Judge Gary Brown – Nominee to the U.S. District Court for the Eastern District of New York

Judge Gary Brown has been waiting over three years for confirmation to the federal bench, a very long wait for a nominee with virtually no controversy about his record.  However, as he has now been renominated by a Republican Administration and has the support of his Democratic home state senators, he may see the bench before too long.

Background

Brown was born in Brooklyn in 1963.  He graduated summa cum laude from Columbia in 1985 and then attended Yale Law School, graduating in 1988.[1]  Brown then clerked for Judge Jacob Mishler on the U.S. District Court for the Eastern District of New York.

After his clerkship, Brown joined the U.S. Attorney’s Office for the Eastern District of New York as an AUSA in the Civil Division.[2]  In 1996, Brown shifted over to the Long Island Criminal Division, becoming the Chief in 2003.[3]

In 2005, Brown became Senior Counsel at Computer Associates International, a company that itself had attracted some attention from federal prosecutors.[4]

In 2011, Brown became a federal magistrate judge on the U.S. District Court for the Eastern District of New York, based in Central Islip in Long Island.  He serves on that court today.

History of the Seat

Brown has been nominated (for a second time) to fill a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on January 21, 2015, when Judge Sandra Feuerstein moved to senior status.  President Obama first nominated Brown to fill the vacancy on July 30, 2015.[5]  While his nomination was unanimously approved by the Senate Judiciary Committee, it was blocked from a final confirmation by Senate Majority Leader Mitch McConnell.

In June 2017, Brown’s name was broached by the White House as part of a package of nominees.[6]  Brown was officially nominated on May 15, 2018.

Legal Career

Brown started his legal career by clerking on the U.S. District Court for the Eastern District of New York.  He then worked as a Civil AUSA in the Eastern District of New York, handling civil lawsuits over scams, contract, tort, and environmental issues.  Notably, Brown helped handle a civil lawsuit based on the largest food stamp fraud perpetrated by a meat market in Brooklyn.[7]

From 1996 to 2005, Brown handled criminal matters out of the Long Island Office.  During this time, he prosecuted serial killer Michael Swango, a doctor who killed several of his patients by injecting them with poisonous substances.[8]  The doctor was found guilty of manslaughter and sentenced to five years in prison.[9]

In 2005, Brown was hired by Computer Associates International as Senior Counsel.  Over the next six years, Brown represented the company in intellectual property, qui tam, and other lawsuits.[10]

Jurisprudence 

Brown has served as a U.S. Magistrate Judge since his appointment in 2011.  As of 2015, Brown had participated in nine consent trials.[11]  Among them, Brown presided over a trial regarding the seizure of an expensive sports car by city officials without due process.[12]

Brown also handled a notable case emerging from damage from Hurricane Sandy.[13]  The case involved damage to a Long Island home that insurance companies refused to cover, arguing that the damage was caused by long-term deterioration and not the hurricane.[14]  However, Brown and plaintiffs discovered that the insurance reports demonstrating this had been secretly altered.[15]  The case eventually resolved with a full insurance payout and attorney’s fees.[16]

Writings

In 1993, Brown wrote an article arguing for the reform of civil forfeiture proceedings.  Specifically, he wrote that civil forfeiture proceedings should be automatically stayed pending the resolution of parallel criminal proceedings.[17]  In the piece, he argues that such a provision would protect the rights of defendants while also helping the government by protecting the secrecy of criminal proceedings from civil discovery.[18]

In a second article, written as a criminal AUSA, Brown discussed the Criminal Street Gangs statute (CSGS) and attached sentencing enhancements.[19]  In the article, Brown argues that the enhancements are ineffective in preventing gang activity because they are burdensome to use, require proof of many elements, and, as such, are rarely used.[20]  As such, Brown advocates for reform using a potential mandatory minimum statutory sentences.[21]

Overall Assessment

Looking at Brown’s record overall, there is little that is likely to draw opposition.  Brown has not written on any hot-button issues and few of his rulings are likely to attract attention.  As the failure of Brown’s initial nomination to the federal bench had little to do with Brown himself and everything to do with the President who nominated him,  his confirmation is likely to be much smoother this time around.


[1] Sen. Comm. on the Judiciary, 114th Cong., Gary Richard Brown: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Ken Schachtner, Computer Associates International Names New Senior Counsel, Long Island Business News, Mar. 18, 2005.

[5] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[6] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[7] Selwyn Raab, Food Stamps Used in Scam to Sell Meat, N.Y. Times, Oct. 28, 1992.

[8] Charlie LeDuff, Prosecutors Say Doctor Killed to Feel a Thrill, N.Y. Times, Sept. 7, 2000.

[9] Scottsdale Abortion Doctor Sentenced to Five Years in Prison, Arizona Daily Sun, May 4, 2001, http://azdailysun.com/scottsdale-abortion-doctor-sentenced-to-five-years-in-prison/article_d08ec172-9b1c-55da-9a1f-b94c9f9ada55.html.  

[10] See Brown, supra n. 1 at 33.

[11] See id. at 15.

[12] Ferrari v. Cnty. of Suffolk, Case No. 10-CV-4218 (GRB).

[13] Raimey v. Wright Nat’l Flood Ins. Co., No. 14-CV-461 (JFB) (SIL) (GRB).  

[14] David Chen, Storm Victims Say Damage Reports Were Altered, N.Y. Times, Feb. 17, 2015.

[15] See id.

[16] See Brown, supra n. 1 at 20.

[17] Gary R. Brown, The Civil Justice Reform Act: Reforming Civil Forfeiture Law: The Case for an Automatic Stay Provision, 67 St. Johns’ L. Rev. 705 (Fall 1993).

[18] See id. at 711-12.

[19] Gary R. Brown, Less Bark, More Bite: Fixing the Criminal Street Gang Enhancement, 16 Fed. Sent. R. 148 (2003).

[20] See id. 

[21] See id. at 158.

Judge Richard Sullivan – Nominee to the U.S. Court of Appeals for the Second Circuit

When the 43 year old Sullivan was confirmed to the U.S. District Court for the Southern District of New York in 2007, legal observers predicted that the young judge would go far. However, the election of President Obama in 2008 short-circuited Sullivan’s expected rise to the Second Circuit (and potentially further).  Now, ten years later, the 54-year-old conservative is getting the long-delayed promotion.

Background

A native New Yorker, Richard Joseph Sullivan was born in Manhasset on April 10, 1964.  Sullivan received his B.A. from the College of William & Mary in 1986 and his J.D. from Yale Law School in 1990.[1]  After graduating, Sullivan clerked for Judge David Ebel on the U.S. Court of Appeals for the Tenth Circuit and then joined the New York firm Watchell Lipton Rosen & Katz as an associate.

