MICHAEL PARK AFJ NOMINEE REPORT I U.S. Court of Appeals for the Second Circuit WWW. AFJ.ORG CONTENTS Introduction, 1 Biography, 2 CIVIL RIGHTS, 2 WOMEN’S HEALTH CARE, 4 TRIBAL RIGHTS, 4 IMMIGRATION, 6 HEALTH CARE, 6 WORKERS, 7 PUBLIC ZONING, HEALTH, AND SAFETY, 9 Consumers, 10 Environment, 10 Conclusion, 11 WWW.AFJ.ORG INTRODUCTION PAGE 1 ‘advice and consent’ role knows how disastrous such a move would be.” On November 13, 2018, President It is clear, moreover, why Senators Trump nominated Michael H. Park to Schumer and Gillibrand object to the Second Circuit Court of Appeals Park’s nomination. Park is a seat previously held by Judge Gerard movement lawyer who has dedicated E. Lynch, who took senior status. The his career to advocating for Senate did not act on Park’s ultraconservative causes. There is nomination before the end of the nothing in his record to suggest he Congress, and on January 3, 2019, his will be a fair, unbiased jurist should he nomination was returned to the be confirmed. His career, thus far, has President. On January 23, 2019, fulfilled a checklist of conservative President Trump renominated Park. causes – advocating against voting 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 rights and affirmative action, women’s reproductive rights, tribal rights, workers, health care, consumers, and clean water. In the past, Senate Republicans have often claimed that nominees whose records are defined by strong ideologies should be disqualified. For example, Senate Majority Leader Mitch McConnell opposed an Obama nominee whose litigation record was, in McConnell’s words, “marked by ideologically-driven positions.” Senator Ted Cruz opposed a Trump nominee, Mark Bennett, because his record “represents an advocacy position that is extreme.” Michael Park is such a nominee. WWW.AFJ.ORG 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. 1 Park worked as an attorney at PAGE 2 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 the Department of Justice Office of Park has spent his career working to Legal Counsel under the Bush undermine civil rights. As Jon Administration, from 2006-08, and Greenbaum, chief counsel at the also worked at Dechert LLP. At Lawyers’ Committee for Civil Rights Dechert, he represented Deutsche Under Law, said, “Michael Park has a Bank AG in a civil mortgage fraud demonstrated record of hostility to lawsuit brought by the U.S. Attorney’s civil rights, and it is hard to imagine he Office in the Southern District of New would change his views as a judge.” York and defended Merrill Lynch and Credit Suisse First Boston in securities actions. 2 For example, Park, on behalf of the Project on Fair Representation, is defending the Trump Administration’s Park, a longtime member of the effort to insert a citizenship question Federalist Society,3 became a partner into the 2020 census. The insertion of in 2015 at Consovoy McCarthy Park, a the citizenship question would reverse boutique law firm that “has become 70 years of census practice and, as the the go-to legal shop for conservative Leadership Conference on Civil and ideologues looking to fight everything Human Rights, the Leadership from voting rights to affirmative action Conference Education Fund, Muslim to abortion.” The firm led the effort to Advocates, the National Association of erode voting rights and equal Latino Elected and Appointed Officials representation in Evenwel v. Abbott, Educational Fund, the National 136 S.Ct. 1120 (2016). The firm’s founder, Coalition on Black Civic Participation, William Consovoy, argued to cut the and 149 other organizations wrote, Voting Rights Act in Shelby County v. would “violate[] the Census Bureau’s Holder, 133 S.Ct. 2612 (2013). The firm constitutional and statutory duties to also is currently representing conduct a full enumeration of the U.S. WWW.AFJ.ORG PAGE 3 population." Former Census Bureau Moreover, Park is committed to directors, in an amicus brief, explained: dismantling equal opportunity “The Census Bureau’s own experts programs. In 2012, he served as a key have concluded that the addition of a contributor in Fisher v. University of citizenship question is likely to Texas, 133 S. Ct. 2411 (2013), writing an compromise data quality and census amicus brief on behalf of petitioner accuracy by depressing response rates Abigail Fisher in support of her and introducing a differential impact argument that the university’s use of on specific populations and the race as one consideration among geographies where those populations many in the admissions process was are most concentrated.” unconstitutional. 