Month: December 2021

Judicial Nominations 2021 – Year in Review

The first year of the Biden Administration has drawn to a close.  As a former Senate Judiciary Committee Chair, President Biden could be said to have been particularly attuned to the importance of judicial nominations, and this bears out in the numbers.  This Administration has outpaced other recent Administrations in both nominations and confirmations (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Biden submitted 73 nominees to Article III courts, more than any other modern president.  Comparatively, President Trump submitted 69 judicial nominations in his first year, President Obama submitted 34, President George W. Bush submitted 61, President Clinton submitted 47, President George H.W. Bush submitted 23, and President Reagan submitted 44.  Biden has particularly outpaced other Presidents on District Court nominees, having submitted 55, more than any other President.

Comparatively, the 18 appellate nominees submitted by Biden are slightly lower than both Trump (19) and W. Bush (25).  However, this can be explained by the number of vacancies each of the prior presidents inherited.  President W. Bush inherited 26 appellate vacancies, while President Trump inherited 17.  In comparison, President Biden inherited only two vacancies, making his pace even more impressive.

Confirmations

In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court.  This outpaces every President since Reagan who saw 41 judges confirmed (one Supreme Court, 8 appellate, and 32 district).  In terms of appellate confirmations, Biden’s 11 falls short only of Trump’s 12.

Furthermore, Biden saw confirmation of 55% of judicial nominees submitted in his first year.  This marks the first significant uptick in first year confirmation percentage in modern history, as this has been dropping since Reagan.  To compare: please see the percentages of other Presidents below:

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Additionally, President Biden has, despite having to navigate a 50-50 Senate, not seen a single judicial nominee defeated or blocked yet.  In comparison, the Trump Administration had lost three nominees in their first year: Jeff Mateer; Matthew Petersen; and Brett Talley.  This record is largely due to the caucus willing to stick together on judicial nominees.  Not a single Biden judge has attracted any Democratic opposition.

President Biden’s success on nominations is despite the nominees having drawn more GOP opposition than the nominees of any previous President.  Out of the 11 appellate nominees confirmed, only one attracted more than four votes from across the aisle (Tiffany Cunningham) and four attracted no minority votes at all (Eunice Lee, Myrna Perez, Lucy Koh, and Jennifer Sung).  In comparison, despite drawing more opposition than any prior president, President Trump had more than four votes across the aisle for three nominees (Kevin Newsom, Ralph Erickson, and Joan Larsen).

Diversity

The Biden Administration has prioritized choosing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations.  They have also sought out nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys.  Both focuses are reflected in the nominees put forward.

So far, Biden has nominated thirteen women to the court of appeals, and a whopping forty-one women on the district level, making 74% of his judicial nominations women.  In comparison, 23% of Trump’s judicial nominees in his first year were women, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Biden’s confirmations has surged the number of women on the U.S. Court of Appeals from 59 to 64, moving the court of appeals from 33.3% female to 36.6% female.

Furthermore, approximately three out of four Biden nominees are lawyers of color, compared to less than 10% of President Trump’s first year nominees.

Age

Biden’s judicial nominees have been compared to those of President Trump in terms of their youth, but, as noted earlier, President Trump’s nominees, at least in his first year, were not significantly younger than those of previous presidents, with an average age of 49.5 for appellate nominees and 52.5 for district court nominees.  So far, President Biden’s appellate nominees have an average age of 48.7, while his district court nominees have an average age of 49.8, making them slightly younger than those of previous presidents, but not significantly so.

Overall Assessment

Looking at the empirical evidence, it is clear the Biden Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  They have also prioritized confirmations, moving judges through the process faster than prior presidents.  Nonetheless, this success must come with the caveat that Biden is the first President since Carter to have a Senate controlled by his party by the end of his first year, while also avoiding a Supreme Court confirmation.  Overall, while gaps remain, the Biden Administration’s success on judges reinforces the significance of the tenuous 50-seat majority that Senate Democrats hold, and the significant influence of each senator in maintaining that majority.

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Judge Ruth Bermudez Montenegro – Nominee to the U.S. District Court for the Southern District of California

Shortly after the confirmation of U.S. Magistrate Judge Linda Lopez to be a U.S. District Court Judge, her colleague, Judge Ruth Bermudez Montenegro, looks poised to take the same step.

Background

A native Southern Californian, Montenegro was born Ruth Parra Bermudez in Brawley, Imperial County, in 1967. After graduating summa cum laude from Clarion University of Pennsylvania in 1989, Montenegro received a J.D. from the University of California Los Angeles Law School in 1992 and started work at Horton, Knox, Carter & Foote LLP as an Associate.

