Month: July 2021

Armando Bonilla – Nominee to the U.S. Court of Federal Claims

Despite having six appointees confirmed to the court in 2020 alone, the U.S. Court of Federal Claims (CFC) has been battling a long-term vacancy crisis, with four seats on the court vacant. In an effort to fill them, President Biden has renominated a stalled nominee from the Obama Administration: Armando Bonilla.

Background

Born in 1967 in New York City, Armando Omar Bonilla received his B.A. from West Virginia University in 1989 and his J.D. from Seton Hall University School of Law in 1992. After graduation, Bonilla clerked for Judge Garrett Brown for the U.S. District Court for the District of New Jersey.

After his clerkship, Bonilla joined the Civil Division of the U.S. Department of Justice as a trial attorney. In 2001, he moved to the Criminal Division, starting in the Asset Forfeiture and Money Laundering Section and moving to the Public Integrity Section. In 2010, Bonilla joined the Deputy Attorney General’s Office.

Since 2018, Bonilla has served as Vice President of Ethics and Investigations at Capital One.

History of the Seat

Bonilla has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government. Judges to the CFC are appointed for 15-year terms, and can be reappointed. The seat Bonilla is nominated for opened up on October 22, 2013, with the retirement of Judge Edward Damich. On May 21, 2014, Bonilla was nominated for this seat by President Obama. Bonilla and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously. However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges. Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.

On June 24, 2019, the Trump Administration nominated Daniel Zachary Epstein, a Special Assistant to the President, to fill this seat. However, Epstein’s nomination stalled in the Senate and he was never confirmed.

Bonilla was subsequently renominated to fill this vacancy on July 13, 2021.

Legal Experience

Bonilla has spent virtually his entire legal career working in the Department of Justice, where he worked on civil, criminal, and appellate litigation.

Notably, on the civil side, Bonilla represented the United States in defending against a lawsuit by the architects hired to design the Museum of the American Indian, alleging that the contract was wrongfully terminated. See GBQC Architects v. United States, No. 98-399C (Fed. Cl.) (Judge Miller). Bonilla also defended the Department of Veterans Affairs decision not to permit the display of a large Confederate flag at a national cemetery against a First Amendment challenge. See Griffin v. Secretary of Veterans’ Affairs, 288 F.3d 1309 (Fed. Cir.).

Among the criminal cases he handled, Bonilla prosecuted Katherine Stump, a New Orleans Sewarage and Water board member for conspiracy and wire fraud for accepting cash and gifts in exchange for promoting the interests of a Houston sewage company. See Pam Easton, New Orleans Water Board Chair, Contractor Sentenced to Prison for Wire Fraud, Conspiracy, A.P. State & Local Wire, Sept. 29, 2003.

Overall Assessment

The fact that Bonilla’s last appointment to the Court of Federal Claims stalled speaks more to the Senate’s intransigence on judicial nominees late in the Obama Administration than it does to Bonilla. With a Senate majority more willing to consider CFC nominees, Bonilla should be confirmed before the end of the year.

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Carolyn Lerner – Nominee to the U.S. Court of Federal Claims

Carolyn Lerner, who currently serves as Chief Mediator for the Washington D.C. federal court system, has built up a significant portfolio of government service and litigation experience, including six years as the top whistleblower advocate in the nation. She has now been nominated for a seat on the U.S. Court of Federal Claims.

Background

Born on January 13, 1965 in Detroit, Carolyn N. Lerner graduated from the University of Michigan in 1986 with a Bachelor of General Studies, and earned her J.D. from the New York University School of Law in 1989. Upon graduating from law school, she clerked for Judge Julian Cook of the U.S. District Court for the Eastern District of Michigan before joining Kator, Scott, Heller & Huron as a litigation attorney. In 1996, Lerner helped found the civil rights firm Heller, Huron, Chertkof, Lerner, Simon & Salzman. In 2011, Lerner was confirmed to head the Office of Special Counsel, where served until 2017. Since 2017, Lerner has been the Chief Mediator for the U.S. Courts of the D.C. Circuit.

History of the seat

Lerner has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government. Judges to the CFC are appointed for 15-year terms, and can be reappointed. The seat Lerner was nominated for opened up when Judge Margaret Sweeney’s term expired on October 24, 2020. The Trump Administration nominated Stephen Kubiatowski to fill this vacancy, but his nomination was not confirmed before the end of the Administration.

Legal Career

For the first twenty years of her legal career, Lerner primarily practiced employment and whistleblower protection law. For example, she represented Larry Bryant, a civilian employee in the Department of the Army who was blocked from publishing letters supportive of allowing homosexuals to serve openly in the military. See Bryant v. Secretary of the Army, 862 F. Supp. 574 (D.D.C. 1994). She also represented Melodi Navab-Safavi, a contractor who was terminated after participating in a music video protesting the Iraq War. Navab-Safavi v. Broad. Bd., 650 F. Supp. 2d 40 (D.D.C. 2009) (affirmed by 637 F.3d 311 (D.C. Cir. 2011)).

From 2011 to 2017, Lerner headed the United States Office of Special Counsel after being unanimously confirmed by the Senate for the role. Among other roles, Lerner served as the primary advocate for government whistleblowers, working to ensure that they were safe from retaliation and investigating allegations of misconduct.

