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.

129 Comments

  1. Judge Stark had a relative smooth hearing today. He answered senator Kennedy’s questions very well. With him being nominated to the circuit court that usually gets the least scrutiny, combined with his years as a district court judge, I look for him to be confirmed relatively easy, maybe even in excess of 70 yes votes.

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  2. The Dale Ho hearing was contentious…..I was glad Senator Whitehouse brought up some nominees from the last president, whose name escapes me, and how they had anti-left sentiment…

    Thus far this week, no cloture votes filed…..And at Thurs SJC meeting, 12 nominees should be reported to the floor which will mean 18 nominees total awaiting final confirmation…

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    • Both senators Hirono & Whitehouse did a good job pointing out the Republican hypocrisy on judicial nominees. We all knew Dale Ho’s confirmation hearing was going to be rough. That’s why I believed he deserved to be nominated to either the 2nd circuit, a deal made that he moved to Connecticut & be nominated to one of those two vacancies or my personal favorite & just nominate him to the DC circuit. Either way this batch needs to be put on the executive calendar for next week so they can be held over & voted on to the floor as soon as the senate returns for the new year. If they were really ambitious they would work the first week of the Christmas recess with so much that needs to be done & vote them out that week so they will already be on the floor upon the return from the Christmas recess but I don’t expect that from these Democrats.

      I understand the senate has a lot on it’s plate but they either need to vote for some judicial nominees this week or commit to cancelling at least a few days of the first week of the Christmas recess. At a minimum two Luch Koh & Jennifer Sung needs to be voted on for cloture Thursday to set them up for a vote Monday of next week.

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      • Slightly OT 9th Circuit news.

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      • Hopefully some combination of judges Thomas, McKeown, Wardlaw, Gould, Rawlinson, Callahan, Smith & Ikuta takes senior status & by relatively early in 2022. The White House should already have a short list for the Montana, Washington & Nevada seats. I’m sure there already is a very healthy list for any California vacancy.

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    • Senate just gaveled out til Monday…..Schumer filed cloture on couple executive nominations, no judicial…..I’m thinking the judicial nominees are going to expire at end of this Congress and we’ll have to go through this charade again in Jan….

      They are scheduled to be done next Thurs, and I cannot see them getting thru all the judicial nominations especially when 3 need a discharge vote….

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      • It’s almost criminal that the senate is taking tomorrow off. Even worse if they do not cancel some of the first week of the Christmas recess. I saw the SJCC set up an executive calendar for next Thursday but no nominations hearings. With all of the polling issues the Democrats are having this year with not getting other big ticket items taken care of, I at least expected the to be solid on judges. They are truly disappointing with the limited time they have until they could be out of the majority, either by the midterm losses or by an untimely loss of a senator in a state with a Republican governor.

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  3. They’re off almost all Fridays and the Monday schedule is always super light…….They gavel in at 3pm. do one cloture vote at 5:30pm then adjourn after that…..

    Tues is weekly caucus lunch meeting day, so best case scenario would be cloture votes starting Tues in late afternoon on judicial nominees, but that likely can only happen if Schumer files cloture on nominees Mon evening….

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    • Correct. Absolutely horrible. Senator Schumer waited so long to become majority leader & this is what we get. He’s done a phenomenal job on judicial recommendations but this schedule simply won’t cut it if they are going to get real big things accomplished along with substantially cutting into the rightward shift Trump put the courts on.

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      • Now a 3rd Circuit opening,,

        I remember there was a 3rd Cir nominee in last admin that Sen Casey did NOT support, yet the nominee advanced and was confirmed…..so turnabout is fair play, I hope Casey doesn’t even consult with Toomey re; this nomination…

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      • This is outstanding news, especially after the bad news of Robert King withdrawing his 4th circuit senor status. Hopefully President Biden already has a couple of nominees pending for the first vacancy so he can quickly nominate both seats at the same time. It was highly speculated that judge Smith was going to take senor status at the end of his chief judge status since he already had another career lined up so this announcement should not have been much of a surprise.

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  4. Bob Casey has a close working relationship with Pat Toomey, so they will be in touch about this. Also, Toomey personally has little use for Donald Trump, though he supported his judicial nominees.

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      • Republicans should have little input on circuit court nominees (There are no more blue slips for these seats) similar to how Republicans treated Democrat senators during the Trump administration. Now of course if you have a vacancy in a state in which the Republican senators are working in good faith with the Biden administration on district court vacancies (Where blue slips still exist) then that could be a reason to work with them, but they should not have veto power or push the administration to nominate a centrist.