After a brief stint at the Office of the County Counsel in Imperial and with the Imperial Community College District, Montenegro joined the El Centro Elementary School District as Assistant Superintendent and Counsel.

In 2012, Governor Jerry Brown appointed Montenegro to be a Superior Court Judge in Imperial County, but lost her election to maintain the position in 2012. After a stint as a Family Support Commissioner, Montenegro was elected to the bench in 2014. In 2018, Montenegro became a U.S. Magistrate Judge for the U.S. District Court for the Southern District of California, where she currently works.

History of the Seat

Montenegro has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on February 8, 2018, by Judge John Houston’s move to senior status.

On November 2, 2019, the Trump Administration nominated longtime criminal defense attorney Knut Johnson to fill this vacancy. Johnson, a Democrat recommended by Sen. Dianne Feinstein and then Sen. Kamala Harris, never received a hearing before the Senate Judiciary Committee and his nomination was unconfirmed at the end of the Trump Administration.

For her part, Montenegro applied with California selection committees in January 2021 and subsequently interviewed with both of California’s senators. She was subsequently recommended to the White House for nomination by Senator Alex Padilla in July 2021 and was nominated on November 3, 2021.

Legal Experience

Montenegro started her legal career in El Centro, primarily working in civil litigation, including on employment, labor, and healthcare matters. Since 2000, Montenegro has worked either for the Office of the County Counsel, the Imperial Community College District, or the El Centro Elementary School District. In each position, Montenegro has worked in an in-house capacity, focusing on legal advice, training, and compliance. However, she has also advised her employers on litigation matters as well as representing the District in administrative procedures. For example, Montenegro defended against a lawsuit by seniors seeking to participate in the graduation ceremony (they were declined due to the failure to complete mandated service hours). See Brawley Union High School District, Imperial County Superior Court.

Jurisprudence

In 2012, and from 2015 to 2018, Montenegro served as a judge on the Imperior County Superior Court. In this role, Montenegro presided over trial court matters in criminal, civil, family, and other state law matters, handling approximately 34 jury trials and 100 bench trials during her tenure. Among matters she handled here, Montenegro sentenced a prisoner to six years in prison for attacking an officer in a prison while he was attempting to restrain another inmate. See People v. Johnson, No JCF28994, 2016 WL 7030374 (Cal. Ct. App. Dec. 2, 2016).

Since 2018, Montenegro has served as a U.S. Magistrate Judge on the Southern District of California. In this role, Montenegro presides over pretrial, trial, grand jury and discovery matters. While she has not handled any jury or bench trials as a Magistrate, Montenegro did facilitate the settlement of a lawsuit alleging a pattern and practice of sexual harassment at the U.S. Postal Service. See Cano v. Brennan, No. 19-cv-239-CAB-RBM (S.D. Cal. June 2, 2021).

Overall Assessment

Coming to the bench with a largely in-house background, Montenegro would bring a unique perspective to the bench, if confirmed. As her home base of Imperial County lacks representation on a San Diego dominated bench, Montenegro could ostensibly claim to add geographic diversity to the bench as well.

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Judge Trina Thompson – Nominee to the U.S. District Court for the Northern District of California

With over two decades on the Alameda County bench, Trina Thompson should be a fairly uncontroversial candidate for the bench. However, her teaching activities, as well as her background in criminal defense, may draw scrutiny.

Background

Thompson got her B.A. from U.C. Berkeley in 1983 and her J.D. from the U.C. Berkeley School of Law in 1986. After graduating, Thompson became an assistant public defender with the Alameda County Public Defender’s Office. After five years there, Thompson opened up her own criminal defense practice.

In 2000, Thompson was selected as a Juvenile Court Commissioner in Alameda County. She subsequently was elected to the Alameda County Superior Court in 2002, and has served as a judge since. Additionally, during the Obama Administration, Thompson served on the Coordinating Council on Juvenile Justice and Delinquency Prevention.

History of the Seat

Thompson has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on February 1, 2021, by Judge Phyllis Hamilton.

Legal Experience

Thompson started her legal career as an assistant public defender in the Alameda County Public Defender’s office, representing indigent defendants in juvenile and criminal proceedings. Thompson subsequently opened and managed her own criminal defense practice for nine years before her appointment as a Juvenile Court Commissioner.

