Dale Ho – Nominee to the U.S. District Court for the Southern District of New York

Dale Ho has spent the past fifteen years litigating voting rights cases in state and federal courts, racking up both victories and defeats in the process. Ho has now been tapped for the U.S. District Court for the Southern District of New York.

Background

Dale Ho graduated from Princeton University in 1999 and then from Yale Law School. After graduating, Ho clerked for Judge Robert S. Smith on the New York Court of Appeals and for Judge Barbara Jones on the U.S. District Court for the Southern District of New York.

Ho then joined the firm of Fried Frank Harris Shriver & Jacobsen and then worked at the NAACP Legal Defense and Educational Fund. In 2013, Ho joined the American Civil Liberties Union, where he currently serves as Director of the Voting Rights project.

History of the Seat

Ho has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Katherine Forrest, who resigned from the Southern District on September 11, 2018. On December 2, 2019, the Trump Administration nominated DOJ career official Iris Lan to fill the vacancy, but Lan was blocked from confirmation due to opposition from liberal groups over Lan’s role in reassigning an official critical of the Administration’s child separation policies.

Senate Majority Leader Chuck Schumer recommended Ho for the Southern District of New York in June 2021. Ho was nominated for the court on September 30, 2021.

Legal Career

Other than a short stint at Fried Frank, Ho has spent his entire career as a voting rights attorney, including litigating some of the most significant voting rights cases in the past decade.

Notably, Ho has litigated against voting restrictions passed by state legislatures across the country. He successfully obtained an injunction against a North Carolina bill eliminating same-day voter registration. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014). Ho has also litigated against Wisconsin’s photo ID requirement for voters, successfully obtaining a district court injunction against the law, which was stayed by the Seventh Circuit. Frank v. Walker, 769 F.3d 494 (7th Cir. 2014).

Most notably, Ho managed to convince a federal judge to overturn a Kansas law requiring documentary proof of citizenship for voter registration. See Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016. See also Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020). The lawsuit notably led to sanctions against Kansas Secretary of State Kris Kobach, after Judge Julie Robinson found that he failed to ensure compliance with her orders.

More recently, Ho represented Common Cause in fighting President Trump’s lawsuit seeking to overturn Pennsylvania’s mail-in voting plan implementation, a suit rejected by Judge Nicholas Ranjan. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Outside of the voting rights context, Ho represented the NAACP as an amicus group in the litigation over California’s ban on same-sex marriage. See Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011).

Writings

In his role as Director of the Voting Rights Project, Ho has written and spoken extensively on voting rights law and policy in the United States. His statements have generally criticized the Supreme Court for narrowing voting rights enforcement and permitting legislatures to restrict voting access. For example, after the Supreme Court’s 2013 decision in Shelby County v. Holder, which invalidated the Section 5 preclearance formula of the Voting Rights Act, Ho noted that the decision eliminated “a powerful tool to deter the adoption or prevent the implementation of discriminatory voting laws in those parts of the country where voting discrimination had proved stubbornly persistent.” Dale E. Ho, Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. Legis. & Pub. Pol’y 675 (2014). He also described advocates’ efforts to use Section 2 to combat voter restrictions, discussing the challenges of such an approach. See Dale Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 Yale L.J. 799 (February 8, 2018). Ho has also been critical of “formalism” in interpreting the Voting Rights Act (relying on bright-line rules rather than more flexible balancing tests), arguing that bright-line rules do not serve the stated goals of judicial efficiency and race neutrality. Dale Ho, Two Fs for Formalism: Interpreting Section 2 of the Voting Rights Act in Light of Changing Demographics and Electoral Patterns, 50 Harv. L. C.R.-C.L. L. Rev. 403 (Summer 2015).

This is not to say that Ho’s writings always take a maximalist position on voting rights. In a 2013 article on majority-minority districting, Ho notes that “in places where racial polarization has declined substantially, critics of minority vote dilution doctrine have raised valid questions as to whether majority-minority districts remain necessary…” Dale Ho, Beyond the Red, Purple, and Blue: Essay: Minority Vote Dilution in the Age of Obama, 47 U. Rich. L. Rev. 1041, 1075 (March 2013). In the same article, Ho nonetheless notes that majority-minority districting is necessary in much of the country despite progress made elsewhere. Id.

In other matters, Ho appeared on NPR on behalf of the NAACP in 2012 to distinguish First Amendment precedent that protected NAACP members in the 1950s from the current push by conservative groups to shield their donors. Peter Overby, Conservatives Invoke NAACP Case in Fight for Secret Donors, NPR Weekend Edition, Dec. 30, 2012.

Overall Assessment

Given his prominence in the voting rights movement, as well as his youth, and the likelihood of his elevation to the appellate bench, it would not be surprising to see Ho attract strong conservative opposition, just as fellow voting rights attorney Myrna Perez did on her nomination to the Second Circuit. Nonetheless, Ho remains favored to overcome that opposition and be confirmed in the next few months.

81 Comments

  1. Dale Ho’s “likelihood of his elevation to the appellate bench” mentioned in this article should happen NOW. President Biden should withdraw his district court nomination & nominate him to judge Pooler’s seat. Ho has already been vetted & nomination sent to the senate so he could be scheduled for a senate judiciary committee hearing at the first hearing after the senate returns from recess in a couple weeks.