        The nomination of Andre Mathis to the 6th circuit seat in Tennessee should be the model (A progressive young minority candidate). A suggestion for one of the seats would be Nilam Sanghvi, the Pennsylvania Innocence Project’s legal director in her low 40’s. Picks such as Wendy Beetlestone in her 60’s or former Obama nominees such as Rebecca R. Haywood, a moderate in her mid 50’s should be avoided.

        Even Ilana H. Eisenstein who co-chairs DLA Piper’s appellate practice and co-directs the appellate advocacy clinic at the University of Pennsylvania Law School is probably not a great choice albeit if senator Toomey was willing to negotiate in good faith for all of her district court vacancies, she wouldn’t be a bad compromise pic for one of the two vacancies as long as the other is a progressive since she is in her low 40’s & worked in the Obama solicitor general’s office.

        The fact of the matter is there are too many progressives in Pennsylvania so at least one of the two vacancies needs to be bold. With 12 of the 14 active judges on the 3rd circuit being men, it is most likely both nominees for these two vacancies will be women.

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      • At least one of these nominees should be a Black candidate, given there would be no Black judge on the 3rd Circuit from PA (McKee is retiring). I agree that Haywood is not acceptable at this point. My suggestion would be labor lawyer Amanda Green Mathews, a Pittsburgh attorney who has argued several cases at the 3rd Circuit for the Steelworkers. She also narrowly lost (by 0.25%) an election to the PA appellate court in 2019.

        Bob Casey strongly opposed several of Trump’s 3rd Circuit selections, and as such Toomey should not be consulted at all regarding these 3rd Circuit selections. One note, Senator Casey is anti-choice, although less so that he was when he got elected. While (unlike Manchin) he has not voted against strongly pro-choice nominees in the past, he is also unlikely to recommend anyone with a reproductive rights background. Someone like Amanda Green Mathews would be the kind of nominee Casey would be comfortable with.

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    • This is overstated regarding judges. Casey strongly opposed several of Trump’s 3rd Circuit nominees from PA, and Toomey blocked Obama’s 3rd Circuit nominee Rebecca Ross Haywood. The basic deal in PA for district court nominees where the party out of power gets to choose one in every four nominees still holds.

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      • I agree at least one of the nominees needs to be Black. The only information I could find on any Amanda Green Alexander was for a black woman in Mississippi. I assume that’s not the one you are talking about.

        I like Christina Swarns a lot but with her being near her mid 50’s I would rather a nominee 5 to 10 years younger.

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      • Ah ok, yes now I see Amanda Green Hawkins. She seems to be born around 1975 & record looks good. If senator Casey really wanted to get back at Tomey for the extreme Trump picks (Particularly David Porter) there are probably more progressive picks, but I wouldn’t be upset at all if she was the nominee.

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    • Per your question above, the nominees will expire if they’re not confirmed, but can easily be renominated…

      Another day in the senate that makes one scratch their head…..Schumer filed cloture on 2 executive nominees but no judicial..

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      • Ok, that makes sense. Thanks for the explanation.

        And reply to Shawn…

        Honestly both the senate judiciary committee & leader Schumer have been dropping the ball the past few weeks. Next week will be the second out of the past three weeks the senate has been in session there will be no nomination hearings.

        In addition the senate should have held sessions the past two Friday’s there were no recess just for judicial nominations. At a minimum the past two Thursday’s leader Schumer should have filed cloture on all pending appeals court nominees before leaving on last Thursday so they would be teed up for votes this past Monday starting at 5:30PM.

        I’m truly disappointed Schumer isn’t playing hardball with the Republican obstruction & forcing votes on Friday’s & even some Saturday’s if they want to force discharge votes. All discharge votes should be held on Friday’s moving forward as a punishment to obstructionist Republicans.

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  5. Here was excerpts from part of Schumer’s remarks on floor earlier today so perhaps we’ll see judicial nominee movement very soon:

    “AS WELL. FIRST, WE’LL CONTINUE WORKING AS NECESSARY TO PROCESS PRESIDENT BIDEN’S NOMINATIONS, BOTH TO THE FEDERAL BENCH AND TO SERVE IN KEY POSTS WITHIN HIS ADMINISTRATION. ON THAT FRONT, TODAY WE’LL BEGIN CONSIDERATION OF A TERRIFIC NOMINEE, JESSICA ROSENWORCEL TAPPED BY PRESIDENT BIDEN TO SERVE AS CHAIR OF THE FCC. MS. ROSENWORCEL HAS NEARLY A DECADE OF EXPERIENCE ALREADY AS A F.C.C. COMMISSIONER AND WILL SOON BE THE FIRST EVER WOMAN CONFIRMED TO SERVE AS CHAIR, BREAKING ANOTHER GLASS CEILING IN OUR GOVERNMENT. SHE HAS BEEN A FIERCE ADVOCATE FOR CLOSING THE DIGITAL DIVIDE, FOR PROTECTING NET NEUTRALITY, AND WHEN CONFIRMED MS. ROSENWORCEL WILL OVERSEE CHRIS CAL FEDERAL PROGRAMS THAT HELP LOW-INCOME AMERICANS SECURE INTERNET ACCESS. THERE ARE OTHER NOMINEES TO COME THIS WEEK. REGRETTABLY, IF OUR REPUBLICAN COLLEAGUES CONTINUE THEIR HOLDS ON VARIOUS INDIVIDUALS, SENATORS SHOULD PREPARE FOR THE POSSIBILITAS WELL”.

