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.

36 Comments

  1. Judge Silva’s record as a long-time prosecutor seems to be a bland choice for a state with two Democrat senators. Especially after waiting over 10 months, I was expecting a more progressive nominee. However, she seems to be well qualified for teh position & likely will be confirmed with ease.

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  2. The judiciary (and the Seventh Circuit) has too many academics as it is – would be better to have someone with actual experience practicing and not just writing law review articles. Chicago has lots of public interest/civil rights orgs, so ideally he’d pick someone with that background. With only 3 dem appointees (plus Rovner, who seems pretty liberal) whoever he picks needs to be at least as progressive as Wood.

    Will Biden do as he did in the 2nd Circuit and elevate a district court judge after some great, non-traditional pick (Lee & Perez in 2d Cir., Jackson-Akiwumi here). I hope not, but would Andrea Wood the frontrunner for this seat if he does? Hopefully it’s not Feinerman – too old (at 56) and adds no professional/demographic diversity to the court.

    Also, any speculation/intel on replacements for the Hamilton seat? Indiana’s senators are both pretty nuts so Biden should not even bother conferring with them.

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    • I trust chairman Durbin to make a good recommendation for the 7th circuit. I had never heard of Candace Jackson-Akiwumi prior to the announcement & I think she was a great pick. I see little chance of a black women being nominated back-to-back so Andrea Wood will remain on the district court. Hopefully it will be somebody with a civils right, voting rights, labor/union, environmental, disability or public defender background. I look for the nominee to be in their mid to low 40’s or high 30’s & have a progressive background. It would not surprise me if it’s another name off the radar that hasn’t been discussed on this website at all.

      As for the Indiana seat, I would expect a repeat of the 6th circuit seat. The Biden administration will probably give a courtesy call to the Indiana senators to discuss possible nominees but there is no more blue slips for appeals court seats so they have no veto power. They will be upset just like the Tennessee senators but oh well. Pete Buttigieg should be consulted more than the Indiana senators.

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      • Both would be solid picks in my book & would most likely be opposed by both Indians senators which I’m fine with.

        U.S. Attorney Zachary Myers would probably have the easier time since he had already been confirmed by the senate this year. He was born around 1981 & would be Biden’s second black man nominated to the court of appeals.

        Jessica M. Eaglin Was born around 1983 & would put a second straight black women on the 7th circuit albeit from different states. President Obama tried to put a black woman in an Indiana court of appeals seat but was blocked & then she was replaced by Amy Coney Barrett once president Trump was elected. Her work at the Brennan Center for Justice would be scrutinized closely. She likely is in the same league as Myrna Perez who in my opinion is president Biden’s best appeals court nominee to date.

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    • I will copy/paste my comments from the Leonard Stark page on this site about Jennifer Nou…

      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.

      Also, although not that it is a disqualifier, but she is on The Federalist Society’s web site.I know it doesn’t mean she is a conservative, but that, combined with nothing in her record showing me she is a proven progressive wouldn’t even put her in my top 10 for the 7th circuit in a Democrat controlled senate.

      (https://fedsoc.org/contributors/jennifer-nou)

      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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      • Jennifer Nou would be a solid pick and is a solid liberal, but I think there are more progressive professors and more progressive attorneys.

        “Also, although not that it is a disqualifier, but she is on The Federalist Society’s web site.”

        It’s not a disqualifier at all IMO. We had the same discussion about Prof. Leah Litman, being invited to debate issues at the Fed Society shouldn’t disqualify otherwise progressive candidates. Some would argue that boycotting the Fed Society should be a prerequisite for judicial selection under a Democratic admin, but I disagree.

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      • I assumed Jennifer Nou was liberal but I honestly couldn’t find anything in her record to suggest such. And that was before I even found her on The Federalist Society website. Like she’s 41 & AAPI so I was actually not looking for much to convince me but I found nothing at all. What am I missing that you see? I actually want to be wrong in her case.

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      • Yes, I am very familiar with the American Constitution Society (And would trust anybody Russ Feingold signed off on) but was not aware Jennifer Nou was a faculty advisor for their student chapter. That does show her move favorable, but I still would say there are better options from Illinois.

        Also, I would push back on your characterization of her being ” a solid liberal” just based on that. Gabriel P. Sanchez has a more progressive background (The lead author of the Public Safety and Rehabilitation Act of 2016 that allowed certain non-violent defendants to be considered for parole) & (Received the ACLU award for his work defending migrant farm workers) just to name a couple. Despite that Shawn you pushed back on his progressive record which I disagreed with you on in a previous post (Although I agreed there were better choices in California).

        But either way I would not be upset if Jennifer Nou was the nominee. Perhaps she is not an outspoken liberal because she knows she is an attractive candidate for a federal judgeship & does not want to make her confirmation any harder with inflammatory writings.

        As for the Kate Shaw comments, she seems to be born around 1979 but despite being a few years older than Nou, Shaw actual has a long progressive record. She recently edited the book “Reproductive Rights and Justice Stories,” along with Melissa Murray, who of course I wanted to see nominated to a federal judgeship in New York. She also worked in the Obama White House.

