Rachel Kovner – Nominee for the U.S. District Court for the Eastern District of New York

Despite being only 38 years old, Rachel Kovner is an extremely accomplished advocate.  A former Supreme Court clerk, Kovner currently represents the U.S. Government in the Solicitor General’s Office and has argued 11 cases before the U.S. Supreme Court.  This record along with the support of New York Senators Chuck Schumer & Kirsten Gillibrand makes Kovner a fairly noncontroversial nominee as well as a likely candidate for elevation to the Second Circuit and, potentially, the Supreme Court.

Background

Rachel Peter Kovner was born in New York on September 29, 1979.  Kovner attended Harvard University, graduating summa cum laude in 2001.[1]  While at Harvard, Kovner was an editor for the Harvard Crimson.[2]  After graduating, Kovner was hired by the New York Sun (her father Bruce Kovner was one of the paper’s investors) as a reporter.[3]

In 2003, Kovner joined Stanford Law School, graduating in 2006. She then clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Antonin Scalia on the U.S. Supreme Court.[4]

After her clerkships, Kovner was hired by incoming U.S. Attorney Preet Bharara to be a federal prosecutor in the Southern District of New York.[5]  After four years there, Kovner became Assistant to the Solicitor General in the U.S. Solicitor General’s Office.  Kovner currently practices there.

History of the Seat

Kovner has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on November 30, 2016, when Judge Carol Amon moved to senior status.  As the seat opened after the 2016 Presidential election, no nomination was made for the seat by President Obama.

Kovner received a call from the White House to gauge her interest in a federal judgeship in March 2017.[6]  After she confirmed her interest and interviewed with the White House, Kovner’s name was broached by the White House as part of a package of nominees.[7]  Kovner interviewed with Schumer in April 2018, and was approved.  Kovner was officially nominated on May 15, 2018.

Legal Experience

Kovner started her legal career by clerking for two of the most influential conservatives on the federal judiciary, Judge J. Harvie Wilkinson and Justice Antonin Scalia.  After those clerkships, Kovner joined the U.S. Attorney’s Office for the Southern District of New York, one of the most prestigious stations for a prosecutor.  At the office, Kovner started in the general crimes unit, and then moved to narcotics and finally the terrorism and international narcotics trafficking unit.[8]

At the U.S. Attorney’s Office, Kovner notably helped in prosecuting Khaled Al Fawwaz and Adel Abdel Bary for their role in the al Qaeda conspiracy to bomb the U.S. Embassies in Kenya and Tanzania.[9]  Kovner also helped try and secure a 63 month sentence for a tax preparer who assisted in preparing fraudulent tax returns.[10]

Since 2013, Kovner has worked as Assistant to the Solicitor General.  Having worked in the Solicitor General’s Office in both the Obama and Trump Administrations, Kovner has worked under four Solicitors General: Democrats Don Verrilli and Ian Gershengorn; and Republicans Jeff Wall and Noel Francisco.  Over her tenure, Kovner has argued the following eleven cases before the U.S. Supreme Court:

Prado Navarette v. California[11] – This was a Fourth Amendment challenge to the stop of a vehicle suspected of having an impaired driver.  The driver challenged the stop, which was based on an anonymous tip, as failing to meet the standard of reasonable suspicion of a crime as the officer had not witnessed any wrongdoing.  Kovner argued in support of California’s position that officers need not witness wrongdoing in order to meet the reasonable suspicion standard.  The Supreme Court ruled 5-4 that officers are not required to independently corroborate tips about illegal activity before pulling over a motorist.

Heien v. North Carolina[12] – In this case, a North Carolina sheriff pulled over a motorist for a broken tail light and found cocaine in the vehicle.  However, it was later discovered that a single broken tail light was not against the law in North Carolina, and that, as such, the sheriff made a mistake in pulling the car over.  The Supreme Court was asked to determine if the mistake of law justified excluding any evidence found during the stop.  Kovner argued as amicus in support of North Carolina’s position that the evidence should not be excluded.  The Supreme Court agreed in an 8-1 decision.

Mellouli v. Lynch[13] – This case asked if, under the Immigration and Nationality Act, the government could deport an alien convicted of a drug paraphernalia crime without proving a connection with items on the federal Controlled Substances Act?  Kovner argued for the government that they could deport Mellouli, an immigrant from Tunisia, who was convicted of possessing drug paraphernalia in Kansas for possessing four Adderall.  The Supreme Court disagreed in a 7-2 decision.

Sturgeon v. Frost[14] – John Sturgeon was traveling on a hovercraft in the Yukon-Charley River, an Alaska navigable river that runs through the Yukon-Charley River National Preserve, owned and managed by the National Park Service.  When Sturgeon was cited for using the hovercraft, he filed suit.  At the Supreme Court, Kovner defended the lower court decisions supporting the federal government’s authority over the river, but the Supreme Court unanimously reversed, holding that the Park Service could not enforce a hovercraft ban on state waterways.

Kansas v. Carr[15] – This case involving the constitutionality of death penalty convictions in Kansas had Kovner arguing only in an amicus capacity supporting the Kansas convictions.  The Supreme Court ultimately upheld the convictions by an 8-1 vote.

