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)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s