4 Civil rights advocates emphasized that Park is also representing the plaintiff inserting this question into the census group, Students for Fair Admissions would lead to a drastic undercount of (SFFA), that has sued Harvard communities of color. In its amicus University for its race-conscious brief, the Leadership Conference admissions process. The case is argued that “including a citizenship considered “one of the most high- question on the 2020 census will inflict profile and controversial lawsuits grievous harm on poor people and designed to end affirmative action in communities of color, with no college admissions.” Civil rights countervailing benefit.” activists fear the Supreme Court’s 5 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 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.” added.6 Judge Furman said Secretary Previously, Park also challenged Wilbur Ross “cherry-picked” facts to affirmative action policies at the support his argument, ignored University of North Carolina in contrary evidence and kept Census Students for Fair Admissions v. UNC, Bureau experts in the dark. 7 In 319 F.R.D. 490 (M.D.N.C. 2017). addition, Furman discussed Ross’s false or misleading statements under oath when he attempted to defend his pretextual justification. 8 WWW.AFJ.ORG 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 PAGE 4 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.” 10 The young woman ultimately won the case and was able to access the health care that not cut off healthcare providers from she needed. Medicaid “for any reason they see fit, TRIBAL RIGHTS especially when that reason is unrelated to the provider’s competence and the quality of the healthcare it provides.” 9 Park worked on two briefs in Sturgeon v. Frost, advocating for a position that Park co-authored the state’s petition could lead to the elimination of federal for the Supreme Court to hear the protection of subsistence fishing case. In December 2018, the Supreme rights for Alaska Natives. 11 The largest Court denied certiorari. nationwide tribal organization, the 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, 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 WWW.AFJ.ORG PAGE 5 Rights Fund, said, it “would be a death heard oral arguments on November 5, knell to us in Alaska, absolutely.” 2018. The case “raises questions about who Environmental groups also have has the authority to regulate water in major concerns with Park’s position in national parks” in Alaska – the federal the case. As several groups wrote in an government or the state. The case amicus brief, “[t]he authority of the arose after John Sturgeon was riding a Park Service over navigable waters hovercraft on a river running through within the parks is critical to the parks a national park, when National Park fulfilling the purposes for which they Service officials threatened him with a were established. . . If the Park Service citation for violating federal law. He did not have regulatory authority over sued, arguing that the Park Service navigable waters within the parks, had no authority over the Nation River [the] mandate to protect these areas because the State of Alaska, not the would be impossible to fulfill.” 12 federal government, owned it. Because Alaska’s constitution prohibits the state from providing preferential fishing rights to certain In another amicus brief submitted by a group of Alaska Native subsistence users, the native advocates argued, communities, a victory for Sturgeon The importance of subsistence would negatively transform Alaska fishing to Alaska Native subsistence Natives’ longstanding fishing activity users cannot be overestimated. A on the river. ruling removing federal reserved 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 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.” 13 heard Sturgeon’s case for the first time Kendall-Miller emphasized in the in 2016, holding that the Ninth Circuit Anchorage Daily News that if Park’s misinterpreted the applicable federal position is successful, it “could abolish statute. On remand, the Ninth Circuit all Alaska Native subsistence fishing held for the National Park Service on a rights . . . so that one man can drive a different theory. The case is again hovercraft in a national park.” She said pending at the Supreme Court, which that if the Court rules for Sturgeon, WWW.AFJ. ORG “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.” PAGE 6 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 IMMIGRATION Care Act was unconstitutional. On January 25, 2017, President Trump all too real. Since the Republican issued an executive order titled Congress failed in its attempts to “Enhancing Public Safety in the Interior repeal the Affordable Care Act, 14 of the United States.” The order Trump is now trying to use the courts threatened to cut federal funding for to do so. Trump’s Justice Department local jurisdictions that Trump and then- has already attacked the law that Attorney General Jeff Sessions argued ensures insurance companies cannot were so-called “sanctuary” jurisdictions. deny coverage or charge higher rates The city of Chicago sued, challenging to people with preexisting conditions. 