Michael Park – Nominee to the U.S. Court of Appeals for the Second Circuit

The 43 year old Park has spent the last four years as a conservative legal superstar at the boutique firm of Consovoy McCarthy Park PLLC.  He now faces an opportunity to be elevated to one of the most prestigious courts in the nation, but faces the opposition of a uniquely powerful senator.

Background

Michael Hun Park was born in St. Paul Minnesota on April 1, 1976.  Park received his B.A. from Princeton University in 1998 and his J.D. from Yale Law School in 2001.[1]  After graduating, Park clerked for then Judge Samuel Alito on the U.S. Court of Appeals for the Third Circuit and then joined the New York office of Wilmer Cutler Pickering Hale and Dorr LLP as an associate.

In 2006, Park joined the Department of Justice, working in the Office of Legal Counsel.  In 2008, Park left to clerk for Alito, now a Justice on the U.S. Supreme Court.[2]  After his clerkship, Park joined the New York office of Dechert LLP as an Associate, becoming a Partner in 2012.  In 2015, Park left to become a Partner at the conservative boutique firm Consovoy McCarthy Park PLLC, where he currently serves.

History of the Seat

Park 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 Gerald Lynch, who moved to senior status on September 5, 2016.

In March 2017, Park was contacted by the White House to gauge his interest in the Second Circuit.[3]  Park’s name was then suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Park began the nomination process in November 2017 and was nominated on October 10, 2018.  Park, however, is not supported by Schumer and Gillibrand, who both declined to return blue slips on his nomination.

Legal Career

Park has had a fairly distinguished career, including clerkships at the U.S. Supreme Court, and stints at the Department of Justice.  Early in his career, Park served as an Associate at Wilmer Cutler in New York where he represented Bankfirst in defending against actions based on the Americans with Disabilities Act.[5]  At the Office of Legal Counsel in the Department of Justice, Park primarily worked in an advisory capacity, but also helped organize the legal defense in immigration actions.[6]  Finally, at Dechert, Park primarily handled commercial and securities matters in state and federal courts.

However, Park has made his mark primarily at the conservative boutique firm Consovoy McCarthy & Park PLLC, which he helped found.  At Consovoy, Park has helped push conservative outcomes through litigation across the country.

Affirmative Action

Park has led in the field of affirmative action, bringing suits challenging the use of race in college admissions across the country, including against the University of North Carolina.[7]  Most notably, Park has led the suit challenging Harvard’s admissions policy for its impact of Asian American students.[8]  The lawsuit has drawn significant media attention as well as divided views across the political spectrum.[9]

Environmental Regulations

Park has represented the Chamber of Commerce and other business groups in their challenge to the Environmental Protection Agency’s “waters of the United States” rule.[10]  Their lawsuit was dismissed by Judge Claire Eagan, and an appeal ultimately ended with an administrative closing in accordance with the revision of the rule by the EPA.

Planned Parenthood

Park has represented the head of the Kansas Department of Health and Environment in suspending state Medicaid contracts with Planned Parenthood affiliates in the state.  The termination was, however, enjoined by Judge Julie Robinson, with her injunction being upheld by the Tenth Circuit.[11]

Overall Assessment

There is little doubt that Park possesses the legal ability and intellectual vigor for a seat on the Second Circuit.  However, given his use of litigation to push conservative policy outcomes at Consovoy, opponents are likely to raise serious concerns regarding Park’s impartiality on the bench.  Combined with the opposition of Schumer, the leader of Senate Democrats, Park’s confirmation may be rockier than that of his contemporaries.


[1] Sen. Comm. on the Judiciary, 115th Cong., Michael Park: 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 Park’s.

[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] Aquino v. Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d 259 (E.D.N.Y. 2005).

[6] See Gegaj v. Mukasey, 262 Fed. Appx. 343 (2d Cir. 2008).

[7] Students for Fair Admission v. Univ. of N.C., 319 F.R.D. 490 (M.D.N.C. 2017).

[8] Students for Fair Admission, Inc. v. President & Fellows of Harvard College, No. 1:14-cv-14176-ADB (D. Mass. Filed Nov. 17, 2014).

