Judge Leonard Stark – Nominee to the U.S. Court of Appeals for the Federal Circuit

The lone judge on the Federal Circuit with experience as a federal trial judge is retiring next year. President Biden has nominated a second trial judge, Judge Leonard Stark, from his home state of Delaware to replace her.

Background

Born on July 5, 1969 in Detroit, Leonard Philip Stark received a B.A., an M.A., and a B. Sc. from the University of Delaware in 1991 and received a J.D. from Yale Law School in 1996. After graduating, Stark clerked for Judge Walter Stapleton on the U.S. Court of Appeals for the Third Circuit.

After his clerkship, Stark joined the Wilmington office of Skadden, Arps, Slate, Meagher & Flom as an Associate. In 2002, Stark became an Assistant United States Attorney in Delaware. In 2007, Stark became a U.S. Magistrate Judge for the U.S. District Court for the District of Delaware.

On March 17, 2010, Stark was nominated by President Barack Obama to the U.S. District Court for the District of Delaware. He was confirmed unanimously by the U.S. Senate on August 5, 2010, and has served on the U.S. District Court since then.

History of the Seat

Stark has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit. The seat will open on March 11, 2022 when Judge Kate O’Malley moves to senior status.

Political Activity

While at the University of Delaware, Stark worked as a co-coordinator for Michael Dukakis’ presidential campaign. In 1992, Stark was an alternate delegate for Bill Clinton’s campaign.

Legal Career

After his clerkship on the Third Circuit, Stark joined Skadden Arps in Delaware, working in corporate and securities law. He then spent five years as an Assistant United States Attorney, working in both the criminal and civil divisions. Over the course of his career, Stark worked on two bench trials at Skadden and two jury trials at the U.S. Attorney’s Office.

Among the notable matters Stark handled at Skadden, he was part of the legal team for Cantor Fitzgerald LP, who sued several of its partners for breach of agreement, leading to a forty-day bench trial ending in a ruling in favor of Stark’s client. See Cantor Fitzgerald, LP v. Cantor, Del. Ch. No. 16297, 2000 WL 307370 (Del. Ch. Mar. 13, 2000).

Among his significant cases at the U.S. Attorney’s Office, Stark prosecuted three high-ranking officials with New Castle County, Delaware, for public corruption, racketeering, and fraud. See United States v. Gordon. Stark also handled appellate matters for the office, successfully defending a conviction and sentence for bank robbery before the Third Circuit. See United States v. Faines, 216 Fed. Appx. 227 (3d Cir. Feb. 14, 2007).

Jurisprudence

In 2007, Stark, at only 38, was appointed to be a U.S. Magistrate Judge for the District of Delaware, where he presided over arraignments, bond hearings, and federal misdemeanors, as well as felonies and civil cases where the parties consented to magistrate determinations. In his time as a magistrate judge, Stark handled one civil trial. Among the prominent cases he handled, Stark recommended that a class action challenging misrepresentations in automobile insurance agreements should be dismissed, a recommendation adopted by Judge Joseph Farnan and affirmed by the Third Circuit. See Eames v. Nationwide Mutual Ins. Co., 2009 WL 3041997 (3d Cir. Sept. 24, 2009).

Since his confirmation in 2010, Stark has been a U.S. District Court Judge on the District of Delaware, where he was made a name for himself by carrying an extensive patent docket. For example, Stark currently has 264 active patent cases on his docket and has presided over 31 patent jury trials. In a recent notable ruling, Stark ruled that Mentone Solutions could not patent packet data transmissions, as this was an invalid patent of an “abstract idea.” The Federal Circuit reversed Stark and revived the patent in a November 15 ruling.

Writings

Stark has written extensively throughout his career, including pieces describing the jurisprudence of his mentor Judge Walter Stapleton, see eg., Leonard Stark, Judge ‘The Game By The Rules’: An Appreciation of the Judicial Philosophy and Method of Walter K. Stapleton, 6 Delaware Law Review 223 (2003), and on presidential history. See Leonard Stark, Review: Mutual Contempt – Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, 85 The American Oxonian 210 (Spring 1998). More interestingly, as a college student, Stark drafted multiple papers on the negative effects of gender roles, particularly in perpetuating homophobia and sexism. See L.P. Stark, Traditional Gender Role Beliefs and Individual Outcomes: An Exploratory Analysis, 24 Sex Roles: A Journal of Research 639 (1991). See also Leonard Stark, Examining the Effects of Gender Roles, 10 Enquiry: Research at the University of Delaware 8 (1989).

Overall Assessment

With extensive experience with patent litigation, it is hard to argue that Stark would not be qualified for the patent-heavy docket of the Federal Circuit. He will likely get a fairly smooth confirmation with bipartisan support.

