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.

26 Comments

  1. Anne Traum is a good pick but there were probably better & certainly younger picks in the state of Nevada. I understand the urge to renominate Obama nominees that never received a vote despite there being younger nominees taht would be as good if not better (Just like Lucy Koh, Julien Neals, Regina M. Rodriguez & Florence Pan).

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    • I was expecting this nomination and I’m sure that no one here is surprised. Look for others denied a vote in 2016 to be nominated. You’ve mentioned Rebecca Haywood of Pennsylvania, and she’s in the running if she’s still interested.

      I recall that Pat Toomey initially opposed Haywood’s nomination. Did he relent and turn in the blue slip at a later time? I can’t remember if he blocked the nomination or merely delayed it?

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      • Toomey blocked the nomination of Haywood and asked Obama to withdraw her. I assume that Senator Casey supported Haywood and likely had a hand in her selection. Casey opposed all of Trump’s Third Circuit nominees in PA, including David Porter, whom Casey opposed multiple times when Toomey tried to have him appointed to the District Court as the GOP selection during Obama’s presidency.

        But this was with a GOP Senate and blue slips still in place. It is very possible that Toomey would support Haywood now to head off a more progressive and/or younger nominee. Biden and Casey should reject that kind of gambit and nominate someone like Amanda Green Hawkins or public defender Arianna Freeman.

        https://www.inquirer.com/philly/news/politics/20160316_Obama_nominates_Pittsburgh_federal_prosecutor_for_Third_Circuit_vacancy.html

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      • Senator Toomey would almost certainly support (And if he was smart even suggest) Rebecca Haywood for one of the 3rd circuit seats. She was a good pick 6 years ago when blue slips were still in play & she was in her high 40’s. If nominated now this would be a horrible appeals court pick (In my opinion second worst to Lucy Koh).

        I’m afraid however that just like Lucy Koh, Biden will end up nominating her again. I’m ok in most cases with it for district court seats (Except Florence Pan who wasn’t even a good Obama pick for the DC district).

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      • I wouldn’t necessarily say she is horrible quite yet; if Haywood has a strong progressive bent, it wouldn’t be horrible, just below par. But there are far better options to be sure.

        Lucy Koh was horrible because she is an older moderate. The GOP didn’t really oppose her in 2016, just they ran out the clock on her nomination. If Hillary Clinton were elected in 2016, I think she would have been confirmed in 2017.

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      • I didn’t see anything in Rebecca Haywood’s background to show me she’s progressive back in 2016. Unless something has changed over the past 5 (Which I highly doubt), I would say she’s probably your standard mill of the run Democrat.

        With her being in her mid 50’s, I would have no issue if she was a district court pick since blue slips are still in play for that. But for an appeals court I can’t thin of any worse pick save Lucy Koh to date if she was nominated.

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    • Lucy Koh was a horrible pick for age alone on a court of appeals. Like Florence Pan though, I believe she was always going to get picked for the 9th circuit after being denied the first time with a new Dem president/senate. Easy being able to pick someone who’s already known instead of searching for a new name.

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      • Correct, which is why I am afraid Rebecca Hayward will likely be picked for one of the two 3rd circuit court vacancies. She won’t be as bad of a pick as Pan or Koh was, but there are so many younger & better picks from Pennsylvania that it hurts to see circuit court vacancies go to somebody that has no chance of even being considered for the supreme court at a later date.

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  2. I agree there would be better picks than Haywood, including some frequently mentioned by you guys (Amanda Green-Hawkins, Arianna Freeman and Nilam Sanghvi). In addition, I was thinking of Penn Law profs Sandra Mayson and Jasmine Harris as well as Pittsburgh prof William Carter to be worth considering for McKee’s and Smith’s seats, respectively.

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    • My biggest worry about a possible Rebecca Haywood pick is she was a good pick in 2016. With blue slips still in play for appeals court nominees, a woman (Which the 3rd circuit greatly lacks) who is around 48 years old with a long record of serving in government that is left of center in a state in which the one Republican senator worked well to get district court nominees through in addition to a Republican majority in the senate, I was supportive of her THEN.

      But now with her being a near 54-year-old left of center nominee when blue slips have no role in a Democrat senate, this would simply be a bad pick. I am more worried she will be picked now that there are two vacancies then I did when there was just one. I’m not confident Lucy Koh would have been selected had there been one vacancy on the 9th circuit. But with three California vacancies at the same time, it makes it easier to have a bad pick that was a former Obama nominee.