[9] See Carrie Jung, Harvard Discrimination Trial Ends, But Lawsuit is Far From Over, Nat’l Pub. Radio, Nov. 2, 2018, https://www.npr.org/2018/11/02/660734399/harvard-discrimination-trial-is-ending-but-lawsuit-is-far-from-over.  See also P.R. Lockhart, The Lawsuit Against Harvard That Could Change Affirmative Action in College Admissions, Explained, Vox, Oct. 18, 2018, https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.  

[10] Chamber of Commerce of the United States v. EPA, No. 16-5038 (10th Cir.).

[11] Planned Parenthood of Kan. & Mid-Missouri v. Andersen, 882 F.3d 1205 (10th Cir. 2018).

Justice Greg Guidry – Nominee to the U.S. District Court for the Eastern District of Louisiana

Greg Gerard Guidry (R) has been a Louisiana state court judge since 2000.[1] He has served on the state’s 24th Judicial District Court, Fifth Circuit Court of Appeal (state), and as an Associate Justice on the Louisiana Supreme Court, which position he has held since since 2009.[2] In January of 2019, the White House nominated Guidry to a seat on the United States District Court for the Eastern District of Louisiana.[3]

Background

Guidry, 58, is married with two children and currently lives near Covington, Louisiana.[4] He has been “riding and showing Western performance horses since [he] was nine years old,” and has “three horses, two dogs, three cats, four chickens and about 30 cows on a farm in St. Tammany Parish.”[5] He grew up in Marrero, Louisiana, where he attended public schools through high school.[6] According to a 2015 interview with Guidry, he knew he wanted to be a lawyer in high school and “really never strayed from that goal.” Although he “did not have a specific idea of exactly what [he] wanted to do as a lawyer,” he “could see that lawyers played an integral role in public life, and [he] wanted to be a part of that,” which made it “an easy decision.”[7]

Guidry received a bachelor’s degree from Louisiana State University (LSU) in political science and classical civilizations and a Juris Doctor from LSU’s law school (1985).[8] In law school, he was inducted into the Order of the Coif and “selected for the Louisiana Law Review on the basis of grades.”[9] Guidry was also awarded a “Rotary Foundation Scholarship for International Understanding,” during which he studied classical civilizations and Roman law at the University of the Witwatersrand in Johannesburg, Republic of South Africa.[10]

After his scholarship year, Guidry began working at the oil and energy firm Liskow & Lewis in New Orleans in its commercial litigation division.[11] He switched to the public sector in 1990, when he began a nearly ten-year stint as an Assistant United States Attorney for the Eastern District of Louisiana. As a federal prosecutor, Guidry’s work focused mainly on public corruption and commercial fraud,[12] and he also served as a supervisor, ethics officer and grand jury coordinator.[13] Guidry’s Louisiana Supreme Court bio (and other sources that have republished this bio) states that Guidry “received commendations for his work from the United States Attorney General and the Director of the Federal Bureau of Investigations.”[14]

Guidry was a district court judge on the Twenty-Fourth Judicial District Court for the Parish of Jefferson from 2000-06 and a circuit court judge (Louisiana Fifth Circuit Court of Appeal) from 2006-09. In 2009, he won an election for a position as an Associate Justice on the state’s highest court.[15] The New Orleans Advocate noted that “Guidry’s election…represented part of an ideological and partisan shift on the state Supreme Court. He replaced retiring Justice Pascal Calogero, a New Orleans Democrat who had served as the court’s chief justice.”[16] In 2010, Guidry received a master’s degree in judicial studies from the National Judicial College.[17] He has also served as a legal advisor and trial advocacy instructor to the Republic of South Africa and the United States Virgin Islands, and has “helped to train judges and prosecutors in the African nation of Malawi as they come to grips with complex financial fraud and corruption cases.”[18] He has been a member of the Federalist Society since 2000 and has stated publicly that he intends to remain a member if confirmed.[19]

History of the Seat

President Trump nominated Guidry for the seat in January of 2019. Both of Louisiana’s U.S. senators, Bill Cassidy (R) and John Kennedy (R) have praised the nomination.[20] The seat was left open by Judge Kurt Engelhardt, who has been promoted to a position on the U.S. Fifth Circuit Court of Appeals.[21] Guidry’s confirmation would fill the last open seat on the bench at the Eastern District of Louisiana.[22]

Legal Career

Guidry has spent most of his pre-bench career as a federal prosecutor.  In his testimony before the Senate Judiciary Committee, Guidry spoke about this position, noting, “It was the treat of a lifetime to walk into a courtroom and say on a regular basis, ‘I’m here today to represent the United States of America.’”[23] Searchable cases from Guidry’s legal practice are few and far between.[24] A LexisNexis search reveals one published case, a criminal defendant’s appeal from his conviction (U.S. v. Howard, 991 F. 2d 195 (5th Cir. 1993) (affirming conviction; appellant not entitled to a lesser included offense instruction because the indictment was narrowly drawn)), and one unpublished case. U.S. v. Cureaux, 1998 U.S. Dist. LEXIS 14210 (E.D.La. 1998) (denying defendant’s motion for release on bail pending appeal).