Charles Fleming – Nominee to the U.S. District Court for the Northern District of Ohio

Longtime federal defender Charles Fleming would be, if confirmed, the second black judge on the Northern District, after Judge Solomon Oliver.

Background

Born in 1962, Charles Esque Fleming received his B.A. from Kent State University in 1986 and his J.D. from Case Western Reserve University School of Law in 1990. After law school, Fleming spent a year as an associate at Forbes, Forbes & Associates before becoming an assistant federal defender, where he has worked ever since.

History of the Seat

Fleming has been nominated for a seat on the U.S. District Court for the Northern District of Ohio. This seat was vacated on January 31, 2021, when Judge James Gwin moved to senior status.

Legal Experience

Other than a brief stint in private practice, Fleming has spent his entire legal career as a federal defender, representing indigent defendants at the trial and appellate levels in Northern Ohio. Among the matters he handled there, Fleming successfully suppressed evidence obtained against his client through an illegal arrest. See United States v. Walker, 43 F. Supp. 2d 828 (N.D. Ohio 1998).

Fleming has also had the opportunity to argue a number of appellate matters as federal defender. For example, Fleming challenged the conviction of one of his clients where a juror brought a dictionary into the deliberation room and looked up the definition of “reasonable.” See United States v. Gillespie, 61 F.3d 457 (6th Cir. 1995). The Sixth Circuit rejected the challenge by noting that the trial judge had taken appropriate measures to ensure that the independent investigation had not affected the jury verdict. See id. at 460. Fleming also challenged an in-court identification of his client after the victim was shown a photograph of him by the police during a line-up. United States v. Meyer, 359 F.3d 820 (6th Cir. 2004). A divided panel of the Sixth Circuit affirmed the conviction.

In one notable case, Fleming convinced Judge Gwin to suppress evidence obtained through a police stop where the officer asked the defendant to see his identification, leading to a warrantless arrest and search of his vehicle. See United States v. Campbell, 486 F.3d 949 (6th Cir. 2007). However, a divided panel of the Sixth Circuit reversed the grant of the motion to suppress, over the dissent of Judge Ransey Guy Cole. Id. at 958.

Political Activity

Fleming has a handful of political contributions to his name, one each to the senatorial and presidential campaigns of Barack Obama and one to Florida Democrat Kendrick Meek.

Overall Assessment

Fleming would bring three decades of criminal defense experience to the bench. While some nominees with public defense experience have been criticized lately for a narrow focus of experience (in a manner that nominees who have only been prosecutors have not been), it is unlikely that such arguments will derail Fleming’s nomination.

Judge David Ruiz – Nominee to the U.S. District Court for the Northern District of Ohio

A former civil litigator, federal prosecutor, and federal magistrate judge, Judge David Ruiz is well-qualified for a federal trial level position, and is expected to receive a comfortable confirmation.

Background

David Augustin Ruiz received his B.A. from Ohio State University in 1997, and his J.D. from the Ohio State University Moritz College of Law in 2000. After law school, Ruiz spent two years in Pittsburgh before returning to Ohio to work at Calfee Halter & Griswold in Cleveland.

In 2010, Ruiz became a federal prosecutor with the U.S. Attorney’s Office for the Northern District of Ohio.

In 2016, Ruiz was selected to be a U.S. Magistrate Judge with the U.S. District Court for the Northern District of Ohio. He continues to serve in that capacity today.

History of the Seat

Ruiz has been nominated for a seat on the U.S. District Court for the Northern District of Ohio. This seat was vacated on February 15, 2021, when Judge Solomon Oliver moved to senior status.

Legal Experience

Before he joined the federal bench, Ruiz practiced with Calfee Halter & Griswold in Cleveland. Among the matters he handled there, Ruiz defended Wells Fargo Bank West against a class action suit in Ohio state court alleging failure to properly record mortgages. See Coleman v. Wells Fargo Bank West N.A., 2008-Ohio-3559 (Ohio App. 8th 2008). In another case, Ruiz represented a public utility company in successfully defending against a suit alleging damages from power surges. Pro Se Commer. Props. v. Illuminating Co., 2010-Ohio-516 (Ohio App. 8th 2010).

From 2010 to 2016, Ruiz served in the U.S. Attorney’s Office for the Northern District of Ohio. In the office, among other matters, Ruiz defended denials of supplemental security income from the Social Security Administration. See, e.g., Jones v. Comm’r of Soc. Sec., 933 F. Supp. 2d 934 (N.D. Ohio 2013). See also Henry v Comm’r of Soc. Sec., 973 F. Supp. 2d 796 (N.D. Ohio 2013).

