.
Preceding another prominent reversal on a matter of statutory interpretation, Branch formed part of a three-judge plurality that held that police officers of Agnes Scott College–a private college–were entitled to immunity as “state officer[s] or employee[s]” under the Georgia Tort Claims Act. (One judge concurred in the judgment, while three judges dissented.) The Supreme Court of Georgia unanimously reversed, finding it “clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.” Looking beyond the specific statutory provision considered by the Court of Appeals plurality, the Supreme Court of Georgia found that “reading the Georgia Tort Claims Act as a whole makes it abundantly clear that the immunity it provides is limited to torts committed by a ‘state officer or employee’ who was acting within the scope of his or her official duties or employment on behalf of a specific ‘state government entity.’”
In each of the cases described above, the distinguishing factor between Branch and her colleagues or the parties was statutory interpretation. What was plain to her was sometimes plainly different to her colleagues. This, of course, is true of all judges, and it will surely continue to mark her future cases, whether she remains in her current position or is confirmed to the Eleventh Circuit.
Branch does not have many publicly available non-judicial writings. While at OIRA, she co-authored a law-review article entitled “Managing the Regulatory State: The Experience of the Bush Administration.” While an assessment of the Bush Administration’s OMB–including its approach to “smart regulation” and its use of “prompt” letters–is well beyond the scope of this blog post, the piece is notable for its surprisingly statist–relatively speaking–acknowledgment of the importance of regulation:
“Every President from Richard Nixon to George W. Bush has embraced centralized executive oversight of agency regulations. Even critics of OMB acknowledge the legitimacy of a centralized oversight function. Presidents have found regulatory oversight to be necessary and desirable because: (i) the regulatory state is a permanent part of the legal landscape of the United States; (ii) the economic costs of the regulatory state are substantial; (iii) a consensus is needed when executive branch disagreements about regulation arise; and (iv) federal regulations are often necessary to achieve legislative objectives and implement Presidential priorities and policy objectives. Virtually all scholarship on this subject acknowledges the increasing importance of OMB’s role in regulatory policymaking over the past thirty years.”
Although the piece is highly technocratic, promotes science, and gives some amount of attention to so-called unquantified benefits such as a human health and environmental quality, it would be reading too much into this article to suggest that an appreciation of agency expertise will lead Branch to defer to that expertise when the statutory language does not require it. Instead, she will likely seek simply to apply language that she perceives to be unambiguous.
Branch’s legal career provides very little insight into how she would operate as an Eleventh Circuit judge faced with a wide range of constitutional questions, as she has not publicly staked out a position on any hot-button legal issue. Her most controversial public acts seem to be joining the NRA and supporting incumbent senator Rick Santorum, holder of a variety of controversial views. Branch’s membership in the Federalist Society is the clearest indication of where her judicial philosophies lie, and her confirmation would likely ensure a conservative en banc Eleventh Circuit for many years to come.
Senate Confirms Former Homeland Security Counsel for 11th Circuit
FEB. 27, 2018
WASHINGTON (CN) – The Senate confirmed its 14th Trump nominee to a seat on a federal appellate court on Tuesday, approving a Georgia judge to a seat on the Eleventh Circuit.
Judge Elizabeth Branch has served on the Georgia Court of Appeals since 2012, having worked in both the Office of the General Counsel at the Department of Homeland Security and the Office of Management and Budget during the Bush administration.
Branch, whom the Senate confirmed on Tuesday with a 73-23 vote, told Sen. Dianne Feinstein, D-Calif., that her experience at both agencies will be an asset on the bench as they gave her first-hand insight into the federal regulatory process.
In between her work in the Bush administration and her time on the Georgia Court of Appeals, Branch worked as a partner at the Atlanta firm Smith, Gambrell and Russell from 2008 to 2012.
While Branch was a relatively uncontroversial nominee, she faced questions at her nomination hearing in December on a speech she gave last year on the 14th Amendment in which she said she continues to “struggle with the application and predictability” of court rulings on substantive due process.
Substantive due process is not explicitly outlined in the Constitution, but has been gleaned from the due process clauses of the 14th and 5th Amendments. The theory has expanded rights into areas that do not involve legal procedures and has been instrumental in cases like Roe v. Wade and Griswold v. Connecticut.
Branch explained she gave the speech as part of Law Day activities for the Gainesville-Northeastern Bar Association and that she simply meant it can be hard to forecast how courts will rule in cases that touch on substantive due process. She insisted her comments have no bearing on her commitment to precedent.
