Would Judge Amul Thapar rule against Trump? 'No one is above the law'
Mark Wohlander saw great potential the first time he met Amul R. Thapar in 2006.
Wohlander was an assistant federal prosecutor in charge of child-exploitation cases, and Thapar was about to become Wohlander’s boss as U.S. Attorney for the eastern half of Kentucky.
At Thapar’s request, they met for lunch at a Chipotle restaurant in Northern Kentucky so Thapar could learn about supporting efforts to help exploited children, Wohlander said.
“I knew even after that brief meeting and based mostly on his demeanor, concern, and just down-to-earth approach, I remember saying to him that he would be a great Supreme Court justice,” Wohlander said.
President Donald Trump could move that possibility onto the front burner by nominating Thapar, 49, to a lifetime appointment as an associate justice on the nation's highest court.
Thapar, now a judge on the U.S. 6th Circuit Court of Appeals, is on the short list of people that Trump interviewed in recent days about replacing retiring Justice Anthony Kennedy, though he is not believed to be at the top of the list as Trump prepares to announce his choice as soon as Monday.
He has a powerful backer in Senate Majority Leader Mitch McConnell of Louisville, who would play a key role in winning confirmation for Thapar if Trump nominates him.
“Judge Thapar is very, very sharp,” McConnell said in a speech in Danville July 3. “It would be wonderful to have someone from our state, but beyond where he’s from, he’s just a unique talent.”
Thapar, whose parents immigrated from India, would be the first person of South Asian descent on the court if confirmed, and only the sixth Kentucky resident to join the court, according to its records, though some Kentucky natives joined the court from other states.
Some Democrats and liberal activists will work against any of the potential nominees on Trump's short list.
One group called Demand Justice, whose director worked on Hillary Clinton’s campaign, has been running an advertisement against Thapar, describing him as a “far right” judge.
Another group, Alliance for Justice, raised concerns over his “inclination toward harsh rulings” in criminal cases, among other things.
Observers see Thapar as conservative, and he was once a member of the Federalist Society.
The society describes itself as a group of conservatives and libertarians who believe judges should “say what the law is, not what it should be” — that judges should interpret laws and the Constitution as they were written.
But attorneys who have argued cases before Thapar — from the left and right of the political spectrum — said his touchstone is to follow the law, and that they’ve seen no evidence of partisan political philosophy or ideological bias in his decisions.
“I think his concern is to get it right,” said Pikeville attorney Bill Slone, a Democrat who has represented criminal defendants before Thapar. “He’s an excellent judge.”
In responses to senators during his confirmation to the U.S. Court of Appeals for the 6th Circuit in Cincinnati last May, Thapar said a judge’s job is to apply the law without regard to political interests or pressures.
“My philosophy is that a judge should apply the law faithfully and impartially to the facts of the case. Personal views, sympathies, and ideologies have no place in judging,” he said in a response to Sen. Mazie K. Hirono, D-Hawaii.
The issue of whether Trump’s nominee would vote to overturn Roe vs. Wade, the landmark 1973 Supreme Court decision that legalized abortion, is likely to be a key part of the debate over anyone he nominates.
There is nothing to indicate that Thapar and the others on Trump’s short list would be “anything other than a likely vote” to overturn the decision, NARAL Pro-Choice America said.
The reasons the organization cited included Thapar’s contributions before he became a judge to “anti-choice” Geoff Davis, a former Republican congressman from Northern Kentucky; and the fact that he served on the board of Catholic Charities of Covington, which does not list abortion among its services to expectant mothers.
However, the organization cited no court case or public comments that might point to Thapar’s position on abortion — as it did with some other potential nominees — nor have other groups that have looked into his decisions lately.
Friends said they were not aware of any public statements by Thapar on abortion.
U.S Sen. Chris Coons, D-Delaware, asked Thapar during his April 2017 confirmation hearing to the 6th Circuit whether the right to privacy — which was at issue in Roe vs. Wade — protects a woman’s right to obtain an abortion.
Thapar responded that the Supreme Court has recognized a constitutional right to privacy that, among other things such as allowing married and unmarried people to use contraceptives, encompasses a woman’s right to obtain an abortion.
And, Thapar said, he would “faithfully apply all Supreme Court precedent” on the 6th Circuit, as he had worked to do as a district judge.
