The U.S. District Court for the Southern District of California is facing a vacancy crisis, currently short seven judges. Having gotten to a slow start, the Biden Administration nominated its first two nominees to the Court a couple of weeks ago, including magistrate judge Linda Lopez.
Background
Linda Lopez was born in Miami and grew up in Hialeah, Florida in a Cuban American family. Lopez worked at small practice firms in Florida during and after high school and attended community college while working full time as a legal secretary and paralegal. Lopez was eventually able to transfer and graduate magna cum laude from Florida International University in 1996. Lopez then received a J.D. from the University of Miami Law School in 1999 and started work as a criminal defense attorney in Miami.
In 2007, Lopez moved to the Federal Defender’s Office for the Southern District of California. Lopez stayed with the office until her appointment in 2018 to become a U.S. Magistrate Judge on the Southern District of California.
History of the Seat
Lopez has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on December 31, 2017, by Judge Roger Benitez’s move to senior status.
On November 21, 2019, the Trump Administration nominated federal prosecutor Adam Braverman to fill this vacancy. However, Braverman never received a hearing before the Senate Judiciary Committee and his nomination was left unconfirmed at the end of the Trump Administration.
Legal Experience
Lopez started her legal career in Miami, practicing criminal defense both at a small firm and as a solo practitioner. She then spent eleven years at the Federal Defenders in San Diego, where she represented indigent defendants before the U.S. District Court for the Southern District of California and the Ninth Circuit.
Among the cases she handled in Miami, Lopez represented Wilfredo Rodriguez, who was convicted by a jury of a series of drug offenses. See United States v. Rodriguez, 159 F. App’x 900 (11th Cir. 2005). Lopez challenged the sentence on appeal, arguing that the district court erred by admitting co-conspirator statements and prior convictions in the sentencing. While the Eleventh Circuit found the issue to be a “close question” it ultimately found no error and affirmed. Id. at 902.
Among the prominent matters Lopez handled as a Federal Defender, she represented Sergio Caballero, accused of trafficking methamphetamine over the U.S.-Mexico border. Lopez challenged the introduction of evidence found on Caballero’s cellphone under the Fourth Amendment, but Judge Roger Benitez ruled that it was admissible under the border search doctrine. See United States v. Caballero, 178 F. Supp. 3d 1008 (S.D. Cal. 2016).
Jurisprudence
Since 2018, Lopez has served as a U.S. Magistrate Judge on the Southern District of California. In this role, Lopez presides over pretrial, trial, grand jury and discovery matters. Among the notable matters she has handled as a magistrate, Lopez was asked to rule over the enforcement of Drug Enforcement Administration subpoenas against the State of California seeking cannabis licenses, license applications, and shipping manifests. The State sought to quash the subpoenas, arguing that the DEA had failed to make the requisite showing of relevance. However, Lopez ruled against the state, ordering California to turn over the relevant records.
Overall Assessment
While several of Biden’s nominees with indigent defense backgrounds have drawn opposition, Lopez is less likely to draw opposition for a few reasons. Firstly, Lopez has experience as a magistrate judge and her record as a judge is fairly mainstream. Furthermore, she has little controversy throughout her career and has a compelling personal story of success. While this does not suggest that Lopez will not draw opposition (even the most uncontroversial nominees in the last year have drawn no votes from a sizable block of senators), it does indicate that Lopez is likely to see a swift and bipartisan confirmation.
The Vetting Room 
It looks like Lopez will be confirmed. Of course, Lucy Koh was considered uncontroversial, but got some aggressive questions before the Judiciary Committee. So who knows?
LikeLike
That might be more due to the influx of importance placed on the judiciary by both parties senators, especially for appeals courts. Lopez will most certainly get more votes compared to the appeals nominees thus far.
LikeLike
Even David Estudillo & Christine O’Hearn got 54 & 53 votes to confirm respectively & they both are Biden’s two worse nominees so far considering both were from states with two Democrat senators. At this point most Republican senators are voting NO in block regardless of if the nominees are uncontroversial, moderate or consensus picks.
