Judge William Pocan – Nominee to the U.S. District Court for the Eastern District of Wisconsin

Wisconsin has been home to some pitched federal judicial confirmation battles during both the Obama and Trump Administrations, as the state’s politically divided senate duo have alternately cooperated and clashed on nominees. As such, it’ll be interesting to see which side of that pattern Milwaukee Circuit Court Judge William Pocan will follow.

Background

William S. Pocan received his B.A. from the University of Wisconsin-Parkside in 1981 and his J.D. from the University of Wisconsin Law School in 1984. After a year as an associate at Brookhouse & Brookhouse in Kenosha, Pocan joined Jastroch & LaBarge, where he stayed until 2006.

In 2006, Governor Jim Doyle appointed Pocan to the Milwaukee County Circuit Court, where Pocan has served ever since.

In 2014, Pocan was one of three candidates recommended to President Barack Obama to replace Judge Charles Clevert on the U.S. District Court for the Eastern District of Wisconsin. Gayle Worland, Three Nominees for Eastern District Judgeship Named, Wisconsin State Journal, Feb. 15, 2014, https://madison.com/wsj/news/local/crime_and_courts/three-nominees-for-eastern-district-court-judgeship-named/article_ff3e8bc3-9cbf-55c0-b516-58df781cd045.html. President Obama nominated U.S. Bankruptcy Judge Pamela Pepper, who was confirmed and currently serves on the bench.

History of the Seat

Pocan has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on December 31, 2019, by Judge William Griesbach. In June 2021, Pocan was one of four candidates recommended by the White House for the vacancy by Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively. See Craig Gilbert, Baldwin and Johnson Bring Forward Four Candidates to Fill Federal Judgeship in Green Bay, Milwaukee Journal Sentinel, June 22, 2021, https://www.jsonline.com/story/news/politics/2021/06/22/four-candidates-named-fill-federal-judgeship-green-bay/5312798001/. Pocan was nominated on December 15, 2021.

Political Activity

Pocan has been active in making political donations to Wisconsin candidates, largely giving to Democrats including Supreme Court candidates Shirley Abrahamson, Ann Walsh Bradley, and Louis Butler.

Legal Experience

Excluding a year at Brookhouse & Brookhouse, Pocan has spent his entire pre-bench career at the firm of Jastroch & LaBarge, where he focused primarily on plaintiff’s side litigation. Pocan was particularly notable in “Lemon Law” litigation involving cars in poor condition that were sold to consumers. See, e.g., Eric Freedman, Ford Loses Lemon Law Appeal, Automotive News, Mar. 5, 2001. Pocan also represented Adele Garcia, who filed a “Lemon Law” suit after the transmission on her Mazda left her stranded in Montana. See Anita Weier, DOT, Consumers Tell Panel: Don’t Weaken State Lemon Law, Capital Times, Feb. 20, 2004.

Jurisprudence

Since his appointment in 2006, Pocan has served on the Milwaukee County Circuit Court, where he has presided over juvenile, civil, and criminal cases. Among the notable matters he presided over, Pocan awarded a $3.2 million judgment to a man burned in an apartment fire started by a co-tenant, after a jury found the landlord and insurer liable. See Bruce Vielmetti, Tenant Burned in Apartment Fire Wins $3.2 Million Award, Proof and Hearsay, Oct. 12, 2012.

Notably, Pocan rejected a settlement agreement between dairy groups and the Wisconsin Department of Natural Resources, finding that the ruling improperly limited environmental protection authority and powers held by the Department. See Steven Verburg, Judge Denies DNR on Dairies: He Rules Agency Can’t Change Laws to Placate Big Farms, Water Pollution, Wisconsin State Journal, Jan. 16, 2019.

Among other notable rulings, Pocan ruled that Stuart Yates, a convicted sex offender, could have limited visitation with his severely ill 9 year old son, overruling a hospital restriction on such visits. See Ivan Moreno, Milwaukee Sex Offender Granted Limited Visits With Sick Son, A.P., Apr. 3, 2018.

Some of Pocan’s rulings over his fifteen year long judicial career have been reversed by higher courts. For example, the Wisconsin Court of Appeals reversed Pocan’s ruling denying David Turnpaugh compensation for wrongful conviction for solicitation. See Bruce Vielmetti, Appeals Court Says State Owes Man Wrongly Convicted of Soliciting Prostitute, Proof and Hearsay, May 22, 2012.

Overall Assessment

A couple of points that have yet to be mentioned in this article: Pocan would be the first openly gay judge on the Wisconsin federal bench; he is also the brother of U.S. Rep. Mark Pocan, a political lineage that does not appear to have caused him active Republican opposition. Overall, Pocan’s nomination will live and die based on Sen. Ron Johnson’s blue slip. Given that the White House chose to nominate him over longtime federal defender Krista Halla Valdes, it is likely that Johnson has agreed not to blue slip Pocan, even if he doesn’t ultimately vote for him.

