Michael Park

United States Court of Appeals for the Second Circuit

AFJ Opposes
Court Circuit Court

On November 13, 2018, President Trump nominated Michael H. Park to the Second Circuit Court of Appeals seat previously held by Judge Gerard E. Lynch, who took senior status. The Senate did not act on Park’s nomination before the end of the Congress, and on January 3, 2019, his nomination was returned to the President. On January 23, 2019, President Trump renominated Park.

AFJ strongly opposes Park’s confirmation for a number of substantive and procedural reasons.

Park’s nomination is being advanced
over the objections of both of his home-state senators, Chuck Schumer and
Kirsten Gillibrand. Consistent with Senate practice for nearly a century, the
Judiciary Committee should not proceed with a hearing without positive blue
slips from both senators. The Congressional Research Service has not found any known instance in which a nominee
has ever been confirmed over the objections of both home-state senators. As
Senator Orrin Hatch said in 2014, “[w]eakening or eliminating
the blue slip process would sweep aside the last remaining check on the
president’s judicial appointment power. Anyone serious about the Senate’s constitutional
‘advice and consent’ role knows how disastrous such a move would be.”

It is clear, moreover, why Senators Schumer and Gillibrand object to Park’s nomination. Park is a movement lawyer who has dedicated his career to advocating for ultraconservative causes. There is nothing in his record to suggest he will be a fair, unbiased jurist should he be confirmed. His career, thus far, has fulfilled a checklist of conservative causes – advocating against voting rights and affirmative action, women’s reproductive rights, tribal rights, workers, health care, consumers, and clean water.

Biography

Park graduated from Princeton University
and Yale Law School. He served as a law clerk to then-Judge Samuel Alito on the
Third Circuit Court of Appeals and then again for Alito when he became a
Supreme Court Justice. Park worked as an attorney at the Department of Justice
Office of Legal Counsel under the Bush Administration, from 2006-08, and also
worked at Dechert LLP. At Dechert, he represented Deutsche Bank AG in a civil
mortgage fraud lawsuit brought by the U.S. Attorney’s Office in the Southern
District of New York and defended Merrill Lynch and Credit Suisse First Boston
in securities actions.

Park, a longtime member of the
Federalist Society, became a partner in 2015 at Consovoy McCarthy Park, a
boutique law firm that “has become the go-to legal shop for conservative ideologues
looking to fight everything from voting rights to affirmative action to
abortion.” The firm led
the effort to erode voting rights and equal representation in Evenwel v. Abbott, 136 S.Ct. 1120 (2016). The firm’s founder, William
Consovoy, argued to cut the Voting Rights Act in Shelby County v. Holder, 133 S.Ct. 2612 (2013). The firm also is currently representing President Trump in a lawsuit over allegations that Trump has
violated the emoluments clause of the U.S. Constitution by maintaining business
interests that profit from spending by foreign countries.

Civil Rights

Park
has spent his career working to undermine civil rights. As Jon Greenbaum, chief
counsel at the Lawyers’ Committee for Civil Rights Under Law, said, “Michael Park has a demonstrated
record of hostility to civil rights, and it is hard to imagine he would change
his views as a judge.”

For example, Park, on behalf of the
Project on Fair Representation, is defending
the Trump Administration’s effort to insert a citizenship question into the
2020 census. The insertion of the
citizenship question would reverse 70 years of census practice and, as the
Leadership Conference on Civil and Human Rights, the Leadership Conference
Education Fund, Muslim Advocates, the National Association of Latino Elected
and Appointed Officials Educational Fund, the National Coalition on Black Civic
Participation, and 149 other organizations wrote,
would “violate[] the Census Bureau’s constitutional and statutory duties to
conduct a full enumeration of the U.S. population.” Former Census Bureau directors,
in an amicus
brief, explained: “The Census Bureau’s own
experts have concluded that the addition of a citizenship question is likely to
compromise data quality and census accuracy by depressing response rates and
introducing a differential impact on specific populations and the geographies
where those populations are most concentrated.”