In 1994, Sullivan joined the U.S. Attorney’s Office for the Southern District of New York, working as a prosecutor for the next 11 years.  In 2005, Sullivan joined Marsh Inc. as General Counsel.[2]  Two years later, President George W. Bush nominated Sullivan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Michael Mukasey’s move to senior status.  Sullivan was unanimously confirmed by the U.S. Senate on June 28, 2007.  Sullivan currently serves in that capacity.

History of the Seat

Sullivan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Richard Wesley, who moved to senior status on August 1, 2016.

In March 2017, Sullivan was contacted by the White House to gauge his interest in the Second Circuit.[3]  Sullivan’s name was suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Once approved, Sullivan began the nomination process in November 2017 and was nominated on May 7, 2018.

Legal Career

Sullivan has spent the most significant portion of his pre-bench career as a federal prosecutor.  Notably, Sullivan served as head of the Narcotics Unit at the U.S. Attorney’s Office for the Southern District of New York.  As such, Sullivan prosecuted a number of cases involving international drug trafficking, drug-related organized crimes, and drug-related corruption cases.[5]

From 2005 to 2007, Sullivan served as Deputy General Counsel for Litigation at Marsh & McLennan Companies, Inc. and then as General Counsel at Marsh, Inc.  In this role, Sullivan managed the in-house legal team at Marsh, a large insurance broker.

Jurisprudence

Sullivan has served as a federal trial judge for approximately eleven years.  His record on the bench is generally conservative, particularly on criminal issues.[6]  One observer has noted that the assignment of a criminal case to Sullivan strikes “fear into defense attorneys and their Wall Street clients…”[7]  Notably, New York federal prosecutors were criticized by the Second Circuit for maneuvering to keep criminal cases before Judge Sullivan rather than risk a random assignment to another judge.[8]  Below are some notable decisions by Sullivan in Constitutional cases:

Lederman v. New York City Department of Parks & Recreation[9] –  In this case, two visual artists who usually sold their works on New York sidewalks challenged an ordinance that limited the sales of expressive works to certain designated spots.  Sullivan upheld the restrictions, finding that they were narrowly tailored to achieve the government’s interest in “alleviating congestion and improving circulation” in parks and sidewalks.[10]  Sullivan’s decision was itself upheld by the Second Circuit.[11]

Nnebe v. Daus[12] – This case (and its successors) were challenges to New York’s policy of suspending the licenses of taxi drivers summarily after their arrest for certain enumerated crimes.  The plaintiffs argued that, by not providing them with a hearing prior to the suspension, New York had deprived them of their rights under the Due Process Clause.  They also argued that their rights were violated due to the inadequacies of the notice of the suspension and the post-suspension hearing.  Sullivan held that the hearings (or lack thereof) did not violate the plaintiff’s substantive or procedural due process rights.  He held, however, that the notice was inadequate, but declined to impose either injunctive relief or damages beyond nominal damages.

United States v. Scott[13] – This was a criminal case involving the Defendant’s unlawful re-entry after deportation.  Lacey Scott was born in Jamaica to unmarried parents.  His father later immigrated to the United States and Scott joined him under his legal custody.  Scott’s father later became a naturalized citizen, and a few years later, Scott was convicted of multiple felonies and deported to Jamaica.  In the proceedings before Sullivan, Scott argued that he should have received “derivative citizenship” by being a minor in the lawful custody of a U.S. citizen parent.  Sullivan held that Scott did not receive derivative citizenship because the statute does not extend such citizenship to children whose parents did not have a “legal separation.”  Furthermore, Sullivan rejected an Equal Protection Challenge to the statute, holding that “Congress had a rational basis here for distinguishing between legitimate (or legitimated) and illegitimate children.”[14]

United States v. Torres[15] – This case questioned whether officers had reasonable suspicion to stop and frisk the Defendant.  Sullivan found that the officers had reasonable suspicion for both the stop and the search where the defendant was in a high-crime area and ran away from the police.  In doing so, Sullivan rejected the Defendant’s argument that it was reasonable to run from plain-clothes officers where they failed to identify themselves as police.

United States v. Ortiz[16] – This case involved the suppression of incriminating statements made by the Defendant after officers threatened to arrest the Defendant’s mother and aunt.  Sullivan found that the threat rendered the subsequent statements involuntary and suppressed them.  However, he declined to suppress additional incriminating statements made by the Defendant in a later interview at the precinct, finding that sufficient time had elapsed since the threat to make the statements voluntary.

Overall Assessment

There is little doubt that Sullivan is well-qualified for a seat on the Second Circuit.  There is also little doubt that, if confirmed, Sullivan would add a new conservative voice to the Second Circuit, particularly on criminal issues.  Given the support that Sullivan has received from the influential Schumer and Gillibrand, it is likely that he will be confirmed before the end of the year.  The only question is whether that confirmation will look anything like his unanimous approval eleven years ago.


[1] Sen. Comm. on the Judiciary, 115th Cong., Richard Sullivan: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. at 77.

[4] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[5] See, e.g., United States v. Martinez, 464 F.3d 184 (2d Cir. 2006); United States v. Magana, 322 F. Supp. 2d 359 (S.D.N.Y. 2004); United States v. Madrid, 302 F. Supp. 2d (S.D.N.Y. 2003); United States v. Maisonet, 213 F.3d 637 (S.D.N.Y. 2001).

[6] See Charles Levinson, Tough Judge Richard Sullivan’s Rulings Are in the Spotlight, The Wall St. Journal, April 30, 2014, https://www.wsj.com/articles/tough-judge-richard-sullivans-rulings-are-in-the-spotlight-1398898973.

[7] See id.

[8] See Alison Frankel, Judge-Shopping Accusations Resurface Against Manhattan Federal Prosecutors, Reuters, June 15, 2017, https://www.reuters.com/article/us-otc-shopping/judge-shopping-accusations-resurface-against-manhattan-federal-prosecutors-idUSKBN1962Q9.  

[9] 901 F. Supp. 2d 464 (S.D.N.Y. 2012), aff’d, 731 F.3d 199 (2d Cir. 2013).

[10] See id. at 475.

[11] See 731 F.3d 199 (2d Cir. 2013).

[12]184 F. Supp. 3d 54, 72 (S.D.N.Y. 2016), appeal dismissed, (May 25, 2016),

[13] 919 F. Supp. 2d 423 (S.D.N.Y. 2013).

