Raymond Kethledge

Raymond Michael Kethledge is a United States circuit judge of the United States Court of Appeals for the Sixth Circuit. He was appointed by President George W. Bush in 2008. Kethledge appeared on Donald Trump's list of potential Supreme Court of the United States nominees in 2016, and was described by press reports as a finalist in President Trump's nomination to replace Anthony Kennedy on the court.

Early life and education

Kethledge was born in Summit, New Jersey, the son of Diane and Ray Kethledge. His paternal grandfather was Raymond W. Ketchledge, an engineer who invented an acoustically guided torpedo that was used to sink dozens of German U-boats during World War II.
Kethledge grew up in Michigan, and has since lived in Michigan, with the exception of the three years he worked while in Washington, D.C. Kethledge graduated from Birmingham Groves High School in the Birmingham Public School District. He attended the University of Michigan, graduating in 1989 with a Bachelor of Arts degree in history. He then attended the University of Michigan Law School, graduating in 1993 ranked second in his class with a Juris Doctor, magna cum laude. He is a member of the Republican Party.

Career

After graduating from law school, Kethledge clerked for Judge Ralph B. Guy Jr. of the U.S. Court of Appeals for the Sixth Circuit from 1994 to 1995. After finishing his clerkship, he served as judiciary counsel to Michigan Senator Spencer Abraham from 1995 to 1997. Following that, Kethledge clerked for Associate Justice Anthony Kennedy of the Supreme Court of the United States from 1997–1998, where he worked alongside Stephanos Bibas in Justice Kennedy's chambers. Other notable clerks during the same term were Mary-Rose Papandrea and Sri Srinivasan, for Justices Souter and O'Connor, respectively.
After completing his Supreme Court clerkship, Kethledge returned to Michigan in 1998 to join the law firm of Honigman, Miller, Schwartz & Cohn, where he became a partner. In 2001, he joined Ford Motor Company as in-house counsel in the company's Dearborn headquarters. He later joined Feeney, Kellett, Wienner & Bush as a partner. In 2003, Kethledge co-founded a boutique law firm, now known as Bush, Seyferth & Paige, with its office in Troy, Michigan. In addition to his duties as a federal judge, Kethledge has taught courses at the University of Michigan Law School, including "Fundamentals of Appellate Practice," which focuses on the elements of good legal writing, and Federal Courts.

Federal judicial service

Kethledge was first nominated to the United States Court of Appeals for the Sixth Circuit by President George W. Bush on June 28, 2006, to replace Judge James L. Ryan. From November 2001 to March 2006, Henry Saad had been nominated to the seat, but he had been filibustered by the Senate Democrats and later withdrew. Kethledge's nomination lapsed when the 109th Congress adjourned in December 2006. Bush again nominated Kethledge on March 19, 2007. However, his nomination stalled for over a year due to opposition from Michigan's two Democratic Senators, Carl Levin and Debbie Stabenow.
In April 2008, the Bush Administration struck a deal with Levin and Stabenow to break the logjam on judicial nominees to federal courts in Michigan. In exchange for Levin and Stabenow supporting Kethledge's nomination, Bush also nominated Democratic Michigan state judge Helene White, a former Clinton nominee to the Sixth Circuit who had been married to Levin's cousin at the time of her first nomination. Soon afterwards, Kethledge, White, and Murphy were all nominated as a bipartisan package of nominees and granted a joint hearing before the Senate Judiciary Committee on May 7, 2008. Kethledge was voted out of committee by voice vote on June 12, 2008. On June 24, 2008, he was confirmed by voice vote, almost exactly two years after his original nomination. He received his commission on July 7, 2008.
In 2014, The Wall Street Journals 'Review & Outlook' editorial described Kethledge's ruling in EEOC v. Kaplan as the "Opinion of the Year". In 2016, in another 'Review & Outlook' editorial, the Wall Street Journal'' cited Kethledge's opinion in ', 817 F.3d 953, saying: "Writing for a unanimous three-judge panel, Judge Raymond Kethledge dismantled that argument and excoriated the IRS for stonewalling..." Commentators have noted that Kethledge has "broadly criticized judicial deference and specifically criticized deference to federal agencies under Chevron" and "has set himself apart as a dedicated defender of the Constitution's structural protections."
In May 2016, Kethledge was included on President Donald Trump's list of potential Supreme Court justices. On July 2, 2018, Kethledge was one of the four circuit judges given a personal 45-minute interview in consideration of the vacancy created by Justice Kennedy's retirement.
In October 2019, Judge Kethledge became chair of the Advisory Committee on Criminal Rules. He has served on the committee since 2013.

Judge Kethledge's originalism

In July 2018, conservative radio host Hugh Hewitt wrote an op-ed in The Washington Post endorsing Kethledge for the seat left vacant by Associate Justice of the Supreme Court of the United States Anthony Kennedy's retirement and declared, "Kethledge has been faithful for more than a decade to the originalist approach." In , 885 F.3d 949, 955, Kethledge joined a concurring opinion that argued "faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified." In , 837 F.3d 678, 710. Kethledge joined a concurring opinion that quoted District of Columbia v. Heller and declared, "What determines the scope of the right to bear arms are the 'historical justifications' that gave birth to it."

