Month: June 2021

Myrna Perez – Nominee to the U.S. Court of Appeals for the Second Circuit

The Biden Administration has long telegraphed an interest in choosing judicial nominees who depart from traditional practice path, and, so far, has met this promise with their initial nominees. Myrna Perez, who made a name for herself as a prominent voting and elections scholar and litigator, fits into this pattern of nominee.

Background

Born in San Antonio to an immigrant family from Mexico, Perez received her B.A. from Yale University in 1996, an MPP from the Harvard Kennedy School in 1998, and her J.D. from Columbia Law School in 2003. After graduating, Perez clerked for Judge Anita Brody on the U.S. District Court for the Eastern District of Pennsylvania and for Judge Julio Fuentes on the U.S. Court of Appeals for the Third Circuit. After her clerkships, Perez served as a Civil Rights Fellow at the firm of Relman Dale & Colfax in Washington D.C. before joining the Brennan Center for Justice at the New York University School of Law. Perez is still with the Institute, serving as Director of the voting rights and elections program.

History of the Seat

Perez 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 Denny Chin, who moved to senior status on June 1, 2021.

Legal Career

Perez started her legal career clerking for Judge Anita Brody on the U.S. District Court for the Eastern District of Pennsylvania and then for Judge Julio Fuentes on the Third Circuit. She then spent a year working on civil rights ltiigation at Relman Colfax, where, among other matters, Perez represented the Idaho Aids Foundation in a suit against the Idaho Housing and Finance Association regarding the cut-off of funding for the former’s programming. See Idaho Aids Found., Inc. v. Idaho Hous. and Fin. Ass’n, 422 F. Supp. 2d 1193 (D. Idaho 2006).

Since 2006, Perez has been with the Brennan Center, where she has focused on suits focused on election law and voting rights. For example, Perez has part of the legal team participating as amici in a state court suit involving the voting rights of convicted felons in Alabama. See Chapman v. Gooden, 974 So. 2d 972 (Ala. 2007). She also participated as amicus in a suit challenging the at-large voting system set up by the Village of Port Chester as violative of the Voting Rights Act by diluting Hispanic votes. See United States v. Vill. of Port Chester, 704 F.Supp.2d 411 (S.D.N.Y. 2010).

More notably, Perez served as counsel for a number of plaintiff groups challenging Texas SB 14, which required photo ID in order to vote. Perez successfully persuaded a panel of the Fifth Circuit to strike down the law. See Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016). Perez also challenged SB 5, the voter ID law passed to replace SB 14, but a panel of the Fifth Circuit upheld the new law. Veasey v. Abbott, 888 F.3d 792 (5th Cir. 2018).

In other notable cases, Perez represented amici in challenges to North Carolina’s voter ID law, N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020), represented plaintiffs challenging restrictions placed on felon re-enfranchisement by the Florida legislature, Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc), and defended Pennsylvania’s mail-in-voting scheme for the 2020 elections. See Donald J. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Statements and Writings

In her role at the Brennan Center, Perez has frequently written, spoken, and made media comments about issues of election law and voting rights. We summarize some of the key issues she has spoken on below.

Voter I.D.

Consistent with the litigation she has participated in, Perez has frequently spoken out in opposition to attempts to require photo ID to verify voter identity at the polls. Perez instead argues that voter integrity can be preserved without restrictive ID requirements, but instead by modernizing the registration process and improving the integrity of voting rolls. See Myrna Perez, Election Integrity: A Pro-Voter Agenda, Brennan Center for Justice, Jan. 19, 2016, https://www.brennancenter.org/our-work/policy-solutions/election-integrity-pro-voter-agenda.

Shelby County

In 2013, the U.S. Supreme Court struck down the preclearance coverage formula under Section 4(b) of the Voting Rights Act of 1965. Shelby County v. Holder, 570 U.S. 529 (2013). Both before and after the decision, Perez wrote in strong support of the preclearance formula enacted by Congress. Perez was critical of the Supreme Court’s decision to strike down the formula and urged congressional action to fix the gap.

Voter “Purges”

Perez has been sharply critical of voter “purges” in which states remove large number of voters from voter rolls en masse. Perez has called out such “purges” in Mississippi, Louisiana, Montana, Florida, Ohio, Indiana, Virginia, North Carolina, and Wisconsin, among other states. Nonetheless, Perez has spoken out supportively in favor of efforts to maintain accurate voter rolls, and has argued that states must strike the right balance between cleaning up voter rolls and not removing eligible voters. See Reid Wilson, Advocates Fear Ohio Decision Could Lead to More Voter Purges, The Hill, June 12, 2018 (quoting Myrna Perez).