'Following the law'
Ben Beaton, an attorney and longtime friend of Thapar’s, described him as a “principled textualist and originalist, who works hard to follow the law as written.”
He pointed to notes from a speech Thapar first gave more than a decade ago: “Following the law does not produce liberal or conservative results, it produces legal results.”
Prestonsburg attorney Ned Pillersdorf, a self-described "Bernie Sanders Democrat," said he thinks Thapar's criminal sentences are sometimes too harsh. But he said if Thapar is nominated and he gets a chance to talk to Sanders, he would tell Sanders to vote for him.
"I hold him in high regard. The guy is brilliant," Pillersdorf said. "I think he would be an independent voice."
The Vetting Room, which says it is an independent legal blog that researches Trump’s judicial nominees, said when Thapar was being considered for the appeals court seat last year that his record generally indicates a conservative judicial philosophy, but with characteristics that suggest a more independent bent.
Attorneys described Thapar as intellectually curious, honest, respectful to people appearing before him and scrupulously fair.
He works incredibly hard and is well-prepared, and expects attorneys to be on their toes, they said.
“When you go into his court it’s going to be like your toughest law-school exam,” said Kent Wicker, a Louisville attorney who has had criminal and civil cases before Thapar.
Friends and acquaintances say Thapar is personally engaging.
“He’s one of the most gregarious people I’ve ever met,” said Paul Salamanca, a University of Kentucky law professor who plays poker with Thapar and has been on panels with him.
Salamanca said Thapar probably read books on poker to sharpen his game. “I think everything he does involves a deep dive,” Salamanca said.
'A dream and a calling'
Thapar was born in Detroit and grew up in Toledo.
His father had a heating and air-conditioning business where Thapar drove a truck one summer, according to Scott Jennings, a partner in RunSwitch Public Relations in Louisville who has known Thapar for nearly 20 years.
Thapar reportedly converted to Catholicism after marrying Kim Schulte. The couple lives in Northern Kentucky; their three children are in parochial school.
“The only thing Judge Thapar loves talking about more than the law is what his kids are up to,” said Beaton, an attorney in Washington, D.C.
Thapar attended Boston College and received his law degree from the University of California at Berkeley in 1994.
He clerked for federal judges in Cincinnati, then worked in private practice an as an assistant federal prosecutor in Washington, D.C, for a time before becoming an assistant U.S. Attorney in southern Ohio in 2002, according to a blog devoted to the Supreme Court, called SCOTUSblog.
Friends say Thapar left private practice for a job as an assistant federal prosecutor after the terrorist attacks on Sept. 11, 2001.
Thapar was on an airplane to California for work on a case but the plane landed in St. Louis after flights nationwide were grounded because of the attack. He decided that day to seek a job as an assistant U.S Attorney, Beaton said.
“I would say public service is a dream and a calling for him,” Beaton said.
Thapar’s mother, also moved to action by 9-11, sold her restaurant and began counseling soldiers returning from battle, Beaton said.
The Senate confirmed Thapar as the top federal prosecutor in the Eastern District of Kentucky, based in Lexington, in March 2006.
A little over a year later, President George W. Bush nominated Thapar to be a federal district judge. The Senate confirmed him in late 2007 as the first person of South Asian descent to be a federal judge, according to SCOTUSblog.
McConnell said Thapar has been active in a program to teach high-school students the foundations of the law and started a program aimed at reducing recidivism that was the first of its kind in the country.
Writing with flare
Thapar rounds out his legal opinions with references to sports, pop culture and history to explain points, letting some air into the world of often-complex legal writing.
In one, he illustrated the concept of fraud with an example of a bar patron who is promised a shot of top-end Kentucky bourbon, Pappy Van Winkle, but instead gets far less expensive Old Crow; in another, he referenced the time-travel movie Back to the Future in making a point about a federal agency’s ability to change history by disregarding evidence submitted years earlier.
In a case from Eastern Kentucky in which a man put incorrect information on an insurance application, and later had his house burn, he “quickly learned that Nationwide was no longer on his side,” Thapar wrote.
Most of Thapar’s experience has been on the district bench, where judges are bound by precedent from higher courts.