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    • I would appoint Melissa Murray immediately to the Cabranes seat (which again is a NY seat, Cabranes grew up in NYC which is why NY senator Moynihan allowed him to be appointed to it.) and keep Dale Ho as a backup. I expect Murray to be opposed by Joe Manchin, but it is possible that Collins or Murkowski vote yes.

      For the Pooler seat, we have to first find out whether Schumer intends to insist on an upstate nominee.

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      • I truly don’t see any chance in a 50/50 senate of any state losing an appeals court judgeship, but definitely not a state with at least one Democrat senator. However I have a win/win suggestion;

        I would appoint Connecticut supreme court justice Raheem L. Mullins to the judge Cabranes seat. With Biden not nominating any black men to an appeals court to date, he would be a great choice for the first one.

        If judge Carney took senor status next year (I truly hope she does since she seems to be a loyal Democrat) I would nominate Joshua Perry, Special Counsel for Civil Rights, Office of the Connecticut Attorney General, to that seat. I would actually appoint him right now to the 5th circuit seat because he has deep ties to Louisiana as a former New Orleans Public Defender & Executive Director for the Louisiana Center for Children’s Rights. Also as Shawn has mentioned on other post on this website president Trump replaced two Hispanic judges with non Hispanics so now the 5th circuit has zero Latinos/Latinas on the court.

        As for the NY Pooler seat, I wouldn’t be upset at all is Melissa Murray was nominated however I would nominate Dale Ho for several reasons…

        For one, Dale Ho would be just as progressive as Murray but I don’t think you run the risk of losing senator Manchin’s vote with him. Second, he is a couple of years younger then Murray. Third, Dale Ho’s name has already been sent to the senate so if you nominate him, you can set him up for the first judiciary committee after the recess instead of waiting 30 days & have him confirmed before the end of the year. With a 50/50 senate, we simply don’t have the luxury of assuming Democrats will have the majority through the end of next year. Last, Biden already nominated Eunice C. Lee to that court so nominating Ho gives you a strong AAPI candidate for a future SCOTUS vacancy. I think Biden has done a good job of building a strong bench for his first vacancy which he has already said will go to a black women with his other appeals court nominees.

        I most definitely would nominate Mellissa Murray to the district court.

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      • “I truly don’t see any chance in a 50/50 senate of any state losing an appeals court judgeship, but definitely not a state with at least one Democrat senator. However I have a win/win suggestion;”

        Again, it is not losing a judgeship! Cabranes’ seat was a NY seat, not a CT one. It should go to a NY nominee, and I expect Schumer to insist on it. And Mullins would be far from my first choice in CT, he was a criminal prosecutor. Omar Williams would be a far better choice.

        Secondly, I wouldn’t mind if every single appellate court nominee going forward is a woman. Trump’s judges were 70+% male and I think we should rebalance the judiciary regarding gender. I mean if the option is between Fred Smith Jr. and Margaret O’Hearn, I would pick the former obviously but all other things even, a woman should be favored.

        If you nominate Murray within a month, I think you can know by February whether she will be confirmed. And that gives you plenty of time to nominate Dale Ho or someone else and still get them confirmed.

        BTW I don’t think Josh Perry is Hispanic.

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      • When I say I don’t see any state losing an appeals court seat, it’s not because I wouldn’t rather the Cabranes seat going to New York, it’s simply because of math. I don’t see what leverage Schumer would have over the CT senators to get them to lose 1 of only 3 appeals court seats they currently have regardless of the history of the seat. They could simply say they are not voting for ANY nominee not from CT. Toby J. Heytens was just confirmed with 53 votes (Albeit 4 senators missed the vote) & he is a left of center white man. The math simply isn’t there if two Democrat senators from a state say they will not vote for a nominee unless the nominee is in the mold of Florence Pan, in which case I would rather see the seat left vacant.

        I don’t agree EVERY appeals court nominee should be a woman. I think Biden is doing a good job with his 10 to 3 ratio but there are simply too many solid progressive men to say NONE should be nominated for an appeals court judge for the next 3 years.

        I haven’t seen any reason to believe Raheem L. Mullins wouldn’t be a good progressive on the 2nd circuit but I’m sure your right there are better choices if you look through the entire state. I’m not a lawyer so I’m just going on the more known names but I wouldn’t be upset if Omar Williams was quickly promoted. My concern is more along the lines of no black men have been nominated for appeals court judges as of yet & out of the three district court judges, the other two besides Omar Williams (1977) were born 1965 or older, therefore too old to be considered for promotion to the appeals court.

        You could be correct about Joshua Perry not being Hispanic. I was going on his picture but after looking more in depth he speaks Hebrew so he’s most likely Jewish. Still he seems to be a solid progressive so even though I agree the 5th circuit deserves at least two Hispanic judges on it, I would consider him for a judgeship even if on the district court.

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  2. The nominees for Wednesday’s senate judiciary committee hearing has just been made official. Dale Ho isn’t any of the six nominees so that gives me some hope he is at least still being considered for the appeals court. But if he isn’t going to be the pick then he needs to be scheduled for a hearing the first week back from the recess, if not a hearing DURING the recess as Republicans did on numerous occasions.