Lerner’s tenure as Special Counsel was met with widespread support for her aggressive advocacy on behalf of whistleblowers. See, e.g., Press Release, Office of Rep. Rod Blum, Blum Leads Effort to Retain Special Counsel Lerner (Feb. 10, 2017). See also Press Release, Washington Accountability Project Organization, Trump Withdraws Reappointment Nomination of Popular Whistleblower Advocate (Mar. 24, 2017). For example, in 2012, Lerner issued a directive finding that the FDA broke the law in monitoring the personal emails of whistleblowers, and urging agencies to review their electronic surveillance practices. See Johnathan Rickman, Lawyers for FDA Whistleblowers Tie Surveillance Guidance to Email Flap, Washington Drug Letter, June 25, 2012.

One of Lerner’s most prominent investigations involved alleged abuses of overtime at the Department of Homeland Security. See Jennifer Scholtes, DHS Announces Suspension of Overtime Privileges Ahead of Hearing, Congressional Quarterly Homeland Security, Jan. 28, 2014. Lerner also investigated allegations that the remains of war dead were mishandled at Dover Air Force Base. See Mackenzie Weinger, Probe: War Dead Mishandled at Dover, Politico, Nov. 8, 2011.

As Special Counsel, Lerner was also charged with enforcing the Hatch Act, which bars political activity by federal employees while on duty. In that role, Lerner ruled, in response to complaints, that the White House Office of Political Strategy and Outreach did not appear to have violated the Hatch Act. See Lauren French, W.H. Cleared of Hatch Act Violations, Politico, July 24, 2014. In contrast, Lerner found that HUD Secretary Julian Castro violated the Hatch Act by promoting Hillary Clinton’s candidacy during a TV interview. Joan Lowy, Gov’t Watchdog: HUD Secretary Violates Hatch Act, A.P. State & Local, July 18, 2016.

Speeches and Writings

Throughout her career, Lerner has commented on developments in the law. For example, in the 1990s, she encouraged companies to develop usage guidelines for company emails, noting that such emails were frequently relevant to employment litigation. See Loretta Prencipe, E-mail: The Litigation Time Bomb; Your E-Mail Can Become Evidence, So Craft a Usage Policy That You Can Stand Behind, Network World, Apr. 8, 1997.

As Special Counsel, Lerner also spoke out in favor of reform of the Hatch Act, arguing that the law is difficult to interpret and apply to modern technologies. See Josh Gerstein, Hatch Act Enforcer Seeks Reforms, Politico, Oct. 6, 2011. In a New York Times op-ed, Lerner urged Congress to rewrite the law to allow candidates tied to negligence amounts of federal funds to run for state and local office. See Carolyn Lerner, A Law Misused for Political Ends, N.Y. Times, Oct. 31, 2011. She also urged Congress to allow more flexibilities in penalties offered under the Act, noting that the standard of termination often leads to agencies refusing to report violations in an effort to avoid the harsh penalty. See Gerstein.

Overall Assessment

The last time Lerner came before the Senate, she received bipartisan support on her way to a smooth confirmation. Given the widespread accolades she has received for her service in the Office of the Special Counsel and extensive experience with the law, it is likely that she will be confirmed the Court of Federal Claims with similar bipartisan support.

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Judge Michael Nachmanoff – Nominee to the U.S. District Court for the Eastern District of Virginia

A former federal defender and U.S. Magistrate Judge, Judge Michael Nachminoff is President Biden’s latest nominee to the U.S. District Court for the Eastern District of Virginia.

Background

A native of Arlington, Virginia Michael Stefan Nachmanoff received a B.A. from Wesleyan University in 1991 and then got a J.D. from the University of Virginia Law School in 1995.

After graduation, Nachmanoff clerked for Judge Leonie Brinkema on the U.S. District Court for the Eastern District of Virginia and then joined the firm of Cohen, Gettings & Dunham, P.C. as an associate. In 2002, Nachmanoff joined the Federal Defender’s Office for the Eastern District of Virginia and became Chief Public Defender in 2007.

In 2014, Nachmanoff was appointed as a U.S. Magistrate Judge in the Alexandria Division of the U.S. District Court for the Eastern District of Virginia. He continues to serve there today.

History of the Seat

Nachmanoff has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia. This seat opened on June 1, 2021, when Judge Anthony Trenga moved to senior status. Nachmanoff was recommended, along with federal prosecutor Patricia Giles, by Virginia Senators Mark Warner and Tim Kaine to White House for an earlier vacancy left by Judge Liam O’Grady. While Giles was nominated for that seat, Nachmanoff was tapped for the newer vacancy.

Legal Experience

While Nachmanoff did spend a few years in private practice early in his career, the bulk of his practice has been as a federal defender, where he represented indigent defendants in some of the most prominent prosecutions of the 21st century. Notably, Nachmanoff was part of the legal team for Zacarias Moussaoui, an Al Qaeda member charged with conspiracy to kill U.S. citizens. See Neil A. Lewis, Moussaoui Tells Court of Plan to Hijack 5th Jet; Surprise Testimony Seen Likely to Help Death Penalty Case Against Him, N.Y. Times, Mar. 28, 2006.

Nachmanoff also represented Zachary Chesser, a Fairfax man who was sentenced to 25 years for attempting to provide material support to a terrorist group and for threatening the lives of writers on South Park. See Warren Richey, American Jihadi Gets 25 Years for ‘South Park’ and Facebook Death Threats; Zachary Chesser of Virginia, Who Converted to a Militant Form of Islam, Had Pleaded Guilty to Three Charges, Including Threatening the Lives of ‘South Park’ Writers and Participants in ‘Everybody Draw Mohammed Day.’ Christian Science Monitor, Feb. 24, 2011.