Civil rights advocates emphasized that
inserting this question into the census would lead to a drastic undercount of
communities of color. In its amicus
brief, the Leadership Conference argued that
“including a citizenship question on the 2020 census will inflict grievous harm
on poor people and communities of color, with no countervailing benefit.”

In a lengthy opinion,
Judge Jesse Furman of the Southern District of New York rebuked the Commerce
Department for breaking “a veritable smorgasbord” of federal rules when it
ordered the citizenship question added. Judge Furman said Secretary Wilbur Ross
“cherry-picked” facts to support his argument, ignored contrary evidence and
kept Census Bureau experts in the dark. In addition, Furman discussed Ross’s
false or misleading statements under oath when he attempted to defend his
pretextual justification.

Moreover, Park is committed to dismantling equal opportunity programs. In 2012, he served as a key contributor in Fisher v. University of Texas, 133 S. Ct. 2411 (2013), writing an amicus brief on behalf of petitioner Abigail Fisher in support of her argument that the university’s use of race as one consideration among many in the admissions process was unconstitutional.

Park
is also representing the plaintiff group, Students for Fair
Admissions (SFFA), that has sued Harvard University for its
race-conscious admissions process. The case is considered “one of the most high-profile and
controversial lawsuits designed to end affirmative action in college
admissions.” Civil rights activists fear the Supreme Court’s conservative
majority could use the case to “end the consideration of race in admissions to
all universities and colleges,” and ultimately “shut out large numbers of
minorities from top schools.”

Previously,
Park also challenged affirmative action policies at the University of North
Carolina in Students
for Fair Admissions v. UNC, 319 F.R.D. 490 (M.D.N.C. 2017).

Women’s Health Care

Park has a
strong record of taking cases that threaten women’s rights. For example, Park
represented the state of Kansas in Planned Parenthood of
Kansas v. Andersen, 882 F.3d
1205 (10th Cir. 2018), after it attempted to defund Planned Parenthood and
banned it from participating in the state Medicaid program. After Planned
Parenthood sued, a trial court issued an injunction prohibiting the state from
cutting off funding, and the Tenth Circuit affirmed. As the
court said, states may not cut off healthcare providers from Medicaid “for any
reason they see fit, especially when that reason is unrelated to the provider’s
competence and the quality of the healthcare it provides.”

Park co-authored the
state’s petition for the Supreme Court to hear the case. In December 2018, the
Supreme Court denied certiorari.

Park was
also involved in defending the Trump Administration’s attack on the right of a
young immigrant woman in government custody, Jane Doe, to access abortion care,
in Garza v. Hargan, 304 F. Supp. 3d 145
(D.D.C. 2018). Park represented Scott Lloyd, director of the Office of Refugee
Resettlement, and Stephen Wagner, head of the Administration for Children and
Families at the Department of Health and Human Services. As
D.C. Circuit Court Judge Patricia Millett explained in her concurrence in Garza
v. Hargan, 874
F.3d 735 (D.C. Cir. 2017) (en banc) (vacated as moot), allowing Doe to
access her abortion care, Doe’s “capacity to make the decision about what is in
her best interests by herself was approved by a Texas court consistent with state
law. She did everything that Texas law requires to obtain an abortion.” The
young woman ultimately won the case and was able to access the health care that
she needed.

Tribal Rights

Park worked on two briefs
in Sturgeon v. Frost, advocating for
a position that could lead to the elimination of federal protection of
subsistence fishing rights for Alaska Natives. The largest nationwide tribal
organization, the National Congress of American Indians, emphasized
the danger this case poses to Alaska Natives. If Park’s position is adopted, as
Heather Kendall-Miller, an Alaska Native and attorney with the Native American
Rights Fund, said,
it “would be a death knell to us in Alaska, absolutely.”

The case “raises
questions about who has the authority to
regulate water in national parks” in Alaska – the federal government or the state.
The case arose after John Sturgeon was riding a hovercraft on a river running
through a national park, when National Park Service officials threatened him
with a citation for violating federal law. He sued,
arguing that the Park Service had no authority over the Nation River because
the State of Alaska, not the federal government, owned it. Because Alaska’s constitution prohibits the state from providing preferential fishing rights to
certain communities, a victory for Sturgeon would negatively transform Alaska
Natives’ longstanding fishing activity on the river.