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  3. I have a 9th Circuit question for anyone who would like to answer…..Do you think the remaining Clinton appointed judges on the 9th Circuit will take senior status by 2022?……And what are chances of the 3 remaining full time George Bush judges on the 9th Circuit taking senior status in 2022?

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      • i definitely expect to see multiple additional vacancies before the mid terms. While it’s hard to judge which ones will take senor status or no longer be on the bench for whatever reason, I would be surprised to not see at least three more vacancies by the end of next year on the 9th circuit. I would assume at least 1 of the 3 GW Bush appointees would be amongst them.

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    • “News” yes, “Good news” I’m not so sure about…

      The New Jersey nominees have been downright atrocious. Today’s two nominees are law firm partners & one seems to be around 60 years old. Are you freaking kidding me…

      The California nominees continue to be all sitting judges & not even the progressive ones which California has a wealth of. Not one is from a civil rights community.

      SIX of the ten nominees were born in the 1960’s. This is the worst batch of the first nine. After last nights election results, this is an extremely disappointing 24 hour span.

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  4. Some of the Biden nominees have been in their 30’s, Lauren King comes to mind….Perez and Lee on 2nd Circuit are mid 40’s….Yeah, they should be nominating judges in the 35-45 range….

    President Obama made same mistake to, some of his judges have either already taken senior status and several have outright retired..

    Schumer made motion to discharge Sung

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    • Nominating older judges is three prongs of bad. First, they won’t serve as many years on average as many of Trump’s younger nominees. Second, they are not viable to be promoted to the appeals court later. Third, even if they make it to the appeals court later they run the risk they will retire during the next administration just like some of Obama’s older appeals court judges did on the 2nd & 11th circuit in particular.

      This batch is truly a disaster. Older corporate law partners up & down the list. The New Jersey senators should be stripped of being allowed to have any input on judicial nominees going forward for the rest of the Biden administration. I truly believe Trump wouldn’t have had worse picks.

      California & Washington senators have been better but only slightly. Only the 3 appeals court nominees from California have been stellar so far. They need to end their policy of only recommending sitting judges.

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      • Frankly some of the blame goes to the Biden administration. They should have simply told the NJ senators, suggest better candidates or we won’t fill those seats. And again Feinstein needs to resign immediately. She doesn’t show up for votes and her commission sends up horrible candidates.

        Yeah this batch is frankly a pile of shit. I’m not sure we would have gotten worse nominees in negotiations with the Trump administration.

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      • And to add on to what Shawn said, to make this batch even worse, none of them will probably get more then 60 YES votes. I could understand if the Republican senators were voting near unanimous or giving consent to voice votes for consensus nominees but 55 seems to be the high mark for most nominees. So we are still spending floor time to confirm horrible nominees just as we would if you nominated a bunch of Myrna Perez or Dale Ho type judges.

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  5. This batch is so incredibly bad, I’m actually a little impressed. Nearly all are old as hell. The average age of Biden’s nominees was pretty good so far but this is gonna really screw that up.

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    • No lie, when I read the release for the first time & got to the first New Jersey nominee, I literarily stopped, leaned my head back, rolled my eyes into the back & my head & took a deep breath. Then I thought to myself there’s no way this could be worse then the last batch of New Jersey judges. Lord only knows how wrong I was…smh

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      • Considering who the senators are in NJ I don’t think those nominees were that bad in terms of qualifications. I would like to see more diversity in terms of the CA nominees but at this point I’d be surprised to see anyone who is not already a sitting judge being nominated for those seats.

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      • Very few nominees will ever be not qualified. Almost all have gone to law schools, clerked for a federal judge & had years of law practice.

        My concern is are these candidates meeting the qualifications Biden himself put forward as the kind of nominees he wanted to have change the trajectory of the judiciary after four years of Trump appointing mostly young, conservative white males.

        I will preface my opinion by saying Biden has done a better job then any Democrat president has done at appointing diverse, young progressives to the judiciary of any president since Carter, & Carter had the advantage of Congress adding over 100 new judgeships during his four years. And of course Biden only had a 50/50 senate to work with.

        Now with that said I just believe some of these nominees either don’t have a progressive background, are too old or in some cases BOTH. I would be ok with either or both in states that have at least 1 GOP senator but 59 out of the first 62 nominees have been either appeals court nominees with no blue slips or district court seats with states that have two Democrat senators. There’s no reason to have old or conservative nominees, let alone BOTH.

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  6. Every Biden nominee is getting 40+ NO votes….Now is that because the nominees really are more progressive, or is it mostly just sour grapes from Republicans and there just going to vote NO on any nominee to the left of (pick one) any GOP judge on the 5th Circuit…

    Hopefully, Schumer will focus non-stop on confirmations in early 2022…..You figure this year Biden came in late Jan, and the first nominees are usually cabinet positions, so 2022 can be mostly a focus on judicial nominations…

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    • The block of no votes from the GOP certainly isn’t just because the nominees are too progressive. David Estudillo & Christine O’Hearn didn’t crack 55 yes votes & they would have been acceptable nominees under Trump.

