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.

37 Comments

  1. Absolutely brilliant selection. President Biden is keeping his promise to nominate young, progressive legal minds to the federal judiciary, despite my issues with a few of his older selections. I hope judge Rosemary S. Pooler retires by next year as I really wanted Dale Ho to be nominated for a circuit appeals court (2nd circuit or DC circuit) even though I know Senator Schumer has recommended him for the Southern district court. I am still holding out hope for Melissa Murray to be nominated for a judicial vacancy as well.

    Like

      • I would agree with you pre-Trump but I’m not sure the norms & standards apply any more as to an “upstate seat”. Especially with Senator Schumer looking over his shoulder with a possible AOC primary (I don’t think she will end up doing it but the threat is still there). But I am fine with Melissa Murray or Dale Ho getting the second DC Circuit seat albeit I doubt it will happen.

        Like

    • I absolutely agree. I even like the Toby J. Heytens nomination to the Fourth Circuit today as well. Hopefully we have gotten past the older (1960’s) nominations out of the way, at least for states with two Democrat senators in the District Courts.

      With the exception of Judge Gelpi for the First Circuit, all of the other Circuit Court appointments have been outstanding so I am hoping that trend continues as there is no Blue Slips issue to worry about.

      Like

      • Eh, Heytens is kind of the bare minimum for an Appeals Court seat. There’s no evidence that he’s not just a centrist Democrat. Also the 4th Circuit is ridiculously male and there are no judges from Northern Virginia. Biden should have rejected the recommendations from the Virginia senators and looked for a young progressive woman from the DC/NoVa area. There are no shortage of quality selections there.

        Rossman and Eunice Lee are ok, but in both of these states we could have done a lot better.

        Like

  2. I definitely agree Biden should have rejected senator Kaine & Warner’s recommendations for the 4th Circuit. Toby J. Heytens was the only one that truly had any chance to be nominated. Both of the other two recommendations, district court judges Arenda L. Wright Allen (Born 1960) & Mary Hannah Lauck (born 1963) had absolutely no chance of being nominated to a Court of Appeals with their ages. Their recommendation was basically Toby J. Heytens so The White House should have demanded two additional realistic possible nominees to chose from but probably didn’t want to waste more months with the 50/50 senate.

    Like

    • I agree & I am fine with that. Justice Clarence Thomas was confirmed 52-48 & has served on the highest court in the land since 1991. Republicans don’t care about the vote count or bi-partisan votes , they just care about getting conservatives confirmed. Democrats need to take the same mindset. Put up the most progressive, young nominees that senators Manchin & Sinema will vote for. I’m fine with a 51-50 confirmed liberal over a 60-40 confirmed centrist.

      Like

    • I hope every single appeals court nominee is this good. I really don’t care if they get zero GOP votes or even if Manchin torpedos a few nominees just to prove his independence (in fact I would nominate a couple nominees specifically so he can get his pound of flesh).

      Like

      • I completely agree, zero votes from the GOP is fine with me for a confirmed young, liberal nominee. I can’t say I would want a nominee so liberal that Senator Manchin would vote against them, torpedoing the nomination simply because of time. There is a 2 year window with the possibility of the GOP gaining a senate seat in the midterms next year. President Biden can get in 2 years, half the number of Trump appointed judges confirmed in 4 years if the senate moves swiftly & makes it a priority. We don’t have the time to waste on nominees too far to the left, particularly when you can probably just find another nominee that is just as liberal but more confirmable…

        I hope the senate judiciary committee starts to either have hearings with more then a handful of nominees or starts to have two hearings in a week. Also I hope senator Schumer starts to keep the senate in session on Friday’s for either votes or at least to eat up cloture time for judicial nominees so they can come right in on Monday for the confirmation vote. Finally Schumer needs to cancel at least two of the five week Summer vacation & work on confirming judges & other priorities while we have the majority.

        Like

      • Unfortunately, I think Manchin is going to vote against one or two nominees regardless. If he didn’t vote down Neera Tanden, it would have been someone else. Biden might as well put one or two nominees as a sacrificial lamb early, so he still have a chance to replace them before the midterms.

        Like

  3. The Judiciary Committee just conducted the hearing and Republicans aimed hostile questions at her. They repeatedly claimed that she’s a partisan hack who wouldn’t rule on the basis of law. This vote will go down to the wire. Joe Manchin and Kyrsten Sinema will decide the outcome.