Not even one judicial nominee has been confirmed by voice vote. On August 1, 2018 Trump got 6 district court nominees confirmed by voice vote. Another 6 on August 28, 2018. Another 6 on September 6, 2018. Another 6 on October 11, 2018. That’s 24 district court judges confirmed by voice vote in in less then 63 days by voice vote.
That’s one of the reasons Trump was able to get 230 article 3 judges confirmed. McConnell didn’t have to use up floor time on nearly as many nominees as Biden most likely will. If the Republicans don’t respond in kind then Schumer will need to start eating up cloture time on Friday’s & maybe even Saturday.
The math is there for Biden to go a long way reversing the damage Trump did to the judiciary. He confirmed 230 judges in 4 years. Biden already has more then half that number of vacancies in less then 10 months. But Schumer will have to play hard ball either getting Republicans to voice vote some of these non controversial nominees or threaten to start keeping the senate in session on Friday’s, some weekends & some vacation days.
As far as Linda Lopez goes she seems like a fine judge & good pick. Biden needs a large batch of California nominees by teh end of November.
LikeLike
Tiffany Cunningham and Florence Pan won overwhelming support. So did Biden’s first four District Court nominees.
Whether voice votes come or not remains to be seen. It could happen in 2022, especially after states with Republican Senators start getting their nominees voted on. Right now, the Democrats are preoccupied with a pair of stimulus plans.
LikeLike
General comment / question…..The 5th, 6th, 7th., 8th, Circuits are so lopsided in control of GOP (esp 8th)….What is chance that some GHW Bush, or George Bush appointed judges on these respective courts take senior status this year or next?…..
Frank Easterbrook on the 7th Circuit was appointed by Reagan!, perhaps time for him to take senior status….Actually, senior status is a wonderful benefit, you get your full salary with half the workload, I would think many judges would jump at the chance to take senior status..
And on completely unrelated side note, though 2022 is an election year, I hope Schumer keeps senate in most of next summer to not only confirm judges (esp if Breyer retires), but work on other legislation…..In 2020, when McConnell led senate in a presidential election year, he kept senate in most of Sept 2020 to confirm DISTRICT Court judges….
LikeLike
It’s always hard to predict when federal judges will take senior status, particularly when they were appointed by a president from the other party. But I doubt Michael Stephen Kanne will retire from the 7th circuit after he put in for senior status then rescinded under Trump
(https://www.politico.com/story/2019/07/12/mike-pence-kanne-judge-trump-1411915)
(https://twitter.com/ZoeTillman/status/1014158793578565632)
But as I & others have mentioned on this website in other post, The White House should already have the nominee ready for any circuit court judge who is eligible for retirement now. Blue slips are not in play for those courts so no need to waste time negotiating with Republican home state senators.
And Schumer should DEFINITELY continue confirming judges well into 2022, even after the midterms. He also should most definitely trim down the 5 week Summer vacation to at least 4 weeks.
LikeLike
The 5th is by far the most conservative appeals court, more than the 8th. Yes, it has more Dem appointees, but the GOP appointees are extremely right-wing. Especially the Trump nominees, and the Reagan and GWB nominees in Texas are also almost as right-wing. There is also zero Hispanic judges on this court; Trump not only appointed extreme nominees, he also replaced the Hispanic judges with white men.
Several of the GWB appointees on the 8th circuit are considerably less conservative; such as Judges Benton, Shepherd, and Lavenski Smith (who is Black), as well as Trump appointed Judge Erickson. Judge Loken is a relative moderate.
LikeLike
The 8th. Circuit Court is not only the most Republican-appointee dominated court, but the oldest. The average age of the judges is 63 y/o. I’m surprised they didn’t take Senior Status sooner.
