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PLN associate editor's campaign against federal judicial nominee gets cover story

Nashville Scene, Jan. 1, 2008.
PLN associate editor's campaign against federal judicial nominee gets cover story - Nashville Scene 2008

Nashville Scene

March 6, 2008

Elephant in the Room

At only 39, GOP golden boy Gus Puryear is a Bush judicial appointee, but congressional Democrats are targeting his inexperience and deep Republican ties

by Matt Pulle

In October 2004, a wealthy and ambitious Nashville attorney headed west to visit an old and powerful friend. Though only 36 years old, with a preppy, scrubbed smile that made him look a decade younger, Gus Puryear had become a confidant to many prominent, influential men, particularly Republicans. He worked for both Fred Thompson, assisting in the popular U.S. senator’s investigation of campaign finance abuse in Washington, and for U.S. Sen. Bill Frist, who tapped Puryear as his legislative director when he was only five years out of law school. The young lawyer also briefly advised Van Hilleary in his 2002 campaign for governor.

This time, though, Puryear was flying to Jackson Hole, Wyo., to see perhaps the most powerful Republican of them all, Vice President Dick Cheney. Just a few days earlier, President George W. Bush badly lost a debate to Democratic challenger John Kerry. With Bush’s poll numbers plummeting, Cheney took to his Wyoming ranch with a team of advisers to prepare for a crucial battle of wits against vice presidential candidate John Edwards.

As Cheney studied for the upcoming debate, Puryear stood close by and ready to help. A former champion debater in college, Puryear was part of an elite squad helping the vice president with research and tactics. Liz Cheney, the vice president’s daughter whose husband Philip Perry was a good friend of Puryear’s, led the team, while U.S. Rep. Bob Portman served as a stand-in for Edwards. Puryear’s job was to help the vice president craft answers on domestic policy.

The debate contingent had already spent a few weekends in Washington with Cheney, but in Jackson Hole they were prepping a freshly focused vice president who felt, not without reason, that the Republican ticket couldn’t falter again on the national stage. Liz Cheney’s team, then, must have done its job. On Oct. 6, 2004, the vice president debated Edwards in a widely anticipated contest and, by most accounts, a sharp Cheney emerged as the clear victor. More importantly, the vice president helped stem the Democratic ticket’s surge in popularity, helping the president go on to win re-election.

In June 2007, Bush nominated Puryear for a highly coveted lifetime appointment: a federal judgeship in Tennessee’s Middle District. Puryear’s fervent Nashville supporters, who include some of the most recognizable members of the local bar, initially figured him to be a safe bet to take the bench. To them, Puryear is a brilliant lawyer, who as corporate counsel for the publicly traded Corrections Corporation of America (CCA), has an impressive range of litigation experience. The nominee also has the unbridled support of Tennessee’s two Republican U.S. senators, Bob Corker and Lamar Alexander, the latter of whom is believed to have orchestrated Puryear’s nomination. Most of all, the U.S. Senate almost always approved Bush’s judicial selections. So how could he lose?

But today Puryear’s nomination is in jeopardy, as the GOP golden boy finds himself in the first bruising fight of his life. During his hearing before the U.S. Senate Judiciary Committee last month, Democratic senators grilled the now 39-year-old attorney about his lack of courtroom experience and challenged him about a handful of mystifying remarks he’s made over the years. Meanwhile, a liberal watchdog group called the Alliance for Justice, aided by the research of a vigilant ex-con, has targeted Puryear for defeat, making him only the third district nominee they’ve opposed during Bush’s seven years in office. The unexpected drama has some predicting that the Democrats who control the Senate Judiciary Committee will try to block a vote on Puryear’s nomination until the November presidential election.

So why is the left looking to block Puryear when they’ve allowed so many of Bush’s other appointees to coast to the federal bench? As it turns out, the Puryear profile so many of Nashville’s elite find part of an esteemed tradition looks a bit antiquated to everyone else. From a legal career honed almost exclusively in a corporate boardroom to his membership at the notoriously discriminatory Belle Meade Country Club, Puryear doesn’t fit everyone’s profile of a judge. Sen. Ted Kennedy, for one, an influential Democratic member of the judiciary committee, found it particularly troubling that a prospective jurist would belong to a place that doesn’t allow women to vote, until 1994 discriminated against blacks, and today has only one black member.

