Prof. Richard Myers – Nominee to the U.S. District Court for the Eastern District of North Carolina

The U.S. District Court for the Eastern District of North Carolina is home to one of the longest vacancies in the country, having opened in December of 2005.  Since then, conflicts between senators and the White House have kept this seat vacant through four presidential terms.  Now, Richard Myers, a professor with the University of North Carolina, is the fifth nominee to fill this vacancy.

Background

Richard Earnest Myers was born in Kingston, Jamaica, and grew up in Wilmington, NC.[1]  Myers attended the University of North Carolina at Wilmington and then became a reporter with the Star-News in Wilmington.  In 1995, Myers joined the University of North Carolina School of Law, graduating with high honors in 1998.  

After graduating, Myers clerked for Judge David Sentelle (a North Carolina native) with the U.S. Court of Appeals for the D.C. Circuit and then became an Associate with O’Melveny & Myers in Los Angeles.  In 2002, Myers became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California and later with the U.S. Attorney’s Office for the Eastern District of North Carolina.

In 2004, Myers joined the faculty of the University of North Carolina Law School, where he is currently a professor.

History of the Seat

Myers has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  In 2006, President George W. Bush nominated Thomas Farr, but, Farr’s nomination stalled after Democrats took control of the Senate after the 2006 elections.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[2]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[3]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[4]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[5]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[6]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[7]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[8] this time with the support of Burr and Senator Thom Tillis (R-NC).[9]  However, Farr’s nomination stalled on the Senate floor and was withdrawn due to lack of majority support when Republican Senators Tim Scott and Jeff Flake expressed their opposition based on Farr’s work with Sen. Jesse Helms at the time when the Senator worked to suppress African American votes in North Carolina.[10]  After Republicans picked up two seats in the 2018 Senate elections and Flake left the chamber, conservatives pushed to renominate Farr.[11]  However, Scott maintained his opposition and the White House decided not to move forward, instead choosing Myers.

Legal Experience

Before becoming a law professor, Myers has primarily worked in two legal positions: the first is as an Associate with O’Melveny & Myers; the second is as a federal prosecutor in two districts, the Central District of California and the Eastern District of North Carolina.  At O’Melveny, Myers worked in the White Collar Criminal Law and Environmental and Regulatory Compliance Practice Group.  At the firm, Myers most notably represented Wen Ho Lee, the Los Alamos scientist charged with stealing government secrets.[12]

Writings

As an academic, Myers has written extensively on the law, particularly focusing on criminal law and procedure, which is his area of expertise.

Prosecutorial Power

Myers has been particularly vocal on the growing power of prosecutors in the criminal justice system, speaking on the subject frequently in media.[13]  Myers has noted that this concentration of power can mean that the criminal justice system can be “held hostage” by rogue prosecutors.[14]  Myers’ work on this regard has been cited by African American journalist and author Ta-Nehisi Coates.[15] 

On a similar note, Myers has also criticized the American criminal justice system for making it difficult to “expand liberty” by repealing unjust or outdated criminal laws and penalties.[16]  Instead, Myers suggests that a constitutional amendment be passed that sunsets all criminal laws to expire after a period of twenty-five years unless renewed.[17]  Myers suggests that the proposed amendment would better reflect changes in society and would create a “pro-liberty bias” within criminal law.[18]

Fourth Amendment and the Exclusionary Rule

Myers has also written extensively on the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable searches and seizures.  In particular, Myers is a critic of the “exclusionary rule,” which requires that any evidence obtained through an illegal search be excluded from a criminal prosecution.  In one paper, Myers writes that the exclusionary rule only comes into play when evidence is found through the illegal searches, thus, ensuring that judges see only “guilty people trying to enforce their rights.”[19] 

Instead, Myers advocates for a separate court that oversees the executive branch’s searches and hears from victims of illegal searches who are both innocent and guilty of the underlying offenses.[20]  Myers notes:

“We need a new range of remedies because, to an important segment of the populace, the exclusionary rule clearly benefits the guilty, while providing such an attenuated benefit to the innocent in the form of deterrence that it extracts a high price from the system in terms of perceived legitimacy.”[21]

Political Activity

Myers is a Republican, and a member of the Federalist Society and the National Rifle Association.  However, his only political contribution of record was a $250 contribution in 2016 to Rep. George Holding.[22] 

Overall Assessment

Given how long this seat has sat vacant, and the number of nominees who have fallen by the wayside in the attempt to fill it, one can start to wonder if this seat is cursed.  However, if there is a nominee primed to end this “curse,” it is Myers.  Not only does Myers, as a African American attorney, not attract the same degree of opposition that Farr did, but his record should win him bipartisan approval.  In fact, Myers’ criminal justice jurisprudence largely accords with that of many liberals in its criticism of prosecutorial power and overcriminalization.