In Sturgeon v. Masica, 2013 U.S. Dist. LEXIS 157078 (D. Ak. 2013) (subsequently named Sturgeon v. Frost), the district judge
held for the National Park Service. On appeal, the Ninth Circuit affirmed, 768 F.3d 1066 (9th Cir. 2014). The Supreme Court heard
Sturgeon’s case for the first time in 2016,
holding that the Ninth Circuit misinterpreted the applicable federal
statute. On remand, the Ninth Circuit held for the National Park Service on a different theory. The case is
again pending at the Supreme Court, which heard oral arguments on November 5, 2018.

Environmental groups also have major
concerns with Park’s position in the case. As several groups wrote
in an amicus brief, “[t]he authority of the Park Service over navigable waters
within the parks is critical to the parks fulfilling the purposes for which
they were established. . . If the Park Service did not have regulatory
authority over navigable waters within the parks, [the] mandate to protect
these areas would be impossible to fulfill.”

In another amicus
brief submitted by a group of Alaska Native subsistence users,
the native advocates argued,

The importance of subsistence fishing
to Alaska Native subsistence users cannot be overestimated. A ruling removing
federal reserved waters from the definition of “public lands” would be a
disaster for subsistence users considering “[a]pproximately 40 million pounds
of fish and wildlife are harvested annually by subsistence users, of which fish
account for 60 percent.”

Kendall-Miller emphasized
in the Anchorage Daily News that if
Park’s position is successful, it “could abolish all Alaska Native subsistence
fishing rights . . . so that one man can drive a hovercraft in a national
park.” She said
that if the Court rules for Sturgeon, “Alaska will be in a state of chaos when
the fishing season begins. There will be lots of civil disobedience. It will be
explosive.” Fred John Jr., a tribal member from Mentasta,
stated:
“I think as soon as you back up the Sturgeon case, you’re against the
Native way of life. That’s what the state wanted all these years, the power to
take subsistence back, which is for everybody. Once they do that, we’ve lost
everything.”

Immigration

On January 25,
2017, President Trump issued an executive order titled “Enhancing Public Safety in the
Interior of the United States.” The order threatened to cut federal funding for
local jurisdictions that Trump and then-Attorney General Jeff Sessions argued
were so-called “sanctuary” jurisdictions. The city of Chicago sued, challenging
the order, and the U.S. District Court for the Northern District of
Illinois agreed, ruled the order unlawful, and enjoined the attorney
general from enforcement. On appeal, Park filed an amicus brief on behalf of the National Sheriffs’
Association, arguing the district court decisions should be reversed.

Health Care

President Trump has explicitly stated
that he is looking for judicial nominees who are hostile to the Affordable Care
Act (ACA). In fact, he said
his “judicial appointments will do the right thing unlike Bush’s appointee John
Roberts on ObamaCare.” Park meets Donald Trump’s test in this regard, as he filed
an amicus brief arguing the Affordable Care Act was unconstitutional.

Tragically, the stakes for the health
and wellbeing of millions of people are all too real. Since the Republican
Congress failed in its attempts to repeal the Affordable Care Act, Trump is now
trying to use the courts to do so. Trump’s Justice Department has already
attacked the law that ensures insurance companies cannot deny coverage or
charge higher rates to people with preexisting
conditions. The legal attack Park supported would reportedly take
health care away from 52
million Americans, including cancer survivors, people
with diabetes, and pregnant women. As the American Medical Association and
other physician groups made clear, it “would have a devastating
impact on doctors, patients, and the American health care system
as a whole.”

Workers

After New York City issued an emergency
order to improve work conditions for low-income nail salon workers, Park sued
on behalf of salon owners, fighting efforts to protect workers.