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    • I have all the confidence in the world in Republicans continue to obstructing. I have little in the Democrats responding in kind. At a minimum the should stay in session Friday & into the first week of the Christmas recess next week. We have not had one batch of judicial nominees confirmed by voice vote which has been done in previous administrations of both parties including for Trump.

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  6. Schumer finally started with the judicial nominees to end the night. He filed cloture on Koh, Sung & Samantha Elliot tonight. I’m hoping with the debt ceiling, defense bill & other issues that need to be taken care of before the end of the year, they will work into at least next week instead of starting the Christmas recess on time & confirm many more judicial nominees before the years end.

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  7. The senate judiciary committee just announced a nominations hearing for next Wednesday, December 15th. This is GREAT news. Hopefully at least one of the two pending appeals court nominees (Mathis or Nathan) can be in this hearing since their nominations were sent November 18th.

    Since Nathan is currently working on the Jerry Epstein case & said she would not leave until that case is done, combined with her already being a sitting federal judge, Mathis should be the priority if only one appeals court nominee is in this hearing.

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      • 1000% unless they had Andrew Manuel Crespo in mind for one of the Massachusetts vacancies with the understanding that if judge Lynch retires next year (Which hopefully she does), he would be in line for the 1st circuit.

        You can always consider him for the DC circuit if he’s nominated to the MA district court as long as Biden drops that horrible decision that judges for that court must come from tue DC area. You can’t do it in the opposite direction if you appointed him to the DC district court & all of a something judge Lynch retires while no vacancies open up on the DC circuit.

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      • Honestly, I think Bessie Dewar, the MA solicitor general, would be a favorite for the 1st circuit if Lynch goes. Dewar is a LGBT candidate who has both progressive and traditionalist (former SCOTUS clerk, state solicitor general) credentials.

        Crespo should be considered for the DC Circuit.

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      • If Crespo was nominated to the DC district court, I would keep somebody like Karla Gilbride on standby in case another vacancy opens up on the DC circuit & Crespo is nominated there. It would be harder for Republicans to obstruct a bling nominee who is clearly qualified.

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  8. Well, the bad news is the senate just adjourned & will not be in session tomorrow or this weekend. But the good news is they invoked cloture on Koh & Sung & will vote to confirm Koh Monday at 5:30PM. That means the senate will be in session next week instead of the scheduled start of the recess which is GREAT news.

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    • But they still have almost a dozen nominees who have to go thru cloture and floor vote….Also, we’ll have 4 more district court nominees next Thurs who will report out of SJC…..

      I just hope Schumer doesn’t let these nominees expire and we have to wait to Jan and go through this song & dance again..

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      • I completely agree. If I had to bet most likely they will be in session Monday – Thursday, then start their Christmas recess. Schumer really should have voted on cloture tonight on Gabriel P. Sanchez then come in tomorrow & vote to discharge the three nominees from the SJC & also voted on at least 3 more district court seats.

        That would have set up votes on Monday on at least Koh & Sung. Then on Tuesday then could have been well on the way to voting to confirm most of the remaining nominees if they worked next week Friday before starting their recess. Now all we can hope for is some deal where a block of at least a half dozen or so district court nominees are confirmed by voice vote like has been done in most previous administrations. I doubt it however.

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      • I just want to add the 5 Superior Court of D.C. nominees. Peters tried to get them confirmed by voice vote on Wednesday, but was blocked by Scott of Florida, who demanded a floor vote, because of terrible quality of the Biden nominees.
        Nothing about the one Court of Appeals nominee of D.C…

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  9. Sung & the 3 nominees who need a discharge vote will be opposed by all 50 GOP senators, thus I think Schumer might need to coordinate with VP Harris and she’ll have to be the tie braking vote for Sung’s confirmation vote as well as all three votes needed (discharge, cloture, final vote) for Thomas, Sweeney, Vera…..So senate Democrats need to make the scheduling work…..

