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.

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