In May 2015, The New York Times
published an exposé
on the poor health, safety, and labor conditions for low-wage nail salon
workers. The article detailed wage
theft, physical abuse, and health consequences from toxic product exposure.
Another study
found that more than one-third of workers in beauty salons were paid less than
minimum wage.

Soon after the first Times article appeared, Gov. Andrew
Cuomo announced a task force to inspect nail salons, and a state
investigation resulted in the finding of 116 wage violations at 29 nail salons.
Cuomo issued an emergency
order in August of 2015 requiring salons to purchase a “wage
bond,” which would give workers recourse to collect funds if owners are found
to pay their employees an illegally low wage. This was a requirement
that “received universal support from worker advocates.”

Park represented
the nail salon owners in their lawsuit, which commenced in September 2015. According to the court decision, the
plaintiffs argued that the wage bond mandate unfairly singled out an
Asian-dominated industry and was discriminatory. The Times reported that plaintiffs also argued that wage bonds were
“not readily available” because “too few surety companies offer the wage bond
and that those that do have such strict requirements — such as high personal
credit scores — that the bond is out of reach for many owners.”

In 2015, a court rejected this
argument, finding the emergency regulation was facially neutral and bore a
rational relationship to a legitimate state interest. In dismissing the
lawsuit, the court wrote that the state had “sufficiently demonstrated that
nail salon workers are being deprived of legally due wages and that immediate
adoption” of the regulation “was necessary for the preservation of the public
health, safety or general welfare of nail salon workers.”

Also relevant are Park’s efforts to
make it more difficult for workers injured by asbestos to hold corporations
accountable. In 2016, the New York Court of Appeals addressed
the question of whether a manufacturer has a duty to warn about
asbestos-containing parts made by a third party but combined with its
non-asbestos products. In this case, Crane Co. sold asbestos-laden products
without providing warnings, despite its knowledge of the dangers of exposure to
asbestos. The plaintiffs, Ronald Dummitt, a Navy boiler technician, and Gerald
Suttner, a pipe fitter at a GM plant, worked with Crane’s asbestos-laden
products. Both later died from mesothelioma.

Park, arguing on behalf of the Chamber
of Commerce on appeal, sought to reverse the juries’ judgments for the
plaintiffs. He suggested
that “is it not clear that a manufacturer is under no obligation, morally or legally, to warn of risks
presented by products entirely designed, manufactured, distributed, and
controlled by others [emphasis added]?” He added that even if harms were foreseeable
and manufacturers had an opportunity to warn, they should not have such a duty
– a duty which “would not enhance scarce resources but rather would waste
them.”

Park dismissed
the legitimate concerns of Dummitt and Suttner – and numerous other Americans
who have had health issues as a result of exposure to asbestos – as being pawns
of trial lawyers: “[A]sbestos may be the product area where tort plaintiffs
most need new industrial defendants to pay for their injuries.” In an endnote,
he added, “Amicus does not mean to impugn Plaintiff’s [sic] motives in this
regard. Members of the plaintiff’s bar owe a duty to pursue every plausible
possibility on behalf of their clients. But in considering questions of social
policy, this Court must keep its eyes open to the realities.”

As the New York State Trial Lawyers
Association noted,
“the inflexible rule” that Crane and Park “seek[] to have implemented in New
York…would immunize even those manufacturers that knew of the dangers of its
products and still failed to act.”

On appeal, the New York Court of Appeals
agreed with lower courts and found Crane liable for
failing to warn customers about the danger of asbestos insulation. It articulated the following rule: “[T]he manufacturer of a product has a
duty to warn of the danger arising from the known and reasonably foreseeable
use of its product in combination with a third-party product which, as a matter
of design, mechanics or economic necessity, is necessary to enable the
manufacturer’s product to function as intended.”