This is not to say that Myers will be a liberal on the bench.  He will likely be a conservative voice.  However, his criminal justice jurisprudence may well end up surprising many who thought they could pigeonhole the nominee, and despite being a former prosecutor, defense attorneys may well have a friend in Myers.


[1] AP, Trump Nominates Law Professor for Judicial Vacancy, Associated Press, Aug. 15, 2019, https://www.apnews.com/858d3a46c016451cad351b24eb1cc292.  

[2] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[3] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[4] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[5] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[6] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[7] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[8] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Press Release, Burr and Tillis Welcome Nomination of Thomas Myers as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[10] Marianne Levine and Burgess Everett, Tim Scott Sinks Trump Judicial Nominee, Politico, Nov. 29, 2018, https://www.politico.com/story/2018/11/29/senate-confirms-farr-judicial-nominee-1027236.  

[11] Emma Dumain, SC’s Tim Scott Still Opposes Thomas Farr, Has Sharp Words for Conservative Critics, McClatchy DC, Jan. 30, 2019, https://www.mcclatchydc.com/news/politics-government/congress/article225279815.html.  

[12] James Sterngold, Lee’s Dream Team High on Case, Low on Compensation; The Lawyers, Largely Unpaid, Say They’ve Become Fond of Los Alamos Scientist, Contra Costa Times, Sept. 11, 2000.

[13] See, e.g., Richard A. Oppel, Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. Times, Sept. 26, 2011.

[14] See id. (quoting Richard E. Myers).

[15] See Ta-Nehisi Coates, The Collapse of American Criminal Justice, Atlantic Online, Sept. 26, 2011.

[16] Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. Rev. 1327 (Nov. 2008).

[17] See id. at 1361-62.

[18] Id. at 1380.

[19] Richard E. Myers II, “The Exclusionary Rule: Is it On Its Way Out? Should It Be?”, 10 Ohio St. J. Crim. L. 571, 577 (Spring 2013).

[20] Id. at 578.

[21] Id. at 585.

[22] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=richard+myers&cycle=&state=NC&zip=&employ=&cand= (last visited Sept. 27, 2017).  

Daniel Traynor – Nominee to the U.S. District Court for the District of North Dakota

Dan Traynor, a longtime North Dakota Republican, had set his sight on a judicial appointment in the Trump Administration, and, after having been passed over previously, has now been picked for the District Court in North Dakota.

Background

Daniel Mack Traynor was born in Devils Lake, North Dakota in 1970, the son of longtime state senator John T Traynor.  Traynor graduated from the University of North Dakota in 1994 and then attended the University of North Dakota Law School, graduating with distinction in 1997.[1]

After graduating, Traynor clerked for Chief Justice Gerald VandeWalle on the North Dakota Supreme Court and then started a solo practice, which he still maintains.  Traynor has also worked as the City Attorney of Devil’s Lake since 1998.

History of the Seat

While Traynor has been tapped for a seat expected to open with the retirement of Judge Daniel Hovland on November 10, 2019, his name was previously under consideration for the U.S. Court of Appeals for the Eighth Circuit.[2]  However, Traynor was not nominated for that seat, which went to U.S. District Judge Ralph Erickson.  Traynor was also passed over for the seat that Erickson vacated, but has now been tapped for Hovland’s seat.

Legal Experience

Traynor has primarily worked for himself in his hometown of Devil’s Lake, working on personal injury cases on both the plaintiff’s and defendant’s side.  Over the course of his career, Traynor has tried fifteen cases before a jury.  Among those, Traynor represented the defendant in a trial for “timber trespass” for the defendant’s cutting down of trees on the plaintiff’s property.[3] 

Among his other notable cases, Traynor defended the Norman Lutheran Church in Kindred, ND against  a suit brought by disgruntled parishioners who opposed the Church’s use of homosexual clergy.[4]  He also prosecuted, after an appointment from Gov. Doug Burgam, Ward County Sheriff Steven Kukowski after the death of an inmate in his jail facility.[5] 

Political Activity

Traynor is a Republican and has a long history with the North Dakota branch of the party, including having served as the Chairman from 2001 to 2003.[6]  Interestingly, as a Party delegate in the 1990s, Traynor pushed back against resolutions against same-sex marriage and supporting “parental rights.”[7]  Traynor has also served as Chair of the North Dakota chapter of the Republican National Lawyers Association since 2000, as well as being active within the American Bar Association (ABA).