Felon Enfranchisement

Perez has frequently written in support of restoring the right to vote to convicted felons. She also testified before the House Judiciary Committee in support of the For the People Act, an election reform bill which, among many provisions, restores voting rights to many Americans with felony convictions.

Overall Assessment

Because secure and accessible elections are fundamental to the health of a democracy, voting rights is an area of law that draws strong feelings from all sides. In investing her legal career in this controversial area of law, Perez likely recognizes that her nomination would draw an unusual degree of scrutiny and opposition.

Given Perez’s extensive experience litigating on the district court and appellate levels, opponents are unlikely to attack Perez’s intelligence, integrity, or skill as an attorney, but will likely instead argue that her record is too “political” to be a judge. Some senators may also argue that Perez’s specialized career does not prepare her for the spectrum of matters coming before the Second Circuit.

In short, expect virtually all Republicans to oppose Perez, but, as long as all Democrats can stay on board (likely with Senate Majority Leader Chuck Schumer championing the nomination), Perez will be confirmed in due course.

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Judge Sarah Merriam – Nominee to the U.S. District Court for the District of Connecticut

As compared to the outspoken Judge Williams or the young Sarala Nagala, the nomination of U.S. Magistrate Judge Sarah Merriam represents the most conventional of the three Connecticut nominees for the district court.

Background

Sarah A.L. Merriam earned her B.A. from Georgetown University in 1993 and her J.D. from Yale Law School in 2000. After graduating law school, Merriam joined the Hartford office of Cowdery, Ecker, & Murphy as an Associate. In 2007, Merriam moved to the public sector as an Assistant Federal Defender, staying in the office for eight years. In 2015, Merriam was chosen to be a federal magistrate judge, replacing Judge Holly Fitzsimmons. Merriam currently serves in this capacity.

History of the Seat

Merriam has been nominated to a vacancy on the U.S. District Court for the District of Connecticut that opened with Judge Janet Hall’s move to senior status on January 21, 2021.

Legal Career

Merriam started her legal career as an associate at Cowdery, Ecker, & Murphy, where she worked alongside partner Steven Ecker, who now serves on the Connecticut Supreme Court. Among the cases that Merriam and Ecker worked on together, they represented Directors of Reflexite Corp. in defending against a suit alleging that they violated their fiduciary duties to the corporation. See Frank v. LoVetere, 363 F. Supp. 2d 327 (D. Conn. 2005).

From 2007 to 2014, Merriam worked in the Office of the Federal Defender, representing indigent defendants in Connecticut federal court. Among the cases she handled with the office, Merriam represented Michael Danzi, one of two brothers charged with participating in a drug distribution ring importing marijuana from Canada. United States v. Danzi, 726 F. Supp. 2d 109 (D. Conn. 2009).

Jurisprudence

Merriam has served as a U.S. Magistrate Judge since her appointment in 2015, where she handles detention, discovery disputes, misdemeanors, and social security/benefits cases. As an example of a matter she handled, Merriam affirmed an administrative decision denying disability benefits for Dana Poole, finding that substantial evidence supported the determination that Poole’s disabilities were not sufficiently severe to qualify her for the benefits. Poole v. Saul, 462 F. Supp.3d 137 (D. Conn. 2020).

In another notable decision, Merriam ruled against the Libertarian Party of Connecticut, finding that the plaintiffs had not shown that Connecticut’s petitioning requirements were overly burdensome on the party. Libertarian Party of Conn. v. Merrill, 470 F. Supp. 3d (D. Conn. 2020).

Overall Assessment

With experience in private practice, as a federal defender, and as a federal magistrate, and with few controversial cases under her belt, Merriam is likely the least controversial of the group of three nominees put forward for the District of Connecticut. She will likely be confirmed with bipartisan support.

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Judge Omar Williams – Nominee to the U.S. District Court for the District of Connecticut

Omar Williams, a judge for Connecticut’s Superior Court since 2016, has been nominated for a seat on the U.S. District Court for the District of Connecticut. Williams’ nomination fits the pattern of former public defenders being nominated for the bench by the Biden Administration.

Background

Omar A. Williams earned his B.A. from the University of Connecticut in 1998 and his J.D. from the University of Connecticut Law School in 2002. After graduating law school, Williams joined the State of Connecticut Division of Public Defender Services as an assistant public defender. In 2016, Gov. Dannel Malloy appointed Williams to be a judge on the New London District Superior Court, where he currently serves.

History of the Seat

Williams was nominated to a vacancy on the U.S. District Court for the District of Connecticut on October 15, 2019. The vacancy opened on August 31, 2018, with Judge Alvin Thompson’s move to senior status.