Public Zoning, Health, and Safety

Park has
been a vigorous advocate of expanding current “takings” doctrine to
second-guess local officials and to invalidate efforts by governments to
address the needs and rights of its citizens. See, e.g. Murr v. Wisconsin, 137 S. Ct. 1933 (2017) (rejecting Park’s argument that
restrictions preventing certain lots from development into building sites
constituted a governmental taking without just compensation); Leone v. Maui County, 404 P.3d 1257 (2017) (reaffirming the right
of counties to enforce regulation of coastal development against claims by one of the richest men in the county to
build a single-family residence); 616 Croft Ave., LLC v.
City of West Hollywood, 3
Cal.App.5th 621 (2016) (denying review
for Park’s argument that provisions under the City of West Hollywood’s affordable housing
ordinance constitute a taking without just compensation). Park brought two of
these cases pro bono.

Most illustrative are Park’s efforts to
fight affordable housing in California. In 2010, in response to a local and
regional affordable housing shortage, the City of San Jose passed a housing
ordinance requiring that at least 15% of new residential development projects
of 20 or more units be sold “at affordable prices.” The California Building
Industry Association challenged
the ordinance, claiming that it was an unconstitutional exaction under the
Takings Clause of both the California and U.S. Constitutions.

The California Supreme Court
unanimously upheld the regulation in Cal.
Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974 (Cal. 2015).
The court emphasized that such a restriction “is an example of a municipality’s
permissible regulation of the use of land under its broad police power.” The
court noted that the purpose was to combat the overall lack of affordable
housing and “to enhance the public welfare by promoting the use of available
land for the development of housing that would be available to low and moderate
income households.” The court explained that, with rare exception, “[a]s a
general matter, so long as a land use regulation does not constitute a physical
taking or deprive a property owner of all viable economic use of the property,
such a restriction does not violate the takings clause insofar as it governs a
property owner’s future use of his or her property.”

Park, pro bono, on behalf of the Cato
Institute, filed
a brief in support of the Building Association on appeal to the U.S. Supreme
Court. He argued
that “[h]owever laudable it is to construct affordable housing, the city is essentially
appropriating part of the developers’ property for its own uses or conditioning
the issuance of permits on paying out large amounts of money” and that the
“government imposes onerous conditions before allowing them to use their land.”
The Supreme Court denied review.

Then-California Attorney General Kamala
Harris made clear that the argument Park advocated would cause
great harm. As she wrote:

The rule of law at the center of this case . . . implicates the ability of state and local governments to regulate land use to balance California’s continued growth with environmental and social needs. The State and local governments routinely exercise their police power by enacting legislation that addresses environmental, public health, safety and social concerns. . . The rule [the Building Association] advocates could call into question actions under all of these routine but vitally important government programs.

Consumers

On behalf of
the Chamber of Commerce, Park fought FTC enforcement action against LabMD, a medical-testing
laboratory, after the company’s inadequate data security practices allowed
sensitive private medical and financial data for 9,300 patients to be exposed
to millions of internet users and downloaded. According to the FTC, the company
had “amassed a vast store of medical and other sensitive
personal information for more than 750,000 patients on its computer system.”
But “it systematically failed to use basic security measures to secure the data
from unauthorized access.” Park argued
that the FTC lacked the authority to regulate cybersecurity generally or to
bring actions against companies that fail to prevent sensitive information from
being released in data breaches.

Environment

Park took an active role in challenging
the Clean Water Rule, which expanded protection for two million miles of streams and 20 million
acres of wetlands. The rule would have helped ensure access to clean water for
all Americans.

Park represented
the U.S. Chamber of Commerce in a lawsuit against the EPA and U.S. Army Corps
of Engineers seeking to overturn the Clean Water Rule. In Nat’l Ass’n of Manufacturers v. U.S.
Dep’t of Def., 138 S. Ct. 617 (2018), he again represented the Chamber of Commerce, supporting trial court jurisdiction
to hear challenges to the Clean Water Rule. Park also hosted a Federalist
Society teleforum to discuss the litigation.

Conclusion

Throughout his career, Michael Park has worked to undermine civil rights. He has fought to include a citizenship question in the 2020 census and challenged equal opportunity programs at multiple universities. He has also worked to subvert the longstanding fishing rights of Alaska Natives, reduce access to abortion care, and protect the wealthy and powerful at the expense of workers. For these reasons, Alliance for Justice strongly opposes his confirmation to a lifetime seat on the federal bench.