Most notably, Nachmanoff argued before the U.S. Supreme Court in favor of a below-guidelines sentence imposed by Judge Raymond Jackson that the Fourth Circuit found was unreasonable. In a 7-2 opinion by Justice Ruth Bader Ginsburg, the Supreme Court agreed with Nachmanoff that the sentence was reasonable under the law. See Kimbrough v. United States, 552 U.S. 85 (2007).

Jurisprudence

Nachmanoff has served as a U.S. Magistrate Judge since 2015. In this capacity, Nachmanoff oversees discovery, adjudicates cases where jurisdiction is consented to, and presides over settlement. He also oversees pretrial detention, and granted bond in the amount of $1 million to Lev Parnas and Igor Furman, clients of Rudy Giuliani, charged with concealing foreign donations. Geoff Earle, Rudy Giuliani’s Ukraine Fixers Are Arrested Trying to Flee the U.S. Hours After Lunching With Him And Are Charged With Funneling $350K From Mystery Russian Businessman to Trump PAC – Then Pushing to Have Ambassador to Kiev Fired, MailOnline, Oct. 10, 2019.

Among other significant matters over which he presided, Nachmanoff sharply criticized Volkswagen, as well as counsel for a class of plaintiffs, for failing to resolve discovery issues expeditiously and for letting the matter sit on the court docket for two years without resolution. See Christopher Cole, Discovery Talk ‘Abysmally Failed’ in VW Suit, Judge Says, Law 360, June 28, 2021. Nachmanoff encouraged the parties to seek settlement, noting “This litigation has gone on too long and the only people who have benefited are the lawyers, if they’re collecting their fees.” See Nadia Dried, Va. Court ‘Shocked’ By Sluggish VW Pre-Production Car Fight, Law 360, Feb. 26, 2021 (quoting Judge Michael Nachmanoff). Nachmanoff also sanctioned the Fairfax County School Board for failing to preserve documents relevant to a lawsuit against them. See Matthew Barakat, Judge Sanctions School System in Sexual Misconduct Lawsuit, A.P., June 29, 2019.

Statements and Writings

In addition to his work on cases, Nachmanoff has both written and spoken on a number of issues in criminal law and procedure. For example, in 2012, Nachmanoff responded to a press release from the Transactional Records Access Clearinghouse (TRAC) noting wide sentencing disparities, criticizing the methodologies used by TRAC. Michael Nachminoff, TRAC Analysis of Variations in Sentencing Misses the Mark, 25 Fed. Sent. R. 18 (Oct. 2012). Similarly, Nachmanoff has spoken out against budget cuts to federal defender offices, see Ron Nixon, Public Defenders are Tightening Belts Because of Steep Federal Budget Cuts, N.Y. Times, Aug. 24, 2013, and against the staggering of harsh penalties by prosecutors to push defendants into plea deals. See Erik Eckholm, Prosecutors Draw Fire For Sentences Called Harsh, N.Y. Times, Dec. 6, 2013.

Nachmanoff has also testified before Congress on multiple occasions. In 2013, Nachmanoff spoke on the impact of sequestration related budget cuts before the Senate Judiciary Committee Subcommittee on Bankruptcy and the Courts. Similarly, in 2008, Nachmanoff testified in favor of efforts to reduce sentencing disparities between powder and crack cocaine before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security.

Overall Assessment

Nachmanoff comes to the bench with extensive experience with both civil and criminal litigation, as well as a long history of advocating for the rights of the indigent. While his testimony, media statements, and articles will be scrutinized closely, ultimately, Nachmanoff is likely to get the support for confirmation.

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Toby Heytens – Nominee to the U.S. Court of Appeals for the Fourth Circuit

Virginia Solicitor General Toby Heytens, nominated for the Fourth Circuit, is, in many ways, a liberal counterpart to President Trump’s most notable appellate nominees: young; impeccably credentialed; and politically active.

Background

Born on December 24, 1975, Toby Jay Heytens received a B.A. from Macalester College in 1997, where he was on the mock trial team, Seth Hattena, Mock Trial Judges College Students, Telegraph Herald, Dec. 2, 1995, and a J.D. from the University of Virginia Law School in 2000. After graduating, Heytens clerked for Chief Judge Edward Becker on the U.S. Court of Appeals for the Thirs Circuit and then for Justice Ruth Bader Ginsburg on the U.S. Supreme Court (his clerk year on the court included NYU Dean Trevor Morrison, SDNY Judge Jesse Furman, and 8th Cir. Judge David Stras).

After his clerkship, Heytens joined the D.C. office of O’Melveny & Myers as an Associate. Heytens left to become a professor at Cornell Law School, and then, in 2006, at the University of Virginia Law School, where he stayed until 2018 (notwithstanding a three year leave of absence to work in the U.S. Solicitor General’s Office). In 2018, Attorney General Mark Herring named Heytens to be Virginia’s Solicitor General, and Heytens has served in that role since.

History of the Seat

Heytens has been nominated to replace U.S. Circuit Judge Barbara Milano Keenan, who will be moving to senior status on August 31, 2021. Heytens was one of three candidates recommended by Virginia Senators Mark Warner and Tim Kaine for the vacancy on May 25, 2021. Frank Green, Senators from Virginia Recommend Three Candidates to Fill Federal Appeals Court Vacancy, Richmond Times-Dispatch, May 25, 2021. Heytens was announced on June 30, 2021.