[14] Id. at 431.

[15] 252 F. Supp. 3d 229 (S.D.N.Y. 2017)

[16] 943 F. Supp. 2d 447 (S.D.N.Y. 2013)

Carl Nichols – Nominee for the U.S. District Court for the District of Columbia

Last year, the White House’s nomination of Matthew Petersen self-destructed during his Judiciary Committee hearing after an embarrassing exchange with Sen. John Kennedy (R-La.) revealed the nominee’s lack of courtroom experience.  In attempting to mitigate that issue, the White House’s next nominee to the seat has extensive litigation experience: Carl Nichols.

Background

Carl John Nichols was born in Rhinebeck, NY on June 25, 1970.  Nichols graduated cum laude from Dartmouth University in 1992 and then spent a year as a paralegal at McKenna & Kuneo in Washington D.C.[1]  He then attended the University of Chicago Law School, serving as Editor of the University of Chicago Law Review and graduating with high honors.[2]

After graduating, Nichols clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.  In the latter position, Nichols clerked alongside Solicitor General Noel Francisco, and federal appellate judges Sri Srinivasan, Stephanos Bibas, Raymond Kethledge, and John Owens.

After finishing up his clerkships, Nichols joined the D.C. office of Boies Schiller Flexner LLP as an associate.[3]  Four years later, he became a partner at the firm.  In 2005, Nichols left the firm to join the Department of Justice as Deputy Assistant Attorney General for the Civil Division, where he worked with future D.C. Circuit Judge Greg Katsas.[4]  Nichols became Principal Deputy Associate Attorney General in 2008.

In 2010, Nichols joined Wilmer Cutler Pickering Hale & Dorr LLP as a Partner.  He continues to serve in that role today.

History of the Seat

The seat Nichols has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[5]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On September 11, 2017, President Trump nominated Matthew Petersen, a Commissioner with the Federal Election Commission, to fill the vacancy.  Petersen was prominent as a Republican election lawyer, was close to White House Counsel Don McGahn, and initially looked slated for a swift confirmation.  However, during his confirmation hearing, Petersen faced a sharp series of questions from Sen. John Kennedy, revealing that the nominee had never tried a case, taken fewer than five depositions over his career, and could not identify basic legal concepts including the definition of a motion in limine.[6]  With the video of Petersen’s inability to answer going viral, Petersen quietly withdrew his nomination on December 18, 2017.[7]

On December 21, 2017, three days after Petersen withdrew, Nichols was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[8]  Nichols was interviewed by the White House on January 5, 2018 and was preliminarily selected as a nominee on February 12, 2018.[9]  Nichols was officially nominated on June 18, 2018.

Legal Experience

Nichols’s legal career can be broken down into three distinct periods for analysis: the first is from 1998-2005, where he worked as an associate and partner at Boies Schiller;  the second is from 2005-2009, where Nichols worked as a DOJ attorney; the final is from 2010-present, where Nichols has worked at WilmerHale.

From 1998 to 2005, Nichols worked in the D.C. office of Boies Schiller focusing on civil litigation.  For example, Nichols represented Philip Morris in defending against a Sherman Act suit brought by rival tobacco companies seeking damages based on Philip Morris’ retail marketing programs.[10]  Nichols successfully defended summary judgment in favor of Philip Morris at the district court and court of appeals levels.[11]

From 2005 to 2008, Nichols served as Deputy Assistant Attorney General for the Civil Division, supervising the Federal Programs Branch, which handled civil cases across the nation.  During his tenure, Nichols was responsible for handling lawsuits related to the warrantless wiretapping of Americans.  For example, Nichols argued that a lawsuit brought by the Electronic Frontier Foundation against AT&T should be dismissed for infringing on national security.[12]  In another case, Nichols sued Maine officials and Verizon to prevent the release of information related to Verizon’s participation in warrantless wiretapping.[13]

From 2008 to 2009, Nichols served as the Principal Deputy Associate Attorney General for the Civil Division, working directly under Assistant Attorney General Kevin McDonald.  In this role, Nichols helped supervise and run the entire Civil Division.[14]  During his tenure, the Democratic-controlled House of Representatives sued the White House to seek access to subpoenaed information regarding the dismissal of U.S. Attorneys.  Nichols defended against the suit in D.C. federal courts.  Ultimately, Judge John Bates ruled in favor of the House of Representatives, but the decision was stayed by the D.C. Circuit until the end of the Bush Presidency.

Since 2010, Nichols has been a partner at WilmerHale, working in the Government and Regulatory Litigation Group.  Notably, Nichols represented Florida Attorney General Bill McCollum in defending against a suit filed by Governor Rick Scott to invalidate Florida’s campaign finance laws.[15]  Nichols also represented the Association of California Egg Farmers in defending a California law banning the sale of eggs that do not conform to certain safety regulations.[16]

Political Activity

Nichols has an extensive record of political contributions to Republicans.  Since joining WilmerHale in 2010, Nichols has given almost $9000.[17]  Among the recipients included Sens. Rob Portman, Mike Lee, former Sen. Scott Brown, and Congressmen Darrell Issa and Liz Cheney.[18]  Additionally, Nichols served as a transition team advisor for the Romney-Ryan campaign in 2012.[19]

Overall Assessment

After Petersen, the White House is looking to ensure that no questions can be raised as to the next nominee’s qualifications.  By that standard, they have succeeded with Nichols.  Nichols has extensive litigation experience and has been described by former Clinton White House Official Jamie Gorelick as a “spectacular” nominee.[20]

This is not to say that Nichols will not face any controversy in his confirmation.  Nichols may face questions regarding his work at the Department of Justice, particularly focused on his involvement in defending warrantless wiretapping and in fighting the House suit against the White House.  While Nichols will argue that any controversial positions he took were solely those of the Department, senators will nonetheless probe his views of warrantless surveillance and the role of Congress in enforcing subpoenas.

As a bottom line, given Nichols’ extensive experience, he is likely to fare better than Petersen and will likely add a conservative voice to the D.C. bench.


[1] Sen. Comm. on the Judiciary, 115th Cong. Carl J. Nichols: Questionnaire for Judicial Nominees 1.

[2] See id. at 3.

[3] Id. at 2.

[4] Id.

[5] Ann E. Marimow, Chief Judge of the District’s Federal Court Retires as Lawsuit Accuses Him of Sexual Assault, Wash. Post, Mar. 16, 2016, https://www.washingtonpost.com/local/public-safety/chief-judge-of-the-districts-federal-court-retires/2016/03/16/2ff09bf0-ebc1-11e5-b0fd-073d5930a7b7_story.html?utm_term=.38886e556276.  

