WASHINGTON – The White House is considering five names to replace retiring Judge Paul Kelly Jr. of Santa Fe on the federal 10th Circuit Court of Appeals – including one surprise contender who is raising eyebrows in New Mexico’s legal community because of his lack of roots and legal experience in the state.
The list submitted by the White House to the state’s congressional delegation for review includes four candidates who fit the typical profile for what has traditionally been a New Mexico “seat” on the federal appeals court. They include Judge James Browning of the U.S. District Court in Albuquerque; Judge Miles Hanisee of the New Mexico Court of Appeals; Joel Carson, a lawyer with Carson Ryan law firm in Roswell and a part-time U.S. magistrate judge; and Ben Allison, a partner in the Santa Fe law firm of Bardacke Allison.
The surprising fifth name is William Levi, a 33-year-old Washington lawyer with the Sidley Austin firm, whose relatively short legal career has included stints clerking for Judge Anthony J. Scirica on the U.S. Court of Appeals and Supreme Court Justice Samuel Alito Jr. He also served as chief counsel for Sen. Mike Lee, a Utah Republican, on the Senate Judiciary Committee.
Levi’s family has owned the Ranney cattle ranch in Corona since 1968, according to the ranch’s website, but Levi told the Washington Examiner in 2016 that his hometown was Fair Oaks, Calif.
His biography on the Sidley Austin website makes no mention of New Mexico, except to say he has been admitted to the state bar. He also worked on the House re-election campaign of former Rep. Heather Wilson, a New Mexico Republican, in 2006. Wilson is now secretary of the Air Force.
Andy Schultz of the Rodey Law Firm in Albuquerque said Levi’s lack of New Mexico legal practice – and relatively limited legal experience related to the other contenders in general – is an issue.
“When I first saw his name on the list, my first reaction was ‘who?’ ” Shultz said of Levi. “He was not born in New Mexico and as far as I know he was not raised in New Mexico. If you do a search online, you will see he has never been listed as a counsel of record in any appellate case coming from New Mexico, either in state or federal court, and he’s never practiced with any New Mexico law firm.”
Schultz said that, if Levi were to win the appointment, “my perception is the legal community would be up in arms because they do not know this guy.”
The 10th Circuit hears appeals from the states of New Mexico, Colorado, Oklahoma, Kansas, Utah, Wyoming and parts of Montana and Idaho. In addition to Kelly, Judge Harris Hartz of Albuquerque sits on the court now as does senior status Judge Bobby Baldock of Roswell.
University of New Mexico law professor Michael Browde also said Levi is an unknown in the New Mexico legal community.
“He may have taken the New Mexico bar, but I wouldn’t call him active in any sense, and I think that’s somewhat offensive to the (New Mexico) bar as a whole,” said. “We pride ourselves on the number of New Mexico lawyers or practitioners who have been elevated to the federal bench. I think that is the tradition. The circuits are composed of active members of the bar of the various members of the circuit.”
Levi, who did not respond to voice and email messages left by the Journal, could face tough sledding in the Senate confirmation process.
Sen Tom Udall, D-N.M. and a former New Mexico attorney general, wrote a letter to White House Counsel Donald McGahn II in August, noting that a New Mexico background is crucial to wining his vote for confirmation.
“To gain my support, the president’s nominee must be a native New Mexican with a deep understanding of the legal issues that arise in the state, such as water rights, Indian law and public lands,” Udall wrote in a letter to McGahn on Aug. 9, before the White House had forwarded its list of potential nominees to the New Mexico congressional delegation.
Udall also noted in the letter that Browning “would be an excellent appellate court judge and I would accept his nomination contingent on a clean FBI background check and acceptable rating by the A.B.A (American Bar Association).”
Former Sen. Pete Domenici, a Republican, wrote a letter to Udall recommending Browning – a Hobbs native and former deputy under Republican Attorney General Hal Stratton – for the job.
Browning has been on the federal bench since 2003. Levi, meanwhile, has just seven years of legal experience.
American Bar Association guidelines say a federal judicial nominee “ordinarily should have at least twelve years’ experience in the practice of law.”
“In evaluating the professional qualifications of a nominee, the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important,” the American Bar Association guidelines also say.
One possible strike against Browning’s nomination is his age – at 61 he may be considered too old for the post because presidential administrations often like to appoint younger judges to lifetime positions.
The White House did not respond to a request for comment on the 10th Circuit court appointment decision.
Despite his seeming lack of New Mexico roots, no one disputes that Levi is on an impressive career track and hails from a family with stellar legal credentials.
He comes with a blue-chip educational pedigree, having graduated from Stanford University and Yale Law School in addition to clerking for Scirica and Alito and working for Lee. His father is the dean of the Duke University law school. Levi is also the grandson of the late Edward H. Levi, who served as the United States attorney general from 1975 to 1977.
Several members of the delegation declined to comment last week on the candidates or on whether they have concerns about Levi’s New Mexico experience.
“The New Mexico delegation continues to work together to identify and recommend qualified New Mexicans for presidential appointments, as it did with the U.S. Attorney and U.S. Marshal nominations,” said Sens. Udall and Martin Heinrich – both Democrats – and Rep. Steve Pearce, a Republican, in a joint statement.