Legal Experience

After his clerkships, Heytens started his career at O’Melveny & Myers, where, appointed under the Criminal Justice Act, Heytens represented Richard Wayne Simons, convicted of burglary in Maryland. See Peter Geier, New Trial Ordered for Burglary, Baltimore Daily Record, Nov. 2, 2004. Heytens was able to get the Court of Special Appeals to reverse Simons’ conviction, arguing that the prosecutor’s failure to disclose an inculpatory witness statement required suppression of the identification. See id.

While Heytens has spent most of his career since O’Melveny in academia, he did have two notable periods of litigation: from 2007 to 2010 in the U.S. Solicitor General’s Office; and since 2018 as Virginia Solicitor General.

During the former period, Heytens argued six cases before the U.S. Supreme Court:

Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008) – The Age Discrimination in Employment Act (“ADEA”) requires a plaintiff to file a “charge” with the Equal Employment Opportunity Commission (“EEOC”) within 60 days of the discriminatory act. This case discussed whether filing an intake questionnaire within the 60 days qualifies as filing a charge even where the agency fails to file a formal “charge” within the time limit. Heytens argued as amicus that the filing of an intake questionnaire did not qualify as a charge under the law. The Supreme Court disagreed in a 7-2 ruling by Justice Anthony Kennedy and held that the plaintiffs had met the requirement to file a charge.

Flores-Figueroa v. United States, 556 U.S. 646 (2009) – The petitioner in this case was an illegal immigrant who had used a social security number belonging to another person and was convicted of two counts of aggravated identity theft. The question raised was whether the government needed to prove that the petitioner was aware that the social security number he used belonged to another person for the conviction. Heytens argued that the government did not need to prove this element but the Supreme Court held unanimously, in an opinion by Justice Stephen Breyer, that it did.

Arizona v. Johnson, 555 U.S. 323 (2009) – The question was whether a police officer could, without probable cause, frisk a suspect during a traffic stop in the middle of a conversation about a topic unrelated to the stop. Heytens argued as amicus that probable cause was not needed in that scenario. The Supreme Court, in a unanimous opinion by Justice Ruth Bader Ginsburg, agreed that questions about unrelated topics during the temporary detention of a traffic stop did not transform the stop into a consensual encounter and that an officer could search an individual for weapons without probable cause.

United Student Aid Funds Inc. v. Espinosa, 559 U.S. 260 (2010) – In this case, Heytens argued as amicus in favor of a lender, arguing that the lender’s due process rights were violated when a borrower was permitted in discharging $4500 in loan debt in a bankruptcy proceeding without a showing of “undue hardship.” The Supreme Court, in a unanimous opinion by Justice Clarence Thomas, held that the failure to find “undue hardship” was mere legal error and did not rise to a due process violation.

Maryland v. Shatzer, 559 U.S. 98 (2010) – This case involved an inmate who had been questioned in 2003 regarding allegations of sexual abuse of his child, and had invoked his Miranda rights at the time. The inmate was subsequently questioned in 2006 by a different detective who was unaware of the previous invocation. The question before the Supreme Court was whether the statements made in the 2006 confession should be suppressed due to the 2003 invocation. Heytens argued as amicus that they should not be suppressed and the Supreme Court, in a unanimous opinion by Justice Antonin Scalia, agreed.

Dolan v. United States, 560 U.S. 605 (2010) – The question in this case was whether the 90 day time limit to award restitution under the Mandatory Victims Restitution Act was jurisdictional, with Heytens arguing that the district court could still award restitution outside the limits. The Supreme Court agreed in a 5-4 ruling by Justice Stephen Breyer.

During his time in academia, Heytens managed the University of Virginia Law School Supreme Court Litigation Clinic and also argued one case before the U.S. Supreme Court:

City of Hays, Kansas v. Vogt, 584 U.S. ___ (2018) – Heytens represented the City of Hays, Kansas, in arguing that the Fifth Amendment rights of a former police officer were not violated when compelled statements were used during a probable cause hearing. The Supreme Court did not decide the case, instead dismissing the petition for certiorari as improvidently granted after oral argument.

As Virginia Solicitor General, Heytens serves as the Commonwealth’s top appellate lawyer and has argued three more cases before the U.S. Supreme Court:

Virginia Uranium, Inc. v. Warren, 587 U.S. ___ (2018) – In this suit, Heytens defended Virginia’s ban on uranium mining against a pre-emption challenge under the Atomic Energy Act. The Supreme Court ultimately upheld the Virginia ban in a 6-3 decision, with Justice Neil Gorsuch writing for a plurality of three justices in the controlling opinion.

Virginia House of Delegates v. Bethune-Hill, 587 U.S. ___ (2019) – This case arose as a challenge to “racial gerrymandering” in the redistricting of state house districts in Virginia. After a lower court panel struck down 11 districts, the Solicitor General’s Office declined to appeal, and the Virginia House of Delegates (then controlled by Republicans) filed an appeal. The Supreme Court dismissed the case in a 5-4 opinion by Justice Ruth Bader Ginsburg on the basis that the Virginia House of Delegates lacked standing to appeal.

Mathena v. Malvo – In this case, Heytens sought to reinstate sentences of life imprisonment against D.C. sniper Lee Malvo, vacated by a lower court due to prior Supreme Court precedent regarding life in prison for minors. After argument, the Supreme Court dismissed the case without decision due to an intervening change in law in Virginia.