Overall Assessment

The District of North Dakota is one of only three districts in the country that have just two active judgeships attached.  It’s already seen a fair amount of turnover with Ericksen’s elevation and replacement with Peter Welte.  With a largely mainstream record, Traynor looks favored to join the bench without too much controversy.


[1] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Daniel Mack Traynor 1.

[2] See David Lat, More Judicial Nominations From the Trump Administration, Above the Law, May 8, 2017, https://abovethelaw.com/2017/05/more-judicial-nominations-from-the-trump-administration/.  

[3] Haider v. Moen, Ward County Civil No. 51-2014-CV-00890.

[4] Grabanski v. Evangelical Lutheran Church in America, et al., Cass County Civil No. 09-2016-CV-00022.

[5] Jill Schramm, Kukowski’s Criminal and Civil Cases May Be Settled, The Bismarck Tribune, Apr. 12, 2017.

[6] See Traynor, supra n. 1 at 28.

[7] Compare John MacDonald, It’s No to Tax Hikes, Bismarck Tribune, Mar. 29, 1996, with Frederic Smith, GOP Panel OKs ‘Parental Rights,’ Bismarck Tribune, Mar. 30, 1996.

Judge Danielle Hunsaker – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Last July, Ryan Bounds became a first appellate nominee to be rejected due to lack of majority support since the enactment of the nuclear option in 2013.  Bounds faced particular opposition due to the lack of support from his home-state senators.  With the senators in support of the newest candidate to that seat, Judge Danielle Hunsaker will likely be confirmed comfortably.

Background

Hunsaker was born Danielle Jo Forrest in 1977 in Roseburg, OR.  Hunsaker received her B.A. from the University of Idaho in 2001 and a J.D. from the University of Idaho Law School summa cum laude in 2004.[1]  After graduating from law school, Hunsaker clerked for Judge Paul Kelly on the U.S. Court of Appeals for the Tenth Circuit, Judge Michael Mosman on the U.S. District Court for the District of Oregon, and for Judge Diarmund O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit.[2] 

After her clerkships, Hunsaker joined Stoel Rives LLP in Portand as a Litigation Associate, and moved after a year to Larkins Vacura Keyser LLP, where she became a Partner in 2014.[3]  In 2017, Hunsaker was nominated by Gov. Kate Brown to the Washington County Circuit Court, where she currently serves.

History of the Seat

Hunsaker has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on December 31, 2016 with O’Scannlain’s move to senior status.  In 2017, Oregon attorney Ryan Bounds was recommended for the judge vacancy by U.S. Rep. Greg Walden (R – Or.), whose chief of staff is Bounds’ sister.  Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley offered Oregon District Judge Marco A. Hernandez as a potential nominee to the White House.  However, the White House nominated Bounds on September 7, 2017.

In response, both Wyden and Merkley declined to return blue slips on Bounds, noting, in a letter to White House Counsel Don McGahn, that Bounds had not been approved by the state’s bipartisan judicial selection committee as of his nomination date, and that they had not been adequately consulted.  McGahn disputed the lack of consultation and instead criticized the senators for not engaging with or vetting Bounds for several months after his name was first proposed.  Nonetheless, the Senate Judiciary Committee processed Bounds’ nomination.  However, the nomination failed on the Senate floor when Sen. Tim Scott announced his opposition based on writings from Bounds’ past that contained racially fraught statements.[4]

For her part, Hunsaker had applied for the vacancy with Democratic Sen. Ron Wyden.[5]  She interviewed with the White House in January 2018 (while Bounds was already the nominee) and again in July 2018 (after the defeat of Bounds’ nomination).  In June 2019, Hunsaker reapplied with Wyden and was selected as one of four finalists by Oregon’s Democratic Senators.[6]  Hunsaker’s nomination was subsequently announced by the White House.