In March 2019, Judge Barbara Jongbloed, a Connecticut Superior Court Judge, was recommended by Connecticut Senators Richard Blumenthal and Chris Murphy to the Trump Administration. Jongbloed was nominated by the Trump Administration to this seat on August 28, 2019, and was unanimously approved by the Senate Judiciary Committee on November 21, 2019. However, Jongbloed’s nomination sat on the Senate floor from that point onwards and was left unconfirmed at the end of the Trump Administration, leaving the vacancy for the Biden Administration.

Legal Career

William’s primary experience before becoming a judge was as a state public defender, where he represented indigent defendants in trial and appellate courts. Among the notable cases he handled with the office, Williams challenged, under the Fourth Amendment, the police officers’ use of statements his client had made while calling a third-party cell phone in the possession of the police. See State v. Gonzalez, 898 A.2d 149 (Conn. 2006). Specifically, officers were interviewing a suspected drug dealer when his cellphone rang and officers answered. Officers proceeded to speak with the caller (defendant) and arranged to meet with him for a “resupply.” The defendant was subsequently captured and raised a Fourth Amendment challenge to the police use of a third-party cellphone. The Connecticut Supreme Court held unanimously that “because the defendant spoken voluntarily to police and made no effort to ascertain the identity of the person to whom he spoke, he lacked a reasonable expectation of privacy in his words spoken during his call.” As such, the Supreme Court rejected the Fourth Amendment challenge.

Jurisprudence

Williams has served as a Judge on the Connecticut Superior Court since 2016, when he was appointed by Gov. Dannel Malloy. In this role, Williams has served as a trial court judge, presiding over criminal, civil, family, and housing cases. Williams’ duties include making bail and detention decisions. For example, in one case, Williams set a $250,000 bond for a defendant who forced his way into a woman’s home and attempted to sexually assault the occupant. See Karen Florin, Police: Man Attempted Apology After Home Invasion, Sexual Assault in New London, The Day, Jan. 26, 2015.

Additionally, Williams is also charged with making legal rulings and sentencing defendants who have been found guilty. See, e.g., Claire Bessete, Zane Megos Sentenced to Five Years for Violating Probation, The Day, Feb. 26, 2016. In this role, Williams has not hesitated to impose probation and diversion as an alternative to incarceration. For example, Williams sentenced Dr. Micha Abeles, a 71-year-old doctor charged with stealing medication from the UConn Health Center, to one year of probation. Former UConn Doctor Caught Stealing Drugs Gets Probation, A.P. State & Local, Sept. 13, 2016. Williams also approved an accelerated rehabilitation program for 19-year-old Tyler McKenzie, charged with making an online threat promising “a hail of bullets” against East Lyme schools. See Karen Florin, Court Grants Diversionary Program in East Lyme School Threat Case, The Day, July 14, 2015.

One case that may draw controversy is that of Brianna Brochu, a white University of Hartford student charged with breach of the peace and criminal mischief for allegedly applying bodily fluids, including blood and saliva, on items owned by her roommate Chennel Rowe, who was African American. See Jay Colby, Brianna Brochu Charged With Harassing Former University of Hartford Roommate, Gets Probation, The Black Detour, Mar. 13, 2018, https://theblackdetour.com/brianna-brochu-roommate-gets-probation/. Against the request of the NAACP, state prosecutors declined to charge Brochu with a hate crime, and Williams sentenced her to an accelerated rehabilitation program, allowing the charges to be dismissed with completion of 200 hours of community service and a mental health evaluation, among other requirements. Despite the views of activist groups, and the acknowledgment of the pain the harassment had caused her, Rowe testified that she had no objection to the diversionary disposition of the case.

Additionally, Williams co-chaired a task force with former Connecticut Chief Justice Chase Rogers to reform jury selection in Connecticut and reduce racial bias. See Zach Murdock, Reforms Designed to Reduce Racial Bias in Trial Jury Selection Advance, Hartford Courant, Apr. 7, 2021. The Committee’s recommendations included permitting felons and non-citizens to serve on juries, raising the age at which seniors can opt out of jury service, and increasing compensation for jurors. The recommendations were subsequently approved by the Connecticut legislature.

Overall Assessment

With over two decades of legal experience as both an attorney and a judge, Williams is likely to be deemed qualified for the federal bench. However, opponents are likely to raise three primary issues in opposition to his nomination. First, they may point to Williams’ time as a public defender to criticize his “fitness” for the bench. Second, they may argue that Williams’ willingness to offer probation and diversion, including in the Brochu case, reflects a lack of attention to crime victims. Third, they may criticize Williams’ work in reforming jury service and selection in Connecticut. How successful such arguments are likely to be depends on if any of the Senate’s Democrats find them persuasive in opposing Williams’ nomination.