In addition to his work before the U.S. Supreme Court, Heytens has defended Virginia’s coronavirus restrictions against legal challenges. See, e.g., Denise Lavoie, Virginia Defends Coronavirus Restrictions in Church Lawsuit, A.P. Int’l, May 7, 2020. In other notable matters, Heytens successfully argued before the Virginia Supreme Court that the risk of violence justified a weapons bar on a gun rights rally, see Denise Lavoie, Virginia’s Highest Court Upholds Weapons Ban at Gun Rally, A.P., Jan. 17, 2020, and defended the legality of removal of a Robert E. Lee statue from Richmond. See Adam Klasfeld, ‘A Matter of Racial Equality’: Virginia’s Solicitor General Urges Top Court to Affirm Ruling Allowing Removal of Robert E. Lee Statue, Newstex Blogs, June 8, 2021.

Writings

Having been an academic for most of his career, Heytens has written a number of articles discussing developments in the law. Some of his writing is summarized below:

The Constitutionality of Blaine Amendments

As a law student in 2000, Heytens argued in a note that Blaine Amendments, amendments in state constitutions that bar public money from being spent to benefit religious institutions, are constitutionally suspect under the Equal Protection Clause as they discriminate based on religion. See Toby J. Heytens, School Choice and State Constitutions, 86 Va. L. Rev. 117, 140 (February 2000). Heytens details the anti-Catholic animus underlying many of the amendments and suggests that any effort by states to restrict public money in a voucher program from going to religious schools would likely run afoul of the Equal Protection Clause. See id. at 153-54.

“Transitional Moments”

Heytens has been particularly active in writing about the issues and problems that arise in applying changes in the law. In 2006, Heytens wrote on the application of changes in criminal law and precedent on cases that are pending during the “transition.” Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L.J. 922 (March 2006). Heytens criticizes traditional views of “forfeiture” in the criminal context as unduly restrictive, arguing that we shouldn’t penalize criminal defendants from making legal arguments that were not viable at the time that the defendant was initially convicted. See id. at 942-43. In 2012, Heytens further discussed retroactivity in the law and potential remedies when the law changes. Toby J. Heytens, The Framework(s) of Legal Change, 97 Cornell L. Rev. 595 (March 2012).

Reassignment on Remand

In 2014, Heytens authored an article discussing the rare practice of appellate courts reassigning decisions to different district court judges after reversing the original opinions. Toby J. Heytens, Reassignment, 66 Stan. L. Rev. 1 (Jan. 2014). Heytens suggests that the practice be more clearly delineated through local rules that are broadly applicable to reassignment decisions rather than having the decisions be made on a case-by-case basis. See id. at 54.

Political Activity

Heytens has an extensive record of political contributions, almost exclusively to Democrats. Recipients of Heytens’ contributions included the Presidential campaigns of Barack Obama, Hillary Clinton, and Joe Biden, as well as Gov. Ralph Northam, A.G. Mark Herring, and Rep. Abigail Spanberger.

Overall Assessment

With excellent academic credentials, and a record of strong appellate advocacy, Heytens can be deemed well-qualified for a seat on the Fourth Circuit. Nonetheless, he may draw opposition based on his academic writings, as well as his litigation history (including his defense of the Lee statue removal and the firearms ban) and his political contributions.

However, barring any unexpected developments, Heytens will likely be confirmed in due course. On the bench, Heytens is expected to pad up the Fourth Circuit’s aging center-left majority.

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Patricia Giles – Nominee to the U.S. District Court for the Eastern District of Virginia

In 2017, Virginia Senators Mark Warner and Tim Kaine recommended federal prosecutor Patricia Giles to be appointed to the U.S. District Court for the Eastern District of Virginia. However, she was not nominated. In 2018, they recommended her again. She was, again, not nominated. As such, when Giles was recommended for a judgeship in 2021, one wondered if Giles would be third time unlucky. As it happens, Giles’ co-recommendee, Judge Michael Nachmanoff, was nominated to the Eastern District. However, Giles was also picked for the court and looks poised to be confirmed with bipartisan support.

Background

Patricia Tolliver Giles received a B.A. from the University of Virginia in 1995 and then got a J.D. from University of Virginia Law School in 1998.

After graduation, Giles clerked for U.S. District Judge Gerald Bruce Lee on the U.S. District Court for the Eastern District of Virginia. She then spent three years as an Associate at Cooley Godward LLP before becoming a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of Virginia. Giles is still with the office.

History of the Seat

Giles has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia. This seat opened on May 1, 2020, when Judge Liam O’Grady moved to senior status. No nomination was made by the Trump Administration to fill this vacancy, and in May 2021, Giles was recommended by Virginia Senators to fill the vacancy, alongside U.S. Magistrate Judge Michael Nachmanoff. Giles was nominated on June 30, 2021.

Legal Experience

Setting aside three years at Cooley, Giles has spent virtually her entire legal career as a federal prosecutor, working on a number of prominent cases.

In particular, Giles helped lead many prosecutions of figures in the MS-13 gang. For example, Giles prosecuted four MS-13 members charged with stabbing 17-year-old Brenda Paz to death. Paul Bradley, ‘I Did Not Kill Ms. Paz’ Eldest of Gang Members on Trial in Stabbing Death Testifies He Played No Role, Richmond Times Dispatch, May 5, 2005. Giles also prosecuted MS-13 member Yimmy Pineda-Penado of Alexandria, securing a 210 month sentence against him for child sex trafficking. MS-13 Clique Leader Sentenced to 210 Months for Child Sex Trafficking, U.S. Fed News, Dec. 14, 2012.

In other matters she worked on, Giles prosecuted Keith Reed, Stanley Winston, Anthony Cannon, and Tobias Dyer for a string of robberies in Northern Virginia. The defendants challenged their convictions on appeal, arguing that the government’s decision to offer cell phone maps at trial that attached their names as labels to individual cell phones violated their Confrontation Clause rights. The Fourth Circuit, however, upheld the convictions, finding any error harmless. United States v. Reed, 780 F.3d 260 (4th Cir. 2014).