Jurisprudence

Since 2002, Thompson has served as a judge on the Alameda County Superior Court. In this role, Thompson presides over trial court matters in criminal, civil, family, and other state law matters. Thompson has also served as the presiding judge of the Juvenile Court, where, among other responsibilities, she presided over adoption ceremonies. See Josh Richman, Adoption Day Changes Lives Forever, The Oakland Tribune, Nov. 20, 2010.

Among the notable matters over which Thompson has presided, she presided over a trial of two defendants charged with 36 counts of involuntary manslaughter resulting from a 2016 fire at Oakland’s Ghost Ship warehouse. Alexandra Casey, Oakland Jury Reaches Jumbled Verdict on Ghost Ship Warehouse Fire, Daily Californian: University of California – Berkeley, Sept. 5, 2019. The case ended with the acquittal of one codefendant and a guilty plea from the other.

Statements and Writings

As part of her role as a judge, Thompson has occasionally commented on legal issues in the press. See, e.g., Sayre Quevado, The Complications Clearing a Juvenile Record, The Huffington Post, July 31, 2013.

Thompson also taught an ethnic studies course “Race and the Law” at the University of California, Berkeley. The course explored the role of the law in enforcing racial and gendered power structures. See Alice Ventura, Legacy of Desegregation Should Lead to More Latinx Representation, Daily Californian: University of California – Berkeley, Feb. 8, 2018.

Overall Assessment

With more than 35 years of judicial experience, Thompson represents a more old-school nominee model than the more youthful judicial candidates favored in recent years. While it is difficult to argue with Thompson’s qualifications, conservatives may look askance at Thompson’s teaching activities, particularly as it relates to race and the law. Liberals, meanwhile, may be disappointed with Thompson’s age.

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Judge Jacqueline Scott Corley – Nominee to the U.S. District Court for the Northern District of California

Judge Jacqueline Corley has built up an extensive repertoire of experience with complex civil litigation, and is poised for elevation to the U.S. District Court for the Northern District of California.

Background

Born Jacqueline Marie Scott in 1966 in Long Beach, California, Corley attended the University of California, Berkeley and Harvard Law School. After graduating, Corley spent two years clerking for Judge Robert Keaton on the U.S. District Court for the District of Massachusetts.

Corley then spent two years as an Associate at the Boston office of Goodwin Proctor before moving back to California to work as an Associate at Coblentz, Cahen, McCabe & Breyer. After name partner Charles Breyer (brother of the U.S. Supreme Court Justice) was elevated to the federal bench in 1997, Corley moved with him to be his career law clerk.

In 2009, Corley left to become a Partner at Kerr & Wagstaffe LLP in San Francisco, but was selected as a U.S. Magistrate Judge to replace Judge Edward Chen, who was appointed by President Obama to the Northern District bench. Corley currently serves as a magistrate judge.

History of the Seat

Corley has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on January 21, 2021, by Judge William Alsup.

In January 2021, Corley applied and interviewed for a federal judgeship with selection committees set up by California’s Democratic Senators Dianne Feinstein and Alex Padilla. In July 2021, Corley interviewed with the White House and was selected as a nominee in August 2021. Corley was nominated on November 3, 2021.

Legal Experience

The largest portion of Corley’s pre-bench career has been spent as a law clerk for Judge Charles Breyer on the U.S. District Court for the Northern District of California, where she spent eleven years. The rest of the time, Corley spent in private practice, where she primarily worked on civil issues, although she did work on some white collar criminal matters.

Among the notable matters that Corley was involved with, she represented a class of parents of servicemembers who died in Iraq and Afghanistan in a suit against Prudential, alleging that the company had withheld lump sum insurance payments that they were required to pay by statute. See In re: Prudential Ins. Co. of Am. SGLI/VGLI Contract Litig., 763 F. Supp. 2d 1374 (D. Mass. MDL Feb. 4, 2011) (2010-11). Corley had to withdraw from the representation upon appointment to the bench.

Corley also defended Cristobal Bonifaz, an attorney suing Chevron for environmental damage in Ecuador, against a lawsuit alleging malicious prosecution and seeking millions of dollars in damages. The case was largely dismissed by Judge Claudia Wilken, who ruled that the suit was barred by California’s anti-SLAPP law, but allowed a single claim to go forward. Chevron Corp. v. Bonifaz, 2010 WL 1948681 (N.D. Cal. May 12, 2010). The suit subsequently settled.