Closer to home, many local attorneys who exist separately from the city’s inbred gaggle of big firms see Puryear as a nominee who has relentlessly exploited his political network, first to get rich and now to get a lifetime position on the federal judiciary. And, of course, the Democrats on the judiciary committee aren’t likely to treat a confidant of Dick Cheney’s with kid gloves. So even if the gaps on Puryear’s résumé aren’t much wider than other successful nominees, his opponents still think they can use them to score a victory.

“Interest groups on both sides are always looking to embarrass the other side,” says Brian Fitzpatrick, a Vanderbilt law professor who has advised Texas Sen. John Cornyn on judicial nominations. “The Alliance for Justice is going to look at someone they can use to embarrass President Bush, and they typically go after those who they think will be too conservative or people they think are low-hanging fruit. I honestly think they’re going after Gus because he’s low-hanging fruit.”

In 2001, Puryear left his job as Sen. Bill Frist’s legislative director to become the top lawyer for CCA, a private prison company based in Nashville. To say that CCA has long been in bed with the Republican Party diminishes the depth of their relationship. During the company’s formative years in the 1980s, the firm’s president was former state GOP chair Tom Beasley, a friend of then Gov. Lamar Alexander. The governor’s wife, Honey, owned stock in CCA, and in 1985 Alexander supported legislation that would have enabled the company to take over the state’s prisons. The proposal flopped, but over the years CCA has written thousands of dollars in checks to Republican causes, while maintaining close ties to party leaders.

Puryear joined CCA seven years ago. It was the company’s darkest hour, as it looked like CCA might topple in a heap of messy litigation, crushing debt and bad press over inmate deaths and riots. John Ferguson, then finance commissioner to Republican Gov. Don Sundquist, was recruited to rescue the company, and one of his first priorities was hiring a corporate counsel. Ferguson wanted not only a good lawyer but also someone who understood the company’s client base: federal, state and local agencies looking to outsource all or part of their prison systems.

For advice, Ferguson turned to Nashville attorney Mark Tipps, a former political advisor to Lamar Alexander. Tipps, who worked with Puryear during Thompson’s campaign finance investigation, told Ferguson he should hire the young lawyer. Puryear, who was married and already planning to leave Washington, eagerly accepted the position, which he still holds.

As the top attorney in the boardroom, Puryear manages a wide range of litigation, including tort cases, securities law, shareholder suits and civil rights complaints. Supervising several talented attorneys in their own right, Puryear essentially manages a small law firm. And by all accounts, he’s acquitted himself ably, both in defending the company from its usual stream of litigation and in serving as a part of the company’s executive staff.

“He has demonstrated an ability to build an organization that fits the needs of this company,” says Ferguson, who is credited with reviving the prison company. “He is a good person who will bring a great deal of integrity to the bench.”

While Puryear was making a name for himself in Washington, D.C., Alex Friedmann was behind bars at a CCA prison in Clifton, Tenn., serving a 20-year-sentence for armed robbery and attempted murder. You’d never guess as much looking at him today sitting in a Starbucks populated with Vanderbilt students. The short, lean Friedmann, with a neatly trimmed beard, could easily be mistaken for an English professor instead of a violent ex-con. He has an interesting story to tell too. While he was incarcerated, Friedmann sued CCA and a few employees in federal court, claiming he was retaliated against after he gave an interview to The Nation magazine, which wrote an unflattering story about the company. Serving as his own lawyer, he lost that suit. But in another federal case against the company, Friedmann came away with a tiny, if symbolic, victory: a $6,000 judgment.

Now a free man, Friedmann works as an activist with a private prison watchdog group. He also serves as the associate editor of Prison Legal News, where he came across an old remark from Gus Puryear while researching a story. In a 2004 interview with a law journal, Puryear mocked jailhouse lawyers like Friedmann, noting dismissively that “litigation is an outlet for inmates…something they can do in their spare time.”

Given the nature of what judges do, it’s a remark that may come back to bite the nominee. A prospective jurist probably doesn’t want to be on record saying that some plaintiffs shouldn’t be taken seriously. Alex Friedmann, for one, didn’t take kindly to Puryear’s observation.

Over the last few months, the onetime CCA inmate has been furiously helping the opposition against the CCA attorney, working with the Alliance for Justice, an influential civil rights group that represents left-leaning organizations from Planned Parenthood to the Sierra Club. Friedmann also formed his own group, Tennesseans Against Puryear, and even wrote an op-ed in The Tennessean criticizing the nominee as being unqualified for the job.