Jurisprudence

Ruiz has served as a U.S. Magistrate Judge on the U.S. District Court for the Northern District of Ohio since his appointment in 2016. Among his most notable cases, Ruiz served as the magistrate judge on a securities fraud action involving ViewRay, Inc., a MRI-guided radiation systems manufacturer. See Plymouth Cty. Ret. Ass’n v. ViewRay, Inc., 2021 U.S. Dist. 160230 (N.D. Ohio Aug. 25, 2001).

Overall Assessment

Ruiz has little that should cause him trouble during his confirmation. As a relatively uncontroversial nominee, he should be confirmed early next year.

Bridget Brennan – Nominee to the U.S. District Court for the Northern District of Ohio

A long time federal prosecutor who currently heads the U.S. Attorney’s Office for the Northern District of Ohio, Bridget Brennan’s support from Ohio Senators Rob Portman and Sherrod Brown makes her a likely candidate for a smooth confirmation.

Background

Bridget Meehan Brennan received her B.A. from John Carroll University in 1997 and her J.D. from the Case Western Reserve University School of Law in 2000.

Brennan started her legal career as an associate at the Cleveland office of Baker Hostetler, where she worked until 2007. Since then, Brennan has been a federal prosecutor with the U.S. Attorney’s Office for the Northern District of Ohio. Brennan served as First Assistant with the office since 2018 and is currently the acting U.S. Attorney.

History of the Seat

Brennan has been nominated for a seat on the U.S. District Court for the Northern District of Ohio. This seat was vacated on January 31, 2021, when Judge Dan Polster moved to senior status.

Legal Experience

Brennan has worked in two capacities throughout her legal career: the first as an associate in private practice; and the second as a federal prosecutor. During her time in private practice, Brennan was part of the legal team for Progressive Corp., defending against a class action fighting an alleged policy of using cheap imitation parts to repair insured vehicles. See Augustus v. Progressive Corp., 2003-Ohio-296 (Ohio App. 8th 2003). She also defended the Cleveland Plain Dealer against a defamation complaint filed by a Cuyahoga County Common Pleas Judge Peter Sikora. Sikora v. Plain Dealer Publ. Co., 2003-Ohio-328 (Ohio App. 8th 2003).

Since 2007, Brennan has been with the U.S. Attorney’s Office, serving in various capacities, including heading the Civil Rights Unit, the Criminal Division, and, since 2021, the entire office. Brennan was notably one of the lead prosecutors in the hate crime trial of Samuel Mullet, who attacked and cut the hair of religiously orthodox Amish with others. After convictions at trial, the Sixth Circuit overturned the hate crime convictions of Mullet and 15 others, finding that the jury should have been instructed that the religious belief of the victims was a “but for” cause of the attack, rather than a “significant factor.” See United States v. Miller, 767 F.3d 585, 589 (6th Cir. 2014). Brennan also prosecuted Randolph Linn, who was sentenced to 20 years in prison for setting fire to the Islamic Center of Greater Toledo.

Overall Assessment

With a largely uncontroversial record and the support of her home state senators, Brennan will likely be confirmed swiftly with little opposition.

Samantha Elliott – Nominee to the U.S. District Court for the District of New Hampshire

Concord based attorney Samantha Elliott is President Biden’s nominee to replace Judge Paul Barbadoro on the U.S. District Court in New Hampshire.

Background

Samantha Dowd Elliott received a B.A. cum laude from Colgate University in 1997 and a J.D. from Columbia Law School in 2006. Elliott has been at the firm of Gallagher, Callahan & Gartrell, P.C. since her graduation, and currently works as a partner.

History of the Seat

Elliott has been nominated for a seat on the U.S. District Court for the District of New Hampshire. The seat opened on March 1, 2021, with Judge Paul Barbadoro’s move to senior status. Elliott was nominated to fill the vacancy on September 30, 2021.

Legal Experience

Elliott has spent her entire career at Gallagher, Callahan & Gartrell, P.C., where she worked primarily in commercial and employment litigation, while also taking some cases involving negligence and product liability matters. Among her notable matters, Elliott represented a supermarket developer in litigation challenging a zoning variance that it received from the town of Bedford. See Hannaford Bros. Co. v. Town of Bedford, 64 A.3d 951 (N.H. 2013). The New Hampshire Supreme Court found that the petitioner challenging the variance lacked standing to bring the suit, dismissing it. See id. at 959. Elliott also represented municipalities before the First Circuit as it rejected a challenge to a law establishing a buffer zone around abortion clinics. Reddy v. Foster, 845 F.3d 493 (1st Cir. 2017).

In other matters, Elliott represented the Town of Sanbornton in defending against a suit brought by a man injured by a stun gun while allegedly fleeing during a field sobriety test. See Huckins v. McSweeney, 90 A.3d 1236 (N.H. 2014). The plaintiff sued the town and the officer for battery, among other claims, and challenged the constitutionality of a New Hampshire statute that established immunity of municipalities for certain intentional torts committed by their employees. See id. at 1239. However, the New Hampshire Supreme Court found the laws to be constitutional, and noted that this allowed the plaintiff to continue to pursue his claim against the officer directly. Id. at 1242-43. Elliott later represented the City of Concord in another challenge before the New Hampshire Supreme Court that reaffirmed the immunity officers had in intentional tort matters. See Farrelly v. City of Concord, 130 A.3d 548 (N.H. 2015).