Andre Mathis – Nominee to the U.S. Court of Appeals for the Sixth Circuit

While the Biden Administration has moved relatively quickly to line up judicial nominees, they have generally focused on states with two Democratic senators, avoiding Republican blue slips. As such, the nomination of Andre Mathis to the Sixth Circuit, coming over the objections of Tennessee’s Republican senators, is the first Biden nominee not to have the support of his home-state senators.

Background

Born in 1980, Andre Bernard Mathis received a B.A. from the University of Memphis in 2003 and a J.D. from the Cecil D. Humphreys School of Law in 2007 before joining Glankler Brown in Memphis as an Associate. Mathis currently serves as a Partner in the Memphis office of Butler Snow.

History of the Seat

Mathis has been nominated for a Tennessee seat on the U.S. Court of Appeals for the Sixth Circuit. This seat opened in May 2021 with Judge Bernice Donald’s announcement that she would move to senior status upon confirmation of her successor. Mathis was nominated on November 17, 2021. Shortly after Mathis’ nomination, Tennessee Senators Marsha Blackburn and Bill Hagerty released a statement expressing disappointment with the White House’s level of consultation on the nomination, and Hagerty has indicated his unwillingness to return a blue slip on Mathis.

Legal Experience

Mathis has practiced law for around fourteen years, starting with his time as an associate at Glankler Brown and including his current position as partner at Butler Snow LLP. Throughout his career, Mathis has focused on commercial litigation, as well as labor and employment work, but has also maintained a significant pro bono profile, particularly in working with the Tennessee Innocence Project.

Mathis has primarily focused on commercial and employment litigation. For example, early in his career, Mathis represented a dismissed Ford employee in a discrimination lawsuit after his termination. See Longs v. Ford Motor Co., 647 F. Supp. 2d 919 (W.D. Tenn. 2009). He also defended a paper company against a tort lawsuit brought by a plaintiff who fell while making a delivery to a paper mill. Sheffield v. Int’l Paper Co., 443 F. Supp. 3d (W.D. Tenn. 2020). Judge Jon McCalla denied the defendant’s motion for summary judgment in the case, finding that there was a genuine dispute of material facts regarding the company’s maintenance of a crumbling curb. See id. at 951.

On the criminal side, Mathis represented Tremaine Wilbourn, who was charged with shooting and killing a Memphis police officer in 2015. See Adrian Sainz, Man Sentenced to 25 Years in Tennessee Officer Shooting, A.P. State & Local, July 28, 2017. Wilbourn ended up pleading guilty and receiving a 25 year sentence. See id. He also represented Robert Kimbrel, a convicted felon, in challenging his sentence under a 2255 motion (which allows a collateral attack in federal court on a sentence or conviction), which was granted by Judge Jon McCalla. Kimbrel v. Batts, 196 F. Supp. 3d 811 (W.D. Tenn. 2016).

Statements and Writings

Like a number of other judicial nominees, Mathis wrote on the law as a law student. For example, Mathis authored a comment discussing the Tennessee Supreme Court’s State v. Sawyer decision, which prevented a police officer from reading an affidavit during a custodial interrogation without a Miranda warning. See Andre Mathis, Criminal Law – State v. Sawyer: Tennessee Supreme Court Holds That a Police Officer Cannot Read an Affidavit to a Person in Custody Without Giving Miranda Warnings, 36 U. Mem. L. Rev. 1171 (Summer 2006). In the comment, Mathis praised the Tennessee Supreme Court’s conclusion that reading an affidavit of complaint can, under the circumstances of the case, be the equivalent of a “custodial interrogation” that triggers Miranda. Id. at 1183. Mathis further urged courts to “expand the scope of constitutional rights of persons in police custody” while noting that the coercive nature of police interrogations can lead innocent individuals to “concede their innocence.” Id.

In another law school note, Mathis analyzed the U.S. Supreme Court’s ruling in House v. Bell, which allowed a Tennessee death row inmate to pursue a claim of actual innocence using DNA evidence. See Andre Mathis, A Critical Analysis of Actual Innocence After House v. Bell: Has the Riddle of Actual Innocence Finally Been Solved?, 37 U. Mem. L. Rev. 813 (Summer 2007). While Mathis acknowledged that the Supreme Court reached the correct conclusion in Bell, he criticized the decision for failing to provide adequate guidance to lower courts in future claims of “actual innocence.” See id. at 837.

Overall Assessment

Going back to the revival of the blue slip under Sen. James Eastland, we have been unable to find a Democratic judicial nominee to be confirmed over the refusal of both Republican Senators to return blue slips. However, with the jettisoning of the appellate blue slip under President Trump, Mathis looks favored to be the first. The question for Democrats is whether they can keep their caucus united behind Mathis. Assuming that they hold together, Mathis will likely be confirmed.

Evelyn Padin – Nominee to the U.S. District Court for the District of New Jersey

Despite being the oldest judicial vacancy in New Jersey, and the country, the seat vacated by Judge Faith Hochberg in March 2015 sat for months without a nominee. However, on December 15, the Biden Administration finally sent the nomination of solo practitioner Evelyn Padin to fill the vacancy.