Legal Experience

Before joining the bench, Hunsaker worked primarily as a commercial civil litigator.  Hunsaker notably represented the rideshare company Lyft in a suit to keep information on riders and drivers collected by Seattle regulators secret from access to media companies.[7]  She also represented investors in derivative actions and similar suits.  Furthermore, Hunsaker represented a prisoner injured in an excessive force claim against the guards who injured him.[8]

Jurisprudence

Hunsaker has spent the last two years serving as a circuit judge in Oregon, where she presides over criminal and civil cases on the trial level.  In this role, Hunsaker has presided over approximately 23 jury trials.  Among her more prominent cases, Hunsaker acquitted parents of a baby testing positive for methamphetamine of child abuse, ruling that the state had failed to prove the “knowing” element of child abuse.[9]

Writings

As a law student, Hunsaker authored a note discussing the Supreme Court’s decision in Ring v. Arizona and the subsequent Idaho remedial death penalty statute passed.[10]  Ring ruled that, where the death penalty is imposed, any additional aggravating factores leading to exposure to the death penalty must be determined by the jury and not by a judge.[11]  Hunsaker notes that this decision invalidated the death penalty scheme in Idaho, leading to a revised scheme wherein the jury convenes for a sentencing hearing after a determination of guilt in capital cases.[12]  Overall, Hunsaker commends the legislature for adapting the death penalty scheme post-Ring but adds that further tweaks may be necessary to ensure a role for the jury in capital sentencing.[13]

Overall Assessment

Hunsaker was not the Administration’s first choice for the Ninth Circuit, but she is nonetheless likely to get a comfortable confirmation.  Hunsaker’s Federalist Society credentials are likely to endear her to Republicans while her appointment by a Democratic Governor will ensure support from Democrats.


[1] Sen. Comm. on the Judiciary, 116th Cong., Danielle Hunsaker: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Nina Totenberg and Jessica Taylor, Appeals Court Nomination Withdrawn Before An Expected Failure on Senate Floor, Nat’l Pub. Radio, Jul. 19, 2018, https://www.npr.org/2018/07/19/630552662/appeals-court-nomination-withdrawn-before-it-was-expected-to-fail-on-senate-floo.  

[5] See Hunsaker, supra n. 1 at 45.

[6] The other three finalists included two Oregon Court of Appeals judges, Judge James Egan, and Judge Erin Lagesen, and appellate attorney Bruce Campbell.

[7] See Lyft v. King Broadcasting Co., No. 16-2-26971-1 (Wash. Circ. Ct., King Cnty.).

[8] See Tilahun v. Oregon Dep’t of Corr., No. 2:13-cv-01074 (D. Or.).

[9] State v. Richelle Seamster, No. 18CR35682 (Or. Cir. Ct. Wash. Cnty.); State v. Andre Wamulumba, No. 18CR40953 (Or. Cir. Ct. Wash. Cnty.).

[10] Danielle J. Hunsaker, The Right to a Jury “Has Never Been Efficient; But It Has Always Been Free”: Idaho Capital Juries After Ring v. Arizona, 39 Idaho L. Rev. 649 (2003).

[11] Id. at 661-62.

[12] Id. at 669-70.

[13] Id. at 688.

Jodi Dishman – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Jodi Dishman, an Oklahoma City based attorney, is Trump’s fourth pick for the Western District of Oklahoma, and will be the first woman appointed to the court after twenty five years.

Background

Dishman was born Jodi Marie Warmbrod in Memphis, TN in 1979.  Dishman attended Southern Methodist University, where she served as Student Body President.[1]  Dishman then attended the University of Oklahoma College of Law, where she graduated summa cum laude.[2]  After graduation, Dishman clerked on the U.S. Court of Appeals for the Fifth Circuit for Judges Carolyn Dineen King and Edward Prado.

After her clerkships, Dishman joined the San Antonio office of Akin Gump Strauss Hauer & Feld LLP as an Associate.  She become Counsel in 2010.  In 2012, she moved to Oklahoma City to join McAfee & Taft, where she became a Shareholder in 2014.  It is a position she currently holds.

History of the Seat

Dishman has been nominated to the U.S. District Court for the Western District of Oklahoma.  Judge Vicki Miles-LeGrange, who was the first African American appointed to this court when she joined in 1994, vacated this seat on November 5, 2018.  Dishman had previously interviewed with Oklahoma Senators in January 2017 to fill one of three other vacancies on the Western District, but was not selected.[3]  After Judges Miles-LeGrange moved to senior status, Dishman again expressed her interest.[4]  After another interview with an advisory committee set up by the senators, Dishman was selected as the nominee.