Political Activity

Elliott has made several political contributions throughout her career, all of them to New Hampshire Democrats.

Overall Assessment

As an experienced attorney in New Hampshire state and federal courts, Elliott is likely to be well-versed in the cases she is likely to hear as a federal judge. While some may object to her work defending municipalities in suits based on officer torts, Elliott’s supporters can likely point out that her positions were ultimately affirmed unanimously by the New Hampshire Supreme Court, and that her clients were entitled to zealous representation.

Judge John Chun – Nominee to the U.S. District Court for the Western District of Washington

The U.S. District Court for the Western District of Washington had some of the oldest judicial vacancies in the country coming into the Biden Administration. Three appointments later, the court is now short only two judges. Additionally, with the nomination of Judge John Chun, another vacancy is scheduled to be filled.

Background

John Hyung-Seung Chun received his B.A. from Columbia University in 1991 and his J.D. from Cornell University Law School in 1994. After graduating, Chun clerked for Judge Eugene Wright on the U.S. Court of Appeals for the Ninth Circuit and then joined Mundt McGregor LLP as an associate. In 2002, he became a partner at the firm.

In 2005, Chun became a partner at Preston, Gates & Ellis LLP (now K&L Gates). In 2006, he shifted to the Summit Law Group PLLC.

In 2013, Chun was appointed by Governor Jay Inslee to the King County Superior Court. In 2018, Inslee elevated Chun to the Washington State Court of Appeals, Division One, where he serves to this day.

History of the Seat

Chun has been nominated for the U.S. District Court for the Western District of Washington. This seat opened on June 28, 2016, when Judge James Robart moved to senior status. On April 14, 2016, President Obama nominated federal prosecutor J. Michael Diaz to replace Robart. Diaz’s nomination stalled in the Republican-controlled Senate and was never confirmed.

Due to a dispute between the Trump Administration and Washington’s U.S. Senators over the Ninth Circuit nomination of Eric Miller, no agreement was reached on district court judges, and the Administration did not nominate anyone to fill this vacancy. President Biden nominated Chun on September 30, 2021.

Legal Experience

Before becoming a judge, Chun served in private practice for nearly two decades, during which time he focused on labor and employment litigation. He started at the firm of Mundt McGregory LLP, where he represented American Property Consultants, Ltd. in defending against claims that his client induced the plaintiffs to sign contracts through fraudulent claims. Kamaya Co. v. Am. Property Consultants, Ltd., 959 P.2d 1140 (Wash. App. 1998). Chun argued that the claims should be arbitrated under the contract’s arbitration clause, which the Court of Appeals agreed with. Id. at 1142.

Among other matters he has handled, Chun was hired by the City of Edmonds to investigate if any state or federal antidiscrimination laws were violated when Finance Director Lorenzo Hines left. Edmonds Beacon Staff, Finance Director Resigns; Cites City Council Conflict, Disrespect, Edmonds Beacon, Jan. 16, 2014. Chun concluded that there was no violation of law. See id. Chun also argued before the Washington Supreme Court against a wrongful termination in violation of public policy claim brought by a police officer. Piel v. City of Federal Way, 306 P.3d 879 (Wash. 2013). The Washington Supreme Court ruled against him on a 4-3 vote. See id.

Jurisprudence

Chun has been a judge since 2013, first serving on the King County Superior Court, handling civil, domestic relations, juvenile,and felony criminal cases, as well as appeals from the lower courts of limited jurisdiction, and then serving on the Washington Court of Appeals since 2018.

Among the notable matters he handled on the King County Superior Court, Chun rejected a challenge to the Washington charter school initiative, which the legislature funded with lottery proceeds. See Opinion, Charter School Ruling a Victory for Students, Spokane Spokesman Review, Feb. 26, 2017. Chun ruled that the funding mechanism did not divert funds from public schools. See id. Chun’s ruling was affirmed by the Washington Supreme Court. El Centro de la Raza v. State, 428 P.3d 1143 (Wash. 2018).

In another notable ruling, Chun ordered a Defendant who plead guilty of possession of child pornography to pay restitution to the victim depicted in the images. State v. Velezmoro, 384 P.3d 613 (Wash. App. 2016). The Washington Court of Appeals affirmed the ruling, finding that Chun did not need to find that the Defendant was the “but-for” cause of the victim’s trauma before ordering restitution. See id. at 617.