Jurisprudence

Since 2011, Corley has served as a federal magistrate judge for the Northern District of California, where she presides over bond matters, administrative appeals, and civil matters by consent. By his estimation, Corley has presided over around 26 trials in her judicial career, the most significant of which was a consolidated antitrust price fixing lawsuit, which she presided over by consent. See In re Cal. Gasoline Spot Mkt. Antitrust Litig., No. 20-CV-3131 JSC.

Corley notably presided over a three-week trial in a products liability action against a fertility clinic after the holding tank for frozen embryos failed. See In re Pac. Fertility Ctr. Litig., No. 18-CV-01586 JSC. The trial ended with a multi-million verdict for the plaintiffs although the case is awaiting final judgment at present.

Over the course of her decade on the bench, Corley has identified ten cases where her decision was reversed or criticized in full or part. Two of those decisions involve reports and recommendations issued by Corley that were only adopted in part by the District Court. See Facebook Inc. v. Sluchevsky, 2020 U.S. Dist. LEXIS 181249 (N.D. Cal. Aug. 28, 2020), Report and Recommendation adopted by, modified by, 2020 U.S. Dist. LEXIS 181241 (N.D. Cal. Sept. 30, 2020; Livingston v. Art.com, 2015 U.S. Dist. LEXIS 92191 (N.D. Cal. July 15, 2015). In three other cases, the Ninth Circuit largely affirmed her decisions (or criticized them in dissent). Lawson v. Grubhub, Inc., 302 F. Supp. 3d 1071 (N.D. Cal. 2018); In re Pac. Fertility Ctr. Litig., 814 F. App’x 206 (9th Cir. 2020); Garris v. FBI, 937 F.3d 1284 (9th Cir. 2019).

Among the rest, two of Corley’s reversals stand out in particular:

In Ramirez v. TransUnion LLC, the Ninth Circuit largely affirmed a class action verdict against the credit reporting bureau TransUnion (presided over by Corley), but was reversed 5-4 by the U.S. Supreme Court, finding that several members of the certified class lacked Article III standing. See 141 S. Ct. 2190 (2021).

In Cortesluna v. Leon, the Ninth Circuit reversed the grant of summary judgment that Corley granted against an officer who pressed his knee against the plaintiff’s back, leading to a claim of unreasonable force. However, the Supreme Court reversed per curiam, reinstating the grant of summary judgment that Corley had originally authored. See Rivas Villegas v. Cortesluna, 2021 WL 4822662 (U.S. Oct. 18, 2021) (per curiam).

Political Activity

Corley has a fairly limited political history, having made one donation to then Senator Barack Obama’s campaign in 2004.

Overall Assessment

Coming from an Administration that has prioritized drawing nominees from unusual sources, Corley is a surprisingly conventional nominee. That being said, Corley’s background lacks any real bases for controversy, and her traditional background should help her avoid controversy in the process.

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Judge Julie Rubin – Nominee to the U.S. District Court for the District of Maryland

Judge Julie Rubin, nominated to be a federal trial judge in Maryland, has served on the Baltimore trial bench for the last eight years.

Background

A native Marylander, Julie Rebecca Rubin was born on November 25, 1972 in Baltimore. Rubin received a B.A. cum laude from Mount Holyoke College in 1995, and then obtained a J.D. from the University of Maryland School of Law in 1998.

After graduation, Rubin worked for the Baltimore office of Shapiro & Olander P.A. for two years before joining Astrachan Gunst Thomas Rubin, P.C. in Baltimore with her husband James Astrachan.

In 2013, Rubin was nominated by Governor Martin O’Malley to be a Judge on the Baltimore City Circuit Court, where she currently serves.

History of the Seat

Rubin has been nominated for a seat on the U.S. District Court for the District of Maryland to fill the seat opened by Judge Ellen Lipton Hollander’s move to senior status upon the confirmation of her successor.

Legal Career

Rubin started his legal career at Shapiro & Olander P.A. and then spent twelve years as a name partner at Astrachan Gunst Thomas Rubin, P.C., where she worked on intellectual property and employment law matters. Among the matters she handled there, Rubin secured a $150,000 judgment for a Baltimore based design collective in a breach of contract action. See Brendan Kearney, Baltimore-base Design Collective Gets $150K Verdict, The Daily Record, Jan. 30, 2008. She also represented Caveo Network Solutions, securing a $500K verdict against a former president who started a rival company. See Danny Jacobs, Frederick Technology Company Wins $500K From Former Leader, The Daily Record, Feb. 21, 2011.

Jurisprudence

Rubin has been a judge on the Baltimore County City Court since her appointment to the bench in 2013. In her time on the bench, Rubin has presided over a number of prominent cases.