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Sarala Vidya Nagala – Nominee to the U.S. District Court for the District of Connecticut

Sarala Vidya Nagala, a federal prosecutor in Connecticut, is one of three nominees put forward by the Biden Administration to fill vacancies on the District of Connecticut, in one of the biggest turnovers of the court since 1994.

Background

Nagala received a Bachelor of Arts degree from Stanford University in 2005 and her Juris Doctor from the University of California School of Law in 2008. After graduating law school, she clerked for U.S. Court of Appeals Judge Susan Graber on the Ninth Circuit, before joining the San Francisco office of Munger Tolles & Olson as an Associate. In 2012, Nagala moved to the public sector as an Assistant U.S. Attorney with the District of Connecticut, becoming Deputy Chief of the Major Crimes Unit in 2017. Nagala is still with the office.

History of the Seat

Nagala has been nominated to a vacancy on the U.S. District Court for the District of Connecticut opened by Judge Vanessa Lynne Bryant’s move to senior status on February 1, 2021.

Legal Career

Nagala started her legal career at the firm of Munger Tolles & Olson, a firm that has produced many prominent federal judges, including Justice Brett Kavanaugh and four sitting Ninth Circuit judges. At the firm, Nagala was part of the legal team representing Bank of America in seeking damages arising from financial fraud orchestrated by the Taylor, Bean & Whitaker Mortgage Corp. See Bank of Am, N.A. v. FDIC, 908 F. Supp. 2d 60 (D.D.C. 2012). On the pro-bono side, Nagala was part of the legal team, along with the ACLU Foundation of Southern California, challenging a gang injunction imposed by Orange County. Vasquez v. Rackaukas, 203 F. Supp. 3d 1061 (C.D. Cal. 2011).

Nagala has spent the last nine years as a federal prosecutor in Connecticut, rising to become Deputy Chief of the Major Crimes Division. Among the notable cases that she has handled with the office, Nagala prosecuted Stavros Ganias for tax evasion. United States v. Ganias, 755 F.3d 125 (2d Cir. 2014). Ganias challenged his conviction on two grounds: that his Fourth Amendment rights were violated when law enforcement copied three of his hard drives pursuant to a search warrant and then improperly retained materials beyond the scope of the warrant; and that his Sixth Amendment rights were violated by a juror’s Facebook activity. A divided panel of the Second Circuit reversed the conviction on the basis of the Fourth Amendment argument. However, Nagala petitioned for en banc rehearing, and the full Second Circuit reversed the decision based on Judge Peter Hall’s dissent, finding that, while the Defendant’s Fourth Amendment rights were violated, the “good faith” exception precluded suppression of the evidence. See United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc). In other matters, Nagala is currently prosecuting New Britain resident Steven Knox for stealing 43 tires from the U.S. Postal Service. Don Stacom, Man Charged in Theft of 43 Tires From U.S. Postal Service Garage; Investigators: Suspect Admitted to Using Access Card He Kept From Repair Shop Job, Hartford Courant, June 10, 2021.

Overall Assessment

Despite being in her 30s, Nagala has already gained experience in both civil and criminal litigation. While some senators may raise questions about Nagala’s age, such inquiries are likely to be blunted by the relative youth of a number of Trump appointees. As such, one can expect Nagala to be confirmed in due course and make history as the first Indian-American judge on the Connecticut federal bench.

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Jia Cobb – Nominee to the U.S. District Court for the District of Columbia

Relman Colfax Partner Jia Cobb, nominated for the federal district court in D.C., would come to the bench with extensive litigation experience on both the civil and the criminal side.

Background

Jia Cobb received her B.A. from Northwestern University in 2002 and then received her J.D. cum laude from Harvard Law School where she served as Coordinating Editor of the Harvard Law Review.

After graduating, Cobb clerked for Judge Diane Wood on the U.S. Court of Appeals for the Seventh Circuit and joined the Public Defender Service for the District of Columbia. In 2010, she became a Partner at Relman Colfax, where she practices civil litigation and civil rights law.

History of the Seat

The seat Cobb has been nominated for opened on April 3, 2021, with Judge Emmett Sullivan’s move to senior status. Cobb was recommended by House Delegate Eleanor Holmes Norton for the federal bench on March 25, 2021.

Legal Experience

Cobb started her legal career as a clerk to Judge Diane Wood on the U.S. Court of Appeals for the Seventh Circuit. She then shifted to the Public Defender Service in D.C., where she represented indigent defendants in D.C. Superior Court and in the federal courts. Among her clients there, Cobb represented Christopher Timmons, who was charged with bringing a grenade and additional weapons near the U.S. Capitol complex. In his defense, Timmons claimed that he wanted to assist the police in their functions.