[6] See Brian Naylor, Video Shows Trump Judicial Nominee Unable to Answer Basic Questions of Law, Nat’l Pub. Radio, Dec. 15, 2017, https://www.npr.org/2017/12/15/571060681/video-shows-trump-judicial-nominee-unable-to-answer-basic-questions-of-law.  

[7] Lydia Wheeler, Trump Judicial Nominee Withdraws After Humiliating Hearing, The Hill, Dec. 18, 2018, http://thehill.com/homenews/administration/365455-trump-judicial-nominee-withdraws-after-humiliating-hearing.

[8] See Nichols, supra n. 1 at 32.

[9] See id.

[10] See RJ Reynolds Tobacco Co. v. Philip Morris USA, Inc., 67 Fed. Appx. 810 (4th Cir. 2003).

[11] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[12] See Judge Rules EFF Can Keep Sealed Documents in Domestic Spying Lawsuit, San Jose Mercury News, May 17, 2006.

[13] Elbert Aul, U.S. Sues State, Verizon to Block NSA Revelations; Maine is the Third State Sued for Probing the Firm’s Alleged Role in Surveillance, Portland Press Herald, Aug. 22, 2006.

[14] See Nichols, supra n. 1 at 15.

[15] Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010).

[16] State of Missouri et al. v. Harris et al., 58 F. Supp. 3d 1059 (E.D. Cal. 2014).

[18] See id.

[19] See Nichols, supra n. 1 at 14.

[20] Zoe Tillman, Trump is Expected to Nominate a Seasoned Former Justice Official for a Judgeship After His First Pick Bombed, Buzzfeed News, Mar. 12, 2018, https://www.buzzfeednews.com/article/zoetillman/trump-is-expected-to-nominate-a-former-justice-department (quoting Jamie Gorelick).

Diane Gujarati – Nominee to the U.S. District Court for the Eastern District of New York

Diane Gujarati was the last judicial nominee that President Obama sent to the Senate during his Presidency, nominated on September 13, 2016.  Needless to say, Gujarati was not confirmed that year.  However, her renomination by President Trump is giving her a second chance at a lifetime appointment.

Background

Diane Gujarati was born on July 6, 1969, the daughter of Damodar Gujarati, a professor of economics at the U.S. Military Academy at West Point and an immigrant from India.[1]  Gujarati attended Barnard University, graduating summa cum laude in 1990. Gujarati then attended Yale Law School, graduating in 1995.  She then clerked for Judge John Walker on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Gujarati became an associate at Davis Polk & Wardwell LLP in New York City.  After three years there, Gujarati became an Assistant U.S. Attorney for the U.S. Attorney’s Office for the Southern District of New York.  She currently serves as Deputy Chief of the Criminal Division for the Office.

History of the Seat

Gujarati has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat has an impressive pedigree, having previously been held by two notable luminaries: Judge Jack Weinstein; and Judge John Gleeson.  Gleeson resigned the bench on March 9, 2016, opening this vacancy.  While the seat opened fairly late in the Obama Administration, Gujarati was nonetheless nominated on September 13, 2016.  Gujarati was never processed by the Republican Senate and was sent back to the White House in January 2017.

In June 2017, Gujarati’s name was broached by the White House to New York’s Democratic senators as part of a package of nominees.[2]  Gujarati was officially nominated on May 15, 2018.

Legal Experience

Other than her clerkship and a short stint at Davis Polk & Wardwell LLP, Gujarati has spent her legal career as a federal prosecutor in the Southern District of New York, working on criminal matters.  Early in her stint, Gujarati prosecuted security guard Ronald Ferry for lying to federal authorities about finding a pilot radio in the room of an Egyptian student shortly after the 9/11 attacks.[3]  Gujarati asked for a six month sentence, which the judge allowed Ferry to serve on weekends.[4]  The lenient sentence drew criticism from student in question, Abdallah Higazy, and the New York Daily News, which called it a “slap on the wrist.”[5]  Gujarati also helped prosecute N.Y. mob boss Louis Daidone, who had allegedly once stuffed a dead canary in the mouth of an informant he killed.[6]

As she gained seniority in the office, Gujarati served as Deputy Chief of the Appeals Unit of the Criminal Division from 2006 to 2008.  During that time, she supervised a series of appeals including a Confrontation Clause challenge brought by an alleged mob member,[7] and a timeliness challenge in a securities case.[8]  She then served as Chief of the White Plains Office from 2008 to 2012 and has served as Deputy Chief of the Criminal Division since then.

Overall Assessment

Generally speaking (although it’s not guaranteed), any nominee put forward by both Obama and Trump is likely to be considered a consensus nominee.  After all, if two Presidents with fairly different criteria for selecting judges can come to a consensus on a nominee’s fitness, it is unlikely that senators will disagree.  Setting that aside, Gujarati clearly has the requisite qualifications to be a district court judge.  Her history of both prosecuting and supervising prosecutors ensures that she has the legal and organizational abilities to handle a courtroom.

If confirmed, Gujarati would replace another former prosecutor who became one of the strongest voices on the judiciary for holding prosecutors accountable.[9]  It remains to be seen if Gujarati will continue Gleeson’s traditions of ensuring an even playing field between prosecutors and defendants in the courtroom.


[1] Weddings; Diane Gujarati, Charles Chesnut, N.Y. Times, Oct. 29, 2000.

[2] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[3] Robert Gearty, Jail Weekends for Guard in Pilot Radio Case, N.Y. Daily News, May 31, 2002.

[4] See id.

[5] See id.

[6] Dan Mangan, Gruesome Tale of Mob ‘Canary’ Killer, N.Y. Post, Jan. 13, 2004.

[7] United States v. Lombardozzi, 491 F.3d 61 (2d Cir. 2007).

[8] United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007).

[9] See, e.g., Colby Hamilton, The Gotti Antagonist Who Brought Down a Sentencing Regime, Politico, March 17, 2016, https://www.politico.com/states/new-york/city-hall/story/2016/03/the-gotti-antagonist-who-brought-down-a-sentencing-regime-032867.

Lewis Liman – Nominee to the U.S. District Court for the Southern District of New York.

The judicial nomination process often involves dealmaking, where nominations are logrolled together to satisfy different stakeholders.  A perfect example of this is with regard to the 8-nominee New York package put together by the White House in consultation with Democratic Senators Chuck Schumer and Kirsten Gillibrand.  As part of the package, the White House has nominated a candidate they wouldn’t otherwise consider: Lewis Liman.