      I am more concerned with the pipeline of nominees being reported to the floor from the senate judiciary committee then I am Schumer scheduling them for floor votes. Last week there was no hearing, next week there isn’t any hearing during the recess, the most nominees in one hearing has been six & unlike when Republicans were in control, the Democrats have yet to schedule any hearings during any of the recess weeks. And that’s on top of some executive meetings not having votes for nominees scheduled such as last weeks even though there are nominees that have had their hearings more then a week prior. That’s my main concern.

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      • Well, if were getting conservative nominees from states with 2 Democratic senators, I cannot imagine what would come from FL, MO, TX, etc….Those and other senators from red states probably won’t even attempt to work with the WH on District Court nominees…..

        The WH does need to fill the Circuit Court openings in states with one or two GOP senators, hopefully we’ll see those positions filled soon——- I hope..

        And briefly RE; the DC Cir vacancy -Judge Tatel announced in March he wanted to take senior status….The guy is entitled to do that, yet the WH is continuing to make him serve at a full capacity while they take their good ole time finding a nominee…..

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      • Wednesday at the beginning of the senate judiciary committee hearing senator Grassley questioned chairman Durbin about if he will discard blue slips for district court nominees. Durbin’s ultimate decision on that will decide if we get any nominees from some states with at least one Republican senator that would be better then leaving the seat vacant.

        The White House really needs to put forward nominees for at least a handful or so appeals court nominees by the end of the year. They take up 30 hours of cloture time to confirm so if senator Schumer on keeping the senate in session on Friday’s or cancelling at least one week of the Summer recess, then time will be limited next year to keep up with Trump’s pace that led to his 54 court of appeals confirmations.

        It’s almost criminal we have yet to get a nominee for the DC Circuit yet. He should have already nominated Deepak Gupta, Karla Gilbride or the courts first Hispanic judge.

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  7. Can Schumer yield back all the Democratic time, thus would only take 15 hrs for Circuit nominees…

    The specialty courts like Federal Claims and International Trade, are they the 30 hrs to, or just two hours?..

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    • I’m not 100% if appeals court nominees take 30 hours for cloture or if Democrats unanimously say they don’t want time if that means just 15 hours. Judging by no appeals court nominee has had cloture invoked & then voted in the same day yet, unlike numerous districts court nominees, I believe it’s 30 hours regardless. Which is why every Thursday Schubert should tee up 2 appeals court nominees to eat up cloture time over the weekend & then come in on Monday & vote for confirmation just like what happened this week.

      The federal circuit & all 13 appeals courts take 30 hours. The Federal Claims and International Trade & all district courts are just 2 hours.

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  8. BREAKING NEWS!!!

    Biden will now get a sixth vacancy to the 2nd circuit court of appeals. Susan Carney just announced she will take senor status upon the confirmation of her successor. That will open up a second seat from Connecticut or the possibility of a deal being worked out in which one of the two seats will revert back to New York allowing that state to keep an “unseat seat” & still allow an additional nominee from New York City.

    This is absolutely great news.

    (https://www.reuters.com/legal/litigation/2nd-circuits-carney-take-senior-status-creating-new-vacancy-biden-2021-11-05/)

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  9. Since Pooler’s seat is a Syracuse seat, I wonder if Biden would feel obligated to pick someone for the same duty station. No good options from the District Courts as Obama’s only Syracuse Judge (Brenda Sannes) was born in 1958. Doesn’t seem to be good options from the New York state courts either. Biden hasn’t picked as many law Professors so far, but one good option could be Syracuse Law Professor Lauryn Gouldin (born c. 1973). She clerked for Judge Leonard Sand (SDNY) and Judge Chester Straub (2CCA) and worked as an Associate with Wachtell, Lipton, Rosen & Katz early in her career before going into academia. Her scholarship seems very progressive too (primarily on the 4th amendment, pretrial detention, and bail reform).

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    • I truly hope Biden doesn’t restrict the search for this seat to just the metro Syracuse (Or for that matter upstate New York) area. The amount of wealth of young progressive possibilities in the NYC area alone is worth it’s weight in gold.

      My personal pick would to have been simply withdraw Dale Ho’s district court nomination & resubmit it for this appeals court seat since he has already been vetted, he could have been put on next Wednesday’s hearing (There will be no appeals court nominees in the hearing now) & I truly believe he is a solid choice, particular a possible AAPI possibility for a future SCOTUS vacancy.

      On September 1st senator Schumer recommended three progressive women for district court judges. Nina Morrison is probably the best of the 3 but she’s 51 years old so I wouldn’t pick her for the appeals court. Either Nusrat Choudhury, (44) who would be the second Muslim federal judge in the history of the country or Jessica Clarke (38) would also be good choices.

      And of course we have spoken at length at how good of a pick Melissa Murray would be although some think she may face a possible no vote from senator Manchin.

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      • Upstate needs representation. The only other upstate Judge on the court besides Pooler is a Senior Judge (GW Bush appointee Richard C. Wesley). I think Gouldin would be a great pick. And what makes you think Manchin would vote against Murray? He did vote for Sung.

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      • I actually was the one saying I think Manchin would vote to confirm Murray. It was others that was saying they thought he would vote no.

        I’m fine with upstate having representation if they have a nominee that is solid. But if not I would have no issue with every judge from NY being from metro NYC. Or simply just have Dale Ho or whoever is selected mice to Syracuse.