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    • With Monday – Thursday likely being the last days before the senate recess, VP Harris just needs to be available the latter 3 of those days. Under NO circumstances should the senate recess with any of the 4 9th circuit nominees not confirmed & at least a majority (If not ALL) of the 10 district court nominees confirmed.

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  10. And we have another 7th Circuit opening this Fri morning…

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    • Here’s an outside pick for Durbin to recommend replacing judge Wood. I would consider Nusrat Choudhury. On September 1st senator Schumer recommended her for a seat on the Eastern District of New York. However, if you read the article which I will put below, she is actually the legal director at the American Civil Liberties Union of Illinois. Since Schumer recommended her over 3 months ago, I assume she has been vetted completely & will probably be announced in the December batch of nominees.

      If Durbin were to recommend her for the appeals court she could be in a hearing at the end of January & confirmed around early March. She would be the first Muslim judge on the court of appeals (And only second ever) so Durbin would get a historic pick as well. And at the age of 44, she could be considered for a future SCOTUS vacancy for over a decade.

      (https://www.huffpost.com/entry/chuck-schumer-judicial-nominees-biden_n_612f8a5fe4b05f53eda226f0)

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      • There is a massive number of progressive candidates in NYC, LA, SF, and DC areas. If a candidate has ties in a different area, they should be considered there first. But there are actually a wealth of progressive candidates in the Chicago area too, and given that Judge Diane Wood was an academic, I’d like to see her replaced with another one.

        Also, if anyone else is considering retirement on the judiciary, now is the time to senior status.

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  11. Judge Paul W. Grimm announced he will take senior status in one year. This should give the Maryland senators plenty of time to get young, progressive nominee.

    Lydia Kay Griggsby is solid but born 1968 so a little old. Deborah Boardman is very progressive & born in 1974 so I hope she is the model for a nominee. The current nominee Julie Rubin was born in 1972 but pretty bland. Nothing in her record shows her to be a progressive. There are a host of young, progressive law professors that should apply. In addition, here are some additional more well-known names that would be good…

    Karla Gilbride (Born around 1982) – Probably highly being considered for the DC circuit but as a young, progressive & blind lawyer, she needs to be on the federal bench somewhere. If she is not chosen for the for the DC circuit or DC district court, this seat is just North of Washington DC so she should be considered for this.

    Ajmel Quereshi (Born around 1981) – Senior Counsel at NAACP Legal Defense Fund.

    Matthew S. Hellman (Born around 1976) – The associate trustee for the Washington Lawyer’s Committee for Civil Rights and Urban Affairs.

    Anne Joseph O’Connell (Born around1974) – A Stanford Law School professor focused on administrative law, a D.C. Circuit mainstay and an appointed senior fellow of the Administrative Conference of the United States. The Truman scholar worked at several federal agencies and volunteered for Biden’s campaign.

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  12. Very interesting names! Speaking of the D.C. Circuit: What is taking them so long to come up with a nominee for the Tatel seat? There are no home-state senators to gratify and they must have had a list of candidates prepared on Inauguration Day given that two Clinton appointees on that crucial court were close to or over 80.

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    • I am sure he would be a solid pick (though I would prefer a younger candidate tbh), but I don’t expect Wood to be replaced with a man. If there is an obvious candidate it’s probably judge Andrea Wood. Otherwise, I could imagine ACLU leader Nusrat Choudhury and Deputy Solicitor General Sarah Hunger. They may also be looking for someone from legal academia.

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      • I wrote in an earlier post Nusrat Choudhury would be my pick for the 7th circuit. Even though Chuck Schumer recommended her for the Eastern District of New York, she is the legal director at the American Civil Liberties Union of Illinois. With her being recommended on September 1st (Link below), she should have already been vetted & can be named in the December batch & have her hearing next month after the return of the senate from recess. And of course, senator Durbin would get to recommend a historic pick as the first Muslim appeals court judge in the history of the country.

        Edmond E. Chang is a good choice but being 51 there are certainly younger & more progressive choices that you won’t have to waste time backfilling them as a district court vacancy would be created.

        Andrea Wood was my choice for the first vacancy, but I doubt there will be two consecutive black women named. If I had to guess, I would bet on a name not know to the general public like the first pick Candace Jackson-Akiwumi. She wasn’t even living in Chicago at the time as she worked for a law firm in DC.

        I would like to seed a young, progressive AAPI lawyer or law professor if not Nusrat Choudhury. Since Dale Ho wasn’t nominated to an appeals court like I wanted, he is not set up for a future SCOTUs opening. That leaves only Goodwin Lui as the only viable AAPI judge who could realistically be nominated to a future SCOTUS vacancy & he is already 51 years old.