    Like

    • I’m almost certain he will tank at least one to prove he is “independent”. I suspect that he may wait to do so on a controversial nominee who is white, perhaps a white male.

      I mean if he wanted to “show his independence” that he should just vote no on a few judges that Graham, Collins, or Murkowski vote yes.

      Like

      • Senator Manchin has been pretty consistent, albeit frustrating, at times. He usually gives deference to judicial nominees regardless of the president appointing them. He only voted against Justice Comey Barrett because of the proximity of the election. And remember Neera Tanden personally attacked him in the past tweets so I wouldn’t necessarily hold him tanking her nomination as an indication he will do so in the future, simply because the nominee is too liberal. Now if the nominee is too liberal as well as not very qualified, has something controversial in their past or bombs the judiciary committee hearing, then I can see him voting no.

        Like

      • Well Manchin voted no on multiple liberal Obama admin judicial nominees (e.g. Pamela Harris, Nina Pillard, both who also got zero GOP votes) as well as several Trump admin nominees (largely on the basis of their support for judicially overturning the ACA). So he is not giving automatic deference to judicial nominees.

        Like

  4. Hopefully Senator Manchin’s no votes on Obama’s judicial nominees were because he knew the Democrats had additional votes to spare & in a 50/50 senate he won’t do the same. I agree he may end up voting no on a couple nominees but I would say more so because something is found in their past versus them being too liberal.

    Like

    • Well what I am saying is that Manchin will make sure he votes against at least one or two Biden judicial nominees so he does not have a record of supporting every Biden judicial nominee.
      Whatever the reasoning may be.

      Although I strongly suspect the real reason why he voted against Harris and Pillard was that they supposedly had represented abortion rights groups (Two other anti-abortion Democrats, Mark Pryor and Joe Donnelly joined Manchin in opposition). Also perhaps they were too openly liberal, Judge Harris is well to the left of Justice Sotomayor, having written that she found the Warren Court too conservative.

      Given this history, I don’t know if he would tank someone like Melissa Murray. I think Senator Manchin was a little shaken by the criticism that his opposition to Tanden was due to race. But I think he would certainly vote against a white women’s rights attorney.

      Like

    • As much as I dislike Senator Lindsay Graham’s policies, particularly his back track on not confirming a Supreme Court justice in an election year even under a Republican president if he was the chairman of the judiciary committee, he has been pretty consistent on judicial nominees of both parties. He voted for both Obama supreme court justices.

      If Senator’s Manchin or Sinema vote against any Biden judicial nominees, look for them to do so on one that Senator Graham can’t support. I think Senator Graham knows Myrna Perez is extremely liberal but figures any replacement for her will be just as liberal form New York (Perhaps Melissa Murray or Dale Ho going from a district court nominee to appeals court nominee). Plus no way any Democrat will vote against the nominee from the home state of the majority leader so he would just be one of the 50 in a 51-50 vote. He is probably holding his no votes for nominees that his no vote would actually tank.

      Like

    • I’m actually happy Senator Graham sends his votes in by proxy (I have watched every nomination hearing & executive meeting this year & don’t believe he’s attended many if any at all). If he was present to hear the Republican’s last ditch efforts to tank the nominees, he might have been swayed on one or more.

      Like

      • So Lindsey Graham voted “Pass” for Eunice Lee and Tana Lin. Both of them were voted out of committee 11-10. I’m surprised he didn’t do the same for Myrna Perez.

        Many senators are voting by proxy now. I watched one of the Judiciary committee meetings on their webpage, and more than half of the Republicans voted by proxy.

        Like

  5. Eunice Lee was just confirmed 50 – 47 with senator Graham being one of the 3 senators that missed the vote.

    In the last executive meeting this week chairman Durbin said Senator Grassley agreed Florence Pan can get a voice vote. A couple seconds later one of the Republican senators (I couldn’t make out which one but I believe it was either Kennedy, Cotton, Cruz or Hawley) requested a vote. Then some of then proceeded to vote no. So if Florence Pan (An older, moderate, former Obama nominee that previously passed out of committee by a voice vote for a district court where no Republican senator would have a say so in the vetting process) can’t even get unanimous support, then we have a block of Republican’s that are Hell bent on opposing ANY nominee even if it was The Pope.

    Like

    • Cruz, Hawley, and Lee have basically voted against every nominee. Cotton might have as well.