In 2015, Rubin notably dismissed the murder charge against Montrelle Braxton, finding that Judge Alfred Nance improperly declared a mistrial in a dispute with Braxton’s public defender, and that jeopardy attached to any attempt to retry Braxton. See Steve Lash, The Criticism That Ended the Murder Case, The Daily Record, Aug. 14, 2015. Prosecutors eventually dropped an appeal of her decision to dismiss charges. Lauren Kirkwood, Baltimore Prosecutors Drop Appeal of Dismissed Murder Case, The Daily Record, Feb. 19, 2016.

Rubin has also presided over a number of high value jury verdicts. For example, Rubin presided over a $1.6 million verdict in a lead paint poisoning case. Steve Lash, Baltimore Jury Awards $1.6M to Lead-Paint Victim, The Daily Record, Aug. 9, 2016. Rubin also awarded $30.7 million to Baltimore police and firefighters in a pension lawsuit. Steve Lash, Judge Awards $30.7 Million to Baltimore Police, Fire Retirees, The Daily Record, Apr. 8, 2020. In comparison, Rubin cut a $2.7 million award to a plaintiff in a prison assault case to $200,000 pursuant to Maryland law. See Heather Cobun, Verdict in Prison Guard Assault Case Cut to $200K Under Damages Cap, The Daily Record, July 24, 2019.

Overall Assessment

As a longtime civil attorney and state court judge, Rubin has a fairly conventional background for a judicial nominee. She is likely to have a smooth path to confirmation.

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Judge Alison Nathan – Nominee to the U.S. Court of Appeals for the Second Circuit

In addition to presiding over many high profile cases in her current post on the Southern District of New York, Judge Alison Nathan has a distinguished background, tailor-made for elevation to the Second Circuit.

Background

Born Alison Julie Nathan on June 18, 1972 in Philadelphia, Nathan received her B.A. from Cornell University in 1994 and then spent a couple of years working in Japan and Thailand before getting a J.D. from Cornell Law School in 2000. After graduating, Nathan clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and for Justice John Paul Stevens on the U.S. Supreme Court, as part of a clerk class that year produced five other federal judges: D.C. Circuit Judge Neomi Rao; Fifth Circuit Judge Gregg Costa; Ninth Circuit Judge Michelle Friedland; Northern District of California Judge Vince Chhabria; and Former Court of Appeals for the Armed Forces Judge Margaret Ryan.

After her clerkships, Nathan spent four years at Wilmer Cutler Pickering Hale & Dorr LLP before joining Fordham University School of Law as a professor. In 2008, she shifted to New York University School of Law.

After the election of President Obama, Nathan spent a year as Special Assistant to the President and Associate White House Counsel before joining the New York Solicitor General’s Office.

On March 31, 2011, Obama nominated Nathan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Sidney Stein’s move to senior status. Despite bipartisan support out of the Senate Judiciary Committee, Senate Republicans were cognizant of the likelihood that Nathan would be elevated and unanimously opposed her, leading to a squeaker 48-44 confirmation on October 13, 2011. Nathan currently serves on the Southern District.

History of the Seat

Nathan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat will be vacated by Judge Rosemary Pooler upon the confirmation of a successor.

On November 17, 2021, Nathan was recommended for the vacancy by Senate Majority Leader Chuck Schumer. However, Nathan was likely pre-vetted by the White House as her nomination was made public the same day.

Legal Career

While Nathan’s legal career from clerkship to the bench was a relatively short nine years, she managed to hold a number of positions in that time, including in government, academia, and private practice. During this time, Nathan tried one bench trial in federal court, while also filing one merits brief, four amicus briefs, and one petition for certiorari at the Supreme Court.

Among her more significant matters during her career, Nathan was part of the legal team defending the constitutionality of a New York state tax statute relating to the taxation on cigarette sales in Indian reservations. See generally Seneca Nation of Indians, et al. v. Paterson (multiple related matters). Nathan also authored an amicus brief at the Supreme Court on behalf of forty one states and the District of Columbia, arguing that the Constitution permits remote sellers of cigarettes to be subject to state and local regulations. The Second Circuit ultimately upheld an injunction against the statute allowing the regulations.

Political Activity

Before joining the bench, Nathan was active in working on Democratic campaigns, having taken time off while at Wilmer to work as a legal adviser on the John Kerry Presidential campaign and having done voter protection for ten months for the Obama campaign in 2008. Nathan also occasionally attended meetings of the New York Democratic Lawyer’s Council.