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      • As a former student of Nou’s, she is liberal. There is literally nothing in her background that is remotely conservative beyond clerking for Posner, who is nobody’s idea of a judicial conservative anyway. Some of you have delusional standards. She’s thoughtful and would be an excellent pick.

        The home run lefty on the Chicago faculty would be John Rappaport, though. He’s one of the country’s top few young progressive criminal law scholars, a former capital public defender, a Ginsburg clerk, young, and very liberal. He’s a white man, but he is future-SCOTUS-justice caliber.

        Both Nou and Rappaport have law and econ backgrounds that would fit in well on the Seventh.

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      • @ Maroon, I do not believe anybody on this post said Jennifer Nou was a conservative. We are debating who we feel would be the best candidates for the 7th circuit vacancy. As I said, I wouldn’t be upset if Jennifer Nou was the nominee however, I feel there are others that have a more progressive record. If you are her former law student then I will give some deference to you because myself, just like probably over 95% of the people commenting on this post have never met Jennifer Nou.

        But I do not think any of the people giving their opinion on this site has “delusional standards” when they are giving thoughtful reasoning as to why they feel somebody else would make a better nominee. If you actually read a lot of my former post on this site over the past year, I have predicted numerous nominees long before they were announced. We don’t always get it right, but I rarely read anybody’s comments & think they don’t have some basic reasoning as to why they have their opinions.

        As for John Rappaport, I actually really like him as a pick. He’s around 41 years old as well just like Jennifer Nou but has a solid progressive background as a former Los Angeles federal defender. I would be happy if he was the nominee albeit I know some won’t be due to him not adding diversity to a circuit court that only has one non-white judge & even more so because he would be another judge from Munger, Tolles & Olson LLP. With the Indian seat still vacant, you could still add diversity to the court depending on who that nominee ends up being.

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      • @Maroon
        Given that Trump stacked the bench with white males, diversity is something that should be prioritized for judicial nominees. If given two comparable candidates, diversity should be prioritized.

        However, if someone would be a highly influential progressive judge, whether in the majority or in dissent, they should be seriously considered regardless. John Rappaport is precisely that kind of candidate.. He seems like he would be another Judge Reinhardt (hopefully without the sexual misconduct and general assholishness). I’m not in favor of appointing more Big law partners, but a few years early in their career is not a disqualifier.

        If someone would be a progressive home run, you nominate them without regard to diversity considerations. If you get a chance to appoint a strong visionary like Brandeis, Douglas, or Scalia, I think you have to, even if it isn’t in line with diversity goals. Goodwin Liu right now is the most visionary potential justice on the left, and I think he should be nominated for Breyer’s seat.

        ” Some of you have delusional standards. ”

        BTW, this is really uncalled for.

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      • @ Shawn, Thank you for that last line. You & I (Maybe Mitch as well) are probably the people who write on this blog the most. We do not always agree but I have never heard an unkind word before the comment you referenced from yesterday. I hope with that one exception we can all continue to give our honest thoughts & feedback without those type of comments.

        I think most of us are here for the same reason. We want to see President Biden nominate qualified, progressive legal minds to the judiciary to counter the 4 years of the Trump administration (With diversity being a plus). We may not always agree on who the best person may be for a seat but I think we all are on the same team.

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      • In reply to @Shawn, I would agree in this case John Rappaport would be amongst the best choices for the 7th circuit. Even thought he would not add diversity, he is a SOLID 41 year old progressive. The only caveat I would add is the Indiana seat needs to be a diversity nominee. It should be anyway after Republicans blocked Myrna Shelby in 2016.

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      • Rappaport would be a great pick, though I’m less enthused by Nou for the reasons discussed above.

        Does anyone know if Demand Justice/other progressive orgs are still recommending judges to senators (or maybe they are but not publicly?) Didn’t MALDEF or someone recommend some Latino judges for the DC Circuit a while back, or am I going crazy?

        If Biden won’t appoint 2 Black women in a row (hopefully not the case given that his first 4 nominees were Black women), I can see them wanting to put a Latino judge on the Illinois seat in particular given the growing population in Chicago (they also created a new Latino-majority house seat during redistricting). No picks immediately come to mind though.

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      • Tom Saenz sent a list to The White House (I believe 7 names) to consider for the first Hispanic to the DC circuit. He never released the list for the public & I can’t find the names anywhere. I suspect the reason for the hold up as to why we still don’t have a nominee is because they were hoping for one additional vacancy by the end of the year given two other judges are in their 80’s. That hasn’t happened yet so they will be forced to show their hand as to if they are going to pick Deepak Gupta, some other name that has been mentioned numerous times on this blog or go with the first Hispanic judge.

        I know Demand Justice as well as Russ Feingold’s ACS sent a list after the election last year. I do not believe either sent a second list. Most of the names from the Demand Justice list (I do not believe Russ made his list public) have not been nominated as federal judges (Althougj some have been named to other post) yet so they have plenty to work from off that list.

        Also there was a list of 65 likely names to be chosen for the appeals court by I believe Bloomberg Law at the start of the year too. Some of the names are simply too old but most would be very good picks from that list.

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  3. As for Indiana, Zachary Myers would be the first African-American appellate judge from Indiana, if I’m not mistaken. At the same time, I see nothing in his background that would generate passionate opposition. He’s an expert in cybersecurity law, a very relevant issue today.

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