LikeLike
Most people speak about the 5th circuit as the most conservative appeals court in the country but it’s actually the 8th circuit. Out of 11 judges on the court all are white, only one is a woman & only one is a Democrat appointee. It will take at least two terms of a Democrat president to get it anywhere near even. Hopefully judges James B. Loken, William Duane Benton and/or Bobby Shepherd take senior status at some point during Biden’s term. It’s almost certain any Biden nominee would be a women. To have any appeals court with at 10 to 1 male/female ratio in the year 2021 is unbelievable.
LikeLike
Shawn I don’t think the 5th circuit is by far the most conservative appeals court for several reasons…
While the 5th circuit does have more fire breathing conservatives on it such as Edith Jones, James C. Ho, Andy Oldham & Cory T. Wilson, they are not all ultra conservatives plus there are 17 judges on the 5th versus 11 on the 8th. Trump’s first appointee Don Willett was actually VERY critical of Trump when he was running for president. He is of course conservative but strikes me as more of a John Roberts conservative with him being so critical of Trump before he realized he won & would nominate him to the appeals court & put him on the SCOTUS short list.
Plus out of the 17 judges on the 5th circuit, the 5 Democrat appointees on the court seem just as if not more liberal then the 1 Democrat appointee on the 8th circuit. While Jane Kelly was a former public defender, many of those years were before she was attacked while jogging in a park where she was brutally beaten and left for dead. So I’m not sure she would be as liberal on criminal manners as the 5th circuit Democrat appointees & understandably so if not. She was on Obama’s short list for SCOTUS & she is a fine judge but I’m sure a lot of that had to do with him trying to get Republicans votes which to your earlier point on another post about Leslie Abrams Garder being confirmed 100 to 0 isn’t necessarily an indication she is all that liberal. Your right James B. Loken is pretty moderate & I was actually counting him in the equation when I wrote my post.
While Lavenski Smith is black, he ran for a judge as a Republican & was appointed to the Arkansas supreme court by governor Mike Huckabee so he looks more like a Clarence Thomas black judge to me then anything else.
Also Steven Colloton & Raymond Gruender are both ultra conservative. Plus both Leonard Steven Grasz & Jonathan Allen Kobes were rated “Not qualified” by the ABA.
So taking all of that into account you can argue either court is the most conservative but I don’t think you can say the 5th circuit is by far more conservative. They certainly hear more high profile cases so they get the spotlight but I don’t see any different outcome in an en blac case being heard in the 8th circuit.
LikeLike
I don’t agree, Dequan. The 5th Circuit is really far to the right. In addition to Judges Jones, Wilson, Ho, and Oldham, Judges Englehardt (struck down the ACA which even this SCOTUS rejected), Duncan (legal counsel for an anti-gay group), Jerry Smith, Owen, Elrod, and Willett are also ultra conservative. Of the GOP appointed judges, only Southwick and Haynes are reasonable.
Don Willett may have disliked Trump, but he is really far to the right on economic issues. He has repeatedly expressed his love for the Lochner doctrine and effectively repealing the post-1930s interpretation of the Commerce Clause. He is quite a bit better on criminal justice issues, largely since he seems to be a libertarian. In sum, Willett is a more extreme version of Justice Gorsuch.
https://www.texasobserver.org/don-willett-trump-supreme-court/
Yes, Lavenski Smith is conservative on abortion and other religious based social issues. But he is relatively moderate on everything else, and especially so on criminal justice and class action cases. He is not exactly another Clarence Thomas.
I agree that Stras, Colleton, Gruender, Grasz, and possibly Kobes are well to the right. But that still leaves a bare majority that it is not impossible to win in an en banc case. It is not possible to do so on the 5th. Jane Kelly is a standard liberal like Leslie Abrams Gardner.
LikeLike
That was actually a very good article about judge Willett. I read it completely. On another note I saw an article somewhere in the past week that had Trump gotten re-elected, 5th circuit judge Ho would have probably been his 4th appointment to SCOTUS if he had a vacancy.
LikeLike
Pingback: Judge Ruth Bermudez Montenegro – Nominee to the U.S. District Court for the Southern District of California | The Vetting Room