Background

Lewis Jeffrey Liman was born in New York on December 3, 1960, the son of Arthur and Ellen Liman.  Liman’s father, Arthur L. Liman, was a famous lawyer in his own right, having led the Senate Iran-Contra Investigation.[1]  Liman grew up in New York City (on the Upper West Side) and then attended Harvard College and Yale Law School (with a stint at the London School of Economics in between).[2]

After graduating, Liman spent a year at the NAACP Legal Defense & Educational Fund.  He then clerked for Judge Pierre Leval on the U.S. Court of Appeals for the Second Circuit and then for Justice John Paul Stevens on the U.S. Supreme Court.[3]  At the Supreme Court, Liman clerked alongside an array of future legal luminaries including Judge Stephen Higginson, Judge Adalberto Jordan, Judge Randolph Moss, Judge Paul Engelmayer, Peter Keisler, Miguel Estrada, Richard Cordray, and Ronald Klain.

After his clerkships, Liman joined the New York office of Cravath Swaine & Moore LLP as an associate.  In 1994, Liman shifted to the U.S. Attorney’s Office for the Southern District of New York, working under Mary Jo White.  In 1999, Liman moved to Wilmer, Cutler & Pickering LLP as a Partner.  In 2003, Liman joined the New York office of Cleary Gottleib Steen & Hamilton LLP as a Partner.  He continues to serve there to this day.

History of the Seat

Liman 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 Paul Crotty.  While Crotty moved to senior status on August 1, 2015, President Obama never made a nomination to fill the vacancy.  However, at the time, Liman was recommended for the vacancy to Schumer by his Screening Committee.[4]

In April 2017, Liman was interviewed by the Trump Administration for nomination to the Southern District of New York.  Liman’s name was then broached to Schumer and Gillibrand as a part of a package of nominees.[5]  Once approved, Liman began the nomination process in November 2017 and was nominated on May 15, 2018.

Political Activity

Liman has been an active political donor, having made nearly forty political contributions over the last twenty five years, all to Democrats or Democratic-aligned organizations.[6] Among his donations, Liman has given to Schumer, Gillibrand, Hillary Clinton, President Obama, and John Kerry.[7]

Legal Career

After working briefly for the NAACP Legal Defense & Educational Fund and clerking, Liman has spent the bulk of his career either as a federal prosecutor or in private practice.

Federal Prosecutor

Liman worked as an Assistant United States Attorney in the Southern District of New York between 1994 and 1999.  In that role, Liman handled a wide variety of cases including white collar crime, organized crime, drugs, and financial crime.[8]

Among his more prominent cases, Liman prosecuted Autumn Jackson for extorting money out of Bill Cosby through blackmail, claiming that Cosby was her father.[9]  Alongside fellow AUSA Paul Engelmayer,[10] Liman led the trial examination and secured a guilty verdict.[11]  Notably, Liman’s father passed away during the trial, forcing a recess.[12]

Among other cases he handled, Liman prosecuted a junior analyst at J.P. Morgan for insider trading,[13] secured convictions against four members of the Cali drug cartel for smuggling approximately three thousand pounds of cocaine,[14] and prosecuted a tax accountant for preparing false tax returns on behalf of dozens of clients to help them evade taxes.[15]

Private Practice

Liman has spent most of his career in private practice, working at Cravath Swaine & Moore LLP from 1990 to 1994, at Wilmer, Cutler & Pickering LLP from 1999 to 2003, and at Cleary Gottleib Steen & Hamilton LLP since 2003.  In each of these positions, Liman’s practice focused on litigation.  In his first position at Cravath, for example, Liman focused on Antitrust litigation, including representing Time Warner Corporation.[16]

During his time at Wilmer, Liman focused on representing corporations in securities actions and white collar cases.  However, he also represented a coalition of religious groups arguing that a construction company responsible for a fire that almost destroyed the Central Synagogue should not be allowed to reduce their damages by the amount of charitable donations the organization took in.[17]  Liman also represented, upon court appointment, a New York prisoner seeking release after his conviction for burglary, successfully securing the prisoner’s release.[18]

While at Wilmer, Liman represented Tyco International executive Dennis Kozlowski.  During the investigation, emails from Liman were uncovered, which disclosed his knowledge of personal use of corporate funds by executives.[19]  The emails raised concerns as to whether Liman should have disclosed the violations to federal regulators.[20]

Since 2003, Liman has worked as a Partner at Cleary Gottleib Steen & Hamilton LLP, focusing on securities litigation and white collar crime cases.  For example, Liman represented Bank of America in defending against a securities fraud action brought by the Securities and Exchange Commission.[21]

While at Cleary, Liman argued his first and only case at the U.S. Supreme Court, representing a fund manager facing securities fraud allegations brought by the SEC.[22]  Liman was able to convince the Supreme Court that the actions brought against his client were untimely due to the five year gap between the SEC discovering the allegations and bringing suit.[23]

Writings

Liman has been a fairly prolific author, beginning his career by co-authoring a book with his mother while he was still a teenager.[24]  Liman has been particularly prolific on sentencing issues, exploring the weight and efficacy of the Sentencing Guidelines.[25]

In 1991, Liman authored a Letter to the Editor for the New York Times, discussing footnotes in Supreme Court decisions and its impact on “judicial restraint.”[26]  In the letter, written in response to a recent article,[27]  Liman argues that there is no correlation between the extensive use of footnotes in Supreme Court opinions and the lack of “judicial restraint,” noting:

“Judicial restraint is not equivalent to conservative judicial result, but is characterized by a reluctance to adopt rules broader than necessary to resolve a dispute and a willingness to listen to other voices in making a decision.”[28]

Overall Assessment

Let’s get the obvious out of the way: Liman is a Democrat and a more liberal candidate than most Trump will put forward.  However, it is far from uncommon for Presidents to nominate judges of the opposing party to the bench.  As such, with both the Trump Administration and New York Democrats behind his candidacy, Liman is likely to sail through the confirmation process.

Interestingly, if Liman faces opposition, it will likely come from Republican senators who consider his record to be too “liberal.”  Nevertheless, his strong academic credentials and extensive legal experience should be sufficient to ensure a bipartisan confirmation.


[1] Lois Smith Brady, Weddings: Vows; Lisa Cohen and Lewis Liman, N.Y. Times, Jan. 24, 1999.

[2] Sen. Comm. on the Judiciary, 115th Cong., Lewis Liman: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id. at 49.

[5] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=lewis+liman&order=desc&sort=D (last visited July 31, 2018).

[7] See id.

[8] See Liman, supra n. 2 at 26.