For the past eleven years, Cobb has served as a Partner at Relman Colfax, where she has practiced civil rights and civil litigation. Among her notable matters at the firm, Cobb represented an African-American bartender fired from Redline bar in Washington D.C. in an employment discrimination suit. The suit ended in a $687,000 judgment against the bar by a jury.

Additionally, in 2021, Cobb led the filing of lawsuits against the County of Stafford, the City of Fredericksburg, the District of Columbia, and other governmental organizations for allegedly infringing upon the First and Fourteenth Amendment rights of Black Lives Matter protesters.

Statements and Writings

Throughout her career, Cobb has spoken out on issues of race, gender, and diversity, including from her college days. As a college sophomore at Northwestern, Cobb spoke as part of the school’s first conference on diversity on a panel on racial coverage at the Daily Northwestern. See Rebecca Orbach, Northwestern U. Holds School’s First Conference on Diversity, Daily Northwestern, Nov. 8, 1999. She also served on a committee reviewing the school’s University Sexual Assault Hearing and Appeals System. See Emily Bittner, Committee Reviews Northwestern U.’s Sexual Assault Hearing and Appeals System, Daily Northwestern, May 18, 2000. In another interview from college, Cobb noted that she wanted to speak for the disadvantaged to “honor[] those who have made sacrifices for her.” See Wailin Wong, DePaul Professor Praises King’s ‘Radical Legacy’ Despite Flaws, Daily Northwestern, Jan. 11, 2001.

Similarly, as a law student, Cobb co-authored a paper discussing the disparities in African Americans serving on law reviews. See Jia Cobb, Lauren Sudeall & Amanda Teo, Diversity on the Law Review, HARV. L. REC., May 2, 2005.

Overall Assessment

With an appellate clerkship, nearly two decades of criminal and civil litigation experience, and a lack of background in partisan politics, Cobb could be a fairly uncontroversial pick for the federal bench. However, she is likely to draw opposition primarily based on her work in criminal defense and civil rights, which opponents may argue reflects bias. She may also draw questions for her statements and writings on issues of race and diversity. Ultimately, as long as Democrats hold together, Cobb will likely be confirmed in due course.

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Veronica Rossman – Nominee to the U.S. Court of Appeals for the Tenth Circuit

In the history of the Tenth Circuit, only one Democratic appointee has ever been named to the court from Colorado: Judge Carlos Lucero.  With Judge Lucero’s move to senior status, Federal Defender Veronica Rossman is now poised to become the second.

Background

Rossman was born Veronica Sophia Parkansky to a Jewish family in Moscow in 1972.[1]  After getting a B.A. from Columbia University in 1993, Rossman joined the University of California Hastings Law School, graduating in 1997.  After graduating, Rossman clerked for Chief Justice A. William Maupin on the Nevada Supreme Court before joining Morrison & Foerster as a litigation associate.

In 2003, Rossman became an assistant federal defender in the Districts of Colorado and Wyoming for a year and then spent a year at Mastbaum & Moffat, and a year as a staff attorney with the U.S. Court of Appeals for the Ninth Circuit before becoming a professor at the University of Denver, Sturm College of Law.

Since 2010, Rossman has worked as a Federal Defender for the Districts of Colorado and Wyoming, serving as Senior Counsel since 2017.

History of the Seat

Rossman was tapped for a Colorado seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat was vacated by Judge Carlos Lucero’s move to senior status on February 1, 2021.  

Legal Career

Rossman has held a variety of positions throughout her legal career, including as a law professor, federal defender, and attorney in private practice.  Rossman started her career as an Associate with Morrison and Foerster, where, among other matters, she represented Dr. Edward McSweegan, a National Institute of Health (“NIH”) doctor, in a cross-filed defamation lawsuit against the founders of the Lyme Disease Foundation (“LDF”).[2]

The bulk of Rossman’s career has been at the Federal Defender Service, representing indigent defendants in federal courts in Colorado and Wyoming.  Among the matters she handled with the office, Rossman represented Arlo Looking Cloud, who was charged with murdering Anna Mae Pictou-Aquash in Denver.[3] 

Much of Rossman’s work, however, has been in appellate courts.[4]  Among the notable cases she handled, Rossman successfully persuaded the Tenth Circuit to reject a probation condition allowing probation officers to require third-party notification by the defendant upon the probation officer’s determination of a threat by the defendant.[5]  In an opinion by Judge Carolyn McHugh, the Tenth Circuit agreed that the condition improperly delegated judicial power to the probation officer.[6]