But perhaps the activist’s crowning moment came during Puryear’s hearing before the Senate Judiciary Committee when Sens. Dianne Feinstein and Arlen Specter brought up specific allegations first raised on Friedmann’s anti-Puryear website. Better yet, Specter asked Puryear about his fateful comment on inmate litigation and this time the nominee tried to sound a less corporate tone.

“The courts should be open to civil rights lawsuits of all types,” a backpedaling Puryear was quoted in The Tennessean as saying.

Though a smart, zealous nemesis, Friedmann couldn’t have stirred trouble for Puryear if there weren’t so much to work with. To start, Puryear may be a skilled corporate attorney, but his record as a litigator is almost nonexistent. His dearth of trial experience seemed to confound the senators on the judiciary committee, with Specter flat-out asking Puryear how many cases he’d actually tried.

In fact, in a questionnaire he filled out for the committee, Puryear lists only two cases he litigated in federal court, both of which he was involved in as a young associate at Farris, Warfield & Kanaday. In one civil dispute, in which Puryear served as an underling to two senior attorneys, the matter was settled before trial. In another case, the only time Puryear actually argued in a federal court, he lost. That makes him less successful in a courtroom than the former ex-con who is now battling him.

“There are many, many judicial vacancies,” Friedmann says quietly. “The difference between them and Puryear is that no other nominee has me on their ass.”

Despite questions about his qualifications, Puryear might have done the most damage to his prospects in trying to explain away the death of a former CCA inmate. In 2004, 34-year-old Estelle Richardson was found dead at the Metro Detention Facility operated by the private prison company. Richardson was discovered with a cracked skull and four broken ribs, and her death was ruled a homicide. Four guards were implicated in her murder.

Richardson’s estate filed a $60 million federal lawsuit on behalf of her two minor children, and CCA settled out of court. But the four guards were never charged.

During Puryear’s nomination hearing, Sen. Feinstein asked him about allegations first raised on Friedmann’s website that the prospective jurist was more concerned with safeguarding the company than discovering who killed the inmate. Puryear needed to strike a note of compassion, but instead claimed that “four innocent correctional officers were exonerated” and that the cause of Richardson’s death could not be determined. Failing to quit while he was behind, Puryear added that CPR could have caused Richardson’s four cracked ribs, which he claimed is a common occurrence.

“Common?” replied Feinstein, who, according to a Tennessean account, sounded rather incredulous.

A little over a week after the hearing, Dr. Bruce Levy, the Nashville medical examiner who ruled Richardson’s death a homicide, penned an angry letter to Sen. Patrick Leahy, the chairman of the judiciary committee, claiming that he was “stunned” by Puryear’s testimony. Levy made clear in his letter that Richardson’s death came not from some mysterious accident, but from “blunt force injuries to the head.” He dismissed Puryear’s contention that CPR could have possibly cracked Richardson’s ribs and instead used this dubious speculation to assail the nominee’s credibility.

“I hope Mr. Puryear’s statements before the committee earlier this week were an isolated misjudgment and not the alarming statements they appear to be,” he wrote.

Over the next few weeks, Puryear will be responding to written questions from members of the judiciary committee. They likely will be grilling him on Richardson’s death and other issues first raised in his testy appearance in Washington last month. The committee members haven’t been this tough on other nominees. Brian Miller, a Vanderbilt School of Law grad appointed by President Bush to be a federal judge for the Eastern District of Arkansas, coasted through his hearing last month.

“I’m trying to think of some hardballs to throw at you,” Feinstein told him, which wasn’t exactly a problem for her with Puryear.

His friends call him Gus, but he was born Gustavus Adolphus Puryear IV in Atlanta into a blue-blood family that makes most others in Belle Meade look nouveau riche. His grandfather—that would be Gustavus Puryear Jr.—was a well-respected executive with Third National Bank. He was a good friend of the founding partners of Farris, Warfield & Kanaday, where Gustavus IV worked after law school.

The young Puryear attended Cobb County public schools until the seventh grade, when he enrolled in Westminster, a prestigious K-12 Christian school in Atlanta. After he graduated from high school in 1986, he attended Emory University and then the University of North Carolina School of Law, receiving full academic scholarships to both places. While at North Carolina, he gave tours to prospective students and met a woman named Jennifer Brigitte Herndon, who attended Harvard. They fell in love, got married and now have two children.