[9] Greg B. Smith, Cos to Take the Stand in Extort Case, N.Y. Daily News, June 27, 1997.

[10] Engelmayer himself now serves on the SDNY bench, having been appointed by President Obama in 2011.

[11] Greg B. Smith, Autumn to Take a Big Fall, She’s Convicted of Cosby Extort, N.Y. Daily News, July 26, 1997.

[12] See Agent Ties Woman to Cosby Scheme, USA Today, July 18, 1997.

[13] Benjamin Weiser, An Insider Trading Charge at J.P. Morgan, N.Y. Times, Sept. 13, 1997.

[14] United States v. Garcia, 94 Cr. 78 (JES) (S.D.N.Y.).

[15] United States v. Abrams, 95 Cr. 285 (JES) (S.D.N.Y.), aff’d, 137 F.3d 704 (2d Cir. 1998).

[16] See Liman, supra n. 2 at 27.

[17] See Diana B. Henriques and Leslie Eaton, Once and Future Issue: Subtracting Donations from Damage Awards, N.Y. Times, Nov. 18, 2001.

[18] Stewart v. Strack, 99 Cv. 6400 (ERK) (E.D.N.Y.).

[19] Laurie P. Cohen and Mark Maremont, E-mails

[20] See id.

[21] In re Bank of America Secs. Litig., 09 MDL 2058 (PKC) (S.D.N.Y.).

[22] SEC v. Gabelli, 653 F.3d 49 (2d Cir. 2011), rev’d, 568 U.S. 442 (2013).

[23] See id.

[24] Ellen Liman and Lewis Liman, The Collecting Book (1980).

[25] See, e.g., Lewis J. Liman, Sentencing; ‘Extreme Vulnerability’ Revisited, New York Law Jounal, Mar. 7, 2003; Lewis J. Liman, Should Interdistrict Disparity be a Permissible Basis for Departure, 12 Fed. Sent’g Rep. 154 (1999); Lewis J. Liman, The Constitutional Infirmities of the United States Sentencing Commission, Yale L.J. 1363, 1987.

[26] Lewis Liman, High Court Wields a Powerful Footnote, N.Y. Times, Jan. 18, 1991.

[27] Id.

[28] Id.

Kenneth Bell – Nominee to the U.S. District Court for the Western District of North Carolina

Jonas Federal Building (site of the W.D.N.C. Courthouse in Charlotte).

A former Republican candidate for Congress, Ken Bell is Trump’s first nominee for the Western District of North Carolina.  Setting aside Bell’s political history, he is likely to face questions about his support for prosecuting Hillary Clinton in 2016.

Background

Kenneth Davis “Ken” Bell was born in Bedford, OH in 1958.[1]  Bell attended Wake Forest University and Wake Forest University School of Law.  He then joined the U.S. Attorney’s Office for the Western District of North Carolina as an Assistant U.S. Attorney.  He stayed in the office for the next 20 years, except for a 2-year hiatus at Womble Carlyle Sandridge & Rice in Winston-Salem.[2]

In 2003, Bell joined the Charlotte office of Mayer Brown as a Partner.  Three years later, Bell shifted to the Charlotte office of Hunton & Williams.[3]  In 2009, Bell moved again to McGuireWoods LLP in Charlotte, where he continues to work as a Partner.[4]

History of the Seat

Bell has been nominated for the U.S. District Court for the Western District of North Carolina.  This seat opened on August 31, 2017, when Judge Richard Voorhees moved to senior status.  Around the time the vacancy opened, Bell reached out to Sens. Richard Burr and Thom Tillis (R-NC) to interview for the seat.[5]

In November 2017, Bell was recommended to the White House for the vacancy.[6]  On April 12, 2018, Bell was officially nominated for the seat.

Legal Experience

Bell has practiced law for approximately thirty-five years, with that time evenly split between working as a federal prosecutor and in private practice.

Federal Prosecutor

Bell has two stints as a federal prosecutor in the U.S. Attorney’s Office for the Western District of North Carolina, from 1983 to 1988 and from 1990 to 2003.  While Bell has handled many cases as a federal prosecutor, he is perhaps most famous for his prosecution of a Hezbollah cell operating in Charlotte.  His prosecution produced the first trial conviction ever secured under the Material Support statute.  The cell consisted of individuals who would buy cigarettes in North Carolina and resell them illegally in Michigan, passing on to the profits to Hezbollah.[7]  In addition to securing the first trial convictions under the Material Support statute, Bell also secured the first trial convictions for a terrorist cell under the RICO statute.[8]  Bell’s work on the prosecution resulted in him being awarded the Attorney General’s John Marshall Award for Trial of Litigation.[9]

Among other matters, Bell prosecuted drug crimes,[10] voting fraud,[11] counterfeiting,[12] and civil rights violations.[13]

Private Practice

Bell has been in private practice since 2003, shifting between the firms of Mayer Brown, Hunton & Williams, and McGuire Woods in Charlotte.  In each of these positions, Bell worked primarily on defending individuals and corporations charged with white collar crimes.[14]

Notably, Bell was the chief defense counsel to James Black, the Speaker of the North Carolina House of Representatives, who faced federal charges of corruption.[15]  Black was charged, among other counts, with bribing Republican Rep. Michael Decker to switch parties in 2003, allowing Black to remain Speaker despite a narrow Republican majority.  As Black’s defense counsel, Bell negotiated a plea to one charge of receiving illegal gratuities.[16]  More recently, Bell also represented Rep. Robert Pittenger (R-NC) against corruption charges.[17]

Since 2012, Bell has served as a Receiver over the assets of the Rex Venture Group (also known as ZeekRewards), a Ponzi scheme whose closing created over $800 million in losses.[18]  As Receiver, Bell has filed suits against insiders and net winners from the scheme, seeking to recover the contributions put in by those who were defrauded.[19]

Political Activity

In the 1990 election cycle, Bell ran as a Republican for North Carolina’s 5th Congressional District against Democratic Incumbent Stephen Neal.  Bell won the primary against fellow Republican Steve Royal with 51% of the vote.[20]  During the campaign, Bell attacked Neal for his efforts in Congress on behalf of the Savings & Loan Industries.[21]  However, Bell in turn was attacked by Democrats for using $2500 in campaign funds to make mortgage and car payments.[22]  Rep. Beryl Anthony (D-Ark.), the then-Chairman of the Democratic Congressional Campaign Committee (DCCC) called the use of campaign funds “just plain wrong.”[23]  Bell and other Republicans engaged in the practice defended their actions, arguing that the use of campaign funds for personal expenses was legal and helped level the playing field against powerful incumbents.[24][25]  Ultimately, Bell took 41% of the vote in the ultimate election.[26]

Bell has been a frequent donor to Republicans, having given over $10000 over the last twelve years.[27]  Bell has given particularly generously to Burr, who has received over $4000.[28]  Others Bell has donated to include former Rep. Sue Myrick, Sen. Marco Rubio, and presidential candidate Mitt Romney.[29]

Writings

Throughout his legal career, Bell has written and spoken frequently on legal and public policy issues.   Of the many topics that Bell has written on, two are particularly notable.