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      • Ethan, I am strongly skeptical that Senator Manchin will vote yes on Melissa Murray. The reason is that Manchin is very much anti-choice and has repeatedly voted against Obama nominees who are too openly pro-choice or have represented reproductive rights groups. The best examples are his no votes for Judges Nina Pillard and Pamela Harris. That said, I think there is a chance we could get Collins or Murkowski to vote for Murray, so it is still worth a shot provided you have an immediate backup if Murray is rejected.

        Sung is a labor lawyer. Manchin has no issues with that background. Even though Manchin is conservative on labor issues by West Virginia Democratic standards (which is why he lost to progressive Charlotte Pritt in the primary in 1996, who ironically won the support of both the UMWA and environmentalists) he is pretty much in the center of the national party on labor issues.

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      • Ah, I don’t have Twitter but if she is still Tweeting at all, let alone about abortion rights then I highly doubt she is being vetted. I saw on another post earlier this year that Dale Ho changed his Twitter to private a few months before Schumer recommended him so that seems to be the more likely choice for somebody being vetted.

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  10. The senate judiciary committee just reported next week 11/17 there will be another nomination hearing. If I had to guess, this will be the first hearing under Biden with no court of appeals nominees in it. He really needs to ramp up the nominees in that category.

    If I had to guess, the nominees next week will probably be John H. Chun (Washington state), Dale Ho (If he’s not being considered for the appeals court seat), & wither the three Ohio nominees or the two Georgia nominees. Hopefully all seven will be in the hearing next week although the most I’ve seen so far this year is six.

    Also next Thursday they have scheduled votes on Holly A. Thomas & five district court nominees. They have already been held over once so we should get them voted to the floor this time. Hopefully senator Graham either votes yes or passes on Thomas so there won’t be any need for Schumer to vote to discharge her on the floor. I look for her to be confirmed in one of the two weeks in December the senate is in session.

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    • I hope it’s all judges at next weeks (11/17) hearing…..Meaning, I hope it doesn’t end up being US Attorneys or DOJ people only…

      Also, on at the next SJC mtg on Thurs (11/18) the 6 nominees from last week should be on calendar, then held over…..Sometimes, Durbin puts nominees on SJC next hearing, other times he waits 2 weeks….

      WH wasted no time filling opening on Federal Circuit (Stark) but continue to move at snails pace for that far more important DC Cir seat…It should be a grand slam hope run pick since its taking this long….

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      • That’s a GREAT point Rick. Gabriel P. Sanchez, Samantha D. Elliott, Linda Lopez, Katherine Menendez, Jinsook Ohta & David Herrera Urias should all be added to the executive meeting next week. That way the republicans can hold them over for the first week after the Thanksgiving week recess.

        No reason why that batch can’t be confirmed before the Christmas recess but if they are not added next week then they won’t be voted out of committee until the second week in December which would eliminate any hope for confirmation this year for any of them.

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      • That would truly be EPIC & great Shawn. But assuming the first justice to retire will be Breyer & Biden replaces him with a black woman, if he were to get a second replacement, even if it was justice Thomas, who do you think would be the front runner?

        My guess is he won’t choose two straight black women, even if it was the replace a black justice Thomas if he has already put a black woman on the court.

        Assuming the nominee will be an appeals court judge
        Biden himself has put on the court (Most of Obama’s appeals court judges will likely be too old by the time a second vacancy occurs), it will either be one of the 14 appeals court nominees he has already announced, or one he will announce in the future.

        Out of the current nominees, I would say Myrna Perez would be the most likely nominee. For one, she is the most progressive out of the 14 he has nominated so far. Second, she is from the majority leader’s home state. Third, Biden will need to increase support from the Hispanic community. I would say Gabriel Sanchez would be second on the list.

        I would change my pick if Biden withdrew Dale Ho’s district court nomination & nominated him to the appeals court. He would be my #1 choice for a second SCOTUS vacancy if that happened.

        If we are looking at future appeals court judges Biden will nominate, I will put whoever he nominates to the DC Circuit first on the list. If it’s Deepak Gupta or the first Hispanic judge to that court, I definitely would put them #1 on the list. If his DC Circuit pick is Karla Gilbride, I would put her lower on the list despite her being younger then every name I mentioned above. Although it would be tempting to put the first blind justice on the Supreme Court, I am not sure he would pick her.

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      • Dequan, my feeling is that a second appointment (if it is not Sotomayor leaving) should be someone either from the AAPI or LGBT community. If that appointment were to happen in the next year or two, I would pick Goodwin Liu. Even though he is 51 right now, he is such a strong intellect that it would be worth sacrificing 5+ years in age to put him on SCOTUS; Liu is a potential Louis Brandeis, William Douglas, a once in a generation visionary. Deepak Gupta wouldn’t be bad either. Jennifer Sung could be difficult to get confirmed. If Sandra Lynch leaves soon, Bessie Dewar (who is LGBT) should be appointed and could be a possible selection.
        If the retirement is Sotomayor, the only reasonable selection now is Myrna Perez. The replacement for Cal SCOTUS Justice Cuellar could also be a serious consideration. Gabriel Sanchez is not a progressive and should not be considered.