Overall Assessment

President Biden’s judicial nominations team has attracted attention (and some criticism) for being strongly focused on appointing public defenders to the bench. As such, the appointment of Giles, a longtime federal prosecutor, can be considered a bit more “traditional.” This factor, combined with Giles’ experience with the courtroom and lack of a controversial background, should ensure strong bipartisan support for her nomination.

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Judge Jane Beckering – Nominee to the U.S. District Court for the Western District of Michigan

In 2007, Grand Rapids attorney Jane Beckering was named to the Michigan Court of Appeals, replacing Judge Janet Neff, who was elevated to the federal bench. This year, Beckering has, once again, been tapped to replace Neff: this time on the Western District of Michigan.

Background

56-year-old Beckering was born into a family of Michigan lawyers, with her father, grandfather, and great uncle all practicing. See James Prichard, Lawyering Runs in Beckering’s Family, A.P., Sept. 27, 2006. Beckering received her Bachelor’s degree from the University of Michigan in 1987 and her J.D. from the University of Wisconsin Law School in 1990. After graduation, Beckering spent two years at McDermott, Will & Emery LLP in Chicago before moving to Grand Rapids to found Buchanan & Beckering PLC with her brother. See id.

In 2007, Beckering was appointed to the Michigan Court of Appeals by Governor Jennifer Granholm to fill the vacancy left by Judge Janet Neff’s elevation to the federal bench. Beckering still serves on the court, having won re-election unopposed in 2008, 2012, and 2018.

History of the Seat

Beckering has been nominated for a seat on the U.S. District Court for the Western District of Michigan. This seat opened on March 1, 2021, when Judge Janet Neff moved to senior status.

Legal Career

Beckering worked in private practice for approximately seventeen years before being appointed to the bench, the vast majority of it at the firm of Buchanan & Beckering PLC in Grand Rapids. While working in private practice, Beckering specialized in medical malpractice work representing both plaintiffs and defendants. See James Prichard, Lawyering Runs in Beckering’s Family, A.P., Sept. 27, 2006.

In addition, Beckering also worked as a mediator for the Kent County Circuit Court and was active with the Michigan Trial Lawyers Association.

Political Activity

In 2006, Beckering was nominated by the Michigan Democratic Party to be a candidate for the Michigan Supreme Court. See Kathy Barks Hoffman, Democrats Choose Williams for AG, Sabaugh for Secretary of State, A.P., Aug. 27, 2006. Beckering lost the election, however, coming in third behind incumbents Michael Cavanagh and Maura Corrigan.

Jurisprudence

Beckering has served on the Michigan Court of Appeals since 2007, issuing rulings and opinions in hundreds of cases since then. Some of her noteworthy decisions, opinions, and dissents are summarized below.

Criminal Law

In her rulings on criminal law, Beckering has generally interpreted statutes narrowly, holding ambiguities against the government. For example, in 2010, Beckering held that the Michigan Sex Offender Registry Act did not require an individual who has homeless to register with local police as they lacked a habitual residence. See Todd A. Heywood, Appeals Court Says Homeless Sex Offenders Not Obligated to Register, Michigan Messenger, Feb. 5, 2010.

Notably, in 2012, Beckering wrote for the court in overturning Jimmie Nelson’s murder conviction for killing Cherita Thomas in 1980, ruling that the evidence was insufficient for the conviction. Mich. Court Strikes Murder Conviction in 1980 Case, A.P. State & Local Wire, Aug. 24, 2012. Earlier this year, Beckering joined a unanimous decision making a juvenile prisoner who had spent nearly 50 years in custody eligible for release. Ed White, Juvenile Lifer Locked Up For Nearly 50 Years Could Go Free, A.P. State & Local, Jan. 22, 2021.

Civil Rights

In civil rights cases, Beckering has generally interpreted protections broadly. For example, Beckering wrote for the court in holding that a northern Michigan bar could be sued for failing to call the police when a black patron was attacked based on his race. Ed White, Bar Can Be Sued For Attack on Black Man, Michigan Court Says, A.P. State & Local, Apr. 23, 2021.

In one of her most notable decisions, Beckering partially dissented from a panel decision throwing out a lawsuit brought by prisoners suffering from sexual violence and abuse in the prison system. See Dana Leibelson, Court Decides Civil Rights Protections Don’t Apply to Kids in Prison, Huffington Post, Aug. 28, 2015, https://www.huffpost.com/entry/civil-rights-kids-prison_n_55e0a663e4b0b7a96338df8c. In her dissent, Beckering argued that the law governing the dispute, a 1999 statute excluding prisoners from civil rights protections, was unconstitutional, stating:

“The Legislature could no sooner enact an amendment [excluding] prisoners from the scope of the statute as it could…blue-eyed individuals, African-Americans, or anyone named, ‘Steve.’”

In contrast, in 2014, Beckering joined a unanimous decision throwing out damages awarded to a black state employee who had a 5-foot tall stuffed gorilla placed in her cubicle, finding that the 3-week long presence of the animal was not sufficient to prove a hostile work environment. Ed White, Black Worker Loses Appeal Over Stuffed Gorilla, A.P. State & Local, June 27, 2014.