Legal Experience

Whether at Akin Gump or at McAfee & Taft, Dishman’s career has focused on commercial litigation.  Dishman has tried three cases as chief counsel and one as associate counsel in her career.[5]  The most prominent of these involved a lawsuit against an insurance company (her client) alleging that they breached their agreement in failing to make needed claim payments.[6]  Dishman also represented the company on appeal after a split verdict from the jury.

In another notable case, Dishman represented the Oklahoma City Landfill, LLC in a class action case by property owners who alleged that the landfill interfered with their properties.[7]  The case eventually settled.  

Overall Assessment

While most of Trump’s Oklahoma nominees have been fairly controversial, it’s unlikely that Dishman will be one of them.  While she is very young, Dishman has cut their teeth on some fairly complex cases, and, at forty, Dishman is the same age as the judge she will be replacing, Judge Miles-LeGrange, was at the time of her nomination.


[1] NBC News Broadcast, Attack on America, 12:00 Midnight, NBC, Sept. 15, 2001.

[2] Sen. Comm. on the Judiciary, 116th Cong., Questionnaire for Judicial Nominees: Jodi Dishman 1.

[3] Those seats were all filled with male candidates, Scott Palk, Charles Goodwin, and Patrick Wyrick.

[4] See id. at 32-33.

[5] See id. at 17.

[6] See Lavoy v. USAA General Indemnity Co., Case No. CJ-2014-131, District Ct., Jackson Cnty., Okla.

[7] See McCarty et al. v. Oklahoma City Landfill, LLC, et al., Case No. 5:12-cv-01152-C, W.D. Okla.

William Nardini – Nominee to the U.S. Court of Appeals for the Second Circuit

While New York senators have frequently clashed with the White House over judicial appointments in the state, their neighbors in Connecticut have quietly formed a working relationship that has produced three relatively uncontroversial nominations, including that of William Nardini to the Second Circuit.

Background

William Joseph Nardini was born in Glen Ridge, NJ in 1969.  Nardini received his B.A. summa cum laude from Georgetown University in 1990 and his J.D. from Yale Law School in 1994.[1]  After graduating, Nardini clerked for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit and then for Judge Guido Calabresi on the same court.  Nardini then clerked for Judge Sandra Day O’Connor on the U.S. Supreme Court

In 2000, Nardini joined the U.S. Attorney’s Office for the District of Connecticut.[2]  He currently serves as Criminal Chief of the Office.

History of the Seat

Nardini has been nominated for a Connecticut seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Christopher Droney, who moved to senior status on June 30, 2019.  

In April 2019, Nardini was contacted by the White House to gauge his interest in the Second Circuit.[3]  In May 2019, Nardini applied to a selection committee set up by Connecticut Senators Richard Blumenthal and Christopher Murphy (both Democrats).[4]  On July 31, 2019, Nardini interviewed with the White House and with Blumenthal and Murphy, who both decided to back his nomination.  Nardini was nominated in September 2019.

Legal Career

Nardini has primarily worked as a federal prosecutor in Connecticut.  However, Nardini also spent four years on detail with the U.S. Embassy in Rome, where he represented the United States in extradition and mutual legal assistance in Italian criminal matters.[5]  Over the course of his career, Nardini has handled ten jury trials and around 350 appeals before the Second Circuit.

Nardini primarily prosecuted public corruption, organized crime, and racketeering cases.  For example, Nardini prosecuted FBI Agent John Connolly for his corrupt relationships with mobster Whitey Bulger.[6]  Nardini also prosecuted former Connecticut NAACP head Ben Andrews for a corrupt relationship with State Treasurer Paul Silvester.[7]

Nardini also handled terrorism cases, including the prosecution of U.S. Navy sailor Hassan Abu-Jihaad for disclosing national security information to organizations engaging in material support for terrorists.[8]

Political Activity

Nardini has a fairly apolitical background, with his only political experience being support for NJ Assemblyman Joseph A. Mecca, a Democrat, in 1991.[9]

Writings

In 2006, Nardini authored an article discussing the tools that prosecutors can use in prosecuting and undermining organized crime.[10]  In the article, Nardini outlines the various tools prosecutors can use, from subpoenas and warrants to offers of transactional immunity that can encourage witnesses to turn against their superiors in a criminal enterprise.[11]  Nardini suggests that prosecutors can use the tools at their disposal “in concert” with each other to ensure maximum effectiveness to target organized crime.[12]

Overall Assessment

Unlike the last few nominations to the Second Circuit, who have all drawn controversy, Nardini will likely be confirmed relatively easily.  His nonpartisan background and focus on prosecuting organized crime and terrorists make him salable to senators of both parties, and the support of Blumenthal and Murphy won’t hurt.  As such, Nardini’s nomination and likely confirmation is a testament to how smoothly the process can be when all parties work together in good faith.