One decision that may draw attention is a 2015 ruling that the Washington Department of Corrections could not release the evaluations for level I sexual offenders under a public records request. John Doe G. v. Dep’t of Corr., 391 P.3d 496 (Wash. App. 2017). While the Washington Court of Appeals affirmed his ruling, the Washington Supreme Court reversed, finding both that the evaluations could be released but also that Chun erred in allowing the plaintiffs to proceed pseudonymously. John Doe G. v. Dep’t of Corr., 410 P.3d 1156 (Wash. 2018).

Among other reversals, the Washington Court of Appeals reversed a 2016 grant of summary judgment against a plaintiff who fell while leaving a store, finding that the issue of causation of injury should have been left to the jury. See Mehlert v. Baseball of Seattle, Inc., 404 P.3d 97 (Wash. App. 2017). The Washington Court of Appeals also reversed in favor of Tommie Davis, who Chun sentenced for unlawful possession of a firearm, finding that Chun had improperly used Davis’ convictions for burglary in California to enhance the sentence, ruling that the California burglary statute was not sufficiently similar to the Washington Burglary statute. See id. at 209.

Since 2018, Chun has served on the Washington Court of Appeals, reviewing appeals from superior court rulings. Among the opinions he has authored, Chun agreed that a trial court judge could not admit a defendant into Drug Diversion Court over the objection of the prosecutor, State v. Daniels, 437 P.3d 723 (Wash. App. 2019), and affirmed a trial court for declining to strike an asian juror in a criminal case where the defendant failed to adequately provide race neutral reasons for the strike. State v. Omar, 460 P.3d 225 (Wash. App. 2020).

Earlier this year, Chun notably ruled that a Seattle ordinance barring a person from carrying a “dangerous knife” did not violate the Second Amendment as applied against the Defendant for carrying a sword. See Zaitzeff v. City of Seattle, 484 P.3d 470, 474 (Wash. 2021).

Writings and Statements

As a law student, Chun authored a note discussing developments in product liability law, which governs damages arising from defects in commercial products. John H. Chun, The New Citadel: A Reasonably Designed Products Liability Restatement, 79 Cornell L. Rev. 1654 (September 1994). After discussing various standards of liability adopted by state courts, Chun endorses the risk-utility standard, which attaches liability where a product’s inherent danger outweighs its utility. Id. at 1659.

Overall Assessment

The Western District of Washington has seen a feast of new judges after years of famine. The Biden Administration’s nominees to this court have all drawn stiff opposition but have nonetheless pushed through with narrow bipartisan majorities. Chun is likely to be no different.

Dale Ho – Nominee to the U.S. District Court for the Southern District of New York

Dale Ho has spent the past fifteen years litigating voting rights cases in state and federal courts, racking up both victories and defeats in the process. Ho has now been tapped for the U.S. District Court for the Southern District of New York.

Background

Dale Ho graduated from Princeton University in 1999 and then from Yale Law School. After graduating, Ho clerked for Judge Robert S. Smith on the New York Court of Appeals and for Judge Barbara Jones on the U.S. District Court for the Southern District of New York.

Ho then joined the firm of Fried Frank Harris Shriver & Jacobsen and then worked at the NAACP Legal Defense and Educational Fund. In 2013, Ho joined the American Civil Liberties Union, where he currently serves as Director of the Voting Rights project.

History of the Seat

Ho has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Katherine Forrest, who resigned from the Southern District on September 11, 2018. On December 2, 2019, the Trump Administration nominated DOJ career official Iris Lan to fill the vacancy, but Lan was blocked from confirmation due to opposition from liberal groups over Lan’s role in reassigning an official critical of the Administration’s child separation policies.

Senate Majority Leader Chuck Schumer recommended Ho for the Southern District of New York in June 2021. Ho was nominated for the court on September 30, 2021.

Legal Career

Other than a short stint at Fried Frank, Ho has spent his entire career as a voting rights attorney, including litigating some of the most significant voting rights cases in the past decade.

Notably, Ho has litigated against voting restrictions passed by state legislatures across the country. He successfully obtained an injunction against a North Carolina bill eliminating same-day voter registration. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014). Ho has also litigated against Wisconsin’s photo ID requirement for voters, successfully obtaining a district court injunction against the law, which was stayed by the Seventh Circuit. Frank v. Walker, 769 F.3d 494 (7th Cir. 2014).

Most notably, Ho managed to convince a federal judge to overturn a Kansas law requiring documentary proof of citizenship for voter registration. See Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016. See also Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020). The lawsuit notably led to sanctions against Kansas Secretary of State Kris Kobach, after Judge Julie Robinson found that he failed to ensure compliance with her orders.