In another case, Rossman argued that U.S. District Judge Philip Brimmer committed plain error in holding that the defendant’s 1992 conviction for “Sale or Transportation of Marijuana” constituted a drug trafficking felony under the sentencing guidelines.[7]  In an opinion by Judge Lucero, the Tenth Circuit agreed that Brimmer had committed plain error in finding that the offense was a “drug trafficking” offense, but affirmed on the basis that the error did not affect the defendant’s “substantive” rights.[8]

Additionally, Rossman joined a team of public defenders filing an amicus brief in Welch v. United States, asking the Supreme Court to hold that Johnson v. United States, which voided the residual clause of the Armed Career Criminal Act, should be applied retroactively.[9]  The Supreme Court agreed with Rossman’s position in a 7-1 decision (with Justice Thomas as a lone dissenter).[10]

Overall Assessment

With experience in private practice, academia, and indigent defense, Rossman appears to be qualified for a seat on the Tenth Circuit.  While she has few writings or policy positions expressed that can be triggers for opposition, some senators may nonetheless oppose Rossman on the basis on her representation of indigent defendants.  Needless to say, such opposition is unlikely to carry the day and Rossman should join the Tenth Circuit bench by the fall.

[1] Veronica S. Rossman Fact Sheet, Alliance for Justice, https://www.afj.org/document/veronica-s-rossman-fact-sheet/ (last visited Jun. 3, 2021).

[2] Vanderhoof-Forschner v. McSweegan, No. 99-1615, No. 99-1616, 2000 U.S. App. LEXIS 10682 (4th Cir. May 16, 2000).

[3] See Deborah Mendez, Judge Orders Denver Man to Face Murder Charge in South Dakota, A.P. State & Local Wire, Apr. 4, 2003.

[4] See, e.g., United States v. Paup, 933 F.3d 1226 (10th Cir. 2019); United States v. Bacon, 900 F.3d 1234 (10th Cir. 2018); United States v. Dunbar, 718 F.3d 1268 (10th Cir. 2013); United States v. Loya-Rodriguez, 672 F.3d 849 (10th Cir. 2012).

[5] United States v. Cabral, 925 F.3d 687 (10th Cir. 2019).

[6] See id. at 690.

[7] United States v. Castellanos-Barba, 648 F.3d 1130 (10th Cir. 2011).

[8] Id. at 1133.

[9] See Welch v. United States, 136 S.Ct. 1257, 1260 n. 1 (U.S. 2016).

[10] Id. at 1261.

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Lauren King – Nominee to the U.S. District Court for the Western District of Washington

Native Americans are among the most under-represented groups on the federal judiciary, with only two judges serving in active status. President Biden has now nominated a third, Seattle attorney Lauren King.

Background

Born in 1982, King received a B.A. from the University of Washington in 2004 and a J.D. from the University of Virginia Law School in 2008.

After graduating, King worked as an associate at K&L Gates for a year and then at Byrnes Keller Cromwel for two years before joining the Seattle office of Foster Garvey P.C. where she currently serves as a Principal.

History of the Seat

King has been nominated for the U.S. District Court for the Western District of Washington. This seat opened on January 27, 2016, when Judge Robert Lasnik moved to senior status. On April 6, 2016, the Obama Administration nominated Judge Beth Andrus to fill the vacancy, but her nomination was never confirmed by the Republican Senate.

On July 13, 2018, the Trump Administration announced their intention to nominate federal prosecutor Tessa Gorman to the Western District. However, due to a dispute with Washington’s U.S. Senators over the Ninth Circuit nomination of Eric Miller, the Trump Administration chose not to proceed with Gorman’s nomination. President Biden nominated King on May 12, 2021.

Legal Experience

King, a citizen of the Muscogee Nation, has focused her career on Native American law, frequently representing Native American tribes in lawsuits seeking to protect their interests. Most notably, King represented the Quileute tribe in a suit seeking to protect the fishing boundaries designated for the tribe under the 1855 Treaty of Olympia. See Greg Geudel, Lauren King: “Rising Star” Defender of Tribal Rights, Native American Legal Update, May 6, 2016. King was able to get a favorable ruling on the suit from Judge Ricardo Martinez on the Western District of Washington. The decision was subsequently appealed and partially affirmed by a panel of the Ninth Circuit Court of Appeals. See Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1 (9th Cir. 2017).

King has also made a name for herself in litigating related Indian law cases before the Ninth Circuit, including a subproceeding involving the Muckleshoot Indian Tribe. Muckleshoot Indian Tribe v. Tulalip Tribes, 944 F.3d 11 (9th Cir. 2019). She also represented the Muscogee Creek Nation in a suit regarding the use of a tract of land in Wetumpka, Alabama. Muscogee (Creek) Nation v. Poarch Band of Creek Indians, Civil Action No. 2:12cv1079-MHT, 2021 U.S. Dist. LEXIS 47953 (M.D. Ala. Mar. 15, 2021).