Jurisprudence

Nathan has served as a federal trial judge for approximately nine years. In her time on the bench, Nathan has handled a number of high-profile cases, some of which are detailed below:

American Broadcasting Cos, Inc. v. Aereo, Inc. – Nathan was assigned this suit by broadcasting companies seeking to prevent Aereo, a cloud-based streaming service for over-the-air television, from streaming their broadcasts. Nathan declined to enjoin Aereo, citing prior precedent confirming the legality of cloud-based streaming services. Nathan’s ruling was upheld by the Second Circuit but overturned 6-3 by the Supreme Court in 2014 (573 U.S. 431).

United States v. Ali Sadr Hashemi Nejad – In 2020, Nathan dismissed a prosecution against businessman Ali Sadr for violating U.S. sanctions against Iran after prosecutors disclosed issues with disclosing evidence. Nathan also criticized the conduct, ordering the government to identify the prosecutors responsible.

Guennol Stargazer – In 2021, Nathan ruled that the sale of a figurine extracted from western Turkey could not be enjoined as the figurine had been under display for years and there was no evidence that it’s excavation had violated Ottoman law. Furthermore, Nathan ruled that Turkey’s claims to the figurine were barred by the doctrine of Laches, which requires claims to be timely brought.

Ghislaine Maxwell – Nathan is currently presiding over the trial of British socialite Ghislaine Maxwell, who is accused of conspiring with Jeffrey Epstein in sex trafficking. Nathan previously ordered Maxwell held without bond, finding her to be a risk of flight.

Overall Assessment

There is little doubt that Nathan is well-qualified for a seat on the Second Circuit. Having extensive experience both as a judge and in analyzing the law as an attorney, Nathan would be able to hit the ground running on the famously intellectual court. Nonetheless, Nathan is likely to attract a sizeable cadre of opposition, based less on a particular decision or case but more on her likelihood to be a liberal heavyweight on the bench.

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Judge Cristina Silva – Nominee to the U.S. District Court for the District of Nevada

When President Trump nominated Jennifer Togliatti to the Nevada federal bench in 2019, she was expected to sail to confirmation. However, despite bipartisan support out of the Senate Judiciary Committee, Togliatti’s nomination stalled on the Senate floor as Majority Leader Mitch McConnell prioritized other nominees. With Togliatti left unconfirmed at the end of the Trump Administration, President Biden has now nominated Judge Cristina Silva to fill the vacancy.

Background

Cristina D. Silva graduated from Wellesley College in 2001 and from the Washington College of Law in 2007.

After graduation, Silva joined the Miami-Dade County State’s Attorney’s Office as a criminal prosecutor. In 2010, Silva moved to Nevada to become a federal prosecutor with the U.S. Attorney’s Office. In 2019, Gov. Steve Sisolack chose Silva to be a District Court with Nevada’s Eighth Judicial District, where she currently serves.

History of the Seat

Silva has been nominated for a seat on the U.S. District Court for the District of Nevada. This seat opened on June 29, 2018, when Judge James Mahan moved to senior status.

On October 16, 2019, President Trump announced the nomination of Jennifer Togliatti, a senior judge on Nevada’s Eighth Judicial Circuit, to fill the vacancy. While Togliatti received bipartisan support in being approved by the Senate Judiciary Committee, her nomination was never voted on the floor and the seat was left vacant at the end of the Administration.

On November 3, 2021, President Biden nominated Silva to fill the vacancy.

Legal Career

Silva spent her entire career before becoming a judge as a prosecutor: first working as a state prosecutor in Florida, and then as a federal prosecutor in Nevada.

Among the matters she handled as a prosecutor, Silva was part of the legal team prosecuting Caesars employees and guests participating in a scheme to illegally bet on the World Cup Soccer Tournament. See United States v. Wei Seng Phua, 100 F.Supp.3d 1040 (D. Nev. 2015). Among the various decisions in the prosecution, Judge Andrew Gordon suppressed evidence obtained by the government after they cut DSL service to a room and sent agents disguised as DSL employees to conduct a search. See id. at 1047. Judge Gordon found that any consent for the government agents was invalid and the result of deception. See id. at 1040.

Jurisprudence

Silva served as a trial court judge in Nevada since her appointment in 2019. Among the matters she handled as a trial court judge, Silva denied the postconviction habeas petition for Lee Reed, who was convicted in a proceeding where jury selection was conducted without swearing in the jury venire. See Reed v. State, 472 P.3d 192 (Nev. 2020). The Nevada Supreme Court affirmed the denial of relief, finding that Reed couldn’t demonstrate prejudice from his trial counsel’s failure to object. Id.