15 the order, and the U.S. District Court for The legal attack Park supported would the Northern District of Illinois agreed, reportedly take health care away from ruled the order unlawful, and enjoined 52 million Americans, including cancer the attorney general from enforcement. survivors, people with diabetes, and On appeal, Park filed an amicus brief on pregnant women. As the American behalf of the National Sheriffs’ Medical Association and other Association, arguing the district court physician groups made clear, it “would decisions should be reversed. have a devastating impact on doctors, Tragically, the stakes for the health and wellbeing of millions of people are patients, and the American health care system as a whole.” WWW.AFJ.ORG 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 PAGE 7 commenced in September 2015. 18 According to the court decision, the plaintiffs argued that the wage bond mandate unfairly singled out an Asiandominated industry and was discriminatory. The Times reported that plaintiffs also argued that wage bonds were “not readily available” workers. 16 because “too few surety companies In May 2015, The New York Times that do have such strict requirements 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.17 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 offer the wage bond and that those — 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. 19 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.” 20 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 WWW.AFJ.ORG PAGE 8 made by a third party but combined for their injuries.” 26 In an endnote, he with its non-asbestos products. In this added, “Amicus does not mean to case, Crane Co. sold asbestos-laden impugn Plaintiff’s [sic] motives in this products without providing warnings, regard. Members of the plaintiff’s bar despite its knowledge of the dangers owe a duty to pursue every plausible of exposure to asbestos. The plaintiffs, possibility on behalf of their clients. Ronald Dummitt, a Navy boiler But in considering questions of social technician, and Gerald Suttner, a pipe policy, this Court must keep its eyes fitter at a GM plant, worked with open to the realities.” 27 21 Crane’s asbestos-laden products. Both later died from mesothelioma. 22 As the New York State Trial Lawyers Association noted, “the inflexible rule” Park, arguing on behalf of the that Crane and Park “seek[] to have Chamber of Commerce on appeal, implemented in New York…would sought to reverse the juries’ immunize even those manufacturers judgments for the plaintiffs. 23 He that knew of the dangers of its products suggested that “is it not clear that a and still failed to act.” 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]?” 24 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.” 25 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 Park dismissed the legitimate enable the manufacturer’s product to concerns of Dummitt and Suttner – function as intended.” 28 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 WWW.AFJ.ORG 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.29 Most illustrative are Park’s efforts to fight affordable housing in California. In 2010, in response to a local and PAGE 9 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.” 30 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.” 31 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.” 32 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 WWW.AFJ.ORG owner’s future use of his or her property.” 33 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.” 34 The Supreme Court denied review. PAGE 10 programs. 35 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 Then-California Attorney General information for more than 750,000 Kamala Harris made clear that the patients on its computer system.” But argument Park advocated would “it systematically failed to use basic cause great harm. As she wrote: security measures to secure the data 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 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. addresses environmental, public ENVIRONMENT health, safety and social concerns. . . Park took an active role in challenging routinely exercise their police power by enacting legislation that The rule [the Building Association] advocates could call into question actions under all of these routine but vitally