“That’s the only issue I was raising, is that it’s hard to predict, as new cases come along, what the Supreme Court may do,” Branch said at her nomination hearing. “But that doesn’t really matter, whether or not I can predict what a future case will be, I am bound by the Supreme Court precedent in this area.”
A self-described “textualist and originalist,” Branch also faced questions from senators and liberal groups about an opinion she wrote on the Georgia court that reversed the conviction of a man who used a cellphone camera at a grocery store to record a video under a woman’s skirt.
Branch responded to a question about the case Feinstein submitted in writing after her nomination hearing by quoting large sections of her opinion, in which five other judges joined. The opinion reasoned that, while the man’s conduct was “reprehensible,” it was not illegal because it fell through a “gap” in the Georgia criminal code the court said has not kept up with quickly changing technology.
“The remedy for this problem, however, lies with the General Assembly, not with this court,” Branch wrote in the opinion. “Both our constitutional system of government and the law of this state prohibit the judicial branch from amending a statute by interpreting its unambiguous provisions thereof.”
A member of the conservative Federalist Society, Branch is the second Trump nominee the Senate has confirmed to the Eleventh Circuit, following Christopher Newsom.
President Donald Trump has a new seat to fill on the influential federal appeals court in Atlanta.
August 14, 2019
This week, Judge Gerald Tjoflat, the longest-serving active federal appeals court judge in U.S. history, told the president he’s ready to take senior status. Tjoflat will become a senior judge, with a reduced caseload, when his successor is confirmed by the Senate and sworn into office.
“One of these days the old engine is going to quit,” a chuckling Tjoflat said in a telephone interview from his chambers in Jacksonville, Fla. “It’s time.”
As for his many decades on the bench, the 89-year-old Tjoflat said, “I’ve absolutely loved it.”
Tjoflat has presided as a judge for more than 50 years, first on the state court and U.S. District Court benches in Florida. President Gerald Ford then nominated Tjoflat to the appellate court bench, where he began serving in December 1975.
That was six years before the appeals court split into two separate circuits. The 11th U.S. Circuit Court of Appeals is now headquartered in Atlanta. The other appeals court is in New Orleans.
This will be Trump’s fourth seat to fill on the 11th Circuit, which is allotted 12 judges and decides cases out of Georgia, Florida and Alabama.
So far, Trump has filled two Georgia seats with former Georgia Supreme Court Justice Britt Grant and former Georgia Court of Appeals Judge Elizabeth Branch. Trump filled an Alabama seat with former state Solicitor General Kevin Newsom.
The 11th Circuit sets precedents in the tri-state circuit on some of the contentious issues of the day, such as abortion, immigration, the death penalty, gay rights and voting rights.
The court is considered one of the nation’s most conservative when deciding cases on discrimination and harassment in the workplace. Its precedents have made it extremely difficult for plaintiffs to prevail in hostile work environment claims, so much so that most of the accusations get dismissed before they go to trial.
EMORY LAW NEWS CENTER
Lisa Branch 94L nominated for federal court judgeship
By Emory University School of Law | Emory Law | September 7, 2017
Today, President Donald J. Trump announced that he has nominated sixteen individuals to the following Federal judgeships, including Emory Law alumna Lisa Branch 94L.
If confirmed, Elizabeth L. “Lisa” Branch of Georgia will serve as a Circuit Judge on the U.S. Court of Appeals for the Eleventh Circuit. Judge Lisa Branch serves on the Georgia Court of Appeals, where she has served since her appointment by the governor in 2012. Prior to ascending to the bench, Judge Branch was a partner in the commercial litigation practice group at Smith, Gambrell & Russell, LLP in Atlanta, where she began her legal career in 1996. From 2004-2008, Judge Branch served as a senior official in the Administration of President George W. Bush. During this period, she served for three years as the Counselor to the Administrator of the Office of Information and Regulatory Affairs at the U. S. Office of Management and Budget, and for one year as the Associate General Counsel for Rules and Legislation at the U.S. Department of Homeland Security. Upon graduation from law school, Judge Branch served for two years as a law clerk to Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia.
Judge Branch earned her B.A. from Davidson College, cum laude, and her J.D., with distinction, from the Emory University School of Law, where she was inducted into the Order of the Coif and served as the notes and comments editor of the Emory Law Journal.
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