Pena-Rodriguez v. Colorado[16] – After Miguel Pena-Rodriguez was convicted of unlawful sexual conduct in Colorado, two jurors revealed racially biased statements made by a juror during deliberations.  However, the Colorado Supreme Court refused to grant Pena-Rodriguez a new trial, arguing that the secrecy of jury deliberations required excluding the jurors’ testimony.  As amicus at the Supreme Court, Kovner argued in support of Colorado’s position.  However, the Supreme Court struck down the conviction in a 5-3 vote.

McLane Company, Inc. v. EEOC[17] – This case involved whether a district court’s decision not to enforce an EEOC subpoena is reviewed de novo or with deference to the trial judge.  Kovner argued for the federal government that no deference should be given to trial court decisions not to enforce subpoenas, but the Supreme Court ruled otherwise in a 7-1 opinion (with only Justice Ginsburg dissenting).

Bristol-Myers Squibb Co. v. Super. Ct. of Cal.[18] – The State of California sought to establish jurisdiction over a class action of claims against Bristol-Myers, including claims from plaintiffs in Texas and New York whose claims were not related to California.  Kovner argued for the United States that California could not exercise jurisdiction over the unrelated claims.  The Supreme Court agreed in a 8-1 decision (Justice Sotomayor dissented).

Nat’l Ass’n of Mfrs. v. Dep’t of Defense[19] – This case involved the interpretation of the Clean Water Act, and whether it gave the federal courts of appeals the authority to directly review the EPA’s Waters of the United States Rule (which defined which waters were covered under the Act’s authority).  While Kovner argued, for the government, that the Rule should fall under a provision that triggers direct appellate review, a unanimous Supreme Court disagreed in an opinion by Justice Sotomayor.

Hughes v. United States[20] – In 2011, the U.S. Supreme Court held 4-1-4 in Freeman v. U.S. that district judges could modify sentences after the Sentencing Commission changes the Sentencing Guidelines even where the sentence was based on a plea bargain.  This case involved the application of the plurality opinion from Freeman to pleas under Fed. R. Crim. Pro. 11(c)(1)(c).  Kovner argued that, as the relevant rule requires the government to agree to a specific sentence, future Sentencing Guideline amendments could not be used to amend the sentence.  The Supreme Court disagreed 6-3 (with Justice Kennedy writing for the Court).

Wis. Cent. Ltd. v. United States[21] – In this case, senior employees of the Canadian National Railway Company argued that, under the Railroad Retirement Tax Act, their stock options should not be considered “taxable income.”  Kovner argued for the government that the stock options should be considered “taxable.”  Ultimately, the Court split 5-4, with Justice Gorsuch writing for the five most conservative Justices on the Court in siding with the employees.

Writings

Before entering law school, Kovner worked as a journalist at the New York Sun,and before that, interned and wrote for the Harvard Crimson, the Charlotte Observer, and the St. Louis Post-Dispatch.  In these roles, Kovner wrote hundreds of articles covering a variety of news stories.  Kovner has reported on issues including gun control,[22] Israel policy,[23] and workplace harassment,[24] among others.

Overall Assessment

At 38, Kovner is one of the youngest Trump nominees so far, and the youngest nominee put forward for the New York bench since Judge Alison Nathan in 2011.  However, unlike Nathan, who narrowly scraped through to confirmation in a party-line vote, Kovner is likely to be approved comfortably.  Setting aside her support from Schumer and Gillibrand, Kovner’s credentials are unquestionable.  Furthermore, Kovner does not have a partisan background and does not seem to be a member of the Federalist Society.  As such, it is likely that Kovner will, when her time comes, be approved with bipartisan support.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rachel P. Kovner: Questionnaire for Judicial Nominees 1.

[2] Sridhar Pappu and Gabriel Snyder, New York Sun Editors Discuss Their Game Plan, the Risk, and Their Four Employees, New York Observer, Jan. 21, 2002. 

[3] See id.

[4] See Kovner, supra n. 1 at 2.

[5] See id.

[6] See id. at 55.

[7] 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.  

[8] See Kovner, supra n. 1 at 34.

[9] United States v. Fawwaz, 98-cr-1023 (S.D.N.Y.) (LAK) No. 15-1731 (2d Cir. 2017).

[10] United States v. Jackson, No. 10-cr-298 (S.D.N.Y.) (CM), No. 11-4031 (2d Cir. 2012).

[11] 134 S. Ct. 1683 (2014).

[12] 

[13] 135 S. Ct. 1980 (2015).

[14] 136 S. Ct. 1061 (2016).

[15] 136 S. Ct. 633 (2016).

[16] 137 S. Ct. 855 (2017).

[17] 137 S. Ct. 1159 (2017).

[18] 136 S. Ct. 1773 (2017).

[19] 138 S. Ct. 617 (2018).

[20] No. 17-155 (June 4, 2018).

[21] No. 17-530 (June 21, 2018).

[22] See, e.g. Gun Control Group Plans An Attack on Bush in “Battleground States” Of Missouri, Illinois; Members of Organization Say Gore Can Use The Gun Issue To His Advantage, St. Louis Post-Dispatch, Aug. 2, 2000.

[23] See, e.g., Anti-Israel Drive Seeks to Revive Financial Tactic, N.Y. Sun, May 13, 2002.

[24] See, e.g. Employees Say Hennekens Harassed Them, Harvard Crimson, May 10, 1999.

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