Background

Evelyn Padin received a B.A. from Rutgers University of Delaware in 1983, and a M.S.W. from Fordham University in 1985, before spending four years as a social worker. Padin then obtained a J.D. from Seton Hall University School of Law and joined the firm of Linares & Coviello in 1992, working with future federal judge Jose Linares. Padin left to start her own practice in 1995 and has maintained it ever since.

In addition, Padin has been active in the New Jersey State Bar Association, including serving as the First Latina Secretary in 2014 and later serving as President of the Association in 2019. She also served as a member of the NJ Secretary of Higher Education’s Campus Sexual Assault Commission and the NJ Puerto Rico Commission.

History of the Seat

The seat Padin has been nominated for opened on March 6, 2015, with Judge Faith Hochberg’s move to senior status. The Obama Administration nominated Julien Neals to fill this vacancy, but Neals was blocked by the then-Republican controlled Senate (Neals was subsequently renominated to a different seat by President Biden and confirmed). Due to a dispute over nominees between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no nominee to fill a district court vacancy in New Jersey was put forward by Trump. Padin was nominated to fill the vacancy on December 15, 2021.

Legal Experience

Padin has spent her entire career practicing in Jersey City, where she focuses on family law and personal injury matters. For example, Padin represented two women in suing the Jersey City Police Department, and the owner of a residential building, after a man with outstanding warrants broke into the building and attacked one of the women, pushing her out of a window and killing her child. See New Jersey: Jersey City Man Charged With Killing Son Also Faces Lawsuits From His Ex, Her Friend, U.S. Official News, Apr. 28, 2015.

Additionally, as President of the New Jersey State Bar Association, Padin frequently participated as amicus in cases before the Supreme Court of New Jersey. See, e.g., S.C. v. New Jersey Dep’t of Children & Families, 231 A.3d 576 (N.J. 2020); Nieves v. Adolf, 230 A.3d 227 (N.J. 2020); Estate of Van Riper v. Director, Div. of Taxation, 226 A.3d 55 (N.J. 2020); Balducci v. Cige, 223 A.3d 1229 (N.J. 2020); Meisels v. Fox Rothschild LLP, 222 A.3d 649 (N.J. 2020). Notably, the Bar Association, as amicus, argued that the Fifth Amendment protected against the compelled disclosure of passcodes to cellphones seized by law, a position rejected by a 4-3 majority of the New Jersey Supreme Court. State v. Andrews, 234 A.3d 1254 (N.J. 2020).

In other matters, Padin received an admonishment from the Supreme Court of New Jersey’s Review Board on March 6, 2001 (the subject of the admonishment is unclear as the Board’s records only go back five years), which was vacated and dismissed by the New Jersey Supreme Court, which ruled that there was not clear and convincing evidence supporting the admonishment. See In re Padin, 791 A.2d 196 (N.J. 2002).

Political Activity

Padin has a few political contributions to her name, all to Democrats, including Menendez and Booker.

Overall Assessment

From an Administration pushing to draw nominees from unusual backgrounds, Padin, a sixty-year-old litigator active in the state bar, makes for a relatively safe choice. The White House can nonetheless point to her background as a social worker in arguing that Padin will bring a unique perspective to the federal bench.

Georgette Castner – Nominee to the U.S. District Court for the District of New Jersey

A year into inheriting six vacancies on the New Jersey district court from the Trump Administration, President Biden is on the verge of filling all of them. He has now nominated Georgette Castner, who has been active in the legal and legislative battles over cannabis regulation in New Jersey.

Background

Born Georgette Fries in Philadelphia in 1979, Castner received a B.S. from the College of New Jersey in 2002 and then spent a year as Chief of Staff to Assemblyman Reed Guiscora, before getting a J.D. with honors from Rutgers University School of Law in 2006. Castner then clerked for Judge Joseph Lisa on the Superior Court of New Jersey, Appellate Division.

In 2007, Castner joined Montgomery, McCracken, Walker & Rhoads, LLP, becoming a Partner in 2015. She currently serves as an equity partner.

History of the Seat

The seat Castner has been nominated for opened on May 16, 2019, with Judge Jose Linares’ move to senior status. Due to a dispute over nominees between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no nominee to fill a district court vacancy in New Jersey was put forward by Trump. Castner was nominated to fill the vacancy on November 3, 2021.

Legal Experience

Castner has spent her entire career post-clerkship at Montgomery, McCracken, Walker & Rhoads, LLP in Cherry Hill, where she worked primarily in civil litigation and white collar criminal matters. Among her notable matters, Castner represented Microsoft in a breach of contract action in New Jersey federal court. See Bitro Group Inc. et al. v. Microsoft Corp. et al., No. 2:20-cv-17714 (D.N.J.). Castner also represented Praxair, Inc. in defending a products liability action over allegedly defective oxygen cylinders. See Lawson et al. v. Praxair Inc., et al., No 3:16-cv-02435 (D.N.J.).