        I would expect the Illinois vacancy to be filled before the Indiana seat. I am sure the Biden administration would like to consult in good faith with those senators as there are two district court vacancies in Indiana as well which would require blue slips.

        (https://www.huffpost.com/entry/chuck-schumer-judicial-nominees-biden_n_612f8a5fe4b05f53eda226f0)

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      • I’ve seen Professor Jennifer Nou’s name mentioned in previous post. I want to say she would be a great pick for the 7th circuit, I really do. Shes a 41-year-old AAPI law professor at the University of Chicago Law School. She clerked for Justice Breyer. She seems to check all of the boxes I’m looking for in a Biden appeals court nominee except for one…

        I have reviewed her background multiple times & I just don’t see anything that shows me she is a proven progressive. I would believe she more than likely is but in a solid blue state with the deep bench of young, progressive & diverse nominees just from metro Chicago alone, let alone the entire state of Illinois, I have a hard time putting her over a lot of other possible nominees with a Democrat controlled senate. Perhaps she would be a better pick if the Republicans take control of the senate & another vacancy opens up after that.

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      • Kate Shaw would be a phenomenal choice for the 7th Circuit and as you said has strong ties to Illinois.
        Here’s the problem, her husband is Chris Hayes of MSNBC and I think unlike most others, they might be very reluctant to move. (I’m guessing that MSNBC probably won’t let Hayes host his show entirely remotely).

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      • I tend to agree that Kate Shaw might have difficulty being confirmed. The primary reason is that she has pretty openly expressed her pro-choice views and Manchin has a history of voting against nominees (in the Obama era) who have been too openly pro-choice.
        It is the same reason why I said that I don’t think Melissa Murray would get a no vote from Manchin

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  13. I hope the senate is planning on coming in next week to, as Schumer filed no new cloture motions today……And with 3 discharge votes needed on 3 nominees, there is no way they could complete all the judicial nominees by this Thurs….

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    • The senate coming in next week would be great, but I doubt it. Just to get them to come in this week was a God send. I would much rather they work all day Friday & Saturday. Today was good to get one appeals court judge confirmed but it would have been more beneficial to either discharge all three tie votes from the SJC last week or at least invoke cloture on Samantha D. Elliott & Gabriel P. Sanchez.

      I am hoping Schumer has a back-room deal going with the Republicans to at least confirm all or most of the district court nominees that are pending on the floor, but I doubt it.

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  14. Your wish is my command, lol..

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    • I just saw that too. No way, Durbin would be committing judicial suicide if he allowed blue slips to return for the appeals court. Mathis really should have went before Nathan or just have them both go tomorrow & take one of the district court nominees off. Nathan is already a sitting district court judge & from a blue state. I doubt there will be another hearing this year but they really should have one next week, The Republicans held one for Raúl M. Arias-Marxuach late December last year so there is recent precedent.

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    • I am absolutely floored there are no circuit court nominees in the December batch, especially for the DC circuit.

      I’m happy to see they were able to work out a nominee for the Wisconsin district court seat. There was a female public defender in the list of 4 recommended that was much younger then the nominee in the article but I guess senator Johnson threatened not to turn in his blue slip for her so they went with the older nominee.

      I’m happy to see Hector Gonzalez in the batch despite his age of around 58 years old. I actually thought he should have been in one of the earlier batches. He is very liberal & has been passed over for the district court & NY court of speaks (Their Supreme Court) in the past & deserves to be a federal judge.

      It’s disappointing to see California continue to only nominate sitting state court judges to the federal bench. That’s leaving out too many other great possibilities.

      The second biggest surprise is Nusrat Choudhury is not in this batch despite being recommended by Chuck Schumer on September 1st along with Clarke & Morrison. I hope that is because they are considering what I thought would be best & instead nominate her to the 7th circuit seat since she is the ACLU director in Illinois.

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  15. And the last item today was Schumer announcing expect a discharge vote Thurs for Thomas !.

    “FOR THE INFORMATION OF SENATORS, WE EXPECT TO MOVE TO DISCHARGE THE THOMAS NOMINATION FOR THE NINTH CIRCUIT THURSDAY, IF THERE’S NO FURTHER BUSINESS TO COME BEFORE THE SENATE, I ASK THAT IT STAND ADJOURNED UNDER THE PREVIOUS ORDER.”

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      • I’d like to take a moment to say I think yesterday was the best day for the judiciary in over 7 years. We got the 11th batch of nominees early in the morning. The senate confirmed a circuit court & then district court nominee. Then another 3rd circuit judge announced he will take senior status. Finally leader Schumer filed cloture on all pending article 3 nominees with a notice the senate will move to discharge Holly Thomas tomorrow.