In Guidry’s legal career, he has occasionally faced allegations of legal and ethical improprieties. For example, in early 2000, while running for a judgeship, Guidry was accused by his opponent of violating the Hatch Act, which regulates federal employees’ political activities. Specifically, he was accused of accepting endorsements for his campaign for state district court judge before formally resigning as an Assistant United States Attorney. Guidry denies knowing about the complaint when it was made, being contacted by the DOJ in an investigation into the complaint, and engaging in any unauthorized political activity.[25]

In 2007, while Guidry was on the state appellate court, that court’s chief of central staff, Jerrold Peterson, committed suicide in his office, leaving notes revealing illegal practices by the court. For 13 years the court had been denying pro se prisoners’ writ applications without a three-judge panel reviewing them, as required by law.[26] The court had instead illegally allowed one judge to handle all pro se writ applications from 1994 to 2007.[27] Guidry’s opponent in the 2009 election for a position on the state Supreme Court criticized this practice, to which Guidry responded “I had no hand in it or knowledge of it.”[28]

During his 2008 campaign for the state Supreme Court, Guidry’s opponent in the race also accused him of using official court stationary to solicit campaign funds. Guidry has vehemently denied that this happened, contending that the stationary “was designed, created, printed, and distributed without public funds,” and that “the letter was not a solicitation, but an invitation for volunteers to serve on [his] campaign committee.”[29] The Louisiana Judicial Campaign Oversight Committee found Guidry’s opponent’s claims unsubstantiated.[30]

However, the same committee found that a mailer that Guidry had prepared for part of his 2008 campaign for the state Supreme Court violated the state’s code of judicial conduct, which prohibits judges and judicial candidates from “knowingly make or cause to be made a false statement concerning the identity, qualifications, present position or other fact concerning the candidate or an opponent.”). Guidry’s objectionable statements pertained to decisions by his opponent for the seat, Judge Jimmy Kuhn, and were “found not to be supported by the facts.”[31] The committee had investigated the statements in response to a complaint about same. In a public statement, Guidry explained the statements in detail, that “[a] media consultant retained by my campaign had created them, and I had relied upon the facts as presented to me,” and that he “specifically and unequivocally took full responsibility for the use of this campaign literature without any delay.”[32] No discipline was ever imposed as a result of the flyers. Guidry stated of this incident: “nothing similar has happened in my career either before or after these mailers. If confirmed, I will maintain the highest standards of ethical conduct and comply with the Code of Conduct for United States Judges.”[33]

Also in 2008, Guidry was the only judicial candidate nationwide that was endorsed by the Family Research Council (FRC), a group criticized as being antichoice and anti-LGBTQ, who has received the designation of hate group by the Southern Poverty Law Center.[34] The FRC’s executive director, David Nammo, has claimed to have had “several conversations with Guidry and that they considered Guidry’s election crucial to the future of the Louisiana court.”[35] Guidry has denied seeking the FRC’s endorsement.[36]

Jurisprudence

Describing his judicial philosophy, Guidry has said, “I believe that every person that comes to court deserves to be treated the same.”[37] Guidry has also noted that cases “involving the death penalty and the termination of parental rights” are “the two categories of cases that are most likely to cause me to lose sleep at night because of their extreme consequences.”[38] Reflecting on changes he has seen in his involvement in the judicial system, Guidry stated that “[t]he cost of accessing our court system has risen to a level which I believe is not acceptable.” Indeed, to the extent that a “first offense misdemeanor charge could lead to a massive financial obligation for someone of meager means[,] [s]ometimes, we are setting people up to fail.”[39]