Among other matters, the Nevada Supreme Court overturned Silva’s ruling not to seal criminal records in a misdemeanor sexual offense case. See In re Tiffee, 485 P.3d 1249 (Nev. 2021). The Nevada Supreme Court also overruled Silva’s decision to allow victim impact statements from family, friends, and coworkers of the victims killed by a drunk driver, noting that she took too broad a view of a “victim” under Nevada law. See Aparicio v. State, 496 P.3d 592 (Nev. 2021).

Overall Assessment

While Togliatti’s bid to fill this judgeship stalled, Silva’s looks more likely to be successful. While she is still likely to draw a sizable contingent of opposition, there is little in Silva’s background that is likely to be be fatal to confirmation and nominees who have served as prosecutors have generally attracted less controversy in general. As such, barring the unexpected, Silva will likely be confirmed early next year.

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Anne Rachel Traum – Nominee to the U.S. District Court for the District of Nevada

Anne Rachel Traum, a law professor with the University of Nevada, was nominated for a federal judgeship in the waning days of the Obama Administration but was never confirmed. Traum now has a second chance to join the U.S. District Court for the District of Nevada.

Background

Anne Rachel Traum was born in 1969 in Redwood City, California. Traum graduated from Brown University in 1991 and from the University of California Hastings College of Law in 1996.

After graduation, Traum clerked for Judge Stanwood Duval on the U.S. District Court for the Eastern District of Louisiana and then joined the Environment and Natural Resources Division of the U.S. Department of Justice. Traum then spent two years as a federal prosecutor before becoming a public defender in Las Vegas. Since 2008, Traum has worked as a law professor with the University of Nevada Las Vegas William S. Boyd School of Law.

History of the Seat

Traum has been nominated for a seat on the U.S. District Court for the District of Nevada. This seat opened on February 1, 2016, when Judge Robert Clive Jones moved to senior status.

On April 28, 2016, Traum had been nominated by President Barack Obama to replace Jones, but her nomination was never considered by the Senate Judiciary Committee and was not confirmed before the end of the Obama Presidency. Throughout his Presidency, Trump never nominated a judge to replace Jones and the seat remains vacant to this day.

Legal Career

Traum started her legal career at the Department of Justice, where she worked on issues of Indian and environmental law, as well as a detail with the U.S. Attorney’s Office in Nevada, where she worked in the civil division on both affirmative and defensive cases. Additionally, from 2002 to 2008, Traum worked as a federal public defender, and has worked as a law professor since 2008. Throughout her career, Traum has tried one criminal jury trial and one habeas bench trial.

Among the notable cases she handled, Traum represented a defendant serving a 52-year sentence on a habeas petition. See Mitchell v. State, 149 P.3d 33 (Nev. 2006). Traum was able to obtain a vacatur of Mitchell’s conviction for attempted murder and his release from prison, arguing that a conviction for attempted murder required proof of a specific intent to kill. See id.

Writings

As a law professor, Traum has written multiple papers on criminal law and procedure. In particular, Traum has been fairly critical of the Supreme Court’s narrowing of Confrontation Clause protections in Ohio v. Clark, which allowed evidence of a 3-year-old’s testimony to be introduced against a defendant. See, e.g., Anne Traum, Confrontation after Ohio v. Clark, Nevada Lawyer, Oct. 1, 2015. Traum has noted that the Clark decision could eliminate a defendant’s confrontation rights in a variety of cases.

In another paper, Traum advocated that judges should consider the systemic impact of mass incarceration in making individual sentencing determinations. See Anne R. Traum, Mass Incarceration at Sentencing, 64 Hastings L.J. 423 (2013). In doing so, Traum argues that judges can mitigate the effects of mass incarceration.

Overall Assessment

While Traum’s last nomination to a federal judgeship was unsuccessful, put forward under a Democratic Senate, Traum is likely to be confirmed early next year barring unexpected developments. Any opposition to her opposition will likely point to her academic writings in arguing that Traum has been unduly critical of the criminal justice system and Supreme Court jurisprudence.

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Judge Leonard Stark – Nominee to the U.S. Court of Appeals for the Federal Circuit

The lone judge on the Federal Circuit with experience as a federal trial judge is retiring next year. President Biden has nominated a second trial judge, Judge Leonard Stark, from his home state of Delaware to replace her.