Book

In 2017, Kethledge coauthored a book with Michael S. Erwin, a West Point graduate and military veteran. The book, entitled Lead Yourself First: Inspiring Leadership Through Solitude, details how leaders can benefit from solitude. Among the leaders profiled in the book are Pope John Paul II, General Dwight D. Eisenhower, Reverend Martin Luther King, Jr., and many others. Through these profiles, Kethledge illustrates how leaders must identify their first principles "with enough clarity and conviction to hold fast to —even when, inevitably, there are great pressures to yield." Doing so, Kethledge writes, requires "conviction of purpose, and the moral courage" to choose principle over popularity.
The book has been reviewed on Above The Law, in The Washington Post, and in Publishers Weekly. ''The Wall Street Journal'' said the book "makes a compelling argument for the integral relationship between solitude and leadership."

Notable opinions

Almanac has recognized Judge Kethledge for "exemplary legal writing" in two different years: in 2013 and in 2017.

Major cases

In 2008, Kethledge wrote a concurrence when the full en banc circuit agreed with the Ohio Republican Party's claim that the Help America Vote Act required the state to match voters' registrations with other public records. In October 2008, the Supreme Court unanimously reversed that judgment in an unsigned opinion.
In Michigan v. Bay Mills Indian Community, Kethledge wrote for a unanimous court when it found that tribal sovereign immunity and the Indian Gaming Regulatory Act prevented the state from blocking construction of an Indian casino. In May 2014, the Supreme Court affirmed that judgment by a vote of 5–4.
In May 2013, Kethledge wrote for the en banc circuit when it affirmed the death sentence of Marvin Gabrion. Gabrion had murdered Rachel Timmerman, a 19-year-old woman who had reported him for raping her. He bound and gagged her, tied her to concrete blocks, and drowned her in a weedy lake. Because he murdered Timmerman in a national forest, Gabrion committed a federal crime and was also eligible for the death penalty even though the surrounding State of Michigan had outlawed that penalty. The United States charged Gabrion with murder. A jury convicted him and imposed the death penalty. On appeal, Gabrion argued that the district court should have allowed him to argue to the jury that a death sentence was unfair because he would have been ineligible for that sentence had he murdered Timmerman in nearby Michigan territory. According to Gabrion, the murder's location was a "circumstances of the offense" and thus the kind of "mitigating factor" the Eighth Amendment and Federal Death Penalty Act allow a jury to weigh during sentencing. Writing for a majority of the en banc court, Judge Kethledge rejected that challenge. He wrote that not every "circumstance of the offense" is a "mitigating" factor; otherwise, jurors could consider the "moonphase" during sentencing. Kethledge further explained that mitigating evidence is evidence relevant to a "reasoned moral response to the defendant's background, character, and crime," and that the murder's location was not that kind of evidence.
In ', the Sixth Circuit considered the constitutionality of a Michigan law that made it illegal for public-school employers to use their resources to collect union dues. As a result of the law, unions had to collect their own membership dues from public-school employees. A number of Michigan public-school unions and union members filed suit, alleging that the law was unconstitutional. Judge Kethledge, writing for the majority, disagreed. The law does not violate the First Amendment, Judge Kethledge explained, because the law "does not restrict the unions' speech at all: they remain free to speak about whatever they wish." As for the unions' Equal Protection challenge, Kethledge first observed: "The applicability of rational-basis review is a strong signal that the issue is one for resolution by the democratic process rather than by the courts." Judge Kethledge then went on to conclude that there is a conceivable legitimate interest in restricting the use of public-school resources. As a result, the law does not violate the Equal Protection Clause.
Kethledge recused himself when the en banc circuit found that Michigan voters could not amend their constitution to ban affirmative action. In Schuette v. Coalition to Defend Affirmative Action, a plurality of the Supreme Court reversed that judgment by a vote of 6–2.
In ', 748 F.3d 749, the EEOC alleged that Kaplan's policy of running credit checks on job applicants had a "disparate impact" on African American applicants. To support its claim, the EEOC hired an expert witness who reviewed an unrepresentative sample of Kaplan job applications and asserted that the credit checks had flagged more African American applicants for scrutiny than white applicants. The purported expert had identified the applicants' races by tasking "race raters" with "eyeballing" the applicants' drivers' license photos. The District Court struck the expert's analysis as unreliable. On appeal, Judge Kethledge wrote a unanimous opinion affirming. He explained that the EEOC had relied on a "homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself." The Wall Street Journal's Editorial Board later commended Judge Kethledge for writing the "" and delivering a "sublime" "legal smackdown" that "eviscerated the EEOC like a first-day law student."
In , 817 F.3d 953, the NorCal Tea Party Patriots filed a class action against the IRS for targeting conservative groups "for mistreatment based on their political views." The district court ordered the IRS to disclose, among other internal records, the list of the groups it had targeted. Rather than complying with that order, the IRS appealed. In an opinion for the unanimous majority, Judge Kethledge called the allegations "mong the most serious a federal court can address" and, according to the Wall Street Journal, "excoriated the IRS for stonewalling during discovery." Judge Kethledge ordered the IRS to "comply with the district court's discovery orders... without redactions, and without further delay." And he rebuked the IRS's attorneys for failing to uphold the Justice Department's "long and storied tradition of defending the nation's interest and enforcing its laws—all of them, not just selective ones—in a manner worthy of the Department's name." That opinion was also praised by the Wall Street Journal's Editorial Board.
In United States v. Carpenter, Kethledge wrote for the divided court when it found that the Fourth Amendment to the United States Constitution did not require police to get a warrant before obtaining the cell site location information of a mobile phone. In June 2018, the Supreme Court reversed that judgment by a vote of 5–4.
In June 2017, Kethledge wrote for the en banc circuit when it, by a vote of 8–6, rejected the claims of Gary Otte, Ronald Phillips, and Raymond Tibbetts that the method of capital punishment in Ohio violated the Eighth Amendment to the United States Constitution.