Civil Liability

Beckering’s rulings in civil cases have generally read both liability and damages expansively. In 2011, Beckering ruled that a Michigan homeowner whose house was destroyed after 400 gallons of heating oil were mistakenly pumped into it could recover $100,000 in non-economic damages for the loss, finding that a plaintiff could suffer mental anguish from losing their home. See Ed White, Court Backs Verdict in Home Lost to Oil Mess, A.P. State & Local Wire, Aug. 26, 2011. In another case, Beckering joined a 2-1 decision held that a parking lane falls under the jurisdiction of the Michigan Department of Transportation and that the agency could be sued for injuries in such lanes. Woman With Broken Ankle on M-22 Can Sue MDOT, A.P. State & Local Wire, Dec. 24, 2012.

Administrative Law

In her time on the Court of Appeals, Beckering has had the opportunity to opine on a number of agency decisions and regulations. In 2011, Beckering joined a panel decision upholding a Michigan Department of Environmental Quality regulation governing the amount of manure that factory farms could put in waterways. Appeals Court Upholds State ‘Factory Farms’ Rule, A.P. State & Local Wire, Mar. 30, 2011. In contrast, in 2012, Beckering overturned a $37 million rate increase imposed by the Michigan Public Service Commission, finding that the agency failed to provide evidence to support the increase. See Dan Testa, Mich. Appeals Court Rules Against Detroit Edison Rate Hike for Smart Meters, SNL Energy Finance Daily, Apr. 13, 2012.

In a notable ruling with Second Amendment implications, Beckering joined a 2-1 ruling holding that a public library exceeded its authority in barring patrons from carrying weapons on the premises. See Michael Kelley, No Guns in the Library: Curbing the Second Amendment in the Stacks, Library Journal, Jan. 1, 2013.

Statements

While a candidate for the Michigan Supreme Court, Beckering detailed her judicial philosophy, stating that the role of the courts are to remain “nonpartisan” and to “protect the minority against the majority when they have overstepped their bounds on civil rights, on constitutional rights, on that which the law is there to protect them. See James Prichard, Lawyering Runs in Beckering’s Family, A.P., Sept. 27, 2006 (quoting Jane Beckering). Beckering also criticized the conservative majority of the Michigan Supreme Court for “taking a very literal interpretation of the language” of statutes and stated that she would “apply a commonsense interpretation of the statute or the law which we are interpreting and have it make sense.” See id.

Overall Assessment

Having three decades of legal experience under her belt, Beckering would come to the federal bench well-prepared for its rigors. The flip side of this experience, however, is that Beckering has a long record to be parsed by senators. Expect Beckering to get questions about the judicial philosophy she expressed during her Supreme Court run, as well as her many decisions on the Court of Appeals. In the end, Beckering is likely to attract conservative opposition, but will likely still be confirmed to the federal bench.

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Judge Shalina Kumar – Nominee to the U.S. District Court for the Eastern District of Michigan

Chief Judge Shalina Kumar from the Oakland County Circuit Court, is President Biden’s first nominee to the Eastern District of Michigan. If confirmed, Kumar would be the first Indian-American on the court.

Background

Shalina Deborah Kumar received a B.A. from the University of Michigan in 1993 and her J.D. from the University of Detroit Mercy School of Law in 1996.

After graduation, Kumar joined the office of Sommers, Schwartz, Silver & Schwartz PC as an associate. In 2004, Kumar moved to the firm of Weiner & Cox PLC. In 2007, Kumar was appointed to the Oakland County Sixth Circuit Court by Governor Jennifer Granholm. Kumar has served on the court ever since, including serving as Chief Judge since 2018.

History of the Seat

Kumar has been nominated for a seat on the U.S. District Court for the Eastern District of Michigan. This seat opened on February 24, 2021, when Judge Victoria Roberts moved to senior status.

Legal Career

Kumar has held two primary positions in her pre-bench career. From 1997 to 2004, Kumar worked as an associate at Sommers, Schwartz, Silver & Schwartz PC. Then, from 2004 to 2007, Kumar worked at the firm of Weiner & Cox PLC. In both positions, Kumar focused on commercial litigation, working on medical malpractice, and wrongful death, among other matters.

Political Activity

Kumar has occasionally given to political and judicial candidates. She was particularly active in the 2020 cycle, giving to President Biden, as well as Michigan Supreme Court Justices Bridget McCormack and Elizabeth Welch, as well as Indian American Democratic State Representatives Padma Kuppa and Ranjeev Puri.

Jurisprudence

Kumar has served as a circuit court judge in Oakland County since her appointment in 2007. In this role, she presides over civil claims over $25,000 and all felony criminal cases. Some of Kumar’s more prominent cases are summarized below.

Kid Rock Lawsuit

Early in her time on the bench, Kumar presided over a defamation and harassment lawsuit filed by rocker Kid Rock against Novi native Kelly Ann Kozlowski. See Judge Fed Up with Kid Rock For No-Show in Lawsuit Deposition, A.P. State & Local Wire, Nov. 15, 2007. After Kid Rock failed to show up for a court-ordered deposition, Kumar threw out his lawsuit and entered a default judgment on Kozlowski’s claims against him. See id. A jury later threw out Kozlowski’s suit.

Recall Drive

In 2007, Kumar ruled that a recall petition against Rep. Marie Donigan with the Michigan House of Representatives could not go before voters because it was unclear. See Donigan v. Oakland County Comm’n, LC No. 2007-087516-CZ, Shalina Kumar, J. The Michigan Court of Appeals reversed Kumar’s decision, finding that she erred “by failing to uphold defendant’s approval of the petition language.” See Donigan v. Oakland County Comm’n, 755 N.W.2d 209, 212 (Mich. App. 2008).