Additionally, Castner is also a co-chair in the firm’s Cannabis Law Practice Group and has liaised with the legislature on cannabis laws and regulations. In this role, Castner advises industry participants, as well as regulators on the changing legal landscape on cannabis. See, e.g., Georgette Castner, William K. Kennedy, Dr. Ronald Tuma, Medical Marijuana and the Non-Profit Workplace, available at http://39lm5827fzpu40ze7s2y2ses-wpengine.netdna-ssl.com/wp-content/uploads/2019/11/5055922_1.pdf.

Political Activity

A politically active Democrat, Castner has several political contributions to her name, all to Democrats, including Representatives Andy Kim, Bonnie Watson Coleman, and Josh Gottheimer.

Overall Assessment

As a young, politically active nominee, Castner is likely to draw some opposition in the Senate. She may also draw questions regarding her work on cannabis law, particularly as, despite the growing consensus towards limited legalization, many still support the criminalization of marijuana.

Judicial Nominations 2021 – Year in Review

The first year of the Biden Administration has drawn to a close.  As a former Senate Judiciary Committee Chair, President Biden could be said to have been particularly attuned to the importance of judicial nominations, and this bears out in the numbers.  This Administration has outpaced other recent Administrations in both nominations and confirmations (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Biden submitted 73 nominees to Article III courts, more than any other modern president.  Comparatively, President Trump submitted 69 judicial nominations in his first year, President Obama submitted 34, President George W. Bush submitted 61, President Clinton submitted 47, President George H.W. Bush submitted 23, and President Reagan submitted 44.  Biden has particularly outpaced other Presidents on District Court nominees, having submitted 55, more than any other President.

Comparatively, the 18 appellate nominees submitted by Biden are slightly lower than both Trump (19) and W. Bush (25).  However, this can be explained by the number of vacancies each of the prior presidents inherited.  President W. Bush inherited 26 appellate vacancies, while President Trump inherited 17.  In comparison, President Biden inherited only two vacancies, making his pace even more impressive.

Confirmations

In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court.  This outpaces every President since Reagan who saw 41 judges confirmed (one Supreme Court, 8 appellate, and 32 district).  In terms of appellate confirmations, Biden’s 11 falls short only of Trump’s 12.

Furthermore, Biden saw confirmation of 55% of judicial nominees submitted in his first year.  This marks the first significant uptick in first year confirmation percentage in modern history, as this has been dropping since Reagan.  To compare: please see the percentages of other Presidents below:

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Additionally, President Biden has, despite having to navigate a 50-50 Senate, not seen a single judicial nominee defeated or blocked yet.  In comparison, the Trump Administration had lost three nominees in their first year: Jeff Mateer; Matthew Petersen; and Brett Talley.  This record is largely due to the caucus willing to stick together on judicial nominees.  Not a single Biden judge has attracted any Democratic opposition.

President Biden’s success on nominations is despite the nominees having drawn more GOP opposition than the nominees of any previous President.  Out of the 11 appellate nominees confirmed, only one attracted more than four votes from across the aisle (Tiffany Cunningham) and four attracted no minority votes at all (Eunice Lee, Myrna Perez, Lucy Koh, and Jennifer Sung).  In comparison, despite drawing more opposition than any prior president, President Trump had more than four votes across the aisle for three nominees (Kevin Newsom, Ralph Erickson, and Joan Larsen).

Diversity

The Biden Administration has prioritized choosing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations.  They have also sought out nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys.  Both focuses are reflected in the nominees put forward.

So far, Biden has nominated thirteen women to the court of appeals, and a whopping forty-one women on the district level, making 74% of his judicial nominations women.  In comparison, 23% of Trump’s judicial nominees in his first year were women, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Biden’s confirmations has surged the number of women on the U.S. Court of Appeals from 59 to 64, moving the court of appeals from 33.3% female to 36.6% female.

Furthermore, approximately three out of four Biden nominees are lawyers of color, compared to less than 10% of President Trump’s first year nominees.

Age

Biden’s judicial nominees have been compared to those of President Trump in terms of their youth, but, as noted earlier, President Trump’s nominees, at least in his first year, were not significantly younger than those of previous presidents, with an average age of 49.5 for appellate nominees and 52.5 for district court nominees.  So far, President Biden’s appellate nominees have an average age of 48.7, while his district court nominees have an average age of 49.8, making them slightly younger than those of previous presidents, but not significantly so.

Overall Assessment

Looking at the empirical evidence, it is clear the Biden Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  They have also prioritized confirmations, moving judges through the process faster than prior presidents.  Nonetheless, this success must come with the caveat that Biden is the first President since Carter to have a Senate controlled by his party by the end of his first year, while also avoiding a Supreme Court confirmation.  Overall, while gaps remain, the Biden Administration’s success on judges reinforces the significance of the tenuous 50-seat majority that Senate Democrats hold, and the significant influence of each senator in maintaining that majority.

Judge Ruth Bermudez Montenegro – Nominee to the U.S. District Court for the Southern District of California

Shortly after the confirmation of U.S. Magistrate Judge Linda Lopez to be a U.S. District Court Judge, her colleague, Judge Ruth Bermudez Montenegro, looks poised to take the same step.