Overall Assessment

Given the focus on her experience on Indian law, King is an unusual choice for a federal judicial appointment, and her selection shows a willingness by the Biden Administration to pick unconventional nominees. While King may draw some opposition for her youth, she is nonetheless favored to join the bench and may even be poised for elevation to the Ninth Circuit if a Washington seat was to open.

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Judge Gustavo Gelpi – Nominee to the U.S. Court of Appeals for the First Circuit

The First Circuit Court of Appeals has not seen a new judge appointed since 2014, longer than any other court of appeals.  With the death of Judge Juan Torruella in 2020, the Court now has a vacancy and a nominee, District Judge Gustavo Gelpi.

Background

Gustavo Antonio Gelpi Jr. was born in San Juan, Puerto Rico on December 11, 1965.  Gelpi received a B.A. from Brandeis University in 1987 and his J.D. from Suffolk University Law School in 1991.  After graduating, Gelpi spent two years as a law clerk for Judge Juan Perez-Gimenez on the U.S. District Court for the District of Puerto Rico before joining the Office of the Federal Public Defender in Puerto Rico.

In 1997, Gelpi joined the Puerto Rico Attorney General’s Office, becoming the Territory’s Solicitor General in 1999.  In 2001, he left the position to re-enter private practice, but the same year became a federal magistrate judge at only thirty-five. 

On April 24, 2006, Gelpi was nominated by President George W. Bush to the U.S. District Court for the District of Puerto Rico, replacing Judge Hector Laffitte.  Gelpi was unanimously confirmed by the Senate on July 20, 2006, becoming the 24th Hispanic judge appointed by Bush and breaking the record for the most number of Hispanic federal judges named by any President.[1]  Gelpi has served on the Court ever since.

History of the Seat

Gelpi has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit.  This seat opened with the death of Judge Juan Torruella, a pioneering judge who was the first from Puerto Rico to sit on the First Circuit, on October 26, 2020.  On November 13, 2020, President Trump nominated U.S. District Judge Raul Arias-Marxuach to fill the vacancy.  While Arias-Marxuach received a hearing before the Senate Judiciary Committee, he was never reported to the floor and the seat was left open at the end of the Trump Administration.

Political Activity

Gelpi has a few donations to his name, giving to members of both parties, including the Vice President Al Gore and Commissioner Luis Fortuno (Fortuno caucused with the GOP as a resident commissioner in Washington).[2]  

Legal Experience

While Gelpi has been a judge since the age of thirty-five, in his career before that, Gelpi worked in a variety of legal positions.  He started his career, like a number of Biden appointees, as a public defender, representing indigent defendants in federal court between 1993 and 1997.

Notably, as Puerto Rico Solicitor General, Gelpi argued before the First Circuit, arguing that Puerto Rico residents, as U.S. Citizens, had a right to vote in the 2000 Presidential election, even though Puerto Rico is not a state.[3]  The First Circuit rejected the lawsuit, holding that Puerto Rico residents did not have a constitutional right to vote in presidential elections.[4]

Judicial Experience

Gelpi has served as a judge for twenty years, including five as a U.S. Magistrate Judge and fifteen as a U.S. District Court Judge.  We summarize some of Gelpi’s more significant cases during this tenure below.

U.S. Magistrate Judge

Gelpi served as a U.S. Magistrate Judge from 2001 to 2006.  In this role, he handled settlement, discovery, and made recommendations on dispositive motions.  He also presided over cases where the parties consent and reviewed bail and detention motions.  Among the noteworthy matters he handled as a U.S. Magistrate, Gelpi ordered the seizure of a polar bear from the Hermanos Brothers Circus, finding that the papers for the bear indicating sale from a zoo were fraudulent.[5]

Puerto Rico Resident Rights

One theme of many of Gelpi’s rulings has been to push back against the disparate treatments of Puerto Rico residents under the law.  Early in his career as a judge, Gelpi presided over a lawsuit challenging the disparate treatment of health centers in Puerto Rico in Medicaid “wraparound” payments.[6]  In his ruling, Gelpi outlined the legal and political history of Puerto Rico to rule that it was now an “incorporated” territory of the U.S. and thus was entitled to protection from “discriminatory federal legislation.”[7]  Similarly, in a ruling upheld by the First Circuit, Gelpi also found that Puerto Rico residents could not be discriminated against in Social Security Supplemental Disability benefits.[8]