First, Bell has repeatedly argued for the prosecution of Hillary Clinton for her use of unsecured email servers during her service as Secretary of State.  In a 2015 letter to the editor, Bell argued that Clinton’s use of the email servers violated the law, noting:

“If I had done what Ms. Clinton has done, I would have been prosecuted, and I would have been guilty.”[30]

After then-FBI Director James Comey announced his determination that Clinton had not broken any laws and that no “reasonable prosecutor” would indict her, Bell authored a second article, stating that he could find “an army of reasonable prosecutors” who would have indicted.[31]  In the second article, Bell argues that Clinton’s actions might suggest “disloyalty to the United States,” that Comey “got out of his lane” by recommending no prosecution, and that Attorney General Loretta Lynch was being unreasonable in not bringing charges.[32]

Bell’s article prompted a response from fellow Charlotte attorney David Tinkler, who noted that Clinton had used a secure server to transmit all information that was marked “classified” and that her behavior was no different than that of previous Republican Secretaries of State.[33]

Second, Bell was a strong advocate for the confirmation of Judge Robert Conrad to the U.S. Court of Appeals for the Fourth Circuit.[34]  Conrad was nominated by President George W. Bush in 2007 and blocked by the Democratic Senate due to concerns about his conservative ideology and previous comments opposing Planned Parenthood.[35]  In an interview, Bell described the blockade on Conrad as “embarrassing and outrageous” and urged Democrats to allow a hearing on Conrad.[36]

Overall Assessment

Like his fellow North Carolina nominee Thomas Farr, Bell is likely to face a rocky confirmation process.  In Bell’s case, the trouble is likely to come from his writings, rather than his legal activities.

Bell is likely to face significant pushback over his view that Hillary Clinton should have been charged criminally for her use of personal email servers, a view rejected by legal observers in both parties (albeit embraced by some mainstream voices).  Democrats are unlikely to support a candidate who urged criminal charges against their last presidential nominee.  Additionally, some critics may charge Bell with hypocrisy, noting his use of campaign funds for personal expenses in his 1990 election (conduct that may have been legal at the time, but has more recently been firmly prohibited by the Federal Election Commission).[37]

Additionally, Bell’s strong endorsement of Conrad, a judge himself criticized for his strong statements against Planned Parenthood and the pro-choice movement,[38] is unlikely to endear Bell to Senate Democrats.

In his favor, Bell’s credentials for the bench are unquestionable given his extensive legal experience.  Furthermore, Bell can point to his representation of prominent Democrats such as Black to reinforce his bipartisan credentials.

As a bottom line, Bell is likely to face strong opposition from Senate Democrats.  However, if he can secure the support of all Senate Republicans, he will still be confirmed.  As such, barring another shoe dropping, Bell remains the favorite for confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Bell: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] See id.

[5] See Bell, supra n. 1 at 56.

[6] See id.

[7] See Jeffrey Goldberg, In the Party of God, New Yorker, Oct. 28, 2002, https://www.newyorker.com/magazine/2002/10/28/in-the-party-of-god-2.  

[8] See United States v. Hammoud, et al., CR-00-147-MU (W.D.N.C.).

[9] See Bell, supra n. 1 at 45.

[10] See, e.g., United States v. McChan, 101 F.3d 1027 (4th Cir. 1996); United States v. McManus, 23 F.3d 878 (4th Cir. 1994).

[11] See, e.g., United States v. Odom, 736 F.2d 104 (4th Cir. 1984).

[12] See, e.g., United States v. Ross, 844 F.2d 187 (4th Cir. 1988).

[13] See, e.g., United States v. Rathburn, 1:99-cr-00091-LHT (W.D.N.C.).

[14] See Bell, supra n. 1 at 28.

[15] United States v. Black, 5:07-cr-00042-BO (E.D.N.C.).

[16] See id.

[17] Tim Funk, Rep. Robert Pittenger, Challenger Mark Harris Target Character in New Ads, Charlotte Observer, May 23, 2016, https://www.charlotteobserver.com/news/politics-government/article79385082.html.  

[18] Securities and Exchange Comm’n v. Rex Venture LLC d/b/a ZeekRewards.com, and Paul Burks, 3:12-CV-519 (W.D.N.C.).

[19] McGuire Woods: Court-Appointed Receiver in ZeekRewards Case Sues Insiders, Net Winners of the Scheme, India Investment News, Mar. 3, 2014.

[20] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=187113 (last visited July 29, 2018).

[21] Nathaniel C. Cash, How Old Votes Become New Political Liabilities, Wash. Post, Aug. 24, 1990.

[22] See Miles Benson, Run for Congress Can Pay Mortgage, Seattle Times, Aug. 26, 1990, http://community.seattletimes.nwsource.com/archive/?date=19900826&slug=1089789.  

[23] Charles R. Babcock, Personal Use of Campaign Funds Sparks Dispute; Challengers Say System Allows the Practice, Improving their Chances Against Incumbents, Wash. Post, Aug. 3, 1990.

[24] See id.

[25] Coincidentally, another challenger attacked for the personal use of campaign funds was an Indiana candidate named Mike Pence.  See Benson, supra n. 29.

[26] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=34410 (last visited July 29, 2018).

[28] See id.

[29] See id.

[30] Kenneth D. Bell, Letter to the Editor, Clinton Offers Up A Meaningless Dodge, Charlotte Observer, Sept. 2, 2015, https://www.charlotteobserver.com/opinion/letters-to-the-editor/article33225267.html.  

[31] Kenneth D. Bell, A ‘Reasonable’ Case for Charging Hillary Clinton, Charlotte Observer, July 9, 2016, https://www.charlotteobserver.com/opinion/op-ed/article88564422.html.  

[32] See id.

[33] David Tinkler, Why the FBI Made the Right Choice on Hillary Clinton Probe, Charlotte Observer, July 14, 2016, https://www.charlotteobserver.com/opinion/op-ed/article89697407.html.

[34] Lisa Zagaroli, Conrad at Center of Partisan Fight, Charlotte Observer, July 22, 2008, https://www.charlotteobserver.com/news/local/article8994503.html.  