Background

A native Southern Californian, Montenegro was born Ruth Parra Bermudez in Brawley, Imperial County, in 1967. After graduating summa cum laude from Clarion University of Pennsylvania in 1989, Montenegro received a J.D. from the University of California Los Angeles Law School in 1992 and started work at Horton, Knox, Carter & Foote LLP as an Associate.

After a brief stint at the Office of the County Counsel in Imperial and with the Imperial Community College District, Montenegro joined the El Centro Elementary School District as Assistant Superintendent and Counsel.

In 2012, Governor Jerry Brown appointed Montenegro to be a Superior Court Judge in Imperial County, but lost her election to maintain the position in 2012. After a stint as a Family Support Commissioner, Montenegro was elected to the bench in 2014. In 2018, Montenegro became a U.S. Magistrate Judge for the U.S. District Court for the Southern District of California, where she currently works.

History of the Seat

Montenegro has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on February 8, 2018, by Judge John Houston’s move to senior status.

On November 2, 2019, the Trump Administration nominated longtime criminal defense attorney Knut Johnson to fill this vacancy. Johnson, a Democrat recommended by Sen. Dianne Feinstein and then Sen. Kamala Harris, never received a hearing before the Senate Judiciary Committee and his nomination was unconfirmed at the end of the Trump Administration.

For her part, Montenegro applied with California selection committees in January 2021 and subsequently interviewed with both of California’s senators. She was subsequently recommended to the White House for nomination by Senator Alex Padilla in July 2021 and was nominated on November 3, 2021.

Legal Experience

Montenegro started her legal career in El Centro, primarily working in civil litigation, including on employment, labor, and healthcare matters. Since 2000, Montenegro has worked either for the Office of the County Counsel, the Imperial Community College District, or the El Centro Elementary School District. In each position, Montenegro has worked in an in-house capacity, focusing on legal advice, training, and compliance. However, she has also advised her employers on litigation matters as well as representing the District in administrative procedures. For example, Montenegro defended against a lawsuit by seniors seeking to participate in the graduation ceremony (they were declined due to the failure to complete mandated service hours). See Brawley Union High School District, Imperial County Superior Court.

Jurisprudence

In 2012, and from 2015 to 2018, Montenegro served as a judge on the Imperior County Superior Court. In this role, Montenegro presided over trial court matters in criminal, civil, family, and other state law matters, handling approximately 34 jury trials and 100 bench trials during her tenure. Among matters she handled here, Montenegro sentenced a prisoner to six years in prison for attacking an officer in a prison while he was attempting to restrain another inmate. See People v. Johnson, No JCF28994, 2016 WL 7030374 (Cal. Ct. App. Dec. 2, 2016).

Since 2018, Montenegro has served as a U.S. Magistrate Judge on the Southern District of California. In this role, Montenegro presides over pretrial, trial, grand jury and discovery matters. While she has not handled any jury or bench trials as a Magistrate, Montenegro did facilitate the settlement of a lawsuit alleging a pattern and practice of sexual harassment at the U.S. Postal Service. See Cano v. Brennan, No. 19-cv-239-CAB-RBM (S.D. Cal. June 2, 2021).

Overall Assessment

Coming to the bench with a largely in-house background, Montenegro would bring a unique perspective to the bench, if confirmed. As her home base of Imperial County lacks representation on a San Diego dominated bench, Montenegro could ostensibly claim to add geographic diversity to the bench as well.

Judge Trina Thompson – Nominee to the U.S. District Court for the Northern District of California

With over two decades on the Alameda County bench, Trina Thompson should be a fairly uncontroversial candidate for the bench. However, her teaching activities, as well as her background in criminal defense, may draw scrutiny.

Background

Thompson got her B.A. from U.C. Berkeley in 1983 and her J.D. from the U.C. Berkeley School of Law in 1986. After graduating, Thompson became an assistant public defender with the Alameda County Public Defender’s Office. After five years there, Thompson opened up her own criminal defense practice.

In 2000, Thompson was selected as a Juvenile Court Commissioner in Alameda County. She subsequently was elected to the Alameda County Superior Court in 2002, and has served as a judge since. Additionally, during the Obama Administration, Thompson served on the Coordinating Council on Juvenile Justice and Delinquency Prevention.

History of the Seat

Thompson has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on February 1, 2021, by Judge Phyllis Hamilton.

Legal Experience

Thompson started her legal career as an assistant public defender in the Alameda County Public Defender’s office, representing indigent defendants in juvenile and criminal proceedings. Thompson subsequently opened and managed her own criminal defense practice for nine years before her appointment as a Juvenile Court Commissioner.

Jurisprudence

Since 2002, Thompson has served as a judge on the Alameda County Superior Court. In this role, Thompson presides over trial court matters in criminal, civil, family, and other state law matters. Thompson has also served as the presiding judge of the Juvenile Court, where, among other responsibilities, she presided over adoption ceremonies. See Josh Richman, Adoption Day Changes Lives Forever, The Oakland Tribune, Nov. 20, 2010.