And it gets even better. As the corporate counsel for CCA, Puryear has earned over $3 million in total compensation during the last three years. In the financial statement he provided for the Senate Judiciary Committee, he lists his net worth at $13 million.

Like many of his well-heeled peers, Puryear sits on a number of boards, including the Nashville Chapter of the American Red Cross, the Cheekwood Botanical Gardens and Museum of Art and the Nashville Bank & Trust Co. Puryear also serves as a deacon at the First Presbyterian Church. It would be interesting to know what more he wants from God.

To Gus Puryear’s friends and colleagues, the nominee isn’t just highly successful; he’s unusually intelligent, maybe even a genius, with a good heart and an affable, engaging personality. People seem to fall head over heels for the man. Mark Tipps, who endorsed Puryear for the CCA job and whose law firm now does work for the company, says of Puryear, “He’s one of the finest people I know.”

Then there’s Lee Barfield, a partner at Bass, Berry & Sims and a brother in-law of former Sen. Bill Frist, who when talking of Puryear nearly exhausts the conventions of graciousness.

“He’s smart, has a good sense of humor, he is a handsome guy, he is a good listener, he is open-minded,” Barfield says. “He’s very interested in what’s going on around him—his community, his church and in the country. He’s very patriotic.”

Ridley Wills III, though a loyal Democrat, likes Puryear anyway. “I trust his character. He’s a fine individual, a good husband and father.”

Michael Dagley, also a partner at Bass, Berry & Sims, lauds Puryear’s legal mind. “He’s one of the most talented, if not the most talented, lawyer I’ve ever worked with. He’s incredibly bright.”

Dagley recalls attending a party at Puryear’s home at least 10 years ago. A James Bond movie was opening that evening—Dagley doesn’t recall which one—and the guests wore tuxes before heading out to the theater. Puryear must appreciate Bond’s love of fast cars. Recently, the nominee and his father attended a driving school in Alabama, where they spent the day racing Porsches.

Of course, the Puryear persona that so many find irresistible can irritate people who don’t sit inside his circle of trust. To some, as bright and successful as Puryear may be, he doesn’t have the personality or the life experience of a good judge. He’s too privileged, too insular and too elite, and perhaps most importantly, not likely to have empathy for the downtrodden folks who will trudge into his court with their lives hanging in the balance.

“He and his friends are the type of people who toward the end of a party will gather on the patio and smoke Cuban cigars and drink the best cognac,” says one attorney who has known him for years. “It’s this air of exclusivity, of power and of opulence—those are his qualities. Gus lacks true humility; he lacks the kind of humility to realize that he may not be able to understand exactly what people are going through.”

Puryear’s longtime membership at the Belle Meade Country Club hardly testifies to his modesty. Located on the tony Belle Meade Boulevard, at the heart of one of the wealthiest neighborhoods in the country, the club is one of those quaint Nashville institutions that hasn’t adopted the sensibilities of the modern world. The club has only accepted blacks since 1994 (and now has only one member), and while women can enjoy the club, they can’t vote. That sets up a rather bizarre irony. Sen. Dianne Feinstein could preside over Puryear’s hearing and use her considerable influence to put him on the federal bench, but if she belonged to the Belle Meade Country Club, she couldn’t vote on whether to keep the swimming pool open an hour later on a weekday.

In the questionnaire it gives to all nominees, the Senate Judiciary Committee notes that it is “inappropriate to hold membership in any organization that invidiously discriminates on the basis of race, sex or religion.” The questionnaire asks Puryear if he belongs to any such institution and, if so, to describe what action he’s taken to “change these polices and practices.”

In his response, Puryear addresses his membership at the Belle Meade Country Club but somewhat disingenuously says that, as far he knows, it doesn’t “discriminate on the basis of race, sex or religion.” His answer couldn’t stand up to even the most tortured logic.

Puryear’s response could trip him up before the Senate. In fact, in a written question to Puryear, Sen. Kennedy wants him to give a more thorough accounting of the club’s practices.

“Is it true that the Belle Meade Country Club does not permit female club members to vote?” Kennedy asks. “If not, please explain why, and state whether you have ever sought to change this policy.”