        I can’t think of a day this good for the judiciary since after the midterm losses for the Democrats in 2014 when they were about to go on recess but senator Cruz did some move to hold the senate in session. Senator Harry Reid then took that time to file for cloture in about a dozen pending nominees including 3 from Texas & the senate proceeded to confirm them all before leaving & returning to Mitch McConnell being the majority leader. Yesterday felt that good.

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  16. I remember the votes they had at end of 2014……Had they gone on recess those nominees probably would have expired, and the GOP never would have confirmed them when they took over senate in 2015…..Only 2 Circuit nominees got confirmed in 2015-16, and one of them was to Federal Circuit, court that mostly deals in patent law…

    Some say Reid never should have went with the nuclear option in Nov 2013, but i disagree 100%……Had Reid not used the nuclear option, McConnell absolutely would have when he took over senate…….The 3 DC Circuit nominees that got confirmed at end of 2013 beginning of 2014 would have NEVER gotten confirmed and then McConnell would have filled the seats in 2017…..

    The only problem was Democrats should have invoked the nuclear option in 2009, and not 2013……..

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    • In retrospect the mistake was negotiating with Senate Republicans in 2005 to prevent the nuclear option then. Democrats basically gave Bush a blank check in 2005-2006 regarding judges in order to retain the filibuster in 2007. I understand it at the time because the GOP held a 55-45 advantage and picking up 6 seats was going to be difficult (while picking up 3-4 seats was pretty likely). But in retrospect it would have been a huge benefit greatly if the filibuster for nominees were removed.

      The other *massive* mistake the Democrats did then was to not agree to confirm Harriet Miers. There was basically zero chance that Bush was going to appoint anyone better. Miers was ridiculously unqualified, but I suspect she was far more pragmatic on a whole host of issues than another option. Harry Reid should have went to Bush and told him that the Democrats would provide 30+ votes to confirm Miers unless something explosive comes out about her.

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      • Very VERY good point about Harriet Miers. I would much rather have an unqualified right of center unknown versus a very qualified ultra conservative Samuel Alito. And it probably wouldn’t have taken 30 Democrats. I suspect with pressure from Bush, there would have been only a dozen to 15 defects from the GOP had he stuck with her.

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      • Yes, I agree that there would have been only around 15 GOP defections on Miers at the end. But I think knowing that Reid would deliver 30 Dem votes may have stiffened President Bush’s spine to stick with Miers and potentially get a huge bipartisan win.

        Honestly I think Miers is the kind of person who would be really turned off by Trump. It wouldn’t shock me if she had regularly sided with the liberals on several issues post-2016. Look at how Bush himself reacted to Trump.

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      • Oh yea, definitely. Having two dozen or so Dems in his back pocket would have definitely hardened Bush’s spine. Especially since his wife & most around him were pushing him to replace O’Connor with a women. I thought he would go with one of the two conservative 5th circuit female judges at the time but Myers would have been light years better compared to either of them & certainly Alito from a Democrat standpoint regardless of how unqualified she was. Plus correct me if I’m wrong but I believe she was in her 60’s as well.

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      • I was against her nomination in 2005 as well but looking back on it, a 60 year old right of center unqualified Harriet Miers would have been the best case scenario knowing then what we know now. She probably would still be on the bench today & Chief justice Roberts could sway her much easier then justice Alito. Plus she would be on the retirement watch similar to justice Breyer who is less then a decade older then her.

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      • Well I thought that Harriet Miers was the best case even at the time. I didn’t think that Bush was going to appoint someone better, and I didn’t think there was any chance to prevent a nominee from being confirmed with a 55-45 Senate. Even if you were able to block one, the second one would get confirmed. And while obviously I didn’t care for a Justice Miers, I was hoping she would get confirmed. The only possible nominee who Bush would possibly appoint that could be better than Miers was Alberto Gonzales, and he was the Attorney General.

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      • That was good hindsight @Shawn. Alberto Gonzales wouldn’t have been as bad as Alito but then Republicans would have gotten credit for the first Hispanic justice. That is why senator Durbin & the Democrats fought so hard against Miguel Estrada. Because he was 41 at the time & almost certainly would have been selected for the SCOTUS by Bush sitting on the DC circuit.

        I actually thought the Democrats should have suggested Miguel Estrada to Trump when he took office. He probably would have chosen him & he would have been 56 years old then.

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      • Honestly I don’t think it would helped the GOP much even if they had put Gonzales on the Supreme Court. I mean it would given them a little benefit, but the whole immigration debate and the collapse of the housing market soured Hispanics on the GOP for a decade. My view is that diversity in appointments is much more important for the Democrats because their base cares about it that for the GOP.