There’s no way to extrapolate how a judge would rule on the Supreme Court based on his or her record on the district bench, said Kerry Harvey, named by President Barack Obama to succeed Thapar as U.S. Attorney for the eastern half of Kentucky.
But Harvey said he didn't think Thapar would vote in lock-step with conservative Justice Clarence Thomas, for instance, to whom some supporters compared his philosophy.
“I don’t think he will reflexively vote one way or the other,” Harvey said.
A stickler for the rules
Thapar is a stickler for the rules, attorneys said.
He ruled to send one case back to a lower court because the amount of money at issue, $75,000, was one penny short of the appeals court’s jurisdiction.
Thapar believes in the concept that “the rule of law is the law of rules,” Salamanca said.
It’s also clear Thapar can be tough.
In one of his best-known cases, Thapar refused to acquit three activists who cut though fences in 2012 at a facility in Oak Ridge, Tenn., that stored material for nuclear weapons, then splashed human blood on a wall and spray-painted anti-war slogans.
A jury convicted the three on sabotage and property-damage charges.
Thapar addressed the question of whether it made sense to deal as harshly with non-violent protestors as with foreign saboteurs, but said that was a question for lawmakers, not the judge.
“The Constitution leaves that judgment to the policymaking branches, so the Court must interpret this criminal statute by its terms,” Thapar wrote. “The Court cannot fashion ‘case-by-case exceptions’ for sympathetic defendants.”
Thapar sentenced the three to significant prison terms, including nearly three years for a Catholic nun in her 80s.
A divided panel of the U.S. 6th Circuit Court of Appeals upheld the property-damage convictions but tossed out the sabotage convictions, ruling that they hadn’t intended to interfere with or obstruct national security.
Wohlander said he’s seen Thapar show great compassion as well.
In a letter to Trump, Wohlander described how Thapar worked to find treatment for a pregnant heroin addict who had allegedly violated the terms of her court-supervised release.
Thapar could have simply put the woman back in prison, but instead recessed a hearing and told Wohlander to try to find a treatment slot for her, Wohlander said.
“Although I didn’t have much success, Judge Thapar called us back into session a couple of hours later and announced that he had found a bed for Kimberly at a treatment facility in Covington,” Wohlander told Trump.
Holding government accountable?
Outside groups have criticized Thapar over a ruling in which he struck down limits on judicial candidates in Kentucky, including a ban on making financial contributions to others, as violations of candidates’ First Amendment rights.
Demand Justice, a group headed by Brian Fallon, a former press secretary for Hillary Clinton’s presidential campaign, criticized Thapar over the decision.
Fallon said in an interview with McClatchy that if Thapar joins the Supreme Court, his rulings “would unleash even more special-interest spending into our elections, drowning out the voices of everyday citizens.”
Thapar, however, told senators that his decision recognized Kentucky’s rule served a compelling interest, including reducing reliance on political parties in electing judges.
However, he said in the ruling that the ban was not tailored narrowly enough to avoid infringing on candidates’ rights.
Appeals judges upheld parts of the ruling, but overturned the section on allowing judges and judicial candidates to contribute to political organizations.
The Alliance for Justice said Thapar has not held government accountable, citing rulings against suppressing evidence that defense attorneys argued should not have been admitted.
But Thapar has ruled against the government in a number of cases, including some evidence-suppression cases.
For instance, he granted a new trial to a doctor accused of being part of a pill mill in Eastern Kentucky, ruling that the doctor’s attorneys had not represented him effectively, and in another case, he barred strip mining on a family’s land in Pike County even though a government agency had granted a coal company a permit.
Ownership of the land was split between several heirs; some had given permission for mining, but Thapar said the law required permission from all owners.
In a 2016 ruling, Thapar said the Social Security Administration had not provided meaningful hearings to people facing the loss of disabiilty benefits, ruling that the agency did not give them an opportunity to challenge its decision to toss out potential evidence.
Thapar’s decision ran counter to two other judges in the region in similar cases.
“I thought he showed a lot of independence,” said Pillersdorf, who represented the woman.
Harvey, the former federal prosecutor, said it would not be accurate to label Thapar as a pro-government judge.
“Judge Thapar is not a judge where a prosecutor or law enforcement officer would walk into court and say 'This is our judge,' ” Harvey said.