Among the notable matters over which Thompson has presided, she presided over a trial of two defendants charged with 36 counts of involuntary manslaughter resulting from a 2016 fire at Oakland’s Ghost Ship warehouse. Alexandra Casey, Oakland Jury Reaches Jumbled Verdict on Ghost Ship Warehouse Fire, Daily Californian: University of California – Berkeley, Sept. 5, 2019. The case ended with the acquittal of one codefendant and a guilty plea from the other.

Statements and Writings

As part of her role as a judge, Thompson has occasionally commented on legal issues in the press. See, e.g., Sayre Quevado, The Complications Clearing a Juvenile Record, The Huffington Post, July 31, 2013.

Thompson also taught an ethnic studies course “Race and the Law” at the University of California, Berkeley. The course explored the role of the law in enforcing racial and gendered power structures. See Alice Ventura, Legacy of Desegregation Should Lead to More Latinx Representation, Daily Californian: University of California – Berkeley, Feb. 8, 2018.

Overall Assessment

With more than 35 years of judicial experience, Thompson represents a more old-school nominee model than the more youthful judicial candidates favored in recent years. While it is difficult to argue with Thompson’s qualifications, conservatives may look askance at Thompson’s teaching activities, particularly as it relates to race and the law. Liberals, meanwhile, may be disappointed with Thompson’s age.

Judge Jacqueline Scott Corley – Nominee to the U.S. District Court for the Northern District of California

Judge Jacqueline Corley has built up an extensive repertoire of experience with complex civil litigation, and is poised for elevation to the U.S. District Court for the Northern District of California.

Background

Born Jacqueline Marie Scott in 1966 in Long Beach, California, Corley attended the University of California, Berkeley and Harvard Law School. After graduating, Corley spent two years clerking for Judge Robert Keaton on the U.S. District Court for the District of Massachusetts.

Corley then spent two years as an Associate at the Boston office of Goodwin Proctor before moving back to California to work as an Associate at Coblentz, Cahen, McCabe & Breyer. After name partner Charles Breyer (brother of the U.S. Supreme Court Justice) was elevated to the federal bench in 1997, Corley moved with him to be his career law clerk.

In 2009, Corley left to become a Partner at Kerr & Wagstaffe LLP in San Francisco, but was selected as a U.S. Magistrate Judge to replace Judge Edward Chen, who was appointed by President Obama to the Northern District bench. Corley currently serves as a magistrate judge.

History of the Seat

Corley has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on January 21, 2021, by Judge William Alsup.

In January 2021, Corley applied and interviewed for a federal judgeship with selection committees set up by California’s Democratic Senators Dianne Feinstein and Alex Padilla. In July 2021, Corley interviewed with the White House and was selected as a nominee in August 2021. Corley was nominated on November 3, 2021.

Legal Experience

The largest portion of Corley’s pre-bench career has been spent as a law clerk for Judge Charles Breyer on the U.S. District Court for the Northern District of California, where she spent eleven years. The rest of the time, Corley spent in private practice, where she primarily worked on civil issues, although she did work on some white collar criminal matters.

Among the notable matters that Corley was involved with, she represented a class of parents of servicemembers who died in Iraq and Afghanistan in a suit against Prudential, alleging that the company had withheld lump sum insurance payments that they were required to pay by statute. See In re: Prudential Ins. Co. of Am. SGLI/VGLI Contract Litig., 763 F. Supp. 2d 1374 (D. Mass. MDL Feb. 4, 2011) (2010-11). Corley had to withdraw from the representation upon appointment to the bench.

Corley also defended Cristobal Bonifaz, an attorney suing Chevron for environmental damage in Ecuador, against a lawsuit alleging malicious prosecution and seeking millions of dollars in damages. The case was largely dismissed by Judge Claudia Wilken, who ruled that the suit was barred by California’s anti-SLAPP law, but allowed a single claim to go forward. Chevron Corp. v. Bonifaz, 2010 WL 1948681 (N.D. Cal. May 12, 2010). The suit subsequently settled.

Jurisprudence

Since 2011, Corley has served as a federal magistrate judge for the Northern District of California, where she presides over bond matters, administrative appeals, and civil matters by consent. By his estimation, Corley has presided over around 26 trials in her judicial career, the most significant of which was a consolidated antitrust price fixing lawsuit, which she presided over by consent. See In re Cal. Gasoline Spot Mkt. Antitrust Litig., No. 20-CV-3131 JSC.

Corley notably presided over a three-week trial in a products liability action against a fertility clinic after the holding tank for frozen embryos failed. See In re Pac. Fertility Ctr. Litig., No. 18-CV-01586 JSC. The trial ended with a multi-million verdict for the plaintiffs although the case is awaiting final judgment at present.

