Kevin Newsom (Alison Church/Freelance)
Just 10 days after President Donald Trump was inaugurated, Sen. Richard Shelby’s chief of staff placed a call to Kevin Newsom, Alabama’s former solicitor general, to arrange a visit to discuss a vacancy on the U.S. Court of Appeals for the Eleventh Circuit.
The next day, Newsom flew to Washington to meet with Shelby and his fellow Republican senator from Alabama, Jeff Sessions, then on track to become U.S. attorney general, Newsom recalled in a 43-page questionnaire he has submitted to the U.S. Senate Judiciary Committee. In less than a week, the senators told Newsom they had sent his name to the White House in recommendation for the vacant post.
It has been a rapid rise for 45-year-old Newsom, currently a partner at Bradley Arant Boult Cummings in Birmingham where he heads the firm’s appellate practice. A Harvard Law School graduate who clerked for U.S. Supreme Court Justice David Souter and Circuit Judge Diarmuid O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit, Newsom was plucked from an associate post at Washington’s Covington & Burling in 2003 by Alabama’s then-attorney general, Bill Pryor, to be solicitor general and the state’s chief appellate lawyer. Newsom was hired eight months after Pryor was nominated by President George W. Bush to the Eleventh Circuit but while his nomination was stalled in the U.S. Senate.
After a four-year stint as solicitor general, Newsom entered private practice as a Bradley Arant partner. He has authored or contributed to 61 federal appellate and U.S. Supreme Court briefs—some with punchy if not provocative language—as lead counsel, counsel of record for friends of the court or supporting counsel.
Senate Judiciary Committee Democrats have already homed in on some of those cases, posing a series of questions that Newsom has answered in a supplementary questionnaire. Those questions included a reminder by Sen.Dianne Feinstein, D-California, that the post to which Newsom has been nominated has been vacant four years and that both Shelby and Sessions refused to allow President Barack Obama’s nomination of U.S. District Judge Abdul Kallon to go forward in 2016 by withholding their approval.
Feinstein queried Newsom about his support of a West Virginia coal company in Caperton v. A.T. Massey Coal Co., a case over a whether a state supreme court justice who had received more than $3 million in campaign contributions from Massey’s CEO should recuse in an appellate case involving the coal company. Newsom had weighed in for several states, including Alabama, on Massey’s behalf.
“Do you still believe it is proper for a judge to hear a case in which one party has made large contributions to that judge’s campaign?” Feinstein asked.
Newsom replied that the states he represented intended to make “the sole point” that the circumstances under which a state court judge should recuse “should be left to legislatures and bar committees.” But he also pointed out that his prediction that a finding that the justice was obligated to recuse could lead to numerous recusal motions in other cases “seems to have been incorrect.”
Feinstein also wanted to know why, when Newsom was Alabama’s solicitor general, he filed a brief in Rasul v. Bush arguing that the federal courts did not have jurisdiction to hear habeas challenges to the detention of foreign nationals incarcerated at Guantanamo Bay, Cuba.
Newsom said that arguments he put forth reflected the views of the state of Alabama, that he was not counsel of record, and he did not recall playing an active role in drafting the amicus brief.
Sen. Richard Blumenthal, D-Connecticut, questioned Newsom’s defense of Alabama’s practice of not providing death row inmates with postconviction counsel and highlighted the lawyer’s comments to ABC News that, “The idea that inmates are en masse unrepresented and wandering through the system alone is just not true.”
Newsom said he made the comment while defending Alabama in a class action suit over inmates’ right to state-funded, post-conviction counsel—a claim he said the Eleventh Circuit had unanimously agreed was “squarely foreclosed.”
Several Democratic committee members also sought to determine whether Newsom is a constitutional originalist, questioned his membership in the Federalist Society and asked what influence, if any, his association with the society might have on his judicial philosophy.
“I like ideas and the free exchange of ideas,” Newsom said. “At its core, the Federalist Society is an open-debate society. … Robust discussion about important legal issues is valuable, and in my experience, the Federalist Society plays a vital role in sustaining that discussion.”
But, he added, “my personal opinions and views will not be relevant to my role as a circuit court judge.”
Correction: The initial version of this article misreported that Newsom’s confirmation hearing was scheduled for Thursday, July 13. The Senate Judiciary Committee voted on his confirmation that day. Newsom’s hearing was June 14.