Gay Marriage

In 2016, shortly after the Supreme Court ruled that states cannot ban same-sex marriage in Obergefell v. Hodges, Judge Juan Perez-Gimenez ruled that the Obergefell decision did not apply to Puerto Rico and that the territory’s ban on gay marriage remained in effect.[9]  The ruling was appealed to the First Circuit, who promptly reversed and reassigned the case to Gelpi, ruling that Perez-Gimenez’s ruling “errs in so many respects that it is hard to know where to begin.”[10]  On April 11, 2016, Gelpi issued a declaratory judgment invalidating Puerto Rico’s same sex marriage ban under Obergefell.[11]

Sony Entertainment and Copyright

In 2015, Gelpi ruled that Luis Adrian Cortes-Ramos, a songwriter who entered a music video contest held by Sony, was compelled to arbitrate his intellectual property suit against them.[12]  His ruling was ultimately upheld by the First Circuit, in an opinion by Judge Juan Torruella.

Writings

Both before and after taking the bench, Gelpi has written extensively on the law, including pieces in Spanish and English.  Among the topics on which Gelpi has written are the Confederate judiciary during the American Civil War,[13] the Insular Cases,[14] and maritime law.[15]  For example, in an article early in his career, Gelpi details the history of Puerto Rico law that permits the U.S. Congress to allow the territory to supersede federal maritime law.[16]

Overall Assessment

With two decades as a federal judge, Judge Gelpi comes to his First Circuit nomination with more federal judicial experience than any nominee since Judge Julie Carnes was appointed in 2014.  This experience necessarily dictates a large number of rulings, some controversial, that are likely to be closely scrutinized in order to determine confirmation.  In particular, Gelpi may draw questions related to his writings and rulings on the disparate treatment of Puerto Rico under the law, as well as his participation in the suit to have Puerto Ricans vote in the 2000 Presidential election.

Nonetheless, Gelpi certainly has the requisite experience for the bench, and as a mid-50s judge nominated by a Republican President, some Republicans may feel that Gelpi is the best they can get from the Biden Administration. Ultimately, how many Republican votes Gelpi gets may be a good indication of how much bipartisan support the Administration’s nominees can expect. If senators oppose Gelpi, they are unlikely to support any Biden nominee.

[1] Ken Herman, Bush Has Appointed More Hispanic Federal Judges Than Past Presidents, Cox News Service, Sept. 21, 2017.

[2] See Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=gustavo+gelpi&cycle=&state=&zip=&employ=&cand= (last visited May 23, 2021).

[3] Martin Finucane, Federal Appeals Court Hears Arguments in Puerto Rico Vote Case, A.P. State & Local Wire, Oct. 5, 2000.

[4] See Iguarta de la Rosa v. United States, 229 F.3d 80, 83 (2000) (per curiam).

[5] Luis Varela, Federal Authorities Remove Polar Bear From Mexican Circus in Puerto Rico, A.P. Int’l, Mar. 6, 2002.

[6] See Consejo de Salud Playa De Ponce v. Perez-Pordomo, 556 F. Supp. 2d 76 (D.P.R. 2008).

[7] See id. at 105.

[8] See United States v. Vaello-Madero, 956 F.3d 12 (1st Cir. 2020).

[9] Becky Bratu, Judge Upholds Same-Sex Marriage Ban in Puerto Rico, NBC News, Mar. 8, 2016, https://www.nbcnews.com/news/us-news/judge-upholds-same-sex-marriage-ban-puerto-rico-n534556.

[10] See Chris Geidner, Federal Appeals Court: Yes, Puerto Rico’s Same-Sex Marriage Ban is Unconstitutional, BuzzFeed, Apr. 7, 2016, https://www.buzzfeednews.com/article/chrisgeidner/federal-appeals-court-yes-puerto-ricos-same-sex-marriage-ban.

[11] See Conde-Vidal v. Garcia Padilla, No. 3:14-cv-01253 (D.P.R. Apr. 11, 2016).

[12] See Cortes-Ramos v. Sony Corp. of America, No. 14-1578 (D.P.R. 2015).

[13] See Hon. Gustavo A. Gelpi, El Poder Judicial Federal De Los Estados Confederados de America Durante El Periodo de la Guerra Civil (1861-1865), 46 Rev. D.P. 1 (2006).

[14] Gustavo A. Gelpi, Los Casos Insulares: Un Estudio Historio Comparativo de Puerto Rico, Hawaii Y Las Islas Filipinas, 45 Rev. Jur. U.I.P.R. 215 (August-May, 2010-2011).

[15] Gustavo A. Gelpi, Jr., The Maritime Law of Puerto Rico, 28 J. Mar. L. & Com. 647 (October 1997).

[16] Id. 

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