      It seems like the GOP senators on the committee thought that O’Hearn was incompetent as she couldn’t answer basic legal questions. That’s why she got 10 no votes and is may get 40+ no votes from the GOP. Progressive Democrats should join the GOP to sink the nomination.

      Like

      • While I would list Christine O’Hearn as President Biden’s worst nominee so far, traditionally when a nominee comes from the president & senate in power of the same party to get defeated, it usually is because of a lighting rod type issue (Wade Boggs – Racial issues, Halil Suleyman Ozerden – Abortion ruling). I can’t remember a case in which a nominee in this category was blocked for the reasons I oppose O’Hearn (Not young or progressive enough for a state with two Democrat senators & her background of litigating against many of the types of people I want nominees defending).

        If progressives really tried to form a block to sink her nomination, look for Republicans to emulate when Republicans tried to block Trump’s 9th circuit nominee Mark J. Bennett & the GOP will probably form the votes to pull her over the top as they much know she is the best nominee they will get for this seat.

        The key going forward is for Democrats to do what was done in both Wade Boggs & Halil Suleyman Ozerden cases & let it be known they will oppose before the vote in the judiciary committee is taken. Had a handful of Democrats done that in this case, I think it would had been a greater chance of sinking the nomination versus now in which I would give it little chance if any at all.

        Like

  6. Actually Halil Ozerden is the example of right-wingers who did that. He was not a Democratic nominee, he was a GWB and the Trump tried to elevate him to the 5th Circuit in 2019. Many right-wing senators came out against him in committee and eventually he was withdrawn. Democrats were considering saving Ozerden under the logic that whomever came next would be worse (which is true), but there were only 3 or 4 Dems in committee inclined to vote him out.

    The much bigger fail from the Democrats’ perspective in 2005 with Harriet Miers. Conservatives were really down on her, but the Democrats should realized that Miers, who was 60 years old, was probably the best they were going to get from GWB plus a 55-45 GOP Senate. They should have told Bush straight out that they were willing to provide at least 30 votes for the nomination.

    Miers was thoroughly unqualified for the Supreme Court, no doubt. But she would have been considerably better than Alito on everything outside of religious right associated issues. I suspect that she would have swung hard against Trumpism and not retired under Trump. Furthermore it would have disillusioned the GOP base to feel betrayed again and I suspect would have reduced GOP voter turnout in 2006 and 2008.

    Like

    • Correct. I was giving one example from the past for Democrats ( Wade Boggs) & from Republicans ( Halil Ozerden) that the same party as the president sinked the nominee. In both of those cases there was a lightning rod issue (Racial & abortion respectively) that led to the party of the president rejecting his nominee.

      I personally think Christine O’Hearn is the worst Biden nominee so far but not for any lightning rod type issues. I just think we could do MUCH MUCH better & with six vacancies, we should at least have HALF of those six positioned for future appeals court elevation. So far only one of the four nominees could even remotely be considered & that’s more so because of his age plus history making nomination as the first Muslim, not so much because he is a progressive. You could literally put every Democrat lawyer’s name from the state of New Jersey in a hat & have a better then even chance of pulling a name out of that hat that would be better then Christine O’Hearn.

      Harriet Miers is a great example of what I’m talking about. Had the Democrats looked at the long term realities (Bush had just been re-elected so you couldn’t have run out the clock on him by rejecting Miers with him having over 3 years left in his second term), they probably should have pushed Bush nominating a home state, close personal ally versus him nominating another version of John Roberts (Alito ended up being worse sadly). If Republicans are smart (When it comes to the judiciary they are usually much smarter then Democrats), they would line up at least 15 votes for O’Hearn. There’s simply no way for them to get a better nominee for their part with Biden having 3 & a half years left in his term preventing them from running the clock out.

      Like

      • The one difference is that is just for a district court rather than the Supreme Court or even the circuit court, so the price isn’t so high. The GOP may think that sinking O’Hearn helps the talking points that Democrats nominate supposedly incompetent/unqualified judges who don’t know basic things about the law. Even if that means getting a handful district judges who are considerably more liberal.

        My view is that Democrats should saved both Miers and Ozerden since there was no way you were getting better judges and their was little political upside from handing Bush or Trump this defeat. But I’m not sure the GOP thinks that way on the political ramifications. As such I would still expect 40+ GOP no votes on O’Hearn. Wouldn’t be totally shocked if only Graham, Collins, and Murkowski vote yes.

        Like

  7. Pingback: Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Northeast | The Vetting Room

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