        All of this depends of having the Senate at the time. If we don’t hold the Senate, the best we’re going to do is someone like Sri Srinivasan or Lucy Koh, if that.

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      • I agree with just about everything you said Shawn. I might take it a step further & say for a second SCOTUS vacancy Myrna Perez is the best candidate PERIOD, regardless of who retires.

        I do believe if Biden got a second vacancy it could be one of the California justices or an appeals court judge he will nominate in the future if it is not Myrna Perez. My only disagreement would be Gabriel P. Sanchez not being progressive. I have not seen anything in his record to state otherwise & after his hearing in the senate judiciary committee last week it only re-enforced my thinking.

        With 12 current appeals court vacancies that do not have a nominee plus the additional vacancies to come in Biden’s term, it is imperative he builds up the SCOTUS bench. He is off to a good start with the 14 nominees so far. Out of Obama’s 55 appeals court judges, I’m hard pressed to get to double digits on nominees that would be young enough or progressive enough to be considered for a Biden vacancy.

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      • I still think Goodwin Liu is our best bet for a SCOTUS nominee by a long shot. If Biden hadn’t promised to nominate a black woman, I would appoint Liu for Breyer’s seat. If you get a chance to appoint someone who could well be a Brandeis, Douglas, or Scalia, I think you have to take that shot, even if it means sacrificing a few years in age. Myrna Perez would be a great justice, but she’s not in the same league as Goodwin Liu. There are very few on the liberal side who are.

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      • Yup, no question Goodwin Liu would be solid. I just honestly don’t see a second vacancy happening in Biden’s first term. Sadly a SCOTUS nominee in his late 50’s(His age in 5 – 7 years) just isn’t a viable candidate in this day & age. I’m positive Biden will nominate some additional heavy liberal hitters to the appeals court over the next year & if Democrats hold the senate definitely over the next 3 years.

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  11. Melissa Murray won’t end up on a trial court because she has no trial experience. Being a trial judge is a harder job day-to-day than being an appellate judge, and being a trial judge on SDNY in particular is an *exceptionally* demanding job. Dale Ho actually did more trial litigation than appeals I believe so he doesn’t have the same problem.

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  12. Actually, I’d really love to see Dale Ho for the DC Circuit seat, but the 2nd Cir would be great to……

    Assuming the 6 nominees already scheduled for next Thurs SJC hearing are sent to senate floor, that will be 12 nominees awaiting floor votes as we already have 2 9th Cir nominees, 2 Michigan District Court nominees, & 2 Federal Claims Court nominees waiting for confirmation vote….And I would think Schumer would want to get all 12 confirmed before Dec recess,

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    • Unfortunately, reports are Biden is only looking for DC area lawyers for the DC Circuit (See article below). I hope those reports are wrong but I have seen nothing to refute that. But yes, I totally agree & have mentioned on other articles on this website that Dale Ho would be my pick for the DC Circuit. I said that well before judge Pooler announced she was taking senior status but I still feel that way, albeit I’m fine with him being an appeals court judge on the 2nd Circuit as well. I think he deserves to be on the court of appeals more than the district court.

      Schumer should definitely confirm all of the pending nominees plus the six voted out of committee next week before the new year. That will require either working a Friday or Saturday or two, working full days on Thursday’s or at least teeing up cloture votes on Thursdays for appeals court nominees then coming in & voting to confirm them on Monday’s.

      With the debt ceiling plus all of the other legislative issues they will need to deal with, he definitely needs to do at least one, if not all three of those things.

      (https://news.bloomberglaw.com/us-law-week/biden-takes-time-weighing-next-pick-for-d-c-circuit)

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  13. While there has to be cloture votes for all nominees anymore, at least you can move pretty fast for District Court nominees with only the 2 hrs needed after cloture vote…

    What I don’t get is after this week off, the senate gavels back in Mon at 3pm, there is one cloture vote scheduled at 5:30 pm for an Executive nominee and they’ll call it a day….Schumer should have scheduled more votes Mon, instead of just one….

    As you mentioned they still have debt ceiling, they also DESPERATELY need to pass some voting rights bill, then there are likely many Executive nominees in addition to all the judicial ones to get confirmed…….

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    • Correct. The math isn’t there to get everything done on a Monday 5:30PM to Thursday 5:30PM schedule. It’s actually the most disappointing thing from the Democrats this year in my opinion. At the very least keep the senate in session on Friday’s & only give them Friday’s off if they get things done such as voting rights & not force cloture votes on non-controversial nominees. Having Friday’s off should be a reward, not the norm.

      The five weeks off each Summer needs to be reduced to four weeks at best. And why do they need an entire week off for Veterans Day? I understand today & tomorrow & maybe even yesterday but why Monday & Tuesday? It’s absolutely ridiculous how much time they take off with a 50/50 senate & so many things that need to get done.

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  14. Here are two links regarding the district court vacancies in Idaho & Mississippi…

    It’s disappointing to see the two Republican senators in Idaho are trying to work with The White House to get a suitable nominee & have yet to receive a response. They actually worked well with president Obama to get a nominee for the last vacancy. Even after Mitch McConnell didn’t give the nominee a vote, they kept the same nominee after Trump was sworn in even though they could have gotten a younger & more conservative nominee. This definitely should be a seat filled in a state with blue slip implications.