        As far as Trump era SCOTUS appointments, unfortunately I’m not sure that any realistic plan of action by the Democrats prevents 3 right-wing justices. My personal view at the time in 2017 was that Dems should have accepted the centrist GOP senators deal to not filibuster Gorsuch. But say they did that and then filibustered Kavanaugh. Kavanaugh would have been blocked in 2018… but the GOP would have campaigned on that in the 2018 elections. It would certainly resonate in the red states, and it may even cost the Dems fairly close races West Virginia and Montana. I’m sure the red state Dems would oppose the filibuster of Kavanaugh, but I’m not sure it would be sufficient.
        And then Trump either renominates Kavanaugh or nominates someone else even worse with two or more Senate seats, and the filibuster for SCOTUS is eliminated then. I think you need 49 Senate seats post-2018 to have any chance to stop that.

        The main problem is that I don’t see a way that the Democrats get two more seats in the Senate in 2018 (which is what you would need to block either Kavanaugh’s or Barrett’s nomination). One is plausible, if you flip the Florida result. But the second one is one of Texas, Missouri, or Indiana, and I just can’t see the GOP doing worse with an open Supreme Court seat. Even in Texas, there were a few suburban anti-Trump/anti-Cruz Republicans who held their nose for Cruz due to SCOTUS.

        I suppose there is a small chance that retaining the filibuster through 2018 would either (a) cause Justice Kennedy to delay retirement, or (b) cause Trump to blink and nominate someone less right-wing. But it is unlikely, and even if (b) happened, it would likely be Judge Thomas Hardiman who was only slightly less conservative than Kavanaugh (very different than the Miers vs Alito situation). And Trump picked Kavanaugh IMO not so much due to his overall judicial ideology but rather because Kavanaugh has expressed an extremely strong view of executive power; Trump wanted a Supreme Court that would allow him to cover up his odious and criminal behavior.

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      • All good points Shawn. Only thing I would disagree on is there is no way I would consider keeping the filibuster in place in 2017. After the blockade of Garland, Mitch McConnell was Hell bent on putting conservatives on the federal bench so you might as well make him go nuclear all the way for the SCOTUs so it’s not in place once another Democrat president takes office. One way or another he was going to get who he wanted on the court anyway so mine as well make him go nuclear.

        I actually prefer justice Kavanaugh over a justice Thomas Hardiman because you can always hold the sexual assault allegations over his head & you never know, maybe one day something will come out to prove he did something wrong in the past. Then you would have a shot at grounds for impeachment. It’s unlikely but a better chance of it happening with him over any of the other possible nominees.

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    • I was almost shouting at the tv in 2014 when they were going to recess without confirming the pending judges knowing the senate would flip upon their return. When Ted Cruz pulled that stunt, it was one of the few times I ever liked something he did. With 3 of the judges being from his own state, it made it that much more gratifying.

      I absolutely agree Harry Reid had to go nuclear. I don’t think I would have done it as early as 2009 since the Democrats had 60 senators. What I would have done was add Washington DC as a state.

      Liked by 1 person

  17. So Schumer filed cloture on most judicial nominees last night, and did the discharge vote on Thomas, but I’m starting to wonder if these people, will be confirmed this year?……What is everyone’s stance on where things are headed?

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    • I was worried before yesterday but I think it would be dumb for him to spend so much time doing all of these cloture motions only to let them expire in two weeks.

      I believe either he has a package deal to get a worked out with Republicans to get a number of them voted out in bulk (I doubt this option), will work through the weekend & the first couple of days next week (A little more likely of an option) or they will break for Christmas recess but come back before the end of the year.

      If I had to guess I would say the second option.

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  18. The senate is in today, Dec 17th, but they are moving at snails pace….Confirmed one executive nominee and did one cloture vote on judicial nominee (Lopez – CDCA), so I hope the pace picks up as they’ll be adjourning for holidays soon…

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    • We got one confirmed with a second one teed up for 7:45PM. I don’t know how Schumer will get all of the judges confirmed without going into next week or the absence of a deal with Republicans butt he needs to.

      They really should not have taken that 5 week break in August. They should have reduced it to 4 weeks & confirmed judges with the extra week. And as I aid before every Thursday there should be 2 court of appeals nominees voted for cloture every Thursday & both voted for confirmation the following Monday. They wouldn’t be so backed up now had they done that.