[35] See id.

[36] Guy Loranger, Court’s Open Seats Raise Concern in NC, North Carolina Lawyers Weekly, Aug. 4, 2008.

[37] Federal Election Commission, Personal Use, https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/ (last visited July 29, 2018) (“The campaign may not pay for mortgage, rent or utilities for the personal residence of the candidate or the candidate’s family even if part of the residence is being used by the campaign”).

[38] See Zagaroli, supra n. 34.

Judge Mary Kay Vyskocil – Nominee for the U.S. District Court for the Southern District of New York

Compared to federal magistrate judges, it is more uncommon for federal bankruptcy judges to elevated to an Article III appointment.  The Trump Administration, however, has already nominated two bankruptcy judges for elevation, including Judge Mary Kay Vyskocil, nominated for one of the prestigious courts in the country.

Background

A native New Yorker, Vyskocil was born in the city in 1958.  She received her B.A. summa cum laude from Dominican College of Blauvelt and then her J.D. from St. John’s University of Law.[1]

After graduation, Vyskocil joined Simpson Thacher & Bartlett LLP as an Associate.[2]  In 1990, she became a Partner at the firm.[3]  She stayed with the firm until 2016 when she was selected as a U.S. Bankruptcy Judge.[4]  Vyskocil currently serves in that capacity.

In 2014, when Judge Robert Smith on the New York Court of Appeals was set to retire, Vyskocil applied for the vacancy and was selected as one of seven finalists.[5]  Gov. Andrew Cuomo ultimately did not select Vyskocil, appointing Judge Eugene Fahey instead.  Vyskocil applied and was selected as a finalist again in 2017 when Judge Sheila Abdus-Salaam passed away, but Judge Paul Feinman was selected for the vacancy instead.[6]

History of the Seat

Vyskocil has been nominated for a seat on the U.S. District Court for the Southern District of New York.  This seat opened on March 1, 2017, when Judge Loretta Preska moved to senior status.

In April 2017, Vyskocil was contacted by the White House to gauge her interest in a federal judgeship.[7]  After interviewing with the White House, Vyskocil’s name was broached to New York Senators Chuck Schumer and Kirsten Gillibrand.[8]  Vyskocil was officially nominated on May 15, 2018.

Legal Career

Before she ascended to the federal bench, Vyskocil spent 33 years at Simpson Thacher & Bartlett LLP in New York City.  At the firm, Vyskocil primarily handled a civil litigation docket, focusing on commercial tort and contract cases.[9]  Over the course of her time at the firm, Vyskocil has tried fifteen cases and has participated in briefing two cases at the U.S. Supreme Court.[10]

Among her trials, Vyskocil represented Swiss Re Group and affiliated insurance companies in a declaratory judgment action related to insurance payouts for the destruction of the World Trade Center on 9/11.[11]  In the case, which required a three month long trial, Vyskocil secured a ruling that the insurance policies created liability for $3.5 Billion as the attacks constituted one “occurence” (the lessees requested $7 Billion in payouts).[12]

Jurisprudence

Vyskocil has served as a U.S. Bankruptcy judge in New York since her appointment in 2016.  As a Bankruptcy Judge, Vyskocil supervises bankruptcy matters, and has handled over 1000 cases since her appointment.[13]  Among the cases she has handled, Vyskocil presided over the bankruptcies of an organization providing educational opportunities to students in China,[14] construction companies involved in the World Trade Center rebuilding,[15] and a retailer of organic juice cleanses.[16]

Impressively, none of the decisions Vyskocil has made in her two years on the bench has been reversed by a higher court.[17]

Political Activity

Vyskocil, a former member of the Federalist Society for Law and Public Policy Studies, has donated exclusively to Republican candidates, including former Sen. Al D’Amato, former Pres. George W. Bush, former Rep. Rick Lazio, and Sen. John McCain.[18]

Writings

Throughout her career, Vyskocil has been extremely prolific as both an author and a speaker.  In conjunction with her former law partner Barry Ostrager, Vyskocil has authored a number of handbooks on insurance and commercial law including Occurrence Policy Coverage for Tort Claims, Crisis Management – Commercial Litigation in New York State Courts, and Modern Reinsurance Law & Practice.[19]

Vyskocil has also authored a number of articles discussing developments in the law.  In one article, Vyskocil, along with the other members of the Committee on Federal Courts for the New York City Bar, recommended that rules of privilege should not be codified for use in federal court, arguing that the common law approach to privilege permits more flexibility and adaptability.[20]

Overall Assessment

Looking at her overall record, it  is hard to dispute Vyskocil’s qualifications for the federal bench.  With 33 years of federal practice, a solid and uncontroversial tenure on the bench, and a strong academic writing background, Vyskocil will likely be seen as a consensus nominee.  The fact that she has Schumer and Gillibrand in her corner won’t hurt either.

Given these factors, Vyskocil should sail to confirmation, much like the others in the New York package of nominees.


[1] Sen. Comm. on the Judiciary, 115th Cong., Mary Kay Vyskocil: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id.

[4] Id.

[5] Denise M. Champagne, COA Nominees Forwarded to Governor, The Daily Record of Rochester, Dec. 2, 2014.

[6] Christine Stuart, Seven Make Short List for Open Seat on NY’s High Court, Courthouse News Service, June 2, 2017, https://www.courthousenews.com/seven-make-short-list-open-seat-nys-highest-court/.  

[7] Vyskocil, supra n. 1 at 35.

[8] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[9] See Vyskocil, supra n. 1 at 71.

[10] See id.

[11] See S.R. Int’l Bus. Ins. Co. v. World Trade Center Props. LLC, 467 F.3d 107 (2d Cir. 2006).

[12] See id.

[13] See Vyskocil, supra n. 1 at 46.

[14] See In re ChinaCast Educ. Corp., No. 16-13121 (Bankr. S.D.N.Y. filed Nov. 9, 2016).

[15] See In re Collavino Constr. Co., Case Nos. 14-12908 & 15-10344 (Banr. S.D.N.Y. filed Oct. 17, 2014) (Jointly Administered).

[16] See In re Organic Ave. LLC, Case No. 15-12787 (Bankr. S.D.N.Y. filed Oct. 15, 2015).

[17] See Vyskocil, supra n. 1 at 67-68.

[19] See Vyskocil, supra n. 1 at 11-13.

[20] The Committee on Federal Courts, Revisiting the Codification of Privileges Under the Federal Rules of Evidence, 55 The Record 148, Jan/Feb 2000.