Guidry has served on the Louisiana Supreme Court since 2009.  As such, Guidry was the sole dissenting judge in the Louisiana Supreme Court case Louisiana Federation of Teachers v. State, 118 So.3d 1033 (2013), which struck down Louisiana’s school voucher system as violating the state Constitution. The state Constitution establishes how monies are to be allocated to public schools based on a formula adopted by the state board of education. Then-Governor Bobby Jindal’s 2012 package of education reforms diverted money from each student’s per-pupil allocation to cover the cost of private or parochial school tuition.[40] In Guidry’s view, “the record showed that, once a student leaves a school district, the district is no longer entitled to the state’s share of the [per-pupil allocation] for that student, and thus the district’s state share…is removed from” the district’s overall allocation of funds, thus avoiding any constitutional problem.[41]

Additionally, in Costanza, et al. v. Caldwell, et al. (NO. 2014-CA-2090), which was the state of Louisiana’s appeal from a lower court’s ruling declaring Louisiana’s Defense of Marriage Act unconstitutional, the Louisiana Supreme Court considered the effect of the Supreme Court’s Obergefell decision, which came down while the appeal was pending.  The plaintiff-appellees were Louisiana women who got married in California, which had legalized gay marriage, and then sought to enforce their marriage when they returned to Louisiana, where same-sex marriage was still illegal. Additionally, one of the plaintiff-appellees had a biological son, who the other plaintiff-appellee sought to legally adopt after they were married. In light of SCOTUS’s then-recent opinion, the Louisiana Supreme Court issued a per curium opinion denying the appeal as moot, noting that SCOTUS’s “interpretation of the federal constitution is final and binding on this court.”[42] Guidry wrote separately in a concurrence to criticize a dissenting judge. The full text of Guidry’s concurrence:[43]

Judges are bound by oath to follow the law regardless of our personal opinions, and we insist that everyone appearing before us do the same. The dissenting opinion suggests we should not follow the holding of the Supreme Court of the United States. However, it cites no legal authority. It cannot, because there is none to support its position. I am bound by my oath as an elected justice of this state to abide by the rule of law.

I must also respond to the dissenting opinion’s assertion that the “most troubling prospect of same sex marriage is the adoption by same sex partners of a young child of the same sex.” The dissenting opinion appears to be unaware of the facts of the case before us, which involves the intra-family adoption of a boy by the female spouse of the boy’s biological mother. See In re Adoption of N.B., 14-314 (La. App. 3 Cir. 6/11/14), 140 So.3d 1263. In any event, the dissenting opinion cites no legal or scientific authority, nor does the record contain any evidence, that would support its insinuation.

Guidry echoed this sentiment in his answers to written questions from Senator Feinstein in February, 2019.[44] E.g., Answer 2(a) (“if I am confirmed as a district court judge, I will follow Roe v. Wade, which has been Supreme Court precedent for more than 40 years, as well as all other Supreme Court and Fifth Circuit precedent.”)

Speeches/Writings

In 1984, Guidry published a student note that criticized Louisiana’s physician-patient privilege statute and suggested that courts should be allowed to circumvent it in certain circumstances. Greg G. Guidry, Note, The Louisiana Supreme Court and the Physician Patient Privilege: Arsenaux v. Arsenaux, 44 La. L. Rev. 1813 (1984). He analyzed a state supreme court case, Arsenaux v. Arsenaux, in which a husband sought to access his wife’s medical records “in order to use evidence of an alleged abortion against her in divorce proceedings.”[45] The trial court held that the records were privileged, which Guidry criticized as an “inequitable” and “harsh” result. Senator Feinstein asked Guidry about this note earlier this year: “Do you still believe that the judiciary should be given the flexibility to undermine physician-patient privilege, even when it would interfere with a woman’s right to privacy in her reproductive choices?”[46] Guidry responded: “The issue presented in Arsenaux v. Arsenaux was whether the husband, who had undergone a vasectomy, was entitled to the medical records of the wife to prove adultery as a ground for divorce. In my case note for the Louisiana Law Review, I pointed out that the majority of the court felt constrained by the language of the health care provider statute and had correctly adopted a literal interpretation of the statute as enacted by the legislature, rather than judicially create any additional exceptions to the medical records’ privilege. 44 La. L. Rev. at 1819. It was properly within the legislature’s purview to provide any further guidance to the courts to resolve actions in which an essential issue is the existence of a mental or physical condition or ailment.”[47]

Guidry was published in the Louisiana Law Review again in 2010. Greg G. Guidry, The Louisiana Judiciary: In the Wake of Destruction, 70 La. L. Rev. 1145 (2010).[48] His aim was to “offer insight into the intimate details of the state courts’ response when faced with the near collapse of the legal system’s infrastructure,” in the wake of Hurricane Katrina. Id. at 1146. “These post-storm issues include the magnitude of catastrophic destruction, the longterm displacement of the entire New Orleans population, the paralysis of neighboring cities and states with the mandatory evacuation of coastal communities, and the scope of inadequate governmental response.”