Ridley Wills III, the loyal Democrat and Puryear friend who belongs to the club, says that Puryear shouldn’t be blamed for the organization’s traditions. To hear him tell it, as successful and powerful as Puryear may be, he can’t move the elite institution into the 21st century.

In a defense that casts shadows on both Puryear’s stature and the country club’s traditions, Wills says, “Whether he can change the Belle Meade Country Club or not is bigger than you, me or him,” he says. “He is not in a position of power at the Belle Meade Country Club.”

If the Senate does approve Puryear’s nomination, he wouldn’t be the club’s only federal judge. Gil Merritt, a senior judge for the 6th U.S. Circuit Court of Appeals and something of a liberal icon for his eloquent opinions against capital punishment, is a member himself. But other public officials have shown some sensitivity to the club’s reputation. Bill Frist, for example, resigned his membership on the eve of running for Senate in 1993. If Puryear is as intelligent as everyone says he is, why hasn’t he done the same?

The most powerful and autocratic people in the country are federal district judges. They have taken over prison systems, desegregated schools and released mobsters from jail on technicalities. They can force a region to slash its air pollution or allow a governor to cut the number of people on its public health care rolls. While federal appellate and U.S. Supreme Court judges sit above them on the judicial hierarchy, they merely review a written record. The district judges are the ones who try new cases. So whether they’re crafting a cogent, comprehensive opinion or sustaining an objection from a defense lawyer, a district judge can impact politics and the law for a generation before they even break for lunch. And, of course, they can also sentence you to death.

There’s an apocryphal story about a U.S. senator who said that the worst day of the year was when a position opened on the federal bench. Almost immediately, 100 friends would call his office about the job, and 99 were bound to become enemies. In the politicized world of the judiciary, you can be the most able attorney in your state, but if you don’t know the right people, you’ll never reach the bench. And that’s how it’s always been. Even if Puryear is very close to Sens. Alexander and Corker, having contributed thousands of dollars to their campaigns, he’d hardly be the first judge to leverage his political connections for a spot on the bench. Puryear’s prospective colleague, Todd Campbell, served as Vice President Al Gore’s attorney before President Bill Clinton appointed him to be a federal judge for the Middle District of Tennessee. Like Puryear, Campbell was nominated before his 40th birthday, and he didn’t have a lot of trial experience either.

But every judicial nominee is treated differently, and a debate is flourishing within the Nashville Bar about whether Gus Puryear is qualified to be a federal district judge. His supporters, who as you now know, think rather well of him, say his experience as a CCA corporate counsel will prepare him for the bench better than any time in a courtroom.

“Look, I think experience helps, and if you look at 100 judges, statistically those who have the most experience in the courtroom are going to be the best judges,” Lee Barfield says. “But there are exceptions to every rule, and to say that he’s only handled two cases in federal court is to totally ignore the fact that at CCA he has been responsible for a docket of lots and lots of federal court cases.”

But other lawyers bristle at Puryear’s lack of time in front of a judge. Some of them are reluctant to say anything since they may soon show up in Puryear’s court, but privately many talk about Puryear’s nomination and roll their eyes, as irritated as they are offended.

“People who try lawsuits here are very, very disappointed,” says one attorney. “What about the dozens and dozens of evidentiary rulings where a judge has to rule from the seat of his pants—and you’ve never argued one of those in front of a judge yourself?”

Gary Blackburn, a veteran trial attorney, prefers to be as delicate as possible. “In general, most lawyers would prefer a judicial nominee have a significant amount of trial experience.”

That was never a question about the last local Bush appointee. When the president tapped Ed Yarbrough to be Nashville’s U.S. Attorney, no one whispered about whether he could handle the responsibility. After three years as a local prosecutor, Yarbrough became one of the top two or three criminal defense attorneys in Nashville. People often joked that if you were guilty as charged, your only shot at freedom was to hire Ed Yarbrough. Puryear supporters may be right when they say he can handle the rigors of the judiciary, but more than a few attorneys disagree, and Democratic senators will take note of their dissent.

“Ed Yarbrough was a consensus candidate of both Democrats and Republicans who discount party labels and look to the quality of the lawyer and individual,” says attorney Bob DeLaney, who has litigated hundreds of federal cases. “It doesn’t appear that there’s been a similar reaction to Mr. Puryear’s appointment.”



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