Over the course of her decade on the bench, Corley has identified ten cases where her decision was reversed or criticized in full or part. Two of those decisions involve reports and recommendations issued by Corley that were only adopted in part by the District Court. See Facebook Inc. v. Sluchevsky, 2020 U.S. Dist. LEXIS 181249 (N.D. Cal. Aug. 28, 2020), Report and Recommendation adopted by, modified by, 2020 U.S. Dist. LEXIS 181241 (N.D. Cal. Sept. 30, 2020; Livingston v. Art.com, 2015 U.S. Dist. LEXIS 92191 (N.D. Cal. July 15, 2015). In three other cases, the Ninth Circuit largely affirmed her decisions (or criticized them in dissent). Lawson v. Grubhub, Inc., 302 F. Supp. 3d 1071 (N.D. Cal. 2018); In re Pac. Fertility Ctr. Litig., 814 F. App’x 206 (9th Cir. 2020); Garris v. FBI, 937 F.3d 1284 (9th Cir. 2019).

Among the rest, two of Corley’s reversals stand out in particular:

In Ramirez v. TransUnion LLC, the Ninth Circuit largely affirmed a class action verdict against the credit reporting bureau TransUnion (presided over by Corley), but was reversed 5-4 by the U.S. Supreme Court, finding that several members of the certified class lacked Article III standing. See 141 S. Ct. 2190 (2021).

In Cortesluna v. Leon, the Ninth Circuit reversed the grant of summary judgment that Corley granted against an officer who pressed his knee against the plaintiff’s back, leading to a claim of unreasonable force. However, the Supreme Court reversed per curiam, reinstating the grant of summary judgment that Corley had originally authored. See Rivas Villegas v. Cortesluna, 2021 WL 4822662 (U.S. Oct. 18, 2021) (per curiam).

Political Activity

Corley has a fairly limited political history, having made one donation to then Senator Barack Obama’s campaign in 2004.

Overall Assessment

Coming from an Administration that has prioritized drawing nominees from unusual sources, Corley is a surprisingly conventional nominee. That being said, Corley’s background lacks any real bases for controversy, and her traditional background should help her avoid controversy in the process.

Judge Julie Rubin – Nominee to the U.S. District Court for the District of Maryland

Judge Julie Rubin, nominated to be a federal trial judge in Maryland, has served on the Baltimore trial bench for the last eight years.

Background

A native Marylander, Julie Rebecca Rubin was born on November 25, 1972 in Baltimore. Rubin received a B.A. cum laude from Mount Holyoke College in 1995, and then obtained a J.D. from the University of Maryland School of Law in 1998.

After graduation, Rubin worked for the Baltimore office of Shapiro & Olander P.A. for two years before joining Astrachan Gunst Thomas Rubin, P.C. in Baltimore with her husband James Astrachan.

In 2013, Rubin was nominated by Governor Martin O’Malley to be a Judge on the Baltimore City Circuit Court, where she currently serves.

History of the Seat

Rubin has been nominated for a seat on the U.S. District Court for the District of Maryland to fill the seat opened by Judge Ellen Lipton Hollander’s move to senior status upon the confirmation of her successor.

Legal Career

Rubin started his legal career at Shapiro & Olander P.A. and then spent twelve years as a name partner at Astrachan Gunst Thomas Rubin, P.C., where she worked on intellectual property and employment law matters. Among the matters she handled there, Rubin secured a $150,000 judgment for a Baltimore based design collective in a breach of contract action. See Brendan Kearney, Baltimore-base Design Collective Gets $150K Verdict, The Daily Record, Jan. 30, 2008. She also represented Caveo Network Solutions, securing a $500K verdict against a former president who started a rival company. See Danny Jacobs, Frederick Technology Company Wins $500K From Former Leader, The Daily Record, Feb. 21, 2011.

Jurisprudence

Rubin has been a judge on the Baltimore County City Court since her appointment to the bench in 2013. In her time on the bench, Rubin has presided over a number of prominent cases.

In 2015, Rubin notably dismissed the murder charge against Montrelle Braxton, finding that Judge Alfred Nance improperly declared a mistrial in a dispute with Braxton’s public defender, and that jeopardy attached to any attempt to retry Braxton. See Steve Lash, The Criticism That Ended the Murder Case, The Daily Record, Aug. 14, 2015. Prosecutors eventually dropped an appeal of her decision to dismiss charges. Lauren Kirkwood, Baltimore Prosecutors Drop Appeal of Dismissed Murder Case, The Daily Record, Feb. 19, 2016.

Rubin has also presided over a number of high value jury verdicts. For example, Rubin presided over a $1.6 million verdict in a lead paint poisoning case. Steve Lash, Baltimore Jury Awards $1.6M to Lead-Paint Victim, The Daily Record, Aug. 9, 2016. Rubin also awarded $30.7 million to Baltimore police and firefighters in a pension lawsuit. Steve Lash, Judge Awards $30.7 Million to Baltimore Police, Fire Retirees, The Daily Record, Apr. 8, 2020. In comparison, Rubin cut a $2.7 million award to a plaintiff in a prison assault case to $200,000 pursuant to Maryland law. See Heather Cobun, Verdict in Prison Guard Assault Case Cut to $200K Under Damages Cap, The Daily Record, July 24, 2019.