Overall Assessment

Guidry is highly qualified for the federal judiciary and, as seen from his concurrence in the Costanza matter, appears to apply the law faithfully, regardless of political orientation. The ethical violations raised against him in the past are unlikely to pose difficulties for his confirmation, as they are either relatively minor or actively contested by Guidry himself.  As such, it is likely that most Republicans (who control the Senate) will give Guidry the benefit of the doubt on the matter.


[9]Id.

[10]http://www.lasc.org/justices/guidry.asp. A complete list of Guidry’s honors, recognitions, an employment can be found in his response to the Senate’s Questionnaire for Judicial Nominees, available at https://www.judiciary.senate.gov/imo/media/doc/Greg%20Guidry%20SJQ%20-%20PUBLIC.pdf.

[19] https://www.judiciary.senate.gov/imo/media/doc/Guidry%20Responses%20to%20QFRs.pdf (Sen. Feinstein Questions, at 7; Sen. Whitehouse Questions, at 3).

[24] The author found no cases from Guidry’s time in private practice.

[36] Id.

Judge Joseph Bianco – Nominee to the U.S. Court of Appeals for the Second Circuit

Joseph Frank Bianco, a 52-year old federal judge for the Eastern District of New York, has been nominated for a seat on the Second Circuit Court of Appeals. From his days prosecuting crimes related to the September 11th attacks to ruling on MS-13 cases, Bianco earned a strong reputation as both a lawyer and a judge. He is well-respected in the legal community and likely to be confirmed.

Background

Bianco was born on September 11, 1966 in Flushing, New York. Bianco graduated from Columbia Law School in 1991 and clerked for the Reagan-appointed judge, Peter Leisure, of the United States District Court for the Southern District of New York from 1992 to 1993. After Bianco’s clerkship, he entered private practice as an associate at Simpson, Thatcher and Bartlett.

In 1994, Bianco began his long career in the public sector, serving as an Assistant United States Attorney (AUSA) for the Southern District of New York. As an AUSA, Bianco gained exposure to cases involving terrorism and organized crime. Bianco briefly returned to private practice from 2003 to 2004 as counsel at the law firm of Debevoise & Plimpton. From 2004 until his judicial nomination in 2005, Bianco served as a Deputy Assistant Attorney General in the United States Department of Justice’s Criminal Division.

Bianco was nominated by President George W. Bush, and subsequently confirmed by the Senate, in 2005 to serve as a United States District Court Judge for the Eastern District of New York.

Throughout his career, Bianco has taught courses on terrorism, national security, and criminal procedure as an adjunct professor at Fordham University School of Law, Maurice A. Deane School of Law at Hofstra University, the Touro Law Center, and St. John’s University School of Law.

A Catholic, Bianco earned his Master of Arts from the Seminary of the Immaculate Conception in 2013 and is an ordained Roman Catholic deacon.

History of the Seat

Bianco was nominated by President Trump on October 10, 2018 to sit on the Second Circuit Court of Appeals. He is nominated to fill the seat vacated by Judge Reena Raggi, who took Senior Status on August 31, 2018.

Because the Senate did not act on his nomination before the end of the 115th Congress, Bianco’s nomination was returned to Trump on January 3, 2019. Trump subsequently resubmitted Bianco’s nomination, along with 51 others, on January 23, 2019, and the Senate Judiciary Committee held a hearing on his nomination on February 13, 2019.

While both home state Senators Chuck Schumer and Hillary Clinton supported Bianco’s 2005 judicial nomination at that time, neither Senator Schumer nor Senator Kirsten Gillibrand returned a blue slip for his current nomination. Gillibrand has since stated that she and Schumer strongly object to the appointments of the “far-right-wing judicial nominees” Michael Park (also nominated for a seat on the Second Circuit) and Joseph Bianco.[1]

Political History

Bianco’s involvement in politics is limited to campaigning for Jack Kemp’s presidential bid in 1988 as an undergraduate student at Georgetown University.