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  3. I agree that Haywood would not be a great pick, instead preferring one of the names frequently brough up by you guys (Amanda Freeman, Amanda Green-Hawkins, Nilam Sanghvi). In addition, I have been thinking about Penn Law profs Sandra Mayson and Jasmine Harris and Pittsburgh prof William Carter Jr. as worth considering for McKee’s and Smith’s seats, respectively.

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  4. I agree that Haywood would not be a great pick, instead preferring one of the names frequently brought up by you guys (Amanda Freeman, Amanda Green-Hawkins, Nilam Sanghvi). In addition, I have been wondering whether Penn Law profs Sandra Mayson and Jasmine Harris as well as Pittsburgh prof William Carter Jr. may be suitable for being considered for McKee’s and Smith’s seats, respectively.

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  5. Sandra Mayson seems to be born around 1983 & has a progressive background, so she is an excellent suggestion. She has deep ties in New Orleans so she also could be considered for the 5th circuit vacancy.

    Jasmine Harris born around 1977 is strong on disability rights which is lacking on the federal bench so she would also be good.

    William Carter Jr. born around 1972 would be a good choice under most circumstances as Biden has only nominated one black man as an appeals court judge (And three overall). Unfortunately, with the third circuit having 11 men & 2 women on it, I think it’s almost certain both nominees will be women.

    As Shawn mentioned on an early post, the third circuit would also be left without a black judge if neither of Biden’s nominees are black so look for one to be a black woman. If she is young & progressive, I would look for her to be catapulted to near the top of a short list for a SCOTUS vacancy.

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      • I would agree. I disagreed with you when you suggested the same for New York as I did not believe there would remain an “upstate seat” after Trump moved one of them to NYC plus New York has two senators from the same party. That combined with NYC having much much more progressive choices led me to believe the seat would move to NYC, which it did.

        I do agree with you however that Pennsylvania will stick with the western & eastern seats. For one there is a republican senator in the state but more importantly senator Casey relies on the vote share from the western part of the state to win re-election much more then Schumer or Gillibrand relies on Northern New York for the same.

        Liked by 1 person

  6. Traum had her confirmation hearing before the Senate Judiciary Committee and it didn’t go well for her. Senator John Kennedy asked “Do you think we should forgive criminal misbehavior in the name of social justice?” When she refused to give a straight answer, he asked again. He wound up asking nine times and each time, she came off as evasive, never saying yes or no. He then asked her favorite color, and when she said “blue,”, Kennedy remarked “Finally, a straight answer.”

    Perhaps another tie-breaker in the works.

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    • I saw that. It was actually “embarrassing” like senator Kennedy said. I was surprised she simply did not answer the question. He has waited over 5 years for her hearing & she seemed less prepared then those who were nominated for the first time this year. She will still be confirmed however.

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  7. As a 25+ year litigator in state and federal courts, I prefer that trial court nominees have extensive litigation experience. This candidate appears to be lacking in that experience. If anywhere, her experience is geared to courts of appeal, not the daily grind of trial practice.

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      • Eh, yes and no. If one is an academic your entire career and never stepped in a courtroom, there is a considerable learning curve in hearing and presiding over a trial court. Being intelligent will help, but if one has the attitude that mundane matters are less important, it will show in their performance. In general, I would try not to nominate law professors for a district court if they don’t have past experience practicing there.

        Traum, however, has a wide variety of experience, and I think will be fine.

        Liked by 1 person

      • I think if somebody has graduated from one of the most prestigious universities law school, been vetted by two US senators commissions & then by The White House, I see no way they won’t be prepared to be a district court judge. It may not be the most traditional path but I see no issue with it. They will have access to a law clerk & countless other vehicles to assist them in the job just like judges who come from more transitional backgrounds.

        I would be more concerned with the persons temperament which I had an issue with among many of Trump’s nominees.

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  8. Why is a law professor being nominated to be a Federal Judge, particularly one who hasn’t practiced law in many, many yearsz? Writing a paper analyzing the impace of a Supreme Court decision is a far cry from assessing whether good cause exists to grant a motion to extend deadlines, or to compel – the nuts and bolts of the legal practice. As a practicing attorney in Nevada, we need more judges who know what’s like to actually litigate cases – take them to trial. She is not what Nevada needs.

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    • Anne Rachel Traum also served in the US justice department on two different occasions. But even without that, I am fine with law professors being federal judges. If John Rappaport were to be the nominee for the open 7th circuit court vacancy in Chicago, I would be ecstatic. That perspective is one I think is needed on the bench as well as the more traditional ones.

      My argument would be more geared towards we should be able to find a younger nominee more in line with Cristina D. Silva’s age. And you could also argue her answers to senator Kennedy at her hearing were troublesome. But nothing to disqualify her when compared to many of the nominees we saw from the last administration.

      Liked by 1 person

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