Ben Wallace

In 2011, Kumar presided over DUI and gun possession charges against Detroit Pistons player Ben Wallace, and sentenced him to a year in probation, fines, and 30 hours of community service. See Corey Williams, Ben Wallace Gets Probation For DUI, Gun Charges, A.P. State & Local Wire, Dec. 13, 2011.

Tucker Cipriano

In 2012, Kumar presided over the case of Tucker Cipriano, charged with murdering his father and attacking his family with a baseball bat while under the influence of K2. Kumar sentenced Cipriano to life in prison after a no contest plea, while sentencing co-defendent Mitchell Young, who was convicted at trial, also to life in prison. See Life Sentences Given in Bat Attack on Mich. Family, A.P. State & Local Wire, July 24, 2013.

Overall Assessment

With a decade in private practice and fifteen years on the bench, Kumar has established a record of legal experience that would serve her well as a federal judge. Additionally, her time on the bench has established a reputation as a judge that’s not afraid to be bold. While senators may question Kumar’s reversal in the Donigan recall case, or her sentence of probation for Ben Wallace, Kumar is ultimately likely to attract the support needed to be confirmed.

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Jennifer Sung – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Labor-side attorneys aren’t commonly selected for the federal bench, even by past Democratic Administrations. As such, the nomination of Jennifer Sung, who has spent her entire career representing unions and workers’ rights organizations, to the Ninth Circuit is particularly notable.

Background

Jennifer Sung received her B.A. from Oberlin College in 1994 and then spent three years working as a labor organizer for the Service Employees International Union Local 74. She then spent three years as an organizer with the Service Employees International Union Local 1199 before joining Yale Law School. After graduating, Sung clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then served as a Skadden Fellow at the Brennan Center for Justice at New York University Law School.

In 2007, Sung joined the San Francisco office of Altshuler Berzon LLP, a union-side labor law firm established by now-Ninth Circuit Judge Marsha Berzon. In 2013, Sung became a Partner with McKanna Bishop Joffe LLP in Portland. Since 2017, Sung has been a member of the Oregon Employment Relations Board, where she helps to resolve labor disputes and conflicts.

History of the Seat

Sung has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit. This seat is currently held by Judge Susan Graber, who has announced her intention to move to senior status upon confirmation of her successor.

Legal Experience

Consistent with her work as a labor organizer prior to law school, Sung has spent her career as a labor lawyer, frequently representing unions and worker’s groups. Some of her prominent cases are summarized below.

Challenge to Arizona SB 1365

In 2011, Sung represented the Local 5 Service Employees International Union in challenging Arizona SB 1365, which limited public employees’ ability to send payroll deductions to certain unions that engaged in political activity. See United Food & Commer. Workers Local 99 v. Brewer, 817 F. Supp. 2d 1118 (D. Ariz. 2011). The law was enjoined by U.S. District Judge Murray Snow, who found that it violated the First Amendment. See id.

Challenge to ACA Individual Mandate

In 2011, Virginia challenged the individual mandate of the Affordable Care Act as unconstitutional and won before the U.S. District Court. Sung represented the Service Employees International Union as amicus before the Fourth Circuit urging the court to uphold the mandate. See Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). The Court upheld the constitutionality of the individual mandate (and the U.S. Supreme Court eventually agreed). See id.

New York Transit Strike of 2005

In 2005, during negotiations over a new collective bargaining agreement between transportation unions and the the New York City Transit Authority, the Authority obtained an injunction pursuant to New York’s Taylor Law to prevent the unions from striking. See New York City Tr. Auth. v. Transport Workers Union of A., 35 A.3d 73, 75 (N.Y. App. Div. 2006). When the Local 100 of Transport Workers Union of America initiated a strike anyway, it was found in contempt and fined $1 million per day. See id. Sung represented amicus in supporting the Union’s challenge to the contempt citation on appeal. See id. However, the Appellate Division of the New York Supreme Court upheld the citation against the Union’s Sixth and Fourteenth Amendment challenges. See id.

Los Angeles Worker Retention Ordinance

In 2011, Sung represented amicus in defending the City of Los Angeles worker retention ordinance, which limited employers’ ability to replace their workforces. See California Grocers Ass’n v. City of Los Angeles, 52 Cal. 4th 177 (2011). While the California Court of Appeals struck down the ordinance as being pre-empted by state law, the California Supreme Court upheld the ordinance. See id. at 210.

Legislative and Policy Work

While at the Brennan Center, Sung also worked on labor policy outside of the litigation context. For example, Sung advised the New York Working Families Policy in developing a proposal to tax companies, such as Wal Mart, who failed to provide health benefits for their workers. See Danny Hakim, Wal-Mart Looms Over 2 Bills to Improve Worker Health Care, N.Y. Times, Mar. 8, 2006. Sung also helped draft a Chicago ordinance requiring big box retailers, such as Wal-Mart, to provide a living wage to employees. See Gretchen Ruethling, In Chicago, New Pay Law Is Considered for Big Stores, N.Y. Times, May 28, 2006.

Overall Assessment

With extensive experience in labor law, Jennifer Sung has an unusual background for an appellate nominee. Not since Marsha Berzon was appointed to the Ninth Circuit in 2000 has such a nominee been picked for the Ninth Circuit. Based on her representations and her work in drafting ordinances and legislation, Sung is likely to attract opposition from most Senate Republicans. However, assuming that Democrats stick together, they should be able to confirm Sung by the Fall. Once confirmed, it is likely that Sung would establish a jurisprudential profile similar to that of Berzon’s.

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