Legal Career

Bianco spent his legal career prosecuting high-profile terrorism and organized crime cases. As an AUSA, Bianco brought cases against Mokhtar Haouari (for conspiring to provide material support to the terrorist plot to bomb LAX),[2] Ahmed Sattar and Lynne Stewart (for providing material support to a terrorist organization),[3] Ihab Ali Nawawi (Osama bin Laden’s personal pilot and messenger),[4] the Lucchese crime family (one of the “five families” of the Mafia),[5] and the Westies (an organized crime group operating out of Hell’s Kitchen).[6] At one point, Bianco led the unit prosecuting crimes related to the September 11th terrorist attacks.

At the Department of Justice, Bianco supervised the Counterterrorism Section, the Fraud Section, the Appellate Section, and the Capital Case Unit.[7] During this time, Bianco worked closely with former FBI directors Robert Mueller and James Comey, and current FBI director Christopher Wray.

Jurisprudence

Bianco has served as a judge for the Eastern District of New York since 2006. Approximately 70% of his caseload is civil, while 30% is criminal. From 2008 to 2018, ninety-five of Bianco’s judgments were appealed; only five have been remanded, reversed, or vacated by the reviewing court.

Criminal Law

Since 2011, Judge Bianco has overseen a large number of criminal cases involving MS-13 members. At least one of these cases—that of Josue Portillo, a MS-13 member who plead guilty to a quadruple murder in August 2018—garnered the attention of Trump, who used the case as a rallying cry to crack down on illegal immigration.[8]

Though Portillo was just 15 years-old at the time of the murders, Bianco granted the government’s motion to charge him (as well as the co-defendants in the case) as adults, citing the severity of the crime and inadequacy of the juvenile justice system as partial justifications.[9] In other cases involving MS-13 members, however, Judge Bianco has shown leniency. In the case of Elmer Alexander Lopez, Bianco handed down less than the maximum sentence because the defendant had shown remorse for his actions.[10]

Employment Law

Bianco has a tendency to favor the defendant in employment law cases, fully or partially granting a motion to dismiss 84% of the time.[11] Bianco notably granted a motion to dismiss federal claims in Zarda v. Altitude Express, Inc.[12] In Zarda, the plaintiff claimed he was discriminated against by his employer because of his sexual orientation, arguing that such discrimination was in violation of Title VII’s prohibition of sex discrimination.

Per Second Circuit precedent at that time,[13] Bianco dismissed Zarda’s federal claims but allowed his state claims to proceed to trial. In 2018, the Second Circuit, sitting en banc, overturned decades-old precedent in finding that Title VII’s prohibition of discrimination on the basis of sex necessarily encompasses claims of discrimination based on sexual orientation.

Search & Seizure

Bianco often rules in favor of the state in Fourth Amendment search and seizure cases. In the case of U.S. v. Bailey,[14] Bianco’s ruling on a Summers detainment led to a reversal by the United States Supreme Court.

In Bailey, Bianco held that police validly detained the defendant pursuant to a warrant to search the defendant’s home, despite detaining him about a mile away from his property. Relying on the Summers rule, which allows officers “to detain occupants of the premises while a proper search is conducted,” Bianco held that the detention was valid because it was made “as soon as practicable.”

The Supreme Court reversed Bianco’s decision, holding that detainments pursuant to Summers are “limited to the immediate vicinity of the property to be searched,” further stating that the defendant in the case at hand was “detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.”[15]

Speeches

Bianco has a long list of speaking engagements, dating back to his early years of practice. He speaks frequently at Federalist Society events on topics such as originalism, judicial restraint, national security, and government enforcement in the private sector.