More recently, Ho represented Common Cause in fighting President Trump’s lawsuit seeking to overturn Pennsylvania’s mail-in voting plan implementation, a suit rejected by Judge Nicholas Ranjan. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Outside of the voting rights context, Ho represented the NAACP as an amicus group in the litigation over California’s ban on same-sex marriage. See Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011).

Writings

In his role as Director of the Voting Rights Project, Ho has written and spoken extensively on voting rights law and policy in the United States. His statements have generally criticized the Supreme Court for narrowing voting rights enforcement and permitting legislatures to restrict voting access. For example, after the Supreme Court’s 2013 decision in Shelby County v. Holder, which invalidated the Section 5 preclearance formula of the Voting Rights Act, Ho noted that the decision eliminated “a powerful tool to deter the adoption or prevent the implementation of discriminatory voting laws in those parts of the country where voting discrimination had proved stubbornly persistent.” Dale E. Ho, Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. Legis. & Pub. Pol’y 675 (2014). He also described advocates’ efforts to use Section 2 to combat voter restrictions, discussing the challenges of such an approach. See Dale Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 Yale L.J. 799 (February 8, 2018). Ho has also been critical of “formalism” in interpreting the Voting Rights Act (relying on bright-line rules rather than more flexible balancing tests), arguing that bright-line rules do not serve the stated goals of judicial efficiency and race neutrality. Dale Ho, Two Fs for Formalism: Interpreting Section 2 of the Voting Rights Act in Light of Changing Demographics and Electoral Patterns, 50 Harv. L. C.R.-C.L. L. Rev. 403 (Summer 2015).

This is not to say that Ho’s writings always take a maximalist position on voting rights. In a 2013 article on majority-minority districting, Ho notes that “in places where racial polarization has declined substantially, critics of minority vote dilution doctrine have raised valid questions as to whether majority-minority districts remain necessary…” Dale Ho, Beyond the Red, Purple, and Blue: Essay: Minority Vote Dilution in the Age of Obama, 47 U. Rich. L. Rev. 1041, 1075 (March 2013). In the same article, Ho nonetheless notes that majority-minority districting is necessary in much of the country despite progress made elsewhere. Id.

In other matters, Ho appeared on NPR on behalf of the NAACP in 2012 to distinguish First Amendment precedent that protected NAACP members in the 1950s from the current push by conservative groups to shield their donors. Peter Overby, Conservatives Invoke NAACP Case in Fight for Secret Donors, NPR Weekend Edition, Dec. 30, 2012.

Overall Assessment

Given his prominence in the voting rights movement, as well as his youth, and the likelihood of his elevation to the appellate bench, it would not be surprising to see Ho attract strong conservative opposition, just as fellow voting rights attorney Myrna Perez did on her nomination to the Second Circuit. Nonetheless, Ho remains favored to overcome that opposition and be confirmed in the next few months.

Victoria Calvert – Nominee to the U.S. District Court for the Northern District of Georgia

A federal defender based in Atlanta, Victoria Calvert’s nomination continues the trend of public defenders being nominated for the federal bench under President Biden.

Background

Victoria Marie Calvert got a B.A. from Duke University in 2003 and then attended the New York University Law School, graduating in 2006. Following her graduation, Calvert spent six years at King and Spalding in Atlanta where she worked in the Special Matters and Government Investigations group. Since 2012, Calvert has worked for the Federal Defender in Atlanta.

History of the Seat

Calvert has been nominated for a seat on the U.S. District Court for the Northern District of Georgia. This seat was vacated on May 8, 2021, when Judge Thomas Thrash moved to senior status.

Legal Experience

Calvert spent the first six years at the Atlanta office of King and Spalding. While her work here was largely focused on investigations and white collar defense, Calvert also participated in the firm’s pro bono program. For example, Calvert was part of the legal team for Nicholas Bryant, who challenged the death sentence he received for murder during an armed robbery. See Bryant v. State, 288 Ga. 876 (2011). The Georgia Supreme Court reversed the death sentence, finding that the trial court allowed inadmissible victim impact testimony regarding the nature of the crime itself. Id. at 896-97.

Since 2012, Calvert has worked as a federal defender, in which role she represents indigent defendants in the federal criminal justice system. Among the clients she represented, Calvert argued on behalf of her client, Santas Hernandez, that evidence obtained from a legally dubious traffic stop should be suppressed. The District Court agreed that the officer lacked reasonable suspicion of a traffic violation, but found a Terry stop could be justified through the “collective knowledge” doctrine indicating that the Defendant was engaging in prostitution. See United States v. Hernandez, 17 F. Supp. 3d 1255 (N.D. Ga. 2014). Calvert also unsuccessfully challenged her client’s conviction for discharging a firearm during a crime of violence, arguing that assaulting a police officer with a dangerous weapon did not qualify as a predicate crime of violence. See United States v. Bates, 960 F.3d 1278 (11th Cir. 2020).