[1] Sen. Comm. on the Judiciary, 116th Cong., William Nardini: Questionnaire for Judicial Nominees 1.

[2] Judge Andy Oldham on the U.S. Court of Appeals for the Fifth Circuit was a co-clerk of Nardini’s.

[3] See id. at 31.

[4] See id.

[5] Id. at 19.

[6] United States v. Connolly, Criminal No. 99-CR-10428-JLT (D. Mass.).

[7] Larry Neumeister, Lawyer Argues for New Trial for former Connecticut NAACP Head, Associated Press, Sept. 20, 2006.

[8] See United States v. Abu-Jihaad, Criminal No. 3:07-CR-57 (MRK) (D. Conn.).

[9] See Nardini, supra n. 1 at 17.

[10] William J. Nardini, The Prosecutor’s Toolbox, J. Int. Criminal Justice (2006) 4 (3): 528 (July 1, 2006).

[11] See id.

[12] Id. at 536.

Judge Raag Singhal – Nominee to the U.S. District Court for the Southern District of Florida

Florida state court judge Raag Singhal is nothing if not persistent, having applied to be a judge 15 times before he was selected.  Singhal is now up for a federal judgeship after narrowly missing an appointment to the Florida Supreme Court.

Background

Anuraag Hari “Raag” Singhal was born in Philadelphia in 1963, the son of Indian parents who had moved to the U.S. in 1960.[1]  Singhal attended Rice University and Wake Forest University Law School.[2]

After graduation, Singhal spent a year with Fleming, O’Brien & Fleming as an Associate and then became a prosecutor in Ft. Lauderdale.[3]  In 1993, Singhal became a Partner in a criminal defense practice in Ft. Lauderdale, which he maintained until 2011.[4] 

In 2011, Singhal, who had previously applied fifteen times to be a judge, was finally appointed to be a Circuit Court Judge in Broward County by Republican Governor Rick Scott.  His appointment made him the first Asian-American judge in the county and only the third in Florida.[5]  Singhal continues to serve on that court.

In 2019, Singhal was considered by Gov. Ron DeSantis for appointment to the Florida Supreme Court, but DeSantis chose three other candidates instead.[6]

History of the Seat

Singhal has been nominated for a seat on the U.S. District Court for the Southern District of Florida.  This seat opened on August 5, 2016, when Judge James Cohn moved to senior status.  In October 2017, Singhal applied and interviewed with the Judicial Nominating Commission (JNC) formed by Florida Senators Marco Rubio and Bill Nelson.  The JNC chose Singhal as one of ten finalists to be passed onto the Senators.[7]  After interviews with Rubio and Nelson, Singhal was contacted by the Trump Administration in February 2018.[8]  After interviewing with the White House Counsel’s Office and the Department of Justice, Singhal was not contacted for a year before vetting resumed in April 2019.  Singhal was ultimately nominated in August 2019.  

Legal Career

For most of his pre-bench legal career, Singhal has worked as a criminal defense attorney, handling both white collar and violent crime cases.  Over the course of his career, Singhal tried over 200 jury trials, including 33 First Degree Murder cases.[9]  Singhal also accepted court appointments to represent difficult or problematic clients.

Among his most prominent appointments, Singhal was appointed to represent serial killer Aileen Wuornos, who was awaiting execution.[10]  While representing her, Singhal came to believe that Wuornos was not competent to be executed and communicated as such to the Florida Supreme Court.[11]  In response, then-Gov. Jeb Bush stayed Wuornos’ execution, pending review from psychiatrists.[12]  However, the examiners found Wuornos to be competent and she was subsequently executed.[13]  Even after the execution, which Wuornos had wanted, Singhal maintained his belief that she was insane.[14]