    (https://www.idahopress.com/letter-from-idaho-senators-to-white-house-counsel/pdf_b62e43de-cda9-5ee5-93b3-ce0e24c6010a.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share)

    (https://www.djournal.com/opinion/columnists/judicial-opening-sets-legal-community-scrambling/article_36d157b5-0a93-5e21-a58b-e5eca002a95f.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share)

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  15. I am seeing Melissa Murray on MSNBC, The Andrea Mitchell Show right now. It is the first time I have seen her do tv interviews in a while so I guess she is not being vetted for a federal judgeship. I doubt she would be doing tv interviews if she was albeit she was only talking about the Ales Jones Sandy Hook lawsuit.

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  16. The senate judiciary committee just updated their schedule for the week. The good news is they added the six nominees from the last hearing Gabriel P. Sanchez, Samantha D. Elliott, Linda Lopez, Katherine Marie Menendez, Jinsook Ohta & David Herrera Urias to Thursday’s executive meeting. This way they can be held over by the Republicans & voted on hopefully the Thursday after the Thanksgiving recess.

    The bad news is they only scheduled four nominees for Wednesday’s hearing. With this being the first nominations of Biden’s presidency with no court of appeals nominee, I was hoping they would have at least six nominees. They scheduled the 3 Ohio & the Washington state nominee. They could have added either both Georgia nominees or either Dale Ho.

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    • Any chance Ho is elevated to the 2nd Circuit seat, or it wishful thinking and he’ll stay at SDNY?….There are 3 other openings on SDNY plus a host of others on other NY District Courts….

      No cloture filed on nominees today but perhaps Tues…..Senate is off next week, Schumer should at least do the cloture votes on the 9th Circuit nominees Thurs, then they can have the floor vote after the Thanksgiving break…

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      • I’m holding out hope for Dale Ho to be switched to the 2nd circuit but in all likelihood if they were going to do it they probably would have already. He could have had his hearing Wednesday. It’s more likely they will find a nominee from upstate unfortunately.

        Yea I’m hoping Schumer can confirm at least the Michigan and/or Federal Claims nominees this week & 1000% hope he gets the cloture votes for Koh & Sung Thursday so they can get their confirmation votes the Monday after Thanksgiving.

        I understand the importance of these second tier executive branch nominees but they are gone once Biden is out of office. Federal judges need to be prioritized, especially the court of appeals nominees. I would almost say keep the senate in session Friday just to have a cloture vote on Holly Thomas since she should be voted out of committee Thursday. Then you can vote on three 9th circuit nominees the Monday after Thanksgiving. Gabriel P. Sanchez should be confirmed before the senate leaves for the Christmas & New Years recess as well.

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    • Schumer needs to keep senate in a least a few Fridays once in a while..

      Last year in Sept 2020 (a presidential election year) McConnell kept senate in many days in Sept just to confirm District Court judges…

      You’re absolutely correct that federal judges need to be prioritized, these people can be on their respective court 25+ years…..

      In 2019, an LBJ District Court nominee (Manuel Real) died after 50 years of service on that court….And JFK had a nominee (James Browning) who served about 50 years on the Ninth Circuit..

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      • Speaker Pelosi has stated the House will stay in session through Saturday to get the score for the second reconciliation bill then vote on it. I wish senator Schumer would also keep the senate in session through Saturday as well to get the score. And of course while there, he could file for cloture on both Koh & Sung on Thursday & vote for confirmation Saturday so they can both be in place on the 9th circuit before the senate returns.

        Maybe even after their votes on Saturday, vote for cloture on Holly Thomas Saturday so she can be teed up to confirm the Monday after the Thanksgiving break.

        But I doubt that will happen. If the Republicans were in the majority I would bet on Mitch McConnell doing it but not the Democrats.

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  17. It doesn’t look like Dale Ho will be elevated to either the DC circuit as he was my first choice so I would say the most likely nominee will either be Deepak Gupta (Born around 1977) – Founder of boutique appellate firm Gupta Wessler or Karla Gilbride (Born around 1982) – Blind & a senior attorney at Public Justice.

    I actually looked into a name Shawn mentioned on another article on this website & am in love with the idea of him being nominated to a federal judgeship if not for the DC circuit then either in Massachusetts, Maryland, Virginia or the DC district court should any vacancies open in any of those courts…

    Andrew Manuel Crespo (Born around 1982) – Professor of Law at Harvard Law School & former staff attorney in the federal defenders office.

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    • So if there is a decision to nominate a Hispanic to this seat, Andrew Crespo is by far the best choice. I’m actually struggling to think of any other obvious young Hispanic candidates with ties to DC. There is Roberto Gonzalez, who is highly qualified and helped Sen. Warren build the CFPB during the Obama admin, but now is a Big Law partner representing financial interests. But Tom Saenz had a list of 7 candidates who were not corporate lawyers or prosecutors.

      Also Judge Judith Rogers needs to take senior status immediately.

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      • I had actually never heard of Andrew Crespo until one of your earlier post. I since went & read up on him & 100% agree with you. If not for the DC Circuit he needs to be nominated to the Mass district court immediately.