Overall Assessment

Calvert’s youth and experience as a public defender is a recognition of President Biden’s new emphasis on drawing judges from the pool of indigent defenders. While her background doesn’t mean that Calvert is likely to rule any differently on the bench, it is nonetheless likely to draw opposition. The fact that Calvert was nominated and remains likely to be confirmed is a testament to the impact of the Georgia runoff elections on the federal judiciary.

Sarah Geraghty – Nominee to the U.S. District Court for the Northern District of Georgia

A civil rights attorney based in Atlanta, Sarah Geraghty has spent much of her career litigating to reform criminal justice institutions in Georgia.

Background

Sarah Elizabeth Geraghty got a B.A. from Northwestern University in 1996, a Master in Social Work from the University of Michigan School of Social Work in 1998 and a J.D. from the University of Michigan Law School in 1999. Following law school, Geraghty clerked for Judge James Zagel on the U.S. District Court for the Northern District of Illinois and then spent a year with the Office of the Appellate Defender in New York. Since 2003, Geraghty has worked for the Southern Center for Human Rights, managing their Impact Litigation Unit from 2015 to 2020.

History of the Seat

Geraghty has been nominated for a seat on the U.S. District Court for the Northern District of Georgia. This seat was vacated on April 3, 2021, when Judge Amy Totenberg moved to senior status.

Legal Experience

While Geraghty started her career at the Office of the Appellate Defender in New York, she has spent the vast majority of her career at the Southern Center for Human Rights, a nonprofit organization focused on civil rights litigation on behalf of those in the criminal justice system. Early in her tenure with the Center, Geraghty sued the state of Georgia to force changes in the Lee Arrendale State Prison, where inmates were repeatedly subjected to physical and sexual violence. See Carlos Campos, Prison Shake-Up to Protect Youth; State to Make Alto Mostly for Women, The Atlanta Journal-Constitution, Nov. 19, 2004. In a different case, Geraghty successfully obtained a ruling preventing a Clinch County sheriff from charging inmates for room and board. Carlos Campos, Clinch County Inmates No Longer Charged Room and Board, The Atlanta Journal-Constitution, Apr. 18, 2006.

Notably, Geraghty filed a lawsuit against a Georgia law that increased restrictions on the movement, employment, and residence of convicted sex offenders. See Jill Young Miller, Tougher Law For Sex Offenders Under Fire; Human Rights Groups Challenge Restrictions, The Atlanta Journal-Constitution, June 20, 2006. As a result of her suit, the law was enjoined by U.S. District Judge Clarence Cooper. See Jill Young Miller, Sex Offender Evictions Put on Hold, The Atlanta Journal-Constitution, July 29, 2006. The law’s residency requirement, which barred sex offenders from living within 1000 feet of anywhere that children congregate, was also thrown out by the Georgia Supreme Court in a separate suit. See Rhonda Cook, Bill Rankin, No More Eviction for Sex Offenders; State’s High Court Says They Can Reside Legally in Areas Near Children, The Atlanta Journal-Constitution, Nov. 22, 2007. Geraghty later discussed the litigation and the issues with the law in a 2007 law review article. See Sarah Geraghty, Residency Restrictions on Sex Offenders: Challenging the Banishment of Registered Sex Offenders From the State of Georgia: A Practitioner’s Perspective, 42 Harv. C.R.-C.L. L. Rev. 513 (Summer 2007).

Among other matters, Geraghty successfully challenged child support judgments against Frank Hatley, a South Georgia man who was not the biological father of the child he was ordered to support. Bill Rankin, State Moves to Cancel Bill to Non-Dad It Had Jailed, The Atlanta Journal-Constitution, July 25, 2009. Geraghty also filed a class action suit on behalf of indigent parents jailed for missing child support payments, arguing that they should have appointed counsel. Bill Rankin, Child Support Lawsuit Gets Class-Action Status, The Atlanta Journal-Constitution, Jan. 4, 2012. The plaintiffs ultimately lost 6-1 before the Georgia Supreme Court. Richard Halicks, Georgia Supreme Court; Child Support Inmates Lose Case, The Atlanta Journal-Constitution, July 12, 2014.

Writings and Statements

As part of her role at the Southern Center for Human Rights, Geraghty has frequently spoken and commented on the law. We have summarized some of her statements and writings below.

Prison Violence

Geraghty has spoken out on the need to better control violence in the prison system. For example, Geraghty called out officials who treated prison violence as inevitable, stating:

“It’s an attitude of ‘boys will be boys’ and that’s an attitude that I find very disturbing when we’re talking about the safety of young children.” See Carlos Campos, Surviving Behind Bars: Violence Stalks Young Men in Alto Prison, Critics Say, The Atlanta Journal-Constitution, Aug. 8, 2004 (quoting Sarah Geraghty).