important government the Clean Water Rule, which expanded protection for two million miles of streams and 20 million acres of wetlands. The rule would have WWW.AFJ.ORG 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. PAGE 11 Endnotes 1 2 3 4 5 6 Sen. Comm. On the Judiciary, 116th Cong., Michael Hun Park Questionnaire for Judicial Nominees, 2, available at https://www.judiciary.senate.gov/imo/media/doc/Michael%20 Park%20SJQ%20-%20PUBLIC.pdf. Id. at 20, 23-24. Id. at 5. Amici Curiae Brief in Support of Plaintiffs’ Trial Position, Case No. 1:18-cv-2921 (Oct. 2018), at 2, available at https://www.brennancenter.org/sites/default/files/legal-work/ FormerCensusDirectors_AmicusBrief_10-29.pdf. Amici Curiae Brief, Case No. 1:18-cv-2921 (Oct. 2018), at 3, available at https://www. brennancenter.org/sites/default/files/legal-work/Leadershipconference_10-29.pdf. New York v. U.S. Dep’t of Commerce, No. 1:18-CV-2921 (Jan. 2019), at 8, available at https:// www.brennancenter.org/sites/default/files/legal-work/2019-01-15-574-Findings%20Of%20 Fact.pdf. 7 Id. 8 Id. at 101-02. 9 Planned Parenthood of Kansas v. Andersen, 882 F.3d 1205, 1211 (10th Cir. 2018), available at https://scholar.google.com/scholar_ case?case=12361573873180971691&q=Planned+Parenthood+of+Kan.+v.+Andersen&hl=en&as_ sdt=20006. 10 Garza v. Hargan, 874 F.3d 735, 736-37 (D.C. Cir. 2017), available at https://scholar.google.com/ scholar_case?case=7032953363014972270&q=garza+v.+hargan&hl=en&as_sdt=20006. 11 Sen. Comm. On the Judiciary, 116th Cong., Michael Hun Park Questionnaire for Judicial Nominees, 14, available at https://www.judiciary.senate.gov/imo/media/doc/Michael%20 Park%20SJQ%20-%20PUBLIC.pdf. 12 Amici Curiae Brief in Support of Respondents, No. 17-949 (Sept. 2018), at 5, available at https://scholar.google.com/scholar_ case?case=7032953363014972270&q=garza+v.+hargan&hl=en&as_sdt=20006. 13 Amici Curiae Brief in Support of Respondents, No. 17-949 (Sept. 2018), at 27, available at https://www.supremecourt.gov/ DocketPDF/17/17-949/64156/20180918174603913_2018-09-18%20Sturgeon%20v.%20Frost%20 -%20No.%2017-949%20-%20Alaska%20Native%20Subsistence%20Users%20amicus.pdf. 14 See Sean Sullivan, Republicans abandon the fight to repeal and replace Obama’s health care law, Washington Post (Nov. 7, 2018), https://www.washingtonpost.com/ powerpost/republicans-abandon-the-fight-to-repeal-and-replace-obamas-healthcare-law/2018/11/07/157d052c-e2d8-11e8-ab2c-b31dcd53ca6b_story.html?utm_term=. c69340d7020e. 15 See Federal Defendants’ Memorandum in Response to Plaintiffs’ Application for Preliminary Injunction in Texas v. US, available at https://www.afj.org/wp-content/uploads/2018/06/Texasv-USA-CA.pdf. 16 Matter of Korean Am. Nail Salon Assn. of N.Y. Inc. v. Cuomo, 50 Misc. 3d 731 (2015), available at https://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-25412.html. 17 Annette Bernhardt, Diana Polson and James DeFilippis, “Working Without Laws: A Survey of Employment and Labor Law Violations in New York City,” National Employment Law Project, at 26 (2010). 18 Matter of Korean Am. Nail Salon Assn. of N.Y. Inc. v. Cuomo, 50 Misc. 3d 731 (2015) available at https://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-25412.html. 19 Id. at 8. 20 Id. at 3. 21 Matter of New York City Asbestos Litig., 27 N.Y.3d 765 (2016). 22 Id. at 781, 785. 23 Brief of Amicus Curiae of the Chamber of Commerce of the United States of America in Support of Defendant-Appellant Crane Co., Matter of New York City Asbestos Litig., 27 N.Y.3d 765 (2016), available at https://afj.org/wp-content/uploads/2019/02/U.S.-Chamber-AmicusBrief-Suttner-v.-Crane-Co.-.pdf. Endnotes 24 Id. at 1. 25 Id. at 17. 26 Id. at 9. 27 Id. 28 Matter of New York City Asbestos Litig., 27 N.Y.3d 765, 778 (2016). 29 Sen. Comm. On the Judiciary, 116th Cong., Michael Hun Park Questionnaire for Judicial Nominees, 27, available at https://www.judiciary.senate.gov/imo/media/doc/Michael%20 Park%20SJQ%20-%20PUBLIC.pdf. 30 Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974, 978 (Cal. 2015), available at https:// casetext.com/case/cal-bldg-indus-assn-v-city-of-san-jose-5. 31 Id. at 988. 32 Id. at 986. 33 Id. at 991. 34 Michael Park, Thomas R. McCarthy, Brandon K. Weir, Ilya Shapiro, Trevor Burrus & Manuel S. Klausner, “California Building Industry Association v. San Jose,” Cato Institute (Oct. 16, 2015), https://www.cato.org/publications/legal-briefs/california-building-industry-association-v-sanjose. 35 Brief Of Attorney General Kamala D. Harris As Amicus Curiae In Support Of The City Of San Jose, at 4, Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974, 988 (Cal. 2015), available at https://afj.org/wp-content/uploads/2019/02/CITY-OF-SAN-JOSE-Harris-Brief-CA.pdf.