        Did we ever find the Tom Saenz list of 7 candidates? And yes Rogers needs to retire ASAP & hopefully Henderson will surprise us & do so also.

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      • I think Saenz gave his list directly to the White House and did not make it public. Regarding Crespo, he should be nominated to the DC federal district court if not selected to DC Circuit. You could also nominate him to the 1st Circuit if/when Judge Lynch retires.

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      • My fear is there are currently no vacancies in the DC district court & only one judge is eligible for retirement. He is actually a GREAT choice for the bench. He looks like he is a law professor in Mass & there are two openings there right now. With a 50/50 senate time is of the essence. Besides I have little faith in there being two better nominees for Mass after the 1967 born Angel Kelly for the first pick earlier this year.

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  18. The senate adjourned for today (11/16) and no cloture motions were filed for judicial nominees…..So, if Schumer doesn’t file any Wed, then we will be into Dec with the remaining judges to be confirmed….

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    • WOW… This is really really REALLY a surprise for so many reasons. If you would have asked me a year ago I would have said she was the front runner for the 2nd court of appeals but not now.

      First, with this nomination that means there is no longer an “upstate seat” as all NY based seats will be from the NYC area. I’m more then ok with that but that brings me to my second point. The NYC area has so many options.

      Third, with the confirmation of Beth Robinson, Nathan will no longer be the first open LGBT women on an appeals court with her confirmation. I would assume the first opening would have gone to her but now that there have been two judges confirmed before her this year I am surprised. Fourth with her being 49 she is still young but there were much younger options including Dale Ho by abut 5 years younger.

      Last with her nomination you now need committee & floor time for two nominees, her nomination & to back fill her district court seat. Had another nominee been recommended such as Dale Ho, he could have been in tomorrow’s hearing or at least the first hearing after the Thanksgiving break or another non sitting district court nominee wouldn’t need to backfill their current position.

      My biggest question now is will either of the two Connecticut vacancies be moved back to New York. As I have stated in other post I highly doubt it in a 50/50 senate in which any one Democrat senator has veto power.

      I do believe out of all sitting New York district court judges, Alison Nathan is the most qualified for this vacancy. I’m just surprised she is getting this seat over the first two vacancies.

      (https://www.nytimes.com/2021/11/16/nyregion/ghislaine-maxwell-trial-epstein-judge.html)

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    • My prediction was right. I figured the first black man Biden would name to the court of appeals would come from the 6th circuit vacancy. And he appears to be around 40 years old plus worked for the Tennessee Innocence Project. Absolutely phenomenal nominee. He may be in my top 3 Biden picks so far overall & easily top 3 for Biden’s appeals court nominees.

      I’m happy Biden announced Allison Nathan the same week Schumer recommended her. Of course her already being a sitting district court judge fast tracked the vetting process but I’ll take it.

      This makes up a little for the disastrous 9th slate of judicial nominees announced at the beginning of the month which was by far his worst slate to date.

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      • I truly hope so. We really need to vote these six on to the floor today, especially Holly Thomas. After not holding any hearing at all a couple weeks ago, to only having four nominees in yesterday’s hearing, the SJC is lagging behind with all of the pending nominees right now.

        Unless they plan on either holding two hearings in one week, holding a hearing during one of the recess week’s or having more then six nominees at any of the hearings, I fear we may start to see a backlog on judicial nominees because of the committee. Republicans had multiple hearings during recess weeks during the Trump administration so there is recent precedent.

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  19. Scott Colom would be a great nominee for the Northern District of Mississippi. Unfortunately Bennie Thompson is not a US senator so his endorsement doesn’t mean much as long as blue slips are still in play for district court nominees. I hope this eventually ends up being the nominee.

    (https://www.djournal.com/news/local/bennie-thompson-backs-area-prosecutor-scott-colom-for-federal-bench-vacancy/article_520f1f27-ccb8-5cb7-84b7-126274feb2a0.html)

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  20. Well, senate is adjourned until 11/29, no judges moved from the SJC and no floor votes (for judges) scheduled when they return…..Schmuer and Durbin dropped the ball this week…This is just careless..

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    • Disastrous week for both the SJC & senate on judicial nominees. Only 4 nominees in the hearing & no votes in the executive meeting. Senator Durbin said the Gabriel Sanchez batch would be held over before he postponed then cancelled the rest of the meeting. I surely hope they get voted on the first week after the Thanksgiving recess & not say that hold over didn’t count.

      Senator Schumer should have invoked cloture on Koh & Sung today so they would be ready for a vote the Monday after recess. Mitch McConnell must be laughing his ass off at this…smh

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      • Hopefully when they cone back they’ll vote out the 12 judicial nominees…..In this past Thurs brief mtg, they did hold over the 6 nominees who were scheduled to be held over that week (Sanchez 9th Cir and 5 District Court nominees)….

        They’ll have a very busy Dec., and I hope Schumer keeps senate in extra week or more if necessary to confirm these judges, pass BBB, and a VOTING RIGHTS BILL .

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  21. Dale Ho received brutal questioning from the GOP senators. This makes me wish he was nominated to the circuit court instead of district court even more. Vice President Harris will likely be needed for the tie breaking vote to confirm him, which I am totally fine with.

    Like

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