A couple of unsuccessful judicial nominees from the George W. Bush administration have seen new light under President Trump, with mixed degrees of success.  In New York, the Trump Administration has renominated Thomas Marcelle, who saw his previous nomination fail in 2008.

Background

An Albany native, Thomas James Marcelle was born there in 1962.  He received a Bachelor of Arts from Bowdoin College in 1984 and went on to earn his J.D. from Cornell Law School in 1988.^[1]  Marcelle then maintained a solo practice in Albany, which continues to this day.^[2]

In addition to his solo practice, Marcelle has worked as an Assistant Public Defender (working under Doug Rutnik, the father of Sen. Kirsten Gillibrand), a Trial Attorney for the Department of Justice, and, from 2002 to 2012, as Minority Counsel to the Minority Caucus of the Albany County Legislature.^[3]  From 2012 to 2015, Marcelle served as Albany County Attorney, and in 2016, as Chief Counsel for the Albany County Sheriff’s Office.  Since 2016, Marcelle has served as a Judge on the Cohoes City Court.

On July 31, 2008, then President George W. Bush nominated Marcelle to an open seat on the U.S. District Court for the Northern District of New York.  With the nomination coming after the “Thurmond Rule” was initiated, it was not processed by the Democratic Senate and the vacancy was filled by President Obama in 2011 with Judge Mae D’Agostino.

History of the Seat

Marcelle has been nominated to a seat on the U.S. District Court for the Northern District of New York.  This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status.  While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration.  In February 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, Marcelle was interviewed by the White House.^[4]  The White House announced Marcelle’s nomination on October 10, 2018.

Legal Experience

While Marcelle has held many different legal positions in his career, his most significant cases have revolved around religious rights.  Notably, the only case that Marcelle argued before the Supreme Court involved religious rights.^[5]  In that case, Marcelle represented a Good News Club, which was not permitted to use school facilities because of its inclusion of worship and prayer.^[6]  The Supreme Court ultimately sided with Marcelle’s clients on a 6-3 basis.^[7]

In other cases, Marcelle represented a kindergartener who sought to pray out loud before meals at her school.^[8]  He also sued for the restoration of bricks bearing evangelical messages to a public school.^[9] 

Jurisprudence

Since 2016, Marcelle serves as a City Court Judge in Cohoes.  In this capacity, Marcelle presides over small civil cases and criminal misdemeanors.  In the last two years, Marcelle has presided over approximately 200 bench trials.^[10]  Among his more notable cases, Marcelle found that a defendant who struck and killed a sixteen-year-old girl was Not Guilty of violating the traffic codes for driving at an unreasonable or unsafe speed, as he was traveling at 53 mph in a 40 mph zone.^[11]

Political Activity

Marcelle, a Republican, has been very politically active including running for office (unsuccessfully) twice, and successfully once (for the Bethlehem Town Council).^[12]  Marcelle has also served on the Albany County Republican Committee between 1993 and 2011.^[13]

In addition, Marcelle has been a member of the Federalist Society for Law and Public Policy Studies since 1990 and has worked as an Allied Attorney Coordinator for Alliance Defending Freedom, a conservative Christian nonprofit which has been designated as a hate group by the Southern Poverty Law Center for their work defending state sanctioned sterilization of transgender individuals abroad.

Overall Assessment

On paper, Marcelle’s nomination should be set for a comfortable confirmation.  Unlike in 2008, Republicans control the U.S. Senate, and, despite his strongly conservative record, it appears that New York’s Democratic senators have signed off on Marcelle’s nomination.^[14]  However, perhaps in response to the Trump’s Administration decision to move Second Circuit nominees over the objections of Sens. Schumer & Gillibrand, Marcelle’s nomination has yet to receive a hearing.  It is possible that the Senators and the Administration will reach an agreement to fill the remaining New York vacancies.  Until then, it remains to be seen if Marcelle’s second nomination will be any more successful than his first.

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