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.

29 Comments

  1. No question judge Nathan is highly qualified for the appeals court & was one of the favorites from day 1 of the Biden administration. I would have preferred Dale Ho but would have been fine with him being nominated to the DC circuit & Nathan to the 2nd circuit. None the less Nathan will be a welcome addition to the court. I believe she said she would not leave the district court until she is finished with the Ghislaine Maxwell, case so when the senate judiciary committee holds a nomination hearing Wednesday, if they have only one court of appeals nominee I hope it’s Andre Mathis for the 6th circuit seat. Nathan can be in the first hearing in January unless they plan to have both appear Wednesday.

    Liked by 1 person

    • With the limited amount of nomination hearings in the SJC, limited amount of senate floor time for cloture & then confirmation votes, I would hope the administration limits the amount of district court judges t hey nominate to the appeals court. This should be reserved for only the nominees who are truly the best option for the seat. They should be young, progressives that would be considered for SCOTUS for the next decade or longer. If they do not meet this criteria then it’s not worth the time it will take to backfill their district court seat.

      Most of Obama district court judges would be too old to meet that criteria. Only George J. Hazel of Maryland comes to mind. I will list some Biden district court nominees below that I think would be worth nominating to the appeals court.

      Deborah Boardman
      Margaret Strickland (Although her law partner McGraw is a year or two older & probably just as if not more progressive)
      Lauren J. King
      Jia M. Cobb
      Omar A. Williams
      Katherine M. Menendez
      Victoria Marie Calvert
      Dale Ho

      Liked by 1 person

      • Though I prefer Williams federal defender background, Sarala Nagala would also be a good pick. She would be the youngest on the Second Circuit, so that would set her up well to be Chief Judge some day. Though a prosecutor, she has worked in hate crimes specifically. But don’t think she will be picked either because of only recently taking the bench on the District Court.

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      • I know Sarala Nagala is 6 years younger, but I would much rather los the half decade & see either Omar A. Williams (1977) or Raheem L. Mullins (1978) & Joshua Perry (1978). I’m sure there are plenty of other names I am not aware of but any 2 of those 3 would be my two picks out of the names I know.

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      • I will post the link from Muslim groups upset about Zahid Quraishi nomination below to answer for him. As for Sarala Nagala, I will give a similar answer I gave for Jennifer Nou. I am sure Sarala Nagala is liberal & her youth combined with her being a history making appeals court pick would be great. There just simply are other candidates who have more of a progressive record that I would trust more.

        (https://providencemag.com/2021/06/islamist-group-slams-presidential-appointment-first-muslim-judge-federal-court-zahid-quraishi-cair/)

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      • @Shawn David Urias is very progressive but he was born in 1967. That’s simply too old for a court of appeals promotion in my opinion. I intentionally left him off my list. Elizabeth Hanes (if she is nominated in Virginia) would be a good option. I believe there were two women recommended for the one vacancy & she was one of them. Most likely Biden will now pick both women but if only one of them are picked, Hanes would be best from what I remember reading about them.

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      • @Shawn

        I thought the same thing initially too when I saw Davis Urias graduated in 1997. I would love to her the back story on why he graduated at 30 instead of around 22…

        On another note, I’m afraid I have some bad news. Instead of (As you have suggested in past post) senator Menendez being kicked out of the senate, we may add his son to congress in the near future… Lol

        https://www.rollcall.com/2021/12/20/rep-albio-sires-to-retire-back-sen-bob-menendezs-son-for-seat/

        Liked by 1 person

      • @Dequan
        So according to his SJC, he began vocational school in 1990, did not graduate, but began at U New Mexico in 1992. I don’t know what happened, but it’s possible that he had work to support his family, and he could only go to school later. Or it’s possible that he basically was a bum for a few years after high school, but that’s more common with Millennials than it was for someone born in 1967. I’d bet on the former, and if so, it’s an American success story and certainly a perspective that is sorely needed on the bench. I think it’s extremely likely that he is the first person in his family to go to college.
        I should look at the hearing for Urias and see he said anything about this.

        Regarding Menendez, all I can say is that I hope the son is better than the father, although it’s a very low bar. The father is a complete disgrace to the country and should be in a prison cell, not in the US Senate. Although I don’t expect much out of Menendez Jr. either, you never know. Ted Kennedy when he was initially elected in 1962 was thought to be a complete joke who only was there due to family connections. Hopefully this is the opposite of the Cuomos.

        Liked by 1 person

      • I watched Davis Urias SJC hearing & the gap was not explained. But I agree it’s most likely your first example & he is truly the type of person we need on the federal bench. His age prevents me from saying the court of appeals but I hope he serves for decades on the district court.

        And I know nothing about senator Menendez son so I will withhold judgement & give him a fair shot. If he can pick federal judges even slightly better then his dad, he is alright in my book in that respect because New Jersey has hands down had the worst slate of judges so far in the administration.

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  6. Schumer is on the senate floor evoking cloture for all of the pending judicial nominees & multiple other nominees & ambassadors. We may actually get these judges confirmed before the new year. This might be the first time in a while I’m actually proud of the Dems. I was starting to get worried they didn’t have it in them to stay & finish the job.

    Liked by 1 person

  7. It looks like former DC circuit nominee Caitlin J. Halligan was 1 of 7 finalist for the New York court of appeals (There supreme court) vacancy but was not selected. I actually wish she was chosen. She withdrew before senator Reid invoked the nuclear option or she would be sitting on the second highest court in the land right now. Despite her being 54 I wouldn’t be upset if senator Schumer recommended her for one of the district court vacancies. She’s too old for the circuit court but she deserves to be a federal judge if she still wants it.

    (https://nysba.org/app/uploads/2021/04/Vacancy-Report-and-Press-Release.pdf)

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    • I wish Andrew Cuomo had been forced out long before. He was a pretty crappy governor and filled the courts with some really low quality and conservative nominees. As questionable as the Martin Jenkins selection was from Gov. Newsom, Jenkins is likely better than every single judge on the NY Court of Appeals.

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      • I 100% agree with you about the NY court of appeals judges. Not one of them could be considered for elevation (Unlike the California supreme court where there are at least 2 or 3). And not just because of their ages, their backgrounds would also not make them viable for the appeals or US supreme court.

        Martin Jenkins was only a horrible selection because of his age. If he was 15 to 20 years younger, he would have been a good pick. I am interested to see who Governor Newsome will nominate for the current vacancy. It will almost certainly be a Latina/Latino & he has been pretty good with picking progressives. I just hope it’s noe in their 40’s or high 30’s.

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