Background

Born on July 5, 1969 in Detroit, Leonard Philip Stark received a B.A., an M.A., and a B. Sc. from the University of Delaware in 1991 and received a J.D. from Yale Law School in 1996. After graduating, Stark clerked for Judge Walter Stapleton on the U.S. Court of Appeals for the Third Circuit.

After his clerkship, Stark joined the Wilmington office of Skadden, Arps, Slate, Meagher & Flom as an Associate. In 2002, Stark became an Assistant United States Attorney in Delaware. In 2007, Stark became a U.S. Magistrate Judge for the U.S. District Court for the District of Delaware.

On March 17, 2010, Stark was nominated by President Barack Obama to the U.S. District Court for the District of Delaware. He was confirmed unanimously by the U.S. Senate on August 5, 2010, and has served on the U.S. District Court since then.

History of the Seat

Stark has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit. The seat will open on March 11, 2022 when Judge Kate O’Malley moves to senior status.

Political Activity

While at the University of Delaware, Stark worked as a co-coordinator for Michael Dukakis’ presidential campaign. In 1992, Stark was an alternate delegate for Bill Clinton’s campaign.

Legal Career

After his clerkship on the Third Circuit, Stark joined Skadden Arps in Delaware, working in corporate and securities law. He then spent five years as an Assistant United States Attorney, working in both the criminal and civil divisions. Over the course of his career, Stark worked on two bench trials at Skadden and two jury trials at the U.S. Attorney’s Office.

Among the notable matters Stark handled at Skadden, he was part of the legal team for Cantor Fitzgerald LP, who sued several of its partners for breach of agreement, leading to a forty-day bench trial ending in a ruling in favor of Stark’s client. See Cantor Fitzgerald, LP v. Cantor, Del. Ch. No. 16297, 2000 WL 307370 (Del. Ch. Mar. 13, 2000).

Among his significant cases at the U.S. Attorney’s Office, Stark prosecuted three high-ranking officials with New Castle County, Delaware, for public corruption, racketeering, and fraud. See United States v. Gordon. Stark also handled appellate matters for the office, successfully defending a conviction and sentence for bank robbery before the Third Circuit. See United States v. Faines, 216 Fed. Appx. 227 (3d Cir. Feb. 14, 2007).

Jurisprudence

In 2007, Stark, at only 38, was appointed to be a U.S. Magistrate Judge for the District of Delaware, where he presided over arraignments, bond hearings, and federal misdemeanors, as well as felonies and civil cases where the parties consented to magistrate determinations. In his time as a magistrate judge, Stark handled one civil trial. Among the prominent cases he handled, Stark recommended that a class action challenging misrepresentations in automobile insurance agreements should be dismissed, a recommendation adopted by Judge Joseph Farnan and affirmed by the Third Circuit. See Eames v. Nationwide Mutual Ins. Co., 2009 WL 3041997 (3d Cir. Sept. 24, 2009).

Since his confirmation in 2010, Stark has been a U.S. District Court Judge on the District of Delaware, where he was made a name for himself by carrying an extensive patent docket. For example, Stark currently has 264 active patent cases on his docket and has presided over 31 patent jury trials. In a recent notable ruling, Stark ruled that Mentone Solutions could not patent packet data transmissions, as this was an invalid patent of an “abstract idea.” The Federal Circuit reversed Stark and revived the patent in a November 15 ruling.

Writings

Stark has written extensively throughout his career, including pieces describing the jurisprudence of his mentor Judge Walter Stapleton, see eg., Leonard Stark, Judge ‘The Game By The Rules’: An Appreciation of the Judicial Philosophy and Method of Walter K. Stapleton, 6 Delaware Law Review 223 (2003), and on presidential history. See Leonard Stark, Review: Mutual Contempt – Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, 85 The American Oxonian 210 (Spring 1998). More interestingly, as a college student, Stark drafted multiple papers on the negative effects of gender roles, particularly in perpetuating homophobia and sexism. See L.P. Stark, Traditional Gender Role Beliefs and Individual Outcomes: An Exploratory Analysis, 24 Sex Roles: A Journal of Research 639 (1991). See also Leonard Stark, Examining the Effects of Gender Roles, 10 Enquiry: Research at the University of Delaware 8 (1989).

Overall Assessment

With extensive experience with patent litigation, it is hard to argue that Stark would not be qualified for the patent-heavy docket of the Federal Circuit. He will likely get a fairly smooth confirmation with bipartisan support.

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