Overall Assessment

As a longtime civil attorney and state court judge, Rubin has a fairly conventional background for a judicial nominee. She is likely to have a smooth path to confirmation.

Judge Alison Nathan – Nominee to the U.S. Court of Appeals for the Second Circuit

In addition to presiding over many high profile cases in her current post on the Southern District of New York, Judge Alison Nathan has a distinguished background, tailor-made for elevation to the Second Circuit.

Background

Born Alison Julie Nathan on June 18, 1972 in Philadelphia, Nathan received her B.A. from Cornell University in 1994 and then spent a couple of years working in Japan and Thailand before getting a J.D. from Cornell Law School in 2000. After graduating, Nathan clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and for Justice John Paul Stevens on the U.S. Supreme Court, as part of a clerk class that year produced five other federal judges: D.C. Circuit Judge Neomi Rao; Fifth Circuit Judge Gregg Costa; Ninth Circuit Judge Michelle Friedland; Northern District of California Judge Vince Chhabria; and Former Court of Appeals for the Armed Forces Judge Margaret Ryan.

After her clerkships, Nathan spent four years at Wilmer Cutler Pickering Hale & Dorr LLP before joining Fordham University School of Law as a professor. In 2008, she shifted to New York University School of Law.

After the election of President Obama, Nathan spent a year as Special Assistant to the President and Associate White House Counsel before joining the New York Solicitor General’s Office.

On March 31, 2011, Obama nominated Nathan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Sidney Stein’s move to senior status. Despite bipartisan support out of the Senate Judiciary Committee, Senate Republicans were cognizant of the likelihood that Nathan would be elevated and unanimously opposed her, leading to a squeaker 48-44 confirmation on October 13, 2011. Nathan currently serves on the Southern District.

History of the Seat

Nathan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat will be vacated by Judge Rosemary Pooler upon the confirmation of a successor.

On November 17, 2021, Nathan was recommended for the vacancy by Senate Majority Leader Chuck Schumer. However, Nathan was likely pre-vetted by the White House as her nomination was made public the same day.

Legal Career

While Nathan’s legal career from clerkship to the bench was a relatively short nine years, she managed to hold a number of positions in that time, including in government, academia, and private practice. During this time, Nathan tried one bench trial in federal court, while also filing one merits brief, four amicus briefs, and one petition for certiorari at the Supreme Court.

Among her more significant matters during her career, Nathan was part of the legal team defending the constitutionality of a New York state tax statute relating to the taxation on cigarette sales in Indian reservations. See generally Seneca Nation of Indians, et al. v. Paterson (multiple related matters). Nathan also authored an amicus brief at the Supreme Court on behalf of forty one states and the District of Columbia, arguing that the Constitution permits remote sellers of cigarettes to be subject to state and local regulations. The Second Circuit ultimately upheld an injunction against the statute allowing the regulations.

Political Activity

Before joining the bench, Nathan was active in working on Democratic campaigns, having taken time off while at Wilmer to work as a legal adviser on the John Kerry Presidential campaign and having done voter protection for ten months for the Obama campaign in 2008. Nathan also occasionally attended meetings of the New York Democratic Lawyer’s Council.

Jurisprudence

Nathan has served as a federal trial judge for approximately nine years. In her time on the bench, Nathan has handled a number of high-profile cases, some of which are detailed below:

American Broadcasting Cos, Inc. v. Aereo, Inc. – Nathan was assigned this suit by broadcasting companies seeking to prevent Aereo, a cloud-based streaming service for over-the-air television, from streaming their broadcasts. Nathan declined to enjoin Aereo, citing prior precedent confirming the legality of cloud-based streaming services. Nathan’s ruling was upheld by the Second Circuit but overturned 6-3 by the Supreme Court in 2014 (573 U.S. 431).

United States v. Ali Sadr Hashemi Nejad – In 2020, Nathan dismissed a prosecution against businessman Ali Sadr for violating U.S. sanctions against Iran after prosecutors disclosed issues with disclosing evidence. Nathan also criticized the conduct, ordering the government to identify the prosecutors responsible.

Guennol Stargazer – In 2021, Nathan ruled that the sale of a figurine extracted from western Turkey could not be enjoined as the figurine had been under display for years and there was no evidence that it’s excavation had violated Ottoman law. Furthermore, Nathan ruled that Turkey’s claims to the figurine were barred by the doctrine of Laches, which requires claims to be timely brought.

Ghislaine Maxwell – Nathan is currently presiding over the trial of British socialite Ghislaine Maxwell, who is accused of conspiring with Jeffrey Epstein in sex trafficking. Nathan previously ordered Maxwell held without bond, finding her to be a risk of flight.

Overall Assessment

There is little doubt that Nathan is well-qualified for a seat on the Second Circuit. Having extensive experience both as a judge and in analyzing the law as an attorney, Nathan would be able to hit the ground running on the famously intellectual court. Nonetheless, Nathan is likely to attract a sizeable cadre of opposition, based less on a particular decision or case but more on her likelihood to be a liberal heavyweight on the bench.