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.

24 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.

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      • 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.

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    • 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.

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      • 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.

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  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.

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    • 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.

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    • 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).

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      • 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.

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      • 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.

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  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.

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    • 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.

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      • 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.

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      • 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.

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  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.

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    • 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.

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