Jurisprudence

Singhal served as a Circuit Judge in Broward County since 2011.  As a Circuit Judge, Singhal handles major felonies and any civil cases with more than $15000 in controversy.  Over his eight year tenure on state court, Singhal has heard approximately 8000 cases, including over 450 trials.  Interestingly, Singhal was on the bench when an inmate slipped through his restraints and escaped in the middle of open court.[15]  The inmate later apologized to Singhal, who stayed on the case despite being named as a defense witness, arguing that he was escaping to obtain evidence of his innocence.[16] 

Most recently, Singhal presided over suits related to Brenda Snipes, the head of the Broward County Election Board, who has been criticized by Republicans for her poor management of elections.[17]  In August 2018, Singhal issued an injunction ordering Snipes not to open vote-by-mail ballots before they could be reviewed by the Canvassing Board.[18]  Singhal also presided over a suit brought by law professor Tim Canova, who alleged that ballots had been improperly destroyed by Snipes in his race against Rep. Debbie Wasserman-Schultz.[19]  Singhal ruled that Snipes acted contrary to state and federal law in destroying ballots in the race.[20]

Political Activity

Other than his own campaigns for judicial office, Singhal has volunteered with the Broward County Republican Party as an attorney.[21]  Singhal resigned his post with the Republican Party in 2010 to support the Independent Senate candidacy of Gov. Charlie Crist (Crist is now a Democrat serving in Congress).[22] 

Singhal has also been a member of the South Florida Chapter of the Federalist Society since 2011.[23]

Speeches, Writings, and Public Statements

As a criminal defense attorney, Singhal frequently spoke out in support of more compassionate sentencing and a reduction in over-incarceration.  For example, Singhal has generally pushed for treatment of drug addicts rather than incarceration.[24]  He has also argued for the reduction in federal disparities on crack cocaine sentencing, noting that the disparity unfairly targets African Americans for incarceration.[25]

Singhal has also been a strong advocate of more compassionate treatment of offenders convicted of white collar crimes, noting in one interview:

“Typically, the white collar criminal is more able to do good things than other people charged with violent offenses, and that’s just the way it is.”[26]

In the same interview, he pushed back against suggestions that white collar criminals are given special treatment, arguing that the disparity in sentencing for non-violent drug offenders and white collar criminals speaks in favor of leniency for both rather than stricter sentences.[27]

Overall Assessment

While Singhal has a long history with the Federalist Society and the Republican Party, he is unlikely be considered a controversial nominee.  This is primarily for two reasons.  First, as a criminal defense attorney, Singhal has a long record of advocating for the rights of defendants, which is likely to appeal to Democrats such as Sen. Cory Booker, who are passionate about overincarceration and implicit bias in criminal justice.  Second, Singhal’s record as a judge is fairly uncontroversial and does not demonstrate a bias towards any party.  As such, Singhal is likely to get a fairly comfortable confirmation and will present a moderate conservative voice on the Southern District of Florida.


[1] Paula McMahon, Broward’s First Asian-American Judge Formally Sworn In, South Florida Sun Sentinel, Jan. 20, 2012, https://www.sun-sentinel.com/news/fl-xpm-2012-01-20-fl-first-asian-american-judge-broward-20120120-story.html.  

[2] Sen. Comm. on the Judiciary, 116th Cong., Anuraag Singhal: Questionnaire for Judicial Nominees 1.

[3] Id. at 2.

[4] Id.

[5] See McMahon, supra n. 1.

[6] John Breslin, DeSantis Set to Announce Appointment of Second Supreme Court Justice, Florida Record, Jan. 14, 2019, https://flarecord.com/stories/511720805-desantis-set-to-announce-appointment-of-second-supreme-court-justice.  

[7] David Markus, Breaking — JNC Makes the Cut to 10 Finalists for District Judge, Southern District of Florida Blog, Nov. 29, 2017, http://sdfla.blogspot.com/2017/11/breaking-jnc-makes-cut-to-10-finalists.html.

[8] See Singhal, supra n. 1 at 64.

[9] Id. at 55.

[10] See Jackie Hallifax, Lawyer Tells High Court of ‘Grave Doubts’ About Wuornos, A.P., Sept. 24, 2002.

[11] Id. 

[12] Jackie Hallifax, Gov. Bush Issues Stays of Two Executions; Inmates’ Mental Competence to Waive Appeals at Issue, A.P., Sept. 30, 2002.

[13] Ron Word, Female Serial Killer Executed For Murders of Six Men, A.P., Oct. 9, 2002.

[14] Rich McKay, ‘I’ll Be Back,’ Serial Killer Declares Before Her Execution; Grin, Final Words Puzzle Witnesses, Orlando Sentinel, Oct. 10, 2002.

