Considering whether Haywood is qualified through the lens of an appeal she lost

Republican Senator Pat Toomey reportedly thinks Third Circuit nominee Rebecca Ross Haywood isn’t qualified. Yesterday I looked at whether Haywood is qualified by examining her legal experience. I concluded that her experience as an AUSA and a federal clerk compares favorably with the court’s recently appointed judges.

We can also approach the question of whether Haywood is circuit-judge material from a different angle. Being qualified isn’t just about experience, it’s also about ability.

As the chief of appeals for the WDPA U.S. Attorney’s office, Haywood has been involved in a lot of appeals. Earlier this week I linked to audio files for four of her oral arguments, featuring her argument in Wecht.

Today I want to take a closer look at another of Haywood’s appeals. I picked US v. Gregory Brown, 13-4442, for a few reasons. First, it’s pretty recent, briefed and argued in 2014. Second, it looks like Haywood handled the case personally, since there is no subordinate AUSA listed on the brief. Third, it resulted in oral argument and a published opinion. And, importantly, the government lost, so if Haywood’s work weren’t up to par this case would be a good bet to show that.

To assess the quality of Haywood’s work in Brown, I looked at the brief she filed in the appeal (from Pacer) and the oral argument.  (I also looked at Brown’s reply brief, the court’s opinion, and Haywood’s unsuccessful panel rehearing petition.) Here’s what struck me:

  • Overall, Haywood’s brief was outstanding: clear, clean, and on-target. Not a hint of the rhetorical fist-shaking that drains the credibility of so many appellate briefs. Thoroughly professional.
  • The brief wasn’t just competent, it was also confident and creative. In most briefs, the jurisdictional statement is just a dry litany, but she used it to mention on page one the powerful fact that the defendant had threatened to kill two federal judges. She departed from the typical formula in her issue statement, three pages long and full of facts and cites. Most related-case statements I see are lazy, but she put in the effort to find and list 23 other appeals the defendant had brought, again helping frame things to her advantage.
  • Her oral argument was terrific, too. (Here’s the link to the audio again; her argument starts at 16:25.) The panel (Ambro, Barry, Restani) was extremely engaged. Her answers are direct, respectful yet assertive, and cogent. Listen to the section from 22:24 to 24:10 (she’s responding to a long Ambro question that began at 21:30). That’s a model for how a thoroughly prepared advocate handles hard questions. It’s a graceful, powerhouse performance.
  • She was great, not perfect. The defendant’s reply brief said her brief ducked a significant issue. The typography in her brief wasn’t Butterick-caliber. And towards the end of her oral argument she was speaking a bit too quickly and seemed to speak over a judge.

Bottom line, I saw nothing in Haywood’s performance in Brown that would support Toomey’s charge that she is unqualified. All I see is a first-rate advocate with the makings of an outstanding judge.