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      • If I remember correctly, last admin senate Republicans held a nomination hearing during a RECESS for 4th Cir nominee, Allison Rushing…..Also, in addition to the stunt McConnell pulled after Ginsburg’s death, he kept senate in much of Aug – Oct to confirm District Court judges in a presidential election year…

        And I agree with you, that summer recess is too long….The vacancies have been piling up lately, especially with Circuit Court openings, and Schumer needs to fill every one of these. even MORE SO if no Supreme Court vacancy arises, and they can focus their judicial nominations on the Appeals and District court seats…

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      • Trump confirmations after the so called “Thurmond rule’ should have cut off additional confirmations;

        Amy Barrett – October 26, 2020
        Thomas Kirsch (7th circuit) – December 15, 2020
        Stephen Vaden (International trade) – December 21, 2020
        District court judges – 28 confirmed after September 1, 2020

        Mitch McConnell would be having Christmas dinner on the white House lawn bringing a Republican president judicial commissions before they expired if the Democrats refused to cut a deal to confirm a bath. Chuck Schumer should respond in kind.

        Liked by 1 person

  19. Good news… While Republicans are making the senate invoke cloture for each judicial nominee, they are not wasting the two hour debate time for each nominee so they are being confirmed in rapid fashion tonight. With this & only 2 appeals court nominees left, we may be able to get all pending nominees confirmed before the recess.

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    • That was very productive Dec 17th!……And Sanchez and Thomas will be confirmed in early Jan….

      Now the WH needs to give us an Xmas present by putting forth numerous Circuit court nominees, including the DC Circuit….

      On side note, watching some of the votes yesterday, why doesn’t CSPAN keep the vote tally…Sometimes they do…..CSPAN-2 exclusively covers senate proceedings and showing a vote tally should be part of the coverage in my view…

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      • That would be an amazing Christmas gift but I doubt we will get a second batch in December. With 12 nominees pending a hearing the SJC could split them up 6 at a time & have hearings on January 5th & 12th. That would mean the first realistic opportunity for any nominees that had yet to be announced to have a bearing would be January 19th. I doubt the SJC will have a hearing three straight weeks so more then likely it would be January 26th. So one more batch around Christmas would be nice because they could have their hearing in January 26th but I doubt we will get that.

        I count 16 appeals court seats without a current nominee. With many more likely next year to become vacant it’s imperative we get nominees, hearings & confirmation votes in those 16 by the end of May as they eat up the most floor time.

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      • There seems to be some confusion over whether the Holly Thomas nomination will have to be returned to the President based on the reading of the Executive Calendar. I hope there wasn’t a blunder from Schumer that causes a delay. Maybe you can shed some light on that? Hopefully Thomas is confirmed in early Jan (preferably before the 20th)!

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      • I’m less familiar with how the procedure is for returning nominees & then needing to renominate them in off number to even number years. I do know late last night senator Schumer said Gabriel Sanchez vote with occur on January 3rd upon the return from recess. The senate schedule also reflects the same. However he set it up it does not look like his or Thomas nominations will be returned but I couldn’t give you the senate lingo as to how they did it.

        Now I’m less sure about the three Ohio, John Chun & Sweeney & Vera (Both still need to be discharged) nominations.

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      • There’s currently no schedule time for the Thomas confirmation. With Sanchez scheduled for the Monday upon the senate’s return & the only pending nominees other then him & Thomas being the DC court of appeals & DC superior court nominees, I would look for Thomas vote to be scheduled the first week upon their free. Especially since cloture has already been cited on.

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    • Also at the end it says this…

      All the nominations received by the Senate during the 117th Congress, first session, will remain in status quo, notwithstanding the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following exceptions:

      Cal #’s 262, 265, 300, 313, 314, 348, 349, 355, 405, 407, 408, 415, 456, 460, 464, 468, 469, 483, 484, 485, 504, 510, 511, 512, 514, 515, 527, 529, 530, 532, 542, 549, 550, 551, 552, 559, 561, 564, 566, 568, 586, 588, 593, 594, 609, 610, 611, 615, 628, 631, 633, 634, 635, 417, 424, 427, and

      PN #’s 433, 489, 747, 767, 1023, 1155, 1435, 1464, 1285, 1286, 1222 , 1223 , 1295 , 408, 409, 410, 411, 412, 442, 541, 554, 722, 761, 770, 954, 1014, 1048, 1049, 1148, 1156, 1165, 1170 , 1206 , 1207 , 1210, 1211 , 1228, 1251, 1254, 1288, 1289, 1323, 1353 , 1354 , 1355, 1356 , 1357 , 1358, 1359, 1360, 1361, 1364, 1370, 1372, 1423, 1424, 1439, 1369, 231, 427, 436, 618, 773, 778, 788, 796, 919, 999, 1491, 1149

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