Originalism

Bianco describes himself as a “really big fan of Justice Scalia,” stating that, “as a judge, I strongly share his originalist or textualist philosophy.”[16] In the last two years, Bianco has spoken at two Federalist Society events celebrating Scalia’s legacy.[17]

National Security

During his career as a prosecutor, Bianco spoke at a number of events, often highlighting the need of military courts and alternative tribunals in terrorism prosecutions. At a March 2007 event titled, “The Role of Terrorism on Judges and Judicial Activism,” Bianco expressed a need for tribunals and alternative judicial forums to try international terrorism cases. During his presentation he stated, “People will say to me, ‘Well, just let it go through the open court system,’ but without that classified evidence, some cases just won’t go very far.”[18]
More recently, at a January 2017 event, Bianco stated that, “[c]ivilian courts are not well-equipped to try terrorists whose terrorist activity takes place entirely, or almost entirely, overseas.” And at an October 2018 event, Bianco spoke about the difficulties of bringing foreign witnesses or classified evidence into U.S. Courts.[19]

Overall Assessment

Bianco has enjoyed an illustrious career prosecuting and overseeing some of the highest-profile terrorism and organized crime cases of his time. While neither home state senator has returned a blue slip for his nomination, Bianco enjoys a unanimous “Well Qualified” rating from the American Bar Association[20] and frequent praise from his colleagues.[21]

Bianco, a self-proclaimed originalist with a record of conservatism on matters of national security and police powers, will likely soon assume a seat on the Second Circuit Court of Appeals.


[1] Sens. Gillibrand, Schumer Object to Federal Court Appointments, Watertown Daily Times, Feb. 17, 2019, https://www.watertowndailytimes.com/news03/sens-gillibrand-schumer-object-to-federal-court-appointments-20190217&.

[2] U.S. v. Haouari, 2001 WL 1154714 (S.D.N.Y. 2001).

[3] U.S. v. Sattar, 2003 WL 22137012 (S.D.N.Y. 2003).

[4] In re: Grand Jury Subpoena of Ihab Ali, 1999 WL 595665 (S.D.N.Y. 1999); see also Nancy Peckenham, Judge Rules Government May Restrict Access to Evidence in Case Tied to Bin Laden, CNN, Nov. 6, 2000, http://www.cnn.com/2000/LAW/11/06/ali.perjury.trial.int/.

[5] U.S. v. Defede, 7 F.Supp.2d 390 (S.D.N.Y. 1998).

[6] U.S. v. Bokun, 73 F.3d 8 (S.D.N.Y. 1995).

[7] United States District Court, Eastern District of New York, Judge Joseph F. Bianco, https://www.nyed.uscourts.gov/content/judge-joseph-f-bianco.

[8] Liz Robbins, MS-13 Gang Member Pleads Guilty in Quadruple Murder Highlighted by Trump, New York Times, Aug. 20, 2018.

[9] U.S. v. Juvenile Male, 327 F. Supp. 3d 573 (E.D.N.Y. 2018).

[10] Michael O’Keefe, MS-13 Member Sentenced to 25 Years for Killing Fellow Gang Member in Brentwood, Newsday, Dec. 18, 2018, https://www.newsday.com/long-island/crime/ms-13-killings-brentwood-1.24712041.

[11] Carmen Castro-Pagan, Know Your Judge: Joseph F. Bianco, Bloomberg Law, April 18, 2018, https://biglawbusiness.com/know-your-judge-joseph-f-bianco.

[12] Zarda v. Altitude Express, Inc., No. 10 Civ. 4334 (oral decision), aff’d, 855 F.3d 76 (2d. Cir. 2017), rev’d en banc, 883 F.3d 100 (2d Cir. 2018).

[13] Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).

[14] Bailey v. U.S., 568 U.S. 186 (2013).

[15] U.S. v. Bailey, 133 S.Ct. 1031, 1042 (2013).

[16] Sen. Comm. on the Judiciary, 115th Cong., Nomination of Joseph Bianco to the U.S. Court of Appeals for the Second Circuit, Questions for the Record, Feb. 20, 2019, https://www.judiciary.senate.gov/imo/media/doc/Bianco%20Responses%20to%20QFRs.pdf.

[17] The Federalist Society, Contributors: Joseph Bianco, https://fedsoc.org/contributors/joseph-bianco (last visited March 1, 2019).  

[18] Columbia Law School, Judge Bianco on Terrorism and the Role of Judges, March 2007, https://www.law.columbia.edu/pt-br/node/83221.

[19] Columbia Law School, Federal Judge Provides Behind-the-Scene Look at Terrorism Cases, Oct. 26, 2018.

[20] American Bar Association, Ratings of Article III and Article IV Judicial Nominees (last visited March 2, 2019), https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf.

[21] James M. Wick, Hon. Joseph Bianco, The Federal Lawyer, Aug. 2018, http://www.fedbar.org/Resources_1/Judicial-Profiles/Judicial-PDFs/Hon-Bianco.aspx.