In a later article, Geraghty criticized prisons for failing to adequately maintain door locks, leading to the deaths of four prisoners. See Aaron Gould Sheinin, Rhonda Cook, AJC Investigation: Faulty Locks Plague Prisons Across Georgia, The Atlanta Journal-Constitution, July 2, 2013.

Probation Reform

Geraghty has been vocal on the issue of reform of the private probation industry, speaking out, for example, against efforts to shield industry data from the public. See Rhonda Cook, Heat Turned Up on Probation, The Atlanta Journal-Constitution, Mar. 19, 2014. Geraghty has also been critical of the companies’ reliance on fees from the parolees they supervise. See Carrie Teegarden, Probation Companies Facing Slate of Reforms, The Atlanta Journal-Constitution, Mar. 1, 2015. Geraghty has also criticized the handling of probation by private companies, stating:

“The concept of privatized probation is fundamentally at odds with the fair administration of justice.” See Rhonda Cook, Private Probation Firm Settles Suits For $2M, The Atlanta Journal-Constitution, Feb. 4, 2017.

Geraghty’s comments on private probations are consistent with her more broadly expressed views about the need for reform of criminal justice institutions in the South. See Sarah Geraghty and Melanie Velez, Bringing Transparency and Accountability to Criminal Justice Institutions in the South, 22 Stan. L. & Pol’y Rev. 455 (2011).

Public Defender

Geraghty has also testified and spoken on the provision of counsel for the indigent. In 2015, Geraghty testified against a bill that would eliminate some of the minimum standards for indigent counsel. See Bill Rankin, Public Defender Reforms At Risk, The Atlanta Journal-Constitution, Mar. 2, 2015.

Political Activity

Geraghty has made two political contributions, both to Democratic Gubernatorial candidate Stacey Abrams in 2018.

Overall Assessment

Having spent much of her career litigating to reform the criminal justice system, Geraghty would bring an unusual perspective to a bench dominated by veterans of that system. It is likely that her career and strongly expressed views will draw questions and opposition. Whether Geraghty manages to overcome those barriers and join the bench rests largely on the durability of her support in the Democratic caucus.

Judge Jinsook Ohta – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short seven judges, with the shortfall affecting caseloads and dockets. As such, the Biden Administration’s nomination of San Diego Superior Court Judge Jinsook Ohta likely couldn’t come soon enough.

Background

Jinsook Ohta attended Yale University and New York University Law School before clerking for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California.

After her clerkship, Ohta became an Associate with O’Melveny & Myers and then with Sheppard Mullin. In 2011, Ohta became an Assistant Attorney General with the California Attorney General’s Office, staying with the Office until Gov. Gavin Newsom appointed her to the San Diego County Superior Court in 2020. Ohta is currently a judge with the court.

History of the Seat

Ohta has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on January 23, 2019, by Judge Barry Moskowitz’s move to senior status.

Upon the recommendation of California Senators Dianne Feinstein and Kamala Harris, on October 17, 2019, the Trump Administration nominated Jones Day Partner Shireen Matthews to fill this vacancy. While Matthews was unanimously approved by the Senate Judiciary Committee in July 2020, her nomination was never given a floor vote by Senate Majority Leader Mitch McConnell, leaving the vacancy open to this day.

Legal Experience

Ohta started her career as a clerk for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California. After that role, Ohta moved to the firms of O’Melveny & Myers and Sheppard Mullin.

However, Ohta spent the most significant portion of her career in the Consumer Protection Division of the California Attorney General’s Office. Among the matters she handled there, Ohta was able to negotiate a $90 million judgment against GlaxoSmithKline for deceptive claims made while marketing GSK Diabetes Products. See People v. GlaxoSmithKline, LLC, 2012 Cal. App. LEXIS 1355.

In one of the most notable cases she handled with the office, Ohta secured a $344 million judgment against Johnson & Johnson for deceptive marketing regarding the dangers of mesh vaginal implants. The judgment was the result of a bench trial in front of Superior Court Judge Eddie Sturgeon.

In another notable matter, Ohta secured a $280 million judgment against Dish Network for violating federal and state Do-Not-Call laws. See United States v. Dish Network LLC, 256 F. Supp. 3d 810 (C.D. Ill. 2017). The judgment was largely affirmed by the Seventh Circuit on appeal. United States v. Dish Network LLC, 954 F.3d 970 (7th Cir. 2020).

Jurisprudence

Since 2020, Ohta has served as a judge on the San Diego Superior Court. In this role, Ohta presides over trial court matters in criminal, civil, family, and other state law matters. Ohta’s brief tenure does not reveal enough about her judicial philosophy.

Overall Assessment

There is little in Ohta’s background that is likely to cause controversy. As such, one can expect that she will likely be confirmed comfortably, likely in early 2022.