[15] See Elahe Izadi, ‘Worst Fears Were Realized’: Manhunt Underway for Murder Suspect Who Escaped Courthouse; Dayonte Resiles, 21, Escaped the Broward County Courthouse on Friday Morning, Leaving His Shackles and Jumpsuit Behind, Wash. Post, July 15, 2016.

[16] Ariel Zilber, ‘I Hope You Don’t Take It Personal’: Florida Man on Trial for Murder Pens Apology Letter to Judge After Escaping His Courtroom ‘To Gather Evidence That Would Prove My Innocence’, Daily Mail, Sept. 11, 2016.

[17] See Alana Goodman, Republicans Protest Broward County Election Overseer Who Is a Registered Democrat With Years of Ballot Blunders – As Lawyer Who Commissioned ‘Golden Showers’ Dossier Pushes For Recount to Topple Florida GOP ‘Winners’, Daily Mail, Nov. 9, 2018.

[18] See id.

[19] Marc Caputo, Florida to Monitor Broward Election Chief After Judge Finds ‘Unlawful’ Ballot Destruction in Wasserman Schultz Race, Politico, May 14, 2018.

[20] See id.

[21] See Anna Scott, Political System is Broken, Crist Says, Sarasota Herald Tribune, Apr. 30, 2010.

[22] See id.

[23] See Singhal, supra n. 1 at 5.

[24] See, e.g., William Raspberry, A Contemptible System, Wash. Post, Oct. 21, 2002.

[25] See Genaro C. Armas, State Prison Populations Levelling Off, While Federal Facilities Have Largest Increases, A.P. Int’l, Apr. 11, 2002.

[26] Interview with Neal Conan, Penalties Against White-Collar Crime, Nat’l Pub. Radio Talk of the Nation, Jan. 8, 2003.

[27] See id.

Karen Marston – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

Karen Marston is the Administration’s fourth nominee (and first woman) tapped for the U.S. District Court for the Eastern District of Pennsylvania.    

Background

Karen Spencer Marston was born in Portsmouth, Virginia in 1968.  She received a B.A. from Davidson College, an M.A.T. from Salem College and a J.D. from Wake Forest University School of Law.[1]  Marston then joined the Charlotte firm Moore & Van Allen PLLC as an Associate.

In 2000, Marston became a federal prosecutor with the U.S. Attorney’s Office for the Western District of North Carolina.[2]  She moved to the U.S. Attorney’s Office for the Eastern District of Pennsylvania in 2006 and became Chief of the Narcotics & Organized Crime branch in 2018.[3]  She serves there today.

History of the Seat

Marston has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania.  This seat opened on September 28, 2017, when Judge Legrome Davis moved to senior status.  

In February 2019, Marston applied for and interviewed with the Judicial Nomination Advisory Panel for the Eastern District of Pennsylvania.  Marston then interviewed with Sen. Pat Toomey (R-Pa), Sen. Bob Casey (D-Pa), and the White House.  President Trump announced Marston’s nomination to the vacancy on August 14, 2019.

Legal Experience

Marston has spent most of her career as a federal prosecutor, primarily prosecuting drug and organized crime cases.  In the course of her career, Marston has tried thirty-five jury cases, a sizable number.[4]  Notably, Marston prosecuted the drug company Novartis for marketing its drug Trileptal for off-label uses, despite only being approved by the FDA for treatment of epilepsy.[5]  In 2016, Marston also prosecuted supporters of Sen. Bernie Sanders’ presidential bid for entering a secured area during the Democratic National Convention.[6]   

Political Activity

Marston has been a member of the Federalist Society since 2019.[7]  Other than that, her only political involvement has been as an intern with the National Republican Committee while in college.[8] 

Overall Assessment

For better or for worse, prosecutors generally tend to be uncontroversial nominees, salable as “tough on crime.”  With her record, Marston falls into this pattern and will likely be confirmed by a bipartisan majority.


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

[2] Id. at 2.

[3] Id. 

[4] See id. at 17.

[5] United States v. Novartis Pharmaceutical Corp., 2:10-CR-650 (E.D. Pa.).

[6] See Jeremy Roebuck, Feds Drop Case Against Four DNC Fence-Jumpers, Philadelphia Inquirer, Aug. 9, 2016.

[7] See Marston supra n. 1 at 7-8.

[8] See id. at 13-14.